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 9,S,9!|9jja,,,forms and jpractice : 
 
 3 1924 024 646 956 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024646956 
 
GEORGIA 
 
 Forms and Practice. 
 
 A COLLECTION OF ANNOTATED LEGAL FORMS, 
 ADAPTED TO THE CODE OF 1895. 
 
 DESIGNED FOR THE USE OF 
 
 THE JUDICIARY, THE BAR, AND THE COUNTY 
 OFFICERS OF GEORGIA. 
 
 Intended also as a Hand-book for Business men. 
 
 The true law dellghteth in the payment of just debts.— eo Oa., 566. (BlecMetj, J) 
 
 JAMES H. BLOUNT, JR., 
 
 OF THE MACON BAB. 
 
 ATLANTA, GA. . 
 
 Geo. W. Harrison, State Printer, 
 
 Franklin Printing and Publishing Company, 
 
^//i' 
 
 Eateied according to Act of Congress in the year 1698, by 
 
 JAMES H. BLOUKT, JE., 
 in the office of tbe Librarian of Congress, at^Wastington. 
 
Malter 3Barnar5 Ibill, 
 
 Till: Scholar of the Georgia bar, 
 
 AND 
 
 James XeConte Bn&erson, 
 
 THE ANALYTICAL JURIST OF ITS YOUNGER HALF, 
 
 AS A SACRED TESTIMONIAL OF RESPECT AND AFFECTION 
 FOR THE TWO BEST FRIENDS THAT THIS LIFE 
 HAS DEVELOPED FOR HIM, THIS 
 BOOK IS INSCRIBED 
 
 JSs tbe Hutbor. 
 
SUPREME COURT OF GEORGIA. ' 
 
 Atlaa'ta, November 8, 1897. 
 We hsLYe given the advan'oe sheets <of "Georgia Forms and Praxj- 
 tice," by Mx. James H. Blount, Jr., a sufficieoit esamimation to ena- 
 ble us to say it is a book of great merit and value. It is evident 
 that the author has devoted to its preparation an immense amount 
 of intelligent research and laJbor, 'and he has done the -work with 
 rare ability and skill. There may be some inaccuracies and omis- 
 sions, for niothing don'e by human beings is perfect; but as a whole, 
 the book is a decided success and will fill a practical nleed. The 
 forms are excellent and iihe annOtationB copious and pentinent. We 
 are convinced that this book will be quite useful to officials, to the 
 profession, and to ilhe business public. Without disparaging the 
 merits of any other like publication, it is but simple justice to M.r. 
 Blount to say that no previous work of this kind upon so compre- 
 hensive a plan h'as yet been attempted. 
 
 Respectfully, 
 
 T. J. Simmons, 
 Samuel Lumpkin, 
 Spencer R. ■ Atkinson, 
 Wm. a. Little, 
 Wm. H. Fish, 
 Andrew .J. Cobb. 
 
VI LETTERS. 
 
 THE ATTORNEY-GENEEAI''S LETTEE. 
 
 By virtue of a joint resolution of tlie General Assembly, approved December 6th, 1897, this 
 book is supplied at the State's expense to the public officers to whom the Code is by law fur- 
 nished, viz : To the Justices of the Supreme Court, Judges of Superior, City and County 
 Courts, Solicitors-General, Ordinaries, Boards of County Commissioners, Clerks of Superior 
 Courts, Sheriffs and Justices of the Peace. The resolution require'3, as a condition precedent 
 to acceptance of the book by the Slale, that it should be examined and approved by the 
 Attorney-General. His letter of approval, filed in the Executive office, is as follows : 
 
 Attorney-General's Office, 
 
 Atlanta, Ga., February 9, 1898. 
 His Excellency, W. Y. Atkinson, 'Governor, Atkvnia, Oa.: 
 
 Dear Sir. — As prescribed by the joint resolution, of the General 
 Assembly, approved DeceambeT Gtb, 1897, 1 have examined, as fully 
 and tttioroxigMy as my Oiflicial duties would permit, tbe advamce- 
 sheets of "Georgia Forms and Praotice," prepared by Mr. J. H. 
 Blount, Jr., of the Maoon Ear, and beg to say that as now presented 
 to your Excellency, the book meets, in my opinion, the require- 
 ments of the resolution a.uthorizin'g its purchase, and will be a 
 soiurce of great usefulness not only to the officers charged with exe- 
 cuting the law, but to the legal profession and thte general public. 
 
 It is biut justice to the author to add, that the forms, and the 
 annotations, which are boith pertinent and copious, eTidemce careful 
 preparation and legal ability of a high order. I therefore take 
 pleasure in commending the book to the profession and to business 
 
 men generally. 
 
 Very respectfully, 
 
 J. M. TEEEELL. 
 Attorney-General. 
 
I^ETTEES. VII 
 
 LETTERS FROM THE THREE CODIFIERS OF 1895. 
 
 JUDGE HOPKINS' LETTER. 
 
 Atlanta, Nov. 24, 1896. 
 Jam'es H. Blount, Jr., has submitted to me proof-s!heets of a por- 
 tion of an annotated form-book that hfe h!as prepared. The plan 
 adopted by him is original, and I tlhink it a happy suggestion in 
 book-malring. As far as 1 have had oppoTtunity for examining it, 
 the woi-k has been sldlfully and faithfully done. I do not doubt 
 that the book will be of great value to the county officials of tlhLs 
 State. JOHN L. HOPKINS. 
 
 Macon, Ga., Nov. 23, 1896. 
 
 I have examined some of the proof-sheets of a form-book receoitly 
 gotiten up by James H. Blount, Jr., and regard th'e book as of very 
 great value. 
 
 The forms are carefully and accurately prepared, and the annota- 
 tions are terse and clear, and Aose I have examined are correct and 
 reliable. The book is one of inestimable value to Justices of the 
 Peace and other public officers, as well as to general practitioners of 
 the law. Its use will prevent many mistakes and save much timf: 
 and labor. CLIFFORD ANDERSON. 
 
 MR. LAMAR's letter. 
 
 Augusta, Ga., November 9th, 1897. 
 /. H. Blount, Jr., Esg., 
 
 Macon, Ga.: 
 Dear Sir : — I have attentively read advance ^eets of your Form 
 Book, and heartily congratulate you and the public upon the pro- 
 duction of a work so valuable to the many citizens and State and 
 county officers who have constant occasion to prepare legal papers. 
 The forms cover every topic desired, and are most carefully and 
 accurately prepared. But the book is much more than an excel- 
 lent work on Forms; the suggestions and annotations, in connection 
 therewith, make it invaluable to the practicing lawyer, as well as 
 to those for whose use it was more especially designed. 
 
 Very truly, 
 
 J. R. Lamar. 
 
SOUVENIR. 
 
 Macon, Ga., February 10, 1898. 
 
 To the Members of the General Assembly of 1897, 
 
 Viz. : 
 
 OF THE SENATE, 
 
 ; McfSis-: Allen, AtiiriEOD, Battle, Eeiner, Blakck, 'ErinEOD, Brooie. Carter, Castleterry, 
 Comas, Ccck, Culver, Dunwcdy, Everett, Flewellin, Flynt, Geiger, Goldin, Golightly, Gray, 
 Hani, Hopkins, Hudson, Kemp, Kilpa trick, Mann, McFarland, Eedwine, SbefBeld, Shropsbire, 
 Starr, Stevens, Stewart of the 27th, Stewart of the 34th, Strother, Thompson, Ttirner, Van Bu- 
 ren, Walker of thetSth, Walker of the 40th, Westmoreland, "Wilcox, Witcl er, Wootten; 
 
 OF THE HOUSE, 
 
 Messrs: Adams, Armstrong, Arnold, Atkinson, Awtry, Baggett, Bartlett, Bates, Bedgood, 
 Bennetof Glynn, Bennett of Jackson, Berry, Black, Blalock, Boifeuillet, Bond, Boswell, Bow- 
 den, Boyd, Boynton of Calhoun, Boynton of Spalding, Branch, Brannen, Brown, Brinson of 
 Burke, Brinson of Emanuel, Burke, Burwell, Bush, Bussey, Calhoun, Callaway, Calvin, Cannon, 
 Chapman, Charters, Clements, Collum, Cole, Cook of Decatur, Cook of Oconee, Copeland, Craig, 
 Davison, Deakins, Dickerson, Dodson, Duffy, Duncan of Chatham, Duncan of Houston, Dun- 
 can of Lee, Durham, Edge, Edenfleld, Edwards, Ellis, Ennis of Baldwin, Ennis of Floyd, Faust, 
 Felder, Felker, Fogarty, Ford, Foster, Freeman, Gowen, Grice, GrilBn, Hall, Hamby, Harreli, 
 Hawes, Henderson of Colquitt, Henderson of BeKalb, Henderson of Forsyth, Henderson of 
 Irwin, Henderson of Washington, Herrington, HightoTver, Hill, Hitch, Hogan, Jenkins, 
 Johnson of Appling, Johnson of Baker, Johnson of Hail, Johnson ofTallaferro, Jordan, Kalgler, 
 Kendrick, Kiser, Knowles, Lance, Law, Leard. Little, Longiey, Lott, Maddox, Mansfield, 
 McCook, McConneli, McCranie, McDaniel, McDonald, McDonough, McGehee, McKee, McLarty, 
 McLaughlin, McMichaei, Meadows, Meldrim, Moore, Montfort, Morgan, Morrison, Mozley, 
 Mullinax, Kevm, Nicholas, Niles, Nisbet, Oakes, Ogletree, ^^^^*, Pace,Palmer, Parker, Pat- 
 ten, Paulette, Pearce, Phinizy, Quillian, Bawls, Rawlings, Bedding, Eeid, Eeece, Ecberts, Budi- 
 cil,Eutherford, Salter, Sell, Slaton, Simpson, Stone, Smith of Crawford, Smith of Hancock, 
 Swift, Taylor, Thomason, Thomas cf Clarke, Thomas of Pierce, Thomas cJ Ware, Thomp- 
 son, Timmerman, Turner, ,Underwccd, Vaughn, Vincent, Walden, Watkins, Webb, West, 
 Whipple, Whitaker, Wight, Wilcox of Telfair, Wilcox of Wilcox, Wilkes, V\orsham, Wren, 
 Wright, "i'ates; 
 
 Gentlemen : — 
 
 As tlhe last pages of "Georgia Forms and Piiactic©" go to' press, 
 and my work in connection with, it forever ends, my ttouglits natu- 
 rally turn to you, in grateful reeoUection. In memory, I recon- 
 vene you, 'and see, in session assembled, the Ghoeem represemtativea 
 of the people of Georgia. 
 
 For the use of tlie officers selected by tlhat people to 
 administer tiheir laws, and to execute justice among them, you saw 
 fit to buy my book, and I sincerely, eagerly hope, tbat upon your 
 verdict those public servants will be able to enter up a judgment 
 
 * T. D. Oliver died Decern bei26th, 1897. 
 
SOUVENIR. IX 
 
 of approval. For tihroiughoiit tha slow and silent progress of each 
 chapter, from the Monroe coiinty road "whereon the first page 
 begins, to tihe story of the wrongeid woman on the last page, 1 was 
 animated, yes, nmde ahle to live, by the hope of becoming known 
 to the people of the State, as having done, for them, useful work. 
 
 Far be it from me to belabor you with a story of the troubles 
 incidenlt to thfe enterprise, and of (how they grew with its growth. 
 But ithe law in some cases undertakieB to measure human pain and 
 suffering, and to fix co'mpensation therefor, and thei law you passed 
 for me, though limited in its financial feature by the gloomy en- 
 vironment of five-cent cotton, has amply compensated this plaintiff 
 for all damages properly aittributabl© to the compilation of the 
 book. And the utter loaeliness of his pathway to the Gapitol 
 becomes, in reminiBcence, but a minor matter, when the wayfarer 
 reflects upon your official action in the premises. It is a' sub- 
 stantive pleasure, tending to improve with age so they say, for a 
 man, whether by legislative service or otherwise, to be able to con- 
 sider that each and evetry county of a great coininonwealth brings 
 to 'his mind, not merely a space on a map, 'but the name of an ac- 
 quaintance, perhaps of a tried friend, whom circumstances con- 
 nected in this world, at a definite and well remembered period, with 
 the working out of his destiny therein. 
 
 And so, genjtlemen, trusting that the pleasure referred to may 
 at some time be blended with the privilege of meeting some of you 
 in this wonderful life again, and recalling, with sa'dhess, that as to 
 one of your number such meeting can never be, I beg tO' tender once 
 more my heait-felt thaniks, and to conclude with the hope, that thy 
 business of each of you may prosper, and the health of each of you 
 be long preserved. 
 
 Sincerely yours, 
 
 J. H. BLOUNT, JR. 
 
TEEFACE. 
 
 The idea of preparing a CJreorgia form-book to be annotated! 
 witii those decisions of the Supreme Court of the State out ot 
 which the forms theDiseives should be cTolved, was conceived by 
 the author while tihe Code Commission of 1895 was engaged in it^ 
 labors. 
 
 In the matter of annotating her statute law witlh deci&ions of her 
 co.urt of last resort, Georgia was unquestionably abreast of the-times. 
 But, unlike many of her sister commonwealths, sh'e had never had 
 any boiok of local procedure bearing upon its pages, in the shape 
 of annotations, evidences of authoritative origin. 
 
 The task w'hich confronted the Code Commission of 1895, when 
 it began it's wo^rk, was enormous. There w'ere the accumulationB 
 of thirteen years of legislation, representing, besides those changes 
 which the statement of the proposition naturally suggests, a com- 
 plete revolution in judicial procedure. The Acts of 1885 and 
 1887, pursuant to the authority granted by the Constitution of 
 18Y7, had merged the legal and the equitable into one uniform 
 method of procedure for all civil cases, and the Acts of 1893 and 
 1895 had effected a more perfect union by supplying the refoiTned 
 procedure -with powers analogous to those of Discovery in Equity: 
 
 Great changes, unnecessary to enumerate, had been working out 
 all along the line. The very justices' courts, whose venerable 
 origin, and whose glorious history among English-speaking peo- 
 ples, dating back, as it does, in England to Edward III., and iji 
 Georgia to the Act of 1797, 'have not sheltered them from the 
 satirie of our Judiciary — even they had experienced great changes. 
 
 To facilitate a clearer undei'standing of the changes in pleading, 
 by annotating the fo^rms pertaining th'ereto with decisions from 
 States where the Eetformed Procedure already obtained seemed y 
 feature proper to be introduced, if duly circiimscribed. 
 
 To illustrate the older and more familiar proceedings with forms 
 and cognate decisions from our own court seemed a purpose whose 
 intelligent execution would be likely to be welcomed. 
 
 To realize these two conceptions, and th'en to embrace, imder 
 the plan confined to Georgia decisions, such subjects as Convey- 
 ancing, Wills, and other matter of substantive law, together with 
 precedents and notes adapted to the daily needs of our Ordinaries, 
 Clerks, Sheriffs and Justices of the Peace, the whole to follow upon 
 
XII PREFACE. 
 
 the publi'catioin of a Code new to them all, seemed an opportunity 
 indeed. 
 
 But how extensive shoiuld the book be? What should be. its 
 metes and bounds? This difficulty disappeared upon reflection. 
 It seemed that tJhe proper scope for a well-ordered book of Georgia 
 forms 'and practice purporting to be adapted to the new Code, was 
 to follow in the main, the arrangement of that Code, title by title, 
 chapter by chapter, leaving the silence unbroken where there was 
 nothing to be said; and compensating for" this departure from the 
 plan heretiofore followed in similar Georgia compilations, to which, 
 perhaips, the public has grown accustomed, by closing with a copious 
 index. 
 
 In the treatment of subjects of very general importance, such 
 as Attachments, Executions, and the like, all the decisions of onr- 
 court have been carefully foeussed thereon. As to the rest, judi- 
 cious selection was the O'uly feasible plan. 
 
 Business men througlhont the State will find that this volume 
 covers all that territory usually purtporting to be included in the va- 
 rious northern and western publica,tionB on "Laws' of Business" and 
 the like, which our people are in the habit of buying, periodically. 
 And in covering the territory in question, it do^es so, as the books 
 aforesaid of course do not, in the lig'ht of our own loical conditions 
 and laws. 
 
 To the vario'US membera of the Bar who have mani- 
 fested am interest in this book during its preparation, the a;umhor 
 begs to express his appreciation. As the son of a lawyer, reared 
 without thought during the formative period oi life of any calliag 
 other than the profession of law, he was ready to accept, as based 
 upon truth, the fondness with which lawyers, both living and 
 dead, have referred to it as "a great and generous profession." But 
 the depth and music of the thought dame only in its full force 
 through am effort to serve the Bar. And this is not a generality. 
 The intelligent sympathy which makes life worth living has come 
 to the writer from all quarters of tihe State', and particularly from 
 his friends, Messrs. Washdngton Dessau, Eoland Ellis, Robert 
 Hodges, Marion Harris, and others, of the Macon Bar. Without 
 that moral support, this humible enterprise would have perished by 
 the way-side. 
 
 And so, gentiemen, judge the book. 
 
 J. H. B., JR. 
 
TABLE OF CONTENTS 
 
 POEMS BASED ON 
 
 THE POLITICAL CODE. 
 
 Chapter 1. Opening public roads, etc., 1. 
 Chapter 2. Management of public roads, 8. 
 
 Chapter 1. Bstrays, 24. 
 
 PIEST TITLE. 
 
 lloAD Laws. 
 
 Chapter 3. Bridges, ferries, turnpikes, 
 
 &c., 15. 
 Chapter 4. Private ways, 18. 
 
 SECOND TITLE. 
 
 Stock Laws. 
 
 I Chapter 2. Impounding, 27. 
 
 POEMS BASED ON 
 
 THE CIVIL CODE. 
 
 Chapter 1. Naturalization, 29. 
 
 PIEST TITLE. 
 Naturalization. 
 
 SECOND TITLE. 
 Privatb Corpokatioks. 
 
 Chapter 1. Eenewal and amendment of 
 charters by the Secretary of State, 33. 
 
 Chapter 2. Banks, how incorporated, 37. 
 
 Chapter 3. Canal companies, how incor- 
 porated, 40. 
 
 Chapter 4. Express companies, how incor- 
 porated, 41. 
 
 Chapter 5. Insurance companies, how in- 
 corporated, 42. 
 
 Chapter 6. Navigation companies, how in- 
 corporated, 44. 
 
 Chapter 7. Eailroads. 
 
 Article 1, Eailroads, how incorpor- 
 ated, 47. 
 
 Article 2. Operation of railroad?, 49. 
 Article 3. Farm crossings, 56. 
 Article 4. Injuries to stock, 57. 
 Article 5. Eailroads as common car- 
 riers, 57. 
 Section 1. Carriers of passengers, 57. 
 Section 2. Carriers of freight, 64. 
 Article 6. Injuries by railroads, 72. 
 Chapter 8. Telegraph companies, how in- 
 corporated, 83. 
 Chapter 9. Corporations created by the 
 Superior Court, 84. 
 
XIV 
 
 THIED TITLE. 
 Of Domestic Kblations. 
 
 ■Chapter 1. Of husband and wife, 87. 
 Article 1. Marriage, how contracted, 87 
 Article 2. Divorce and alimony, 88. 
 ■Chapter 2. Of parent and child, 104. 
 •Chapter 3. Of guardians, 106. 
 
 Article 1. Their appointment, powers 
 duties, &c., 106. 
 
 FOURTH TITLE. 
 
 Section 1. Their appointment, &c., 106. 
 Section 2. Their powers, duties, &c., 
 116. . 
 Article 2. Guardians of lunatics, 124. 
 Chapter 4. Master and servant, 127. 
 
 Of Kblations Akisinq 
 
 •Chapter 1. Of partnership, 131. 
 Chapter 2. Assignments, 134. 
 Chapter 3. Insolvent traders, 140. 
 Chapter 4. Mortgages, 142. 
 
 Article!. General principles, 142. 
 
 Article 2. Mortgages on real estate, how 
 foreclosed, 148. 
 
 Article 3. Mortgages on personalty, how 
 foreclosed, 155. 
 'Chapter 5. Sales to secure deht, 164. 
 •Chapter 6. Foreclosure of liens, 169. 
 
 FIFTH 
 
 Fbom Other Contbacts. 
 
 Article 1. Foreclosure of liens on real 
 
 estate, 169. 
 Article 2. Foreclosure of liens on per- 
 sonalty, 172. 
 Chapter 7. Homestead and exemption, 180. 
 Article 1. Exemptions, 180. 
 Article 2. Statutory or short homestead, 
 192. 
 Chapter 8. Interest and usury, 195. 
 Chapter 9. Principal and agent, 196. 
 
 TITLE. 
 
 Of Title and the Mode of Conveyance. 
 
 Chapter 1. Processioning, 199. 
 ■Chapter 2. Of title hy will, 203. 
 
 Article 1. Of the nature of wills, by 
 
 whom and how executed, 203. 
 Article 2. Probate practice, 208. 
 ■Chapter 3. Of title by descent and admin- 
 istration, 216. 
 Article 1. The rules of inheritance, 216. 
 Article 2. Of administration, 218. 
 
 Section 1. Temporary administration, 
 
 218. 
 Section 2. The general law of the ap- 
 pointment of administrators, their 
 bond and removal, 220. 
 
 Section 3. Of inventories, appraise- 
 ments and returns, 226. 
 
 Section 4. Of managing the estate and, 
 paying the debts, 230. 
 
 Section 5. Of receiving and making 
 titles on bonds for title, 232. 
 
 Section 6. Of administrator's sale, 234. 
 
 Section 7. Distribution and year's 
 support, 240. 
 
 Section 8. Commissions and extra 
 compensation, 247. 
 
 Section 9. Settlements, and herein of 
 pleas, 247. 
 
 Section 10. Letters of dismission, re- 
 signation, 260. 
 Chapter 4. Of conveyance of title, 254. 
 
 SIXTH TITLE. 
 Of Contracts. 
 •Chapter 1. Of negotiable Instruments, 262. 
 
 SEVENTH TITLE. 
 Of Torts. 
 Chapter 1. Homicide, 266. 
 
CONTENTS. 
 
 XV 
 
 POBMS BASED ON 
 
 THE CODE OF PRACTICE. 
 
 FIRST TITLE. 
 
 CoiTETS OE Original J0eisdiotion. 
 
 Chapter 1. Of practice in Justices' Courts, I Chapter 2. Of admission to the Bar, 287. 
 275. I 
 
 SECOND TITLE. 
 Special Eights, Eemedies and Pkoceedings. 
 
 Chapter 1. Appeals, 289. 
 
 Chapter 2. Arbitrament and Award, 293. 
 
 Chapter 3. Attachment, 300. 
 
 Article 1 . Ordinary Attachment, 300. 
 Article 2. Attachment for purchase mon- 
 ey, 308. 
 Article 3. Attachment against fraudu- 
 lent debtors, 310. 
 Article 4. Pleadings and defense in at- 
 tachment, 312. 
 Article 5. Replevy and disposition of 
 property attached, 315. 
 Chapter 4. Bail in action, for Personalty, 
 
 317. 
 Chapter 5. Of claims, 321. 
 
 Chapter 6. Certiorari, 326. 
 
 Chapter 7. Proceedings to obtain dower, 
 334. 
 
 Chapter 8. Garnishments, 338. 
 
 Chapter 9. Illegality of Executions, 348. 
 
 Chapter 10. Lost papers, how established, 
 351. 
 
 Chapter 11. Proceedings for the abate- 
 ment of nuisances. 359. 
 
 Chapter 12. Proceedings against officers of 
 court, 363. 
 
 Chapter 13. Of partition, 366. 
 
 Chapter 14. Possessory "Warrants, 371. 
 
 Chapter 15. Trespassers on land and ten- 
 ants holding over, 377. 
 
 THIRD TITLE. 
 
 Ov Actions. 
 
 Chapter 1. The petition, 388. 
 Chapter 2. Process and Service, 399. 
 Chapter 3. Defense, 402. 
 Chapter 4. Evidence, 405. 
 
 Chapter 5. Verdict and judgment, 411. 
 Chapter 6. Execution, levy and sale, 412. 
 Chapter 7. New trials, 428. 
 Chapter 8. Carrying the case to the Su- 
 preme Court, 432. 
 
 FORMS BASED ON 
 
 THE CRIMINAL CODE, 
 
 438. 
 
IDiniverett^ of (3eotota, 
 
 Xaw Department. 
 
 FACULTY. LECTURERS. 
 
 WfLLiAM E. BOGGS, D. D., W. T. Newman, 
 
 Chancellor. U. S. Judge Northern District of Ga. 
 
 HOWELL Cobb, A. M., B. L., N L Hutchins, 
 
 Professor of Law. Judge Superior Courts, Western Circuit. 
 
 lO^PPH H I IIWPKIN 
 
 Sylvanus morris. iV M., B. L., j„i e superior Courts, Atlanta Circuit. 
 
 Professor of Law. hon. Joseph B. Cumminq. 
 
 John D. Mell, A. B., B. L., Hon. Peter W. Meldrim. 
 
 Professor of Parliamentary Law. Special Lecturers. 
 
 SamuelC Benedict M.p. Hon. Andrew J. Cobb. 
 
 Professor of Medical Jurisprudence. HON. Pope Barrow. 
 
 HtbenSj ©eorgta, March 2nd, 1898 
 Mr. James H. Blount, Jb., 
 
 Macon, Ga. 
 Dear Sir : 
 
 Your "Georgia Forms and Practice" lias been adopted for 
 use in this department. It gives me pleasure t') say that I 
 think the book will be a material aid to the students in their 
 exercises in Conveyancing and Pleading. As Georgia is actually, 
 though not nominally, a Code State, your book will be especially 
 useful to the pleader. 
 
 Very Respectfully, 
 
 SYLVANUS MORRIS. 
 
 Mercer XDlnivetsit^. 
 
 %a\o 2)epartment. 
 
 B^aculty of Law Sotiool. 
 
 P. D. Pollock, Chairman of Faculty. 
 
 Hon. Emory Speer, Judge U. S. Court, Chairman. 
 
 Constitutional and International Law and Federal Practice. 
 Hon. John P. Ross, Judge City Court of Macon, 
 
 The Principles of Evidence— Criminal Law and Practice — The Criminal Code. 
 Olin J. Wimberly.Esq., of the Macon Bar. 
 
 Equity Juris^irudence— Pleading — Code of Practice. 
 Clem P. Steed, Esq. , A. M., of the Macon Bar. 
 
 Common and Statute Law — The Civil Code. 
 
 Lecturers. 
 
 Hon. Walter B. Hill, Lecturer on the Study of Law and Professional Ethics. 
 
 Hon C. A. Turner, Lecturer on the Conduct of Causes. 
 
 Dr. Howard J. Williams, Lecturer on Medical Jurisprudence. 
 
 Macon, Ga., March 10, 1898. 
 
 J. H. Blount, Jr., Esq., 
 
 Macon, Ga. 
 Dear Sir : 
 
 Replying to your note of recent date I beg to say that we 
 will take pleasure in adopting your " Georgia Forms and Practice " 
 as a text and reference book in the Law department of Mercer 
 University. Yours very truly, 
 
 CLEM P. STEED, 
 
 Secretary Law Faculty. 
 
FORMS BASED ON 
 
 THE POLITICAL CODE, 
 
 FIRST TITLE. 
 
 ROAD LAWS. 
 
 CHAPTER 1. 
 OPENING PUBLIC ROADS, Etc. 
 
 " There is no subject upon which men differ so much as on the 
 propriety of a new or alteration of an old road. Many years' 
 experience satisfies me that on this subject especially, men will look 
 at things to suit themselves, and that as to swamps and hills and 
 levels, and even as to distance, they utterly lose themselves in their 
 own interest or feelings." 54 Ga. 189. So said McCay, J., many 
 years ago, in determining a road quarrel between certain neigh- 
 bors, of whom the majority have doubtless long since been at peace 
 with one another, sepulchred, perhaps, in quiet fraternity, beside 
 the highway over which they once became so hot, fretted and un- 
 brotierly. 
 
 The precise point ruled in the case in 54 Ga. above cited, apropos of which 
 Judge MoCay was philosophizing, is that the county authorities are allowed a dis- 
 cretion in consenting or declining to open or alter a road, with which the courts 
 will not interfere unless such discretion is manifestly abused. 
 
 Application to Open New Road; §520.* (a) 
 
 Georgia, County. 
 
 To the Ordinary (6) of said County: 
 
 The undersigned respectfully asks the opening and establishment 
 of a new public (o) road^ commencing at in the mi- 
 
 *The symbol § means "Code Section." 
 
 AH citations to Code Sections, where no volume is specified, refer to Vols. I. and II. of the 
 Code of 1895. All citations to the sections of Vol. III. specify that volume. 
 
GEORGIA FORMS 
 
 litia district of said county, and running thence in a northerly di- 
 rection, through the lands of William Smith and James Brown, and 
 
 terminating at , the total proposed length of eaid road 
 
 being miles and yards. 
 
 Petitioner asks that said road be established with a right of way 
 at least forty feet wide. A plat of said proposed public road is 
 hereto attached, (d) John Jones. 
 
 (a) This form will of course suggest that for altering old road (§320) or discon- 
 tinuing old road (§524). 
 
 As to altering a road, see 22 Ga. 369; widening road, 89 Qa. 615; road to I'lint 
 River toll-bridge, 74 Ga. 340. 
 
 (J) Or, "To the county board of commissioners," or "To the commissioners of 
 roads and revenues," i. e., to the local tribunal for the county clothed by law with 
 authority in such matters. ?g4238(3), 5853, 5879. 
 
 In eighty-six of the counties of this State the roads are in charge of a board of 
 commissioners. In the other fifty-one counties, authority over them is vested in 
 the ordinary.* 
 
 (c) A public road is one laid out for public use by an act of the General As- 
 sembly or by an order of the ordinary (or county commissioners as the case may 
 be), §509. They are required to be cleared for a width of at least thirty feet, 
 stumps cut close; carriage track must be five feet six inches; foot-logs must be 
 laid for pedestrians whore needed, §510. Second-class roads, how designated, 
 §511 ; width of, 20 feet, §512. Bridges or causeways over small water-courses, and 
 causeways through swamps must be maintained, §513. Where it was attempted to 
 do.feat a proceeding by arguing that the road was a public and not a private one. 
 Held, that a neighborhood road used by a settlement of people, great or small, is 
 ii ut a public road, either in law or in the common parlance of our people, 61 Ga. 
 156. An order granted by county authorities, on application, authorizing a pro- 
 posed alteration of a road was an order to change its route, and authorized land 
 owner to close up old road, 22 Ga. 869; i. e,, where the discontinuance is only of 
 the part replaced by the alteration, 54 Ga. 189. Old road across railroad still pub- 
 lic road, relatively to company's duties to passers and teams, until shown to have 
 been legally altered, 48 Ga. 568. Non-user not work discontinuance, order nec- 
 essary, 70 Ga. 706. 
 
 [d) A member of the M.aoon bar who has had much to do with the road laws, 
 and who drew the General Koad Law of 1891, says, in a pamphlet prepared for 
 the county board of commissioners of Bibb county: " To guard against disputes 
 respecting encroachments, it would be well for the county commissioners, before 
 establishing any public road, to require that a complete and accurate map of the 
 road should be made and attached to the petition for such road. It would be still 
 better if these maps were recorded in a book, as in the case of plats attached to 
 deeds of land." 
 
 The act of 1818, §520, provides that on application as above, three road commis- 
 sioners (commonly termed "reviewers") shall be appointed, residing as near where 
 said road is intended to pass as possible. 
 
 *See "Proceedings of the Associatlra o£ Ordinaries of the State of Georgia," at their annual 
 meeting at Savannah in 1895, on page 16 of which the above facts are stated in an iateiestiug 
 paper read before the Association by Judge Newman, ordinary of Washington county. 
 
AND PEACTIOE. 
 
 Okder Appointing Reviewers ; §520. 
 Georgia, County. 
 
 In re application of John Jones to open new road, dated — day 
 of , 18—. 
 
 Upon reading and considering the foregoing application, it is 
 ordered that A B, C D, and E F (a) examine into the matter, and 
 it they find that said road will be of public utility, let them mark 
 it out ; and let them make their report under oath, pursuant to the 
 provisions of §520 of the Civil Code. 
 
 (Signed by county commissioners or ordinary as case may be.) 
 
 (a) Where the three reviewers were appointed from among the petitioners for 
 the road, 74 Ga. 343. 
 
 On hack of foregoing order of appointment, may be entered the 
 
 Report of Reviewers; §520. (a) 
 
 ■Gkorgia, County. 
 
 In re application of John Jones to open new road, dated — day 
 
 ■of , 18—. 
 
 The undersigned, appointed to pass upon the above stated appli- 
 •cation, find that the proposed road will be of public utility. We 
 have therefore laid out and marked the same conformably to law, 
 ■adopting the length, width and line of said road as indicated in the 
 plat attached to said application. 
 
 AB,>^ 
 
 G D, y Reviewers. 
 EFj 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 ,J.P. (b) 
 
 (a) County commissioners not bound to follow this recommendation; may 
 adopt diflFerent plan, 79 Ga. 792. Their judgment, however, should not be condi- 
 tional, lb. 
 
 (b) Instrument signed, and jurat of magistrate annexed, the paper is sworn to, 
 78 Ga. 504. Reviewers not sworn, judgment ordering road opened erroneous, 30 
 
 Ga. 723. 
 
 Notice of Application to Open New Road; §§521-2. 
 
 Georgia, County. 
 
 John Jones having applied for the opening and establishment of 
 a new public road, commencing at in the militia 
 
GEORGIA FORMS 
 
 district of said county, and running thence in a northerly direction, 
 through the lands of William Smith and James Brown, and termi- 
 nating at ■ , the total proposed length of said road being 
 
 miles and yards and the width thereof forty feet, 
 
 Notice is hereby given that said application will be finally 
 
 granted on the — day of , 18 — , next, if no sufficient 
 
 cause is shown to the contrary. 
 
 (Signed by the county commissioners or ordinary, as case may be.) 
 
 Foregoing notice must be published for thirty days at court-house door and in a 
 public gazette if there is one in county, §521. It must also be served personally, or 
 at residence, upon all persons, their overseers or agents, residing on land- through 
 ■which proposed road is to go, §522. Notice of order to widen road without ex- 
 pense to county not given by mere record on minutes of commissioners, 91 Ga. 
 66, 89 Ga.611. Public road established without substantial compliance with the 
 statute, is no public road, §523. 
 
 Order Establishing New Road. 
 Georgia, Coukty. 
 
 In re application of to establish new road, dated — 
 
 day of , 18 — . 
 
 A B, CD, and E F, commissioners heretofore duly appointed 
 to examine into the above application, having duly made their re- 
 port under oath, in terms of the statute, recommending that the 
 same be granted, and due and legal notice having been published 
 pursuant to §521 of the Civil Code, and written notice having 
 been served personally upon William Smith and James Brown through 
 whose laud said road is to go (a), and no good cause having been 
 shown why said application should not be granted. 
 
 Ordered that said road, a plat of which is hereto attached and 
 made part of this order (6), be, and the same is, hereby declared and 
 established as a public road of said county, to be designated as the 
 
 ■ road, and to be opened and worked by the county road 
 
 force as required by law. 
 
 (Signed by the county commissioners or ordinary, as case may be.) 
 
 (a) Recital that notice published, as required by law, no evidence that persons 
 residing on the land through which the road goes, were notified in writing as re- 
 quired by §522, 89 Ga. 615. 
 
 (J) Attach copy of plat which accompanied the application and which the road 
 commissioners, or "reviewers,'' as they are termed, recommended. See note [d) 
 to application to open new road, ante. 
 
AND PRACTICE. 
 
 Generally. — Certiorari lies from grant or refusal of application for new road, 22 
 Ga. 369. County commissionera probably not bound to follow recommendation 
 of road reviewers or commissioners, but may adopt different plan, 79 Ga. 792 ; but 
 the judgment should not be conditional. lb. 
 
 No discontinuance of public road without due application, notice and order 
 and registry, 70 Ga. 705. As to widening public road and subsequent use by the 
 public of more than order called for, 89 Ga. 615. 
 
 Any person feeling aggrieved by any road proposed to be laid out through his 
 land, may, under §557, petition ordinary as follows : 
 
 Petition by Land Owner for Damages; §557. 
 
 Georgia, County. 
 
 In re application of John Jones to open new road, dated — day 
 of , 18—. 
 
 To the Ordinary of said County: 
 
 And now comes William Smith, and alleges that the road above 
 referred to, which is proposed to be laid out through his land, will 
 damage him in the sum of $500, 
 
 Wherefore he prays that his damages may be assessed in terms 
 of the law, as set out in §§557 et seq. of the Civil Code. 
 
 William Smith. 
 
 Whereupon the county commissioners (or ordinary as the case may be) shall 
 issue a 
 
 Warrant to Sheriff to Summons Jury; §557. 
 Georgia, County. 
 
 In re application of John Jones to open new road, dated — day 
 of , 18—. 
 
 To the Sheriff of said County: 
 
 William Smith having filed his petition, claiming damages from 
 
 the proposed opening of a certain road, commencing at in 
 
 the militia district of said county, and running thence in a 
 
 northerly direction through the lands of William Smith and James 
 
 Brown, and terminating at , the proposed length of said road 
 
 being miles and yards, aud the width forty feet. 
 
 You are hereby required to summon from the vicinage a jury of 
 twelve freeholders to try such question of damage. 
 
 (Signed by ordinary or county commissioners.) 
 
GEORGIA FORMS 
 
 Under §560, substantially the following notice must be served on the justice of 
 the peace, and the road commissioners of the district where the road lies, and the 
 land owner : 
 
 Notice op Trial; §560. 
 
 Georgia, County. 
 
 In re application of John Jones to open new road, dated — day 
 of , 18 — . Claim of William Smith for damages. 
 
 You are hereby notified to appear at (a) in said county, 
 
 on the — day of , 18 — , (b) to attend upon the trial of the 
 
 above stated claim for damages. 
 
 Sheriff County. 
 
 {a) The place shall be " as near the land as the proper house room can be ob- 
 tained," §561. 
 
 (6) " Not less than five nor more than twenty days'' notice is required, §561. 
 
 Under §557, the following oath shall be administered to the Jury by the justice 
 of the peace: 
 
 Oath of Jury; §557. 
 
 You shall truly and impartially assess any damages that Wil- 
 liam Smith may sustain by means of the new public road through 
 his land, proposed by the application of John Jones, so help you God. 
 
 Assessors must be sworn, 30 Ga. 723. No one competent as juror who- 
 has any similar claim for damages, or who would not be competent in superior 
 court, §558. Petitioners not competent jurors, 78 Ga. 199. Any person may 
 challenge juror for cause ; panel exhausted, Wes jurors summoned, §562. Jury 
 shall personally inspect road and land, unless already familiar therewith, and 
 swear any witnesses that owner or any person on part of county may offer, as to- 
 their opinion of the damages sustained, §550. 
 
 Verdict. 
 
 We, the jury, find in favor of William Smith two hundred andjifty 
 dollars damages, together with all costs. 
 
 Foreman, 
 or 
 
 We, the jury, find against the claim of William Smith for dam- 
 ages. , 
 
 Foreman. 
 
 If mistrial occurs, sheriff shall proceed to summons another jury, „ 
 Without new order to do so, 32 Ga. 414. As to damages, where a roadway wider 
 than order establishing it called for was in fact used by the public, and was not 
 greater than the public necessities required, 89 Ga. 615. 
 
AND PRACTICE. 
 
 Order. 
 Georgia, County. 
 
 ') 
 
 In re application of John Jones to open new road, dated — day 
 of , 18 — . Claim for damages by William Smith. 
 
 Trial, — day of , 18 — , before J. P. and jury, and verdict 
 
 in favor of William Smith for %250 damages. 
 
 Whereupon it is considered, ordered and adjudged that William 
 
 Smith do recover of the county of the sum of $£50, to be paid 
 
 by the county treasurer, who is hereby required to pay the same. 
 (Signed by the ordinary or county commissioners.) 
 
 The judgment in such cases may be certioraried by the county or the owner of 
 the land, as in certiorari from forcible entry and detainer trials, and new trial may 
 be ordered, 5565. Hence, ordinarily, equity will not interfere, 22 6a. 369, 
 
 Only county or land owner however, can certiorari in such cases, 57 Ga. 495. 
 
 The writ of certiorari issues to the J. P. who presided at the assessment, and 
 not to the ordinary. lb. 
 
GEOKGIA FORMS 
 
 CHAPTER 2. 
 MANAGEMENT OF PUBLIC ROADS* 
 
 It is the duty of the ordinary (or county commissioners) to lay 
 off the county into road districts, §514, and to keep corrected reg- 
 istry of all public roads and road districts, §516; to provide by 
 contract for extraordinary work such as grading, etc., §§533-4 ; 
 and to assign the ordinary road work to road district commissioners 
 (three commissioners for each road district), who in their turn as- 
 sign roads directly to the road overseers, §§589, 696- The 
 road district commissioners are appointed, or reappointed, bien- 
 nially by the ordinary (or county commissioners, as case may be), 
 §585. And must serve, unless excused for good cause, §586. 
 
 Functions of district road commissioners construed, 62 Ga. 532. 
 
 jOrdee Appointing District Road Commissioners ; §587. 
 
 Georgia, County. 
 
 A B, C D, and E F are hereby appointed road commissioners 
 
 for road district for the two years next ensuing. Let each 
 
 of them be served with a copy of this order within ten days, as re- 
 quired by law. 
 
 (Signed by ordinary or county commissioners.) 
 
 If such appointees do not. within ten days after receiving such notice, file ex- 
 cuse in writing, under oath, they shall be considered as having accepted, §587. 
 They, in their turn, appoint the road overseers of their respective districts, §589. 
 
 Order Appointing District Road Overseer ; §589., 
 
 Ordered that John Gray be, and he is, hereby appointed as a road 
 
 overseer for the road district of county, to have charge 
 
 of the roads and hands set forth upon the list following this order, 
 which said list is hereby made a part of this order. Let a copy 
 hereof be served on said appointee. 
 
 (Signed by the district road commissioners.) 
 
 * For an Interesting discussion of the iniquities of Georgia's road system, wliose worltings 
 are illustrated T)y the forms contained in this chapter, see a notable paper by O. H. Sheffield, 
 0. E. (University of Georgia), on " Improvement of the Road System of Georgia,;' which 
 received the prize offered by the State Agricultural Society in 1892, and was thereafter dis- 
 tributed throughout the Union by the Department of Agriculture at Washington, as a 
 Bulletin of the Office of Eoad Inquiry. 
 
AND PRACTICE. 
 
 All male inhabitants between the ages of 16 and 50 years are subject to work on 
 the public roads, with certain exceptions, e, g., preachers, persona who have lost a 
 leg or an arm, and inmates of asylum for the blind, asylum for deaf and dumb, 
 and lunatic asylum ; also penitentiary guards and convicts maybe exempt on pay- 
 ment of one dollar per day in lieu of road work, ?526, and so may railroad hands, 
 §556. Same foad hands not compellable to work on more than one public road 
 (which road must either come within three miles of their residence, or be the near- 
 est public road to their residence) except in opening a new road, in that event, 
 all the road hands of the district are subject to work upon it, §527. Koad hands 
 are not required to work exceeding five days consecutively or more than fifteen 
 days altogether, in twelve months, except in case of sudden emergencies, §528. 
 Every employer of colored men must furnish road district overseer with list of 
 his hands, under penalty of $3 for each hand omitted, §529. 
 
 Any person liable to road duty may make his 
 
 Application for Parcelling Off Eoad; §541. 
 
 Georgia, Pike County. 
 
 To the Road Commissioners of Road District : 
 
 John Jones, a resident of said road district, liable to road duty, 
 makes this his application to have parcelled off to him some equal 
 and just portion of the Zebulon public road in said district, for him- 
 self and his hands to work upon and keep in repair, as contemplated 
 by §§541 et seq. of the Civil Code. Said hands are (naming them). 
 
 This — day of , 18—. 
 
 John Jones. 
 
 Whereupon road commissioners may, In their discretion, parcel oif to appli- 
 cant some equal and just portion of said public road, to be increased or decreased 
 according to the number of hands, and to be judged of by said commissioners, §541. 
 
 Order Parcelling Off Road; §541. 
 
 The application of John Jones, a resident of the road dis- 
 trict of said county, and liable to road duty, to have parcelled off 
 to him and his hands, to wit: (naming them), a portion of the 
 Zebulon public road in said district, read and considered. Ordered, 
 
 that he be assigned that portion of said road extending from . 
 
 (e. g., a given mile-post) to . 
 
 Witness our hands and seals this — day of , 1 8 — . 
 
 (Signed by the district road commissioners.) 
 
 Duty of person to whom road thus apportioned, etc., §§542-5. 
 Under §530, overseers of roads must summons persons liable to road duty at 
 leagt one day before time of working.- 
 
10 GEORGIA FORMS 
 
 Summons for Egad Duty; §531. 
 Georgia, Pike County. 54.0th District. 
 
 To John Singleton: 
 
 You are hereby required to be and appear at in said 
 
 district, to work upon the Zehulon road, at — o'clock a.m., on 
 
 the — day of , 18 — , and to bring with you the following 
 
 implements: . 
 
 John Gray, 
 Overseer of Roads. 
 
 A notice to work on the road need not be in writing ; verbal notice at 2 o'clock 
 the day before sufficient, when, 72 Ga. 440. 
 
 Road Overseer's Return of Defaulters; §§532, 589. 
 Georgia, Pike County. 
 
 To the Road Commissioners for Road District : 
 
 At the last working of the Zebulon road, which began on the 
 
 — day of , 18 — , and ended on the — day of , 18 — , 
 
 the following named persons, after having been duly notified to 
 appear, were absent the number of days opposite their respective 
 names, (a) (Attach list as indicated.) 
 
 John Gray, 
 Road Overseer. 
 
 (a) Cases of failure to carry implements as ordered, or neglect to work faith- 
 fully should also be reported, §539. 
 
 Notice to Defaulter; §589(5). 
 
 Georgia, Pike County. 
 
 To John Singleton : 
 
 The road overseer for the road district, in which you 
 
 reside, having reported to us that you were duly summoned to 
 work at the last working of the Zebulon public road in said dis- 
 trict, and that you were absent two days (a) ; you are hereby re- 
 quired to appear before our road commissioners' court to be holden 
 
 at in said district and county, on the — day of , 
 
 18 — , (6) to answer for such default. 
 
 (Signed by the district road commissioners.) 
 
 (a) Or "failed to carry the implements as ordered,'' or "neglected to work 
 faithfully," §539. 
 
 (6) Road commissioners' court to try defaulters, etc., held, ordinarily, within 
 twenty days after every road working, §589(3), 92 Ga. 440. Formerly, written 
 notice unnecessary, 72 Ga. 437. As to service of the notice, §589(5). 
 
AND PRACTICE. 11 
 
 Excuse of Defaulter; §§546, 589. 
 Georgia, Pike County. 
 
 Now comes John Singleton, and for excuse for his alleged default 
 at the last working of Zebulon public road in the district in which 
 he lives, on oath says : 
 
 That no notice was given him as required by §§530 and 531 of 
 the Civil Code (or that he was providentially prevented from 
 attending, being at the time confined to his bed by sickness, etc.). 
 
 John Singleton. 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 See 95 Ga. 702. 
 
 Where one appeared late and was directed to go to work, but would not, and 
 went home because overseer threatened to report him for tardiness, he was prop- 
 erly fined, 92 Ga. 438. 
 
 Ordee; §589(3). 
 
 Geoegia, Pike County. 
 
 Road Commissioners' Court for District. 
 
 Held — day of , 18—. 
 
 John Singleton having been reported to us as a road defaulter, 
 and having been duly served with notice of this meeting, as re- 
 quired by law, and having failed to render a good excuse for his 
 default; 
 
 Ordered that said John Singleton pay a fine of %2 (a), to be col- 
 lected by execution. 
 
 This — day of , 18—. 
 
 (Signed by the district road commissioners.) 
 
 (a) Penalty for disobedience to summons, one to three dollars per day, or im- 
 prisonment in discretion of commissioners, §539, 72 Ga. 438. 
 
 Generally. — Certiorari lies, 95 Ga. 704. But two defendants cannot be joined 
 in one certiorari, 72 Ga. 204. 
 
 . Execution Against Defaulter; §§547-8. 
 
 Georgia, Pike County. 
 
 Road Commissioners' Court for District. 
 
 Held on the — day of , 18—. 
 
 To any lawful Constable of said County: 
 You are hereby commanded, That of the gpods and chattels, 
 lands and tenements of John Sing'eton you cause to be made tha 
 
12 GEORGIA FOEMS 
 
 sum of two dollars, the same being the amount of a fine whicli our 
 
 road commissioners' court for district, said county, lately 
 
 imposed upon the said John Singleton, together with the costs of 
 
 this proceeding. And render you the said sums of money, together 
 
 with this execution, unto one of us, as soon as said money can be 
 
 lawfully made. 
 
 (Signed by the district road commissioners.) 
 
 Where execution issues against road hands employed by others, notice to em- 
 ployer of such execution operates as a garnishment, on what is due or to become 
 due from such employer to such employee, and same may be collected as in cases 
 of garnishment, §549. 
 
 In lieu of execution as above, the road commissioners may issue their 
 
 Warrant for Arrest of Road Defaulter; §§539, 547. 
 
 Georgia, Pike County. 
 
 Road Commissioners' Court for Road District. 
 
 Held on the — day of , 18 — . 
 
 To any lawful Constable of said County ; 
 
 You are hereby commanded to arrest the body of John Single- 
 ion, a person reported by the overseer of our road district as a 
 road defaulter, and adjudged by our road commissioners to be in 
 
 default, and have him before us at on the — day of 
 
 , 18 — , to abide our judgment. 
 
 This -. day of , 18-. A B, ^ ^.^^^.^^ ^^^^ 
 
 " imissioners. 
 
 ' [ Comr 
 
 E F,) 
 
 Road defaulter arrested as above, and brought before road commissioners, can 
 not go behind judgment on which warrant issued; certiorari lay to the judgment, 
 95 Ga. 702, 
 
 Road Commissioners' Commitment; §§539, 547. 
 
 Georgia, Pike County. 
 
 To the Jailor of said County: 
 
 John Singleton having been arrested as a road defaulter, after 
 hearing the evidence, it is ordered that he be committed to the 
 common jail of said county for the term of 30 days, there to be 
 received and safely kept by you for said term. 
 
 Witness our hands and seals this — day of , 18 — . 
 
 fi W \ District Road 
 ■p jr \ Commissioners. 
 
 Such imprisonment by road commissioners legal, and habeas corpus not lie, 70 
 Ga. 408. 
 
AND PRACTICE. 13 
 
 If any overseer, within twelve months after his appointment, neglects faithfully 
 to discharge his duties, the road commissioners shall notify him as follows: 
 
 Notice to Negligent Overseer; §569. 
 Georgia, Pike County. 
 
 To John Gray, Road Overseer for District : 
 
 Whereas your are neglecting your duties as road overseer, in 
 
 this, to wit : That the road is, and has been for some time 
 
 past, in bad condition and in need of repair : 
 
 You are required to appear before us at , in said district 
 
 on the 21st day of June, 1895, to answer said default. 
 
 fi r\ { District Road 
 p p [ Commissioners. 
 
 No good excuse rendered, commissioners may fine delinquent overseer not ex- 
 ceeding fifty dollars, and collect same by execution, g569. Fine thus imposed not 
 interfered with except in a strong case of abuse of discretion, 73 Ga. 146. 
 
 Overseer's general duty as to. superintending working of roads assigned to him, 
 and regularly reporting to district road commissioners, §532. Fined $5.00 for 
 each defaulter he fails to report, lb. Special duty to call out hands where road 
 becomes suddenly impassable, §537. Overseer may accept extraordinary tools in 
 lieu of labor when necessary, §540. May use timber, how and when, §551. Duty 
 to measure all that part of road assigned to them and set up mile-posts indicating 
 number of miles from county court house, §552. Duty to put up sign-boards at 
 crossings, §553. May be fined $50 for failure to comply with, §§552-3, 554. Fail- 
 ure of a road overseer to do his duty is also indictable as a misdemeanor, and ren- 
 ders him, furthermore, liable in damages, §555. 
 
 Cutting tree, or making fence or other like obstruction in or across any public 
 road, without making a safe and convenient way at the time for travelers, forbid- 
 den. Obstruction must be removed in two days. Oflfender is subject to fine, §572. 
 
 Notice to Person Obstructing Public Road; §572. 
 
 Georgia, County. 
 
 To 
 
 You are reported to us to have obstructed the road, in 
 
 this road district, by felling a tree across the same, at or near 
 
 . You are therefore hereby notified to remove said 
 
 obstruction forthwith, under penalty of the law. 
 
 A B,^ Road Commis- 
 C D, Vsioners 
 
 E F,) District. 
 
 Unauthorized altering or obstructing a public road is a misdemeanor, §570. 
 And, moreover, execution may issue against the offender as in oases of road fines, 
 §572. Obstructing private way is only a private nuisance, and may be abated by 
 proceeding under §§4760 et seq., 55 Ga. 810. However, for removing obstructions 
 from a prescriptive private way, see §679 and forms cognate thereto hereafter. 
 
14 GEOKGIA FORMS 
 
 The various duties of district road commissioners are set out in §589, and pro- 
 ceedings against them by a private citizen are provided for in 2590. 
 
 It might materially forward the " Good Eoads Movement," to which the State 
 Agricultural Society has for several years heen lending its necessarily powerful 
 influence, were the grand juries throughout the State generally aware of the extent 
 of their power under §591. Every road commissioner in the county can he 
 brought before the superior court to answer for neglect of duty upon the following 
 
 General Peesentment Against Road Commissioners. 
 
 In reference to roads, we deem it necessary to return the com- 
 missioner of roads for the road district (and so on, naming 
 
 each district) for neglect of duty. 
 
 See Blankenehip et al. vs. The State, 40 Ga. 680 (1870). The author acts 
 ■entirely from the " disembodied spirit " standpoint, and aims only at usefulness 
 in submitting here as being still good reading in this connection, the remarlss of 
 Chief Justice Brown, made in the above cited Blankenship case twenty-seven 
 years ago : 
 
 "And it is time for the grand juries to take hold of this matter vigorously; 
 and it is the duty of the judges of the superior courts to sustain them, by imposing 
 such penalties for neglect as will compel commissioners to do their duty." 
 
 Whenever the grand jury shall present any road commissioner for neglect of 
 duty generally, or in any particular, the clerk of the superior court shall issue a 
 
 Grand Jury Summons to District Road Commissioner; §591. 
 Georgia, Webster County. 
 
 Superior Court of said County, September Term, 1869. 
 To W. U. Blankenship : 
 
 The grand jury of said county, at the above stated term of the 
 superior court, having presented you for neglect of duty as road 
 commissioner, you are hereby commanded to be and appear at the 
 
 next superior court for said county, on the Monday in 
 
 March, 1S70, to answer said accusation. 
 
 Clerk Superior Court Webster County. 
 
 Grand Jury Eecommbndation of Extraordinary Road Work. 
 
 Grand jury may select roads, or portions of roads, etc., and recommend to the 
 ordinary, or county commissioners, or county judge (as the case may be), to have 
 flame put in proper order, §535. They shall also recommend the manner in 
 which said work may be done or contract let out. 76. 
 
AND PRACTICE. 15 
 
 CHAPTER 3. 
 BRIDGES, FERRIES, TURNPIKES, CAUSEWAYS, Etc. 
 
 The powers of ordinaries over public bridges, ferries, turnpikes, 
 and causeways, see §§4238 and 602, may be briefly stated thus : 
 
 1. To locate and to contract for building and repairing them. 
 
 2. To take a proper bond from the contractor. (See form below.) 
 
 3. To license their establishment by any person. (See form 
 below.) 
 
 4. To fix tolls. 
 
 5. To exercise general supervision over them, including the 
 taking of bond from their proprietors from time to time, as occa- 
 sion may require. 
 
 Bond op Conteactoe; §§602-3, 346. 
 Geoegia, County. 
 
 Know all men by these presents : That we, John Jones, prin- 
 cipal, and James Brown and Walter Henderson, securities, are 
 held and firmly bound unto the ordinary (a) of said county, and his 
 successors in office, in the sum of dollars. 
 
 This the — day of , 18—. 
 
 The condition of this bond is, that whereas the said John Jones 
 has contracted with the said ordinary (or county commissioners, as 
 
 case may be) to build a bridge in and for said county at , 
 
 for the sum of dollars, said contract having been awarded 
 
 to said John Jones under a letting out to the lowest bidder pursuant 
 to law, (6) 
 
 Now should the above bound John Jones faithfully perform his 
 said contract according to the tenor thereof, and indemnify said 
 county for all damages occasioned by a failure so to do, within the 
 prescribed time, and keep said bridge in good repair for seven years 
 (c), then this bond to be void; else of full force and effect. 
 
 In witness whereof the parties hereto have hereunto set their 
 bands and affixed their seals the day and year first above written. 
 
 John Jones. [l.s.] 
 
 James Brown. [l.s.] 
 
 Walter Henderson, [l.s.] 
 
 Approved this — day of , 18 — . 
 
 Ordinary. 
 
16 GEORGIA FORMS 
 
 (a) Or, " commissioners of roads and revenues," etc., as case may be. The 
 Constitution ordains that the General Assembly shall have power to provide for 
 the creation of county commissioners in such counties as may require them, and 
 to define their duties, §5879. In such counties, service of suits against the county 
 on bonds, as above, may be perfected by serving a majority of the commissioners, 
 64 Ga. 25. 
 
 (6) Where ordinary let out the building of a county bridge to one who was 
 not the lowest bidder, injunction against paying contractor more than amount of 
 lowest bid, proper ; refusal to enjoin any and all payment was also proper, 78 
 Ga. 230. A letting out to the lowest bidder (together with failure to take the 
 bond which is to be required of such lowest bidder) must be alleged in declara- 
 tion against a county for injury from defective bridge, 54 Ga. 25. 
 
 (c) At least seven years, though this condition may be dispensed with in dis- 
 cretion of ordinary, §603. Proper bond not taken, county liable for defect in 
 bridge, ?623. 95 Ga. 218, 81 Ga. 730. 
 
 Generally. — Proper bond not taken, Is county liable for injury occurring more 
 than seven years after the completion of bridge ? Held yes, 59 Ga. 832, 64 Ga. 
 69, Bleckley, J., dissenting in both cases. Held no, 80 Ga. 489. The latter case 
 does not mention the former ones, but in the latter there was no dissenting opin- 
 ion. See also, 74 Ga. 358, 70 Ga. 714. Liability of counties purely statutory, 
 41 Ga. 225; discussing 2P40, 623, 80 Ga. 489. Declaration against, for injury 
 from defective bridge, should allege that bridge was built by being let out to 
 lowest bidder, and that no proper bond was taken from the contractor, 54 Ga. 25 
 All such bonds, after being approved, must be filed and recorded in a book to be 
 kept for that purpose, §604. 
 
 If any owner of any chartered toll bridge or turnpike shall fail or refuse to 
 keep the same in good repair, in terms of the provisions of its charter, any per- 
 son may file with ordinary (or county commissioners, as case may be) of the 
 county in which such charter was granted, a 
 
 Complaint Against "Delinquent Bridge Owner; §627. 
 
 Georgia, County. 
 
 To the Ordinary of said County: 
 
 John Jones brings this his petition against William Smith, and 
 alleges : 
 
 1. Defendant is the owner of a certain toll bridge, in said county, 
 chartered by the superior court thereof. 
 
 2. Said bridge is situated (describe situation so that any one on 
 reading the petition could understand where it was located). 
 
 3. Defendant fails (or refuses, as case may be) to keep the same 
 in good repair (here set forth the facts) in terms of the provisions 
 of its charter. 
 
 Wiierefore petitioner prays that citation may issue, directed to 
 the sheriff of said county, requiring defendant to be and appear at 
 the court-house of said county, on a day to be named in said 
 citation, to defend this suit. 
 
 John Jones, 
 
 Duty of owner of toll bridge to keep it in repair, 94 Ga. 135. 
 
AND PRACTICE. 17 
 
 Citation; §628. 
 
 ^Georgia, County. 
 
 To the Shet'iff of said County, his deputy, or any lawful Constable : 
 
 The defendant, William Smith, is hereby required to be and ap- 
 pear before the undersigned, at the court-house of said county, 
 
 on the — day of , 18 — , to defend the suit, a copy of 
 
 \7hich is hereto attached. 
 
 This — day of , 18 — . 
 
 (Signed by the ordinary or county commissioners, as case may be.) 
 
 A copy of petition and citation shall be served on defendant, either in per- 
 son or by leaving same at his most notorious place of abode, or if he be without 
 county, then on gate-keeper, at least fifteen days before the time of trial. Ordinary 
 shall cause jury of twelve men to be summoned to try the issue in such case, §628. 
 Issue found against defendant, judgment entered up against him for costs of 
 •suit, and also suspending his right to collect further tolls on said bridge or road 
 during the operation of said judgment. Proper repairs made, ordinary may 
 •vacate suspension of right to collect tolls, §630. 
 2g 
 
18 GEORGIA FORMS 
 
 CHAPTER 4. 
 PRIVATE WAYS. 
 
 Petition for Peivate Way; §663. 
 
 Georgia, County. 
 
 To the Ordinary (or County Commissioners) of said County : 
 
 The petition of John Jones respectfully shows : 
 
 1. That he desires a private way granted (a) to him over 
 the land of William Smith, in order that he may go from and re- 
 turn to his farm. (6) 
 
 2. Attached to this petition as part of it is a plat of said 
 proposed private way, particularly delineating the same and show- 
 ing the direction thereof, the proposed length of said way being: 
 yards, and the width fifteen feet, (e) 
 
 John Jones. 
 
 (Attach plat of the proposed way.) 
 
 (a) Ordinary may grant private way, but has no authority to declare a privata- 
 way to be permanent, 86 Ga. 326. 
 
 (b) Ordinaries have authority to grant private ways to individuals to go from and' 
 return to their farms or places of residence, §661. But not for any other pur- 
 pose, d. g., to get to a bricls; yard, 71 Ga. 250. As to tramways, see 89 Ga. 111. 
 County judge of Kichmond county may grant private way, 62 Ga. 318. 
 
 (c) Must not exceed fifteen feel in width, and must be kept open and in repair 
 by applicant. 
 
 A copy of the petition should be served on all persons over whose lands such, 
 passway is to be made, together with the following 
 
 Notice; §664. 
 
 Georgia, County. 
 
 To William Smith: 
 
 The petition hereto attached will be heard at the office of the 
 ordinary (or county commissioners) for said county (o) on the — 
 
 day of ; 18 — . 
 
 (Signed by ordinary or county commissioners.) 
 
 la) Ordinary has concurrent jurisdiction, even where there are other local tri- 
 bunals, §4239. 
 
 Notice waived Dy conduct, 80 Ga. 805. 
 
 Service perfected, and applicant appearing entitled, five disinterested commia- 
 sioners shall be appointed. 
 
AND PEACTICE. 19 
 
 Order Appointing Commissioners; §664. 
 
 Georgia, County. 
 
 Office of the Ordinary (or County Commissioners) of said County. 
 
 Petition of John Jones for private way over the land of William 
 Smith. 
 
 A copy of the above stated petition for private way having been 
 served upon William Smith, over whose land said way is sought, 
 as required by law, and the undersigned being satisfied that the 
 applicant is entitled to the same, the following five persons, to wit : 
 (naming them) are appointed commissioners, to view and lay out 
 such road pursuant to the provisions of §§664 et seq. of the Code. 
 (Signed by the ordinary or county commissioners.) 
 
 Before entering upon their duties, the commissioners appointed as above take 
 the following 
 
 Oath. 
 
 [Acta 1851-52, p. 281.] 
 
 You shall truly, faithfully, and impartially discharge your duties 
 as commissioners to view and lay out the private way applied for 
 by John Jones over the lands of William Smith, so help you God. 
 (Signed by commissioners as appointed above.) 
 
 Of the persons appointed, three are competent to act; they must make report 
 in thirty days, and furnish all parties at interest with a copy thereof, §664. 
 
 Report of Commissioners as to Private Way; §664. 
 A > Application of John Jones for private way. 
 
 And now, within thirty days from their appointment, come the 
 undersigned commissioners, appointed to act upon the above stated 
 application, and report that they have viewed the proposed way, 
 and recommend that the same be granted as prayed for. 
 
 We have laid out said road, adopting the length, width, and direc- 
 tion indicated by the petition therefor, and the plat attached to said 
 petition. 
 
 Keport must be signed by at least three commissioners, ?664. 
 
 Appeal lies from above report to ordinary, who, after hearing all the evidence, 
 may confirm or alter the report, which, when done, shall be final, §664. On such 
 hearing, question as to who is to use way when established is not involved, 62 Ga. 
 318 
 
 §§661 ei seq. prescribe a method for opening private ways, but " we know of no 
 law that would authorize the ordinary or county commissioners to declare a 
 private way to be permanent," 86 Ga. 326. 
 
20 GEORGIA FORMS 
 
 If person on whose land passway is, conceives that he will be damaged 
 thereby, he may proceed to have the damages assessed as in case of public roads 
 (see Forms under ??557 et seq., ante), applicant standing in the place of the 
 county and road commissioners, §665. Eminent domain clause of Constitution 
 restrictive merely, 71 Ga. 250. 
 
 Damages assessed, applicant may decline to open road, but is bound for costs 
 for which ordinary may issue execution, §666. In all cases the damages must be 
 paid before the way is opened, lb., but not necessarily before appointment of com- 
 missioners, and laying out of the road, 80 Ga. 805. 
 
 Private ways may be established by agreement, §667, 
 
 Private way, once established, must be entered on road book, §668 ; but this rule 
 inapplicable to prescriptive way, 87 Ga. 322-323. Owner entitled to protection 
 in its use as in case of public roads, §668. As to registry of public roads, see §516_ 
 A way cannot be closed up, after it has been in use as much as one year, without 
 notice, §673 ; such notice must affirmatively appear, 85 Ga. 273. 
 
 When any person shall obstruct or close up a prescriptive private way, or other- 
 wise render it unfit for use, the injured party may petition ordinary, as follows: 
 
 Petition TO Remove Obstruction from Private Way; §679. 
 Georgia, Bibh County. 
 
 To the Ordinary (a) of said County: 
 
 John Jones brings this iiis petitioa against William Smith, and 
 alleges: 
 
 1. Defendant is the owner of certain land situate in said count}-, 
 in militia district, (b) 
 
 2. Petitioner has been in constant and uninterrupted use, for 
 seven years, of a permanent private road over said land, not ex- 
 ceeding fifteen feet in width, and no legal steps have been taken to 
 abolish the same, (c) 
 
 3. Said private way begins at , runs in a northwesterly 
 
 <lirection across the lands of , and ends at , the total 
 
 length thereof being miles (or yards). 
 
 4. The said defendant has closed up said way by building a fence 
 <icross the same. 
 
 Wherefore petitioner prays a rule nisi directed to the said de- 
 fendant, calling upon him to show cause why said obstruction 
 should not be removed, and the free use of said private way be 
 re-established. John Jones. 
 
 (a) Under §679, on which the above form is based, ordinary has concurrent 
 jurisdiction with other tribunals over removal of obstructions from prescriptive 
 private ways, §4239. Certiorari to order of commissioner of roads and revenues 
 -commanding removal of obstructions from alleged prescriptive privat? way was 
 properly sustained here, 62 Ga. 421. Way over city oommons of Milledgeville, 
 
AND PRACTICE. 21 
 
 ordinary had jurisdiction to remove obstructions, and superior court erred in 
 holding otherwise, 78 Q-a. 158. Obstructing private way is a private nuisancer 
 for abatement of vs'hich magistrate of district has jurisdiction, though ordinary 
 may also have concurrent jurisdiction, 80 Ga. 659. §679 is confined to cases of 
 private ways, which arise by prescriptive right acquired by seven years' use, 63 
 Ga. 658. The remed}' lor stopping any private way other than a prescriptive 
 one is by statutory proceeding to abate a nuisance, under §^4760 et seg., before 
 two justices of the peacf, and a jury, 55 Ga. 310. 
 
 A power conferred by the legislature upon county commissioners to establish, 
 alter, or abolish private ways, does not include the power to remove obstructions 
 therelrom, 60 Ga. 537. Therefore, road commissioners of Monroe county had 
 no such jurisdiction, lb. 
 
 No appeal, but certiorari lies, §680. This proceeding is for the ordinary, not 
 court of ordinary; therefore certiorari comes under §4637, and no exceptions 
 need be tendered at time in writing as required in certiorari from court oj ordi- 
 nary under P635, 67 Ga. 282. 
 
 B lard of commissioners of roads and revenues of Douglas county is such an 
 "inferior judicatory " (P637) as that certiorari lies from its decisions, 62 Ga. 423. 
 
 (b) If defendant and several others claim the land but defendant created the 
 obstruction, others need not be joined, 89 Ga. 257. 
 
 (c) "Blackstone defines a way to be 'the right of going over another man's 
 ground,' 2 Chitty's Blaclcstone 35," 65 Ga. 468. Tenant in common cannot tack 
 use as such to use after he parts with his interest in the land, lb. 
 
 Use of route more than fifteen feet wide, and not permanent in its location, will 
 not suffice, 69 Ga. 758. So as to two-foot alley, 93 Ga. 298. Nor will permissive use 
 in seasons when uo crop growing suflBce, 69 Ga. 766. Way must be -permanent, 
 and kept open and in repair for seven years, 61 Ga. 28, 53 Ga. 232. Six months 
 knowledge, §672, 75 Ga. 859. Where, whenever trees fell across road, another 
 way around was used; verdict against prescriptive way was authorized, 82 Ga. 
 770. Changing way to avoid obstruction, or for convenience defeats prescription, 
 9.! Ga. 300, 61 Ga. 28. But merely running around one spot until road repaired 
 within a few hours, not fatal, 75 Ga. 858. Applicant must show that it is "the 
 same fifteen feet originally appropriated," 81 Ga. 749. Use of two ways not 
 tacked, 95 Ga. 151. Again, mere frequency of passage will not suffice, 08 Ga. 528. 
 Evidence here was insufficient, 62 Ga 422, 63 Ga. 658. Ordinary's finding here 
 in favor of the alleged prescriptive right was properly reversed by superior court 
 on certiorari,, 76 Ga. 107. Lane originally cattle path became prescriptive way 
 here, and ordinary had jurisdiction to remove obstructions, 87 Ga. 320. 
 
 Generally. — No insolvency alleged, resort to equity not necessary to recover 
 damages for obstructing private way, 69 Ga. 757. Grantor in deed verbally agree- 
 ing to give private way, enjoined from obstructing it, 80 Ga. 77. Doctrine of 
 eminent domain, requiring just compensation first paid, inapplicable to prescrip- 
 tive waj', 75 Ga. 859. 
 
 Enter upon the petition the following 
 
 Rule Nisi; §679. 
 
 To William Smith: 
 
 You are hereby required to show canse before me at my office at 
 the court-house of said county on the — day of , 18 — , 
 
22 GEOEGIA FORMS 
 
 at 10 o'clock a.m. why the relief prayed for by John Jones in the 
 within petition should not be gi-anted. 
 
 C. M. Wiley, 
 Ordinary. 
 
 Let the sheriflC or his deputy serve defendant with a copy of the petition and rule 
 niei at least three days before the day set apart for the hearing, §679. On day 
 set, ordinary shall hear the evidence, and if it appears that the allegations in the 
 petition are true, shall grant the following 
 
 Oedee to Cleae Peivate Way; §679. 
 
 John Jones \ Bibb Court of Ordinary for county purposes. 
 vs. y Application to remove obstructions from 
 
 William Smith. ) private way. 
 
 This case coming on regularly to be heard, pursuant to assign- 
 ment, after hearing the evidence, it is ordered that the defendant, 
 William Smith, remove the obstructions complained of. within forty- 
 eight hours, and that he pay the cost of this proceeding, (a) 
 
 C. M. Wiley, 
 
 Ordinary. 
 
 (a) Ordinary's fee, $3.00. SheriflTs fee same as serving declaration, §681. 
 
 General Note. — Conditional order improper, and certiorari would lie, 64 Ga.339. 
 But if applicant accept such an order, instead of standing upon his fight to have 
 an absolute order, he must comply with the condition before he can obtain the as- 
 sistance of the sheriff, lb. Order of superior court here, on certiorari, improper, 
 62 Ga. 161. Evidence conflicting on main question, viz. : Evidence of the pre- 
 scriptive way, and finding being in favor of defendant, error for superior court on 
 certiorari to finally dispose of case in plaintiffs favor, should have remanded it, 
 60 Ga. 102, 94 Ga. 697. Certiorari to an order granted by the commissioners of 
 roads and reviewers of Douglas county, commending removal of obstructions 
 from alleged prescriptive private way, properly sustained here, 62 Ga. 421. 
 
 Eoregoing order not complied with, ordinary shall issue a 
 
 Waeeant to Sheeiff to Cleae Peivate Way; §679. 
 
 John Jones \ Bibb Court of Ordinary. Applica- 
 vs. y tion to remove obstructions from 
 
 William Smith. ) private way. 
 
 To the Sheriff of said County : 
 
 An order having been heretofore granted in the above stated 
 cause, directing the defendant to remove within forty-eight hours 
 an obstruction from a certain private way over his laud in ■ 
 militia district, said county, said way beginning at and 
 
AND PEACTICE. 23 
 
 running in a northwesterly direction across said lands of defendant, 
 
 and ending at , said obstruction consisting of a fence 
 
 built across said road at (so describe the location of the 
 
 ■obstruction that the sheriff may be able to find it), and the said de- 
 fendant having failed to remove said obstruction as directed, you 
 are hereby commanded to remove said obstruction forthwith. 
 
 C M. Wiley, 
 Ordinary Bibb County. 
 
24 GEOEGIA FOKMS 
 
 SECOND TITLE. 
 
 STOCK LAWS. 
 
 CHAPTER 1. 
 ESTKAYS. 
 
 Description and Appraisement of Estrays; §1743. 
 
 Georgia, Bibb County. 
 
 This is to certify that A B has this day exhibited to the under- 
 sigaed freeholders of the 4^81st militia district of said couuty, a 
 certain cow, said to have been taken up within said district as an 
 estray. The following is a description of said animal : 
 
 Natural marks, butt-headed ; artificial marks, crop and underbit^ 
 left ear; brands, letter "B" on right flank ; ten hands high ;/ow/- years 
 old ; color brindle. 
 
 We estimate said animal to be worth $20, and award $-5 to the 
 said A B for the taking up of said animal as reasonable and just 
 compensation under all the circumstances. 
 
 This M day oi March, 18S7. 
 
 w 
 
 p p' ^ Freeholders. 
 
 Georgia, Bibb County. 
 
 Before me, a justice of the peace in and for the ^81st militia dis- 
 trict, said State and county, personally came A B, who on oath says 
 that the marks and the brands of the animal referred to in the 
 foregoing paper are correct and have not been altered or disfigured,, 
 to his knowledge, since he took it up. 
 Sworn to and subscribed before me 
 
 this 1st day of March 1897. A B. 
 
 G. W. Hendrix, J. P. 
 
 Any person may, upon his own freehold, or on the highway thereto, or being 
 in charge of one, take up all stray domestic animals useful for their labor 
 or flesh, J1742. Animals abandoned, not properly cared for, and diseased, or 
 injured, past recovery, how lawfully killed, J1755. The taker up shall within 
 five days exhibit said animal to two freeholders of the militia district where taken 
 up, who shall take down in writing a particular description of its marks, natural 
 
AND PEAOTIOE. 2& 
 
 and artificial (brands, stature, age, and color) and annex thereto their appraisement 
 of its value, §1743, and an award of reasonable compensation to the taker up, 
 §1749. This description and appraisement shall be, by the taker up, within five 
 days more, handed to the ordinary of the county, or where appraised at $20 or 
 less, to J. P. of district where taken up, 5§1743, 1752. He shall, at the time of 
 handing in the same, make afiidavit before such ofiicer that the marks and brands 
 of said estray are correct, and have not been altered or disfigured, to his knowl- 
 edge, since he took it up, §1743. Taker up is liable to county or owner, as case 
 may be, in five times value of estray, if he fails to have it appraised and returned^ 
 or forthcoming according to law, and if he appropri'dtes it to his own use, and 
 fails to pay said forfeiture after demand in writing by ordinary, he is guilty of a 
 misdemeanor; and he is liable likewise for any damage to the animal from wilful 
 abuse or neglect, §1750. Where taker up of hogs had them appraised by two 
 persons not freeholders, and sold, verdict against him for five times the value of 
 such hogs was right, 61 Ga. 341. But where one in good faith and under advice 
 from the ordinary, took up an estray and had it appraised, subsequent irregulari- 
 ties on part of ofiBcers would not affect him, 65 Ga. 425. Nor would fact that re- 
 turn made on sixth day after appraisement, lb. Or that one appraiser was only a 
 freeholder to extent of being interested in a homestead estate, lb. 
 
 Ordinary copies appraisement, description and affidavit in estray book, and ad- 
 vertises substantial copies of appraisement and description, (1) at the court-house 
 door for sixty days, (2) at the place of holding justice's court of the district 
 where taken up, and (3) in the public gazette where the sheriff of the county ad- 
 vertises, §1744. Where animal appraised at $20 or less, and therefore, papers re- 
 turnable to J. P., that officer dockets them, §1753, and advertises substantial copies 
 of the appraisement and description for ten days at court-house door and at his 
 court grounds, §1752. 
 
 Advertisement of Estbay; §§1744, 1752. 
 
 Georgia, Bibb County. 
 
 ^81st District, G. M. 
 The following is a copy of an estray appraisement and descrip- 
 tion which has this day been handed to the undersigned: (Then 
 follows a copy of the appraisement and description above). 
 This 1st day of March, 18P7. 
 
 G. W. Hendrix, J. P. 
 
 Foregoing must be posted at county court-house door and at justice's court 
 ground for ten days, §1752. (The date in these forms assume that the taking up, 
 appraisement, return and advertisement all occur the same day.) 
 
 If, by the end of that time, property not proven and taken away, J. P. orders 
 sale, and officer advertises and sells said estray as he does property under execu- 
 tion, stating it to be an estray, and its appraised value, §1745. 
 
 Advertisement of Sale of Estray; §1745. 
 
 Georgia, Bibb County. 
 
 4.81st District, G. M. 
 Will be sold on the next regular court day ot the justice's court 
 
26 GEORGIA FORMS 
 
 for the 4-Slst District, G. M., to wit : on the £lst day of March, 
 1897, at public outcry, at the court-house door of said district, 
 withiu the legal hours of sale, to the highest bidder for cash, one 
 certain animal, to wit: one brindle, butt-headed cow, four years 
 old. Said animal is sold as an estray, taken up hy A B and now 
 in his possession. Its appraised value is $20. 
 
 This 11th day of March, 1897. 
 
 , L. C. 
 
 The purchase money, after deducting all lawful expenses, shall be paid £o treas- 
 urer of educational fund of county, to be paid to owner of estray, if property is 
 proven therein within twelve months, §1746. Estray may be claimed by affidavit 
 of ownership, and filing bond and security in double the appraised value, condi- 
 tioned to answer any demand thereon that may be proven against the obligor 
 within two years, J1747. 
 
 Affidavit of Ownership; §1747. 
 
 Now comes X Y, and on oath says that a certain animal (de- 
 scribing him) lately taken up by ^ -B as an estray, is the property 
 •of deponent. X Y. 
 
 Sworn to and subscribed before me, 
 this — day of , 18 — . 
 
 Bond; §1747. 
 Georgia, Bibb County. 
 
 We, X Y, principal, and M N, security, acknowledge our- 
 selves bound to G. W. Hendrix, justice of the peace in and for 
 the 4-81st District G. M., in the sum of $40, upon condition that if 
 said X F shall answer any demand that may be proven against him 
 within two years, in respect of the animal mentioned in the fore- 
 going affidavit, then this bond to be void; else of full force and 
 «flFect. X Y. 
 
 Attested and approved this 31 N. 
 
 — day of , 18—. 
 
 Q. W. Hendrix, J. P. 
 
 If more than one person claims said estray, before delivery is made, such issu* 
 between the claimants shall be tried by a jury, with privilege of appeal, §1748. 
 
 Animals impounded under provisions of §§1773 ei seg., and owner not ascer- 
 tained within three days, disposed of as in oases of estrays, §1775. 
 
AND PRACTICE. 2?' 
 
 CHAPTER 2. 
 IMPOUNDING. 
 
 The provisions of the Code regulating how lands lines may be- 
 ■come lawful fences, have been held to be of general operation 
 throughout the State and to preclude special legislation, 8-4 Ga. 812. 
 They have been termed " the general local option fence law." So 
 the act of 1890, §1772, was adjudged to be general and constitu- 
 -tioual, in a homicide case which arose over the impounding of 
 •certain stock, 92 Ga. 1. 
 
 §§1773 ei seq., which go into operation whenever lands lines hecome lawful 
 fences, have been thus summarized by Judge Blandford: They require, says he, 
 "that when animals commit any trespass or damage, and are found going at large 
 
 -on the premises of any other person than the owner of such animals, it shall be 
 lawful for the owner of said premises to impound the stock and retain them until 
 the owner of the stock shall make full satisfaction or reparation for the damages 
 
 -committed by such animals including all cost and expenses." They further pro- 
 vide, says the opinion from which we are now quoting, "that where there is a dis- 
 agreement between the party taking the animals up and the owner of the animals, 
 as to the amount of damages sustained on account of the alleged trespass of such 
 animals, or for expenses for care, feeding and attention to the same, the aggrieved 
 party may complain to the justice of the peace of the district (and if no justice, then 
 to the most convenient justice in another district ), setting forth the amount claimed, 
 
 -and that such justice issue a summons as in other suits, returnable within five days 
 from the date thereof requiring the owner or claimant of such stock to appear at a 
 time and place therein named, which shall be served as other summons, at least 
 three days before the time of hearing; and then the justice shall hear evidence 
 
 -and give judgment against said owner or claimant of such animals, as shall ap- 
 pear reasonable and just, including the expenses of care and feeding of such stock, 
 and all legal costs, which shall be enforced by execution, levy and sale, as other 
 
 ■judgments of such justice." 84 Ga. 77, 78. 
 
 In the case from which the foregoing is taken the rule was laid 
 -down that for the justice of the peace to have jurisdiction of a de- 
 fendant who resides in another district, the summons issued and 
 •served should show the jurisdictional facts. Blandford, J., inclosing 
 the opinion, suggests the following as a proper 
 
 Impounding Summons. 
 
 <jrEOEGIA, CoUNTY. 
 
 To (proper officers to execute and return): (a) 
 A Bvs. D. 
 Whereas A B, the plaintiff, complains that C D, the defend- 
 ant, allowed his cattle to go upon the lands of the plaintiff ( which 
 
28 GEOEGIA FORMS 
 
 lands were not required to be fenced under the laws of this State),. 
 and did then and there damage the growing or other crops of plain- 
 tiff, the grass, trees, and other things being therein, and plaintiff' 
 having impounded said cattle ; and there being a disagree- 
 ment between plaintiff and defendant as to the amount of the 
 damages (6), or the expenses for the care and feed of such animals 
 so taken up and impounded, the amount claimed being dol- 
 lars (c); the defendant is required to appear before me at a court to 
 
 be held at , on the 6th day of March, 1897, when such damages- 
 
 and expenses aforesaid will be adjudged and determined. Herein 
 fail not. 
 
 Witness my hand and official signature this 1st day of March,. 
 1897. (d) 
 
 J. P. [l. s.] 
 
 (a) i. e., To any lawful constable uf said county. 
 
 (6) Damages claimed but no expenses claimed, possession retained by plaintiff 
 pending claim for damages, and said claim disallowed by the jury, subsequent suit 
 for expenses not maintainable, 90 Ga. 54. 
 
 (c) This remedy cumulative of common law, and not exclusive, remedy would 
 be inapplicable in cases where more than $100 claimed, 78 Ga. 52. 
 
 (d) The dates are the author's, not Judge Blandford's. 
 
 Generally. — By the common law, cattle wandering about damage feasant 
 might be taken up and impounded, 70 Ga. G28. And moreover, trespass quare 
 clausum fregii lies, 78 Ga. 50. 
 
 True, where stock law does not obtain the damage must be on land inclosed by a 
 lawful fence, but where the stock law does obtain, the statutory remedy by im- 
 pounding ( §?1773 etseq.) is merely cumulative, 78 Ga. 52. 
 
AND PRACTICE. 29 
 
 FORMS BASED ON 
 
 The Civil code. 
 
 FIRST TITLE. 
 
 NATURALIZATION. 
 
 CHAPTER 1. 
 NATURALIZATION. 
 
 Aliens are the subjects of foreign governments Hot naturalized 
 •under the laws of the United States, §1814. Aliens, the subjects 
 of governments at peace with the United States and this State, so 
 long as their governments remain at peace, shall be entitled to all 
 the rights of citizens of other States resident in this State, and 
 shall have the privilege of purchasing, holding and conveying 
 real estate in this State, §1816. Aliens may receive and enforce 
 liens by mortgage or otherwise on real estate in this State, §1818. 
 
 Declaration of Intention to Become a Citizen, (a) 
 
 [U. S. Revised Statutes, g21C5.1 
 
 United States op America. 
 State of Georgia, County of Bibb. 
 
 Be it remembered, that on the — day of , 18 — , 
 
 there appeared in person before the undersigned clerk of 
 the superior court of the county of Bibb, State of Georgia, (said 
 court being a court of record, having common law jurisdiction, a 
 clerk and a seal), Dennis Muldoon, who, being duly sworn, deposes 
 and says that it is (6) bona fide his intention to become a citi- 
 zen of the United States, and to renounce forever all allegiance 
 a,nd fidelity to any foreign prince, potentate, state or sovereignty, 
 ^nd particularly to the United Kingdom of Great Britain and Ire- 
 
30 GEOKQIA FORMS 
 
 land, and the reigning sovereign thereof, Her Majesty Queen 
 Victoria, whose subject he now is. Dennis Muldoon. 
 
 Sworn to me and subscribed before me 
 
 this — day of , 18 — . 
 
 Robert A. Nisbet, 
 Clerk of the Superior Court Bibh County, Georgia. 
 
 (a) ?2I65 of the Ke vised Statutes of the United States requires of aa 
 alien as the first condition of citizenship, the following - "He shall declare on 
 oath, before a oirouit or district court of the United States, or a district or su- 
 preme court of the Territories, or a court of record of any of the States having 
 common law jurisdiction, and a seal and clerk, two years, at least, prior to his 
 admission, that it is bona fide his intention to become a citizen of the United 
 States, and to renounce forever all allegiance and fidelity to any foreign prince, 
 potentate, state or sovereignty, and, particularly, by name, to the prince, potent- 
 ate, state or sovereignty of which the alien may be at the time a citizen or 
 subject." The act of Congress of February 1st, 1876, provides that this oath may 
 be taken before the derk of such courts. 
 
 City court of Savannah may naturalize, 63 Ga., 46S. 
 
 (S) Insert here the words, "And for two years next preceding the date hereof 
 lias been,'' in cases provided for by §2167 of the Kevised Statute?, i. «., in 
 cases where the declaration of intention to become a citizen, instead of being re- 
 quired to be made two years before the application, may be made coiemporaneously 
 therewith. §2167 reads as follows: 
 
 ■ " Any alien, being under the age of twenty one years, who has resided in the 
 United States three years next preceding his arriving at that age, and who has 
 continued to reside therein to the time he may make application to be admitted 
 a citizen thereof, may, after he arrives at the age of twenty-one years, and after 
 he has resided five years within the United States, including the three years of 
 his minority, be admitted a citizen of the Uaited States, without having made th& 
 declaration required in the first condition of §2165; but such alien shall 
 make the declaration required therein at the time of his admission; atid shall 
 further declare, on oath, and prove to the satisfaction of the court, that, for two- 
 years next preceding, it has been his bona fide Intention to become a citizen of thfr 
 United States ; and he shall in all other respects comply with the laws in regard 
 to naturalization." 
 
 It is not necessary that two of the five years residence required in case of minor 
 aliens should occur after applicant has attained his majority, Schultz's Petition 
 (N. H.), 8 Atlantic Keporter 827 (1887). 
 
 Oath op Allegiance. 
 
 [U. S. Revised Statutes, §2165(2).] 
 
 State op Georgia, County op Bibb. 
 
 I, Dennis Muldoon, late a subject of the United Kingdom of 
 Great Britain and Ireland, do solemnly swear that I will bear true 
 faith and allegiance to the Government of the United States, and 
 to the utmost of my ability, support and defend the Constitution 
 thereof; and I do absolutely and entirely renounce and abjure all 
 allegiance and fidelity to every foreign prince, potentate, state or 
 
AND PRACTICE. 31 
 
 sovereignty, particularly to the United Kingdom of Great Britain 
 and Ireland, and the reigning sovereign thereof, Her Majesty 
 Queen Victoria. Dennis Muldoon. 
 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 Robert A. Nishet, 
 Clerk Superior Court Bibb County, Georgia. [Seal.] 
 
 Oath of allegiance, sul)3tantially, as above, is required to be taken at the time ot 
 application to be admitted, Eevised Statutes §2165(2). 
 
 Petition foe Naturalization. 
 
 [U. S. Revised Statutes, §2165.J 
 
 State of Georgia, County of Bibb. 
 
 To the Superior Court of said County, 
 
 The petition of Dennis Muldoon respectfully shows that he 
 was born in the county of Donegal in Ireland, under the do- 
 minion of Her Majesty Queen Victoria, on the — day of ■ , 
 
 18 — ; that he emigrated to the United States in the year 18 — ; 
 that he has resided within the United States not less than five 
 
 years, to wit, continuously from the — day of , 18 , 
 
 to the date of this application, and within the State of Georgia not 
 
 less than one year, to wit, continuously from the — day of , 
 
 18 , to the date of this application, and that he is otherwise quali- 
 fied, according to the la\ys of the United States, to become a 
 citizen thereof. 
 
 Petitioner further shows that he has never borne any hereditary 
 title, or been of any of the orders of nobility in the kingdom or 
 state from which he came. 
 
 Wherefore petitioner prays that, having taken and subscribed 
 the oath of allegiance and fidelity, as prescribed by law, he may 
 be admitted as a citizen of the United States. 
 
 Dennis Muldoon. 
 
 §2165 of the Revised Statutes, paragraph 3, regulating alien's application to 
 be admitted to citizenship, provides : 
 
 "It shall be made to appear to the satisfaction of the court admitting such alien 
 that he has resided within the United States five years at least, and within the State 
 or Territory where such court is at the time held, one year at least ; and that daring 
 that time he has behaved as a man of good moral character, attached to the princi- 
 ples of the Constitution of the United States, and well disposed to the good order 
 and happiness of the same ; but the oath of the applicant shall in no case be al- 
 lowed to prove his residence." 
 
32 GEOEGIA FOKMS 
 
 §2170, E. S., isas follows: 
 
 " No alien shall be admitted to become a citizen who has not for the continued 
 term of five years next preceding his admission resided within the United States.' 
 
 Wife of a naturalized husband is a citizen, 7 Wallace 496 ; even though come to 
 the United States since his death, 63 Ga. 458. 
 
 Ordee of Naturalization. 
 State of Georgia, County of Bibb. 
 
 In re Dennis Muldoon. Application for citizenship. Superior 
 ■Court oi Bibb County, April Term, \S96. 
 
 Tiie petition of Dennis Muldoon to be admitted as a citizen of the 
 United States, read and considered. 
 
 It having been made to appear to the satisfaction of the court 
 that the facts therein stated are true, and that the said Dennis Mul- 
 doon has in all respects complied with the laws in regard to natural- 
 ization. 
 
 It is ordered and adjudged that the said Dennis Muldoon be, 
 and he is, hereby admitted to all the rights, privileges, and immu- 
 nities of a citizen of the United States of America. 
 
 Let these proceedings be spread upon the minutes of this court. 
 
 In open court, this — day of , 18 — . 
 
 W. H. Felton, Jr., 
 Judge of the Superior Court of Bibb County. 
 
 The order is a judgment of citizenship as against all the world; from 
 it may follow the right to vote and hold property, 1 Otto (91 U. S.) 245. Secord of 
 naturalization need not show compliance with all the requisites for admission to 
 <;itizenship, 7 Cranch (11 U.S.) 420. The judgment admitting to citizenship is 
 presumed based on proper testimony, 4 Peters (29 U. S.) 393. Hence, unneces- 
 sary that judgment should recite that person naturalized " had behaved as a man 
 of good moral character," Campbell vs. Gordon, 6 Cranch (10 U. S.) 176. Clerk's 
 certificate reciting the fact of J. M. R.'s having been naturalized at a stated term 
 of the court, incompetent ; the certificate should have given " a copy of at least the 
 judgment," 18 Ga. 246; distinguishing 6 Cranch, 176. Minutes admissible to show 
 naturalization, especially where records lost, 63 Ga. 464. That juror had never 
 been naturalized could be proven by his own oath, 22 Ga. 546. 
 
AND PEACTICE. 33 
 
 SECOND TITLE. 
 
 PRIVATE CORPORATIONS. 
 
 CHAPTER 1. 
 
 BENEWAL AND AMENDMENT OF CHARTERS BY 
 SECRETARY OF STATE. 
 
 Petition for Renewal of Chaetbb; §1836. 
 State of Georgia, County op Bibb. 
 
 To the Honorable Allen D. Candler, Secretary of State : 
 The petition of The Macon Banking Company, a corporation 
 heretofore created by the General Assembly of said State by a spe- 
 cial act, approved , 18 — , which said act was amended by 
 
 an act approved , 18 — , (giving dates of all amendments to- 
 original act) respectfully shows that it desires a renewal of its- 
 charter, as set out in said original act of incorporation, and the said 
 acts amendatory thereof, this renewal being asked pursuant to the 
 provisions of the act approved December 20th, 1 ^93. 
 
 The Macon Banking Company, 
 
 By John Jones, President. 
 
 By petition as above, any banking, insurance, railroad, canal, naviga- 
 tion, express, or telegraph company may obtain renewal of charter,^ ?1836. The 
 petition must be accompanied by " a certified abstract from the minutes of the 
 corporation, showing that the application for renewal had been authorized by 
 proper corporate action,'' §1836. Thereupon the Secretary of State shall issue to 
 the petitioning corporation the following 
 
 Cektificate OF Renewal of Charter; §1837. 
 
 State of Georgia. 
 Office of Secretary of State. 
 
 To whom it may concern — Greeting : 
 
 The Macon Banking Com.pa.ny, a corporation created by an act 
 of the General Assembly of the State of Georgia, approved on 
 
 the — day of , 18 — , and acts amendatory thereof, 
 
 approved (insert date of approval of amending acts) having 
 
■34 GEOEGIA FORMS 
 
 ipetitioned for a renewal of the charter of said corporation in 
 terms of the statute in such cases made and provided, the grant 
 of corporate powers and privileges set out in the above recited 
 acts is hereby renewed for the space of thirty years, a^ to all parts 
 thereof not in conflict with the Constitution aud laws now or here- 
 after of force in this State. 
 
 Witness my oflScial hand and the seal of State, this — day of 
 
 , 18—. 
 
 Allen D. Candler, 
 
 [Seal of State.] Secretary of State. 
 
 Certificate issued, corporation conclusively presumed to have accepted the 
 renewal of its charter, §1838. 
 
 Petition foe Amendment to Charter; §1840. 
 
 State of Georgia, County of Bibb. 
 
 To the Honorable Allen D. Candler, Secretary of State : 
 The petition of The Macon Banking Company, a corporation 
 heretofore created by the General Assembly of said State by a 
 
 special act approved on the — day of , 18 — , which said 
 
 act was amended by an act approved on the — day of , 
 
 18 — , (giving dates of all amendments to origiual act) respect- 
 fully shows that it desires an amendment to its charter by having 
 granted it the corporate powers and privileges granted to similar 
 corporations by the act (or certain specified sections of the act) 
 approved December 20th, 189S, providing for incorporation of 
 banks by the Secretary of State. 
 
 The Macon Banking Company, 
 
 By John Jones, President. 
 
 By petition as above, any hanking, insurance, railroad, canal, navigation, 
 express or telegraph company incorporated by special act may amend its 
 charter so as to get the benefit of the general law, §1840. The petition must be 
 accompanied by a "certified abstract from the minutes of the corporation, showing 
 that the application for amendment had been authorized by proper corporate 
 action," §1840. Thereupon the Secretary of State shall issue to the corporation 
 the following 
 
 Certificate of Amendment to Charter; §1841. 
 
 State of Georgia. 
 
 Office of the Secretary of State. 
 
 To whom it may concern : 
 
 The Macon Banking Company, a corporation created by an act 
 
 of the General Assembly of Georgia approved 18 — , 
 
AJSTD PIIACTICE. Si5 
 
 and acts amendatory thereof, approved (insert date of approval of 
 amendatory acts), having petitioned for an amendment of tbe char- 
 ter of said corporation, in terms of the law in such cases made and 
 provided, > the corporate powers and privileges set out in the act 
 {or certain specified sections of the act, as the case may be) pro- 
 viding for the grant of corporate powers and privileges by the Sec- 
 retary of State to banks, are hereby conferred upon the said Maeon 
 Banking Company. 
 
 Witness mv hand and the seal of this State, this — day of 
 
 , 18-. " 
 
 Allen D. Candler, 
 
 [Saal of State.] Secretary of State. 
 
 Certifluate issued, corporation conclusively presumed to have accepted the 
 amendment, gl842. 
 
 Petitiojt to Change Corporate Name ; §1844. 
 
 State op Georgia, County of Bibb. 
 
 To the Honorable Allen D. Candler, Secretary of State: 
 The petition of The Maeon Banking Company, a banking corpo- 
 ration heretofore incorporated by the Secretary of State under the 
 gemeral law- by ceriijiGute i\&{eA — day of — , 18 — , respect- 
 fully shows that it desires an amendment to its charter changing its 
 corporate uame from "The Macon Banking Company" to "The 
 Central Georgia Trust and Banking Company/' as allowed by the 
 statute for such cases made and provided. 
 
 The Macon Banking Company, 
 
 By John Jones, President. 
 
 Along with the petition must he filed a certified ahstract from the min- 
 utps of the board of directors, showine; that the application for the proposed 
 amendment has been authorized by the unanimous vote of the stockholders at a 
 stockholders' meeting. 
 
 The petition should also have attached to it an affidavit by the president or sec- 
 Tetary substantially as follows : 
 
 Affidavit as to Publicatiois'. 
 ■Georgia, Bibb County. 
 
 Before me — ^,.of said county, an officer of said State 
 
 duly authorized by law to administer oaths, personally appeared 
 John Jones, president of The Macon Banking Company, who, oa 
 oath, says that a copy of the petition to which this affidavit is 
 annexed has been published once a week for four weeks in the 
 
36 GEOEGIA FORMS 
 
 Macon Telegraph, the same being the newspaper in which are pub- 
 lished the sheriff's sales of Bibb county. 
 
 John Jones. 
 Sworn to and subscribed before me 
 this — day of 18 — . 
 
 When the petition, etc., have been filed, the Secretary of State isBuesthe fol- 
 lowing 
 
 Certificate of Change op Name; §1845. 
 
 State of Georgia. 
 Office of the Secretary of State. 
 
 To all to whom these presents may come — Greeting : 
 Whereas The Macon Banking Company, a corporation created 
 and existing under the laws of this State, has filed in this office, in 
 terms of the law, a petition asking that its charter be amended by 
 changing its corporate name from "The Macon Banking Com- 
 pany" to "The Central Georgia Trust and Banking Company," 
 and has complied with all the requirements of the law in such cases 
 made and provided ; Therefore the State of Georgia hereby amends 
 the charter of the said Macon Banking Company by changing its 
 corporate name from "The Macon Banking Company" to "The 
 Central Georgia Trust and Banking Company." 
 
 In witness whereof these presents have been signed by the Sec- 
 retary of State, and the great seal has been attached hereto, at the 
 
 Capitol, in Atlanta, this — day of , 18 — . 
 
 Allen D. Candler, 
 [Great Seal,] Secretary of State. 
 
AND PEACTIOE. 37 
 
 CHAPTER 2. 
 BANKS, HOW INCORPORATED. 
 
 Declaration for Incorporation of Bank; §1903. 
 Georgia, Bibb County. 
 
 To the Honorable Allen Z>. Candler, Secretary of State ; 
 John Jones, William Smith, and James Brown, all of the county 
 of Bibb, State of Georgia, bring this their petition pursuant to the 
 provisions of an act of the General Assembly of Georgia, approved 
 December 20, 1893, and respectfully show: 
 
 1. That they desire to form a corporation for the purpose of car- 
 rying on the business of banking. 
 
 2. The name and style of the proposed corporation shall be The 
 Macon Banking Company. 
 
 3. The location and principal place of business thereof shall be 
 the city of Macon, said State and county. 
 
 4. The amount of the capital stock is %50,000, in five hundred 
 shares of %100 each. 
 
 5. The nature of the proposed corporation shall be that of a 
 bank, its general purposes being to discount bills, notes, or other 
 evidences of debt; to receive and pay out deposits, with or without 
 interest; to receive on special deposit money, bullion, foreign coin, 
 and stocks, bonds and other securities; to buy aud sell foreign and 
 domestic exchange, and other negotiable paper ; to lend money upon 
 personal security and upon bonds, stocks, and other negotiable se- 
 curities; to take and receive security by mortgage, or otherwise, on 
 property of every sort, both real and personal ; and generally, do 
 and perform all such other matters and things not herein before 
 enumerated as are or may be incident to the business of banking. 
 
 Wherefore petitioners pray to be incorporated under the laws of 
 this State. (Signed by the petitioners.) 
 
 Apropos of the question whether, under the act of 1893, a charter could 
 be obtained authorizing a bank to act as assignee, executor, administrator, receiver, 
 «tc., or otherwise conferring upon any corporation powers not specifically emumer- 
 ated in the act authorizing its incorporation by the Secretary of State, the follow- 
 ing personal opinion expressed by the present distinguished occupant of that office, 
 Hon. Allen B. Candler, in reply to an inquiry by the author, will doubtless 
 be of general interest, and value : 
 
 "This department has always held that its duties in the granting of charters are 
 purely ministerial, and that the powers it confers in its certificate of incorporation 
 
38 GEOKGIA FOKMS 
 
 are only the powers expressly granted in the act under which the certificate is- 
 given. If there are any implied powers in the act for the incorporation of banks, 
 for instance, this department is not competent to say what they are. That is a 
 question for the courts. Should I embrace in the certificate of incorporaiion any 
 power not expressly named in the general act for the incorporation of banks, for 
 instance, the power to accept trusts, it would still be a question for the courts. 
 My including expressly such a power in the certificate of incorporation would not 
 give the power, unless a court of competent jurisdiction has decided that the power 
 attempted to be given is embraced by implication in the general laws for the in- 
 corporation of banks. Thus you see I agree with your hanker friend. If the 
 legislature intended to confer on banks chartered by me the power to act as trus- 
 tees, receivers, assignees, executors, etc., they failed in their object. The law under 
 which I act confers no such powers, but confines the corporation strictly to the 
 business of banking — to discount notes, buy and sell exchange, lend money, re- 
 ceive deposits, etc. If it is in the judgment of the legislature desirable to clothe 
 the banks with additional powers, the law should be amended so as to enumerate 
 the powers. Nothing should be left to implication, nor anything to the discretion 
 of the Secretary of State." 
 
 The foregoing declaration must be accompanied by the following 
 
 Affidavit of Subscribees; §1903. 
 Georgia, Bibb County. 
 
 Before me, G. M. Wiley, ordinary of said county, personally ap- 
 peared John Jones, William Smith, and James Brown, who on oath 
 say that fifteen thousand dollars of the capital subscribed to The 
 Macon Banking Company, for which company deponents are now 
 seeking incorporation by the Secretary of State, has been actually 
 paid by the subscribers, and that the same is in fact held, and is to 
 be used solely for the business and purposes of the said corporation. 
 
 (Signed by affiants.) 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 a M. Wiley, 
 Ordinary Bibb County, Georgia. 
 
 When declaration filed. Secretary of State shall, upon application, oortify 
 and deliver to subscriber a copy of the declaration and affidavit, and same sli nil bo- 
 pub'ished in the official organ of the county in which it is proposed to do bu-iness, 
 once a week for four weeks, §1905. §1906 provides that when such declaration and 
 affidavit shall have been published, the certificate below may be procured from, 
 the ordinary on application, and filed in the Secretary of; State's office; where- 
 upon he shall issue the certificate of incorporation. 
 
 Ordinary's Certificate as to Pctblication ; §1906. 
 
 Georgia, Bibb County. 
 
 I G. M. Wiley, ordinary of said county, do hereby certify 
 that the foregoing certified declaration and affidavit have been pub- 
 
AND PKAOTIOE. SW 
 
 lished in the Maoon Telegraph ne\vs])aper, the same being the official 
 orgai: .-^rthis county, once a week for four weeks, as provided by 
 law. 
 
 Witness my hand and official seal, this the — day of , 18 — . 
 
 a M.. Wiley, 
 Ordinary Bibb County, Georgia. 
 
 Attach foregoing to a copy of the advertisement. 
 
 Certificate of Incorporation of Bank; §1906. 
 
 State of Georgia, 
 Office of the Secretary of State. 
 
 To all to whom these presents may come — Greeting: 
 
 Whereas John Jones, William Smith, and James Brown, all of 
 the city of Macon, county of Bibb, and State of Georgia, have 
 filed in the office of the Secretary of State a declaration seeking 
 the formation of a corporation to be known as the Macon Bank- 
 ing Company, with a capital stock of $50,000.00 for the pur- 
 pose of organizing and conducting a banking business, and have 
 complied with the statutes in such cases made and provided : 
 
 Therefore the State of Georgia hereby creates the above named 
 subscribers, their associates and successors, a body politic and cor- 
 porate under the nanie and style designated in said declaration and 
 such corporation has the ability and powers conferred, and is subject 
 to all the duties and liabilities imposed by law. 
 
 Witness ray hand and the seal of the State, this — day of 
 , 18 — . Allen D. Candler, 
 
 [Seal of State.] Secretary of State. 
 
40 GEORGIA FORMS 
 
 CHAPTER 3. 
 CANAL COMPANIES, HOW INCORPORATED. 
 
 Petition to Incorporate Canal Company; §1986. 
 
 Georgia, Bibb County. 
 
 To the Honorable Allen D. Candler, Secretary of State: 
 The petition of (gives names of not less than five petitioners) 
 respectfully shows : 
 
 1. That they desire to be incorporated as a company for the pur- 
 pose of constructing, operating and maintaining a canal, in accord- 
 ance with the provision of the act of the General Assembly 
 approved December 20th, 1893. 
 
 2. All of the petitioners herein named reside in the city of 
 Macon, said State and county. 
 
 3. The name under which petitioners desire to be incorporated is 
 The Central Georgia Canal Company. 
 
 4. The route of the proposed canal is (state route as nearly as 
 possible). 
 
 • 5. The headquarters of the corporation are to be in the city of 
 Macon, s^aid State and county. 
 
 I The capital stock of said corporation shall be $50,000 in shares 
 of $100 each. 
 
 Wherefore your petitioners pray to be incorporated under the 
 laws of this State. (Signed by petitioners.) 
 
 Certificate, §1987. 
 
 State of Georgia, 
 Office of the Secretary of State. 
 
 To whom it may concern — Greeting: 
 (Naming the persons who signed the petition) having filed their 
 petition in terms of the law, praying to be incorporated as a canal 
 company, they and their associates and successors are hereby 
 declared to be a body corporate for the period of thirty years under 
 the name of The Central Georgia Canal Company, with power to 
 construct, maintain and operate a caual in and through (take 
 statement of route from petition) with such powers, privileges and 
 liabilities as now or hereafter may be prescribed by law. 
 
 Witness my official hand and seal of State, this the — day of 
 
 , 18 — . Allen D. Candler, 
 
 Secretary of Slate. 
 
AND PRACTICE. 41 
 
 CHAPTER 4. 
 EXPRESS COMPANIES, HOW INCORPORATED. 
 
 Petition to Incorporate Express Company; §2000. 
 Georgia, Chatham County. 
 
 To the Honorable Allen D. Candler, Secretary of State: 
 The petition of (give names of not less than five petitioners) 
 respectfully shows : 
 
 1. That they desire to be incorporated as an express company, 
 ,in accordance with the provisions of the act of the General 
 Assembly, approved December 20th, 1893. 
 
 2. All of petitioners reside in the city of Savannah, said State 
 and county. 
 
 3. The name under which petitioners desire to be incorporated is 
 The Savannah & Liverpool Short Line Express Company. 
 
 4. The amount of capital stock which said company proposes to 
 have is $200,000, in shares of $100 each. 
 
 5. The principal office of said company is to be located in the 
 city of Savannah, said State and county. 
 
 6. Said company proposes to operate principally in , 
 
 Wherefore, the premises considered, petitioners pray to be in- 
 corporated under the laws of this State. 
 
 (Signed by the petitioners.) 
 
 Certificate of Incorporation; §2000. 
 
 United States op America. 
 
 State of Georgia, 
 Office of the Secretary of State. 
 
 To whom it may concern — Greeting: 
 
 having filed their petition in terms of the 
 
 statute in such cases provided, they and their associates and suc- 
 cessors are hereby created and declared a body corporate for the 
 period of thirty years, under the name of The Savannah & Liver- 
 pool Short Line Express Company, for the purpose of carrying on 
 
 an express business in , with a capital stock of 
 
 %200,000, with its principal place of business at Savannah, in the 
 ■county of Chatham, State of Georgia, with the powers, duties, and 
 liabilities as now or hereafter prescribed by the laws of this State. 
 
 Witness my official hand and seal of this State this — day of 
 , 18 — . AUen D. Candler, 
 
 [Seal of State.] Secretary of State. 
 
42 GEOEGIA FOEMS 
 
 CHAPTER 5. 
 INSURANCE COMPANIES, HOW INCORPORATED. 
 
 Notice of Intention to Apply for a Charter. 
 
 After thirty days' notice by publication, pursuant to the act of the General 
 Assembly approved December 18th, 1893, the undersigned petitioners will file 
 in the office of the Secretary of State a petition for incorporation, of which th& 
 following is a copy : 
 
 Petition to Incorporate Insurance Company. 
 Georgia, Bibb County. 
 
 To the Honorable Allen D. Candler, Secretary of State: 
 
 The petition of (giving names of not less than five petitioners), 
 all of whom are residents of the city of Macon, in said State and 
 county, respectfully shows that they desire to organize a mutual 
 co-operative life insurance company, to be known as the Guarantee 
 Safety Fund Life Association, for the purpose of carrying on life 
 insurance upon the plan of mutual assessments upon all of its 
 policy-holders, such company to be simply a mutual co-operative 
 ■ company. There will be no capital stock thereof. 
 
 The principal office of said company is to be located in the- 
 city of Macon, said State and county. 
 
 Petitioners do intend in good faith to go forward without delay 
 ti) organize said company. 
 
 Petitioners further show that they have given thirty days' notice 
 of their intention to apply for a charter by publication of this 
 petition in the Macon Telegraph, the newspaper publishing the 
 legal advertisements of said county. 
 
 Wherefore they pray to be incorporated under the laws of this- 
 
 State. 
 
 (Signed by the petitioners.) 
 
 Before filing the petition with the Secretary of State, annex the following 
 affidavit : 
 
 Affidavit to be Annexed to Petition ; §2008. 
 Georgia, Bibb County. 
 
 Before me, , of said county, an officer of said State,. 
 
 duly authorized by law to administer oaths, personally appeared 
 
AND PEACTICE. 43 
 
 and (at least two of the petitioners), 
 
 who on oath say that the names subscribed to the petition to "which 
 this affidavit is annexed are the genuine signatures of the persons 
 named therein, and that the facts stated in the petition are true. 
 
 (Signed by at least two of petitioners.) 
 Sworn to and subscribed before 
 me this — day of , 18 — . 
 
 FoEM OF Certificate of Incorporation ; §2009. 
 
 State of Georgia, 
 Office of Secretary of State. 
 
 To all to whom these presents may come — Greeting : 
 
 Whereas, In pursuance of an act of the General Assembly of 
 the State of Georgia, approved December 18th, 1893, (naming- 
 the persons who signed the petition) all of the city of MacoUy 
 county of Bibb, and State of Georgia, have filed in the office of 
 the Secretary of State, a certain petition seeking the formation of 
 a corporation to be known as the Guarantee Safety Fund lAfe Asso- 
 ciation, with a capital stock of , for the purpose of or- 
 ganizing and running a business upon the plan of mutual assessment^ 
 upon all of its policy-holders and that such company is simply a 
 mutual co-operative insurance company, and have complied with 
 the statutes in such cases made and provided ; 
 
 Therefore the State of Georgia hereby grants unto the above 
 named persons, their successors and assigns, full authority by and 
 under the same name of the Guarantee Safety Fund Life Associa- 
 tion to exercise the powers and privileges of a corporation for the 
 purposes above stated, subject to the provisions of the Constitu- 
 tion of this State, and all the laws and rules and regulations gov- 
 erning insurance companies of force at the date of this certificate 
 or that may hereafter become of force either by constitutional or 
 statute law or by any rules or regulations of the Insurance Com- 
 missioner of this State, or otherwise, which govern insurance com- 
 panies in this State. 
 
 In witness whereof these presents have been signed by the Sec- 
 retary of State, and to which is annexed the great seal of the Stat^- 
 of Georgia, this at Atlanta, Ga., this — day of , 18 — . 
 
 Allen D. Candler, 
 
 [Seal of State.] Secretary of State. 
 
44 GEOKGIA FOEMS 
 
 CHAPTER 6. 
 NAVIGATION COMPANIES, HOW INCORPORATED. 
 
 Notice of Intention to Apply foe Charter; §2148. 
 
 After four weeks' notice ty publication, pursuant to the act of the General Aa- 
 •semhly, approved December 6th, 1894, the undersigned petitioners will file in the 
 office of the Secretary of State a petition for incorporation, of which the following 
 is a copy : 
 
 Petition to Incorporate Navigation Company. 
 
 Oeorgia, Bibb County. 
 
 To the Honorable Secretary of State: 
 
 The petition of (giving names of not less than five 
 
 petitioners) respectfully shows : 
 
 First : They have formed themselves into a navigation com- 
 pany and desire to be incorporated as such, together with those 
 who may hereafter become associated with them, in accordance 
 with the provisions of the act of the General Assembly, approved 
 December 6th, 1894. 
 
 Second : All of the petitioners herein named are citizens and 
 residents of the county of Bibb, said State, and of the city of 
 Macon. 
 
 Third : The name of the company for which petitioners thus 
 seek incorporation is and shall be the Macon Navigation Company. 
 
 Fourth : The capital stock of said company shall be the sum 
 ot $10,000 in shares of twenty-five dollars each. 
 
 Fifth : The said company is to continue business for twenty 
 years, and petitioners ask to be incorporated for that period. 
 
 Sixth : The principal office of said company is to be located in 
 the city of Macon, said county and State, with branch offices and 
 agencies at such other places in said State, and in other States, as 
 the company may deem necessary. 
 
 Seventh : Petitioners further show that they have given four 
 weeks' notice of their intention to apply for a charter by publica- 
 tion of this petition in the Macon Telegraph, a newspaper in which 
 the sheriff's advertisements are published for said county, once a 
 week for four weeks before filing said petition. 
 
AND PEACTICE. 45- 
 
 Wherefore they pray to be incorporated under the laws of this. 
 State. 
 
 (Signed by the petitioners.) 
 Marion W. Hart-is, 
 
 Attorney for Petitioners. 
 
 Before filing the petition wit'a the Secretary of State, annex the following affl-. 
 davit: 
 
 Affidavit to be Annexed to Petition; §2148. 
 
 Georgia, Bibb County. 
 
 Before me, , of said county, an officer of said> 
 
 State duly authorized by law to administer oaths, personally ap- 
 peared (at least three of the petitioners) who on oath say that the 
 names subscribed to the petition to which this affidavit is annexed 
 are the geauine signatures of the persons named therein, and that, 
 the facts stated in said petition are true, to the best of their knowl- 
 edge, information and belief. 
 
 Sworn to and subscribed before me, this — day of , 18 — . 
 
 Before the Secretary of State shall issue the certificate of incorporation, he shall 
 satisfy himself that all the reqairements of the statute, anterior to the filing of 
 the petition, have been substantially complied with, §2151. The best evidence o£ 
 the advertisement is "the production of the paper containing thu advertisement ," 
 6 Ga. 539, 67 Ga. 675. 
 
 Certificate of Incorporation; §2149. 
 
 State of Georgia, 
 Office of Secretary of State. 
 
 To all to whom these presents may come — Greeting: 
 
 Whereas, In pur.suance of an act of the General Assembly of 
 Georgia approve.d December 6, 1894, and (naming the persons, 
 who signed the petition) having filed in the office of the Secretary 
 of State a certain petition seeking the formation of a corporation 
 to be known as the Macon Navigation Company, with a capital stock 
 of $10,000, for the purpose of owning, constructing, equipping, 
 maintaining, and operating vessels, steamboats, and all other water 
 crafts, to be engaged in navigatioa, and having complied witli the 
 statutes in such cases made and provided ; 
 
 Therefore the State of Georgia hereby grants unto the above 
 named persons, their successors and asiigns, full authority, by and. 
 
46 GEOEGIA TOEMS 
 
 uader the said name of the Macon Navigation Company, to exercise 
 the powers and privileges of a corporation for the purposes above 
 stated, subject to the provisions of article IV. of the Constitution 
 of this State, and all laws governing such navigation companies of 
 force at the date of the granting of this certificate, or that may 
 hereafter become of force, either by constitutional or statute law. 
 
 In witness whereof, these presents have been signed by the ISco- 
 retary of State, and. to which is annexed the great seal of the 
 
 State of Georgia, at Atlanta, Georgia, this — (by of , 18 — . 
 
 Allen D. Candler, 
 
 [Seal of State] Secretary of State. 
 
 Original certifloate, or duplicate, is conclusive evidence of existence of the cor- 
 poration in " all the courts and places in this State," and of compliance with the 
 requirements of the statute, ^2161. 
 
AND PEACTICE. 47 
 
 CHAPTER 7. 
 EAILilOADS. 
 
 AETICLE 1. 
 Railroads, How Incorporated. 
 
 Notice of Intention to Apply for Railroad Charter. 
 
 After four weeks' notice by publication, pursuant to the act of tlie General 
 Assembly, approved December 20th, 1892, the undersigned wi!l file in the office 
 of the Secretary of State a petition for incorporation, of which the following is a 
 copy: 
 
 Petition to Incorporate Railroad; §2160. 
 
 Georgia, Bibb County, 
 
 To the Honorable Allen D. Candler, Secretary of State : 
 The petition of (giving names of not less than ten petitioners), 
 all of whom are residents of the city of Macon, said State and county, 
 respectfully shows : 
 
 1. That they desire to form a railroad corporation pursuant to 
 the provisions of the act of the General Assembly of Georgia, ap- 
 proved December 20th, 1892. 
 
 2. The name of the railroad company for which petitioners thus 
 seek incorporation is to be The Maeon & Knoxville Railroad Com- 
 pany, the same not being the name of any existing railway corpo- 
 ration in the State of Georgia. 
 
 3. The length of said road, as near as can be estimated, will be 
 about twenty-jive miles. 
 
 ■\. Said road will run from Macon in a southwesterly direction, 
 crossing the Macon and Birmingham Railroad at Lizella in the county 
 of Bibb, and continuing thence across Echeeonnee creek via Sandy 
 Point to Knoxville, in the county of Crawford. 
 
 5. The amount of the proposed capital stock is %350,000, in 
 shares of %100 each, all of said stock to be common stock of equal 
 dignity. 
 
 6. Petitioners desire to be incorporated as aforesaid for and 
 during the term of thirty years. 
 
 7. The principal office of the proposed corporation will be in the 
 city of Macon, said State and county. 
 
48 GEOKGIA FORMS 
 
 8. Petitioners do intend in good faith to go forward without de- 
 lay to secure subscription to the capital stoolc, construct, equip, 
 maintain, and operate said railroad. 
 
 9. Petitioners show that they have given four weeks' notice of 
 their intention to apply for a charter by publication according to 
 law. 
 
 Wherefore they pray to be incorporated under the laws of this 
 State. (Signed by the petitioners.) 
 
 Before filing the petition with the Secretary of State, annex the following : 
 
 Affidavit to be Annexed to Petition; §2160. 
 Georgia, Bibb County. 
 
 Before me, , of said county, an officer of said State duly 
 
 authorized by law to administer oaths, personally appeared , 
 
 , and (three of the petitioners), who on oath say 
 
 that the names subscribed to the petition to which this affidavit is 
 annexed are the genuine signatures of the persons named therein, 
 and that the facts stated in the petition are true, to the best of de- 
 ponents' knowledge, information and belief. 
 
 (Signed by three of petitioners.) 
 
 Sworn to and subscribed before me 
 this day of , 18 — . 
 
 After the Secretary of State shall satisfy himself that all of the requirements 
 of the law anterior to the filing of the petition have been substantially complied 
 with, he shall issue the following 
 
 Certificate of Incorporation; §2161. 
 
 State of Georgia, 
 Office of the Secretary of State. 
 
 To all to whom these presents may come — Greeting: 
 Whereas, In pursuance of an act of the General Assembly of the 
 State of Georgia, approved December 20th, 1892, and (naming the 
 persons who signed the petition) having filed in the office of the 
 Secretary of State a certain petition, seeking the formation of a cor- 
 poration to be known as The Macon 6s Knoxville Railroad Company, 
 with a capital stock of %-350,000, for the purpose of constructing, 
 equipping, maintaining, and operating a railroad from Macon, in 
 the county of Bibb, to Knoxville, in the county of Crawford,, said 
 State, and having complied with the statute in such cases made and 
 provided : 
 
AND PKAOTICE. 49 
 
 Therefore, the State of Georgia hereby grants unto the above 
 named persons, their successors and assigns, full authority by and 
 under the said name of The Macon & Knoxville Railroad Com- 
 pany, to exercise the powers and privileges of a corporation for 
 the purposes above stated, subject to the provisions of article four 
 (4) of the Constitution of this State, and all the laws governing 
 railroad companies of force at the date of this certificate, or that 
 may hereafter become of force, either by constitutional or statute 
 law, or by any rules and regulations of the Railroad Commission, 
 or otherwise, which govern and control the operation of railroads 
 in this State. 
 
 - In witness whereof these presents have been signed by the Sec- 
 retary of State, and to which is annexed the great seal of the State, 
 
 at Atlanta, Ga., this — day of , 18 — . 
 
 Allen D. Candler, 
 
 [Seal of State.] Secretary of State. 
 
 As to proof of the corporate existence in the courts, etc., the foregoing 
 certificate, or any duplicate thereof, shall be conclusive evidence " in all the 
 courts and places of this State." §2162. 
 
 ARTICLE 2. 
 
 Operation of Railroads. 
 
 [This article deals only -wltli injuries to persoins who are neither em- 
 ployees nor passengers. For passenger cases peculiarly involving the 
 duties of the comipany's employees in their dealings with passengers as 
 such, e. g., cases of wrongful ejection, and of assaults upon passengers, 
 of boarding, alighting, etc., see Oarriers of Passengers. For declaration hy 
 passenger hurt in a railway wreck, see p. 72. For employee cases, see 
 p. 74.] 
 
 Complaint for Injury Due to Defect in Crossing. 
 
 [This form is based upon 95 Ga. 430.] 
 
 Georgia, Bibb County. 
 
 To the City Court of Maoon-: 
 
 A B brings this Ms petition against tlie Central of Georgia Rail- 
 way Company, and alleges: 
 
 First: That on tlie — day of , 18 — , defendant was a rail- 
 road corporation under the laws of said State, having an office and 
 agent in said county. 
 
 Second: That on said date there existed at (or near) , in 
 
 said county, a crossing, whioh defendant had previously built over 
 iis road and undertaken to keep in repair for the acoonnnodation of 
 the public. 
 
50 GEOEGIA FORMS 
 
 Third: That on said date the said crossing was in a neglected, 
 dilapidated condition, several of the cross-<ties therein being rotten. 
 
 Eourth: That on said date plaintiff was driving a team belong- 
 ing to him, consisting of two mules and a wagon, along the road 
 leading towards said crossing, and had reached said crossing, when, 
 by reason of the bad condition thereof, his said team became stalled 
 upon the track at said crossing, and while so stalled was negligently 
 and carelessly struck by one of the defendant's locomotives, with so 
 little warning of its approach that plaintiff barely had time to save 
 himself; said mules being killed instantly and said wagon and plain- 
 tiff's harness totally demolished. 
 
 Fifth: Said mules were worth dollars, said wagon 
 
 dollars, and the harness dollars. 
 
 Wherefore plaintiff prays judgment against defendant in the 
 
 smn. of dollars, and that process do issue, etc. 
 
 Edward Coke, 
 Plaintiff's Attorney. 
 
 As above stated, the foregoing form is based on a particular decision, 95 
 Ga. 430, but, in tbe light of the subjoined notes, it will doubtless also be 
 serviceable in cases of injuries where crossings "established pursuant to 
 law" are in bad condition. 
 
 As to the venue of suits against railroads, see §§2334 et seg. and nates 
 thereto. 
 
 As to injuries causing death, including measure of damages for homicide, 
 and the use of the life tables, .see form under §3828 hereinafter. 
 
 Railroads must keep in good order, at their expense, the public roads or 
 private ways, established pursuant to law, where crossed by their several 
 roads, and build suitable bridges and make proper excavations on embank- 
 ments, according to the spirit of the road laws, §2220. Such crossings in- 
 clude the width of land on both sides of the road allowed by charter or 
 appropriated by the company therefor, and for as many feet beyond, each 
 way, as is necessary for a traveler to get on and oft the crossing safely 
 and conveniently, §2221. This includes proper guard railings at approaches 
 to bridge over deep cut, 92 Ga. 224. The words "established pursuant to 
 law," in §2220, comprehend all roads or ways in respect of which this duty 
 is required; hence, where railroad cut severed a neighborhood way not 
 established either by order of ordinary (§§661 et seq.) or by prescription, as 
 regulated and restricted by the statute (§§672 et seq.), company not liable 
 for a homicide attributable to bad condition of crossing, 72 Ga. 137. So, 
 railroad not liable for defect of bridge by which plaintiff crossed from one 
 part of his farm to another, 68 Ga. 448. If railroad, to facilitate access to 
 its depot, repair bridge on public road at point several hundred yards from 
 track, it does not thereby incur liability of undertaking always to keep up 
 such repairs, 48 Ga. 526. But where it builds and undertakes to keep in 
 repair a bridge over a private crossing, even though the private way be 
 not shown to be one "established pursuant to law," such action amounts 
 to an invitation to the public to use the bridge, 95 Ga. 430; distinguishing 
 
AND PRACTICE. 51 
 
 68 Ga. 446, supra. Public crossing in fact changed, railroad continues 
 liable prima -facie to keep the old crossing in repair, and in action for 
 injuries occurring at old crossing, burden is on company to show that the 
 direction of the road was altered by order of the ordinary, 48 Ga. 568. Re- 
 quirements of §2220 extend to street crossings, 74 G<a. 774, but not to streets 
 or roads paralleling railroad, so as to require cuts fenced in, 76 Ga. 611. 
 
 Complaint for Injury between Blow-Post and Crossing. 
 
 [See §§2222, 2224 J 
 
 Georgia, Bibb County. 
 
 To the City Court of Macon: 
 
 A B brings this his petition against the Central of Georgia 
 Railway Company, and alleges: 
 
 First: (Sarpe as in the preceding form.) 
 
 Second: That the plaintiff while walking along the track of 
 said company on said day, at a place along said track which the 
 public was known to frequent, and while in the exeo-cise of all due 
 care and caution, and without any fault on his part, was negligently 
 and carelessly struck and seriously injured by a locomotive and 
 train of said company, as hereinafter more fully set out. 
 
 Third: Said point where said accident occurred is situated about 
 
 ninety yards to the north of the place where the ■ public road 
 
 crosses said track, in said county. 
 
 Pourth: Said company was grossly negligent in the premises, 
 and particularly in this, to wit: that the engineer failed to comply 
 with the statutory requirements as to signalling the approach of 
 said train to said crossing, and as to checking the speed thereof, 
 and although he had ample opportunity to see petitioner on the 
 track ahead of him, he approached said crossing at a speed of 
 twenty-five miles an hour, without giving any signal whatever 
 Lijjtil said train had nearly reached petitioner, when the whistle was 
 blown, and almost at the same moment the train struck the plain- 
 tiif , knocking him from the track. 
 
 Fifth: (Describe the plaintiff's injuries, pain and suffering, 
 physician's bill, medicine, lost time, etc.) 
 
 Sixth: Plaintiff alleges that by reason of the facts hereinbe- 
 fore recited, he has been injured and damaged in the sum of ■ 
 
 dollars. 
 
 Wherefore he prays judgment against defendant in the sum of 
 
 dollars, and that process may issue, etc. 
 
 CD, 
 Plaintiff's Attorney. 
 
52 GEOEGIA FOEMS 
 
 As to injuries causing death, including measure of damages tor homicide, 
 and the use of the life tables, see form under §3828 hereinafter. 
 
 The blow-post law applies to public roads only, not to private ways, 61 
 Ga. 455. Does not require that train started at crossing be "checked and 
 kept checked" while passing thereover; in passing from rest to motion, no 
 checking is possible; the statute contemplates a state in which there can be 
 less motion, 78 Ga. 526, 535. Crossing law no application when train 
 started at or upon crossing, 76.; i. e., in the country, but aliter in cities, 88 
 Ga. 64; distinguishing 77 Ga. 788, as country case, citing 65 Ga. 120, 73 Ga. 
 557, 75 Ga. 810, 81 Ga. 417, 87 Ga. 673. 
 
 Railroad employees chargeable with knowledge of city ordinances, 87 Ga. 
 386. 
 
 Where a public thoroughfare parallels railroad, company must not make 
 unnecessary noises, 73 G-a. 558. But where it was the headlight and not 
 the noises that frightened plaintiff's team, no recovery on account of 
 noises, 88 Ga. 283. 
 
 The Blow-Post Law Discussed. — Statute requires two distinct things: (1) 
 to check and keep checking, (2) to blow whistle, 95 Ga. 691. The first "has 
 been frequently construed to mean that the engineer must have his train 
 under such control that he can bring it to a complete stop if necessary to 
 prevent a collision," /6. 
 
 For instance, when stock killed between blow-post and crossing. Held, 
 law does nat require speed checked before reaching blow-post, but only 
 that engineer should blow his whistle at the blow-post, and check so he 
 ■can stop by time crossing reached, 82 Ga. 190. 
 
 As to the second requirement of the statute, "The whistle must be blown 
 commencing nearly a quarter of a mile from the crossing ; " therefore, rela- 
 tively to wayfarer approaching a crossing, though he has not reached it, 
 failure to blow whistle which results in his approaching near enough for 
 his team to get frightened and run away, renders company liable, 95 
 Ga. 692. Frightening horse with whistle, liable for, when, 73 Ga. 350. As 
 to noises, whistles, etc., the rule by which the railroad company is bound is, 
 "So use your own as not to injure another's," 73 Ga. 558. 
 
 Tiic (iravitt Case. — In the case of the Atlanta & Charlotte Air Line Rail 
 way Company vs. Gravitt, 93 Ga. 369-414, decided Feb. 26, 1894, Judge 
 Lumpkin reviews all the Georgia crossing law cases, and discusses the text- 
 books, and many cases from various courts on this subject. Of that 
 opinion, the judge himself says in a later case (95 Ga. 692) : "Upon a former 
 occasion we investigated at some length various questions as to the rights 
 and duties of travelers upon public roads in connection with the duty im- 
 posed upon railroad companies to signal the approach of trains to cross- 
 ings." Of that opinion, every lawyer who reads it Will probably be ready 
 to say, that its style is clear and its research profound, and that it has 
 contributed some stability to the composite position of our court upon this 
 subject. 
 
 It lays down the rule that, in suit for an injury occurring in vicinity of 
 crossing, though not at it, where failure of the railroad to observe the 
 provisions of §2222 in approaching crossings will not of itself be ground of 
 recovery, but jury may consider such failure as other res gestw, 93 Ga. 411 
 (Gravitt's case), 93 Ga. 510 (Golden's case). 
 
 This was as far as 74 Ga. 604, 723, 857 went, 93 Ga. 393, 394. In 82 Ga. 400 
 plaintiff was practically upon the crossing when injured, 93 Ga. 396; and 
 82 Ga. 400 was approved in 89 Ga. 463, 93 Ga. 396. 
 
AND PEAOTIOE. 53 
 
 Violation of §2222 negligence relatively to person at crossing, 42 Ga. 332. 
 
 Crossing law violated, slave and cart destroyed so near to crossing "as 
 to be practically upon it," railroad liable, 24 Ga. 75, cited 93 Ga. 390. 
 
 The crossing law is part of the road law of Georgia, §2222. For the ear- 
 liest distinct ruling that it was intended for the protection of persons and 
 property at public crossing see 37 Ga. 593, followed 93 Ga. 391. 
 
 In a case of injury to team at road crossing. Held, violation of it not 
 necessarily per se negligence; question for jury, 70 Ga. 263; see also 34 
 Ga. 337. 
 
 But a railroad's liability for killing and injuring people at places along 
 Its track which ithe public is known to frequent, and where it is probable 
 they will be found, depends on law entire distinct from its duty as to cross- 
 ings, 93 Ga. 392. 
 
 In 88 Ga. 71, non-suit was upheld though crossing law was violated, the 
 injury not having occurred at crossing, 93 Ga. 397. 
 
 On same idea verdict here in stock killing for railroad aflSrmed, 88 
 Ga. 261; see also 88 Ga, 282. 
 
 The breach of a duty is not of itself negligence relatively to one to whom 
 the duty in question is not due, 92 Ga. 753. Applied in principle in 93 
 Ga. 370, 97 Ga. 166. 
 
 §2321 imposes upon the railroad company the burden of showing such 
 diligence as was due to plaintiff, 92 Ga. 753. But plaintiff must first show 
 that such diligence was due him before the presumption against the com- 
 ipany arises, lb. Relatively to a person out in the country near, railroad 
 tracik, railroad owes no diligence in respect of ispeed of Its trains, and 
 derailment due to negligent speed, causing injury to such person, not ren- 
 der company liable, 16. 
 
 Trespasser in railroad yards bound to diligence commensurate with his 
 peril, 85 Ga. 447. 
 
 Railroad owes him no duty save not to hurt him if seen in time, I&. 
 
 Held formerly, that while negligence is generally for jury, neglect of 
 statutory duty to blow whistles, etc., is negligence, and court may so charge, 
 78 Ga. 694 (Smith vn. C. R. R.), 65 Ga. 122, citing 24 Ga, 75. 
 
 Even in case of accident just beyond crossing, 65 Ga. 631. 
 
 But held, later, that the cases in 64 Ga. 649 and 65 Ga. 631, where rail- 
 road held liable for killing stock between signal post and crossing, on the 
 ground of the failure to checlc and Uow whistle, must yield to the doctrine 
 which 37 Ga. 593 lays down; 93 Ga. 392. 
 
 "We dispose of the Phinizy case (83 Ga. 192) as we did of the two cases 
 just mentioned," 93 Ga. 396. 
 
 (Brinson's case) 70 Ga. 207, where recovery for personal injury inflicted 
 by running train not at crossing was reverseid, does not necessarily con- 
 flict herewith, 93 Ga. 393. 
 
 78 Ga. 694, where plaintiff was hurt some seventy yards from crossing, 
 and it was held there the violaition of a valid municipal ordinance in run- 
 ning trains would be negligence per se, has been limited by 93 Ga. 510 to 
 cases where the negligence is negligence relatively to the person injured, 
 i. e., where the plaintiff was ut the crossing, 93 Ga. 395. 
 
 The Denson case, which is also a leading case, 84 Ga. 774, where recovery 
 for homicide of husband between blow-post and crossing was sustained, 
 was not put entirely on the violation of the crossing law, 93 Ga. 397. 
 
 This doctrine of the Gravitt case, viz.: that breach of statutory duty to 
 signal, etc., in approaching crossing, is not per se negligence relatively to a 
 
54 GEORGIA FORMS 
 
 trespasser walking on the track, has been followed in 95 Ga. 362, 94 Ga. 580. 
 
 But all the cases agree that such breach of duty may go to the I'ury as a 
 circumstance showing negligence, Ga. R. R. vs. Williams, 74 Ga. 723 (a lead- 
 ing case). Followed 82 Ga. 404 (cited supra). 
 
 Contributory Negligence. — Ordinary care in crossing a crossing is not the 
 standard for one using track to walk upon, though at crossing; the stand- 
 ard for him should be that of every prudent person who unnecessarily puts 
 himself in a perilous position, 82 Ga. 400, 78 Ga. 694. 
 
 Person in such a position must look and listen, 79 Ga. 44, 90 Ga. 501. 
 
 Cas« iere as bo plaintiff's diligence resembles 86 Ga. 43, where verdict for 
 plaintiff was reversed, 90 Ga. 505. 
 
 Standard of prudence is in juror's mind already; standard sought to be 
 fixed by proof of usual custom of pedestrians known to engineer, irrelevanit, 
 91 Ga. 470. 
 
 Negligence, contributory, defeated recovery here, 87 Ga. 386. 
 
 Law of applicable only when both parties being at fault, plaintiff could 
 not by ordinary care have avoided consequences of defendant's negligence; 
 charge here so commingled §3830 and §2322 as to make defendant liable if 
 both parties were negligent, even though they believed that if defendant 
 had exercised ordinary care she would not have been hurt, 87 Ga. 6. 
 
 Court erred here in refusing request resting defense on plaintiff's ability 
 by ordinary care to have avoided Injury, C. R. R. vs. iBrinson, 64 Ga. 
 478. Law of contributory negligence, when applicable and when not, 74 Ga. 
 851, 857; leading case on, 70 Ga. 207, 255. Homicide of one walking on 
 track between blow-post and cro'ssing, care shown to prevent after engineer 
 saw such person, at most a negligent homicide, and gross negligence here 
 defeated recovery, 91 Ga. 420. Person on track could have avoided injury 
 by ordinary care, 87 Ga. 272. No liability for such a homicide, though en- 
 gineer somewhat negligent, 88 Ga. 726. 
 
 Law of contributory negligence of force in this State "carefully reviewed," 
 71 Ga. 446, 439, 70 Ga. 222; doctrine does not apply when plaintiff's negli- 
 gence is sole cause of injury, or where, by exercise of ordinary care, he 
 could have avoided consequences of defendant's negligence. "One person's 
 being in fault will not dispense with another's using ordinary care for him- 
 self," 74 Ga. 613. "He is the author of his own wrong," 74 Ga. 614. 17 Ga. 
 136 doubtless duly considered in the drafting of §§3830 and 2322, 74 Ga. 614 
 (W. & A. R. R. vs. Bloomingdale, a leading case well worthy of study). 
 Non-suit for contributory negligence, when proper, 83 Ga. 674-5. 
 
 Walking on track is lack of ordinary care, when, 95 Ga. 362, 83 Ga. 595, 
 82 Ga. 804. 
 
 Remaining on trestle to save child whom deceased had unwisely carried 
 with him was lack of ordinary care, 91 Ga. 420. 
 
 Ordinary care is same as "common prudence," 79 Ga. 45. 
 
 What is due care in child of tender years, 81 Ga. 397, 64 Ga. 306; lack of 
 ordinary care defeats recovery, 38 Ga. 409, 53 Ga. 16; even if defendant 
 remiss in blowing whistle, etc., 70 Ga. 226. Deceased was lying on track 
 here, and there could be no recovery, 60 Ga. 667, citing 38 Ga. 409, 52 Ga. 
 467, 53 Ga. 12. So where one voluntarily threw himself in the way of a 
 dray, 27 Ga. 358. S'O where negro asleep on end of cross-tie was killed in- 
 stantly, 28 Ga. 93. So as to man on track, dead drunk, 61 Ga. 114. Crawling 
 under cars, rash, 42 Ga. 330. 
 
 Undoubtedly law that every railroad entitled to obstructed use of 
 track, but cannot murder even a trespasser walking thereon, 64 Ga. 308, 60 
 
AND PRACTICE. 65 
 
 Ga. 340; liable for gross negligence, lb.; §§3830 and 2322 embody tlie prin- 
 ciples of the common law; first brancli (lack of ordinary care defeating re- 
 covery) traceable to 18 Ga. 684, 19 Ga. 437; second branch (but in other 
 cases defendant not relieved) traceable to 27 Ga. 113, 28 Ga. Ill; see 38 Ga. 
 431; whether presumption of §2321 overcome or not, if plaintiff caused in- 
 jury by his own negligence, or could, by ordinary care, have avoided it, 
 verdict should still be for the company, 64 Ga. 308, Ga. R. R. vs. Neely, 56 
 Ga. 543, 38 6a. 431. Railroad cannot murder even a trespasser on the 
 track; if lying there drunk, or otherwise helpless, and recklessly or in- 
 cautiously run over, recovery proportioned to fault of each, 71 Ga. 427. In 
 70 Ga. 207 plaintiff and many others had for a long time been in the habit 
 of using the track as a foot-path; while, here could not anticipate that pei'- 
 sons not connected witli company would be on track on trestle, 71 Ga. 444, 
 citing 28 Ga. 96. 
 
 "One reckless man cannot kill another and justify himself to the law by 
 the plea that the other was in his way and might have kept out, or gotten 
 out, if he %ajA tried," 84 Ga. 783. 
 
 Intoxication not contributory to injury not defeat recovery; nor count 
 against plaintiff, if sober, careful man could not have avoided consequences 
 of railroad's negligence, 93 Ga. 488. 
 
 The leading oases upon fthe defenses which the company may set up, 
 are 9. F. & W. Ry. vs. Stewart, 71 Ga. 427, and Brinson's case, 64 Ga. 479. 
 
 Contributory negligence will not defeat recovery if defendant's negligence 
 gross or criminal, 84 Ga. 774. Applied to trespassers on track crossing 
 passed, 74 Ga. 857. In 74 Ga. 723 injury occurred 150 yards beyond crossing 
 but recovery upheld, 84 Ga. 784. Crossing law violated, man on track deaf, 
 84 Ga. 774. Human life sacred, 84 Ga. 783, citing 70 Ga. 207. In 78 Ga. 694 
 and 82 Ga. 801 contributory negligence aefeated recovery, 84 Ga. 784. In 
 28 Ga. 93 engineer signaled man on track, 84 Ga. 785. 
 
 Employee when not on duty is not employee, if then hurt on public street, 
 rule of contributory negligence applicable to public generally applied to him, 
 82 Ga. 591, nor does this conflict with 69 Ga. 715, 76. 
 
 As TO Cities. 
 
 Violation of crossing law criminal, 74 Ga. 428, citing 65 Ga. 631. 
 
 In cities. In lieu of blowing whistle, engineer must toll bell, §2224. 
 
 The law requiring the checking of trains in passing a road crossing ap- 
 plies to the crossings of streets in cities, 73 Ga. 557. "Indeed such policy 
 is more necessary in cities than in the country," 75 Ga. 812. 
 
 See also the first paragraph of notes to this declaration, ante. 
 
 Legislative authority to municipality to regulate running trains in streets 
 merely cumulative; does not nullify general law, 75 Ga. 810. 
 
 Railroad employees must knc^w city ordinances, 87 Ga. 386. Violating 
 such ordinance, negligence per se relatively to yard employees, 93 Ga. 259. 
 
 Reasonableness or unreasonableness of a city ordinance regulating speed 
 of trains on streets is a question of law for the court, and not for jury, un- 
 less it depends on existence of particular disputed facts, 90 Ga. 507, citing 87 
 Ga. 392. Proviso substituting bell-ringing for whistle, in cities, confined 
 to signaling approach to crossings; not unlawful to wliistle signals in ap- 
 proaching station, as warning to adjust switches, 90 Ga. 232, but to con- 
 tinue so to blow, after seeing the team on public road near by was fright- 
 ened, unlawful, lb. Cause of runaway being headlight, no recovery, 88 
 Ga. 283. 
 
56 GEORGIA FOEMS 
 
 At city crossing engineer bound to diligence before peril discovered as 
 well as afterward, 87 Ga. 674. Not entitled to assume in all cases that 
 people on crossings will get off in time, 76., 89 Ga. 463. 
 
 Ordinances regulating and speed just before passing crossing, relevant, 74 
 Ga. 865. Widow's declaration for homicide of husband at crossing, due to 
 violation of crossing law, set forth cause of action here, 90 Ga. 258. 
 
 ARTICLE 3. 
 Farm Crossings. 
 
 Notice to Railroad ; §2243 et heq. 
 Georgia, Jones County. 
 
 To the Georgia Railroad and Banking Company: 
 
 YovL are hereby required to build "witliin thirty days a good and 
 sufficient cattle guard upon my land in said county at the point 
 where the private way over said land leading from the "Bowen 
 Quarter" to the "Bowen House" crosses the line of road of the 
 Georgia Railroad and Banking Company, said point being situ- 
 ate on the line of said railroad between Haddock Station and Ma- 
 con, about one mile and a half from said Haddock Station. 
 
 This notice is given pursuant to the act of the General Assembly 
 approved November 11th, 1889. 
 
 Attest: Howell C. Harris. 
 
 John Gi'ay, Notary Public Jones Co., Ga. 
 [SeaL] 
 
 Better that the attesting officer should be one having a seal, §2243. 
 
 After notice as above, all railroads must build and maintain cattle guards 
 at their own expense, on each side of every public road or private way 
 established pursuant to law, and on the dividing line of adjoining land 
 owners, where the railroad way crosses the same, and on failure to com- 
 ply with the notice, the company becomes liable to the land owner for all 
 damages resulting from failure to build, and also for $25 a day for each 
 day's default after said thirty days, to be ^recovered by the land owner in 
 any court having competent jurisdiction of the same, §2243. 
 
 When any land owner desires built any cattle guard other than as above, 
 or any farm crossing, after ten days' notice similar to the above railroad 
 must submit written estimate. Whereupon owner may pay estimated 
 cost, and company must proceed to build. In case of disagreement as to 
 eetimate, award may be had as in cases of damages for right of way, §2245. 
 
AND PRACTICE. 57 
 
 AETICLE 4. 
 Injuries to Stock. 
 
 Notice to Railroad; §2254. (a) 
 Georgia, Bibb County. 
 
 To the Central of Qeorgw, Railway Company: 
 
 You are hereby notified that -within the last tihree months, to 
 
 ■wit, on the ■ — • day of , 18 — , (or night, as the case may be) 
 
 yon damaged the subscriber not exceeding thirty dollars by (6) kill- 
 ing a milch cow belonging to him by the running oi. a car, engine, 
 or locomotive, or other miaohinery on your road; and desiring that 
 the amount of damages may be legally assessed, you are hereby 
 required by agent, or attorney, or in person, to appear at the Jus- 
 tice Court ground in the 564th District, G. M., to wit, at Masonic 
 Temple, Mulberry St., Macon, Ca., by ten o'clock a. m. on the 
 
 — day of next, then and there to show cause, if any exist, 
 
 why the damage shall not be assessed according to law. 
 
 This — day of , 18—. 
 
 John Doe. 
 
 fa) The notice may be served personally on any agent of the company at 
 least three days previous to day of trial or by leaving a copy of such notice 
 at such agent's residence five days previous to trial, §2253. When the dam- 
 age claimed exceeds thirty dollars, suit may be brought in superior court 
 but written notice as above not sufficient without other pleadings, 51 Ga. 
 244, §2259. Service twenty days before court required, §2259. Affidavit of 
 service is sufficient evidence of service, 42 Ga. 300. 
 
 (&) Above notice sufficiently describes the damage done, 42 Ga. 301. 
 
 Generally: — Execution based on a judgment under this proceeding must 
 be directed: "To all and singular the sheriffs and constables of the State 
 of Georgia," even though the judgment be from a justice court, §2255. Pro- 
 ceedings subsequent to judgment, §2256 et seq., do not substantially differ 
 from the general law. 
 
 ARTICLE 5. 
 Railroads as Common Carriers. 
 
 Section 1. Carriers op Passengers. 
 
 [For a declaration growing out of a railway wreck, see p. 72. For 
 employee cases, see p. 74. For suits by parsons who are neither em- 
 ployees nor passengers, see p. 49.] 
 
58 GEORGIA FORMS 
 
 Complaint for Expulsion from Tra-IN. 
 ■Georgia, Bibb County. 
 
 To the City Court of Macon: 
 
 A B brings this his action against the Southern Railway Gom- 
 pany, and alleges: 
 
 First: Defendant is a railroad corporation owning and operat- 
 ing a railway in said State and having an office and agent in said 
 ■county. 
 
 Second : Defendant has damaged petitioner dollars by rea- 
 son of the following facts: 
 
 Third: That on the — day of , plaintiff contracted with 
 
 defendant, through its agent, C D, at Atlanta, Ga., to be cairied 
 thence to Jacksonville, Florida, and returned again to Atlanta, and 
 bought a ticket accordingly, paying for said ticket the fare de- 
 manded by said agent. 
 
 Fourth: Plaintiff was duly carried to Jacksop.ville, but on the 
 return trip, just after leaving Macon, in the county of Bibb, and 
 T\-hen plaintiff was rightfully u.pon defendant's train and entitled 
 to be carried thereon to Atlanta, ha'ving fully complied with all 
 the stipulations of his said contract, the conductor on said train 
 refused to accept the ticket purchased as aforesaid, owing to a mis- 
 take made by the said G D, the said ticket lagent at Atlanta, in 
 signing and stamping the same, but demanded of plaintiff pay- 
 ment of fare, and upon plaintiff's refusing to comply vdth said 
 demand, the defendant, through its said conductor, and its other 
 ser^^ants upon said train, then and there ejected plaintiff. 
 
 Wherefore, etc. 
 
 E F , 
 Petitioner's Attorney. 
 
 Nature of the Action axd Oharactbr of the Damages. 
 
 Passenger may sue, at his election, for wrongful expulsion on breach of 
 ■contract to carry, or in teat for breach of public duty, as common carrier, 
 91 Ga. 519. No special damages shown, nominal damages only recoverable 
 In former; in latter, enlightened conscience of juror is only measure, Ih. 
 $1,750 for outrageous expulsion of 'an old man from train not excessive 
 here, 68 Ga. 219. $1,000 damages (punitive) upheld here, 77 Ga. 674. 
 
 No exemplary damages in action ex contractu, e. g., on failure to honor re- 
 turn half of round-trip ticket, 68 Ga. 190. Case for violent expulsion, though 
 contract of carriage alleged (as inducement) is not for breach of contract, 
 but for tort by breach of public duty and punitive as well as actual damages 
 are recoverable, 79 Ga. 358. The action here for wrongful expulsion was 
 ex delicto, and exemplary damages were proper, 70 Ga. 368. The liability 
 ^rose out of a breach of duty incident to and created by tlie contract, but 
 
AND PRACTICE. 59 
 
 was only dependent upon the contract to the extent necessary to raise the 
 duty. The breach of the duty was a tort, lb. In action by married woman 
 against common carrier for wrongful expulsion from car, §3906 may apply 
 both in letter and spirit, but §3907 in principle only, and relatively to in- 
 jury to feelings, but not relatively to worldly circumstances, 93 Ga. 458, cit- 
 ing 73 Ga. 251, infra. Wounding feelings is as much actual damage as 
 breaking limbs-, 79 Ga. 360; see 77 Ga. 674. Wealth of defendant railroad 
 inadmissible; except in cases where the entire injury is to tli© peace, hap- 
 piness, or feelings of plaintiff (see §3907) worldly circumstances of parties 
 not competent, 73 Ga. 257; see also 73 Ga. 149. 
 
 When there are no aggravating circumstances, either in act or intention, 
 error to charge §3906, 72 Ga. 217, 30 Ga. 241. Onus on plaintiff to prove 
 aggravating circumsitances in order to have this section given in charge, 
 23 Ga. 145, 71 Ga. 427. Brutal conduct of conductor her© authorized his 
 prompt discharge; "deter" not in it, but compensation for wounded feelings 
 was, 72 Ga. 296, citing 51 Ga. 646, 59 Ga. 426, 60 Ga. 492, 58 Ga. 216. Incon- 
 venience of being put off proper element of damage, 90 Ga. 562. Conduc- 
 tor's calling "nigger" train hand to assist in ejecting passenger not ag- 
 gravate damages", lb. Plaintiff's elbow struck by projection from passing 
 lumber train, aggravating ciroumstancea entitled him to damages, 51 
 Ga. 646. 
 
 TlCKKTS AND FaEE. 
 
 Honest mistake of conductor as to ticket, no excuse for expulsion, 86 Ga. 
 641. Passenger need not await force, lb., 91 Ga. 514. Mere command to 
 leave enough, and exemplary damages allowable therefor, 73 Ga. 251. 
 Threats of ejection forcing passenger to pay fare whose ticket had already 
 been taken up, $500 upheld, 88 Ga. 443. Conductor bound to extraordinary 
 diligence in remembering about the identity of passengers and tickets, 
 73 Ga. 254. His good faith may mitigate as his bad faith would aggravate 
 the damages, 73 Ga. 258. Where passenger purchased through ticket and 
 surrendered it to first conductor on demand, threats of expulsion for not 
 paying fare or producing ticket, though required by rule of company, prop- 
 erly mulcted in punitive damages, 88 Ga. 443. 
 
 Passenger holding ticket which 'had expired by limitation, ejected, non- 
 suit proper, 93 Ga. 225. Special excursion contract requiring passenger to 
 sign before returning, binding; no recovery for expulsion, 73 Ga. 356. Aliter 
 where plaintiff had performed all the stipulations of his contract, 79 Ga. 
 361. Express contract necessary, and where passenger was not required to 
 sign ticket, non-suit of action for wrongful ejection was error, 93 Ga. 356. 
 Notice on the return ticket that passenger must sign and have it stamped 
 was not binding, lb. Scalper's ticket good unless terms of ticket make it 
 non-transferable, 96 Ga. 657. Ticket issued on Dec. 6th during day, and 
 limited to be used wirthin two days from date sold, did not expire until 
 twelve o'clock on night of Dec. 8th, 68 Ga. 219. 
 
 Where a passenger refuses demand for fare and the train is stopped for 
 the purpose of expelling him and he changes his mind and accedes to such 
 demand at last momenit, whether he is then entitled to be carried, depends 
 on whether or not the demand was rightful, 88 Ga. 529. If it was, he is 
 not entitled to be carried, lb., overruling 68 Ga. 572. 
 
 Railroad must keep ticket office open reasonable time before departure of 
 all trains, and passengers must use proper diligence in supplying themselves 
 with tickets, to be judged of by jury, 90 Ga. 562. As to relative rights of 
 
60 GEOKGIA FORMS 
 
 passengers on trains without ticltet and company, 88 Ga. 529. Plaintiffs 
 calling for proper ticket entitled to assume proper one given without ex- 
 amining it, 86 Ga. 744. Passenger may rely on ticket agent's statement 
 as to ticket being good on a certain train, 91 Ga. 513. $800 for ejecting pas- 
 senger from train, large but not excessive here, 94 Ga. 639. Presumption 
 overcome in passenger case here and verdict for plaintiff who was ejected 
 error, 92 Ga. 760. Railroad may refuse to carry passenger on pay train, 
 and one knowingly entering same is a trespasser, and should leave as soon 
 as he prudently could, 66 Ga. 252. 
 
 Railroad failing to run according to published schedule, liable to one 
 damaged thereby, 58 Ga 180. Which train killed ejected passenger here, 
 not material, 68 Ga. 573. 
 
 COMPT.AINT FOR InJUEY TO PASSENGER IN ALIGHTING. 
 
 [This declaratiou is bated upon 69 Ua. 2CS, where overruling of demurrer was afBrmed-l 
 
 Georgia, Bibb County. 
 
 To the City Court of Macon: 
 
 William 8mith brings this his petition lagainst the Central of 
 Georgia Rallicay Company, and. alleges: 
 
 First: That on the — day of , 18 — , defendant was a rail- 
 road corporation under the laws of said State, having an office and 
 agent in said county. 
 
 Second: Defendant has injured and damaged petitioneor in the 
 sum of $5,000 by reason of the facts hereinafter set forth. 
 
 Third: On the evening of the day above mentioned, plaintiff 
 boarded the passenger train of defendant at Bolinghrolce station, 
 en route to the city of Macon, and notified the conductor that he 
 desired to get off at Yvneville statioUj in Bibb county, to which the 
 conductor said "All right," and then and there la^eed to slack up 
 the train and put petitioner off safely at said station, petitioner at 
 the same time paying to said conductor the fare demanded of 
 him. 
 
 Fourth: Upon arriving at said station, notwithstanding said 
 agreement to slack up, the conductor negligently directed plaintiff 
 to get off the train while in motion, and plaintiff, seeing that he 
 was about to be carried beyond his deetinartion, and thinking he 
 might safely jump, undecr promise of said conductor to slack up, 
 and his notice to get off, did step from the train; but finding that 
 he would be hurled against the track if he let loose, he retained his 
 hold on the ear, trusting that the speed would be lessened ; but 
 though defendant's agent, the said conductor, saw plaintiff's situ- 
 ation, the speed of the train was negligently increased, causing 
 
AND PKACTICE. 61 
 
 plaintiff to be dragged for yards, and finally thrown down a 
 
 steep embankm'ent, seriously injuring Him. 
 Fourth: (Give injuries in detail.) 
 
 "Wherefore petitioner prays judgment against defendant in the 
 siLtn of $5,000, and that process do issue, etc. 
 
 AB, 
 Petitioner's Attorney. 
 
 As to injuries causing death, including measure of 'damages for homicide 
 and the use of the life tables, see form, under §3828 hereinafter. 
 
 Alighting of Passengers from the Train. 
 Husband's declaration against street railway for injuries to his wife In 
 alighting, here set forth a cause of action, 90 Ga. 695. So did wife's declar- 
 ation based on same accident, lb. Suit on breach of contract to carry safely 
 is ex contractu and in time If within four years, though damages for per- 
 sonal injuries sustained by the breach are sought to b© recovered, 94 Ga;140. 
 Suit In tort for personal Injury, two years of course, /6. Palling to stop, 
 passenger jumping at suggestion of conductor, hurt, cause of action set 
 out, 69 Ga. 268. If conductor agree to put passenger off at particular place, 
 whether regular stop or not, company bound by such agreement, 45 Ga. 288. 
 Slacking in lieu of stopping, 51 Ga. 492. Passenger bound for flag station, 
 conductor should, ordinarily, ascertain destination and stop there, 89 Ga. 
 16, 550. Where, on a drizzly nigiht, train stopped as conductor called out 
 station, and plaintiff stepped off and was hurt, whether conductor failed 
 here in extraordinary diligence in not warning passenger that station not 
 reached, for jury, and non-suit error, 93 Ga. 630. On account of jerk of 
 electric car here, non-suit was error, notwithstanding passenger's acts in 
 trying to alight, 95 Ga. 519. Standing on platform of horse-car, in absence 
 of notice to contrary, not fatal negligence, 55 Ga. 126. Passenger's lack 
 of ordinary care defeats recovery, 38 Ga. 409. Carelessness less than this 
 diminishes it, 16. "It is not necessarily, as matter of law, negligent for a 
 person to leave a moving train," 96 Ga. 43. And a charge which takes from 
 the jury the question of whether such jumping was negligence and assumes 
 that it was, is error, 81 Ga. 273, 79 Ga. 463; also, compare 84 Ga. 1, 85 Ga. 
 504, 87 Ga. 766. Jumping by passenger to avoid being carried beyond street 
 crossing, non-suit proper here, 81 Ga. 476. Demurrer properly sustained 
 here for same reason, 83 Ga, 350; see also 82 Ga. 229. Where train stopped 
 reasonable time, no recovery, 81 Ga. 275. Jumping under excitement not 
 in case here, 76. No emergency here, to authorize jumping from moving 
 street car and non-suit was proper, 94 Ga. 662. Jumping from street car go- 
 ing twenty miles an hour gross negligence in passenger, 88 Ga. 436. Passen- 
 ger rash here in alighting, 50 Ga. 353. Alabama law: contributory negli- 
 gence of passenger jumping off gross, error as to immaterial, 80 Ga. 212. 
 Contributory negligence of passenger in jumping by order, 67 Ga. 307; same 
 case, 66 Ga. 252. If order of flagman relied on, flagman's authority should 
 be pleaded and proved, 96 Ga. 328. Alighting too soon, no recovery, when, 
 82 Ga. 229. Too late, no recovery, when; after reasonable stop train may 
 move, 89 Ga. 455, 92 Ga. 133. Rule of extraordinary diligence demands rea- 
 sonable time for alighting, 88 Ga. 649. Greatest possible care of passengers 
 not required, but only extraordinary care (§2899). "Utmost care" not re- 
 quired. 95 Ga. 736. 95 Ga. 739. Recovery by lady thrown down when about 
 
62 GEORGIA FORMS 
 
 to get out of car was wrong here, 95 Ga. 736. Railroad bound to carry pas- 
 senger paying usual fare, but not necessarily bound to assist Infirm passen- 
 ger to alight, 96 Ga. 786. Alighting, bound to stop sufficient time for, but 
 not to assist In, 71 Ga. 610. Charge that duty did not end until plaintiff 
 safely landed on ground, error, 74 Ga. 449. Mere voluntary promise on part 
 of a conductor to wake a drowsy passenger, no recovery for, 71 Ga. 710. 
 
 Alighting of Licensees. 
 Where <me had to come to depot to see his family off, and was injured by 
 an attempt to alight from rapidly moving train, company not liable, 85. 
 Ga. 504. Where such a licensee waits until train starts, he must either re- 
 main until he can make known his wish to get off, or else take chances, 
 84 Ga. 1. Such licensee certainly has not all the rights of a passenger un- 
 less presence on board known to company, 65 Ga. 375. And whether such 
 person is negligent In stepping from moving train, for jury; non-suit error 
 here, 96 Ga. 43. Street car conductor's knowledge of plaintiff's Intention to 
 put dinner on and get off inferable from numerous circumstances, 89 Ga. 
 272. Waiter carrying conductor's dinner to train, ordered by him to jump 
 from moving train, $1,650 upheld, 89 Ga. 110. Boarding by running to catch 
 train as it moves out of depot, 66 Ga. 746. No duty "to keep track clear for 
 pursuers," nor true as legal proposition "that a passenger has a right to- 
 chase a flying train," 58 Ga. 468. 
 
 Other Matters. 
 
 Boarding, reasonable time for must be given; not given, door slammlng- 
 on hand, liere company liable, 89 Ga. 321. , Train hand whose business it 
 was to place stool fo^r ladles to alight, not produced, custom of company 
 so to place it up. to starting properly excluded, there being positive evi- 
 dence for plaintiff that It was out of place when he was injured, 88 Ga. 9. 
 Volunteer passenger sub modo only, 73 Ga. 150. 
 
 One on train by Invitation of conductor, hurt here while riding- 
 on open flat car by cinder in eye, caused injury to himself and was not en- 
 titled to recover, lb. Testimony of expert that never heard of such acci- 
 dent, competent, 76. One who put himself under conductor to work his 
 way was mere volunteer, 82 Ga. 157. Child nine years old, known to be 
 on board street car, hoTV far a passenger; entitled to the consideration due 
 his tender years, 83 Ga. 453. Railway owes to trespasser only ordinary 
 care, 91 Ga. 345. Duty to small boy greater than to man; generally allowing: 
 him on front platform, negligence, 76. Capacity of child between ten and 
 fourteen to appreciate the danger, for jury, 76. Assent to boy's taking a 
 ride on street car not inferable from driver's knowledge of his presence, 
 there being a conductor, 91 Ga. 345. $750 for inconvenience and annoyance 
 to lady passenger, and for carrying her beyond destination, out of all reason 
 here, 95 Ga. 237. Safe way of exit, 76 Ga. 770. Carrier of passengers bound 
 to extraordinary diligence; human life at stake, 76. Negligence of plain- 
 tiff amounting to lack of ordinary care, where he had come to meet wife 
 and children, defeated recovery for fall from precipice, though lights in car 
 blown out by drunken passengers, 65 Ga. 370. Freight train, passenger oit 
 duty to afford reasonable protection in getting away from place of stopping 
 cab, 80 Ga. 526. And as to providing lights, or giving warning of precipice 
 (wall) near at hand, 76. As to passengers oq freight trains, see 76 Ga. 
 214, 84 Ga. 651, 89 €a. 495, 91 Ga. 782; As to the duty of the company as. 
 to approa,ches to trains, see also 80 Ga. 19. 
 
 Passenger in side-tracked coach waiting to be taken by connecting road,, 
 is passenger of latter, whether with or without ticket, 89 Ga. 495. 
 
AND PRACTICE. 63. 
 
 Freight train witli passenger cab attaclied, stopping, conductor announc- 
 ing passengers not taljen on there but farther up track, one who did not 
 hear this and mounted and was hurt in getting on had no cause of action,. 
 92 Ga. 294. , 
 
 Complaint for Assaui,t by Conductor upon Passenger. 
 Georgia, Bibb County. 
 
 To the City Court of Macon : 
 
 A B brings this his petition against the Railroad, andi 
 
 alleges : 
 
 Pirst: (Allegation fixing Tenue.) 
 
 Second: (Allegation as to amount of damage claimed.) 
 
 Third: That on the — day of , 18 — , plaintiff was a pas- 
 senger on defendant's railroad from to , having paid his- 
 
 full fare to the conductor of defendant's train, and while ©n route 
 
 he was, at , a station on said road situate in said county of 
 
 Bibh, called out of said train by G D, the said conductor, who was 
 then and there defendant's agent, engaged in prosecuting defend- 
 ant's business of transportation as aforesaid, and acting within the- 
 scope of his authority as such conductor, and by said C D assaulted 
 and severely beaten. 
 
 Pourtb: (Detail injuries, etc.) 
 
 (Prayer for judgment and for process.) 
 
 In action against an employer for a tort committed by his servant, the- 
 employment and service must be proven; boy pushed from train as it moved 
 into depot by negro who came out from car and said he had charge of it, 
 such saying not sufficient to malce railroad liable for such negro's acts as its 
 servant, 46 Ga. 447. 
 
 It was error here to sustain demurrer to declaration for conductor's as- 
 sault on passenger, on idea that it failed to show that he was acting within 
 scope of duty, 60 Ga. 281; see also 94 Ga. 124. Railroad not being liable 
 where servant is not acting within scope of duty, was not liable here, where 
 brakeman threw rocks at boy and hat bystander, 94 Ga. 124. Homicide by 
 railroad agent while transacting railroad's business, company liable, 90 
 Ga. 125. Assault on passenger by conductor of Savannah Street Railway, 
 verdict for $2,000 upheld, 86 Ga. 314. Negro beaten by baggage master and 
 conductor, and made by latter to jump from moving train for fear of life, 
 company liable, 58 Ga. 216. Diligence of company shown here, and flag- 
 man's mashing passenger's fingers in opening door, accident, 89 Ga. 832. 
 Breach of contract to carry passengers is tort, being breach of a public duty, 
 89 Ga. 554. Violence by conductor to one who is on a train treating with con- 
 ductor for passage is actionable as a tort, and non-suit because no contract 
 of carriage shown, error, 69 Ga. 827. TOrts and crim-es of employees, 
 within scope of duty, company liable for, whether done by negligence or 
 voluntary, 72 Ga. 294, construing §§3031 and 3817 together; plaintiff was 
 passenger here in law; conductor on through freight may refuse passage. 
 
64 GEORGIA FORMS 
 
 but must do so civilly, 72 Ga. 294. With or without ticket, passenger no 
 right to remain on train when disorderly, 81 Ga. 485. Violence of conduc- 
 tor provoked by his violence, company not liable, lb. 
 
 $2,433.35 where conductor pushed passenger from moving train, upheld, 
 89 Ga. 721. In such a case, punitive damages need not be claimed eo nomine 
 in declaration, 82 Ga. 258. Assault by conductor on passenger, punitive 
 damages for, 90 Ga. 23. Previous slanders of conductor's sister-in-law 
 when not mitigation, 16. Sneers, looks and contemptuous gestures, when 
 not justify, /6. General or exemplary damages for brakeman's as- 
 sault on passenger, proper here, 75 Ga. 56, citing 68 Ga. 219, 224. 
 
 Railroad liable to passengers for violence from fellow passengers, 89 
 Ga. 554. Lady liurt by fight between twO' male passengers on street car, 
 non-suit error, 61 Ga. 215. 
 
 One not a passenger could recover where engineer maliciously blew 
 whistle to frighten his team, evidently because of previous difficulty with 
 plaifltiff, 60 Ga. 492. See also 94 Ga. 124. 
 
 Section 2. Carriers of Freight. 
 
 Declaration for Misdelivery, (o) 
 
 Georgia, Bibb County. 
 
 To the City Court of Macon : 
 The Amenoan Sugar Refining Company, a corporation com- 
 lilaining, shewetli: 
 
 (1) That the East Tennessee, Yirginia & Georgia Railway 
 Company was, at the times hereinafter named, a railroad corpora- 
 tion and a com.mon carrier, having an office and agent in said 
 county. 
 
 (2) That on the — day of , 18 — -, petitioner delivered to the 
 
 'New Orleans & Northeastern Railroad Company one hundred 
 barrels of sugar, the property of petitioner, to be transported on its 
 line of railway to its terminus and there turned over to the con- 
 necting carrier, the defendant in the action. Said shipment hav- 
 ing been consigned to Rogers, Jones & Moore, at Macon, Ga., un- 
 der a bill of lading issued by the above named initial carrier, a 
 copy of which said bill of lading is hereto attadhed, marked Exhibit 
 "A," and made part of this petition. 
 
 (3) The aggregate value of said shipment aforesaid was — dol- 
 lars. 
 
 (4) Shortly after the date above named, said shipment was 
 duly received for transportation under said bill of lading by the 
 defendant's company, and was duly carried by it to Maoon, Ga., 
 and the consignees aforesaid, when notified of such arrival, reject- 
 ed and refused to receive the same. 
 
AND PRACTIOE. 65 
 
 (5) Plaintiff was really tlie owner of said sugar wlien defend- 
 ant received it, tlie shipment having been made upon a fraudulent 
 order given by a broker without authority from the consignees 
 aforesaid, who did not order nor buy the sugar, nor consent to its 
 being shipped to them, and who disclaimed any right, title or in- 
 terest therein, and as above stated, refused to receive the same, 
 which facts were unknown to plaintiff until some time afterward. 
 
 (6) Upon the refusal of said consignees to receive said ship- 
 ment, it became the duty of defendant to notify plaintiff" of such 
 refusal and to hold the same subject to plaintiff's order, but defend- 
 ant, entirely disregarding its said duty to plaintiff as aforesaid, con- 
 verted and appropriated said sugar to its own use. 
 
 Wherefore petitioner prays judgment, etc., and that process do 
 issue, etc. 
 
 S. A. Reid, 
 Ellis & Jordan, 
 Attorneys for Petitioners. 
 
 (a) The foregoing declaration is based upon the interesting and notable 
 case of American Sugar Refining Company vs. McGehee et al., Receivers, 96 
 Ga. 27. 
 
 The main paint ruled in the Sugar Refining Company's case was that, 
 as the declaration alleges in the final paragraph, upon refusal of the con- 
 signees to receive the shipment, "it became the duty of defendant to notify 
 plaintiff of such refusal and to hold the same subject to plaintiff's order." 
 
 Delivery to a wrong person, though carrier imposed on, is a conversion, 
 14 Ga. 283; and carrier liable for full value of goods, reduced rate release 
 to conitrary notwithstanding, 93 Ga. 803, 808, distinguishing 91 Ga. 377, 
 28 Ga. 543, 34 Ga. 315, 68 Ga, 350. Carrier's responsibility ceases with 
 delivery at destination according to the directioin of the person sending, 
 or accoTding to the custom of the trade, §2279. 
 
 The law governing carriers of freighit as to the receipt and delivery 
 thereof, will be found very fairly briefed under §2279. 
 
 The writer's original plan as to this "section" or subdivision entitled 
 "Carriers of Freight," was to make it a fairly exhaustive manual upon 
 that subject, so far as the Georgia Reports were concerned, and the work 
 necessary for that purpose was in fact done; but the plan had to be aban- 
 doned in the interest of space. 
 
66 
 
 GEORGIA FORMS 
 
 BIIvIv OF LADING. 
 
 Received at- 
 
 New Orleans. La., 
 
 i8g—,by 
 
 ■^ New Orleans & Northeastern R. R. Co. from- 
 
 AMERICAN SUGAR REFINING COMPANY, 
 
 in apparent good order, the packages {co7itents unknown) mentioned below, to be 
 transported and delivered in like good order to their place of destination, subject 
 to conditions noted below : 
 
 MARKS AND CONSIGMVIENTS 
 
 R. J. * M., 
 
 Macon, Ga. 
 
 Rogers, Jones S; Moore. 
 
 ■- Via^ 
 
 E. r. V. ^ G. 
 
 Charges $_ 
 
 THE KATES OK FKEIGIIT. 
 
 CO 
 
 Classification according to 
 ra Freiglit Tariffs of tliis Road and 
 2* connections. 
 
 BETWEEN- 
 
 NO. OF 
 PACKAGES 
 
 100 
 
 .- SHALL NOT EXCEED 
 
 .c 
 
 c 
 
 3 D. 1st Class cts. per 100 lbs 
 
 *" 1st Class cts. per 100 lbs 
 
 o 
 
 IB 2d Class cts. per 100 lbs 
 
 a> 3d Class cts. per 100 lbs. 
 
 S) 4th Class cts. per 100 lbs. 
 
 en 
 
 J= 6tb Class cts. per 100 lbs 
 
 S ethClas? cts. per 100 lbs, 
 
 e' cts. per barrel 
 
 2 cts. per 
 
 o 
 
 .= Special cts. per 100 lbs. 
 
 DESCRIPTION OF ARTICLES 
 
 Bbls. of Sugar. 
 
 WEIGHT 
 
 Subject to Correction 
 
 OONDITIONS : 
 
 1. That the Freight and Charges thereon shall be paid by 
 the Consignee upon delivery of the same in lots or parts of 
 lots, aad -within twenty- fuur hours after their arrival at 
 their destination. 
 
 2. The articles agreed to be transported to points beyond 
 the lines of this Company may be delivered to connecting 
 lines for transportation to their destination, and that upon 
 such delivery the responsibility of this Company shall cease, 
 except as to guaranty of the rates of freight to be charged 
 thereon. 
 
 3. That this Company, and connecting lines, shall not be 
 liable for any breaJtage of glass or leakage of liquids, or for 
 any loss or injury arising from the perishable nature or 
 inherent defects of said packages or their consents. 
 
 4. That this Company and connecting lines shall be 
 responsible as warehousemen only, and not as common 
 carriers Jor the safety ot said packages and their contents 
 while in depot after arrival at their terminal stations. 
 
 5. Claims for loss or damage must be made at the time of 
 delivery of ihe goods to the consignee. 
 
 6. Double the rate in Bill of Lading will be charged on all 
 excess in weight over that given uy shippers. 
 
 And it is further agreed, that if the property described 
 herein is not removed from Warehouses or cars, by Consignee 
 within a rep,sonable period after its arrival at destination, 
 Mtorage charges, as are usually applicable at such point of 
 delivery, may be made and collected on the property re- 
 mainine: undelivered, and such demurrage charges made 
 and collected on loaded cars as the delivering road may 
 have established. 
 
 It is further agreed that such charges shall be lien upon 
 the property. 
 
 NOTICIi;.— In accepting tliiK Bill of Lading, the Shipper 
 or other Agent of the owner of the property carried, 
 expressly accepts and agrees to all its stipalations, ex- 
 cop ions and conditions. 
 
 IN WITNESS WHEREOF, Th". Agent hathajfflrmed to 
 
 Bill» of Ladi g of thii t nor and date^ one of which being 
 accomplished the others to stand void. 
 
AND 'PRACTICE. 67 
 
 Bills of Lading 
 Are important securities of commerce, 81 Ga. 221; nature and office of, 
 91 Ga. 385; how far negotiable, 81 Ga. 795; are symbols of property, 78 
 Ga. 574; tbougb. transferable so as to pass title to tlie property are not 
 in full sense negotiable paper, in fayor of tona fide assignees, 57 Ga. 410. 
 Assignee gets no greater rights tbaa assignor; -vybere assignor took bill 
 of lading from R. R. "A" with notice that the flour was not on "A's" line, 
 but in hands of R. R. "B" a connecting road, ihe could not recover from 
 "A" if "B's" delay due to armed mob, 81 Ga. 792. When a bill of lading is 
 attached to a draft drawn on a third person, it will be treated as security 
 for the draft,and neitlier title to the goods nor right to the bill of lading will 
 pass to the drawee until, as required therein, he receipts, or accepts and 
 secures or pays the draft as case may be, §3554. Carrier's custom to dis- 
 pense with production o'f bill of lading, and to deliver goods to holder of 
 receipts for freigtit charges, not affect shipper's rights as against tiona 
 fide purchaser from consignee who has had no actual consignment of the 
 bill of lading, 88 Ga. 504. Last carrier may require bill of lading before 
 delivery to consignee, 63 Ga. 745; certainly possessory warrant not lie, J6. 
 
 " In Good Okdbk." 
 
 Recital in bill of lading that melons "in apparent good order" means in 
 actual good order, 92 Ga. 699. See, generally, §2298 and notes, and also 
 the notes to the declaraJtion against a last carrier, below. 
 Marks and Consignments. 
 
 Marks on freight corresponding to those on bill of lading containing 
 name of consignee, stipulation exempting carrier from liability for goods 
 marked with initials or numbers only, ineffectual, wihere goods called for 
 by consignee were then in freight depot, though agent thought they were 
 not, 86 Ga. 203. Bill of lading to shipper's order indorsed by him in blank, 
 to secure draft on "A" cashed by bank, carrier no right to deliver to "A" 
 without bill of lading or/authority from holder thereof, 63 Ga. 745, 81 Ga. 
 221. 
 
 " Via." 
 
 Where a carrier undertakes a througli contract via specified route, 
 delivery to different route is conversion, 68 Ga. 623, 627. For this would 
 be a breach of the contract by misconduct, and every such breach ol such 
 a contract is a conversion, 26 Ga. 619: following Sto^ry on Bailments. 
 Where no dem-Emd on carrier and refusal by him shoiwn, verdict in trover 
 for plaintiff reversed, 14 Ga. 283. Ga. R. R. carrying goods billed via R, 
 & D. R. R. was a volunteer, 72 Ga. 655. 
 
 Freight Rates and Charges. 
 
 Freight bills shall contain items of freight charged, by some certain and 
 specific description, else not collectible, §2293. Bill of lading silent as to 
 rate of frei'git, law implies usual rate, 85 Ga. 346. Freight left blank, 
 amount contracted for shown by parol, 91 Ga. 377. Mistake in rating 
 below the sum fixed in schedule posted under interstate commerce act, not 
 prevent collection of true amount, 94 Ga. 775. Last carrier gets benefits of 
 reduced rate bill of lading, limiting liability, only when it is a through 
 bill (last carrier thus becoming agent of first), or when last carrier bills 
 shipment at the reduced rate, 94 Ga. 472. Shipment here destroyed by 
 fire, last carrier liable for full value, 76. Recital in bill of lading that 
 freight prepaid binds not only railroad issuing it but also connecting 
 railroad; bank to which bill of lading assigned iona fide for value could 
 
68 GEORGIA FOEMS 
 
 recover grain shipment in action of trover against latter railroad which was 
 holding shipment for freight charges, 96 Ga. 665. As to "through rates 
 and through proportions of rates and bills of lading founded thereon," see 
 the rate war case between the Seaboard and the W. & A., 97 Ga. 289. 
 
 Condition 1. 
 
 As to carrier's lien for freight charges, see §2287. Carrier Eiay retain 
 one of several carloads for total freight charges, 94 Ga. 636. Such lien 
 superior to consignor's right of stoppage in transitu, lb. Freight on car- 
 loads of melons due on arrival at destination, consignee cannot withhold 
 freighit until cars switched on to "team tracks," 94 Oa. 507. 
 
 Condition 2. 
 
 Railroad not bound to make through contract, 86 Ga. 253, 80 Ga. 195, 
 90 Ga. 500. Contract heire against liability for melons after delivery to 
 next carrier was valid, 80 Ga. 199. Carrier may, in a through contract of 
 shipment, limit its liability to injuries on its own line, 90 Ga. 500; of 
 course a mere receipt for goods, not signed by the shipper, is not a contract, 
 34 Ga. 315. Through contract made, subsequent delivery of bill of lading 
 signed only by railroad agent and wtiioh shipper never signed, not binding 
 on sihipper, 75 Ga. 609, citing 36 Ga. 532. On throug'h contract initial 
 carrier liable whole way, 45 Ga. 148; and subsequent carrier not, 38 Ga. 
 519; suit on the subsequent carrier's contract implied by law not supported 
 by proof of express through contract with initial carrier; after actual 
 receipt, in absence of express through contract, last liable for delay, 85 
 Ga. 500, or for loss, 53 Ga. 130. 
 
 Our court adopted the common law rule (8 Meeson & Welsby 421) in 
 45 Ga. 148, 38 Ga. 37, 519, 37 Ga. 103, 36 Ga. 635, viz.:thait "When a common 
 carrier receives goods to be transported beyond the terminus of Ms own 
 line, he undertakes to transport tTiem to the point of destination," and 
 is liable for loss occurring beyond his own terminus, 76 Ga. 599. §2298 
 does not change the common law liability of common carriers where there 
 was no througli contract by first carrier, express or implied, general or spe- 
 cial, it only gives the consignee a cumulative remedy against the last road 
 whicli he might not have had before, 76 Ga. 600. As to whether contract 
 a through contract, bill of lading and also evidence almnde is relevant, 
 76.; e. g., payment of all the freight charges to the first carrier, the way- 
 bill, etc., 32 Ga. 403. Held in 42 Ga. 642 that a contract will not be implied 
 but must appear to have been distinctly made. Held, 76 Ga. 601, 77 Ga. 380, 
 that contract may be implied. Under common law, in absence of through 
 conltract, carrier liable only for delivery in good order in reasonable time 
 to connecting carrier, and a charge making Central Railroad liable for 
 safe caiTiage of peaches through to New York was error here, 86 Ga. 686. 
 Ambiguity in bill of lading explanation of which threw light on whether 
 it was "through bill" explaiflable by parol, 91 Ga. 389. Bill of lading recit- 
 ing consignment to point beyond initial carrier's terminus, and naming 
 consignee, and consignor guaranteeing whole freight, is "through bill" 
 and binds initial carrier whole way, 91 Ga. 384, 390, 77 Ga. 412. Bill of 
 lading issued by initial carrier here was through bill, A. & W. Pt. Rd. vs. 
 Texas Grate Co., 81 Ga. 602. No relation between first and last carrier 
 as joint contractors, neither has impliecl authority from other to ruake 
 contracts in its behalf; first here was not agent of last but of shipper; 
 the rates made by first did not bind last carrier, and last was entitled ta 
 hold freight for its proper charges, and if during such detention damage 
 occurred, last carrier not liable, 85 Ga. 347. Where freight received is to 
 
AND PRACTICE. 69 
 
 be carried over connecting roads, in the original car la ■srhic'h it is Bhipped, 
 first road liable until it shows delivery of sudi oar to next, 39 G-a. 636. 
 
 See form for declaration against connecting road, below. 
 
 Condition 3. 
 
 Inherent defects relied on as defense, carrier must show itself without 
 fault, 92 Ga. 704. See also 12 Ga. 566. 
 
 Condition 4. 
 
 Generally, after arrival of goodB at destiniatlon, carrier's liability aa 
 insurer ceases and he becomes liable merely ais warehouseman, 46 Ga. 433. 
 But a general and uniform custom in a city to notify the consignee Is 
 binding on a carrier, 88 Ga. 814. Liability as carrier ceases and that as 
 wareihoiuseman begins, when, 95 Ga. 775, 53 Ga. 599. 
 
 Condition 5. 
 
 Limitation of liability unless notice given in stated time, void, unless 
 assemted to by shipper, 91 Ga. 382, citing 36 Ga. 532. Acceptance of goods 
 and payment of freight charges without complaint of damage does not 
 discharge the carrier, 55 Ga. 267. 
 
 Condition 6. 
 
 Demurrage chargeable though not stipulated in bill of lading, where 
 customer knew of the demurrage rule, and not material whether the ship- 
 ments are direct or "order notify," 88 Ga. 574, 5(6. Demurrage and stor- 
 age chargeable by rule, contract with station and soliciting agents not to 
 charge, in consideration of large shipment, not hindlnig on company, 91 
 Ga. 317. 
 
 Notice. 
 
 Entry on receipt given not limit liability, express contract necessary, 
 §2276; applied to stipulation in bill of lading here, 68 Ga. 350. iStipoilation 
 not expressly assented to (mere acceptance of bill of lading not being 
 enough), do not bind shipper. C. R. R. vs. Dwlght Manufacturing Co., 75 
 Ga. 609. General stipulation here not bind shipper, 68 Ga. 350; aliter, if he 
 sign the contract, 66 -Ga. 488. General liability not limited by stipulations 
 in through bill of lading not expressly assented to by shipper, 91 Ga. 383, 
 76 Ga. 597, 77 Ga. 412, 81 Ga. 610. 'Bill of lading executed in duplicate, 
 railroad agent signing one paper and shipper the other, the two papers are 
 treated as one document and are a binding contract, 90 Ga. 496; aliier, 
 goods shipped or beyond shipper's control when bill of lading accepted, 
 n.; aliter, as to mere receipt for goods, shipper signing nothing, 34 Ga. 315. 
 
 OVBKCHA.KQKS. 
 
 Overcharges due to innocent mistake of railroad company, interest does 
 not run until after demand, 83 Ga. 627. 
 
 Generally. — ^Prlor parol agreement to keep refrigerator fruit-car iced, 
 not admissible to vary contract signed by shipper before shipment, 90 Ga. 
 496. All prior conversations and stipulations 'wDth railroad agents are 
 presumed merged in bill of lading, 94 Ga; 22. Bill of lading silent as to 
 time of delivery, a reasonable time is presumed (§2282) as part of contract, 
 51 Ga. 390; and parol not competent to vary, 91 G-a. 382, 90 Ga. 496. Under 
 declaration alleging contract to deliver in specific time, reasonable time ir- 
 relevant, 91 Ga. 382. Amendable however, 16. Reasonable time is usual 
 time, 90 Ga. 85. 
 
 As to when the connecting carrier gets benefit of gtipulation In bill of 
 lading limiting liabirity in case of loss, 94 Ga. 472. 
 
70 GEORGIA FORMS 
 
 Where a sliipmeiit arrived, and consignee about same time received 
 bill of lading tlierefor, tlie bill of lading was held admissible, in suit 
 against the railroad, oiver oibjection that there was no proof of its exe- 
 cution, 86 Ga. 203. 
 
 Demurrer here 'to action for refusal to issue through bill of lading was 
 properly sustained, 82 Ga. 149. 
 
 Declaration Against Last Carrier; §2298. 
 
 [Based upon C. R. E. vs. Bayer, 91 Ga. n.=l.] 
 
 Georgia, Bibb County. 
 
 To the City Court of Macon: 
 
 The petition of Henry Bayer & Son respectfully Shows : 
 
 rirst: Tliat the Central Railroad and Banhing Company of 
 Georcfia is, and at the times hereafter named was, a railroad cor- 
 poration under the laws of said State, having an office and agent in 
 said county. 
 
 Second: Defendant has injured and damaged plaintiff in the 
 sum of $143.20, by reason of the following facts: 
 
 Third: On the 23d' day of January, 1891, at Charleston, South 
 Carolina, plaintiffs delivered to the Charleston and Sa/vannah 
 Railway Company a certain car-load of bananas, said car marked 
 and numbered N. T. P. d 0. No. Jf2322, to be delivered at Macon, 
 Ge'orgia, to petitioners' agent, A. M. Sewell. 
 
 Fourth: Defendant was the last of several connecting roads 
 over w'hioh said shipment was transported from, the said initial 
 point to said destination, and defendant received the goods as in 
 good order from its connecting road. 
 
 Fifth : The transportation of siaid car from Charleston to Ma^on 
 should not have occupied more than twi> days, whereas said car 
 was six days in transit, not reaching Maeon until January 29th, 
 1891, which delay occasioned the damage hereinafter set out. 
 
 Sixth: When said car did so arrive, the said bananas were in 
 bad order, great uumlbers of them being badly bruised, some 
 entirely rotten and worthless, and all of them more or less damaged. 
 
 Seventh: "When said oar did so arrive, the said bananas were 
 worth $212.75, but by reason of their daanaged condition 
 when they reached Macon, petitioners' agent was unable to sell 
 them for more than $69.55; whereby petitioners were damaged 
 $143.20. 
 
 "Wherefore petitioners pray judgment against defendant in the 
 sum of $143.20, and that process do issue requiring defendant to 
 appear at the next term of this court to answer said complaint. 
 
 Lamer, Anderson & Anderson, 
 
 Plaintiffs' Attomevs. 
 
AND PRACTICE. 71 
 
 Th.e case in 91 Ga. 115, upon whlcli the foregoing deolanation is based, 
 strikingly illustrates the meagermess of proof w^hicli may fill the measure 
 of prima facie care, in this class of actions. In that case it was held that 
 the bill of lading given by the initial company is not essential evidence; 
 also that from proof that the car was shipped from Chiarleston and 
 delivered to consignee on the Central Railroad's track at Maoon, the jury 
 might infer that defendant (the Central) received the goods from the con- 
 necting carrier and transported them over its own line, and was in pos- 
 session of them when the consignees received them (upon which point 
 said case is followed in 92 Ga. 699) ; also, that proof of the Central's having 
 received and carried the goods authorized the presumption that they were 
 "in good order" when received, nothing to contrary appearing. (This 
 last point is siimply a reiteration of 66 Ga. 251; for a collection of the 
 cases on this point, see 92 Ga. 701, which has been followed In 96 Ga. 429.) 
 
 Action against last carrier for damages for delay in carrying melons, 
 96 Ga. 429. But tlie damage must toe to the goods, in order for §2298 to 
 apply; damage to the plaintiff from delay in delivering fertilizers, during 
 which delay the market went down, did not authorize recovery against 
 last carrier, 85 Ga. 497; followed, 95 Ga. 777. Damage to fruit analagous 
 to act of God, and railroad must negative concurring negligence, 92 Ga. 704. 
 
 The cotmecting carrier is liable in tort for unreasonable delay, its duty as 
 to transportation being a duty it owes to the public independently of con- 
 tract; and this is true though goods shipped under through bill of lading 
 issued by an initial oo'mpany wMcJi had no contract with defendant con- 
 necting line, and although said defendant had no contract with the ship- 
 per; Johnson vs. E. T., V. & G. Ry., 90 Ga. 810. (A careful study of John- 
 eon's case is well worth the -while.) 
 
 "When this case wasiere before (85 Ga. 497), the plaintiffs, had nothing 
 to rest upon but this contract and its breach." "The suit upon the con- 
 tract having been dismissed, and the present suit brought for the tort, we 
 hold that the plaintiffs can recover if they show the defendant to have Men 
 in possession of the goods, and that there was unreasonable delay in delivering 
 them, and that they were damaged thereby," 90 Ga. 814. 
 
 On through contract (live stock), damage done by last carrier through 
 negligence and inattention, owners not confined to suit on the contract 
 against first, but may sue latter either in tort or ex contractu, at election, 
 71 Ga. 65, 68 Ga. 805, 67 Ga. 212. 
 
 If the statutory liability under §2298 asserted, defendant should be put 
 on notice, 81 Ga. 523. At common law, defendant could show that goods 
 were injured by previous carrier, or take advantage of exceptions reserved 
 in sihipper's contract with carrier, lb. Shipment Boston to Atlanta, 
 limitation of liability against flre, freshets, weather, rust, etc., though 
 invalid in Georgia, could be used here, but no. limitation against liability 
 for negligence, valid, 16. 
 
 Common law and statutory liability different, 78 Ga. 239. Amendment 
 here properly rejected; the action having been originally brought on 
 the common law liability, evidence for defendant was admissible to show 
 that the damage occurred on a connecting road, before goods reached de- 
 fendant, 83 Ga. 443. 
 
 Last carrier may siow tliat though freight in ap.parent good order. It 
 was in fact damaged before it was ever sJiipped, 92 Ga. 703; see also 91 
 Ga. 382, 57 Ga. 336; or, may show that damaged after shipped without 
 fault in it, 92 Ga. 699. Last carrier cannot be held liable for loss on 
 
72 GEOEGIA FORMS 
 
 another road, 69 Ga. 622; 'so to charge was proiper, where it was doubtful 
 whether goods sued for were ever received by the road sued, /&. Where 
 declaration contained no allusion to any bill of la/ding, or to any receipt 
 of goods from a connecting railway, the action was not founded upon 
 §2298, and that section should not have been given in charge, 79 Ga. 607. 
 For other decisions, see notes to §2298. 
 
 ARTICLE 6. 
 
 In.juries by Raileoads. 
 
 The accepted logical division of the subject of "Injuries by Railroads," as 
 is well known, classifies the legal status of the victim of the injury, accord- 
 ing as he may be a passenger, an employee, or neither of these. The last of 
 these subjects was disposed of, somewhat arbitrarily, when the blow-post 
 law was reached. Article 2, ante. This was done because the Gravitt case 
 furnishing a tempting nucleus about which to arrange the law of injuries to 
 "third persons," or "strangers." Such injuries to passengers as do not 
 properly come within the domain of railway accident law as commonly 
 understood, e. g., wrongful expulsion, assaults upon passenger by train- 
 hands, boarding and alighting cases, etc., have been disposed of under 
 Carriers of Passengers, ante, Article 5, Section 1, thereof. Therefore, there 
 have only been reserved for this article a passenger case growing out of a 
 railroad wreck, and a typical employee case. 
 
 Complaint by Passenger for Derailment of Train. 
 Georgia, Telfair County. 
 
 To the Superior Court of said Cownty: 
 
 A B brings this his petition against tlie Southern Railway 
 Company, and allegea: 
 
 Eirst: Defendant is a railroad corporation and a carrier for 
 hire, and has an office and agent in said county. 
 
 Second:. Defendant has injured and damaged your petitioner 
 in the sum of dollars, by reason of the follomng faots, to wit: 
 
 Third: On the 8th day of March, 1895, the defendant, in con- 
 sideration of dollars paid to it by petitioner, undertook and 
 
 promised to transport 'him -with due care and safety from Macon, 
 Georgia, to Jacksonville, Florida, and petitioner, in pursuance of 
 said contract, became and was a passenger upon a train of defend- 
 ant bound for Jaclcsonville. Defendant did not transport peti- 
 tioner safely 'as it undertook and agreed to do, but on the contrary, 
 at a station called Scotland, on the line of defendant's road, said 
 train was derailed, and the sleeping oar on which petitioner rode 
 was overturned, injuring and damaging petitioner as hereinafter 
 raore fully set forth. 
 
AND PKACTICE. 73 
 
 Fourth: At Scotland there was a- side track on which was a 
 freight train; and the train on which petitioner was a passenger, 
 running at a great rate of speed, to wit, thirty to forty miles an 
 hour, ran into the side track and collided with said freight train 
 which was thereon, instead of running along the main track as it 
 should have run. The coupling of the day coach and the first 
 sleeper was broken, and the cairs overturned as stated. 
 
 Fifth: Petitioner shows that defendant was negligent in run- 
 ning said train at a grieater rate of speed than six miles per hour 
 past said switch, contrary to the rules of defendant. 
 
 Sixth: Defendant was further negligent in running over the 
 crossing, which was within fifty yards, at a greater rate of speed 
 llian six miles per hour, contrary to the law of the State. 
 
 Seventh : Defendant was further negligent in running through 
 a town which is incorporated at said rate of speed, and over 
 switches and a complication of tracks. 
 
 Eighth: Defendant was further negligent in running at said 
 rate of speed in that an ordinance of the town of Scotland forbids 
 the running of trains throiigih said town at a greater rate of speed 
 than four miles per hour. 
 
 Ninth: Petitioner further shows that the switch connecting 
 the side track and the main track was defective, in that the staple 
 holding it was broken, leaving only a very minute fraction of an 
 inch of iron to hold it, which the force of a train would break. 
 
 Tenth: Said switch was not properly set nor fastened, and if 
 said train passing over the track did not break the staple at the 
 fracture stated, it was left so that said train might run into said 
 side track. 
 
 Eleventh : The road at said place was not ballasted nor in good 
 condition, causing the track to be torn up and the train to be de- 
 railed. 
 
 Twelfth: Your petitioner further shows that defendant was 
 negligent in that the engineer did not put on the air brakes, nor 
 reverse the engine, so as to stop the train, nor was he looking out to 
 guard against accident, nor was the fireman, nor were the other 
 employees on said train. 
 
 Thirteenth: Tour petitioner further shows that the air brakes 
 on said train were out of order, and no sand was put on the track 
 by the engineer to stop the train. 
 
 Fourteenth: Your petitioner shows that the sleeper upon which 
 he was, turned over and caught on fire. To escape being burned. 
 
74 GEORGIA FOEMS 
 
 and to get out of the wreck, he had to break through the glass of 
 the sleepiBg car and was terribly cut in so doing. 
 
 Fifteenth : By reason of said car turning over in said accident, 
 as narrated (detail injuries). 
 
 Sixteenth: TQie baggage car on the train on which petitioner 
 was a passenger was wrecked in said accident, and petitioner's bag- 
 gage therein was damaged dollars. 
 
 Seventeenth: Your petitioner further shows that (detail na- 
 ture of errand to Jacksonville, and amount of loss by failure to 
 fulfill same) the nature of plaintiff's erramd aforesaid to said city 
 of Jacksonville was known to defendant, and said contract of trans- 
 portation aforesaid was made in contemplation thereof, and with 
 especial reference thereto. 
 
 Wherefore, etc. 
 
 Glenn, Slaton & PhiUpps. 
 
 Petitioner's Attorneys. 
 
 "A carrier of passengers is boamd to extraordinary diligence on belialt 
 of himself and his agents to protect the lives and persons of his passen- 
 gers. But he is not liable for injuries to the person after having used 
 such diligence." §2266. 
 
 Those wiho -will use this hook, may ask why the declaration by an 
 employee (beloiw) is so elaborately annotated, while the foregoing declara- 
 tion is not briefed at all. The reply is, that after this article had been 
 actually put in type, the writer was confronted with an imperative neces- 
 sity to eliminate some part of it, in the interest of the many imiportant 
 subjects which remain to he dealt with; and so, considering the probable 
 wishes of the profession which he is endeavoring to serve, decided to 
 dispense with the notes to the foregoing fO'rm. 
 
 Complaint for Injury to Employee in Coupling. 
 
 [See Ceatral E. R. vs. Rj les, 84 Ga. 420.] 
 
 Georgia, Bibb County. 
 
 To the City Court of Macon : 
 A B brings this his petition against the Central of Chorgia 
 Railway Compa/ny, a corporation under the laws of said State, hav- 
 ing an office and agent in said county, and alleges : 
 
 1. Defendant has injured and damaged your petitioner in the 
 sum of five thousand dollars by reason of the following facts: 
 
 2. On the — day of ■ — — , 18 — , your petitioner was in the 
 employ of defendant as a train hand, upon a freight train kno-wn as 
 train No. 39, his principal duty being to couple cars. 
 
 3. On said day it became his duty to couple to said train ITo. 
 39 five loaded cars which were standing upon a siding situate at 
 •, in said county. 
 
AND PIJAOTIOE. 76 
 
 The engineer was ordered to back 'his engine with twelve cars 
 attached, to the cars upon the siding, 'and it Dhen became the duty 
 of the defendant to provide a looikout -and guard so as to signal to 
 the engineer, informinig him of liis proximity to said five cars 
 aforesaid, so that he could regulate the speed proper for the safe 
 coupling of said five cars. But defendant neglected his duty in 
 the premises and failed to provide such lookout or guard, and in 
 consequence thereof, the engineer backed the cars attacfhed to his 
 engine at a speed of ten. miles an (hour, so that when plaintiff came 
 to make the coupling, he was uniaible to do so without danger to 
 himself, w'hich fact was not known to him xmtil after the injury 
 herein set out. 
 
 4. Plaintiff had no means of determining the rate of speed at 
 which the train was moving, nor did he know or believe that the 
 coupling could not safely be made to a train moving at that rate 
 of speed. He went in between the cars at the proper time to 
 make the coupling, and believing that the proper signals would 
 be given to the engineer by the defend'anit through its other ser- 
 vants or agents then and there employed, proceeded to make said 
 coupling, wihen the moving train collided with said five stationary 
 cars with such force and rapidity that, without any fault on the 
 part of the plaintiff, his right hand was caught between the bump- 
 ers, and crushed and miangled, as more fully stated herednafer. 
 
 5. Had the proper signals been given, w'hich plaintiff had a 
 right to expect would be :given, so that the engineer could have reg- 
 ulated the speed of his train to the proper degree, plaintiff could 
 have performed said coupling with safety to himself. 
 
 6. The injury was occasioned by the fault and negligence of 
 defendant as aforesaid and entirely without fault wbatsoever on the 
 part of plaintiff. 
 
 (Detail injuries, including pain, permanent injury and disfig- 
 urement, expenses incurred, etc.) 
 
 Wherefore (prayer for judgment and for process). 
 
 Dessau & Bartlett, 
 Petitioner's Attorneys. 
 
 As to injury causing deatli, including measure of damiajges for lio'inicide 
 and tlie use of the life tables, see form under §3828 hereinafter. 
 
 The foregoing form is based upon a declaration drawn by Messrs. Dessau 
 & Bartlett, of the Macon bar, in a case which may fairly be termed a typical 
 coupling casualty, and in which a verdict against the railroad company for 
 $5,000 was upheld by the supreme court; see 84 G-a. 420. 
 
 Track used in common by two railroads for terminal facilities is track of 
 
76 GEORGIA FORMS 
 
 each user; proprietary company is not liable to its own employees for 
 negligence of the employees of the other railroad as it would be for the 
 negligence of its own employees; redress is against co-user, 79 Ga. 489; in 
 49 Ga. 355 the negligent company was using the franchise as well as the 
 track of the proprietary company, lb.; in 58 Ga. 461 and 66 Ga. 746 the in- 
 Jury was to a passenger, 16.; in 62 Ga. 685 the negligence was by an em- 
 ployee of the proprietary company and the injury was to an employee of a 
 telegraph company, who was engaged in putting up poles along the right 
 of way, J&. 
 
 Where train of railroad "A," under "A's" supervisor, was proceeding on 
 track of defendant, who lent one of its employees as a pilot, such "super- 
 visor" was not an employee of defendant to bind it by negligence, but was 
 employee of "A"; defendant only owed him safe track as a passenger and 
 not liable for defect in "A's" trucks, 79 Ga. 235. In 49 Ga. 355 the fireman 
 on train of defendant was hurt by that train colliding with train of an- 
 other railroad, which defendant had allowed to come upon its track, lb. 
 And it was not ruled that if any of the Georgia's employees had been 
 injured the defendant (the M. & A.) would have been liable, but only 
 that the M. & A. was liable to third persons and the public for allowing 
 the Georgia's train to come upon its franchise. 
 
 Railroad "A" sending its engineer on its engine to Jiaul for railroad "B" 
 over "B's" line, not liable for bad condition of "B's" track, nor for non- 
 adaptation of "B's" track to said engine, it not being alleged that "A" knew 
 of such bad condition or want of adaptation, 81 Ga. 136; analagous to case 
 of a farmer sending his hired man to plow for his neighbor, whose field 
 contains sink holes, or soil unsuited to said plow, lb; see also Galloway 
 vs. W. & A. R. R., 57 Ga. 512. 
 
 Respondeat Superior. — The doctrine of respondeat superior, the ancient 
 doctrine upon wliich all liability of railroads in tort is founded, is thus 
 stated in our Code: "Every person shall be liable for torts committed by 
 his * * X servant by his command, or in the prosecution and within the 
 scope of his business, whether the same be by negligence or voluntary," 
 §3817. 
 
 Independent Contractors. — But if the "superior" must respond for the 
 torts of his agent as provided by §3817, it becomes material often to deter- 
 mine whether the relation exists, for there can be no liability upon the 
 part of the principal for the acts of Ms agent, "when the latter exercises 
 ■an independent business, and is not subject to the immediate direction and 
 control of the employer," §3828. Ordinarily, construot'ion oo.mpany liable 
 for defects in road-bed as independent contractor, 90 Ga. 829. The fact 
 that its work is to be done in public street will not vary the rule, and 
 ience street railroad not liable here, rails loosely laid by contractor, 87 
 Ga. 756. The following, according to 87 Ga. 168, are exceptions to the rule 
 laid down in §3818, above cited, and the principal remains liable to third 
 .I>ersons for acts of an agent exercising an independent business wherever 
 (1) the work is wrongful in itself, or (2) obviously dangerous, or (3) where 
 the wrongful act violates the express contract of the employer, or (4) his 
 statutory obligations, see 71 Ga. 506, or (5) where the employer retains con- 
 trol of the work, see 79 Ga. 588. Railroad furnishing to contractor an en- 
 gine and a fireman therefor, continues liable to such fireman ks before, 90 
 Gra. 829. Employer not responsible for torts of independent employee, e. g., 
 trespass of employees of a sub-oontractor, 81 Ga. 395, citing 79 Ga. 588. 
 Jlailroad not liable for injuries sustained by laborers in employ of con- 
 
AND PRACTICE. 77 
 
 tractor, thougli it may have furnished implements and materials, 46 Ga. 417. 
 
 Liability for Negligence of Co-Employees. — Under the general law of mas- 
 ter and servant the master is not liable to one servant for injuries arising 
 from the negligence or misconduct of other agents about the same business, 
 §3030, 93 Ga. 62. Unless such negligence amount to a crime, 66 Ga. 145, 
 68 Ga, 839. The rationale of this doctrine is thait public policy requires 
 that each one of a number of persons employed in the service should see 
 that every other person employed in the same service does his duty, and 
 further that the want of recourse on the principal will not only make each 
 employee more careful himself, but will induce Mm to stimulate others to 
 like diligence, 1 Ga. 199. But the liability of railroads and druggists rests 
 on other grounds, 70 Ga. 435. Liability of lumber company chartered by 
 superior court and authorized incidentally to operate engines on tram- 
 roads, governed by general law of master and servant; not liable like rail- 
 road for injury to co-employee, 93 Ga. 54. When it would be estopped to 
 set this up, 16. Track hand carried to and from work upon a train of 
 his master is a fellow servant of engineer and fireman in charge of that 
 train, 80 Ga. 427, 83 Ga. 343. The latter case was a tram-road case and 
 very closely resembles 93 Ga. 58. 
 
 In South Carolina common law rule as to general law of master and ser- 
 vant applies to railroad, and brakeman injured there by negligence of 
 engineer and conductor could not recover here; declaration properly dis- 
 missed on demurrer, 91 Ga. 36. 
 
 Conductor not fellow-servant with brakeman, 97 Ga. 690. 
 
 In contemplation of the common law rule thait master not liable for tort 
 of fellow servant, the general manager here was the alter ego of the rail- 
 road, and his negligence was the master's negligence; a fellow servant is 
 one employed about the same work with the servant injured, and whose 
 negligence caused the injury to the servant complaining, 77 Ga. 214, 75 Ga. 
 718. "See 30 Ga. 146, 150, In which Judge Stephens takes a philosophic view 
 of this question," 77 Ga. 214. 100 U. S. 214 is "a learned and able opinion 
 and is absolutely decisive of this question," /&. It is subjection to the same 
 general control, coupled with an engagement in the common pursuit that affords 
 the test, and unless the two elements concur, there can be no common ser- 
 vice, which disentitles the employee under the controi of one master from 
 recovering for injuries received t'hrough the negligence of a servant under 
 the control of another master. Wood's Master and Servant, cited approving- 
 ly, 93 Ga. 57. Hands on construction train are fellow servants of each other 
 and of engineer and boss, lb., 80 Ga. 433. Decision in 53 Ga. 12 that track 
 raiser was not, doubted, 76. 
 
 Wadley, superintendent of State road, and a fireman on the same road 
 were once held fellow servants of the State, so that the fireman under the 
 general law of master and servant could not recover, 15 Ga, 357. But this 
 was further than this court has since gone, 93 Ga. 60. 
 
 A Georgia railroad engineer injured while on a special mission over 
 W. & A. R. R., by negligence of a regular W. & A. employee on a regular 
 W. & A. train, was held not a fellow servant of such regular employee, 30 
 Ga. 146. Approved 77 Ga. 214, 78 Go. 751. Railroad engineer not fellow 
 servant of general manager, Krogg vs. A. & W. !Pt. R. R., 77 Ga, 214, supra; 
 see also 75 Ga. 718. 
 
 As above stated, the old common law rule exempting the master from 
 liability of one servant for the negligence of his fellow servant, was based 
 upon the idea that public policy required that persons laboring in and 
 
GEORGIA FORMS 
 
 about the same business should be stimulated to influence each other 
 toward the exercise of diligence, 1 Ga. 199. But as railroads have many 
 employees who cannot possibly control those who should exercise care 
 and diligence in the running of trains, they liave by statute been made 
 liable to their employees as to pagsengers for the negligence of co-em- 
 ployees, §2297. See also, in this connection, 30 'Ga. 146. 
 
 Formerly, when a railroad went into tb^e hands of a receiver, it shedded 
 its liability to its employees for the negligence of co-employees, 56 Ga,. 
 376, 55 Ga. 481, 97 Ga. 152, 98 Ga. 306. But by the act of 1895 (§2324), intro- 
 duced in the house by Mr. Fouche, of Floyd, this shedding process was 
 checked. 
 
 "The employees protected by §2297 Include all who fall witbin the 
 descriptive words, cannot possibly control those who should exercise care 
 and diligence in the running of trains; whether they may or may not be 
 properly classed as fellow servants of the train employees," 93 Ga. 61. The 
 case in 53 Ga. 12, where a track raiser of the defendant was killed in dis- 
 mounting from construction train, did not hold that deceased was not fel- 
 low servant of the train crew (so as to be barred under the general law 
 of master and servant from recovering from their negligence), 93 Ga. 61. 
 And 56 Ga, 196 did practically hold that such a person was such a fellow 
 servant and could recover, 93 Ga. 62. 
 
 A railroad is liable to its employees for negligence of co-employees, 
 whether connected with running of trains or not, 90 Ga. 574, 73 Ga. 499, 
 86 Ga. 320; e. g., for injury from fall from ladder in car shops, occasioned 
 by co-employee, 95 Ga. 301; to switchman for injury by laborers Who were 
 carrying iron from one point in yard to anoither, 54 Ga. 509. 
 
 Only distinction made in §2323 between an employee so injured and 
 other persons injured, is that employee must be wholly blameless to au- 
 thorize recovery, 54 Ga. 509. This brings us to a consideration 
 
 Of Prima Facie Case for Employee and Cognate Matters. — To recover, 
 employee must be without fault, §2323. Employee's .Siuit, essentials to 
 recovery, onus, 64 Ga. 635; prima facie case, rule stated, 83 Ga. 587. De- 
 fenses, 76. Declaration of brakeman on train which telescoped a train 
 standing on side track set out cause of action here, and was not demurrable 
 as showing negligence in him, 90 Ga. 265. 
 
 In 95 'Ga. 686, a suit by an employee, the trial judge obarged that in 
 order to entitle plaintiff to recover two things were necessary, viz.: He 
 must show negligence on company's part, and freedom from fault on 
 his own part, and the Supreme Court, in reversing this as error, reiterate 
 the rule laid down by Judge Bleckley in 58 Ga. 489, and cite 80 Ga. 521, 
 77 Ga. 434, 89 Ga. 602, 85 Ga. 473. 
 
 Employee connected with act which injured him must show, in addition 
 to injury, either that he was entirely free from fault, or that he was injured 
 by the negligence of a co-employee, 95 Ga. 305; it was therefore error in 
 such a case to give in charge the section of the Code (2321) providing that 
 where injury is shown presumption arises against company, 16. Upon 
 proof that injury caused by railroad's negligence, onus shifts to defend- 
 ant to prove that it was not negligent or that plaintiff was, 80 Ga. 521. 
 If it establishes either proposition, plaintiff cannot recover, 58 Ga. 485. 
 Employee suing for injury from negligent performance of an act in wMoJi 
 Jie participated has not made prima facie case without proving himself free 
 from fault or company at fault, 69 Ga. 348, 85 Ga, 472; aliter, if unconnected 
 with act causing injury, 54 Ga. 509, 59 Ga. 436; e. g., brakeman knocked 
 
AND PEACTICE. 
 
 off car top because "tell-tale" of bridge had been neglected, 91 G-a. 679; 
 see also 63 Ga. 173, 60 Ga. .119. Prima facie case, rule stated, 56 Ga. 586. 
 According to tbe case just cited, there are two classes of employee cases, 
 e. g., 53 Ga. 488, where plaintiff participates in act which caused the injury, 
 and, e. g., 54 Ga. 509, where the employee is passive, and the particular act 
 from which injury results is performed wholly by other servants of the 
 master. Both tlie case in 53 Ga. and that in 54th may be found worthy 
 to stand as permanent rules of decision, says the opinion in 56 Ga. B86. 
 On the same footing with 54 Ga. 509 stands 91 Ga. 679, where brakeman 
 knocked off car roof by bridge, he failing to dodge because "tell-tale" de- 
 fective. Presumption that employee is without fault arises only where he 
 is wholly disconnected with duties about the particular business in which 
 he was hurt; when engaged in the duty in discharging which he was hurt, 
 must show himself without fault before onus shifts, 58 Ga. 107, followed 
 91 Ga. 385; how far negiotiable, 81 Ga. 795; are symbols of property, 78 
 with this whole subject, and hence the citations here made are not ex- 
 haustive. In car-coupler's suit here. Held, court erred in charging that 
 the burden is on the plaintiff, not only to show himself blameless about 
 the catastrophe, but to show defendant negligent; for the moment the 
 plaintiff proves either, the legal presumption proves the other until rebut- 
 ted, 71 Ga. 649. Plaintiff closing on proof of no contributory negligence, 
 may rebut defendant's proof of no negligence on its part; 81 Ga. 580. 
 
 Of Negliyenae Defeating Recovery, and Cognate Matters. — Company may 
 defend by showing employee at fault or itself without fault, 94 Ga. 458. 
 It not being freight conductor's dnty ito couple cars (except in emergency;, 
 verdict against comipany was erroneous here, for plaintiff was not free 
 from fault, 53 Ga. 630. 
 
 Oar-oo'upler's case properly nonsuited here, 56 Ga.274. Employee violating 
 rules, negligence defeating recovery by widow, 83 Ga, 89. "Indirect sui- 
 cide gives no title to post mortem reward," 77). Negligence of employee 
 in knowingly assisting to carry train over unsafe track defeated recovery 
 here, 57 Ga. 513. Rule prescribed by employees for a common superior, 
 one not excused for violating it by orders of another ; engineer not excused 
 for running contrary to schedule by orders of conductor; 59 Ga. 73, cited 
 87 Ga. 104. Ordinarily, however, in absence of rule from superior, train 
 crew are subject to conductor, fellow servants with each other, but not 
 with conductor who represents the company; 87 Ga. 105, citing 80 Ga. 436; 
 non-suit error, 87 Ga. 105. Coupling without a stick, not negligence defeat- 
 ing recovery here, 90 Ga. 630. Where plaintiff attempted to mount the en- 
 gine by steps, no recovery, 85 Ga. 197; or by jump from ground intending 
 to light upon narrow rim of engine, 87 Go. 379. Upon the question of the 
 engineer's diligence in looking out for defects in track, jury may consider 
 his other duties, 87 Ga. 402. 
 
 Custom as to coupling inadmissible to excuse negligence, if such custom 
 be obviously dangerous, 87 Ga. 374; see also 71 Ga. 407(14). 
 
 Negligence of employee alleged in particular case, Ms general character 
 for prudence or recklessness not relevant, 94 Ga. 110, citing 92 Ga, 188; 
 distinguishing 82 Ga. 579. Negligence of engineer, proceeding with train 
 on conflicting signals was, and verdict for railroad proper, 89 Ga. 541. 
 Employee descending ladder without testing it, whether negligence for jury, 
 91 Ga. 28. Verdict $700, sustained, 16. When employee shows that he was 
 without fault, company need only show ordinary care, not bound to show 
 ■"how it happened," 95 Ga. 306. Employee's duty to avoid consequence of 
 
80 GEORGIA FORMS 
 
 negligence if he can, §3830. To recover lie must be without fault, §2323; 
 must extricate himself from peril if he can, 83 Ga. 539. 
 
 Diligence of employee (fireman) in keeping drowsy engineer awake, too 
 much restricted here as to time, by the court's charge, 82 Ga. 471. If em- 
 ployee immediately or remotely, directly or indirectly, contributed to 
 injury, no recovery, 80 Ga. 433-4. §2323 means not absolutely faultless, 
 but faultless so far as regards having in any way contributed to the injury; 
 allowing passenger on engine did not defeat engineer's recovery; C. R. R. 
 vs. Mitchell, 63 Ga. 182. The Mitchell case is the leading case upon this 
 subject. It cites a large number of decisions and lays down the following 
 rule as deducible from them: 
 
 "Before an employee can relieve himself of the legal consequences of 
 violating any rule of the company whatever, no matter how disconnected 
 it may appear to be with the disaster which damaged him, he must show 
 that his violation of the rule did not contribute to that disa^er." See also. 
 70 Ga. 674. 
 
 Charge that unless it was impossible for the car-coupler' to extricate his 
 hand without injury, no recovery, error; so, charge that plaintiff must 
 be "blameless," without adding "about the business which caused the in- 
 jury," 71 Ga. 648. 
 
 Post too near street car track, negligence; but not negligence here rela- 
 tively to employee killed while leaning out, 96 Ga. 819. 
 
 Engineer leaning out of cab to look at hot journal, struck and killed 
 by post too near track, contributory negligence defeated recovery by widow, 
 92 Ga. 723. Employee hit by mail crane in mounting train as it moved oft, 
 non-suit proper here; 88 Ga. 210. Wood passer leaning out too far struck 
 by water tank, verdict against company, reversed, 61 Ga. 586. Boss of hand; 
 oar contributed to injury here, and verdict for company proper, 61 Ga. 590. 
 Plaintiff here was dhargeaible with knowledge of the defective condition 
 of the hand-car, 58 Ga. 485. 
 
 Negligence of company was inferable where employee was knocked' 
 from too high car by bridge here, and non-suit error, 79 Ga. 495. 
 
 Employee injured by falling in pit, when must be blameless, and when- 
 contributory negligence not entirely defeat recovery, 69 Ga. 715. Yard 
 employee run over at night, non-suit here was error, 95 Ga. 547. Yard^ 
 employee run over, recovery sustained, 93 Ga. 259. Yard hand run over 
 and killed by a freight car negligently "kicked" back; dismissal on demur- 
 rer was error, 93 Ga. 816. 
 
 Contract Waiving Claim for Injury.— 'Ws.iYer of right to sue valid as to- 
 injuries not arising from criminal negligence, 50 Ga. 465 (1873), 52 Ga. 461 
 (1874); see also 57 Ga. 512; but act 1876 makes any negligence resulting in 
 injury criminal, hence right to sue for, since then, not waivable, 72 Ga. 48. 
 See §115 of Penal Code. 
 
 Defective J/a-cftiner?/.— Knowingly using, defeats recovery, 55 Ga. 133-^ 
 Applied here to car-ooupler, 50 Ga. 465. Orders no excuse, 55 Ga. 279. 
 See also 58 Ga. 486 and 70 Ga. 566. 
 
 Employee knowing of dangerous character of tool, yet using it, cannot 
 recover, 68 Ga. 699, 70 Ga. 568 (nor if ought to have seen, 70 Ga. 674), nor 
 is command of sufperior employee an excuse, 74 Ga. 65. Knowledge or rea- 
 son to know of defectiveness of maohineiy, necessary to make company 
 liable, 70 Ga. 674. Company bound to furnish safe tools, but if' employee, 
 aware of dangerous character thereof, continue to use no redress 74 
 Ga. 64. 
 
AND PEACTICE. 81 
 
 Knoiwledge that the machinery ie defective is necessary to make the 
 employer liable, under the general la-w of master and servant (citing 
 Wood), 83 G-a. 75. And where a track-hand was hurt, not by the negli- 
 gence of any other employee nor by the running of cars or machinery, but 
 by a defective hammer in his own hands, a verdict in his favor was error, 
 no knowledge of the defectiveness of the hammer having been brouglit 
 home to the company; the 'presumption against the company which §2321 
 contemplates did not apply, 83 G-a. 70. 
 
 Brakeman not skilled mechanic hurt here by rachet wheel, 74 Ga. 66. 
 In 58 Ga. 485, plaintiff was section master and skilled, and besides had 
 notice of defective condition of the hand-car, 16. For patent defects in 
 machinery employee cannot recover, 58 Ga. 485. Aliter, if latent, 90 
 Ga. 836. 
 
 "Cold chisel" properly used reasonably safe, employee without fault hurt 
 by improper use by co-employee, in unforeseen manner, contributory negli- 
 gence not in case, 90 Ga. 657. In 83 Ga. 70 the defect in the tool was 
 latent, here "frazzled" condition of "cold chisel" was patent, 90 Ga. 662. 
 In 80 Ga. 262, the swage was in average condition and plaintiff was merely 
 a visitor to the shop, 90 Ga. 662. Negligence of brakeman, knowing that 
 brake not in proper condition, defeated recovery here; non-suit proper, 88 
 Ga. 225. Knowingly working when supply of hands insufficient, 92 Ga. 77, 
 or with "green hand," 92 Ga. 84. 
 
 Emergencies as Affecting Right to Recover. — Greater diligence demanded 
 when danger greater, 84 Ga. 420, but state of emotions allowed for, 83 Ga. 
 674. Jumping by engineer to save life, rule stated, 64 Ga. 635, 74 Ga. 748-9. 
 ■Eulogy on Engineer, 74 Ga. 748; see also 30 Ga. 152. Principle same if 
 instead of jumping to ground employee Jumps, so to speak, to another part 
 of train, 74 Ga. 738; see also 92 Ga. 658. If danger which induces the jump 
 attributable to negligence of co-employee, and peril imminent, recovery 
 proper, 74 Ga. 738, 748 et seq., 24 Ga. 356, 92 Ga. 660. Fireman hurt by 
 jumping from engine to avoid collision, recovery sustained, 93 Ga. 244. If 
 an emergency required an employee's being In dangerous place, he must 
 affirmatively show such emergency, 70 Ga. 679. 
 
 When act which caused injury (coupling by conductor) is claimed to be 
 justified by emergency (train late), conductor must show that he was not 
 responsible for train being late, 61 Ga. 279. Employee's declaration alleg- 
 ing" necessity and duty to take certain position on train, and that while 
 there, without fault on his part, stricken by water spout, good against gen- 
 eral demurrer, 66 Ga. 707. Not duty of conductor to couple cars, except in 
 case of emergency, 53 Ga. 630, emergency to be judged of by jury, 59 
 Ga. 442. 
 
 Reasonableness of baggage master's jumping to avoid collision for jury, 
 notwithstanding conductor's order not to jump, 56 Ga. 645. 
 
 Track hand on hand car injured by jumping therefrom to save himself, 
 testimony here unsatisfactory and verdict set aside, 96 Ga. 481. Cross-ties 
 are to make road-bed safe, and not to provide foot-way for employees, and 
 there being no sudden emergency here, verdict for plaintiff reversed, 93 
 Ga. 570; distinguishing 92 Ga. 658. 
 
 Engineer hurt by jumping to avoid collision, occasioned by his viola- 
 tion of rule requiring him to run according to schedule time, could not 
 recover, and conductor's order to him to do so was no excuse, 59 Ga. 73. 
 
 Foreign Law. — Alabama statute relied on for rig'hl of action, should be 
 pleaded, 83 Ga. 624. As to substantive foreign law, see also 68 Ga. 384. 
 
82 GEORGIA EORMS 
 
 As to pleadimg and procedure, Georgia law governs in our oourts, 68 Ga. 
 572, 92 Ga. 80. Also as to statutes of limitation, 83 Ga. 625, 77 Ga. 215; 
 except w'liere the statute which gives the right O'f action itself fixes the 
 time within w^hich it must be brought, 49 Ga. 107, 43 Ga. 461. 
 
 Orders of Superior as Affecting Right to Recover. — Orders of superior no 
 excuse, where obedience thereto amounts to rashness, 55 Ga. 279; see also 
 68 Ga. 699, 70 Ga. 568, 59 Ga. 73. Charge that conductor's not interfering 
 when he saw coupling attempted without knife or 'stick, cured green 
 coupler's negligence, error, 95 Ga. 300; positive instruction is a different 
 thing /6. 
 
 Uncoupling slowly moving cars, under order of conductor, recovery sus- 
 tained, 94 Ga. 571. Careful obedience of coupler to order of conductor to 
 step from moving train to couple not defeat recovery, 71 Ga. 406; aliter 
 If obedi'ence rash and dangerous, 71 Ga. 422. 
 
 Section-hand injured in obeying negligent orders of boss, recovery de- 
 feated only when obedience amounted to recklessness, 92 Ga. 399. , 
 
 If employee obey order of superior to mount rapidly moving locomotive, 
 company not liable, 85 Ga. 197. 
 
 Proximate Caum. — Even though track in neglected condition, if car- 
 coupler's death not due thereto, verdict against company based on such 
 negligence, error, 95 Ga. 734. Rotten cross-tie on trestle where conductor 
 was walking, and not engineer's negligence, was proximate cause of con- 
 ductor's fall here, and no recovery, 93 Ga. 570. 
 
 Where a brakeman, passing over car loaded with ore, slipped, prima 
 facie accident, caisualty Incident to the service, 86 Ga. 388; but engineer's 
 negligence which makes collision imminent and causes brakeman to run 
 along car-top where he slips, is proximate cause, 92 Ga. 661. 
 
 Rishs Incident to the Service. — Train hand's fall from icy car roof here was 
 an accident, and company not liable, 82 Ga. 236; so as to frozen coupling 
 here, 82 Ga. 158. 
 
 Where brakeman, in an emergency which he did not cause, was hurt in 
 endeavoring to prevent catastrophe, facts made pure accident, 90 Ga. 494. 
 Work not extra-hazardous, youth hurt, non-suit, 84 Ga. 152. Killing of 
 switchman here was danger incident to service, 89 Ga. 782. If machinery 
 safe ordinarily, no liability for accident, 90 Ga. 491. Crushing of brake- 
 man's hand here was accident, Ih. Jerk incidental to service, no recovery, 
 80 Ga. 749. Question for jury here, and non-suit error, 85 Ga. 203. Rail- 
 road not an Insurer of its employee, clinker on margin of track, train hand 
 stepping on, hurt, pure accident, 86 Ga. 232. 
 
 Request here that in dangerous service employee takes risk, properly 
 refused; in all cases rule same; in dangerous service each employee must 
 increase his caution, 58 Ga. 112. 
 
 Rules of the Company. — Duty of company to inform employees of rules,. 
 84 Ga. 420, e. g., as to coupling with stick, 80 Ga. 540. 
 
 Employee, though obligated in writing to study rules, not bound by rules 
 if not known, and never promulgated to him, 82 Ga. 453. Oral tradi- 
 tion or other actual notice of company's rules binds employee, though rules 
 printed and no copy furnished him, 95 Ga. 298. 
 
 Coupling Without stick in knowing violation of rule, no recovery, 86 Ga. 
 15; as to customs, 16. Rules offered by plaintiff here (widow of section- 
 hand killed by construotion train) were relevant to negligence alleged and 
 were properly admitted, 90 Ga. 47. 
 
 Company's rules, for non-observance of which employee forfeits right of 
 
AND PEACTICE. 83 
 
 reoovory, strictly construed against company, 95 Ga.584; applied where rule 
 ambiguous, 94 Ga. 458. 
 
 Car-coupler standing on footboard of pilot of tender, in usual way, wMle 
 engine backing, attempting without stick to withdraw pin from coupling 
 apparatus of engine, rule did not apply, 92 G-a. 77; company's rules con- 
 strued strongly against it, 16. Not a necessary presumption from thei vio- 
 lation of a rule that it contributed to the injury, 95 Ga. 603. 
 
 Where rule required slowing up in approaching switch, and engineer 
 knowingly violating it, ran into siding and was killed, widow oould not 
 recover, B. T., V. & Ga. vs. Kane, 92 Ga. 197. 
 
 Employee entitled to act on belief that co-employees will obey rules, 
 93 Ga. 259; recovery by switch engineer run over, sustained, 16. 
 
 Coupler may act on presumption that train will not be started contrary 
 to rule, 73 Ga. 744. Every reasonable rule binds employee, 80 Ga. 435. 
 
 Rule requiring putting up danger signal applying to deceased as well 
 as to his co-employee, latter's violation of it no excuse tor deceased, 
 83 Ga. 88. Principle applied to engineer's disregard of company's published 
 train soheduile, conductor consenting to such disobedience, 59 Ga. 73. 
 
 CHAPTER 8. 
 Telegraph Companies, How Incorporated. 
 
 Declaration ; §2340. 
 
 Georojia, Bibb County. 
 
 To the Hotvorahle Allen D. Candler, Secretary of State: 
 
 Certain citizens of tlie Umted States (naming five petition- 
 ers), all of whom are residents of said State and county, reepectr 
 fu'lly show: 
 
 1. That they p>ropose to form a corporation for constructing, 
 equipping, and operating a telegraph liae, in accordance with the 
 provisions of the act of the General Assembly, approved Decem- 
 ber 20th, 1893. 
 
 2. The name of the proposed corporation is to be the Macon 
 d Enoxville Telegraph Company. 
 
 3. The proposed capital stock of sadd corporation is to be 
 $50,000, in five hundred shares of mte hundred dollars each. 
 
 4. Said telegraph line is intended to be constructed, equipped 
 and operated from the city of Macon, in the county of Bibb, said 
 State, via Lizella and Sandy Point, to the town of Knoxville, in 
 the county of Crawford, said State. 
 
 5. The principal office of the proposed corporation will be 
 ir the city of Macon, said State and county. 
 
84 GEOEQIA FOEMS 
 
 6. Petitioners desire to be incorporated as aforesaid for and 
 during tlie term of thirty years, oommencing 
 
 Witness their hands and seals, this ■ — day of 189 — 
 
 Attest: (Signed by eajch of petitioners with an "L. S.") 
 
 Walter Henderson, 
 
 John Gray, Notary Public Bibh Co., Ga. 
 
 statutory fee of one liundred dollars paid, and foregoing declara- 
 tion filed, Secretary of State shall issue to applicants a license as commis- 
 sioners to open books of subscription to the capital stock at such times and 
 places as a majority of them may determine, after having given public 
 notice of the same for at least two weeks. Code §2340. After capital stock 
 -fully subscribed, commissioners shall convene a meeting of the subscrib- 
 ers, to elect directors, etc.; notice of such meeting must be mailed to each 
 subscriber ten days beforehand; each share shall be entitled to one vote, 
 §2341. A report of such meeting, sworn to by at least a majority of the 
 commissioners, containing copy of notice mailed to subscribers, list of 
 them, and their residences, and the number of shares subscribed by each, 
 and list of directors, their residences and their respective terms of office, 
 must then be filed; whereupon, the Secretary of State shall issue a certifi- 
 cate of the complete organization of such corporation, §2342. 
 
 CHAPTER 9. 
 Corporations Created by Superior Court. 
 
 Petition for Ikcorpokation of Dry Goods Company ; §2350. 
 Georgia, Bibb County. 
 
 To the Superior Court of said County : 
 The petition of Henry Thompson, Walt&r Henderson, John 
 Jones, William Smith, and James Brotvn, all of said State a>nd 
 county, respectfully shows: 
 
 1. That they desire, for themselves, their associates, success- 
 ors and assigns, to become incorporated under the name and style 
 of The Tlwrnpson-Henderson Company. 
 
 2. The term for which petitioners ask to be incorporated is 
 twenty years, with the privilege of renewal at the end of that time. 
 
 3. The capital stock of the corporation is to be fifty thousand 
 dollars, divided into shares of one Ivundred dollars each. Peti- 
 tioners, however, ask the privilege of increasing said capital stock 
 from time to time not exceeding in the aggregate $250,000. 
 
 4. The whole of said capital stock of fifty thousand dollars 
 has already been actually paid in. 
 
 5. The object of the proposed corporation is pecuniary profit 
 
AND PEAOTICE. 85 
 
 and gain to its stockholders. Petitioners propose to carry on a 
 retail dry goods business and to deal in dry goods and notions at 
 retail; buying and selling for oasli or on credit, all such, 'articles and 
 things as are usually embraced in the retail dry goods business, and 
 all such articles and things as may be profitably handled and sold 
 in connection thereiwith; acting as general or special agents for 
 other persons or companies in selling or handling any articles or 
 class of articles appropriate to the dry goods business, or usually 
 or conveniently connected thereiwith, and to mske contracts to act 
 as such agent, and to exercise the usual poiwers and to do all usual, 
 necessary and proper acts wihich pertain to or may be connected 
 with the business of retail dealers in the articles named, including 
 the business of dressmaking. 
 
 6. The principal office and place of business of the proposed 
 corporation will be in the city of Macon, said State and county. 
 
 Wherefore petitioners pray to be made a body corporate under 
 the name and style aforesaid, entitled to the rigbts, privileges and 
 immunities and subject to the liabilities fixed by law. 
 
 This May 1st, 1895. 
 
 AB, 
 Attorney for Petitioners. 
 
 §2350(1) provides that the superior court shall have power to create 
 corporations, except banking, insurance, railroad, canal, navigation, ex- 
 press and telegraph companies, by compliance with certain provisions; 
 among which is the filing of petition substantially as above, in the oifice 
 of the clerk of the superior court of the county in which they desire to 
 transact business, which petition shall be published once a week for one 
 month in the nearest public gazette to the point where such business^ is 
 located. 
 
 §2350(2) provides that if, upon hearing euob jwtition, the court shaJl 
 be satisfied that the application is legitimately within the purview and 
 Intention of the Code, it shall pass an order Incorporating the petitioners. 
 Such order may be as follows: 
 
 Charter. 
 Geoegia, Bibb County. 
 
 In the Superior Court of smd County. Apnl Term, 1895. 
 
 Henry Thompson, Walter Hendei'son, John Jones, William 
 Smith and James Brown, all of said State and county, having 
 filed in the office of the clerk of the superior court of said county 
 their petition seeking the formation of a corporation to be known 
 as the Thompson^Henderson Compmiy, for the purpose of conduct- 
 ing a retail dry goods business, and having complied with all the 
 
86 GEORGIA FORMS 
 
 requirenients of the law for sucli cases made and provided, and the 
 court being satisfied that said application is legitim'ately within 
 the purview and intention of the Code, the same is hereby granted, 
 and the above named persons, their associates land successors are 
 hereby incorporated under the said name and style of "The Thomp- 
 son-Hendersan Company," for and during a period of twenty 
 years, with the privilege of renewal at the expiration of that time. 
 And said corporation is hereby clotlied vsdth all the rights, priv- 
 ilegee and immunities, and made subject to all the restrictions and 
 liabilities fixed by law. 
 This June 5th, 1895. 
 
 W. H. Felton, Jr., 
 Judge Superior Court Bihh Co., Ga. 
 
 Petition for Incorporation of Church ; §2356. 
 Georgia, Bibb County. 
 
 To the Superior Court of said County: 
 The petition of (naming petitioners), all of said State and coun- 
 ty, respectfully shows: 
 
 1. That they desire for themselves, their associates 'and suc- 
 cessors, to become incorporated as a religious society under the 
 name and style of Tatrvall Square Baptist Church. 
 
 2. The term for wMch petitioners 'ask to be incorporated is 
 twenty years, vsdtih the privilege of renewal at the end of that time. 
 
 3. The sole object and purpose of the proposed association is to 
 promote the cause of the Christian religion. 
 
 Wherefore petitioners pray for themselves and their legal suc- 
 cessors to be made a -body corporate and politic, with all the rights, 
 pri^dleges, immunities and restrictions fixed by law. 
 
 (Signed by the petitioners.) 
 
 James L. Andersoiv, Attorney for Petitioners. 
 
 The general requirements of law, in regard to incorporating churches, etc., 
 do not differ from those for the formation of mercantile corporations, and 
 the form for charter for a dry goods company {ante) will sufiSee also for a 
 church, by striking out "retail dry goods company" and inserting "church 
 for the worship of God." 
 
AND PRACTICE. 87 
 
 THIRD TITLE. 
 
 OF DOMESTIC RELATIONS, 
 
 CHAPTER 1. 
 OF HUSBAND AND WIFE. 
 
 ARTICLE 1. 
 
 Marriages, How Contracted. 
 
 Marriage License; §2417. 
 Georgia, Bibb County. 
 
 To any Judge, Justice of the Peace, or Minister of the Gospel: (a) 
 You are hereby autliorized to join WilUam Smith and Mwry 
 Jones in tlie holy state of matrimony, according to the constitution 
 and laws of this State, and for so doing this shall be your sufficient 
 license'. And you are hereby required promptly to return this 
 license to me, with your certificate thereon, of the fact and date 
 of the marriage. 
 
 Given under my hand and seal this 1st day of June, 1889. 
 
 Charles M. Wiley, [l. s.J 
 Ordinary. 
 
 Certificate. 
 
 I certify that William Smith and Mary Jones were joined in 
 matrimony by me, this 1st day of June, Eighteen Hundred and 
 Eighty-nine. 
 
 James Brown, 
 Minister of the Gospel. 
 
 {a) Upon request, ordinary may direct marriage license to any Jewish 
 minister, or to any other auth.orlzed person of any religious society or 
 sect, wlio sliall make return thereon as required hy §2418, §2421. Mar- 
 riage licenses shall be granted by the ordinaries, or their deputies, of the 
 several counties where the female to be married resides, §2417. "It [mar 
 riage] may be entered into by persons who are not capable of forming any 
 other lawful contract," 67 Ga. 96. To be able to contract marriage, a per- 
 son must be of sound mind, if a male at least seventeen years of age, and 
 if a female at least fourteen, §2412. Ordinary and his deputy shall inquire 
 as to the ages of all persons for whom marriage licenses are asked, and If 
 
GEORGIA FORMS 
 
 there be any ground of suspicion tliat tlie female is a minor under eighteen 
 years, license shall be refused until written consent of parent or guardian, 
 if any, shall be filed; for violation hereof, or for issuing license to female 
 known to be domiciled in another county, ordinary forfeits $500, §2419. 
 Issuing marriage license in blank illegal, 69 Ga, 754. To ordinaries "is 
 intrusted a public duty looking to the protection of parents and guardians, 
 by making proper inquiries as to the ag© of the female, and refusing 
 licenses for marriages of females known to them to be domiciled in another 
 county," 69 Ga.754. Marriage, "the oomer-stone on which the whole fabric 
 of Christian civilization reposes," 63 Ga. 630. "It Is the most important of 
 all human transactions, and the basis of the whole fabric of- civilized so- 
 ciety," 67 Sa. 96. "The family is the foundation of the State," 2 Ga. 198. 
 Any judge, justice or minister who shall join in marriage any couple with- 
 out such license, or the publication of bans, shall forfeit $500, §2420. A 
 marriage valid in other respects, and supposed by the parties to be valid, 
 shall not be affected by a want of authority in the minister or justice to 
 solemnize the same, §2423. 
 
 ARTICLE 2. 
 Divorce and Alimoxy. 
 
 Petition for Divorce on Ground of Adultery, (a) 
 Georgia, Bibb County. 
 
 To the Superior Court of said County : 
 
 Mary Smith (b) brings this her complaint against Willimn 
 Smith, of said county, (c), and alleges: 
 
 Eirst: On the 1st day of June, 1889, in the State of Georgia, 
 (d) plaintiff and defendant intermarried, and ever since have been, 
 and now are, husband and wife. 
 
 Second : The plaintiff is and has been a bona fide resident of the 
 State of Georgia twelve months before the filing of this application 
 for divorce, (e.) 
 
 Third: (/) On the loth day of August, 1895, at , (stating 
 
 place with reasonable certainty) (g) the defendant committed adul- 
 try (/;-) with one Jane Brown'. 
 
 Fourth: On divers days and times between said last memtioned 
 day and the commencement of this action, defendant has commit- 
 ted adultery with said Jane Brown. (;') 
 
 Fifth: A sworn schedule (fc) of all the property owned or pos- 
 sessed by plaintiff and by defendant (I) at the date of this aipplica- 
 tion (m) is herewith filed, on which said schedule is distinguished 
 the separate property of plaintiff, (n) 
 
 Sixth: There are now living of the issue of the said marriage 
 
AND PRACTICE. 89 
 
 three children, to wit, one boy named William Smith, Jr., aged 
 five years; one girl named Reiecca Smith, aged tht~ee yeare, and 
 one girl named Sarah Smith, aged fourteen months. 
 "Wlierefore, petitioner prays: 
 
 1. That a total divorce from defendant be granted to ber, and 
 that the name she bore prior to her said marriage with defendant, 
 to wit, Mary Jones, be restored to her. (o) 
 
 2. That the custody of said children be awarded to her. (p) 
 
 3. That defendant be enjoined and restrained from disposing of 
 or in any manner encumbering the property mentioned in the 
 schedule hereunto attached, (g) 
 
 4. That a reasona^ble provision for permanent alimony be made 
 for the support of plaintiff and her said children out of the prop- 
 erty of defendant, (r) 
 
 5. That defendant be required to pay a reasonable sum into court 
 to defray the expenses of this action, and for counsel fees, (s) and 
 that he pay to plaintiff such further sum for temporary alimony for 
 the sxipport of herself and her said children during tihe pendency 
 of this action {t) as to the court may seem just, (u) 
 
 6. That process do issue, directed to defendant, requiring him 
 to be and appear at the next term of this court, to answer, this 
 complaint. 
 
 AB, 
 Petitioner's Attorney. 
 
 («) While decisions immediately pertinent to adultery as ground for di- 
 vorce have of course been annotated under this form, it has also been 
 selected as a convenient nucleus for decisions having a more general ap- 
 plication. 
 
 A petition praying divorce, alimony, injunction against transfer of prop- 
 erty, etc., is amendable by striking divorce prayer, 90 Ga. 245. Hence, the 
 above petition for divorce, with the divorce prayer stricken, and also the 
 cognate allegation of petitioner's residence, in paragraph 2, will sufflc* 
 as an independent petition for alimony under §2467, where no divorce suit 
 ia pending (omitting the allegations of adultery as being unnecessary, and 
 in lieu thereof alleging (§2464) voluntary separation, or tiat the wife 
 against her will has been either abandoned or driven off by the husband.) 
 
 (6) Suit by infant married woman for a divorce, 49 Oa. 378. Intelli- 
 gent volition necessary in order to sue for divorce; suit by prochein ami 
 of lunatic wife demurrable, 36 Ga. 45. Good defense that libel brought by 
 others, without wife's knowledge or consent, understandingly given, 19 Ga. 
 265. Plaintiff not competent witness as to facts derived from the confi- 
 dential relation of husband and wife, 41 Ga. 613. A bigamist's victim 
 is a competent witness against him, 61 Ga. 305. (See proceedings to annul 
 marriage below.) In divorce cases, husband not competent to prove 
 adultery of wife, 46 Ga. 308, §5272. Same section applied to a woman who. 
 
so GEORGIA FORMS 
 
 sued married man; her suit being one "instituted in consequence of adul- 
 tery," she was inot competent to prove the adultery, 56 Gra. 59. 
 
 (c) Defendant non-resident of this State, service perfected as in equity 
 ■causes, §2432. Service toy publication in equity causes is regulated by 
 ^4978; therefore, see form under that section hereafter. Wihere neither 
 of the parents was or iad ever been in the State, or was a citizen, or resi- 
 dent of the State, or owner of property in the State, the court was right 
 in refusing to "allow service to be perfected by publication," 25 Ga. 473. 
 Heturn of non est inventus by sheriffs of two counties not sufficient to au- 
 thorize order for service by publication, 27 Ga. 466. At least an affidavit 
 that defendant was out of State should have been presented, 16. Non- 
 resident passing through a county "resides" there, 67 Ga. 427. Pending a 
 •divorce suit against New Yorker served after landing with wife at Savan- 
 nah, temporary alimony proper, 76. 
 
 (d) As to grounds for granting divorce, lex fori governs, not law of 
 j)lace where marriage occurred, 31 Ga. 223. 
 
 (e) Petitioner must have been a iona fide resident of this State twelv« 
 months before filing of libel for divorce, §2431. Where a statute requires 
 that plaintiff shall have been a resident of State for a prescribed time prior 
 to suit, fact of such residence must be alleged. Strode vs. Strode, 3 Bush. 
 .227, S. C, 96 Am. Dec, 211. 
 
 if) The following are made sufficient by statute in this State, as grounds 
 for total divorce. (See §§2426-7.) 
 
 1. Intermarriage by persons within the prohibited degrees of oonsan- 
 .guinity and affinity. 
 
 "Prohibited degrees," §2413. A man cannot marry Ms mother-in-law, 
 nor his daughter-in-law, nor his step-mother, his step-daughter, or step- 
 granddaughter. 
 
 2. Mental incapacity at the time of the marriage. 
 
 3. Impotency at the time of the marriage. 
 
 4. Force, menaces, duress, or fraud, in obtaining the marriage. 
 
 5. Pregnancy of the wife at the time of the marriage, unknown to the 
 husband. 
 
 6. Adultery in either of the parties after the marriage. 
 
 7. Wilful and continued desertion by either of the parties for the term 
 of three years. 
 
 8. The conviction of either party for an offense involving moral turpi- 
 tude, and under which he or she is sentenced to imprisonment in the peni- 
 tentiary for the term of two years or longer. 
 
 9. Cruel treatment. (Discretionary with jury to grant total or partial 
 ■divorce.) 
 
 10. Habitual intoxication. (Discretionary with jury to grant total or 
 partial divorce.) 
 
 Two or more grounds of divorce may be alleged in plaintiff's declaration, 
 but they should be stated in separate paragraphs. For forms for the va- 
 rious counts alleging the various causes for divorce, see below. 
 
 (g) Time and place should be stated with reasonable certainty, so as to 
 enable defendant to meet it on the trial; Conant vs. Gonant, 10 Gal., 249, 
 S. C, 70 Am. D. 717; Farr vs. Farr, 34 Miss. 591, S. C, 69 Am. D. 406. 
 
 (?0 Adultery: "Criminal intercourse between a married person and one 
 of the opposite sex, whether married or single," Anderson's Law Diction- 
 ary. Adultery only ground of divorce recognized by New Testament, 2 Ga. 
 209, citing 19 Mattiew 3 to 12. 
 
AND PRACTICE. 91 
 
 (0 Person with, whom adultery charged must be named; if unknown, 
 so state; G-ermond vs. Germond, 6 Johnson's Chancery 347, S. C, 10 Am. 
 D. 335. 
 
 (/) To charge "various acts ol adultery, committed at divers times 
 with persons unknown, for a period of eight years," too general; 16 Pick- 
 ering (33 Mass.) 254. (1834). Plaintiff may be required to furnisli bill of 
 particulars under certain circumstances; Tilton vs Beecher, 59 N. Y. 176, 
 S. C, 17 Am. R., 337. 
 
 Allegation that husband has contracted a venereal disease since the mar- 
 riage dispenses with necessity to allege person, time and place; so, where 
 alleged tbat husband has been absent for a year, and upon his return finds 
 his wife pregnant; Bishop on Marriage and Divorce, Vol. 2, §610. 
 
 Connivance, collusion, etc., being matter of defense, need not negatived 
 in the petition; Smith vs Smitb, 4 Paige, N. Y. Ch. 432, iS. C, 27 Am. D. 
 75. See form for answer and cross-petition, hereafter. 
 
 (fc) §2435, requiring schedule, applies only to application for total di- 
 vorce; no schedule of property necessary where only partial divorce asked, 
 16 Ga. 86. Where a schedule purporting to be all husband's property, 
 recited "a city lot in Atlanta, worth $5,000," description sufficient to put 
 everybody on notice if there was in fact but one lot, 44 Ga. 437. 
 
 (m) Or "of separation," if parties bave separated, §2435. After a sepa- 
 ration, no transfer of property by husband, except bona fide in payment 
 of pre-existing debts, shall avoid the vesting thereof according to tie final 
 verdict of the jury in the cause, §2436. §2436 is solely to secure wife's 
 alimony, and creditor of husband who furnished necessaries to wife, had no 
 lien on property sold to bona fids purchaser before bis claim reduced to 
 Judgment, 69 Ga. 392. Our law ties up the husband's property from sale 
 by him, or from debts contracted by him after the separation, 44 Ga. 437. 
 But a valid judgment obtained against husband pending divorce libel, 
 founded on a debt contracted before the separation, binds property set 
 apart to wife on final hearing, 52 Ga. 389. , Where husband, to defeat ali- 
 mony, deeded land to another and put 'grantee in possession, taking bond 
 to reconvey, he could not maintain action on such bond; doctrine of "in 
 pari delicto," etc., applied, 96 Ga. 794. Husband's deed, shortly before sepa- 
 ration, to children of former marriage, was admissible as tending to show 
 fraudulent intent, 36 Ga. 286. Whether note given by defendant husband 
 to administratrix of his father's estate pending divorce suit was fraudulent, 
 and made merely to defeat alimony, for jury, 75 Ga. 632. Reviving barred 
 debt by note, whether fraudulent for injury, lb. Mere pendency of alimony 
 suit not prevent bona fide mortgage or conveyance by defendant of prop- 
 erty not mentioned in pleadings, 94 Ga. 225. Where defendant sold land 
 pending alimony suit, the final judgment bound only so much of the trao» 
 as was specifically subjected therein, 94 Ga. 449. Court here erred in charg- 
 ing contrary of this doctrine, 89 Ga. 309. Decree, as judgment in rem, only 
 binds property described in the pleadings, 94 Ga. 628. 
 
 (») Schedule should distinguish wife's separate estate, if any, §2435. 
 
 (o) Restoration of wife's former name, §2446. 
 
 Tp) Divorce granted, party not in default entitled to custody of children. 
 Court, however, may, in its discretion, even pending the suit, withdraw 
 them from custody of either or both parties and place them in possession 
 of guardian appointed by ordinary, §2452. Case ended, divorce granted to 
 neither party, court had no authority to make final disposition of child, and 
 erred in attempting to do so, 92 Ga. 506. 
 
92 GEOKGIA FORMS 
 
 In all -wTits of liabcas corpus sued out on account of the detention of a 
 wife or child, the court, on ihearing all the facts, may exercise Its dis- 
 cretion as to whom the custody of such wife or child shall he given, and 
 shall have power to give such custody of a dhild to a third person, §2453. 
 Consult index for form for the writ of Sabeas Corpus hereinafter. 
 
 (g) Husband may be enjoined from alienating property to defeat alimo- 
 ny, 65 Ga. 193. So may others who co-operate with him to perpetrate the 
 wrong, 11. Not enjoined from collecting his cboses in action, unless 
 fund unsafe in his hands, 59 Ga. 613. Judicial interference between 
 husband and wife after their separation, to control by interlocutory injunc- 
 tion his possession of the family dwelling, though it be hers, generally 
 unwise, 86 Ga. 773. 
 
 Equity would not decree cancellation of wife's power of attorney to trans- 
 fer stock, which her declaration for divorce asked, especially when the 
 apprehended injury could be prevented by giving notice to a particular cor- 
 poration, 59 Ga. 613. 'Ne exeat may issue pending libel for divorce, on 
 wife's ex parte affidavit, 8 Ga. 295. "Where a husband fails to support his 
 wife and minor children, equity may compel him thereto by decree, 65 Ga. 
 193; see also §2466. Chancellor has authority to arrest husband who is 
 defendant in divorce suit, and require him to give bond to comply with 
 any order that may be passed, 75 Ga. 552, citing §§4886(7) and 4890 as to 
 ne exeat. 
 
 (r) Alimony is an allowance out of the husband's estate, made for the 
 support of the wife when living separate from him; it is either temporary 
 or permanent, §2456. This definition contemplates that husband is living, 
 73 Ga. 305; and a common law judgment against him antedating decree 
 for alimony is superior tiereto while he is living, 52 Ga. 394, 62 G-a. 392; 
 but a decree for permanent alimony bars dower, 43 Ga. 295, and all other 
 interest in husband's estate after his death, §2472; hence it then rises in 
 dignity and becomes analogous to year's support, 73 Ga. 305. Perma- 
 nent alimony is granted in the, following cases: 1st, of divorce pending; 
 2d, in cases of voluhtary separation; 3d, where the wife, against her will, 
 is either abandoned or driven off by her husband, §2464. In two latter 
 cases, husband may voiuntajrily, by deed, make provision for wife, consist- 
 ent with his means and his former circumstances, which shall bar perma- 
 nent alimony, §2465. In absence of such provision, equity will compel hus- 
 band to support Wife and minor children in this custody, §2466. Even 
 where no action for divorce is pending, if husband and wife are living sep- 
 arately, or are hona fide in a state of separation, the wife may, in behalf 
 of herself and her minor children, if any, or either, petition for alimony, 
 etc., §2467. Settlement and separation agreed on, and subsequently hus- 
 band sues for divorce, temporary alimony denied, but counsel fees al- 
 lowed, 25 Ga. 186. 
 
 (s) Pending action for divorce, alimony, etc., justice court suit for 
 plaintiff's counsel fees not maintainable, 50 Ga. 94. Court cannot order 
 husband to pay fees to solicitor general, 36 Ga. 618. 
 
 (t) Whenever a divorce suit, or a suit for permanent alimony, is pend- 
 ing, wife may apply for temporary alimony, §2457. Either in term or va- 
 cation, §§2461, 2467. Three days notice necessary, 78 Ga. 79. Previous 
 deed of settlement bars temporary alimony, 33 Ga. 99 supp. But mere fact 
 that hushand had supported wife theretofore does not, 22 Ga. 31. Judge 
 no jurisdiction at chambers unless plaintiff's petition has been filed, pe- 
 tition "not in court" until filed, 77 Ga. 124. Temporary alimony may be 
 
AND PEACTICE. 93 
 
 granted so as to relate back to the oommencement of the suit, 19 Ga. 265. 
 While generally a man is not chargeable with an attorney's fee for suing 
 him -without his consent, the rule is different where his wife sues for a 
 divorce, 30 Ga, 82. Case here was settled before judgment and plaintiff 
 returned to her husband, /&. 
 
 "Her counsel fees are allowed as a part of her necessary maintenance and 
 are allowed before it is ascertained whether she has valid ground for a 
 divorce or not. They are allowed as the necessary means of testing that 
 question, a question which every wife has a right to test whenever she 
 pleases," 30 Ga. 82, S. C, 76 Am.D. 637. The court is oognizant from its own 
 records of the pendency of the libel for divorce, and only one other fact 
 is necessary to grant of order, viz.: fact of the marriage; refusal to con- 
 sider proof of plaintiff wife's alleged imprudent conduct with other men, 
 proper, 10 Ga. 477; upon proof of suit and fact of marriage, the allow- 
 ance is made "almost as matter of course," 15 Ga. 99. So, in husband's 
 suit for divorce, pregnancy at time of marriage, unknown to him, inad- 
 missible on application for temporary alimony, 18 Ga. 273. Act of 1870, 
 §2461, which includes children in alimony orders, does not change rule 
 as to discretion laid down in § 2460, and alimony here was properly re- 
 fused, owing to imprudent conduct of wife, etc., 47 Ga. 336. Distinction 
 between husband's rights of defense where alimony is sought pending di- 
 vorce suit, and where divorce suit not pending, 66 Ga. 144. In latter case, 
 immaterial what brought about the separation, 76 Ga. 319, disapproving 
 66 Ga. 144. Order allowing alimony is subject to revision at any time, 
 §2459, 10 Ga. 477. Husband's non-compliance with such order, however, 
 does not forfeit the right to defend the libel l!or divorce, §2459, 15 Ga. 404. 
 Temporary alimony and counsel fees allowed pending a suit, and plaintiff 
 dismissing her suit before trial, order for alimony rescinded, but not that 
 for fees, 33 Ga. 172. Order on receiver allowing husband support pending 
 wife'3 bill for divorce, alimony, etc., error, 37 Ga. 627. Attachment for con- 
 tempt, for refusing to obey order for temporary alimony, not imprisonment 
 for debt, nor violative of constitution, 44 Ga. 216, 80 Ga. 706. The order 
 Sor temporary alimony is enforcable by ft. fa., or by attachment for con- 
 tempt, §§2459, 2463. Formerly, omly by ajttacibment, 29 Ga. 1091. It is col- 
 lectible though permanent alimony refused by jury's verdict, 75 Ga. 549. 
 Temporary alimony not cease with verdict in court below, where case ap- 
 pealed to supreme court; continues (within discretion) to end of case, 69 
 Ga. 676. Bill of exceptions to order allowing temporary alimony pending 
 divorce suit, dismissed as preniaturely brought, 43 Ga. 178, 41 Ga. 46, but 
 see §2468. 
 
 (u) Though merits of case not in issue, judge may, in fixing amount, 
 inquire imto cause and circumstances of separation, and in 'his discretion 
 may refuse it altogether, §2460, 38 Ga. 663. While plaintiff wife's right to 
 divorce not closely Inquired into where marriage not denied, yet where it 
 Is denied, evidence on that issue should be received, 17 Ga. 139. A plea 
 that the wife had a lawful husband living when she married defendant did 
 not admit, but denied fact of marriage, 76. Husband estopped by conduct 
 to deny legality of his marriage (to a mulatto) on application for alimony, 
 60 Ga. 204. Judge should consider the peculiar necessities of wife growing 
 out of the pending litigation, and her separate estate, if any; and if such 
 estate is ample, as compared with husband's, judge may refuse temporary 
 alimony, §2458, 66 Ga. 145. Her separate estate should toe looked to, 15 
 Ga. 97. Also her physical condition and ability to contribute something 
 
94 GEORGIA FORMS 
 
 to her own support, 49 Ga. 379. Excluding evidence of defendant's hus- 
 band's pecuniary condition was error, 69 Ga. 483; see also 66 Ga. 145. Hus- 
 band ruled for not paying alimony order, his utter Inability good excuse; 
 amounts should have been reduced, 23 Ga. 286. Judge should consider hus- 
 band's means, number of children, etc., dependent on him, his circle of 
 society, etc., 10 Ga. 477, 44 Ga. 216. $40 per month as temporary alimony, 
 and ?250 counsel fees "pretty liberal," 19 Ga. 267. $45 per month and $150 
 counsel fees upheld, 49 Ga. 379. $12 per month and $50 counsel fees up- 
 held, 94 Ga. 491. $25 per month and $500 counsel fees upheld, 29 
 Ga. 517. $500 "on account of" temporary alimony, $500 to he paid 
 into court subject to further order, and $500 on account of counsel fees^ 
 upheld, 67 Ga. 425. $20 per month and $75 counsel fees, upheld, 76 Ga. 321. 
 $4 per month and $25 attorney's fees upheld, 78 Ga. 80. $40 per month too 
 much here, in application under §2467; if wife able to contribute to her 
 support, she will be expected to do so, 54 Ga. 560. Alimony here too much,. 
 39 Ga. 56. Husband destitute, wife at fault, $8 per month and $25 counsel 
 fees, error, alimony should have been denied, 94 Ga. 492. 
 
 Confessions of adultery or cruelty, uncorroborated, and made with a view 
 to be evidence, not authorize divorce, §2430. Still, circumstances urged 
 here, to wit, visits to house of negress to whom confessions referred, were 
 corroborative, 53 Ga. 661. Tender solicitude of defendant wife at sick bed 
 of a gentleman not her husband, proven by her manner and conduct, as 
 well as by her conversation, 18 Ga. 696. Patient's declarations of crimi- 
 nal intercourse with her, not made in her presence, nor in any way sanc- 
 tioned by her inadmissible, /6. Oonife&sions admissible, where no sus- 
 picion of collusion, 29 Ga. 718. 'But total divorce not granted upon con- 
 fessions alone, 24 Ga. 239. Good faith of suit for divorce, alimony, etc., 
 brought in wife's name, should be looked into Where circumstances sus- 
 picious, 18 Ga. 316. 
 
 Generally. — Marriages of persons unable to contract, or unwilling, or 
 fraudulently induced, void. Until such marriage is adjudged void, the 
 children are legitimate. In the latter two oases, however, subsequent vol- 
 untary ratification of the marriage, accompanied by cohabitation, validates 
 it, §2416. A man's second marriage may be bigamous, and yet, relatively 
 to legitimacy of second set of children, and their right to inherit from him 
 equally with his first set, not void, 20 Ga. 702. Consensus non concubitus 
 facit niiptias; for a husband to m'arry again is bigamy, though he never 
 copulate with second woman, but is arrested immediately after the cere- 
 mony, 84 Ga. 469. 
 
 Two or more grounds of divorce may be alleged in plaintiff's 
 declaration. Separate paragraphs alleging t)be various grounds- 
 are now here submitted. And first: 
 
 Intermaeriaqe Within Prohibited Degrbks. 
 
 Plaintiff and defendant are within the prohibited degrees of 
 consanguinity for that (stating relationship). 
 
 The prohibited degrees are fixed, as to consanguinity, by the rules of 
 the common law. 
 
 A man shall mot marry his mother-in-law, or his daughter-in-law,, 
 or his step-mother, step -daughter, or step-granddaughter, §2413. 
 
AND PEACTICE. 95 
 
 Mental Incapacity at Time of Marriage. 
 At tke time of said marriage, defendant was a lunatic, mentally 
 incapable of contraating marriage. 
 
 Mental capacity as a ground tor divorce is peculiar to Georgia;, 
 elsewhere it authorizes proceedings declaring marriage void, •which pro- 
 ceedings bastardize the issue, -27 G-a. 102. For proceedings to annul mar- 
 riage, see below. 
 
 Impotency at Time ov Marriage. 
 
 1. That immediately after said marriage took place, plaintiff 
 discovered tliat the said defendant, at the time of said marriage- 
 with plaintiff as 'aforesaid, was impotent and physically incapable 
 of entering into the marriage state, by reason of certain personal 
 defects, to wit: . 
 
 2. That said impotence at the time of said marriage aforesaid 
 was well known to said defendant, but was wiholly unknown to- 
 plaintiff. 
 
 3. Plaintiff has been informed and believes, and here charges, 
 that said physical incapacity, or impotence, still exists, and is in- 
 curable. 
 
 Fraud. 
 
 Said marriage was and is utterly void, and without binding foroe, 
 for that plaintiff did not voluntarily coneent to said marriage, but 
 the same was obtained by fraud pfactioed upon plaintiff by said 
 defendant, in this, to wit: that at the time of said marriage, plain- 
 tiff was in a state of irresponsibility caused by drunikenuess, which 
 drunkenness was brought about by the acts and contrivaroes of de- 
 fendant to induce plaintiff's consent to said marriage. 
 
 Drunkenness thus brought about is fraud and avoids marriage, §2414. 
 Such a marriage may be ratified; until it is adjudged void, issue legitimate^ 
 §2416. 
 
 Pregnancy at Time oe Marriage. 
 
 At the time of defendant's said marriage with plaintiff as afore- 
 said, the said defendant was in a state of pregnancy by some man 
 other than plaintiff, and said fact of pregnancy was at the time 
 of said marriage unknown to plaintiff. 
 
 Temporary alimony allowed even in such cases, 18 Ga. 273. 
 
 Desertion. 
 On or about the • — ■ day of , 18 — , the said defendant, dis- 
 regarding the solemnity of his marriage vow, wilfully and without 
 cause deserted and abandoned the plaintiff, and ever since has and 
 still continues to wilfully, and without cause, desert and abandon 
 said plaintiff, and to live separate and apart from her, without any 
 sufficient cause or reason. 
 
96 G-EORGIA FORMS 
 
 Wilful and continued desertion for tlie space of three years autliorizes 
 divorce, §2426(7). Wife's desertion of husband is not wilful if forced 
 by his opposition to her remaining with him, 29 Ga. 283. Where defendant 
 husband's offer to receive wife back did not defeat temporary alimony, 10 
 Ga. 478. The statutes of limitation are inapplicable to libel for divorce on 
 ground of desertion, although great laches (long delay) may defeat it if 
 not satisfactorily explained, 67 Ga. 92. Wife's second marriage after hus- 
 band absent ten years voidable only; issue legitimate, 34 Ga. 408. Where, 
 after marriage in North Carolina, husband came to Georgia and wife per- 
 sisted in remaining in North Carolina for more than three years, in a libel 
 for divorce Qled here by her husband, alleging desertion, lex fori governed 
 and divorce for desertion lay; service by publication, and appearance of 
 defendant by attorney certainly gave jurisdiction here, 31 Ga. 223. 
 
 CoNvicTioH" OF Felony. 
 
 At the term, 18 — , of the Superior Court of County, 
 
 State of Georgia, and before the filing of this action, defendant 
 
 was convicted of an offense involving moral turpitude, to wit: the 
 
 crime of • , and pursuant to said conviction was sentenced by 
 
 said court to imprisonment in the penitentiary for the term of two 
 
 years. 
 
 Cruel Treatment. 
 
 That since said marriage, defendant has treated petitioner in a 
 cruel and inhuman manner, and in particular as follows: (describe 
 the particular acts of cruelty, giving time and place of each). 
 
 Kicking, wounding, bruising wife justifies divorce, 41 Ga. 46. The 
 saevitia (cruel treatment) of the ecclesiastical law contemplated bodily 
 hurt, personal danger, 2 Ga. 206; and there is a leaning in this direction in 
 24 Ga. 244, 36 Ga. 286 But held later, that blows not necessary and that le- 
 gal is the popular meaning of the term "cruel treatment", 67 Ga. 771. To 
 the more liberal rule, there is also a leaning in 31 Ga. 634. To husband's 
 libel for divorce on ground of cruelty in wife, she may recriminate his 
 adultery, 29 Ga. 718. Charge of cruel treatment to wit, farced, vulgar and 
 excessive intercourse, put defendant husband's character in issue and 
 authorized introduction by him of good character, 75 Ga. 753. 
 
 Habitual Intoxication. 
 
 That the defendant, disregarding his duties as a husband toward 
 
 plaintiff, has been guilty of habitual intoxication for a period of 
 
 months (or years) passed. 
 
 Allegation that husband "frequently got drunk, and had several fits 
 therefrom," not a sufficient allegation of habitual intoxication, 67 Ga. 772. 
 "As it is not in the language of the statute, we will not further consider 
 that ground," 16. 
 
 Verdict for Partial Divorce ; §2439. 
 "We, the jury, find that sufficient proofs have been submitted to 
 our consideration to authorize a partial divorce between the par- 
 ties; that is to say, a divorce a mensa et thoro upon legal principles, 
 
AND PRACTICE. 97 
 
 and tiliat the defendant slliall pay on tlie — day of ■ • in 
 
 eacli month to the plaintiff the sum of dollars for herself 
 
 (during her natural life), and ■ — ■ — dollars for the support and 
 maintenance of the minor children of said marriage during their 
 minority. 
 
 Poreman. 
 
 Verdict by default forbidden, §2440. Verdict shall specify kind of divorce 
 granted, a,nd disposition to be made of scheduled property, §2437. In 
 cases of partial divorce, no lien Is created on the husband's property until 
 the rendition of judgment or decree, 16 Ga. 81. Two concurrent verdicts 
 not necessary in partial divorce, §2425; 16 Ga. 81. 
 
 Judgment. 
 
 Wliereupon, it is considered, ordered and adjudged that the 
 parties. Alary Smith and William Smith, be divorced from bed 
 and board, and that the said defendant, Willimn Smith, do pay 
 
 on the — day of in each month to the plaintiff during her 
 
 natural life, the sum of dollars, for the support aiid mainte- 
 nance of the minor children of said marriage during minority j 
 and for herself. 
 
 This — day of 18—. 
 
 W. H. Felton, Jr., 
 J. S. C. M. G. 
 
 A B, Plaintiff's Attorney. 
 
 Verdict fob Total Divorce; §2438. 
 
 "We, the jury, find that sufficient proofs have been submit- 
 ted to our consideration to authorize a total divorce — that is to 
 say, a divorce a vvnoulo matriinomi, upon legal principles, between 
 the parties in this case. (a). (In second verdict add) : 
 
 We fix the rights and disabilities of the parties as follows : The 
 plaintiff, Mary Smith, ^all be at liberty to marry ^again, but the 
 defendant, William Smith,s]iall not be -at liberty to miarry again. (&) 
 
 We make the following disposition of the scheduled property: (c) 
 We award therefrom to Mary Smith, $12,000 as permanent ali- 
 mony, (d) We allow to each of the minor children for their per- 
 manent support dollars per month, until such child's major- 
 ity, to be paid in oash to their mother, tJie plaintiff, Mary Smith, 
 title to the balance of the property to rem'ain unchanged, (e) 
 
 We restore to the plaintiff, Mary Snvlth, her former name, Mary 
 Jones, as prayed for by her. (/) 
 
98 GEOEGIA FORMS 
 
 (a) §2438. Total divorce annuls marriage . instanter, unless marriage 
 void originally, but it does not bastardize issue except where wife pregnant 
 wlien married, §2444. For total divorce, two verdicts at different terms of 
 court necessary, but only one verdict necessary to divorce from bed and 
 board, §2425. After one verdict in favor of respondent, libellant cannot 
 dismiss bis suit without respondent's consent, §2434. Motion for a new 
 trial lies to a first verdict for divorce, 31 Ga. 625, §2441. Verdict for 
 default forbidden, §2440. In divorce proceedings ex parte, judge shall see 
 that the groumds are legal, and suis'tained by proof, or shall appoint solici- 
 tor-general or some other attorney to do 9o, §2455. 
 
 {bj Jury rendering final verdict shall determine rights and disabilities 
 of parties subject to revision of court, §2445. 
 
 (cj Verdict shall specify disposition to be made of scheduled property, 
 §2437. Jury no power to dispose of children's property, but only of pa- 
 rent's, 62 Ga. 440. The old law (Cobb's Digest, 225) was imperative that 
 the jury shall give the property to the children unless they see fit to appro- 
 priate a part of it to one or both of the parents, 19 Ga. 267 (1856). Divorce 
 verdict silent concerning certain trust property, did not vest it absolutely 
 in the children, though it was included in the schedule, 58 Ga. 86 (1862). 
 Verdict for libellant did not vest property set out in schedule absolutely 
 and unconditionally in issue of marriage; creditors, if any, had first claim, 
 20 Ga. 120. In allowing alimony, jury are not confined to property owned 
 by husband at date of verdict; verdict may cover any property mentioned 
 in the schedule, 65 Ga. 476. Negotiations by husband and wife as to trans- 
 fers by him, are considered merged in the verdict, 44 Ga. 437. Final ver- 
 dict allowing wife a total divorce but refusing her alimony, reversed here, 
 90 Ga. 687. In such cases, permanent alimony generally follows as matter 
 of right, IJ)., quoting from 10 Ga. 483. Second verdict of divorce disallow- 
 ing alimony leaves in husband title tio his scheduled property, as though 
 jury had awarded it to him, whether any decree entered up on verdict or 
 not, 86 Ga. 591. 
 
 (dj Final verdict may allow permanent alimony to wife either from 
 corpus of estate, or otherwise, according to husband's condition and source 
 from which the property came into the coverture, §2435. "Alimony" as 
 used in the Code, means a support for life; hence verdict allowing wife 
 $12,000 alimony meant for her life only, 36 Ga. 286. Whereas, under the 
 old law, a verdict allowing wife a certain tract of land conferred upon her 
 the fee, 54 Ga. 285. 
 
 (ej A final verdict in favor of wife, whether allowing her permanent 
 alimony or not, shall specify what amount the minor children shall have 
 for their permanent support, and in what manner, how often, to whom, 
 and until when, it shall be paid, , §2462. 
 
 ff) Verdict shall restore wife's former name if divorce is granted and 
 such restoration asked in pleadings, §2446. 
 
 Judgment. 
 
 Mary Smith "J y -u i r -r>- 
 
 ■^ ( Libel for Divorce. 
 
 Bibb Superior Court, Term, 18 — . 
 
 vs. 
 William Smith. 
 
 Two concurring verdicts favoring a total divorce tO' plaintiff, 
 liaving been rendered in the above stated case, it is considered, or- 
 
AND PEACTICE. 99 
 
 ■delved and adjudged that said marriage be, and the same is hereby, 
 annulled, and a total divorce granted between the parties, with lib- 
 ei'ty to the plaintiff, Mary Smith, to marry again, but without such 
 liberty to def endamt, William Smith, who is hereby placed under 
 •disability to re-marry. The plaintiff's former name, Mary Jones, 
 is hereby restored to her. 
 
 Ordered further, that $12,000 worth of the scheduled property, 
 viz., — , be, and the same is hereby, given to plaintiff for her sup- 
 port, for and. during her natural life. 
 
 Ordered further, that dollars per month for each of the 
 
 minor children be paid in cash to the plaintiff, during the minority 
 of such child, under direction of this court by future orders. 
 
 Ordered further, that defendant, William Smith, pay the costs 
 of this case, to wit : the sum of dollars, and — cents. 
 
 This — day of 18—. 
 
 W. H. Fclton, Jr., 
 
 J. S. C. M. G. 
 
 Judgment on second verdict necessary to legal dissolution of marriage 
 under constitution of 1865, 62 &a. 408, 64 Ga. 662. Not necessary under 
 Oonstitution of 1868; verdict final, suljjsct to revision by court, 86 Ga. 595. 
 JFailure of divorce verdict allowing alimony to provide for husband's debts, 
 not fatal; alimony decree not being good against debts created prior to 
 iling of schedule, 65 Ga. 476. 
 
 Answer and Cross-Petition. 
 
 Mary Smith )-,.,,» -r^. 
 
 { Libel lor Divorce. 
 
 William Smith, f ^^^^ Superior Court, Term, 18—. 
 
 And now comes defendant in the above stated petition, and for 
 answer says: 
 
 1. The allegations contained in the 3d (4th, etc.) paragraphs 
 of said petition, charging defendant with adultery, are untrue. 
 
 2. And for further defense, defendant alleges that (allege acts 
 of cruelty or of adultery on part of plaintiff, or other gTOund of 
 ■cross-complaint.) If adultery admitted, add) : 
 
 3. And for further defense, this defendant says that after the 
 times mentioned in plaintiff's petition, and before the same was 
 £led, plaintiff, with knowledge of the matters alleged in said peti- 
 tion, fully condoned said alleged adultery, and forgave defendant 
 therefor, and freely cohaMted ivith him, and that ever since such 
 oondonajtion defendant has been a faithful husband to plaintiff, 
 and has constantly treated her with conjugal kindness. 
 
 (Prayer for judgment.) 
 
100 GEORGIA FORMS 
 
 Respondent in libel for, divorce may ask divorce, §2433. Plaintiff's case- 
 breaking down, error to dismiss and refuse to allow respondent to intro- 
 duce evidence in support of his cross-petition for divorce, 54 Ga. 526. De- 
 fendant may always plead plaintiff's misconduct, and jury may, on exami- 
 nation of whole case, refuse divorce, §2429. Defendant wife could recrimi- 
 nate husband's adultery against her alleged cruelty, 29 Ga. 718. Abuse- 
 by wife is not "like conduct" with beating by husband, 31 Ga. 635. Plain- 
 tiff husband alleging cruelty (attempt to poison) wife can defend by show- 
 ing his adultery, 29 Ga. 718. Doetrine of in pari delicto applied by analogy,. 
 16. Adultery, cruelty, or intoxication collusive, or imputable to both par- 
 ties, or condoned, divorce not granted, §2429. Connivance, collusion, etc., 
 being matter of defense, need not be negatived in the petition; Smith vs- 
 Smith, 4 Paige, N. Y. Oh. 432, S. C. 27, Am. D. 75. Such defense is not 
 Inconsistent with a denial of the cause of divorce charged, and may be- 
 joined therewith, 76. 
 
 As to condonation as conditional forgiveness, 41 Ga. 46. Living with a 
 husband for many years, and having numerous children by him, after an 
 act of cruelty, is condonation of the act, 24 Ga. 238. Knowledge of hus- 
 band's guilt, and forgiveness by wife, not legally presumed; must be clear- 
 ly and distinctly proved, to bar her action, 36 Ga. 318. But where, on the- 
 very morning before she left him, she had intercourse with him volun- 
 tarily, this was a condonation of previous cruelty, 69 Ga. 576. Verdict 
 granting husband a divorce reversed, it appearing that he condoned ani 
 cohabited with wife subsequent to her alleged adultery, and with knowl- 
 edge thereof, 91 Ga. 551. Husband's answer alleging that though respond- 
 ent was in fact married to plaintiff, yet the marriage was void because she- 
 "was then already married, did not admit, but denied the marriage, 17 
 Ga. 139. 
 
 Petition for Removai. of Disabii^ities ; §2447. • 
 
 <TiK)KGiA, Bibb County. 
 
 To the Superior Court of said County: 
 
 Tbe petition of 'William Smith respectfully shows : 
 
 1. That on the 1st day of October, 1895, a ps/tition for divorce- 
 was filed in this honorable court, in which his tlhen wife, Mary 
 Smith, was plaintiff, and he, petitioner, was defendant. 
 
 2. The grounds for divorce alleged in said petition were adultery 
 and criiel treatment. 
 
 3. The following is a true and correct copy of the last verdict 
 rendered in said cause. («) 
 
 Your petitioner prays that the disabilities now resting upon 
 him under and by virtue of said verdict may be removed, as allowed 
 by law. 
 
 William Smith. 
 
 (a) The statute, §2447, only requires a statement of the "substance of 
 the last verdict," but certainly there can be no mistake if a copy of saidL 
 verdict be set out. 
 
 Foregoing petition must be filed with the clerk of the superior court,. 
 §2447. For sixty days before the first day of the term of the court to whicli 
 
AND PKACTICE. 101 
 
 the same is returnable, there must be published in a newspaper wherein 
 the legal advertisements of the ordinary or sheriff of such county are pub- 
 lished notice of the application. 
 
 Notice of Application for Removal of Disabilities. 
 
 Mary Smith ^ t -u i p i^- 
 
 "' I JLibel for Divorce. 
 
 W'l/' ^ \ 7/ B -^^^^ Superior Court, November Term, 1895. 
 
 Verdict for total divorce ■ — day of Novem^ber, 1896. 
 
 Notice is hereby igiven that on the — day of , 18 — , the un- 
 dersigned filed in the office of the clerk of the superior court of 
 Bibh county an application for removal of the disabilities resting 
 xipon him under the verdict in the above stated cause. Said ap- 
 plication will be heard at the term of said court which commences 
 
 on the third Monday in April, 1897. 
 
 WilUaiii Smith. 
 
 In addition to publishing above notice, serve it on the divorced person, 
 if resident in the. county, twenty days before the term of court to which 
 the application returnable, §2447. The divorced person, or any citizen 
 of the county, may resist the application; and where no one else resists, 
 solicitor-general 'shall do so, §2448. The application shall be tried at the 
 first term of the court by a jury, who shall hear all the facts, and if, in 
 their judgment, the interest of the applicant or of society demands tie 
 Temoval of such disabilities, the jury shall so find, §2449. 
 
 Verdict ; §2449. 
 
 We, the jury, find in favor of the removal of the disabilities of 
 
 the applicant, William Smith. 
 
 X Y, Foreman. 
 
 Judgment ; §2449. 
 
 Whereupon, It is considered, ordered and adjudged, that peti- 
 tioner, William Smith, be, and he is hereby, relieved of the disa- 
 bilities resting upon him, under and by virtue of the verdict of di- 
 vorce in favor of Mary Smth, set out in his peiition to remove dis- 
 .abilities, 'and he is hereby declared to be as free to contract another 
 marriage as thoug'h no marriage had eve-r existed between him and 
 said Mary Smith. 
 
 Let petitioner pay the costs of this proceeding, to be taxed by 
 the clerk. 
 
 This — day of , 18—. 
 
 W. H. Felton. Jr., 
 
 J. S. C. .lA. C. 
 
 A B, Plaintiff's Attorney. 
 
102 GEORGIA FOEMS 
 
 Equitable Petition to Annul Marriage. 
 
 Eirst: Allege nuarriage (as in divorce libel supra). 
 
 Second: Allege residence of plaintiff (likewise). 
 
 Third: At the time of said marriage, the said defendant had 
 a former wife living, and said defendant's marriage with said for- 
 mer wife was then, to wit: at the time of plaintiff's said marriage tO' 
 defendant, in force, -and undissolved by decree of divorce, or oth- 
 erwise. 
 
 Wherefore petitioner prays that said marriage be declared and 
 adjudged to be null and void, and that slve be forever released and 
 discharged from any and all obligations and duties arising from 
 said pretended marriage, ^and for such other relief as to the court 
 may seem meet and proper in the premises. 
 
 And further, petitioner prays process, etc. 
 
 Tile writer is aware ttiat Lumpkin, J., said in 1859: "I maintain broadly,, 
 that in this State no decree can be rendered, separating man and wife, 
 where there has been a marriage de facto, except under our divorce laws," 
 insisting that there is no such thing in Georgia as a proceeding in chan- 
 cery to obtain a decree annulling a marriage; Brown vs. Westbrook, 27 
 Ga. 106. But since his whole opiaion is based upon (1) the hardship of a 
 woman being separated from her husband without being provided for, 
 and (2) the monstrosity of bastarding the innocent offispring, and since 
 the Code of 1863 provided for the wife (in dealing with alimony), thus 
 meeting the first objection, and declared that the issue of void marriages 
 shoiuld be legitima;te, until the marriage sbould be annulled and declared 
 void by a competent court (§2416), thus meeting the second objection, 
 the language of Judge 'Benning's dissenting Oipinion In Brown vs. West- 
 brook, just referred to, would seem to be re-vitallized: "The act of 1820, 
 giving equity of jurisdiction, 'says, that 'the superior courts shall exercise- 
 the powers of a court of equity in all cases where a. common law remedy 
 is not adequate.' The cases under consideration are cases in which there 
 is no remedy at all at common law. Why, then, are they not cases provided 
 for by this act? I do not see why." In more than one case in the Macon cir- 
 cuit in recent years, decrees have been rendered annulling marriages under 
 equitable proceedings where divorce was obtainable. Therefore, proceed- 
 ings to annul marriage are here submitted to the profession, without 
 effort by the author to express any confident opinion as to their validity, 
 but simply with the femark that they would seem to be authorized. 
 
 As to the general subject, see a discussion by Bleckley, C.J., in an opinion 
 upholding ratification by cohabitation of a marriage absoiutely void for 
 non-age, 84 Ga. 440. See also an opinion by Blandford, J., holding that a 
 marriage of one unable to contract (insane) is void though not adjudged 
 so during his life, and that his widow not entitled to yeai''s support, 73 
 Ga. 784. Bee also opinion by McDonald, J., holding that where a married 
 man married again, his second set of children were legitimate, and entitled 
 to inherit equally with the first, the marriage never having been annulled, 
 20 Ga. 702. 
 
a:n'd practice. los 
 
 Petition to Annul Marriage on Ground op Non-Age. 
 
 Pirst: A B is the son of plaintiff; he is a minor under the age 
 of sixteen, and has always, until the time of his m^arriage herein- 
 after stated, resided with, and been under the caie, custody and 
 control of this plaintiff. 
 
 Second: On the — day of ; 18 — , at , said A B in- 
 termarried with the defendant, D B. 
 
 Third : The parents of said A B did not, nor did either of them, 
 consent to his said marriage to the defendant. 
 
 (Prayer for judgment annxiUing marriage and for process as 
 above.) 
 
 Marriage of a sixteen-year-old boy "void in the sense of being absolutely 
 void," 84 Ga. 440. Nevertheless, "common law" marriages being valid 
 under act of 1863, continuing to cohabit with wife after arriving at the 
 age of seventeen, ratified -and validated such marriage, 76. 
 
 Service and custody of child belongs to parent; of wife to husband. 
 Mother bringing habeas corpus for child-wife, on ground that marriage void 
 for non-age, a finding that wife over fourteen, and consequent decision in 
 favor of husband, not reversed unless discretion abused, 68 Ga. 804. 
 
 So marriage violating miscegenation laws might be declared null and 
 void, although public policy may estop a man to deny legality of marriage 
 with person unable to contract (a negress), 60 Ga. 204. 
 
104 GEOKGIA FORMS 
 
 CHAPTER 2. 
 OF PARENT AND CHILD. 
 
 Father's Petition to Legitimate Child ; §2494. 
 Geoegia, Bibb County. 
 
 To the Superior Court of said County: 
 
 The petition of John Jones respectfully shows: 
 
 First: Petitioner is a resident of said county. 
 
 Second: He is the father of an illegitimate male child, five 
 years old, named Walter Brown, of whom Mary Brown is the 
 mother. 
 
 Third: Said Mary Brown is now in life, (a) 
 
 Whierefore petitioner prays that said child be legitimated, and 
 
 that he be tfhereafter known as Walter Jones. 
 
 John Jones. 
 
 (a) Allege whether mother is in life or not. If she is, serve her with 
 copy of the foregoing petition, §2494. 
 
 Okder Legitimating Child ; §2494. 
 
 The foregoing application of Jolm Jones for legitimation of his 
 child, Walter Brown, read and considered. It appearing that the 
 mother of said child has been served with a copy of said petition, 
 and the court being satisfied that the purposes thereof are within 
 the purview of the statute for such cases made and provided, or- 
 dered that the same be granted; and said child is hereby declared 
 to be legitimate, and capable of inheriting from his father, in the 
 same manner as if bom in lawful wedlock; and henceforth the 
 name by which said child shall be known sihall be Walter Jones. 
 
 W. H. Feltm, Jr., 
 J. S. C. .1/. c. 
 
 A bastard who has been legitimated by order of the Superior Court un- 
 der §2494 takes by descent from his father only, 94 Ga. 809. 
 
 Changing Name. 
 
 Any person desirous of changing his or his child's name may file in 
 superior court a sworn petition setting forth his reasons for the change, 
 which petition shall be docketed and acted on at or after second term. 
 §2495. But no person can change his name with a view to fraudulently 
 deprive another of any legal right under the law, §2496. 
 
AND PRACTICE. 105 
 
 Petition foe Adoption of Child ; §2497. 
 Oeorgia, Bibb County. 
 
 To the Superior Court of said County: 
 The petition of John Jones respectfully shows: 
 First: That he is desirous of adopting a certain child of the 
 name of Walter Brown, now domiciled in said county, so as to 
 Tender said child capable of inheriting petitioner's estate. 
 
 Second: James Broion, the father of said child, consents to the 
 -act of adoption proposed. 
 
 Third: Petitioner desires that the name of said child after its 
 adoption by him shall become 'Walter Jones. 
 
 Wherefore, he prays that said child be declared by this court to 
 be the adopted child of petitioner, capable of inheriting his estate, 
 .and that the name of said dhild be declared to be Walter Jones. 
 
 AB, 
 Petitioner's Attorney. 
 
 Set forth name of the father, or, if he be dead or has abandoned his fam- 
 ily, the name of the mother; and the consent of such father or mother to 
 the act of adoption; if the child has neither father nor mother, the con- 
 sent of no person shall be necessary to said adoption, §2497. Any person 
 related by blood to such child, if there be no father or mother, may file 
 objections, which the court,' in its discretion, shall hear and determine, 
 :§2498. 
 
 Oeder Declaeing a Child Adopted ; §2497. 
 The foregoing application of John Jones read and considered. 
 It appearing to the satisfaction of the court that the facts therein 
 ■stated are true, and thalt Janves Broion, the father of the child 
 ■which petitioner seeks to adopt, has notice of said application (a), 
 .and the court being further satisfied that such adoption will be to 
 the interest of said child, 
 
 Ordered that said child be, and he is hereby declared to be, the 
 adopted child of said John Jones, and capaible of inheriting his 
 ■estate, and henceforth the name of said child shall be Walter Jones. 
 
 W. E. Felton, Jr., 
 J. S. C. M. C. 
 
 (a) Where the father or the mother has abandoned the child, notice 
 may be by publication, as required In 4975-80 in equity cases for non-resi- 
 dent defendants. The adopted father of a child is as much entitled to the 
 ■custody of his person as his actual parent, 25 Ga. 613. Adopted child in- 
 herits from adopted father just as such father's own child would, 51 Ga. 221. 
 
 Adult persons may be adopted in like manner, and have their names 
 •changed, on giving consent to such adoption, §2499. 
 
106 GEORGIA FORMS ' 
 
 CHAPTER 3.* 
 OF GlJARDIAl^ AND WARD. 
 
 ARTICLE 1. 
 
 Their Appointment, Power, Duties, Liabilities, 
 Settlements, Resignation, Etc. 
 
 Section 1. Their Appointment, Etc. 
 
 There are tliree kinds of guardians, relatively to the appointing- 
 power: 1. Natural guardians, or guardians appointed by nature, 
 such as the father, or if he is dead, the mother, etc. 2. Testamen- 
 tary guardians, or those 'appointed by mil. 3. General guardians, 
 "by whom," says Judge Reese, "are meant such as are appointed 
 by tihe ordinary." See §§2512 et seg. 
 
 A notable instance of oommon misapprehension of what the law is, 
 may be found in the difficulty which a natural or testamentary guardian 
 sometimes meets in getting banks and other financial institutions to 
 turn over to him money or property of his ward, in the alisence of letters 
 of guardianship. 
 
 Until a guardian's bond is accepted by the ordinary, tbe natural guardiaa 
 cannot demand or receive property of child, §2513, neither corpus, nor in- 
 come; e. ()., stock dividends, 46 G-a. 543. But where railroad paid divi- 
 dends to natural guardian, who spent same for b'eneflt of ward, railroad' 
 entitled to be credited therewith in equity, 46 Ga. 557. 
 
 Generally, testamentary guardian not required to give bond, §2514, 90 Ga. 
 287. Exceptions are (1) in case of waste committed or apprehended, (2( 
 in case of property coming to ward from sources other than father's will, 
 §2514. Ball by testamentary iguardian to recover property coaming tO' 
 ward independently of the will demurrable unless it alleged that bond and 
 security given, 16 Ga. 364, cited and limited 88 Ga. 724. 
 
 Bond required of all guardians appointed by the Ordinary, §2528. Let- 
 ters granted without bond not void as against liona fide purchaser from 
 guardian, 13 Ga. 10, 64 Ga. 78. 
 
 =■' Wha'ever usefulness this chapter possesses is principally due to Judge W. M. Reese 
 author of the well-known "Treatise on tlii Law o£ Exeeut irs, Administrators and Guard- 
 ians " and to Hon. C. M. Wiley, ordinary of Bibb county. The former very Icindly gave m& 
 permission to use such of the form? contiineJ in his work as I djsirad. The latter has 
 brought to bear upon the present chapter a long practic il experience aided by many years of 
 studious and conscientious attention to the duties of liis office. 
 
AND PKAOTIOE. 107 
 
 Application for Guardianship of Minor Over 14 ; §2516. 
 n'hh c ■ ' r -^^ ^^^^ Ordinary of said County: 
 
 Bibb County. 
 
 Tiie petition of John Jones, a resident of said State, respectfully 
 sliows that Walter Brown is a minor over the ^age of 14 years, re- 
 siding in said county; that there is coming to him from the estate 
 of Henry Brown, property both real and personal, of the probable 
 
 value of dollars; that petitioner desires to be appointed 
 
 guardian of the person and property of said minor, and that said 
 minor has selected your petitioner as such guardian. 
 
 A writing signed by said minor, declaring said choice, is attached 
 to this application. 
 
 Wherefore petitioner prays that an order be passed sanctioning 
 such selection and appointing petitioner guardian of the person and 
 property of said minor. 
 
 John Jones, 
 Petitioner. 
 
 I hereby select John Jones as guardian of my person and prop- 
 erty. This — day of , 18—. 
 
 Walter Brown. 
 
 The general rules of decision, and of practice, by which the ordinary 
 should be guided in appointing a guardian will be found collected in the 
 annotations under the forms (hereinafter) for application for guardian- 
 ship when the child is under fourteen years of age (q. v.). 
 
 The Ordinary of the county of minor's domicile (minor having no guard- 
 ian) shall have power of appointing a guardian, §2516. See 74 Ga. 539. 
 Appointment of a guardian not provable by parol being matter of rec- 
 ord, 14 Ga. 185. When ward comes to years of discretion, guardian's dom- 
 icile is not his unless he so chooses, 18 Ga. 5. 
 
 Ward over fourteen shall have privilege of selecting guardian, subject 
 to Ordinary's refusal to sanction it if injudicious, §2516, 14 Ga. 594. Ordi- 
 nary may consult child's wishes though 14, but not bound to do so, 91 Ga. 90. 
 
 May reject child's nominee and appoint child's mother, 64 Ga. 258. Or- 
 dinary's refusal to sanction such choice once does not necessarily bar a 
 second application, 50 Ga. 332. Ward having once exercised this privi- 
 lege cannot do so again except on good cause shown for removal of first 
 selection, §2516. 
 
 Order Appointing Guardian. 
 
 Bibb Court of Ordinary, 
 
 Term, 18—. 
 
 The foregoing application of John Jones to be appointed guard- 
 ian of Walter Brown, a minor, coming on to be heard, and the 
 facts therein alleged being shown to the court to be true and the 
 
108 GEOEGIA FORMS 
 
 selection of said John Jones by said minor appearing judicious, 
 it is ordered tliat said John Jones he, and he is 'hereiby, appointed 
 guai'dian of the person and property of said Walter Brown upon 
 his giving bond and security in the sum of dollars, and tak- 
 ing the oath of office. 
 
 In open court, this — day of , 18 — . 
 
 C. 31. Wiley, 
 
 Ordinary. 
 
 Appointment of guardian must be at a regular term, §4252. Appoint- 
 ment at chambers void, 72 <Ja, 125; and returns not eTldence, lb; no such 
 thing as de facto guardian, n. Appointment of guardian in vacation and 
 witbiout notice was void and a public sale by him of land passed no title, 
 87 Ga. 75. 
 
 As supplemental to the above, I here append forms taken by permission 
 of Judge W. M. Reese, from his book on Executors, etc. 
 
 Pbtitiox by Minor to Appoint Guabdian op His Selection. 
 
 The petition of A B, a resident of said county, and a minor child of C 
 D, recently deceased, respectfully shiows to the court that he is over four- 
 teen years of age; that he desires to have a guardian appointed ifor himself, 
 to take charge of his person and property in said State; that he has selected 
 as such guardian Ms friend and relative, E F, and prays the court to sanc- 
 tion 7ms choice, and appoint said E F his guardian, said E F residing in 
 said State. 
 
 The following is also (substantially) from Judge Reese's work: 
 
 Petition by Minor for Removal oe Guardian and Appointment of 
 
 Another. 
 
 The petition of A B, a minor child of C D, shows to the court that he 
 is fourteen years of age, and resides in said county; that he is not satisfied 
 with Ills present guardian, but desires his removal and wishes the court to 
 appoint as guardian of Ms person and property in said State E F, a, resi- 
 dent of said State, who consents to act. 
 
 (Signed) A B. 
 
 The right to change guardians as above existed before the Code, 14 Ga. 
 594, and was not affected by the Code, 50 Ga. 334, and the first guardian's 
 letters must be revoked before successor is appointed, 6 Ga. 432. 
 
 Rule Njsi, Ere. 
 
 tTpon presentation of the foregoing the ordinary may issue a rule directed 
 to the former guardian, which sJiould be served ten days before the next 
 term of court, calling upon him to show cause why his letters of guardian- 
 ship should not be revoked. And if no good cause be then shown, order 
 may be passed revoking first guardian's letters and appointing successor. 
 Reese on Bx'rs, etc., p. 444. 
 
AND PKAOTICE. 109 
 
 Application foe Guardianship of Mince Undee 14 ; §2527. 
 Georgia, Bibb County. 
 
 To the Ordinary of said County: 
 
 The petition of John Jones, a resident of said state (a), respect- 
 fully shows that Walter Broken is a minor residing in said county 
 (b), under the age 14 years, to wit: of the age of — years, said 
 minor being the child of Charles Broion, late of said county, de- 
 ceased, (c) Said minor is entitled to receive from the estate of 
 said deceased, both real and personal property of the probable value 
 of -^ ■ dollars, and it is necessary that a guardian should be ap- 
 pointed to take charge of the person and property of the said minor. 
 
 Wherefore petitioner prays to be appointed such guardian, and 
 that citation issue and be published in that behalf. 
 
 John Jones, 
 Petitioner. 
 
 (a) "While tiiere is no express provision in tlis Code against tlie appoint- 
 ment of a non-resident as guardian by the court of ordinary, there are 
 many sections of the Code showing that such an appointment would be 
 illegal." Reese on Executors, etc., p. 269. 
 
 (6) Ordinary could not appoint guardian here, minor not resident of 
 county, 25 Ga. 613. One who procures an appointment as guardian cannot, 
 when sued as such, set up that ward did not reside in the county when he 
 Was appointed guardian, 25 Ga. 696. Appointment by Alabama probate 
 court of guardian for infants residing at the time in Georgia, void for want 
 of jurisdiction of their persons, 34 Ga. 253. Guardian could be appointed 
 for orphans in county where father domiciled at death, although they were 
 removed to Alabama pending application in Georgia and guardian appointed 
 there, 74 Ga. 539. Where minors removed to another county after death 
 of their parents, caveat to application for guardianship in the county from 
 whence they moved was properly sustained, 15 Ga. 414. If minor non-res- 
 ident of State have property here, ordinary of county where property is 
 may appoint guardian to control such property, §2517. 
 
 (c) Guardian appointed for bastard, when necessary, §2526. Every father 
 may by will appoint guardians for the person or property, or both, of his 
 child, §2514. 
 
 Gmerally. —Fsither if alive, is the natural guardian, §2513; and entitled 
 to custody and control of child, 33 Ga. 196. Executor of a will is not, as 
 suoh, entitled to custody of minors, 34 Ga. 253. Under a total divorce ver- 
 dict giving wife custody of child, she cannot appoint a testamentary guard- 
 ian, the father surviving, 33 Ga. 195; such guardianship was a personal 
 trust not transmissible by will, revocable during her life and revoked by 
 her death, II). A testator cannot appoint guardian for the ohild of anybody 
 else, 79 Ga. 398; and such an appointee will hold property divided in the 
 will as trustee, not as guardian, Ih. Mother, if a widow, may appoint tes- 
 tamentary guardian as to person, and as to property coming from her, 
 when the Child has no guardian, §2515. 
 
 For other decisions on the appointment of guardians see notes to the 
 form (below) for Order Appointing Guardian. 
 
110 GEORGIA FOEMS 
 
 Oeder for Citation ; §2527. 
 
 Biii Court of Ordinary, 
 
 At Chambers, — day of , 18 — . 
 
 The foregoing application of John Jones, a resident of the State 
 ■of Georgia, to be appointed guardian of the person and property of 
 Walter Brown, a minor under the age of fourteen years, having 
 been duly filed. 
 
 It is ordered that citation issue and be published as provided 
 by law. 
 
 C. M. Wiley, 
 
 Ordinary. 
 
 Citation; §2527. 
 
 ■GEOEGrA, Bibb County. 
 
 Johti Jones, a resident of said State, having duly applied to be 
 appointed guardian of the person and property of W filter Brown, 
 a minor under the age of fourteen years, resident in said county, 
 notice is hereby given that said application will be passed on at the 
 jiext court of ordinary for said county, to be held on the first Mon- 
 day in February, 18 — . 
 
 Witness my hand and ofiicial signature this — day of , 18 — . 
 
 G. M. Wiley, 
 Ordinary Bihh County. 
 
 In every application for guardiansliip of minor under 14, other than ap- 
 plicant's child, 30 days' newspaper notice before term of granting requi- 
 site, §2527. Appointment must be made at regular term, §2529. 
 
 Order Appointing Guardian ; §2528. 
 
 Bihb Court of Ordinary, 
 Term, , 18 — . 
 
 The application of John Jones, a resident of the State of Geor- 
 gia, to be appointed guardian of the person and property of Walter 
 Broicn, a minor residing in said county, read and considered. It 
 appearing to the court that citation has been duly published in 
 terms of the law, and no objections having been made, and it 
 further appearing that said John Jones is a proper person to be 
 appointed guardian as prayed for. 
 
 It is ordered that said John Jones be, and he is hereby, appointed 
 guardian of the person and property of said Walter Brmon. 
 
AND PEACTICE. Ill 
 
 Let letters of guardianship issue to said applicant, Jolih Jones, 
 
 upon his taking the usual oath and giving bond in the sum of 
 
 ■dollars. 
 
 This the — day of , 18—. 
 
 C. M. Wiley, 
 
 Ordinary. 
 
 Purchaser at guardian's sale must at his peril look to the legality of 
 guardian's appointment and power to sell, 87 Ga. 77. 
 
 Held (1849) that 'order oif appointment must show jurisdiotion of ward's 
 
 •person or property; that court of ordinary is court of limdted jurisdiction 
 
 -and that facts necessary to give jurisdiction of particular subject-matter 
 
 should afflrmatively appear upon face of its judgment and proceedings, when 
 
 •offered in evidence in any other court, and hence that where record of 
 
 guardian's appointment was offered to prove his appointment, and it was 
 
 proven that ward was not residing in county at time of such appointment, 
 
 .such record being silent as to ward having any property in county at time, 
 
 was properly rejected, 7 Ga. 362, but this view was questioned in 8 Ga. 
 
 236 and disapproved 13 Ga. 1, 14 Ga 31, 18 Ga. 526. Jurisdiction presumed; 
 
 necessary jurisdictional facts need not appear, 54 Ga. 87, 72 Ga. 725. 
 
 In a contest between two grandmothers for guardianship of orphan 
 
 • children, other things being equal, not error to prefer the wealthier grand- 
 mother, 91 Ga. 90. The power of appointing to be exercised for child's ben- 
 efit not the applicant's, 31 Ga. 716; dying request of parents should be con- 
 sidered, 76. A kinsman, however near, has no right as such to guardian- 
 
 ■ ship of a child other than his own, lb. 
 
 In appointment of guardians, widowed mother preferred, upon comply- 
 ing with the law, §2518. Among collaterals, the nearest of kin by blood, 
 if otherwise unobjectionable, shall be preferred — males being preferred to 
 
 rfemales, §2518. A charge that "other things being equal," relations preferred 
 limits too much the statutory right of the blood kin, 44 Ga. 485. But where 
 child's father delivered it indefinitely into the custody of a friend who took 
 and cared for it during the father's life and afterwards, such friend pre- 
 ferred to next of kin, 68 Ga. 87. Being Universalist or infidel not disqual- 
 ify for guardianship, 41 Ga. 183. 
 
 No one applying for guardianship, necessity existing, ordinary may af- 
 ter 30 days' notice, appoint county administrator, clerk superior court, or 
 
 .any fit resident of the county, §2520. 
 
 GuARDiAis's Oath ; §2528. 
 I, , do solemnly swear that I will well and truly perform the 
 
 • duties required of me as guardian of , and faithfully account 
 
 with my said ward for his estate, so help me God. 
 
 Sworn to and subscribed before me this — day of , 18 — . 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 Every guardian before entering on his duties must take oath as above, 
 ^§2528, which may be done in vacation, the appointment having been made 
 . at a regular term, §2529. 
 
 See also notes following the guardian's bond, below. 
 
112 GEORGIA FORMS 
 
 Guardian's Bond; §2528. 
 Georgia, Bibb County. 
 
 Know all men by tlvese presents, That we, John Jones, principal, 
 -and Thomas Johnson, surety, acknowledge ourseilves bound unto 
 Clmrlcs M. Wiley, orddnary of said county, and his successors in 
 
 oiEce, in the sum of dollars, for the true payment of which 
 
 we jointly and severally bind ourselves, our heirs and assigns, by 
 these presents. 
 
 Sealed with our seals, and dated this — day of , 18 — . 
 
 The condition of the above bond or obligation is such. That 
 whereas the above-bound Johw Jones has this day been appointed 
 guardian of Walter Brown, a minor; now if the said John Jones 
 shall faithfully discharge his duty as such guardian agreeably to 
 law in suoh oases provided, then this bond shall be void, else of full 
 force and effect. 
 
 John Jones. [l.s.] 
 
 Thomas Johnson, [l.s.] 
 Tested and approved by 
 C. M. Wiley, 
 
 Ordinary Bibb County. 
 
 Bond must be required, §2528; but grant of letters without "bond not void 
 as against hona fide purchaser, 64 Ga. 78. Bare reception of ward's estate in- 
 suflaclent to charge guardian's security; breach of bond by some default, 
 prior to surety's discharge must aflirmatively appear, 1 Ga. 84; bare recep- 
 tion not per s,e breach, 6 Ga. 303. Demand must be proved, 14 Ga. 594. 
 Guardian responsible for only such property of ward as is accessible to 
 him, 27 Ga. 56. Generally, execution against principal and surety may 
 proceed against either, 57 Ga. 68. Measure of damages — total of accruing 
 principal and interest, 6 Ga. 303. If failure to sue guardian arose from his 
 voluntary act, judgment against sureties shall be conclusive in aiiy suit 
 against him, §2535. This looks to suit by sureties for reimbui-B* nent as well 
 ao by ward for breach of trust, 71 Ga. 53. Guardian failing to settle with 
 ward at majority, ward may sue him and his sureties jointly without first 
 suing him, §2536. Guardian removing to another county may remove guard- 
 ianship also, how §2537. In such a case sureties on guardian's first bond 
 liable only for past misconduct; sureties on new bond liable for both past 
 and future misconduct, §2537, 1 Ga. 84, 355, 368; 6 Ga. 432. Guardian ad 
 litem appointed for minor who has no guardian, or whose interest conflicts 
 with his guardian's, liability of same as that of regular guardian, §2538. 
 Decree of devastavit against guardian admissible against surety as prima 
 facie evidence of devastavit, but not conclusive, 1 Ga. 356. Revocation of 
 letters not abate suit against guardian; successor made party by set. fa., 
 §2534. As to suits on guardian's bond, generally, see §2535. 
 
 Guardian's bond an office paper of court of ordinary; in suit on it, party 
 not entitled to custody of original, but to a certified copy only; copy not 
 established pending suit, 1 Ga. 355. Oath may be taken and bond given at 
 
AND PEACTICE. U3 
 
 any time in vacation, §2529. Bond must be recorded and original kept of 
 file, §2529. 
 
 Guardian's appointment void, sureties nevertheless bound, §2554. 
 
 Judgment against guardian prerequisite to suit on bond, 6 Ga. 303, 7 Ga, 
 31, 9 Ga. 66, and it must tie a binding judgment against the guardian gen- 
 erally and not a particular fund, 71 Ga, 50. AUter, however, as to suit on 
 the bond against the guardian alone, because such a suit is against him in 
 that character, 10 Ga. 65. Liability of guardian's surety not primary but 
 ultimate; suit on bond not maintainable at law until judgment against 
 guardian as such has established devastavit, 1 Ga. 37, 7 Ga. 33, 6 Ga. 303. 
 But error to dismiss on demurrer ward's bill against guardian for settle- 
 ment, alleging discharge of sureties and waste before their discliarge and 
 seeking to fix the time of tlie waste (with view to charge sureties in future 
 action), 7 Ga. 587. So also, such a bill against two sets of sureties, brought 
 to charge each according to their respective liability, is maintainable 
 without first obtaining judgment against principal, 7 Ga. 549; but in- 
 solvency of the principal is a necessary allegation in a bill of this kind, 
 17 Ga. 52, 32 Ga. 63. A second guardian's suit on bond of his predecessor 
 for not turning over property should allege demand and refusal, 14 Ga. 594. 
 Joint bond given by two guardians of same ward, each is surety for other, 
 and the sureties on the bond are liable for devastavit committed by either, 
 93 Ga. 648. 
 
 In suit on guardian's bond, proof that during ward's minority such guard- 
 ian received assets belonging to the ward puts burden on defendant to 
 show a legal disposition of such assets, 93 Ga. 651, see also 1 Ga. 372, 374. 
 
 Creditors of guardians have same remedies against them and their 
 bondsmen under §2535 as are given by §3501 to creditors against execu- 
 tors and administrators, 96 Ga. 260; hence, after judgment against A 
 as guardian, and return of nulla hona, a joint suit against A and his sure- 
 ties was maintainable, 7&. A dormant judgment is evidence of a debt 
 due, 8 Ga. 352. Entry of nulla bona on execution issued therefrom, made 
 before dormancy, admissible to prove devastavit in ward's suit against his 
 guardian's sureties, lb. Additional property coming to ward after guardian 
 appointed additional bond may be required with security in double such 
 property; and on guardian's failure to comply, ordinary may appoint spec- 
 ial guardian for such property, §2530. For a form of bond under this part 
 of this section see Reese on Executors, etc., p. 441. 
 
 Whenever it shall come to the knowledge of the ordinary that any 
 guardian's bond insufficient, he shall cite such guardian to next term of his 
 court, to give additional or new bond, and on non-compliance such guard- 
 ian's authority shall cease and a successor shall be appointed, §2530. On 
 information of misconduct, ordinary shall cite guardian to some regular 
 term of his court, investigate and revoke letters or pass some other proper 
 order, §2532. Agreement by guardian to invest ward's money in bonds 
 and deposit them with surety as indemnity, not against public policy, 70 
 Ga. 454; distinguishing liability of receiver, etc., who parts with control 
 of receivership funds to indemnify his surety, 76. 
 
 Ordinary may require additional bond, but this is merely cumulative, and 
 does not release former surety, 88 Ga. 724. Death of surety does not abate 
 letters of guardianship; ordinary continuing to recognize guardian as such, 
 sale by him passes title, 80 Ga. 138. 
 
11^ GEORGIA FORMS 
 
 Letters of Guardiaxship. 
 Georgia, Bibb County. 
 
 To all whom it may concern: 
 
 "Whereas, Application has been made in proper form for the ap- 
 pointment of a guardian for the person and property of Walter 
 Brown, a minor residing in said county, child of Charles Brown, 
 late of said county, deceased, and John Jones, has been, by order 
 duly passed, appointed guardian, and has given the bond required 
 and qualified as such, 
 
 ]N"ow, know ye, that the said John Jones is, by these presents, 
 authorized, enipowered and directed to receive, collect and tako 
 charge of the estate, both real and personal, of the said Walter 
 Broicn, and to do all other things which are required of him by law, 
 as guardian of said minor, with all the authority and powers usual 
 in such cases. 
 
 Witness my hand and seal of office this — day of , 18 — . 
 
 C. M. Wiley, 
 
 Ordinary. 
 
 Letters of guardianship can be granted only at a regular term of court 
 of ordinary, §4252, and proceedings showing such grant at chambers void 
 on face, 72 Ga. 125. Issuing letters of guardianship is a merely clerical 
 act and intended only as prima facie evidence of the proceedings of the 
 court, 14 Ga. 30. Revocation of first guardian's letters prerequisite to ap- 
 pointment of a successor, 14 Ga. 594. Hence, where first guardian was 
 appointed in Muscogee county and minor moved to Pulaski county, and, 
 arriving at age of 14, selected a second guardian, those letters granted in 
 Pulaski before revocation of first letters were improperly granted. 16. 
 Appointment void, bond is void, 6 Ga. 432. Where a widow, being guard- 
 ian for her children, remarried in 1868, her letters of guardianship did not 
 abate and she could be cited before ordinary for a settlement, 73 Ga. 319. 
 
 Petition to be Relikved as Surety ; §2533. 
 
 Georgia, Bibb County. 
 
 To the Ordinary of said County: 
 
 The petition of A B, security on the bond given by C D, for 
 
 the guardianship of E F's estate, shows that said A B desires to 
 
 be relieved as such security, for the following reasons, to wit: (State 
 
 reasons.) 
 
 A B. 
 
 Surety wishing to be relieved may complain to ordinary who shall cite 
 guardian to regular term of court, and discharge surety, etc., in discretion; 
 new sureties shall be liahle for past as well as future misconduct; dis- 
 charged surety relieved only from new one's acceptance, §2533. Death of 
 surety shall be sufficient ground for discharge on application of representa- 
 tive, /6. 
 
AND PRACTICE. 115 
 
 Citation; §2533. 
 
 The foregoing petition of A B, security for G D, guardian of 
 E F, praying to be relieved from such suretyship, read and con- 
 sidered. 
 
 Ordered, that G. D. show oause at the next term of this court, to 
 
 be holden on the — day of next, why said application should 
 
 not be granted. Let a copy of said petition, and of this order be 
 served upon said G. D. ten days before tihe next term of this court. 
 
 This — day of , 18—. 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 Order Eblievijs'g Surety. 
 
 Bihi Court of Ordinary, 
 
 Term, 18—. 
 
 A rule nisi having heretofore duly issued upon the petition of 
 A B, security upon the bond of (7 Z) as guardian of E F, pray- 
 ing to be relieved from such suretyship and said rule having been 
 duly served upon said G D, after hearing the evidence, Ordered 
 that said A B he discharged from all future liability as such secur- 
 ity from the time new and sufScient security shall be furnished 
 by said G D, and said (7 D is hereby required to give such new 
 security or be discharged from his trust. 
 
 This — day of , 18—. 
 
 C. M. Wiley, 
 
 Ordinary. 
 
 Principal's agreement with surety to get anotiier surety later on not 
 binding on ordinary, 15 Ga. 74. Petition and citation as required by §4254 
 necessary, 56 Ga. 304. Discharge by merely accepting n-ew bond and de- 
 claring old surety discharged void, II). Order of discharge not reciting 
 that surety petitioned, or that guardian was cited, and these facts not oth- 
 erwise appearing, but order on its face rather indicating consent proceed- 
 ing no presumption that more done than set forth in record, 56 Ga. 304. 
 
 As between second surety and his predecessor, second is first bound, and 
 liability is several, not joint, 77 Ga. 570. Second surety's liability is pri- 
 mary, and he has nb right of indemnity or contribution from first, 94 Ga. 
 405; agreement made by first surety's administrator with second surety 
 to "share the burden equally" not binding, IB. 
 
116 GEORGIA EORMS 
 
 Section 2. Powers, Duties and Liabilities of Guardians. 
 
 Guardian's Return, Form of, Suggested. 
 Annual return of A B as guardian of G D. 
 
 Dr. 
 
 To casli received , 18 — , from E F, administrator of 
 
 , as share coming to said minor $5,000 00 
 
 Cr. 
 
 By commissions for receiving $125 00 
 
 By cash paid C. M. Wiley, Ordinary, as per voucher No. 1 6 00 
 By cash paid Jonathan Pedagogue, for schooling of G D, 
 
 as per voucher J^o. 2 40 00 
 
 By cash paid Dessau, Bartlett <& Ellis, attorneys at law, 
 
 for professional services rendered, as per voucher No. 3 50 00 
 Etc., etc., etc. 
 
 Accompany the returns by the vouchers referred to, §2540. Guardians 
 allowed same commissions as administrators, §2552, §3484. As to which 
 see also 17 G-a. 223, 29 Ga. 82, 758. No oommissions are allowed for turn- 
 ing over estate to new guardian, or to latter for receiving same; guardian 
 removed for misconduct, no commissions whatever allowed, §2553. 
 
 Every guardian, within twelve months from appointment, and by first 
 Monday in July each year thereafter, shall make sworn return to ordinary 
 making an accurate exhibit of all property of ward received by him to date 
 and since last return, with an account current of receipts and vouchers 
 therefor, §2540. Failure to make returns puts burden on guardian when 
 sued to show faithful discharge of duty, 24 Ga, 558. 
 
 Ordinary shall examine returns, and if correct, shall allow them, and 
 record them with the vouchers, §2540. Guardian's receipt to himself not 
 evidence, 22 Ga. 312. Guardian returning property ten consecutive years 
 estopped to set up title thereto in himself, 11 Ga. 258. To cash paid for 
 
 schooling, clothing and tuition of said from 1st January, 1848, to 17th 
 
 April, 1855 No. 6. — $500.00. Such a voucher not too general to be 
 
 admitted in evidence; as to how accounts thus presented ought to be 
 proved, 22 Ga. 312. 
 
 Quality of board, clothing, etc., supplied, proved by one who knew 
 their value when furnished, 72 Ga. 558. Attorney's receipt for professional 
 services not sufficient proof; should appear that same a proper charge, 22 
 Ga. 318; the receipt ought to specify the services rendered, 16. Debt con- 
 tracted before dismission as guardian paid after dismission and h'ence never 
 approved by ordinary, payment may be shown otherwise, 1 Ga. 475. When 
 guardian charges himself with cash he cannot afterwards plead that the 
 amount merely represented notes good then but since become worthless, 
 57 Ga. 226. 
 
 Ordinary's judgment of approval shall be prima facie evidence of cor- 
 rectness of return for the guardian, §2540, or against him, 68 Ga. 399; but 
 not conclusive evidence, 5 Ga. 29, 45 Ga. 520; guardian may explain them 
 by parol, 59 Ga. 213; rebutted by admission in pleading of irregularity in 
 returns, 6 Ga. 419. Se« also 72 Ga. 558. 
 
AND PKACTIOE. 117 
 
 The original returns not evidence; it is tlie judgment thereon that makes 
 them evidence and that must appear by exemplification, 67 Ga. 466. Hence, 
 on appeal from judgment approving returns, the vouchers are not even pri- 
 ma facie evidence, 22 Ga. 312. Returns made after guardian's discharge not 
 evidence, 79 Ga. 278; record without approval not make returns evidence, 
 76. If judgment approving returns is not had at next term after re- 
 turns rendered, it is irregular but not void; not attacked collaterally; re- 
 turns admissible while it is unrevoked, in ward's suit against guardian, 10 
 Ga. 65. But appointment of guardian void because made in vacation, judg- 
 ment approving returns likewise void and not evidence, 72 Ga. 125. Plead- 
 ing attacking approved returns should point out specific items; merely to 
 allege that return for given year unlawful as to specific amount not enough, 
 89 Ga. 656. 
 
 Guardian credited with improvements put on land, but charged with rent 
 as thus Increased, 29 Ga. 82. 
 
 Rule of interest as against guardian, 29 Ga. 82. 
 
 IT guardian removed beyond limits of State, surety may verify return; 
 if dead, his representatives may make his returns as in case of deceased 
 administrators, §2540; see 29 Ga. 82. 
 
 Ordinary shall keep guardian's docket; shall cite before him guardians 
 falling to make returns, §2544. 
 
 Extravagant expenditures for advanced education of ward condemned, 
 20 Ga. 6. 
 
 Guardian's Petition for Sale for Reinvestment; §§2545-6 
 
 Georgia, Bihh County. 
 
 To the Hon. W. H. Felton, Jr. , Judge of the Superior Court of said County : 
 
 The petition of A B shews: 
 
 1. That lie is guardian of G D, heretofore duly appointed as 
 such guardian in said county. 
 
 2. That he desires to sell for reinv^tment at private sale the 
 following property, the same being a part of the estate of his said 
 ward, to wit: 5 shares of the capital stock of the Southwestern 
 Railroad, evidenced iy cer-tificates numbered 6S1, 632, 633, 63Jf 
 and 635. 
 
 3. Said stock pays no dividend, and for some time past has paid 
 none, and is continually fluctuating in value, on account of the 
 fact that the prosperity which said railroad company once enjoyed 
 no longer continues; and said investment has become a precarious 
 one. 
 
 4. Petitioner desires to invest the proceeds of such sale in cer- 
 tain farming lands, to wit: (describing them). 
 
 5. Petitioner shows that notice of his intention to make this 
 
118 GEOEGIA FOEMS 
 
 application bas been paiblisbed once a week for four weeks, as re- 
 quired by law. 
 
 AB. 
 Sworn to and subscribed before me, this - — day of , 18 — . 
 
 Notary Public Biih County, Georgia. 
 
 Advertisement Preliminary to Above Petition ; §2546. 
 Geoegia, Bibb County. 
 
 After four weeks notice, pursuant to §2546 of the Civil Code, 
 a petition, of which a true and correct copy is subjoined, will 
 be presented to the Hon. W. E. Felton, Jr., Judge of the Superior 
 
 Court, at the court house in said county, on the ■ — day of , 
 
 18—. 
 
 A. B. 
 (Attach copy of petition referred to.) 
 
 Stcrytcb. 
 Ten days before the hearing the guardian shall cause a copy of said peti- 
 tion to he served personally on each of his wards who is over the age of 
 fourteen, and also on one or more of the next of kin of such ward or wards, 
 which next of kin must be other than the guardian, §2546. 
 
 Guardian Ad Litem. 
 After the minors have been brought into cotirt, so to speak, by service, 
 the judge shall appoint a guardian ad litem, as provided for the sale of trust 
 estates where minors are interested, §2546. Prior to this act, guardian ad 
 litem was unnecessary, 79 Ga. 753, 80 Ga. 142. Sales of trust estates are 
 governed by §§4863 et seq., the subject matter of which will be found eluci- 
 dated, it is hoped, by the annotated forms under that part of the Code. 
 Por said forms, consult Trust Estates in index. 
 
 Order to Sell for Reinvestment ; §2546. 
 
 At Chambers, Macon, Ga., • — day of , 18 — . 
 
 The foregoing petition of A B, guardian of G D, for leave 
 
 to sell for reinvestment certain of the property of said C D, to 
 
 wit : 5 shares of the capital stocTc of the Southwestern Railroad, 
 
 evidenced by certificates numbered 631 to 635 inclusive, read and 
 
 considered. 
 
 And it appearing, after careful examination into the matter, and 
 by evidence other than the verified petition, that the order prayed 
 for should be granted. 
 
 Ordered that said A B, guardian, be, and he is hereby, author- 
 ized to sell said property (here the order should fix the terms, time 
 and place, specifying whether the sale shall be public or private, 
 and whether for cash or on credit, etc.) 
 
AND PKACTICE. 119 
 
 Ordered further, tiliat he do make report of such investment as 
 required by law. 
 
 Ordered further, that these proceedings be entered on the min- 
 utes of the Superior Court of said county, and that said guardian 
 pay the cost of these proceedings out of the trust funds. 
 
 This — day of , 18—. 
 
 W. H. Felton, Jr., 
 
 J. S. C. M. 0. 
 
 All other sales of ward's property, except as above, shall be made under 
 the direction of the ordinary, and under the same rules and restrictions 
 as are preiscribed for sales by administrators of estates, §2547. And for ad- 
 minlsitrator's sales, see §§3245 et sey. 
 
 Expenses must not exceed profits of ward's estate except by approval of 
 ordinary previously granted, §2541. 
 
 Guakdian's Petition to Encroach on Corpus of Estate. 
 
 [Taken by permission of Judge Reese rrjm his worlc on Executors, etc., p. 455. J 
 
 GEOEGii, Sibb County. 
 
 To tlve Ordinary of said County : 
 
 The petition of A B, guardian of G D, respectfully shows that 
 the property he holds as such guardian of C D, is entirely insuffi- 
 cient for his maintenance and education; that the annual profits of 
 said G D's whole estate in petitioner's hands amounts to the sum of 
 seventy dollars; that said G D's necessary annual expenses amount 
 to one hundred and fifty dollars; that the welfare of said G D and 
 his best interest will be promoted by selling a portion of G D's 
 property, and applying the proceeds judiciously to said G D's edu- 
 cation and other necessary expenses; that under the actual circum- 
 stances of said G D's situation it would be unwise to bind him out. 
 
 Wherefore your petitioner prays leave to sell off a portion of 
 said G D's estate in his hands, and a direction as to how the same 
 shall be appropriated. A B. 
 
 Order to Encroach on Corpus of Estate. 
 
 [Taken by permission of Judge Reese from his work on Executors, etc., p. 4.36. J 
 
 Bihi Court of Ordinary. 
 
 Term, 18—. 
 
 The foregoing petition of A B, guardian of G D, read and con- 
 sidered. It appearing from the return of said A i? as guardian, 
 and from his statement made before me on oath as to the actual 
 value and income of C D's property, that the annual profits thereof 
 are insufficient for G D's proper support and maintenance, it is 
 ordered by this court that said guardian be, and he is hereby, au- 
 
120 GEORGIA FORMS 
 
 tliorized to sell , belonging to said minor, at the usual time aud 
 
 place, giving the usual notice, and that he apply from the net pro- 
 ceeds of said sale, the sum of one hundred dollars annually until the 
 same is exhausted. 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 If income of any orplian, witli or without a guardian, insufficient for 
 liis education and maintenance, and ordinary shall not allow corpus used, 
 tie shall bind out such orphan, §2542. Consult index for Forms for Binding 
 Out Minors. 
 
 Guardian ad litem never appointed, in guardian's application to sell prop- 
 erty, "so far as we know, or can ascertain from the older members of 
 the profession," 80 Ga. 143. (The exception made by the act of 1889, pro- 
 viding for sales for reinvestment, §2546, has already been noticed.) 
 
 Renting land, order necessary, §2548. 
 
 Guardian may contract for labor or service for ward's estate subject to 
 ordinary's approval, §§2549, 3182. 
 
 Cannot borrow money nor bind ward's property otherwisie than as 
 specially allowed by law, §2555. Note here mentioning maker as guardian 
 was merely an individual liability, 39 Ga. 133. Guardian may transfer note 
 or other negotiable paper in usual way, 33 Ga. 372. 
 
 Guardian may invest in State bonds without order, §2551. 
 
 Father unable to educate child properly, ordinary may allow encroach- 
 ment on corpus of estate in his hands as guardian, 80 Ga. 138. Income not 
 consumed one year using balance next year, proper; such balance not 
 corpus, 55 Ga. 89. Where corpus encroached on without order of court of 
 ordinary ward not bound unless he settles with full knowledge, 59 Ga. T93, 
 20 'Ga.7, 27 Ga. 78. Single circumstances of expenses exceeding income does 
 not render them unreasonable, 29 Ga. 582. The returns are notice of such 
 circumstances to the ordinary, 20 Ga. 325; approval of them is consent to 
 encroachment on corpus, 72 Ga. 564. Order prior to disbursement not indis- 
 pensable, 61 Ga. 452. 
 
 Private agreement for public sale against public policy, 56 Ga. 40, 80 Ga. 
 683. Sale without order void and not curable, 60 Ga. 677, 403. Minor can- 
 not make legal sale of land to her guardian, but taking benefits with notice 
 alteo- majority ratifies, 65 Ga. 323; as to such ratification of guardian's 
 alleged sale, 92 Ga. 265. 
 
 Guardian may under order sell vested remainder interest, 93 Ga. 420. 
 Guardian's Deed. 
 
 §2547 provides that guardians' sales under direction of Ordinary shall 
 follow the law of administrator's sales. See that subject hereafter, for a 
 form for an administrator's deed, which will suffice as a guide in drawing 
 a guardian's deed. The few changes necessary, such as changing "duly 
 constituted administrator" to "duly constituted guardian," etc., will sug- 
 gest themselves to the wayfaring man. 
 
 SeCTIOX 3. ' SETTL,EME^■T OF GUARDIAN, RESIGNATION AND 
 
 Letters Dismissory. 
 
 A ward, on arriving at majority, may cite his guardian to a settle- 
 ment, §2557. So, a newly-appointed guardian may cite his pre- 
 decessor, II). 
 
AND PKACTICE. 121 
 
 On the other hand, the guardian may take a receipt from the- 
 ward, as indicated below, and have the same recorded, §2564. 
 
 Final Receipt; §2564. 
 
 This is to certify, That A B, guardian of the undetrsigned C D, 
 
 has this day paid over to said C D, the sum of — dollars, in cash, 
 
 and has also turned over to said C D the following proiperty, to wit, 
 
 , and said money and property have this day been received and 
 
 accepted by said G D, in full settlement of all claims on the part 
 of said G D against 7m said guardian. 
 
 In witness whereof, the said G D has set his hand and seal, this- 
 the — day of , 18—. G D. 
 
 Signed, sealed and delivered in presence of 
 
 J. H. L. Gerdine, 
 
 N. P. and enn officio J. P., Bilh County, Ga. 
 
 When the final receipt of the ward is attested by a judge, juptice of the 
 peace, or notary public, it may be recorded in the ofiBce of the clerk of the- 
 superior court, and the original, or a copy thereof, is then admissible in 
 evidence on the same terms as registered deeds, §2564. 
 
 Petition to Resign Guardianship; §2566. 
 Georgia, Bibb County. 
 
 To the Ordinary of said Gounty: 
 The petition of A B, guardian of G D, shows that he desires to- 
 rc'&ign his trust as such guardian, for the following reasons, to wit : 
 
 . (fl.) E F, of said county, is a suitable person, willing to- 
 
 accept said trust. 
 
 "Wherefore petitioner prays to be allowed to resign his said 
 guardianship. A B. 
 
 (a) Any guardian who from age, infirmity, removal from the county, 
 or from any other cause deeires to resign Ms trust as such, may apply to< 
 the ordinary, etc., §2556. 
 
 As to citation, it would seem sufficient to enter upon the petition the 
 subjoined citation; and then serve a copy of the petition and citation upon 
 those whom the statute requires to be served, to wit, the person proposed 
 auccessor and also the nearest of kin of the ward. 
 
 Citation; §2566. 
 
 The foregoing petition read and considered. Ordered, that G H 
 and / J, next of kin oi G D and E F, show cause before me at the 
 next term of this court to be holden in and for said county on the — 
 
 day of , 18 — , why the relief prayed for in said petition should 
 
 not be granted. Let a copy of said petition and of this order be- 
 
"i22 GEOEG-IA FOKMS 
 
 served upon said named persons at least ten days before said next 
 term of our court. 
 
 This — ■ day of , 18 — . 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 If the ordinary shall be satisfied that such change of guardians will not 
 be detrimental to the Interest of the ward, and no good cause is shown 
 against it, he may pass the following 
 
 Order Accepting Guardian's Eesignation; §2566. 
 "Georgia, Bibh County. 
 
 Court of Ordinary for said County, 
 
 Term, IS—. 
 
 -i B, guardian of G D, having filed in this court his petition 
 praying to be allowed to resign his trust, and the facts alleged in 
 said petition being shown to the court to be true, and <G H and / J, 
 nearest of kin to said G D, and E F, the person named in said peti- 
 tion as a suitable person, willing to accept said trust, having been 
 duly cited to appear as required by law, and the said E F signify- 
 ing his willingness to accept the same, and this court being satis- 
 fied that such change of guardians will not be detrimental to the 
 interest of said ward, and no good cause being shown against it, 
 ordered that the resignation of A B, as guardian aforesaid, be ac- 
 cepted as prayed, and that he be discharged from his trust on the 
 following condition, viz.: that he shall forthwith deliver all prop- 
 erty and pay all money held by him as such guardian, upon a fair 
 settlement of his accounts to his successor, and that he file with the 
 ordinary the receipt in full of his successor. 
 
 And E F is hereby named -as successor to said A B, as guardian as 
 aforesaid. Let letters of guardianship issue to said E F upon his 
 
 taking and subscribing the oath and giving bond in the sum of 
 
 dollars. 
 
 This — day of , 18—. 
 
 G. M. Wiley, 
 Ordinary. 
 
 Guardian's Petition for Dismission; §2567(1). 
 Georgia, Bibb County. 
 
 To the Ordinary of said Goutity: 
 The petition of A B, guardian of C D, shows to the court that he 
 has fully executed the trust devolved upon him, and has complied 
 with all his legal obligations as guardian of G D. 
 
 Wherefore, he prays to be dismissed from such guardianship. 
 
 .4 B. 
 
AND PEAOTICE. US 
 
 Citation to Obtain Letters of Dismission; §2567(3). 
 Georgia, Bibb County. 
 
 A B, guardian of C D, having applied to me to be discharged 
 from such guardianship, let all persons concerned show cause before 
 
 me at the court house in said county, on the — day of next, 
 
 v/hy such application for discharge should not be granted. 
 
 Witness my oificial signature this the — day of , 18 — . 
 
 C. 31. Wiley, 
 
 Ordinary. 
 
 Publicaitiom once a week for four weeks in the public gazette where the 
 legal notices of the ordinary are usually published, is required, §2567(3). 
 
 Order Authorizing Letters or Dismission. 
 
 Bibl) Court of Ordinary. 
 
 Term, 18—. 
 
 The petition of A B, guardian of C D, for dismission from his 
 guardianship, having been duly filed, and citation having issued 
 and been duly published in proper time for disposal of said petition 
 at this term of the court, and it appearing to the court, from a strict 
 examination of said A B's returns, accounts and vouchers, that he 
 has fully and fairly executed his trust as guardian of C D, and there 
 being no valid objection offered why said A B should not be dis- 
 missed from his guardianship, it is ordered by the court that the 
 said A B be, and he is, hereby discharged from said guardianship, 
 and that letters of dismission, as usual in such cases, be issued to 
 
 him. This — day of , 18—. 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 Guardian's Letters of Dismission. 
 Georgia, Bibb County. 
 
 To all wliom it may conocrn: 
 A B, guardian of G D, having filed his petition for letters of 
 dismission from such guardianship, setting forth his full discharge 
 of the duties of his trust, and the truth of said petition duly appear- 
 ing from an examination of his accounts and vouchers, and said 
 ward being shown to have attained his majority, the said A B is 
 hereby released and forever discharged from said guardianship. 
 
 Witness my hand and official seal this — day of , 18 — . 
 
 [Seal.] G. M. Wiley, 
 
 Ordinary. 
 
124 GEORGIA FORMS 
 
 ARTICLE 2. 
 
 Guardians of Lunatics and Persons Xon Compos Mentis. 
 
 (For inquisition of lunacy after sentence of death, see Penal Code, §1047, 
 and also Carr vs. the State, 98 Ga. 89). 
 
 Notice to Nearest Adult Relations ; §2573. 
 Georgia, Bibb County. 
 
 To , . , and , nearest adult relations of C D, a resi- 
 dent of said county: 
 
 Take notice tliat I shall apply to the court of ordinary at the next 
 term after expiration of ten days from service of this notice, to issue 
 a commission, in terms of the law, to examine and report to this 
 court as to the lunacy of G D, and Ms incapacity to manage Ms 
 estate, and further to appoint a guardian for his person and prop- 
 eity. A B. 
 
 This — day of , 18—. 
 
 In the numerous class of cases common to the more populous cities, 
 where poor demented human beings are taken up by the police after the 
 manner of estrays, and the authorities desire to commit them to the luna- 
 tic asylum, the foregoing notice to adult relatives is unnecessary, but in 
 lieu thereof proof may be made before the ordinary "that there is no such 
 relative" within the meaning of the statute. See §2573. 
 
 Petition for Appointment of Guardian for Lunatic; §'257.S. 
 
 Georgia, Bibb County. 
 
 To the Ordinary of said County: 
 
 The petition of A B, of said county, sheweth that C D, of said 
 county, is a lunatic, and therefore incapable of managing his affairs, 
 and liable to have a guardian appoirded (a). 
 
 8aid C D has large real and personal estate, of the probahle 
 value of dollars, now wasting. 
 
 Wherefore petitioner prays this court to appoint suitable com- 
 missioners to investigate said matter, according to law. And peti- 
 tioner further prays that if such incapacity shall duly appeal as 
 hereinbefore alleged, the court appoint a guardian for said 
 CD. (I) AB. 
 
 Sworn to and subscribed before me this the — day of -, 18 — . 
 
 G. M. Wiley, 
 
 Ordinary. 
 
 (o) Or "and subject to be committed to the lunatic asylum of this State." 
 §2573. ' , 
 
 (6) Or, "commit said C. D. to the lunaitic asylum of this State," §2573. 
 
AND PEAOTICE. 125 
 
 Order Authorizing Commission of Lunacy ; §2573. 
 
 Bihb Court of Ordinary. 
 
 Term, 18—. 
 
 The petition of A B, of said county, for a commission to inquire 
 into the alleged lunacy of O D, having been duly filed, and the 
 three nearest adult relaitives of D (naming them) ^having been 
 duly UiO'tified, (a) 
 
 and no reason being offered why a commission should not issue to 
 examine said C D, as the statute requires, it is therefore ordered 
 that the usual commission issue, directed to the following named 
 eighteen persons: (naming them; one of them must be a physi- 
 cian). 
 
 This — day of , 18—. 
 
 0. M. Wiley, 
 
 Ordinary. 
 
 CaJ Or, "it appearing that tlie said C. D. has no adult relatives in this 
 State," §2573. 
 
 Commission of Lunacy ; §2573. 
 
 State of Georgia, ) 
 County of Bibb. ) 
 
 To (here insert the names of the eighteen commissioners) : 
 A B, of said county, having reported to the court of ordinary 
 of said county, that C D, of said county, is a lunatic and iacom- 
 petent thereby to manage his property, you, or any twelve of you, 
 of whom the physician above named shall be one, are hereby re- 
 quired, after having been first duly sworn, to the best of your skill 
 and ability, to have said G D personally brought before you, to 
 examine him by inspection as to his alleged lunacy and incom- 
 petency, and to examine witnesses as to the same, and make return 
 of your verdict to the court of ordinafy of said county. 
 
 Witness my hand and seal this — - day of , 18 — . 
 
 S. R. Wiley, 
 Clerk to the Ordinary. 
 Oath. 
 You and each of you shall well and truly execute the foregoing 
 ■commission to the best of your skill and ability, so help you God. 
 (Signed by the jury, i. e., by the commissioners.) 
 Sworn to and subscribed before me this — day of , 18 — . 
 
 lAny officer autliojizeci to adccinistcr oatbs will del 
 
 The oath shall be returned along with the verdict, §2573. 
 
126 GEORGIA FORMS 
 
 Return by the Jury os" Inquest ; §2573. 
 Georgia, Bibb County. 
 
 To the Ordinary of said County : 
 
 By virtue of the annexed commission, we, tlie undersigned, hav- 
 ing first taken and subscribed the oatb which is returned herewith, 
 did make such examination by inspection and proof as the law re- 
 quires. "We find that G D is a lunatic and that he should have a 
 gimrdian. 
 
 This — day of 18—. 
 
 (Signed by all the jurors, or commissioners, the physician adding 
 M.D. to his signature.) 
 
 Whereupon the following would be a proper 
 
 Form of Order. 
 It appearing by the return of commissioners duly appointed and sworn, 
 that C D, of said county, is a lunatic, and liable to have a guardian appointed, 
 
 and that Tie is entitled to property of the probable value of dollars, and A 
 
 B, of said county, a fit and proper person, being willing to act as guardian 
 of said C D's person and property. Ordered, that A B be, and he is hereby 
 appointed such guardian. Let letters of guardianship issue to said A B 
 
 upon his giving bond in the sum of dollars, and taking the usual 
 
 oath of office. 
 
AIS'^D PEACTICE. 127 
 
 CHAPTER 4. 
 
 MASTEK AlTD SERVANT. 
 
 Indenture by Adui.t, Binding Himself Out; §2598. 
 Georgia, Bibb County. 
 
 This indenture, executed in duplicate this the — day of 
 
 18 — ; between William Smith, of the county of Bibh, said State, 
 of the first part, and John Jones, of the county of Bibh, and State- 
 of Grsorgia, of the second part, 
 
 Witnesseth, That the said William Smiith, for and in considera- 
 tion of the sum of iifty dollars per annum, to be paid by the said 
 John Jones at the expiration of every year from and after the date 
 of this indenture, does hereby bind himself to the said John Jones 
 for the full term of three years next ensuing, (a) Said John Jones- 
 jhall be entitled to his reiasonable labor from the said William 
 Smith under the direction of him, the said John Joives, and said 
 William Smith shall be entitled to the necessaries of life, including - 
 food, clothing and shelter, to protection, and to humane treatment, 
 at the hands of said John Jones (b), and shall te taught the busi-- 
 ness of husbandry by said John Jones. 
 
 In witness whereof, the said contracting parties have hereto set- 
 
 their hands and aifixed their seals, the day and year first above - 
 
 written. 
 
 William Smith. 
 
 John Jones. 
 
 Signed, sealed and delivered in presence of 
 
 John Gray. 
 Walter Henderson, 
 
 lyTotary Public Bibb County, Ga. (c) 
 
 (a) Any adult may bind himself for valuable consideration to any cit-- 
 izen of this State for not exceeding five years, §2598. Parent may bind 
 oliild until majority, §2604. 
 
 (IJ Indented person entitled to maintenance, protection and humane, 
 treatment, and to the consideration which his contract calls for; either 
 denied, indenture revoked by court where contract recorded, §2603. 
 
 (c) Attestation of any U. S. consul sufficient, §'2602. 
 
 Ome^-allv.-Orism^l contract is to be kept by maker, duplicate to be filed 
 and recorded in office of Judge of county court, or i« ordinary s office, §2o98.. 
 
128 GEOKGIA FOEMS 
 
 Application to Have Mi>jor Bound Out; §2605. (a) 
 •Georgia, Bibb County. 
 
 To the Ordinary of said County : 
 
 Tlie petition of John Jones, a citizen of said State, shows that 
 Charles Ross, of said county (b), is a minor of the age of twelve 
 years, whose father is dead, and whose motlier, from age, infinnity 
 and poverty, is unable to support him. 
 
 Petitioner desires to have said minor bound to him until he 
 attains his majority. 
 
 Wherefore, petitioner prays that citation may issue, in terms of 
 the law, calling upon all persons interested to show cause why this 
 ■application should not be gi anted. 
 
 Petitioner's Attorney. 
 
 (o) It is the duty of the judge of county court, or ordinary, to bind 
 out all minors whose parents are dead or reside out of county, the profits of 
 whose estates are not sufficient for their support; also all minors whose 
 parents are unable, from age, infirmity, or poverty, to support them,. §2605. 
 
 C6) Petition asking that minor be bound as apprentice to applicant 
 sbould state residence of minor, 54 Ga. 159. 
 
 Citation; §2605. 
 'Georgia, Bibb County. 
 
 Office of the Ordinary (oi Judge of the County Court, as the 
 case may be) of said county. 
 
 Charles Boss, being a minor residing in said county, whose 
 father is dead, and whose mother is unable to support him, and 
 John Jones, having made application to me to have said minor 
 bound to him, as provided by law, notice is hereby given that I will 
 pass upon said application at the hour of te^i o'clock a.m. on the 
 16th day of June, 1895, at my office, at the court-house in said 
 ■county, and all persons interested are hereby called upon then and 
 there to show cause why said minor should not be bound out, as 
 prayed for in said application. 
 
 C. M. Wiley, 
 Ordinary Bibb County, Ga. 
 
 Fifteen days notice necessary, §2605, i. e., in foregoing form notice on or 
 before June 1st necessary. One oopy of foregoing citation must be posted 
 at county oourt-house door, another at some public place in militia district 
 TvHere minor then is. Copies must also be served on minor's next of kin, if 
 
AND PKACTICE. 129 
 
 any sucli in the county, and if none in county, then citation must be puh- 
 lis-hed once a weeik for four weeks in paper in wMcli legal advertisemente 
 are published, §2605. Judge or ordinary must appoint guardian ad, Utcm not 
 kin to applicant. Application granted after full hearing, If no blood kin 
 of the minor appear to take him, and no good cause shown by the guardian 
 ad litem or any one else, §2605. 
 
 Indenture by Ordinary Binding Out Minor ; §2605> 
 Georgia, Bibb County. 
 
 This iiid«iiture, executed this the — day of , 18 — , between 
 
 C. M. Wiley, oi^diiiary of said county, as party of the first part, and 
 
 JoJm Jones, of the county of , e>aid State, as party of the second 
 
 p£irt, 
 
 Witnesseth, That whereas, said John Jones, did on the — day 
 
 of , 18 — , make application to said ordinary to have bound 
 
 out to him, the said John Jones, a. certain 'minor of said county, to 
 wit, Charles Ross, whose age at the date of this indenture is twelve 
 years and three months, which said application, after notice and 
 citation in terms of the law, was heard and granted by said 
 ordinary, 
 
 ]Srow, therefore. By virtue of the statutory authority in him 
 vested, the said C. M. Wiley, Ordinary, does hereby bind and ap- 
 prentice the said Charles Ross to the said John Jones from the 
 date hereof until said Charles Ross shall have attained the age of 
 twenty-one years (a), hereby entitling the said Jdhm Jones to the 
 reasonable labor of said minor during said period; subject, how- 
 ever, to the following terms and conditions: Said minor shall 
 always, during said period, receive at the hands of the said John 
 Jones maintenance, protection, and humane treatment. Said John 
 Jones sihall teach the said Charles Ross the business of husbandry, 
 shall maintain and protect him, shall furnish h/im with wholesome 
 food, suitable clothing, and necessary medicine and medical attend- 
 ance, shall teach him habits of industry, honesty, and morality, both 
 by precept and exam.pile, shall cause him to be taught to read Eng- 
 lish, and finally, shall govern Mm with humanity, using only the 
 same degree of force to compel obedience as a father may use with 
 his minor child, (a) 
 
 And the said John Jones hereby undertakes and agrees to pay 
 to the said minor, upon his arrival at majority, in consideration of 
 his labor as herein stipulated, the sum of three huivdred dollars. 
 
 In witness whe;:eof, the said contracting parties have hereto set 
 
130 GEOEGIA FORMS 
 
 their hands and affixed their seals the day and year first above 
 written. 
 
 G. M. Wiley, 
 Ordinary of Bilib County. 
 John Jan^s. 
 Signed, sealed and delivered in jDresence of 
 
 John Gray. 
 Walter Henderson, 
 
 Notary Public Bilib County, Ga. 
 
 (a) Parent may bind child until majority, §2604. Master's rights over 
 minor apprentice only sucli as parent could legally exercise; therefore, the 
 in3entures of a female apprentice are not void upon her arriving at the 
 aige of eighteen, as being in restraint of marriage, and her term of service 
 did not expire by law at eighteen, 65 Ga. 400. 
 
 Xrenerally. — Minor need not sign indenture of apprenticeship, §2599. Con- 
 tract of apprenticeship must be in duplicate; original to be kept by maker, 
 duplicate to be filed and recorded. See §2598. Superior court has concur- 
 rent jurisdiction with ordinary of action for breach of indenture of appren- 
 ticeship, 51 Ga. 494. 
 
 Form for Indenture Bin'di.vg Ocjt One's Child. 
 
 The above form will suffice for indenture by a father binding out his 
 minor child, if the following very simple changes be made: In line two 
 give the father's name (describing him as "father of the minor hereinafter 
 named") in place of "C. M. Wiley, ordinary of said county," and again in 
 line thirteen, substitute the father's name in place of the ordinary's; and 
 lastly, of course, leave out the "whereas," about application having been 
 made to the ordinary, i. e., leave out from "whereas" in line five down 
 through "in him vested" in lines twelve and thirteen. 
 
 FOKM FOR BiNDIKG OuT INDIGENT OfiPHAX; 5-'542. 
 
 With two changes, the above form will also suffice suhstantially for in- 
 denture binding 'Out indigent orphan (§2542), (1) Substitute for the 
 "whereas" clause the following "whereas" clause: "Whereas, a certain 
 orphan child oi said county, to wit, Charles Ross, ihas an estate, the annual 
 pixjfits of which are not sufficient for his education and maintenance, but 
 the corpus of which the said ordinary has not allowed to be used for such 
 education and maintenance." (2) Insert a provisioin requiring that such 
 orphan shall be allowed to attend the nearest school, where education is 
 free to him, at least three months in the year, §2542. Guardian should 
 promptly report insufficiency of income to ordinary, 15 Ga. 451. 
 
AND PEACTICE. 131 
 
 FOURTH TITLE. 
 OF RELATIONS ARISING FROM OTHER CONTRACTS 
 
 CHAPTER 1. 
 or PAETNEESHIP.* 
 
 Business men tkrougliout the State would do well to bear in mincl 
 -that books like the distinguished Dr. Parsons' "Laws of Business." 
 -are frequently inapplicable to our local conditions and laws. If 
 they will be their own lawyei-s, they had better, in matters concern- 
 -i]-ig partnership, for instance, study our chapter on that subject, 
 §§2626-2685 of Vol. II. of the Code of 1895, than to rely on 
 Parsons' or any similar publication. 
 
 Partnership Contract, (a) 
 'Georgia, Bibb County. 
 
 This agreement, made this the ■ — day of , 18 — , between 
 
 John Jones and William Smith, both of the city of Macon, said 
 State and county, 
 
 Witnesseth, That the parties hereto have this day formed a 
 partnership to be conducted in said city, upon the following terms 
 ^nd conditions: 
 
 Article 1. The name and style of firm shall be Jones & Smith. 
 
 .Article 2. The business of said firm shall be • • 
 
 Article 3. Said partnership is to commence on the date first above 
 -named, and is to continue for years next ensuing. (&) 
 
 Article 4. The said John Jones has this day delivered in, as 
 
 stock, the sum of dollars in cash, and the said William Smith 
 
 the sum of dollars in cash, (c) 
 
 Article 5. Each of the partners is to give his whole time and 
 attention to the business of the partnership hereby formed. 
 
 Article 6. The profits of said business shall from time to time 
 
 *The brevity of this chapter prompts the author to remind his frieuds, both In IMacon 
 vand elsewhere, who have manifested an interest in this book, of one great difBculty which 
 has been encountered in its preparation, viz., the imperative necessity of Ireeping it withi^^ 
 bounds. Partnership belongs to Substantive Law, and surely, in a worli dealing primarily with 
 procedure, no such subject as partnership, however attractive, should be dwelt upon at the 
 .expense of essentials. 
 
132 GEORGIA FORMS 
 
 be equally divided between said partners, share and share alike, and 
 the loss shall likewise be equally borne by said partners. 
 
 Article Y. There shall at all times be kept by said firm perfect, 
 jnst and true books of account, by double entry, and each of the 
 partners shall at all times have free access to said books. 
 
 Article 8. An annual inventory of the stock of goods of said firm 
 shall be taken, on the 1st day of May in each year, and at such time- 
 a statement of the affairs of the firm, including such inventory, shall 
 be prepared for the information of the partners, and shall be re- 
 corded in a book to be kept for that purpose. 
 
 Article 9. Each partner may take out of the cash of the joint 
 
 stock the sum of ■ ■ dollars per month, to his own use, the same 
 
 to be charged on account, and neither of them shall take any further 
 sum for his own separate use without the consent of the other in 
 writing; and any such further sum, taken with such consent, shall 
 bear interest at the rate of eight per cent, per annum, and shall be 
 payable, together with the interest due, within — days after notice 
 in writing given by the other of the said parties. 
 
 Article 10. Said partnership may be dissolved at the instance 
 of either partner, upon 60 days notice to the other. 
 
 In Witness whereof, the parties aforesaid have hereunto set 
 their hands and afUxed their seals the day and year above written.. 
 
 John Jones, 
 WiUiain Smith. 
 
 (a) A partnersliip may be created either by written or parol contract, 
 or it may arise from a joint ownership, use, and enjoyment of the profits- 
 of undivided property, real or personal, §2626. 
 
 (6) If no time is specified for the commencenaent of the partnership, 
 it ooimmences immediately, §2630. If the contract specifies the term for 
 which the partnership is formed, it will continue lor thait time, or until 
 the death of one partner. If it is desired to continue notwithstanding- 
 the death of a partner, it must be so specified, §2631. 
 
 If there Is no agreement as to the time of continuance, the partnership 
 ia at will, and may be dissolved at any time by any partner on giving' 
 three months' notice to his co-partners, §2632. 
 
 Death of a partner dissolves a partnership, so does Insanity, or convic- 
 tion for felony of one of the partners. Misconduct of either partner will 
 authorize a court of equity to decree dissolution, §2633. As to what notice- 
 of dissolution necessary, §2634. Effect of dissolution, §2635. 
 
 Broker who solicits orders for a non-resident house is its agent, and if he 
 kno'ws of the retiring of a partner froim a firm, such knoiwledge binds 
 his house, 92 Ga. 748. If a retired partner would protect himself against 
 future contracts made with the firm by persons who dealt with it while he 
 was a member, he must affect such persons with notice of his retirement, 
 57 Ga. 36. And the burden, of proving notice is on him, 55 Ga. 116, 49 Ga. 
 471. A creditor of the firm must have actual notice of its dissolution, 73; 
 
AND PKAOTICE. 133 
 
 Ga. 776. The world, i. e., people generally, would be bound by such notice 
 as publication in a public gazette, 16. No particular form is necessary, but 
 the following is a sufficient and usual 
 
 NoTicK OF Dissolution. 
 Notice is 'hereby given that the firm of Jones & Smith, heretofore engaged 
 
 In the business of , in the city of , is this day dissolved by mutual 
 
 ■consent, Mr. Smith retiring. The business will be continued at the same 
 place by Mr. Jones, whO' will settle all firm liabilities, and receipt for ail 
 -debts due said firm. 
 
 This — day of , 18—. 
 
 John Jones, 
 William Smitli. 
 
 Surviving partner in case of death, controls firm assets to the exclusion 
 ■of the legal representative of deceased partner, §2647. Including both 
 personal and real property, §§2648-9. 
 
 (c) Unless otherwise provided in the agreement, partners are equally 
 interested in all the stock or property brought into the business, it mat- 
 ters not by whici; partners are equally entitled to share the profits, and 
 •equally bound to pay the losses, §2640. 
 
 Upon the general subject of the rights and liabilities of partners among 
 themselves, see §§2640 et seq. As to their rights and liabilities relatively 
 to third persons, see §§2650 et seq. 
 
 One of the most interesting partnersihip cases in the Georgia Reports is 
 tha/t of Drucker vs. Wellhouse, 82 Ga. 129, where the court held that a 
 partnership could make an assignment of partnership property without 
 including the individual property of the partners. In that case, Chief 
 Justice Bleckley quotes at length from Sir Nathaniel Lindley's great vrork 
 on Partnership, and throws much clear light uiK>n the fundamental prin- 
 rfiiples governing this branch of the law. 
 
134 GEORGIA FOEMS 
 
 CHAPTER 2. 
 
 ASSIGi^MElSTTS. 
 
 Every assignment 'or transfer by a debtor, insolvent at tlie time, of real' 
 or personal property, or clioees in action of any description, to any per- 
 son, either in trust or lor the benefit of, or in behalf of, creditors, where- 
 any trust or benefit is reserved to the assignor or any person for him, i& 
 fraudulent in law against creditors, and as to them null and void, §2695(1). 
 
 Every conveyance of real or personal ©state, by writing or otherwise, 
 and every bond, suit, judgment and execution, or contract of any descrip- 
 tion 'had or made with intention to delay or defraud creditors, where such- 
 intention is known -to the party taking, is void as to creditors, §2695(2). 
 
 So, also, every voluntaiTy deed or conveyance, not for a valuable consid- 
 eration, made by a debtor insolvent at the time of such conveyance, 
 §2695(3). 
 
 A debtor may prefer one creditor to another, and to that end he may 
 bona fide give a lien by mortgage, or other legal means, or he may sell in- 
 payment of the debt, or he may transfer choses in action as collateral- 
 security, the surplus in such cases not being reserved for his own bene- 
 fit, §2697. 
 
 A private corporation may make an assignment for the benefit of cred- 
 itors, but cannot therein give any preferences, §2698. 
 
 Persons and firms may make assignments and prefer creditors, §2699. 
 
 Deed of Assignment, under Act of 1894; §§2698 et seq. {a} 
 GBB.G1A, Bill County. 
 
 This inidenture, made this — day of , in the year 18 — , be- 
 tween William Smith, of Bibi county, of the first part, and John 
 Jones, of Bin county, of the second part: 
 
 "Witneeseth, That whereas, the party of the first part is indebted 
 to divers persons in sundry sums of money, which he is unable to 
 pay in full, and is desirous of providing for the payment of his in- 
 debtedness, so far as lies in his power, by an assignment of all his 
 property (6) for that purpose : 
 
 !N'ow, therefore, the said party of the first part, in consideration 
 of the premises, and of the sum of ten dollars to him in hand paid 
 by the party of the second part, the receipt whereof is hereby ac- 
 i<:nowledged, has granted, bargiained, sold, assigned, transferred and 
 set over, and by these presents 'does grant, bargain, sell, assign, 
 transfer, and set over unto ti^e said party of the second part, his 
 successors and assigns, all the following property, the same being- 
 and constituting all the property of every sort held, claimed, cr- 
 owned by the said William Smith at the time of the execution- 
 hereof (J)), viz., to wit: All that 
 
AND PKACTICE. 135 
 
 STOCK OF GOODS, 
 
 ti 
 
 ■\vares and merchandise, consisting of (c) dry goods, notions, boots^ 
 shoes, Ivats, caps, etc., being all of first-class quality, now located 
 in tlie store of the said William Smith at No. — Cherry street, 
 ill the city of Macon, said State and county. A correct statement, 
 as near as may be, of the purchase price of said lot of goods as a 
 whole, is dollars, and of the selling price, ■ ■ dollars, (d) 
 
 Also, all books, books of account, choses in action, notes, 
 drafts, bills, judgments, liens, and mortgages, held or owned by the 
 said assignor, the aggregate amount thereof, as near as can be indi- 
 cated, being dollars, of which the total amount considered 
 
 good is dollars, the total amount considered doubtful 
 
 dollars, and the total aomount considered bad • dollars, (e) 
 
 Also, five shares of the capital stock of the Georgia Railroad 
 and Banking Company, evidenced hy certificates of stock nunv- 
 bered 533, 53Jf, 535, 536, 537. 
 
 Also, the following live stock, to wit, mw bay horse about six 
 years old, named John; oive bay horse about eight years old named 
 Jo/ck; one red milch cow about four years old. 
 
 Also, one Bamesville Buggy Gompany's buggy, one Victoria 
 carriage, and two sets of double harness. 
 A.lso, the following 
 
 REAL ESTATE : 
 
 (Describe all real estate or interest 'therein as in ordinary deed.) 
 To have and to hold the said property to him, the said John- 
 Jones, in trust, nevertheless, to take possession of and sell the same 
 Avith all reasonable dispatch, for cash, at public or private sale as 
 said assignee may deem best, and also to, collect all such debts, de- 
 mands, and choses in action hereby assigned as may be collectible,. 
 and to dispose of the proceeds of such sales and collections as 
 follows: 
 
 1. He shall first of all pay and discharge out of said moneys all 
 attorneys' fees, clerk hire, and all other reasonable and just ex- 
 penses, costs, and charges of executing this assignment and of carry- 
 ing into effect the trust hereby created, reserving also doUai-s 
 
 as commission and compensation to the party of the second part for 
 his services in executing said trust. 
 
 2. He shall next pay the creditors set out in schedule "A" of the 
 list of creditors (f) annexed to this deed of assignment, the sums 
 set opposite their names, in the order in which the said creditors are 
 
136 GEORGIA TOEMS 
 
 Earned in said schedule "A," said schedule "A" being a schedule of 
 the preferred creditors of this assignor. 
 
 3. After having paid the preferred creditors as aforesaid, the 
 assignee shall next pay and discharge in full, if the residue of such 
 proceeds is sufficient for Dhat purpose, and if not, then pro rata 
 ■without any priorities except such as may b© allowed by law, all 
 the debts and liabilities due by the party of the first part to the per- 
 sons set forth in schedule "B" of the list of creditors annexed to 
 this deed of assignment, which said list, divided as aforesaid into 
 schedules "A" and "B," makes up a full and complete list of all 
 the creditors of this assignor, with the names of such creditors, their 
 post-office addresses, and the amounts due to each, (f) 
 
 4. And if, after the payment of the debts and liabilities in full, 
 there should remain any of the said property or the proceeds thereof 
 in the hands of the party of the second part, the same to be paid 
 over and returned to the party of the iirst part, his executors, ad- 
 ministrators or assigns. 
 
 And the said party of the first part doth hereby warrant the title 
 of the property aforesaid to the said party of the second part, his 
 successors and assigns forever. 
 
 In witness whereof, the said William Smith has hereunto set 
 his hand and affixed 'his seal, and delivered these presents the day 
 and year first above written. 
 
 WilUam Smith. [l.s.J 
 
 Signed, sealed and delivered in presence of us : 
 Henry Thompson, 
 John Gray, 
 
 Notary Public Bibb County, Ga. 
 
 (a) Tlie recency of the statutory enactment under which the foregoing 
 deed of assignment is drawn will explain the meagerness of the brief here 
 subjoined. The principal source of information available, independently 
 of the statute itself, has been the 'Book of Deeds of Assignment in the 
 clerk's ofiSce of Bibb superior court, so that the foregoing form may be 
 eaid to have been deduced from a large number of business failures. 
 
 (6) The assignment must "convey all of the property of every sort 
 held, claimed or owned by the assignor at the time of the execution there- 
 of," §2701. 
 
 '(o) The assignment must "identify goods, wares, and merchajidise 
 by general words of description, identifying the location, kind and quality 
 thereof," §2701. 
 
 Cd) Relatively to the stock of g'oods there must be "a statement as near 
 as may be of the purchase price and selling price of the lot as a whole," 
 §2701. The statute requires no such statement as to anything except the 
 £tock of goods. 
 
 (e) The assignment "shall convey all books, books of account, choses 
 
AND PEAOTIOE. 137 
 
 in action, notes, drafts, bills, judgments, liens and mortgages, held or 
 • owned, indicating, as near as may be, the aggregate amount thereof, with 
 -a, statement, as to the total amounts which are oo'nsidered good, doubtful, 
 or bad, §2702. This would appear to be a rather incomplete descripton 
 in a conveyance, but the statute seems to be Intended to facilitate the 
 unquestioned right of the debtor to prefer his creditors, and enable him 
 to make an assignment more quickly than he could formerly. It seems 
 to proceed upon the idea that that is certain which can be made certain, 
 and provides that "within fifteen days after the recording of such assign- 
 ments, said assignor shall, in connection with the assignee, prepare a full 
 and 
 
 COMPLETK LIST OF ALL PKOPERTY 
 
 Of every kind, character and description, held, claimed, owned or pos- 
 sessed by said assignor at the date of making such assignment," §2704, and 
 this list must remain on file in the clerk's office for ten days, §2705. There 
 jnust be an affidavit by the assignor that said list is true, and also one by 
 the assignee, for form for which see below. 
 
 Some of the assignments on record in Bibh county attach three inven- 
 tories of the debtor's notes and accounts, etc., marking one of them Claims 
 ■Considered Good; another. Claims Considered 'Doubtful, etc., but this, un- 
 der the statute, is manifestly unnecessary. 
 
 (f) There is but one list which is really required by the statute to be 
 •attached to the deed of assignment before it is filed, and that is "a list of 
 all creditors with their post-office addresses and amounts due to each.'" 
 The list of assets above referred need not be attached until 15 days after 
 the assignment is recorded, §2704. 
 
 Affidavit to be Annexed to Assignment ; §2703. 
 
 <Georgia, Bibb County. 
 
 Before me, John Gray, of said county, an officer of said State 
 <duly authorized by larw to administer oaths, personally come? 
 ~\VilUam Smith, the person making the foregoing assignment, who 
 being first duly sworn deposes and says that the said assignment 
 <;onTeys all property held, claimed or owned by the, assignor at the 
 time of making the assignment; that all recitals and all estimates 
 -of totals and values therein and all list creditors are true to the 
 best of his knowledge and belief; and that the debts set out as due 
 i;o the preferred creditors are bona fide just, due and unpaid; and 
 that said assignment is not made for the purpose of hindering, de- 
 laying or defrauding creditors. 
 
 William Smith. 
 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 John Gray, 
 ZNTotary Public Bibh County, Ga. 
 
138 GEOEGIA FORMS 
 
 Assignee's Acceptance of Trust. 
 Georgia, Bibb County. 
 
 I, John Jones, hereby accept tlie trust created by tbe foregoing- 
 deed of assignment, and agree faithfully to perform the conditions- 
 thereof. 
 
 In witness whereof I have hereto set my hand and affixed my 
 
 seal this — ■ day of , 18 — . 
 
 John Jones. [L.^^•J 
 
 Upon request of any three of the creditors of the assignor, the assignee 
 Shall g'ive bond to he fixed by the judge of the superior court, for the faith- 
 ful performance of his trust, payable to the ordinary, for the benefit of 
 the assignor's creditors. In no case shall the bond be less than the esti- 
 miated value of the property assigned, §2707. 
 
 Assignee shall not pay any preferred debt until sixty days from the fil- 
 ing of said assignment in the clerk's office, §2708. 
 
 Within thirty days after filing of the assignment, the assignee shall 
 notify each creditor that the same has been filed; and where proceedings- 
 are instituted attacking the same within thirty days thereafter, the as- 
 signee shall also give notice thereof to each creuitor named. Depositing: 
 a letter in the post-ofiice, stamped and properly addressed, shall be suffi- 
 cient notice under this section, §2714. 
 
 To the list of assets, required to be prepared within fifteen days, the^ 
 assignor must make aiiidavit, as above referred to (§2704), and there must, 
 be attached to the list the following 
 
 Affidavit of Assignee ; §2704. 
 Georgia, Bibb County. . 
 
 Personally comes John Jones, assignee of William Smith, who 
 on oath says that he has examined the books and others papers of 
 the assignor, that he has assisted in the prep^aration of the list to- 
 which this affidavit is annexed, as far as possible, and that to the- 
 best of his knowledge, information, and belief, the list is correct. 
 
 John Jones. 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 John Oray, 
 Xotary Public Bibb County, Ga. 
 
 If the assignee cannot make such affidavit, he shall state the reason- 
 therefor, §2704. 
 
 Attack: M_i Assigxjient. 
 
 No assignment shall be set aside except in a direct proceeding filed for 
 that purpose, and no creditor shall obtain any priority or preference of 
 payment out of the assets assigned, or any judgment rendered after the- 
 filing of a petition to set aside the assignment, in case the same is set- 
 aside and decreed to be void, §2710. 
 
AJ^B PKACTICE. 139 
 
 In all proceedings to set aside assignments, tlie assignee and assignor- 
 siiall be necessary parties, and any preferred or unpref erred creditor may 
 be made party plaintiff or defendant at any time in term or vacation, 
 §2711. 
 
 Fraud or collusion or notice tbereof in tlie assignee not necessary to- 
 make assignment void, §2712. 
 
 No creditor shall be required to reduce bis debt to judgment before ask- 
 ing equitable relief in proceedings against the assignor or assignee, or 
 both, §2713. 
 
 Innocent mistakes in assignment, amendable, §2715. 
 
140 GEOEGIA FOKMS 
 
 CHAPTER 3. 
 IlN'SOLVENT TKADEES.* 
 
 Creditor's Bill under Insolvent Trader Law; §§2716 et seq 
 Georgia, Bibb County. 
 To the Superior 'Court of said Couniy and the Judge tlvereof: 
 A, B and C bring this their petition against D, and allege: 
 
 1. Defendant is a trader, in and of siaid county. 
 
 2. Defendant is indebted to plaintiffs as follows: 
 
 (a) To A, upon an open account in the sum of dollars, a 
 
 copy of which, duly verified, is hereto attached. 
 
 (b) To B, upon a promissory note in the sum of dollars, a 
 
 copy of which is hereto attached. 
 
 (c) To C, upon an open account in the sum of dollars, 
 
 a copy of which, duly verified, is hereto attached. 
 
 3. All said debts are matured debts, which defendant failed to 
 pay at maturity, and payment of which has been properly demanded 
 of defendant and by him refused. 
 
 4. Defendant is insolvent. 
 
 5. Petitioners are unsecured creditors representing one-third ir, 
 amount of the unsecured debt due by defendant. 
 
 Wherefore, the premises considered, petitioners pray, 
 
 1. That a receiver be appointed, who shall proceed to collect the 
 assets, real and personal, including choses in action and money, ana 
 appropriate the same to the creditors of defendant, under the direc- 
 tion of this court. 
 
 2. That petitioners each have judgment against defendant for the 
 principal and interest due them upon their respective debts. 
 
 3. That process do issue, etc. 
 
 MN, 
 
 Attorney for Petitioner. 
 
 «The "Traders Act," as the law of 1881 was popularly oallea, was practically killed by the 
 amendment of 1394. Since there are so miny live questions demanding discussion in a 
 work o£ this character, it would seem hardly justifiable to devote more than passing notice to 
 a bankrupt law that has fallen almost entirely into disuse. 
 
AND PEAGTICE. 141 
 
 Affidavit to Petition. 
 Georgia, Bibb County. 
 
 Before me, John Gray, of said county, an officer of said State 
 and county duly autliorized by law to administer oaths, personally 
 came A, who hedng duly sworn, deposes and says that the facts 
 stated in the foregoing petition are true. A. 
 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 John Qruy, 
 
 TSTotary Public Bihh County, Ga. 
 Petition how addressed, See §§4839-40, 4924, 4967. 
 
 Note.— Hon. J. E,. Lamar, In reading the proof-sheets of tliis book at the author's request, 
 with a view of giving a letter expressing his opinion of the work, makes tliis marginal query 
 • as to the foregoing petition: " Should not the total debt be stated, if possible V" Considering 
 the source of this suggestion, the probability is that hardly a lawyer m Georgia using this 
 book will fail to make the allegation indicated, when practicable. 
 
 The present statement is made because Mr. Lamar's suggestion came too late to permit of 
 making any change without unjustly inconveniencing the very patient and accommodating 
 gentleman who manages the composing-room of my publishers. 
 
142 GEOEGIA FOKMS 
 
 CHAPTER 4. 
 MOETGAGES. 
 
 ARTICLE 1. 
 General Principles. 
 
 Form for Mortgage; §§2723-4. (a) 
 -Georgia, Bibb County. 
 
 This mortgage, made this the — day of , in the year of our 
 
 Lord One Thousand Eight Hundred and "JSTinety , between 
 
 William Smith, of the county of Bihh, and State of Georgia, of 
 the first part, and John Jon-es, of the county of Bilib, and State of 
 Georgia (&), of the second part. 
 
 Witnesseth, That th© said William Smith is indebted to John 
 ■Jones upon a certain promissory note (c), payable to John Jones, 
 dated , 18 — , for dollars principal, which said note stipu- 
 lates for intei-est from the date thereof at the rate of eight per cent. 
 (S^) per annum, and for ten per cent. (10^) attorney's fees in the 
 event of suit, and is signed by said party of the first part; and that 
 I'or the better securing the payment of the aforesaid proanissory note, 
 the said William Smith doth by these presents mortgage, and doth 
 hereby create a lien (d) in favor of said John Jones, his heirs and 
 .assigns, upon the following property, to -mt: (e) (describe the 
 property.) 
 
 And the said mortgager hea-eby warrants that his title to said 
 property is perfect and complete, that there are no judgments out- 
 standing against him and no other mortgages, or liens of any kind 
 ;against said property. And he hereby soleronly waives and re- 
 nounces for himself and family, and for all other persons claiming 
 in and thr'ough him, any and all homesitead land exemption rig'hts 
 to which he may, in any event, be entitled under any provision of 
 the Constitution or laws of the State of Georgia, or of the United 
 States, as against the de'bt hereby secured, or any renewal there- 
 
 <5f- (/) 
 
 In testimony whereof, the said William Smith has hereunto 
 
 .set his hand and affixed his seal the day and year first above written. 
 
 William Smith. (Seal) 
 
 Signed, sealed and delivered in presence of: ((/) 
 
AND PKACTICE. 143 
 
 (a) A mortgage in this State is only a security for debt, and pasaee 
 no title, §2723. No particular form necessary bO' constitute mortgage, but 
 must indicate the creation of a lien, and specify debt to secure wiicii it 
 is given, §2724. Absolute deed to land, reciting $90 as consideration, not 
 converted to mortgage by grantee's entry that it is to be returned cancelled 
 on payment of $90 by stated time, 78 -Ga. 786. Absolute deed accompa- 
 nied with, possession, not reduced to mortgage by parol at instance of pair- 
 ties, unless fraud in procurement, is issue to be tried, §2725 and notes. 
 Distinction between oondltionail sale (here, of a slave) and mortgage, dis- 
 cussed, 32 Ga. 635; grantee in deed oncondition subsequent oould take 
 possession on default of payment at maturity, 45 Ga. 621. Test is, does rela- 
 tion of debtor and creditor exist? If yes, instrument a mortg'age, 9 Ga. 
 156. A slave being the subject-matter, if he die, is grantor liable for 
 -amount advanced Mm? If yes, instrument is a mortgage, 76. Whether 
 relation of debtor and creditor intended, determines whether instrument 
 is a mortgage only, jor passes title, 49 Ga. 133. "A sale with an option 
 . . to rebuy for a fixed sum at a fixed time . . is a oonditional sale, and 
 not a mortgage, and there is no equity of redemption after the day fixed 
 for the repurchase has passed," 49 Ga. 518. Nature of instrument, under 
 all the circumstances, for jury, J6. In the following cases (the disputed 
 paper being set out in full in the report) papers taken to secure ad- 
 vances to make crop were held not to convey title, but to b« only mort- 
 gages: Where a /i. fa. was levied on farmer's crop and 'holder of the paper 
 claimed the crop, 60 Ga. 639; where holder of the paper brought trover 
 for cotton, and was rightly non-suited, 43 Ga. 262. , 'But instrument here 
 (set out in full) consummated by actual delivery of the mule, was not a 
 mortgage, but passed title, and trover lay, 71 'Ga. 380. Instrument here 
 (set out in full in report) was a mortgage, and conveyed no title, and 
 grantor's widow was entitled to year's support out of the land, 68 Ga. 
 756. Deed here absolute on face passed title, though made to secure debt, 
 and containing waver of homestead and year's support, 60 Ga. 562. Mort- 
 gage on realty passes no title, but is part of personal estate of deceased 
 non-resident mortgagee, to be administered according to law of his domicile 
 76 Ga. 384. "Titles to property" tainted with usury, void, §2892; mortgage 
 "passes no title," §2723. Hence, mortgage securing usurious debt not void, 
 -except as to the usury, 81 G-a. 276. Instrument, record of which by reason 
 of usury Is no notice, cannot be cured by being set up as a mortgage, 63 
 Ga. 623. Distinction between a mortgage and a deed with bond for title 
 back, 60 Ga. 591. Latter constituted a mortgage here "according to the 
 well established rules of equity jurisprudence," 46 Ga. 203. 
 
 (6) Aliens may receive and enforce liens by mortgage or otherwise on 
 real estate in this State, §1818. 
 
 (c) A mortgage must "specify the debt to secure which it is given," 
 §2724. Instead of having the note separate from the mortgage, it may be 
 incorporated in the mortgage at this point, if desired, instead of being 
 merely described, as in the above form. Mortgage may be indefinite as to 
 debt specified, and yet good, provided it "point out what the parties in- 
 tend," 46 Ga. 137. 'Mortgage on real estate executed in January to secure 
 farming advances for that year, good, lb. S'O, mortgage to indemnify 
 surety, good, §2733. 
 
 (d) "No particular form is necessary;" instrument "must clearly indi- 
 •cate the creation of a lien," §2724. 
 
 (e) Mortgage must specify the property upcn which it is to take effct. 
 
144 GEORGIA TORMS 
 
 §2724. May embrace a growing crop, 55 Ga. 545. But if on "six bales of 
 ■ cotton now growing" on a given plantation, and crop exceed six bales, too 
 uncertain, as to wliioh six bales, unless delivered at particular warehouse 
 pursuant to terms of mortgage, 16. But "there can be no sale or mortgage 
 of a crop until it is planted," 58 Ga. 576. (Some cotton factors in tbis State 
 take from the farmer about February 1st a power of attorney to some fel- 
 low-townsman of such factors, to execute a mortgage "when said crops 
 are up and in growing condition," and upon faith of euch power of at- 
 torney the factor lends the farmer money and other necessaries at once. 
 For form for such a power, see below). Mortgage may embrace ail 
 property in possession, or to which miortgagor has right of possession at 
 the time; may cover stock of goods, etc., in which case lien is lost on 
 articles disposed of before foreclosure, and attaches to purchases made 
 to supply their place, §2723. But not to purchases by partnership which 
 mortgagor afterwards formed, 49 Ga. 315. Nor to excess of new purchases 
 over value of original stock, 45 Ga. 213. It is only by special statute that 
 railroads can mortgage after-acquired property, 94 Ga. 320. Language as 
 to future purchases and additions to stock sufficiently certain here as be- 
 tween parties to mortgage, 62 Ga. 166. Description of fixtures, furniture, 
 and stock, as in a certain bar-room, sufficient, though then en route from 
 Cincinnati, 77 Ga,. 621. Mortgage on "all that certain stock of goods con- 
 sisting of dry goods, groceries, boots, shoes, hats, caps, hardware, notions, 
 and all such other articles as are usually kept in a flrst-class country store, 
 and all fixtures and utensils in said store belonging to the mortgagor," 
 covered iron safe, show cases, platform scales, truck, copying press, chan- 
 deliers, etc., 71 Ga. 287. Description in recorded mortgage of '^one bay 
 mare, two mare mules, one horse mule," not sufficiently specific as against 
 one who bona fide purchased from mortgagor one black horse mule nine 
 years old, and one black mare mule four years old, 77 Ga. 365. Paper pro- 
 viding for a lien on a "bay mare," showing that mare purchased by mort 
 gager from mortgagee, sufficient description of property, 46 Ga. 253. 
 Meager agreement here, to pay $500 out of certain land, held a valid mort- 
 gage on the land, 34 Ga, 279. Description here sufficient to cover real 
 estate, 58 Ga. 178. 
 
 if) Waiver of homestead in mortgage, valid, 56 Ga. 54. After the 
 waiver of homestead, power of sale clause. If desired, should follow. For 
 form therefor, see below. 
 
 (g) Mortgage must be executed in presence of, and attested by, or 
 proved before a notary public, or Justice, or clerk of the superior court, 
 and in case of real property, by one other witness, §2724. This merely 
 means that it "must be" to be -entitled to record, and "to be constructive 
 notice to the world when so recorded;" a mortgage on real estate attested 
 by one witness is not void, and one who takes with actual notice of it takes 
 subject to it, 51 Ga. 268. If recorded too late, "or without due attesta- 
 tion," it is nevertheless good except against innocent parties, /6. See also 
 §§2727, 2729, and notes. Even in absence of any attestation clause, offi- 
 cial signature of magistrate stands in lieu of proof of execution, 17 Ga. 62. 
 Notary's seal not necessary to be affixed, 46 Go. 256. Record in improper 
 office, or without due attestation, etc., is not notice to any one, §2729. 
 
AND PRACTICE. 145 
 
 Probate for Record. 
 Georgia, Bibb County. 
 
 Personally comee Jdhit Gray, who on oatli says that ho saw 
 Willio/m Smith sign, seal and deliver (a) the within mortgage, and 
 
 that deponent signed the same 'as a witness. (6) 
 
 Johm, Gray. 
 Sworn to and subscribed before me, 
 
 this — day of , 18 — . 
 
 8. R. Wiley, 
 Notary Public Bihb County, Ga, (c) 
 
 (a) Probate of deed only stating that It was "signed and sealed," etc., 
 iniSTiffloient; statement that it was delivered, or words tantamount, essen- 
 tial, 11 Ga. 640. 
 
 (&) Affidavit of probate of real estate mortgage attested by deponent 
 and another should add to above form these words: "and saw Eenry 
 Thompson also sign the same as a witness." 
 
 (c) Probate may be before a notary public, 'or justice or clerk superior 
 court, §2724. "Affidavits taken before the attorney of the party produc- 
 ing them are improperly taken," 46 Ga. 257, c. g., affidavit of probate of a 
 mortgage offered in foreclosure case, ma;de before notary who was attor- 
 ney for plaintiff in mortgage fl. fa.. It. But administration of oath, being 
 different from attestation of deed, attorney drawing mortgage at request 
 of both parties, may attest it, 77 Ga. 620. So, notarial attestation by 
 m'Ortgagee's brother-in-law not render mortgage illegal or record bad, 71 
 Ga. 387. 
 
 Oeneral Note. — Record withO'Ut proper probate is not notice to prudent 
 Inquirer, §2729. See generally, attestation and probate of deeds. 
 
 Clerk's Entry, (a) 
 
 Filed for record this — day of , 18 — , at — o'clock, a.m. (6) 
 
 Recorded in book — , folio — , on the — day of , 18 — . 
 
 Robert A. Nisiet, 
 Clerk Superior Court Bibb (c) County. 
 
 (a) Clerk shall indorse above on each mortgage, etc., as same is filed 
 with him. His entry on mortgage is sufficient evidence of its registry, 
 §5218. Mortgage duly executed and recorded, admitted in evidence under 
 same rules as registered deeds, §2728. 
 
 (6) (Mortgage shall be filed in office of clerk of superior court at once 
 under act of 1889, to be good against Innocent third parties who may have 
 acquired transfer or lien binding same property, §2778. But parties to 
 creditor's bill under traders' act (§2716) do not by filing bill acquire lien, 
 in contemplation of this act of 1889, so as to defeat mortgage recorded 
 after bill filed,but executed before, 95 Ga.754. Mortgage not recorded intime, 
 junior mortgage, to retain priority, must be recorded in time, 61 Ga. 260; 
 else oldest prevails, 89 Ga. 516. Same law governs conditional sales, §2778, 
 87 Ga. 232, 91 Ga. 642. Personalty outside of State when mortgaged, but 
 subsequently brought here, mortgage must be recorded here within six 
 
146 GEOKGIA FOKMS 
 
 months, §2726. No matter whether record required in Tennessee, where 
 instrument executed, or not, 96 Ga. 489. 
 
 (c) Real estate mortgage must be recorded in county where land lies; 
 chattel mortgage in county of mortgagor's residence, and also in the county 
 where mortgaged property is, if it is in another county. Must be recorded 
 in county where mortgaged property is, if mortgagor a non-resident of 
 State, §2726; applied where party in Oolumbus made advances to citizen o» 
 Alabama, and took mortgage on a horse which wae then in Columbus, but 
 failed to record same in time in Muscogee county, 75 Ga, 662. Eeoord in 
 wrong county is no record, 79 Ga. 427. Condition sales are governed 
 in all respects by laws relating to registration of mortgages, except that 
 thirty days (the old law as to mortgages) allowed within which to record, 
 §2777. Not recorded in county of vendor's residence, subsequent distress 
 warrant takes precedence, 79 Ga. 427. Conditional vendor of personalty 
 bringing trover against third person, must afllrmatively show record in 
 oounty of vendee's residence, 96 Ga. 445. 
 
 Form fok Power of tSalb in Mortgage. 
 
 And in the event I fail to pay said debt at maturity, the said mortgagee 
 and his heirs, executors, administrators, or assigns, are hereby authorized 
 to receive and take possession of said property above described, and after 
 advertising the same in the Macon Telegraph once a week for four weeks, 
 to sell the same, and all benefit and equity of redemption therein, at public 
 outcry at the court-house in said county, between the legal hours of sale, to 
 xhe highest bidder, for cash, and to execute a deed tO' the purchaser, con- 
 veying as good and sufficient fee-simple to said property as I myself could 
 convey, the proceeds of said sale to be applied first to the payment of said 
 debt, together with all expenses incident to the sale; the balance, if any, 
 to be paid over to me. Nothing herein contained, however, shall be con- 
 strued to deprive the mortgagee of the right to foreclose in the ordinary 
 manner provided by law. 
 
 Power of sale In mortgage valid, 54 Ga. 441. Its presence does not 
 change mortgage into anything else, 61 Ga. 340. Power of sale in an or- 
 dinary mortgage is irrevocable in mortgagor's lifetime, 54 Ga. 441, either 
 by the mortgagor, or by the rendition of a judgment against him In favor 
 of another creditor. Mutual Loan and Banking Company vs. Haas, decided 
 January 21, 1897. But it is revoked by grantor's death, mortgagee having 
 no interest In the thing but only in the proceeds, 28 Ga. 511, 86 Ga, 764, 
 65 Ga. 317, 72 Ga. 20. Aliter if the Instrument passes title to the property 
 Into the creditor to secure the debt, 76 Ga. 652. 
 
 The elaborate mortgages generally taken by loan companies and other 
 corporations usually provide, in the power of sale clause, for the payment 
 of such taxes, insurance, etc., on the mortgaged property as the company 
 may have to pay out for preserving their security. 
 
 Notes on Recording. 
 12727 as to effect of failure to record, deals solely with unrecorded 
 ■or defectively recorded mortgages; recorded mortgage omitting certain 
 property by mistake of scrivener, corrected in equity and enforced over 
 Judgment obtained after mortgage originally executed and before ita re- 
 formation, 96 Ga, 719. While conditional sales must be recorded within 
 tHrty days from their date, in other respects they are governed by laws 
 ■relating to registration of mortgagee, §2777, e. g., actual notice of a prior 
 mortgage, or conditional sale, not duly recorded, will defeat a younger 
 
AKD PKAOTIOE. 147 
 
 mortgage.or other younger contract lien, §2727, 87 Ga.232. But not a young- 
 er lien created by operation of law, e. g., a younger judgment lien, 82 Ga. 548, 
 89 G«.. 517, 84 Ga. 294, 59 Ga. 466. Even ttougli at time judgment rendered, 
 mortgage foreclosed and fi. fa. levied, 63 Ga. 762. Conditional sale not 
 duly recorded is absolute, relatively to subsequent creditors, 81 Ga. 681; 
 but if rescinded by mutual consent, propeirty not subject to attachment for 
 a later debt not contracted on faith of such property, lb. Conditional sale 
 of furniture not recorded, furniture placed in home which vendee rented, 
 was subject to distress warrant, 81 Ga. 327. So, where nO' record In county 
 of vendee's residence, levy of distress warrant after the sale will defeat 
 vendor's title, though rent contract made before sale, 79 Ga. 427. Per- 
 sonalty sold conditionally and by parol subject to subsequent judgment 
 against vendee. Harp vs. Patapsoo Guano Comp^vny, decided November 
 23, 1896, as well as to old jiudgments against him, 86 Ga. 348; aliter if con- 
 tract written, though not recorded, for recording laws have nothing to do 
 with old judgments, 71 Ga. 93. Where conditional sale was attested by 
 one witness but no probate was made to prepare it for record, lien of sub- 
 sequent judgment against veipdee, even on antecedent debt, superior, and 
 not affected by rescission of sale by parties, 94 Ga. 466. 
 
 The law of conditional sales contemplates crecHt sales; but cash sales 
 of cotton, etc., by planters, commission merchants, etc., under §3546, do 
 not have to be recorded; law reserves title in seller, and puts all persons 
 "on guard to see that those from whom they buy have fully paid for it," 
 92 Ga. 168. Attestation essential to validity of conditional sale of person- 
 alty against third parties without notice, as well as a condition of admit- 
 ting it to record, 96 Ga. 169. But as in case of mortgages, actual notice 
 had, defective attestation immaterial, 87 Ga. 232. Record is not like attes- 
 tation, per se essential to validity, 91 Ga. 642. 
 
 FOBM T'OH POWBE OF A.TT0RNEY TO EXECUTE MORTGAGE. 
 
 Macon, Bitib County, Ga., February 1st, 1897. 
 
 Know all men by these presents. That I, William Smith, of the county 
 of Jones, State of Georgia, have made, constituted and appointed, and by 
 these presents do irrevocably make, constitute and appoint James Brown, 
 of Bibb county,Georgia,my true and lawful attorney for m6,and in my name, 
 place and stead, to execute to W. A. Davis £ Co., of Bibb county, Ga., a 
 mortgage on my entire crop grown on all lands cultivated by me In the 
 oounty of Jones, State of Georgia, during the present year, 18 — , when said 
 
 crops are up, and in growing condition. Said crop to consist of acres 
 
 in cotton and acres in com and to be planted on the land of > in 
 
 District, G. M., in said oounty where said lands lie as aforesaid; the 
 
 said mortgage to be executed to secure a draft dated , 18 — , due , 
 
 18 — , for dollars, drawn by me on said W. A. Davis £ Co., and accepted 
 
 by them as accommodation acceptors, and also' to secure all future ad- 
 vances made to me during the present year by said W. A. Davis & Co., not 
 
 t/1 exceed dollars, whether evidenced by my promissory note to said 
 
 W. A. Davis d Co., or by drafts drawn by me and accepted by them as ac- 
 jommodation acceptors, or otherwise, or by open accounts charged against 
 me on the books of said W. A. Davis & Co. The word "advances," used 
 above, shall include all guano', supplies, money, or other thing of value 
 furnished or sold to me by said TT. A. Davis & Co. 
 
 This power of attorney is given for the purpose that the aforesaid 
 indebtedness may be more fully protected and secured; and I hereby give 
 and grant unto my said attorney full power and authority to do and per- 
 
148 GEORGIA FORMS 
 
 form all and every act and thing whatsoever requisite and necessary to be 
 done in the premises, as fully, to all intents and purposes, as I might or 
 ■would do if personally present, hereby ratifying and oonfirmlng all that 
 my said attorney shall lawfully do or cause to be done by virtue thereof. 
 
 In witness whereof, / have hereunto set my hand and seal this — day 
 of . 18-. 
 
 Sealed and delivered in presence of: 
 
 [L. S.] 
 
 The foregoing form is inserted for the benefit of warehousemen, simply 
 because it has been in actual use among the farmers of Central Georgia 
 for many years by the well known firm therein named. No question has 
 ever been raised as to its validity, and no opinion thereon is offered here. 
 
 Act creating agency to make a mortgage must be executed with same 
 formality as mortgage itself, §3002, 72 Ga. 845. 
 
 ARTICLE 2. 
 
 Mortgages on Real Estate, How Foreclosed. 
 
 Petition foe Statutory Foreclosure; §2743. 
 Georgia, Bibb County. 
 
 To the Superior Court of swid Comity : 
 
 John Jones (a) ibrings this his petition agsdnstWilUam Smith (6) 
 and alleges: 
 
 First: (c) That heretofore to wit: on the • — day of , 18 — , 
 
 defendant executed and delivered (d) to petitioner a certain prom- 
 issory note (e) for dollars and — cents, due months after 
 
 date, stipulating for interest from maturity at eight per cent, per 
 annum, and for ten per cent, attorneys' fees (/), a copy of which 
 said note is hereto attached marked Exhibit A. ((/) 
 
 Second: That at the time of delivering said note and to secure 
 the payment of the same according to the tenor thereof defendant 
 executed and delivered to your petitioner a mortgage (h) upon cer- 
 tain real estate lying in said county (i) described as follows: (In- 
 sert description from mortgage) a copy of which said mortgage is 
 hereto attached marked Ex'hibit B. (/) 
 
 Third: That defendant, though often requested to pay said debt, 
 wholly refuses and fails to do so, and has not paid the same nor any 
 part thereof. 
 
 Wherefore your petitioner prays that the court grant a rule 
 directing the principal (including attorneys' fees), interest, and 
 costs due on said debt to be paid into court on or before the first 
 day of the next term (Ic), and that in default of such payment the 
 
AND PKACTICE. 149 
 
 aforesaid mortgage be foreclosed, and the equity of redemption 
 therein barred, in terms of the statute. A B, 
 
 Petitioner's Attorney. 
 
 (o) "Where note transferred to tank by indorsement and mortgage se- 
 curing it by delivery only, foreclosure in indorser's name for bank's use 
 proper, 96 Ga. 448. Mortgage transferred by written assignment, how 
 foreclosed, §2745. Foreclosure of mortgage to the "Bajik of Augusta," 
 good here, though this was not exactly said bank's corporate nam©, 30 
 Ga. 465. 
 
 (6) Mortgagor a trustee, cestui que trust need not be party, 20 Ga. 72 
 Administrator of mortgagee may fpreclose (§2744) against administrator 
 of mortgagor (§2748); mortgagor's heirs not necessary parties, 27 Ga. 248. 
 Joint mortgage may b'e foreclosed separately against each mortgagor, 30 
 Ga 706; even where mortgagors are tenants in common, 37 Ga. 12. 
 
 Ic) Petition to foreclose mortgage on realty is "a suit or action," and 
 "plaintiff must petition the court as in other ordinary suits," 49 Ga. 449, 
 citing §4960; and is amendable like otiher suits, 90 Ga. 43. §4961 (Acts 
 1893) requires all petitions to be paragraphed. 
 
 \d) Mortgage note may be barred and yet mortgage itself be still en- 
 forceable against the specific property, § 2735, 8 Ga. 325, 47 Ga. 273. 
 
 (e) No general judgment being obtainable under statutory foreclosure, 
 ootemporaneous suit on mortgage note is maintainable, 63 Ga. 71; and 
 see 18 Ga. 605. 
 
 If) That stipulated attorney's fees constitute part of principal debt 
 relatively to justice court jurisdiction, " is decided by a long and uniform 
 current of decisions in this State," 95 Ga. 206. 71 Ga 291, upholding fore- 
 closure for attorneys' fees, was put upon ground that wording of the mort- 
 gage there made them part of the principal. Note stipulating for ten per 
 cent, attorney's fees subsequently secured by mortgage covenanting for 
 more, ten i)er cent, only recoverable on forclosure, 79 Ga. 581. Obligations 
 for attorney's fees void unless plea filed and not sustained, §3667, cited 
 94 Ga. 563. 
 
 (g) Copy of note should accompany petition, §4963. 
 
 (ft) If mortgage is on trust estate, order of court authorizing it should 
 be set out in terms, 93 Ga. 361. Mortgage barred on face, letters or other 
 new promise relied on must be set forth at least according to the "tenor 
 and legal effect" thereof, 66 Ga. 334; not necessarily, however, in Jiceo 
 verba, 9 Ga. 422, 6 Ga, 21, 12 Ga. 617. Debt due in installments, mortgage 
 may be foreclosed at first default, court will control surplus for balance, 
 §§2752, 2739, 60 Ga. 486, 71 Ga. 689, 77 Ga. 230, 94 Ga. 133; before Code, pos- 
 sible only in equity, 18 Gfa. 277. Judgment may include installment matur- 
 ing between rule nisi and rule absolute, 20 Ga. 342, 18 Ga. 280. 
 
 li) The foreclosure a nullity, unless had in county where land lies, 
 §2743, 53 Ga, 285. Semble, aliter in eqitable foreclosure under §2770, 87 Ga, 
 416. Georgia chancery court oould foreclose on railroad extending into 
 Florida, 94 Ga, 307. 
 
 (;■) In 1858, sufficient to set forth mortgage "according tO' its legal 
 effect," 25 Ga. 168, but under §4963, copy of it should accompany petition 
 tO' foreclose it. 
 
 (fc) Code §2743. 
 
150 GEOEGIA FORMS 
 
 Rule Nisi in Foreclosure on Realty ; §2743. 
 
 John Jones 
 
 vs. 
 
 i Foreclosure of Mortgage, in Bihh Superior Court. 
 April Term, 1896. 
 
 It being represented to the court by tbe petition of John Jones, 
 
 that on the — day of Eighteen Hundred and , Williwm 
 
 Smith executed and delivered to the said petitioner a mortgage (a) 
 on certain real estate lying in siaid county described as follows: (In- 
 sert description from mortgage), for the purpose of securing the 
 
 payment of a certain promissory note for dollars, executed and 
 
 delivered by the said WilUant Smith to said John Jones, on the 
 
 — day of , 18 — , due months after date, and stipulating 
 
 for interest from maturity at the rate of 8 per cent, per annum and 
 10 per cent, attorneys' fees, 
 
 It is ordered, that the said defendant do pay into this court, by 
 the first day of the next term (6) the principal, including attorneys' 
 fees, (c), interest and costs, due on said note, or show cause why he 
 should not pay the same, or that in default thereof the aforesaid 
 mortgage be foreclosed and the equity of redemption of the said 
 defendant therein forever barred; and that service of this rule be 
 perfected on said defendant according to law. (d) 
 
 W. H. Felton, Jr., 
 Judge Superior Court Bibh County, (e) 
 
 (a) Not necessary to set out mortgage in rule nisi, 25 Ga. 168. 
 
 (&) SemUe, the defense to rule nisi should, be filed on or before first day 
 of next term, 96 Ga. 604. 
 
 (c) TTie attorney's fees are "a part of the principal," 87 G-a. 291; re 
 afiftrmed, 95 Ga. 206; see also 73 Ga. 122, 240, 69 Ga. 587. But examine 
 71 Ga. 291. 
 
 id) Rule nisi served by publication must be certified by clerk to be a 
 true extract from minutes. 
 
 Attorney for mortgagor's administrator not such a special ajttomey as 
 that service of rule nisi under §2743 can be perfected on him, 57 Ga. 124. 
 Only sheriff or his deputy can serve rule nisi, 80 Ga. 130, and service must 
 be personal, 83 Ga. 11; leaving copy at defendant's residence is no service 
 at all, 74 Ga. 382, 7 5Ga. 630; where no service, judgment a nullity, 26 Ga. 
 140. As to service, count first day; January 2d— April 2d, sufficient, 59 
 Ga. 392. 
 
 (e) Rule nisi signed "By the court, Hardeman & Johnson, Plaintiff's 
 Attorneys" valid, especially where rule absolute signed by judge himself, 
 59 Ga. 230. 
 
 Pkactice. 
 
 Issue joined on foreclosure, plaintiff should introduce mortgage note as 
 well as mortgage, 70 Ga. 746. Where mortgage covers future acceptances, 
 profert of such acceptances puts onus on mortgagor, 25 Ga. 167. Note and 
 
AND PRACTICE. 151 
 
 mortgage held merely for indemnity, loss must be ishown, 53 Ga. 214. De- 
 fendant may make any defense lie might set up In an ordinary suit on the 
 debt, §2746, 53 Ga. 216. 
 
 Maker of deed being estopped to claim adversely thereto, mortgagor 
 cannot object that the mortgaged premises were his only as trustee, 36 
 Ga. 499. That mortgaged property Tvas sold under order of ordinary, to 
 pay debts of deceased mortgagor, good defense to forecloBure suit against 
 his administrart)or,59 Ga. 516. Sale divests liens, §3453. That deed In 
 Tondor's chain lof title forged, no defense to foreclosure for purchase 
 money, 84 Ga. 511; foreclosure decree affects only the land, 76. Foreclos- 
 ure by loan asaociation of liquidated demand permissible under our fore- 
 closure statute, §2743, 24 Ga. 198. 
 
 Rule Absolute in Foeeclosuee on Realty. 
 m ones i Poreclosure of Mortgage, in Bibb Superior Court. 
 
 vs. 
 
 William Smith 
 
 C November Term, 1896. 
 
 A rule nisi having been granted at the last April Term of this 
 court, directing William Smith, defendant in above stated case, to 
 pay into this court, by the first day of this term, the principal (in- 
 cluding attorneys' fees), interest-and costs upon a certain promissory 
 
 note for dollars, executed and delivered by the said William 
 
 Smith to the said John Jones, on the — day of , 18 — , due 
 
 months after date and stipulating for interest from maturity 
 
 at the rate of 8 per cent, per annum and 10 per cent, attorneys' 
 fees, or to show cause -why he should not pay the same, and order- 
 ing that in default thereof, the equity of redemption of the said 
 William Smith to certain real estate lying in said county, described 
 as follows (insert description from mortgage), conveyed to said 
 John Joms by mortgage dated — day of , 18 — , for the secur- 
 ing said note, should be forever barred, and foreclosed; and a copy 
 of said rule having been served on said William Smith according 
 to law, and it appearing to the court that the said defendant has 
 failed and refused to pay said sum of money so due to the said peti- 
 tioner as aforesaid, as required by the said rule nisi, and has shown 
 no sufficient cause why he should not pay the same, it is ordered by 
 the court, that the equity of redemption in said mortgage premises 
 be forever barred, and foreclosed, and that the said petitioner do 
 recover out of the said mortgaged premises, the amount due accord- 
 ing to the tenor of said mortgage aforesaid, to wit: Th© sum of 
 
 dollars principal, dollars interest to date, dollars 
 
 for attorneys' fees, together witli dollars costs herein ex- 
 
152 GEORGIA FORMS 
 
 pended, and that tlie clerk of this court do issue a f,. fa. against said 
 defendant and said property according to law. 
 
 This — day of ,18—. 
 
 W. H. Feltm, Jr., 
 Judge Superior Court Bibb County, (e) 
 
 Purchaser from mortgager after foreclosure begun, bound by judgment 
 of foreclosure, §2736. 
 
 Nature and effect of tie judgment of foreclosure, 7 Ga. 499, 13 Ga. 393. 
 It tias no lien as a judgment but gets its lien from tb© mortgage; hence 
 not -within §3761, as to dormancy of judgment liens in sev«n years, 
 40 Ga. 412. It adjudicates fact of service and its sufl&ciency, 94 Ga. 696. 
 Not its office to show what particular credits were allowed in fixing 
 amount claimed by mortgagee; nor is it amendable a year afterwards for 
 that purpose, 57 Ga. 361. That it embraced only part of lands in petition 
 and rule msi, not fatal; lien on balance presumed abandoned, 90 Ga. 44. 
 Judgment specifying amount of debt, and foreclosing equity of redemption, 
 and then ordering that "such other jxroceedings be had as are pointed out 
 in the statute," in effect ordered sale and was valid, 21 Ga. 143. Judg- 
 ment denying rule absolute is in effect a nonsuit; motion to reinstate too 
 late after term ended, 96 Ga, 810. 
 
 FOEECLOSURE IN EQUITY. 
 
 Formerly foreclosure could not be had in equity where statutory remedy 
 was full and complete, 17 Ga. 123, but act of 1881, §2770, "gives the mort- 
 gagee the option of foreclosing in equity," 81 Ga. 133; and in equity per- 
 sonal decree for balance due on mortgage debt allowable, 71 Ga. 374, 
 whereas, under statutory foreclosure no general judgment obtainable, 63 
 Ga. 75. Under Uniform Procedure Act of 1887, §4960, all suits in superior 
 court, "whether for legal or equitable relief, or both,'' must be by peti- 
 tion. The form of petition for statutory foreclosure (see ante) will suffice 
 for the petition in equity, except the prayer, which should ask a general 
 judgment and process, thus: 
 
 FoEM OF Prayer in Equitable Foreclosure upon Realty. 
 Wherefore your petitioner prays: 
 
 First: Tliat said mortgage be declared a lien upon said land 
 for the principal, including attorneys' fees, and iaterest, as hereia- 
 bef ore set out, and costs, and that said mortgage be foreclosed and 
 the equity of redemption therein forever barred, and that said land 
 be sold to pay said debt. 
 
 Second: That petitioner have a general judgment against de- 
 fendant for said debt, ■with interest and costs. 
 
 Third: That process do issue requiring said defendant to be and 
 appear at the next term of this court to answer this complaint. 
 
 AB, 
 Petitioner's Attorney. 
 
 Two other points of difference between statutory and equitable fore- 
 
AND PRACTICE. 153 
 
 closures are: First, latter must, like ordinary suits, be filed twenty days 
 before term of court begins, §4984, whereas former is filed and rule nisi 
 granted any time during the term, provided time enough is left before the 
 next term to comply with the Code as to service, §2743. Second, besides 
 the special judgment against the specific land as in statutory rule absolute, 
 an ordinary general judgment is rendered against defendant. 
 
 Judgment undee Equitable Foreclosure. 
 
 John Jones '^ Equitable Eoreclosure of Mortgage in Biii 
 vs. V Superior Court, 
 
 William Smith. ) November Term, 1896. 
 
 (A recital as to what the judgment is based upon, whether upon a ver- 
 dict, or upon default, etc., should precede the words below.) 
 
 Ordered tliat the equity of redemption in the mortgaged premi- 
 ses set out in the ahove stated petition he forever barred and fore- 
 closed and that petitioner John Jones do recover generally of the 
 goods and chattels, lands and tenements of the defendant William 
 Smith, and also specially out of said mortgaged premises, to wit: 
 (Insert description from mortgage) the following: the sum of 
 
 dollars principal, dollars interest to date, dollars 
 
 attorneys' fees, and costs, and that the clerk of this court do issue 
 a fi. fa. against said defendant generally, and against said land, ac- 
 cording to law. 
 
 W. H. Feltm, Jr., 
 Judge Superior Court Biib County, (e) 
 
 All proceedings subsequent to judgment, the execution, levy, notice of 
 levy, advertisement and sale, are the same in both statuto^ry and equitable 
 foreclosure, except that under latter the execution issues generally against 
 defendant as well as against the mortgaged premises. 
 
 Mortgage Fi. Fa. under Statutory Foreclosure. 
 
 To all and singular the Sheriff's of said State and their lawful deputies — Greetings ; 
 
 "We command you that of (a) certain lands of Willkum Smith ly- 
 ing in said county, to wit: (insert description from mortgage) you 
 
 cause to be made the sum of doUao^ and — cents principal, 
 
 and the further sum of dollars and — cents interest up to the 
 
 — day of , 18 — , and also the further sum of dollars and 
 
 — cents for costs, with interest on the principal sum from the — 
 day of , 18 — , and also the further sum of dollars attor- 
 neys' fees, which John Jones lately, to wit: on the — day of , 
 
 18 — , before the superior court of said county, recovered against 
 the said William Smith, and said described property by the fore- 
 closure of a mortgage thereon, made by the said William Smith 
 
154 GEOKGIA FORMS 
 
 to the said Jtilm Jones for principal, including attorneys' fees, 
 interrat and costs; and tliat yon have the said seyeral sums of money 
 before the superior court for said county, at the next term thereof 
 after said money can be lawfully made (6) to render to the said 
 John Jones for principal, interest and costs as aforesaid, and have 
 you then and there this writ. 
 
 Witness the Honorable W. H. Felton, Jr., Judge of said court, 
 this — day of , 18 — . Robert A. Nisiet, Clerk. 
 
 (a) The aljove form ■will suffice lor the execution based upon eciuitable 
 foreclosure, if the words "the goodg and chattels, lands and tenements of 
 William. Smith, generally, and also more especially of," toe inserted Imme- 
 diately before the "word "certain" and after the word "of." 
 
 (6) §5416, 68 Ga. 349. 
 
 Levy upon premises described in mortgage fl. fa., though in iwssession of 
 third person, not trespass, 13 Ga. 389. Where mortgagor has sold difter- 
 ent parcels of mortgaged premises subject to the mortgage, mortgagee 
 goes upon said parcels in the inverse order of their alienation, 3 Ga. 474; 
 although order of alienation immaterial as against judgment outstand- 
 ing against vendor before any of the sales, 37 Ga. 660, discussing 21 Ga. 
 441, and other earlier cases. See also §5424, codified from 85 Ga. 443. 
 
 Mortgage fl. fa. executed and returned is an office paper, 15 Ga, 307. 
 
 Foreclosure by Advertisement under Power op Sale. 
 
 Under and by virtue of a power of sale contained in a mortgage 
 executed by William Smith to John Jones, dated the — day of 
 
 , 18 — , and recorded in the office of the clerk of the superior 
 
 court of Bibb county, in book B, folio 570, the undersigned will 
 sell at public outcry, at the court-house door in said county, during 
 the legal hours of sale, to the highest bidder for cash, on the first 
 Tuesday in January, 18 — , the following property, to wit: (insert 
 description from mortgage), for the purpose of paying a certain 
 
 promissory note for the sum of dollars, executed and delivered 
 
 by William Smith to John Jones, on the — day of , 18 — , 
 
 and due on the — day of , 18 — , stipulating for interest from 
 
 maturity at the rate of eight per cent, per annum, and ten per cent. 
 
 attorneys' fees, the total amount due on said note being dollars 
 
 principal, dollars interest, dollars attorneys' fees, and also 
 
 for the further purpose of paying the sum of dollars taxes paid 
 
 by said John Jones on siaid property, and dollars insurance, 
 
 together with the cost of this proceeding, as provided in said mort- 
 gage. A deed to the purchaser will be made by the undersigned. 
 
 This the — day of , 18—. 
 
 John Jones. 
 
AND PRACTICE. 155 
 
 Power of sale in a mortgage legal, 37 Ga. 80; coupled with an Interest, 
 irrevocable, 54 Ga. 449; is not a personal trust, and may be executed by 
 mortgagee's agent, 96 Ga. 246. Power of sale in an Ordinary mortgage is 
 revoked by grantor's death, m^ortgagee having no interest in the thing but 
 only in the proceeds, 65 Ga. 317, 72 Ga. 20; aliter, in an instrument passing 
 the title to the property into the creditor to secure the debt, 76 Ga. 652. 
 Mortgage with power of sale not authorizing mortgagee to purchase, such 
 purchase voidable at mortgagor's election to redeem, but not void, 96 Ga. 
 246. No time, place, or manner pointed out in mortgage, the law for trus- 
 tee's sales, which, §3173, follows the general law of administrator's sales 
 as laid down in §3452, is the law which governs, 54 Ga. 450. 
 
 AETICLE 3. 
 Mortgages on Personalty, How Foreclosed. 
 
 Affidavit to Foreclose Chattel Mortgage ; §2753. (a) 
 Georgia, Bibb County. 
 
 Before me, John 'Gray, of said county, an officea: of said State 
 authorized by law to administer oatlis, personally appeared John 
 Jams, who on oath says that he is the (6) peirson holding the mort- 
 gage to which (c) this affidavit is annexed {S); that William 
 Smith, (e), the maker theo-eof, is a resident of scM county (f), and 
 
 v' indebted to deponent on said mortgage in the sum of dollars 
 
 principal (gr), and dollars, interest to date, and dollars 
 
 attorney's fees (the same being part of the principal), (h), and that 
 the amount of said sums is now due. John Jones. 
 
 Sworn to and subscribed before me, 
 
 this — day of , 18 — . 
 
 John Gray, 
 Notary Public Bibb County, Ga. (i) 
 
 (o) Afladavit to foreclose mortgage is amendable, §5122 and notes. 
 
 (!)) The affidavit of foreclosure may be made by the "person holding 
 mortgage," or by his agent, or by attorney in fact, or at law. 
 When appropriate, insert "attorney at law of" etc., between "the" 
 and "person," §2753. "Appeared, Richard Hobbs, one of the firm 
 of Hines & Hobbs, said firm being composed of Ridhard K. Hines 
 
 and said Richard Hobbs, attorneys at law for the mortgagee," 
 
 suflacient recital where attorney foreclosed, 39 Ga. .'!12. Affidavit by per- 
 son other than mortgagee, that deponent was owner and holder of the 
 mortgage inaccurate: "it would have been more accurate to allege distinctly 
 that these amounts were due to . . . (the deponent) upon a mortgage 
 made to . . (the mortgagee), owned by deponent, but not transferred to 
 him in writing;" 90 Ga. 517. Note transferred to bank by indorsement. 
 
156 GEORGIA FORjrS 
 
 mortgage securing It by delivery only, foreclosure in indorser's name for 
 bank's use, proper, 96 Ga. 448. Note iteelf transferred to bank by deliv- 
 ery only, bank took subject to all equities between original parties, 64 (Ja. 
 610. Such a transferee cannot foreclose in Ms own name without a writ- 
 ten assignment of the mortgage, 90 Ga. 257. But motion to dismiss levy 
 of mortgage fi. fa. on this groimd may be met by appropriate amendment, 
 /6. Mortgage on stock of goods to secure two creditors for stated amounts 
 respectively due them, could be foreclosed in favor of both In a single affi- 
 davit by an agent representing both creditors; such foreclosure not ob- 
 noxious to §4938 as to joinder of separate claims, 68 Ga. 349. Holder of 
 chattel mortgage dead, affidavit may be made by his executor or adminis- 
 trator, §2768. 
 
 (c) Oopy, instead of original mortgage, may be used, §2753; in which 
 event insert between "to" and "which" the words, "true and correct copy 
 of," §2753. 
 
 (.d) Affidavit attached to mortgage and identifying it by its date and 
 amount, not void for failure to state that it was "annexed" to the mort- 
 gage, 74 Ga. 822. It is "annexed" within meaning of law, if written on 
 back of mortgage itself, 73 Ga. 139. 
 
 (e) Since a power of attorney to make a mortgage must be executed 
 with same formality as mortgage itself (§3002), and since trustee cannot 
 create lien on property of his cestui que trust (§3186), husband's mortgage 
 signed as trustee for wife could not be foreclosed at law, substantial com- 
 pliance with foreclosure statute being essential, 72 Ga. 845. Maker of chat- 
 tel mortgage dead, his executor or administrator may set up same de- 
 
 ■ fenses which he could do if living, §2768. For forms pertinent to such 
 defenses, see below. 
 
 (f) Ordinarily foreclosure must be in county of mortgagor's residence, 
 §2753, and affidavit must allege that defendant a resident oi the county, 
 54 Ga. 167, 66 Ga. 239. Where mortgagor resident in Hall county, fore- 
 closure in Walton county, invalid, 13 Ga. 285. Mortgager non-resident of 
 State, foreclosure where he resided at the date of mortgage, proper, §2753. 
 
 In which ease, substitute for is a "resident of said county," the words 
 "non-resident of said State, but resided in said county at the date of said 
 mortgage." Where defendant has not resided here at all, substitute for 
 "is a resident of said county," the words, "is now and was at the date of 
 said mortgage a non-resident of said tState, and said mortgaged property 
 Is now in said county," 45 Ga. 551, 84 Ga. 107. Object of fixing place for 
 issuing execution is to provide where issue to be tried if defense made, 
 45 Ga. 551. 
 
 {g) If amount does not exceed one hundred dollars principal, foreclos- 
 ure may be in any justice court in county where mortgagor resides, if a 
 resident, or in any county where property is, if mortgager non-resident of 
 State, §2760. 
 
 (70 For decisions as to foreclosure for attorney's fees, see note (f) un- 
 der Form for Statutory Foreclosure on Realty, ante. 
 
 (i) Foreclosure affidavit may be made before any officer of this State 
 authorized to administer oaths, §2753; including clerk who issues the 
 mortgage fi. fa., 68 Ga. 346. If made outside State, must be before a Com- 
 missioner for this State, §2753. 
 
 Foreclosure of Chattel Mortgage Before Debt is Due, Etc. 
 Under §§2754-6, foregoing form for foreclosure where -obt is due will suf- 
 
AND PRACTICE. 157 
 
 flee for this form by substituting for allegation in last line, "said amount 
 is now due," an allegation that "dofendant resides out of the State," or "is 
 actually removing, or about to remove without the limits of the county," 
 or otherwise hais placed himself in some one of the positions enumerated 
 in the Oode where attachment would lie. 
 
 Finally, if the ground be that a purchaser of the mortgaged property 
 is seeking to remove same beyond the limits of the county (§2754-6), 
 the foregoing form for foreclosure when debt is due will suffice, by sub- 
 stituting for allegation in last line, "that said amount is now due," the 
 following, "that James Brown, a purchaser of th« property embraced in 
 said mortgage Is seeking to remove the same beyond the limits of the 
 OQunty." 
 
 When mortgage (or sworn copy), with affidavit of foreclosure annexed^ 
 shall be filed in office of clerk of superior court, it is his duty, under §2753, 
 to issue execution as follows: 
 
 Chattel Mortgage Fi. Fa. 
 
 Georgia, Bihh County. 
 
 To all and singular the Sheriffs and their lawful deputies, and the Coroners of said 
 State — Qreeting : (a) 
 
 We command you tiiat of certain personal property of William 
 Smith, to -wit: (insert description from mortgage) (6) you cause to 
 
 be made the sum of dollars and — . cents, principal, and ' 
 
 dollars and — cents, as interest to tbe — day of , 18 — , and 
 
 a]] future interest on said principal sum at the rate of eight per cent. 
 
 (S^) per annum; 'and also dollars and — cents attorneys' 
 
 fees, and dollars and • — cents costs, -which John Jones lately 
 
 in our superior court for said county recovered against said 
 William Smith and said described personalty by the foreclosure of 
 a mortgage thereon, made by the said William Smith to John 
 Jones, for principal, including attorneys' fees, interest and costs. 
 And have you the said several sums of money before the superior 
 court of said county at the next term thereof after said money 
 can be lawfully made, (c), to render to the said Joh/n Jones for 
 his principal, including attorney's fees, interest, and costs aforesaid, 
 and have you then and there this writ. 
 
 Witness the Honoraible W. H. Felton, Jr., Judge of said court, 
 
 this — day of , 18 — . 
 
 Rolert A. Nisiet, Clerk. 
 
 (o) Execution delivered to -sherifl or his lawful deputy, or to coroner, 
 it is his duty to levy on the mortgaged property, "wheresoever the same 
 may be found," §2757. 
 
 (6) Mortgage fi. fa., properly quashed here for insufficient description, 
 
 61 Ga, 390. 
 
 (c) "Next term" in §5416 means that next term after the money can 
 be lawfully made, 63 Ga. 349. 
 
158 GEORGIA FOEMS 
 
 General Note. — ^Sale under mortgage fi. fa., governed by ordinary law of 
 sheriff's sales, §2757. For forms for levy, Ordinary advertisement of sale, 
 sale of perishable property, and other forms pertaining to sheriff's sales, 
 see index, title Executions. Wiere mortgaged property is levied on and 
 sold under other fl. fas., the mortgage fl. fa. may nevertheless claim the 
 funds, pursuant to §2741. But unless it is foreclosed and fi.fa. placed in sher- 
 iff's hands, a sale under a younger judgment is a sale of equity of redemption 
 only, and the mortgagee cannot claim any interest in the proceeds, but 
 must look to the mortgaged property, 57 Ga. 54, 93 Ga. 543; unless he and 
 the mortgagor, and the plaintiff in fl,. fa. levied, consent that entire estate 
 be sold, §2759. Such consent need not be in -writing, 44 Ga. 593. 
 While holder of unforeclosed mortgage cannot at law claim payment out 
 of proceeds of sale of the mortgaged property as against junior judgments, 
 he might, in equity (by alleging insolvency of debtor), 72 Ga. 469. Case 
 in 72 Ga., however, involved more than equity of redemption; whole estate 
 was sold to pay judgments senior to mortgage and controversy was over- 
 balance, 93 Ga. 543. A mortgagee chosing to foreclose his mortgage under 
 the statute, cannot afterwards invoke aid of equity to attack prior mort- 
 gages as fraudulent; his remedy under §2769 being ample, 81 Ga. 133. 
 
 When miortgage, with aflldavit of foreclosure annexed, shall be filed 
 with any justice of the peace in county where mortgagor resides, or where 
 property of non-resident mortgager is, it is magistrate's duty, under §2760, 
 to issue execution as follows: 
 
 Chattel Mortgage Fl Fa. in Justice Coukt. 
 
 To all and singular the Constables of said State — Greeting : (a) 
 
 You are hereby comnianded, that of certain personal property of 
 William Smith, to wit: (insert description from mortgage) you 
 
 cause to be made the sum of dollars and — cents for principal, 
 
 and dollars and — cents as interest to the — day of , 
 
 18 — , and all future interest on said principal sum at the rate of 
 eight per cent, per annum, and also dollars and — cents attor- 
 neys' fees, and dollars and — cents costs, which John Jones, 
 
 lately iu our justice's court held in and for said district and county, 
 recovered against said William Smith, and said described person- 
 alty by the foreclosure of a mortgage thereon made by the said 
 William Smith to John Joms for principal, including attorneys' 
 fees, interest and costs. And have you the said several sums of 
 money before said justice's court at the next term thereof after said 
 money can be lawfully made (&), to render to the said John Jones 
 for his principal, interest, and costs, as aforesaid, and have you then 
 and there this writ. 
 
 Given under my hand and seal, this — day of , 18 — , 
 
 J. H. L. Grerdine, 
 N. P. and ex officio J. P. 
 
AND PRACTICE. 159 
 
 (a) Execution delivered to constable, it ia his duty to levy on t he 
 mortgaged property "wherever it may be found," §2761. 
 
 (6) "Next term" in §5416 means that next term after the money can 
 be lawfully made, 68 Ga. 349. 
 
 Ueneral Note. — §3974(d) of Code of 1882, requiring notice to mortgagor, 
 was repealed by acts 1882-3, and was inserted in Code of 1895, §2763, by in- 
 advertence. 
 
 Sales under mortgage fl. fa. from justice's court governed by ordinary 
 law of constable's sales, §2761. 
 
 For forms pertaining to levy and sale by constables consult index. 
 
 Mortgagor may make same defenses as In superior court, amd magistrate 
 issuing ft. fa. shall determine same, §2762. 
 
 DEFENSES. 
 
 Illegality to Chattel Mortgage Fi. Fa.; §2765. 
 John Jones 
 
 Chattel mortgage Ji. fa. issued from Superior 
 
 Court Bibb County, on the — day of , 
 
 18—. ^500 principal, $46* interest, f.^^ at- 
 torneys' fees, $6 costs. 
 
 vs, 
 William Smith. 
 Geoegia, Bibb County. 
 
 Before me, John Gray, of said comity, an officer of said State 
 duly anithorized hj law to administer oaths, personally appeared 
 William Smith, wlio on oath says that the above described fi. fa. 
 heretofore levied upon property of deponent, is proceeding illegally, 
 for tbe following reasons, to wit: 
 
 Deponent is not indebted to pladntiff in any amownt, and the 
 mortgage foreclosed is utterly void amd without considei-ation for 
 that (allege specific defense). Willia)m Smith. 
 
 Sworn to and subscribed before me 
 
 tbis tbe — day of , 18 — . 
 
 John Gmy, 
 Eotary Public Bill County, Ga. 
 
 Note. — Affidavit alleging that deponent not legally Indebted to plaintiff 
 in any amount, and that the mortgage foreclosed is utterly void and with- 
 out consideration, good iri~substance, and dismissal on general demurrer 
 was error, 93 Ga. 252. Illegality to chattel mortgage fl. fa. admits of any 
 defense allowable in ordinary suit on the demand secured by the mort- 
 gage, §2765. Defendant could plead infancy, or suretyship for her hus- 
 band, 66 Ga. 239. Or partial payment, or usury, 47 Ga. 650. Or set off, lb., 
 30 Ga. 416. Counter-affidavit interposed, chattel mortgage fi. fa. Is mesne 
 process, is pleading, and amendable, 70 Ga. 447. Amendment not cause 
 levy to fall, /B., and see act of 1891, §5114. Issue in claim case being only 
 as to title to property levied on, dismissal of claim is no bar of affidavit 
 of Illegality to mortgage fi. fa., 66 Ga. 239. But where husband and wife 
 were Joint defendants in mortgage fi. fa., and wife claimed property lev- 
 
160 GEORGIA FORMS 
 
 led on as exempt, under homestead laws, illegality subsequently filed by 
 husband introduced new issue and was properly dismissed on demurrer, 
 59 Ga. 558. 
 
 Replevy Bond of Defendant in Mortgage Fi. Fa.; §2766. 
 
 [To acooaapany his afBdavit of illegality. | 
 
 Geoegia, Bihh County. 
 
 Know all mven hy these presents, That we, WilUa/m Smith, prin- 
 cipal, and Jamms BrovM, securitj, acknowledge ourselves jointly 
 and severally bound unto John Jones, in the sum of twelve hundred 
 dollars, subject to the following conditions: 
 
 Wbereas, the said John Jones has foreclosed a mortgage on per- 
 sonalty against said WillicDm Smith, and has caused execution to 
 
 issue on the — day of , 18 — , from the court of said 
 
 county, which said execution issued for the sum of five hundred 
 dollars principal, forty dollars interest, fifty-fowr doUaia attor- 
 neys' fees, and six dollars costs, and was on the — day of , 
 
 18 — , levied by , of said county, on the foUowing personal 
 
 property, to wit: (describe the property) as the property of the said 
 defendant. 
 
 JSTow if said WilUam Smith, principal, shall return the said 
 described property, so levied on, when called for by the levying 
 oiScer, or if the said James Brown shall do so for him, then this 
 obligation to be void, else of full force and effect. 
 
 Witness our hands and seals this — day of , 18 — . 
 
 WilUam Smith, 
 
 Attested by: 
 
 James Brown. 
 
 Aflldavit of illegality to a chattel mortgage fi. fa. not prepared for 
 return into court until forthcoming bond given, etc., as required by 
 §2766, 61 Ga. 391. (Or pauper affidavit filed, §2766, for form for which see 
 below.) Affidavit unaccompanied either by forthcoming bond, or by affi- 
 davit of Inability to give same, as required by §2766, properly dismissed, 
 76 'Ga. 837. Until then, papers should not be returned Into oourt, nor 
 sdile suspended, 75 Ga. 676. Bond not conditioned substantially as statute 
 requires, papers should not be returned, lb. Where replevy bond recites 
 fact of levy, debtor cannot thereafter traverse sheriff's return of levy, 84 
 Ga. 124. 
 
 The amount of the bond cannot be larger than double the amount of 
 the execution, and where the property levied on Is of less value than the 
 execution, the amount of the bond must be double the value of the prop- 
 erty levied on, at a reasonable valuation to be judged ot by the levying 
 officer, §2766. 
 
AND PKAOTICE. 161 
 
 Paupee Affidavit. 
 
 ^ [To accompany affidavit of illegality to mortgage ^. /a. in lieu of bond, §2766,] 
 
 John Jones ) Illegality to chattel mortgage fi. fa. issued from 
 vs. \ Superior Court Bibb County, on the — day 
 William Smith. ) of- , 18 — . 
 
 Georgia, Bibb County. 
 
 Before me, John Gray, of said comity, an officer of said State 
 duly authorized by law to administer oaths, personally appeared 
 WilUam Smith, who on oath, says that he is unable from poverty 
 to give tbe bond and security required by law in above stated case, 
 and tliat lie has been advised and believes that his grounds of 
 illegality will be sustained. 
 
 William Smith. 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 John Gray, 
 N'otary Public Bibb County, Ga. 
 
 "When pauper afiBdavit is filed ■with, levying officer as above, he ^hall 
 accept the same in lieu of bond and security, but the property shall remain 
 in the hands of the levying officer, unless sold under order of court as 
 perishable, or expensive to keep, or liable to deteriorate from keeping, 
 12766. 
 
 Affidavit to Contest Mortgage; §2769. 
 
 [To be made by creditor who desires to attack its validity or fairness.] 
 
 ■Catherine Smith ) Chattel mortgage fi. fa. issued from Superior 
 
 vs. \- Court Bibb County, on the — day of , 
 
 William Smith. ) 18 — . 
 
 Georgia, Bibb County. 
 
 Before me, John Gray, of said county, an officer of said State 
 duly authorized by law to administer oaths, personally appeared 
 Henry Thompson, who on oath, says that he is a creditor of the 
 mortgagor wbo is defendant in the above described mortgage fi. fa., 
 
 the said defendant being indebted to deponent in the sum of 
 
 dollars principal, and dollars interest to date, upon an open 
 
 Kiceownt for merchandise. A true and correct copy of said aceoimt 
 13 hereto attached, marked Exhibit "A." (Attach copy to this affi- 
 ■aavit accordingly.) 
 
 Deponent m'akes this affidavit for the purpoBe of contesting tihe 
 validity and faimess of said mortgage. 
 
 The grounds upon which deponent relies to defeat said mortgage 
 are as follows: 
 
 Said mortgagor is not, and was not at the time said mortgage 
 
162 GEOKGIA FORMS 
 
 ioas made; indebted to the mortgagee in any sum whatever. 
 
 SaAd mortgage does not represent any bona fide indebtedness 
 upon. tJie part of the mortgagor to the mortgagee, hut was made 
 solely loith intent to hinder, delay, and defraud creditors, the said 
 mortgagee being the loife of the mortgagor, and having taken said 
 mortgage with notice that it was made with the intent aforesaid. 
 
 Henry Thompson. 
 Sworn to and subscribed before me 
 
 tbis — day of , 18 — . 
 
 John Gray, 
 Notary Public Bibb County, Ga. 
 
 Any creditor of mortgagor may contest validity or fairness of 
 mortgage lien or debt by filing affidavit of the grounds on which he relies 
 with levying officer, together with bond and security. Officer must then 
 return papers into court, to be tried like illegality to mortgage ii. fa., §2769. 
 But this section not applicable when a sale of the mortgaged property was 
 had under certain judgments, and contest between them and the mortgage 
 fi. fa. arose over the proceeds, 82 Ga. 548. Whether one partner, without 
 co-partner's knowledge, can legally execute mortgage on firm property 
 to secure firm debt, can be determined under §2769, 60 Ga. 396. 
 Chattel mortgagee has election to foreclose in equity under act of 1881, 
 §2770, or at law, under §2753, 81 Ga. 133; but mortgage only foreclosed at 
 law, mortgagee has adequate remedy under §2769 to attack prior fraudu- 
 lent mortgages, and cannot maintain bill in equity, 81 Ga. 129. For de- 
 cisions on foreclosure in equity, see that subject ante. 
 
 The provisions of §2769 apply to mortgages on real estate, §2750. 
 
 Bond; §2769. 
 
 [To accompany affidavit of creditor contesting validity of mortjjage.] 
 
 Georgia, Bibb County. 
 
 Know all men by these presents, Tbat we, Henry Thompson, 
 principal, and Edward Johnson, security, acknowledge ourselves 
 jointly and severally bound unto Catherine Smith, of Bibb county, 
 to the extent hereinafter stated, and subject to the -following con- 
 ditions : 
 
 Whereas, the said Catherine Smith has foreclosed a mortg&ge 
 on personalty against William Sndth and has caused execution to 
 
 issue on the — day of , 18 — , from the - — ■ — court of said 
 
 county, which said execution was on the — day of , 18 — , by 
 
 0. S. Westcott, sheriff of said county, levied upon the following 
 personal property, to wit: (describe the property). 
 
 And whereas, the said Henry Thompson has this day filed with 
 said levying ofiioer his afiidavit contesting the validity and fairness 
 of said mortgage. 
 
AND PRACTICE. 163 
 
 Now, should the said Henry Thompson, principal, pay to the 
 said Catlier-ine Smith all costs and damages incurred by the delay 
 occasioned by said contest in case the issue be found against the 
 
 contestant, then this bond to be void, else of full force. 
 
 Henry Thompson, [l.s.] 
 Edwwrd Johnson. [l.s.] 
 Attest and approved by 
 G. 8. Westcott, 
 
 Sheriff Bihh County, Ga. 
 
164 GEOKGIA FOKMS 
 
 CHAPTER 5. 
 SALES TO SECURE DEBT.=i= 
 
 §1969 of the Code of 1882, as it stands in the Code of 1895, §2771, provides 
 substantially as follows: Whenever any person conveys any real prop- 
 erty by deed, or personalty by bill of sale, to secure debt, and takes bond 
 for title back, such conveyance shall pass title till the debt is paid, and 
 shall be held by all courts of this State to be an absolute conveyance (with 
 right in the vendor to have a reconveyance on payment of the debt), and 
 not a mortgaKB. §1971 of the Code of 1882 (§2775 in the Code of 1895) 
 provides that the right of such vendor, or debtor, to a reconveyance, on com- 
 plying with his contract, shall be a'bsolute and permanent and shall not be 
 affected by any claims which would otherwise attach to the property by 
 virtue of the title being in the vendee. 
 
 Deed to Realty to Secure Debt; §2771 et seq. 
 Geobgia, Bibb County. 
 
 This indenture, made tihe — day of , 18' — , between Wilr 
 
 lia/m Smith, of the county of , State of , of the one part, 
 
 and John Jones, of the county of , State of , of the 
 
 other part, "witnesseth, that the said Williatm Srmth, for and in 
 
 consideration of the sum of in hand paid, at and before the 
 
 sealing and delivery of these presents, the receipt whereof is hereby 
 acknowledged, has granted, bargained, sold, aliened, conveyed 
 and confirmed, and by these presents does grant, bargain, sell, alien, 
 convey and confirm unto said John Jones, his heirs and assigns, 
 all the following real estate, to vsdt: (describing it) 
 
 To have and to hold the said described real estate, with all and 
 singular the rights, members and appurtenances thereunto apper- 
 taining, to the only proper use, benefit and behoof of him, the 
 said John Jones, his heirs, executors, administrators and assigns, 
 in fee simple ; and the said William Smith the said bargained real 
 estate unto the said John Jones, Ms heirs, executors, administra- 
 
 *Among the many instances wherein the arrangement of the Code of 1S95 differs from its 
 immediate predecessor, none, perhaps, will be more apt to challenge the attention of the bar 
 than the separation of §1970 from §§1969 and 1971, of the Code of 1882. There is hardly a law- 
 yer in Georgia who cannot promptly recall the subject-matter of that familiar group. The 
 sanie may be said even of many of the laity, e. g., officers of hanks and loan associations, 
 real estate agents, and the like. Of this group of "sections (perhaps the most generally 
 known by number in the Code of 1882) §1970, which provides the creditor's remedy, has been 
 moved from its old place between §§1969 and 1971, in the chapter on Sales to Secure- Debt to 
 the Code of practice, where it will be found incorporated in §5(32, under Executions, in an ar- 
 ticle thereunder entitled "Levy and Sale where Defendant has not Legal Title." Hence, while 
 a form for what we have been so long accustomed to call a "deed under §1969e(seg." properly 
 belongs in the present chapter, matters relating to the enforcement of those peculiar statu- 
 tory rights growing out of such a deed must be postponed to the Chapter on Executions, 
 h'leinafter. 
 
AND PRACTICE. 165 
 
 tors and assigns, against the said William Smith, his heirs, execu- 
 tors and adminis'trators, and against all and every other person or 
 persons, shall 'and -will warrant and forever defend by virtue of 
 these presents. 
 
 Tiiis conveyance is intended to operate as provided in §§27Yl, 
 5432, and 2775 of the Code of 1895, in regard to the sales of 
 property to secure debts, and to pass the title of the property 
 described into the said John Jones; the debt hereby secured being 
 one certain promissory note for the swm of — dollars prinoipal, 
 of even, date heretoiih, signed iy the said William Smith, due 
 twelve months after date, and stipulating for interest from date 
 at the rate of eight per cent, per anmmn, and for ten per cent, 
 attorneys' fees, and the said William Smith hereby agrees that 
 if the debt to secure whieih this deed is made is not promptly paid 
 at maturity according to the tenor and effect of the said note, made 
 at the execution hereof, then the said John Jones, his agent or 
 legal representative, may, and by these presents is authorized, to 
 sell at public outcry, before the court-ihouse door, m the county of 
 Bibh, to the 'highest bidder, for cash, all of said property, to pay 
 said indebtedness, with, the interest thereon and the expenses of 
 the proceeding, including fees of attorneys, if incurred, not to 
 exceed ten per cent., 'after advertising the time, place and terms of 
 the sale in the Macon Telegraph newspaper once a week for fomr 
 weeks. And the said John Jones, his agent or legal representa- 
 tive, may make to the purchaser or purchasers of said property 
 good and sufficient titles in fee simple to the same, thereby divesting 
 out of the said William Smith all right and equity that he may 
 have in and to said property, and vesting tihe s'aine in the purchaser 
 or purchasers aforesaid. The proceeds of Siaid sale are to be ap- 
 plied first to the payment of the said debt and interest and the 
 expenses 'of said sale and tbe rem'ainder, if any, paid to the said 
 William Smith. The said John Jones, his agent or legal repre- 
 sentatives, shall be authorized to proceed summarily to put the 
 purchaser or puroh'asers in possession; the said William Snvith 
 covenanting and agreeing to surrender the same without let or 
 hindrance of any kind. 
 
 The method of sale hereinbefore provided for shall be cumula- 
 tive of the other remedies allowed by law. 
 
 In witness whereof, the said William Smith has hereunto set 
 
166 GEORGIA FOEMS 
 
 Ms liand and affixed his seal and delivered these presents the day 
 and year first above written. 
 
 William Smith. 
 Signed, sealed and delivered 
 in presence of us: 
 Henry Thompson. 
 John Gray, 
 Notary Public Bihb County, Ga. 
 
 Every deed to land made to secure debt, such as is referred to in §2771, 
 shall be recorded in the county where the land conveyed lies; and every 
 such bill of sale made to secure debt, in the county where the maker re- 
 sided at the time of its execution, if a resident of this state. If a non-resi- 
 dent, then in the county where the personalty conveyed is. 
 
 Otherwise, though such instruments remain valid against the persons 
 executing them, they will be postponed to all liens created or obtained, 
 or purchases made, prior to the recording. If, however, the younger lien 
 Is created by contract (e. g., by mortgage), and the party receiving it has 
 notice of the prior unrecorded paper, then the title conveyed by the older 
 paper prevails. §2772. 
 
 , In order to admit to record deeds to land to secure debt, and bills of sale 
 to secure debt, they shall be attested or proven in the manner now pre- 
 scribed by law for mortgages. §2773. 
 
 The Acts of 1884-5, (see §2737) provides that when a mortgagor pays his 
 mortgage he may present the same, together with the order of the mort- 
 gagee or transferee directing that the mortgage be cancelled, to the clerk 
 of the Superior Court, who shall record the order across the face of the 
 record of the mortgage itself, and write across the record also the entry 
 *'Satisfied,"dating and officially signing such entry. And, by §2774, this is 
 made applicable to conveyances to secure debt. 
 
 Bond for Title; §2771. 
 Georgia, Bibb County. 
 
 Know all men by these presen'ts. That I, John Jones, am bound 
 
 to William Smith, of the county of , State of , in the sum 
 
 of dollars; 
 
 Upon condition nevertheless that should I quit-claim to the said 
 William Smith certain property (describing it), which he has this 
 day conveyed to ime to secure one certain promissory n-ott for the. 
 
 sum of dollars principal, of even date herewith, signed hy 
 
 the said William Smith, due twelve mionths after date, and stip- 
 ulating for interest from maturity at the rate of eight per cent, 
 per annum and for ten cent, attorney's fees, then this bond to be 
 
 void. Witness my hand and se^al, this — day of , 189 — . 
 
 John Jones. 
 
 The above bond is equally applicable to real and to personal property. 
 
AND PKAOTIOE. 167 
 
 Conditional Sale of Personalty; §2776 (a). 
 Geoegia, Bibb County. 
 
 This contract of sale made this — day of , 189 — , between 
 
 E. A. Coh&n, of said State and county, of the first part, and The 
 Edirard Thompson 'Company of Northpart, Long Island, IST. Y., 
 of the second part, witnesseth that said party of the first part has 
 this day bought of the said party of the second part The Airwrican 
 •and English Encyclopedia of Law, in consideration of the sum 
 of diollaxs, to be paid as follows: 
 
 Said personal property is sold and delivered with the condition 
 afiixed to the sale that the title thereto is to remain in the vendor, 
 the said Edward Thompson Company until the purchase price 
 thereof shall have been paid. If said property be lost, damaged 
 or destroyed before payment in full of the purchase mtoney, the 
 vendor shall in no event be entitled to a rescission of the contract 
 or to an abatement in the price. (&) 
 
 In witness whereof the said party of the first part, the said E. 
 A. Cohen, has hereunto set his hand and affixed his seal, the d?^ 
 and year first above written. E. A. Cohen, [L. S.] 
 
 Signed, sealed and delivered in presemce of : (a) 
 
 D. M. NelUgan, 
 Notary Public Bibb County, Ga. 
 
 (a) Whenever personal property is sold and delivered, with the condi- 
 tion afiSxed to the sale that the title thereto is to remain in the seller until 
 it is paid for, every such conditional sale, in order for the reservation of 
 title to be valid as against third parties, shall he evidenced in writing, and 
 not otherwise, and shall be executed and attested like mortgages. As be- 
 tween the parties, a verbal sale is valid. §2776. 
 
 (b) Where property sold as above is lost, damaged, or destroyed without 
 the vendee's fault, he is entitled to a recission of the contract or to an 
 
 abatement in the price, unless it is otherwise agreed in the contract of sale. 
 §3543. 
 
 RECORDING. 
 
 Conditional bills of sale must be recorded within thirty days from their 
 date, §2777. In other respects they shall be governed by the laws relating 
 to the registration of Mortgages. lb. 
 
 AS TO RECORDING DEEDS. 
 
 The law governing deeds conveying land, as to time of record, will be 
 found in §3618. As to recording mortgages, etc., see Notes on Recording, 
 in the Chapter on Mortgages, just preceding. 
 
168 GEORGIA rORMS 
 
 THE FELDER ACT. 
 
 By way of supplement to this chapter it would seem appropriate to add 
 the act of 1896 Introduced in the House by Mr. Felder, of Fulton, and 
 known as the Felder Trustee Act, being an act providing for the enforce- 
 ment of trust deeds to secure debt. (See Acts of 1896, p. 76.) It provides 
 substantially as follows: 
 
 ^'Section 1. Whenever any person has conveyed any real property in this State by deed to a 
 trustee to secure any debt, the rights of the trustee named in said deed, or his successor in 
 estate, as well as the rights ol the holders or owners of the evidences of debt may be enforced 
 in the following- manner : The trustee or his successor, may, upon request of twothirds in 
 amount of the indebtedness secured, petition the superior court of the county of the resi" 
 dence of the maker of the deed, or if there be more than one maker, then the superior court 
 of the couuty of the reaideace of either, or if the maker or mtkers be non-residents of the 
 State, then the superior court of the county where the land lies, or the city court, if there 
 e a city court in such county having jurisdiction of the amount claimed, which 
 
 PETITION SHALL CONTAIN 
 
 a statement of the case, the amounts demanded, and a description of the property. Where- 
 upon the court shall grant an 
 
 ORDER 
 
 directing the sums demanded in said petition, with interest and costs, to be paid into court 
 on, or before the first day of next term ; which 
 
 ORDER SHALL BE PUBLISHED 
 
 once a week for four weeks in some newspaper generally circulated in such county, or served 
 on the maker of said deed, or his special agent or attorney, at least twenty days previous to 
 the time at which the money is directed to be paid in court. 
 
 Sec. 2. The maker of the deed, or his special agent or attorney, may appear at the term of 
 thacourt at which the money is directed to be paid, on or before the first day of the term,, 
 and file his objection to the enforcement of said deed, and may set up any 
 
 DEFENSE 
 
 which he might lawfully set up in ah ordinary suit on tie debt secured by such deed. Such 
 defense must be verified at time of filing the same. 
 
 Sec. 3. When the maker of the deed is dead, the proceedings to enforce the same may be 
 instituted against his executor or administrator. 
 
 Sec. 4. When a defense is set up, the issues thus raised shall stand for trial at the term at 
 which the defense is made. 
 
 Sec. 5. When the maker of the deed fails to set up and sustain his defense, ! he C3urt shall 
 give 
 
 JUDGMENT 
 
 for the amounts due thereunder, to be levied of the property covered thereby, and shall order 
 said property to be sold under the regulations which govern sheriff's sales under execution , 
 upon the trustee's making and having recorded in the clerk's office of the superior court of 
 the county where the land lies a 
 
 deed regonveying 
 said property to the defendant. Such judgment shall take lien upon said property prior to 
 any claim or lien arising or created subsequent to the date of such deed to the trustee. 
 ''Seo. 6. The money arising from the sale shall be paid to the trustee, unless claimed by 
 some other lien in the hands of the officer which in law may have priority over the deed ; and 
 when there shall be any surplus, after paying the sums due under said deed, or other lien 
 the same shall he paid to the maker of the deed or his agent. 
 
 Sec. 7. If the deed is given to secui-e^debts due by installmenls, and is enforced before any 
 one of the insiallments falls due, and there is a surplus of funds, as above stated, the court 
 may retain the funds or order the same iuveUed to meet the installments still unpaid. 
 
 The foregoing act may develop a far-reaching significance in the world 
 of railroad finance, if its language fixing the lien of the debt shall be held 
 to sweep away the whole law of- "preferential equities." 
 
AND PKACTICE. 16& 
 
 CHAPTER 6. 
 FORECLOSURE OF LIENS. 
 
 ARTICLE L 
 
 Foreclosure of Liens on Real Estate. 
 
 §2801 provides a special lien on real estate, factories and railroads,, 
 for work done thereon or material furnished therefor in favor of the fol- 
 lowing parties: 
 
 1. In favor of mechanics of every sort, who have taken no personal 
 security therefor. 
 
 2. In favor of contractors, material men and the like. 
 
 The same section further provides, that where one does the work or 
 furnishes the material at the instance of a person other than the owner 
 (e. g., a contractor), he must serve written notice on the true owner of the- 
 amount of such work done or material furnished within thirty days of the 
 completion of- the work or the furnishing of the material, and then his Hen, 
 shall attach, as against the owner, to the extent of no more than twenty- 
 five per cent, of the contract price agreed to be paid by the owner to the 
 contractor, and shall be discharged when the owner pays out twenty-five- 
 per cent, pro rata to the persons entitled to such liens. And no person 
 shall be so entitled unless he has given such notice, and has duly recorded, 
 his lien within three months as provided by §2804(2). 
 
 Person letting out building contract must retain twenty-flve per cent, 
 of contract price until contractor submits afiBdavit that all debts for ma- 
 terial and labor are paid, or that persons to whom such debts are due have- 
 consented to the payment of said twenty-five per cent., §2802. Otherwise,, 
 liable for such twenty-five per cent., §2803. 
 
 To make good the liens specified in §2801, there must be a substantial' 
 compliance by the party claiming the lien with his contract, §2804(1). 
 
 Paragraph (2) of §2804 requires the recording of his claim of lien sub- 
 stantially as follows: 
 
 Mech.\nic's Claim oe Lien on Real Estate; §2804(2). 
 
 Georgia, Bibh County. 
 
 The undersigned, John Jones, a meclianic (a), claims a lien nponi 
 a certain building or structure, erected upon certain premises or 
 real estate of William Smith (b), situated in said county; and also- 
 upon said real estate. Said building or structure may be described- 
 as follows: . And said premises may be described as fol- 
 lows: . Said lien is claimed for oarpeMer's work done hy- 
 
 the wndersigncd upon said structure. Tbe amount for wbiob tb© 
 
 undersigned claims this lien is dollars. And now, within 
 
 three months since the same was done (c), the undersigned 
 records this lien therefor in the oiBee of the clerk of the superior 
 
170 GEORGIA FORMS 
 
 court of the county where said property is situated, as aforesaid, 
 pursuant to the provisions of §2804(2) of the Civil Oode. (d) 
 
 John Jones. 
 
 (a) Or, contractor, material man, machinist, or manufac'^urer as th<» case 
 may be. 
 An attorney may file Ms claim of lien as above,§2814(4). 
 (6) What is sufficient allegation of ownership, 85 Ga. 109, 
 
 (c) A claim of lien need not sihow that the material man has compl'ed 
 with his contract, 85 Ga. 109. 
 
 Attorney's lien asserted as above must be filed within thirty days, 
 §2814(4). 
 
 (d) Contractor who almost completed work on house before owner's death 
 and completed ii a few days thereafter, could record lien in spite of such 
 death, 74 Ga. 68. 
 
 As between themselves, the liens on a given piece of real estate provided 
 for in §2801 rank according to date, but, are of the same date, in law, when 
 ■declared and recorded within three months after the work is done. They 
 are inferior to liens for taxes, to the general (§2792) and special (§2793) 
 liens of laborers, to the general lien of landlords for rent, when reduced 
 to execution and levied, §2795; to claims for purchase money due persons 
 -who have only given bond for title, and to other general liens, when actual 
 notice has been communicated before the work was done or materials fur- 
 nished, §2804(4). 
 
 PROCEEDINGS SUBSEQUENT TO RECORDING LIEN. 
 
 The next, i. e., the third paragraph of §2804, requires the commencement 
 lof an action for the recovery of the amount of the claim within twelve 
 months from the time the same shall become due. 
 
 §2815 provides for the foreclosure of liens on realty as follows: 
 
 1. There must be a compliance with his contract by the person claiming 
 the lien, the claim of lien must be recorded, and suit must be commenced 
 therefor according to the provisions and requirements of §2804. 
 
 2. Declaration must set forth the lien claimed, and the premises on which 
 it is claimed. And if the lien is allowed, the verdict shall set it forth, and 
 the judgment and execution be awarded accordingly. 
 
 3. If any real property on which there is a lien be sold by any process 
 from the courts of this State, the purchaser shall obtain the full, title, and 
 the lien shall attach to the proceeds of the sale, upon notice by the party 
 claiming the lien to the officer to hold the money until the next session 
 of the superior court for that purpose. 
 
 4. If the claim of lien be disputed by either plaintiff or defendant in the 
 process or decree on which the money was raised, an issue shall be ordered 
 and tried as in other causes, and if it be determined against the claimant, 
 le shall pay such damages, not exceeding twenty per cent., as the jury may 
 assess, with interest from the date of notice to retain, and costs. 
 
AND PEAOTICE. 171 
 
 Petition to Foreclose Lien on Real Estate ; §2815. (a) 
 Geoegia, Bibb County. 
 
 To the City Court of Macon : (i) 
 John Jones brings this his complaint against William Smith 
 and alleges: 
 
 1. Defendant is a resident of said county. 
 
 2. On the — day of , 18 — , plaintiff, in consideration of 
 
 ■ — dollars, to be paid to him by defendant, upon the completion 
 of the contract, contracted with defendant to huild a house upon 
 certain real estate in said oounty 'belonging to defendant. Said 
 real estate may be described as follows: (describing it). Said build- 
 ing may be described as follows: (describing it). 
 
 3. Plaintiff complied with his aaid contract, and finally com- 
 pleted the same on the — day -of , 18 — , whereupon said sum 
 
 of — — became due and payable. 
 
 4. Plaintiff claims a lien upon said real estate for said siim of 
 dollars, and shows that within three months from the com- 
 pletion of his said contract aforesaid, he recorded his claim of lien 
 upon said real estate, as required by law, in the office of the clerk 
 of the superior court of Biib county. 
 
 5. And now, within twelve months after his said claim aforesaid 
 became due, plaintiff brings this action for the amount thereof. 
 
 Wherefore he prays: 
 
 A general judgment against defendant for the amount of 
 his said debt aforesaid (c), and a special judgment against said 
 real estate. 
 
 (2) That process do issue, etc. 
 
 A B, 
 Petitioner's Attorney. 
 
 (a) See generally, notes to §2815. 
 
 (6 Action to enforce mechanic's lien on realty is not a case respecting 
 title to land, and county court had jurisdiction, 82 Ga. 406. So had city 
 court of Augusta 'here, 51 Ga. 614. 
 
 (c) A general judgment against the debtor is obtainable in this pro- 
 ceeding as in ordinary suit, 51 Ga. 614. And because this suit is like any 
 other ordinary suit, there can be no necessity, even for the wayfaring man, 
 to have prepared for him a special form for a verdict, judgment, etc., in this 
 proceeding. The execution is to be generally against defendaat, and espe- 
 cially against the property subject to the lien. 
 
 Generally.— The general lien of a laborer upon all the property of his em- 
 ployer cannot be foreclosed summarily by affidavit upon real property, 
 but must be foreclosed by suit pursuant to the provisions of §2815, 84 Ga. 
 570, discussirg earlier cases. 
 
17 2 GEORGIA FORMS 
 
 ARTICLE 2. 
 Foreclosure of Liens on Personalty. 
 
 Liens on personal property, not morfcgagas, when not othei-wise 
 provided, shall be foreclosed, under §2816, as follows: 
 
 Within one year after the debt becomes due, the person prose- 
 cuting the lien, either by himself or as guardian, administrator, 
 executor, or trustee, must, by himself, agent or attorney, make 
 aifidavit before some officer authorized to administer oaths, showing 
 all the facts necessary to constitute a lien, under ithe Code, and the 
 amount claimed to be due. 
 
 A demand on the owner, agent or lessee of the property for payment 
 and a refusal to pay must be averred. If, however, demand cannot be 
 made, by reason of the absence or removal, or absconding from the county 
 of his residence, of the party creating the lien, or for other reasons show- 
 ing an intention to be absent to defeat the demand, then the party holding 
 the lien may foreclose by stating on oath why no demand was made. 
 
 Affidavit to Foreclose Lien on Peesonai.ty; §2816. 
 
 Before me, John G-ray, of said county, an officer of said State 
 duly authorized by law to administer oaths (a), personally appeared 
 John Joives (6), who, on oath, says that Williamv Smith, (c), of 
 
 the county of (d), is indebted to him in the sum. of — 
 
 dollars, which amount is now due, having becoane due on the — 
 
 day of , 18 — , and deponent claims a lien for said debt upon 
 
 (e) certain personal property now in the county of (f) be- 
 longing to defendant, to wit: 100 cords of pine wood. Deponent 
 shows the following facts, upon which he bases his said claim of 
 
 lien under the Code, viz. : On the — day of ,18 — , deponent 
 
 did contract with defendant to (g) cut oordrwood for Mm at the 
 rate of sixty cents per day, for — days, and in pursuance of said 
 contract deponent did cut — cords, of which, tlve above 'mentioned 
 100 cords cmistitute a part (li). Deponent has completed and 
 performed his contract as aforesaid. Since said debt became due 
 (i), deponent (/) has made a personal demand (k) for the payment 
 thereof upon defendant (I), who refused to pay the same. 
 
 Wherefore this deponent now comes, within one year after 
 said debt became due (m), and prosecutes this his lien pursuant to 
 the provisions of §2816 of the Civil Code. 
 
 John Janes. 
 
 Sworn to and subscribed before me 
 
 this ■ — ■ day of , 18 — . 
 
 John Oray, 
 Notary Public Bibd County, Ga. (a) 
 
AKD PKAOTIOE. 173 
 
 (a) The affidavit may be made before any officer authorized to adminis- 
 ter oaths, Acts of 1895, §2816(5). And this either in county of defendant's 
 residence, or in county where his property may be; but the execution must 
 be made returnable to the proper court of the county of defendant's resi- 
 dence, if he resides in the State; hence, ■where lalborer's foreclosure pro- 
 ceeding was commenced in Bibb superior court against cotton then located 
 in Bibb, but defendant resided in Morgan county, the exiecution was prop- 
 erly quashed, became made returnable to Bibb Court, 52 Ga. 79. 
 (6) Agent or attorney may make the affidavit, §2816(3). 
 
 (c) An averment in affidavit of name of the person owing the debt is 
 necessary to give the State authorities jurisdiction, for they cannot pro- 
 ceed solely in rem, 46 Ga. 585. 
 
 id) Process must be sued out either in county of defendant's residence 
 or in county where his property may be, 52 Ga. 79, 49 Ga. 596. Principle 
 applied to foreclosure before J. P., 82 (Ja, 745. 
 
 (e) In the case of a laborer, or other person entitled by statute to a 
 general lien on all the debtor's property, as well as a special lien, insert 
 after the word "upon," and before the words "certain personal property," 
 the following: ''All the personal property oif, and particularly upon." For 
 authority for which, see 76 Ga. 832. While §2792 gives a laborer a general 
 lien on all his employer's property, such lien can only be enforced against 
 real estate as provided by §2804, and the pleadings, verdict, judgment and 
 execution must set forth the lien, 65 Ga. 123, 68 Ga. 269, 84 Ga. 570. For- 
 merly the la/borer's general lien might be foreclosed summarily against 
 realty as well as personalty, 43 Ga. 9, 53 Ga. 297. Laborer's general lien 
 on personalty of his employer may be foreclosed under §2816, 84 Ga. 570; 
 in that case it was Held, that particular property need not be specified, 
 and It was also so held in a landlord's supply foreclosure, 72 Ga. 804. La- 
 borer's general lien on all the property of his employer takes precedence 
 over ordinary mortgages, 43 Ga. 9, 69 Ga. 65; "even thos' created prior to 
 the contract of labor," 84 Ga. 570. 
 
 Affidavit amendable to set up general as well as special lien, 84 Ga. 574. 
 
 (f) Where saw-mill owner seeks to enforce lien for lumber, his affidavit 
 must aver that his saw-mill is located in this State, 45 Ga. 159. 
 
 (g) The "facts necessary to constitute" the different liens are set out in 
 the various sections creating those liens, §§2787 et seq. The foregoing form 
 furnishes everything essential except what the Code section itself, which 
 gives the lien, will suggest; and, moreover, it illustrates that part by the 
 case of a laborer's lien. The "affidavit should allege all the facts which it 
 is necessary for the plaintiff to prove at the trial in order to have a valid 
 lien under the statute," otherwise it is demurrable, 56 Ga. 289. Hence, 
 where a crop lien was given to factors in 1874 under §2800 as it then stood, 
 affidavit failing to state that the lien was created by special contract in 
 writing, was demurrable, 56 Ga. 288. 
 
 (ft) Claim of lien as laborer "for services rendered as clerk, laborer 
 and general service in said store" good against demurrer, 68 Ga. 658. 
 ("Better to set out the labor performed," isays Crawford, J., dissenting.) 
 For services "as clerk, bar-tender and boy-of-all-work" good, 63 Ga. 172. 
 Affidavit to foreclose laborer's lien must state that the work was done by 
 the plaintiff, 54 Ga. 571; to state that it was done, without stating by whom, 
 not sufficient, 66 Ga. 732. If it was done by persons hired by plaintiff, 
 plaintiff would have no lien, 53 Ga. 39. 
 
 Laborer's lien foreclosure not amendable into ordinary action of assump- 
 sit, or complaint under the statutory form, 53 Ga. 40. This does not conflict 
 
174 GEOKGIA FORMS 
 
 with the previous ruling where, in a case commenced by the usual petition 
 and process, with a claim added for enforcement of a mechanic's lien, an 
 amendment was allowed striking the claim of lien and inserting allegations, 
 intended to subject trust property, 30 Ga. 444. 
 
 In carpenter lien foreclosure for repairing hotel. Held, one cannot creat& 
 a lien on property he Ijas not paid for, to the overthrow of the title of the 
 owner, 29 Ga. 408. Applied here to lien claimed on saw-mill, 57 Ga. 20. A. 
 lessee of a saw-mill could bind it only to extent of the lease, 11 Ga. 45. 
 
 Landlord's lien for supplies must be foreclosed under §2816, and not by 
 distress warrant, 90 Ga. 590. Such lien arises by operation of law; no 
 special contract in writing necessary; but if in writing the contract is. 
 assignable, and enforcable by the assignee in like manner, §2800(1) and. 
 (2). Such liens exist only on the crops of the year in which they are, 
 made. They may be foreclosed before the debt is due if the tenant is re- 
 moving or seeking to remove hjis crops, or when other legal process, not in 
 favor of the landlord, nor controlled by him nor levied at his instance or 
 procurement. Is being enforced against the crops, §2800(3). 
 
 As to the question of demand, under the law of landlord and tenant, the. 
 following suggestions are offered: 
 
 Landlords' special lien on the crops made on land rented from them ar& 
 to be enforced by distress warrant, and not under the above proceeding,. 
 75 Ga. 140; 57 Ga. 406. These cases seem to dispose of a purely obiter Inti- 
 mation in 55 Ga. 655 t'hat in suoh cases a demand might be necessary, also 
 of a similar leaning in 72 Ga. 37 and 75 Ga 709. Landlord's afiadavit here 
 to foreclose lien for advances was in substantial compliance with §2816^ 
 74 Ga. 408. It "showed all the facts necessary to constitute a lien" here,. 
 72 Ga. 804. It is not necesmry that the property on which the lien is. 
 claimed should be set out in the affid&,vit, 76. For one to Jiave a lien as 
 landlord for supplies, without special contract in writing, the relation of 
 landlord must exist; and that it did in fact exist when the supplies were 
 furnished must appear in the affidavit of forec'osure as one of the necessary 
 facts to constitute the lien, 59 Ga. 799. One to whom written rent contract 
 is transferred by written assignment before the maturity of the crops shall 
 have the special lien allowed to landlords on maturity of crop, §2798. And 
 the transferee may foreclose in his own name, averring the transfer, §2799. 
 
 A bill of particulars need not accompany affidavit foreclosing mechanic's 
 lien. 51 Ga. 560. 
 
 (i) In a lien foreclosure for lumber sold by proprietors of a saw-mill. 
 Held, it must affirmatively appear that the demand was made when or 
 after the debt became due, 56 Ga. 148, disapproving 46 Ga. 198. Same rule 
 reaffirmed and 46 Ga. 198again disapproved in affidavit to foreclose lien on 
 saw-mill here, 66 Ga. 55, and again in a common Carrier's lien foreclosure 
 here, 78 Ga. 784. And held here, in a proceeding by a landlord to enforce 
 a lien for supplies under §2816, that a demand on the day the debt matures. 
 is good, 79 Ga. 553. Tlie statute will be strictly construed. An averment 
 that the debt became due on a stated date and that payment has fceen de~ 
 manded and refused is deilcient in two respects: It fails to state of whom 
 demand was made, and whether made before or since the debt became due, 
 54 Ga, 139. 
 
 ij) Demand by plaintiff's agent sufficient, 62 Ga. 179. 
 
 (/c) In statutes of this sort, the right of defense is limited, and defendant 
 i.=! not served with process, the demand "ought, therefore, to be a personal 
 demand," 6 Ga. 164. 
 
AND PRACTICE. 175 
 
 (J) On whom demand made must be averred, 54 Ga. 139. Where lumber 
 furnished to party in possession, Who afterwards transfers the premises,, 
 demand must be made on both of them, 45 Ga. 159. In a lien foreclosure 
 for logs furnished to a saw-mill, Held, that demand must be made on the 
 person who is the owner at the time of demand, 72 Ga. 434. Averment of 
 demand on agent, in foreclosure proceedings against steamboat, should 
 have alleged demand oh agent of owner, not on agent of the boat, 46 Ga. 
 585. In laborer's lien foreclosure here. Held, demand on the general su- 
 perintendent of the defendant corporation was a good demand on its agent 
 within tie meaning of §2816(1), 74 Ga. 371. In foreclosure of steamboat lien^ 
 Held, that averment of demand and refusal was necessary, 6 Ga. 160, 7 Ga. 
 56. No demand and refusal averred, plaintiff purchasing at sale got no title, 
 58 Ga. 186. Affidavit foreclosing a merchant's lien was properly quashed 
 here because it failed to aver a demand for payment upon the owner of 
 the property levied on, and ihis refusal to pay, 54 Ga. 167. No averment of 
 demand and refusal, foreclosure dismissed, 47 Ga. 287. Failure to show de- 
 mand makes the process voidable, but not void; defendant and his credi- 
 tors could take advantage of it, but sheriff could not when ruled for not 
 making the money on it, 73 Ga. 235. Where laborer's affidavit averred de- 
 mand and counter-affidavit did not deny demand, no proof of demand was, 
 necessary, 69 Ga. 65. For defendant, if he desires, has the right to traverse 
 such averment, 58 Ga. 411 (Bleckley, J., dissenting). Excuse for not mak- 
 ing demand sufficient here, 64 Ga. 438. 
 
 (m) In merchant's foreclosure here, Held, that the affidavit must aver 
 that the lien is prosecuted within one year after the debt became due, 
 54 Ga. 167; 57 Ga. 20, or show that fact by what it states, 6 Ga. 159, which 
 it did not do here, 49 Ga. 299. See also 7 Ga. 56. In laborer's lien fore- 
 closure against saw-mill. Held, that the prosecution must be within one 
 year from time the debt becomes diw; not sufficient, where debt liquidated 
 by notes, to show that notes have fallen due within the year, 45 Ga. 220. 
 The requirement that lien must be prosecuted within one year not affected 
 by the statute (§2885) making accounts bear interest from January first, 
 30 Ga. 444. 
 
 Maker of lien dying, plaintiff may make foreclosure affidavit within the 
 twelve months during which executors and administrators are allowed ex- 
 emption from suit, but there can be no levy of execution based on the fore- 
 closure until after the expiration of the twelve months, 49 Ga. 594. The 
 provision for renewing dismissed suits within six months (§3786) does not 
 include lien foreclosure, 57 Ga. 20. 
 
 Replevy not preclude defendant from moving to dismiss plaintiff's pro- 
 ceedings, 49 Ga. 299. 
 
 §2818 provides that liens of pawnees, inn-keepers, boarding house keepers, 
 livery stablemen, and attorneys at law, in possession of personal property 
 under a lien for fees, shall be satisfied according to the provisions of §2958 
 where there is no notice of conflicting liens; but if there is a conflicting lien, 
 the mode of foreclosure pointed out in §2816 shall be pursued. 
 
 Upon suet affidaftrit Tseing filed, the clerk of the superior court or the J. P., 
 ff in his court, shall issue an execution instanter against the person owing 
 the debt, and also against the property on which the lien is claimed, or 
 which is subject to said lien, for the amount sworn to, and the costs, 
 §2816(4). 
 
176 GEOKGIA FORMS 
 
 Affidavit to Foreclose Landlord's Lien for Supplies; 
 
 §2816. 
 •Georgia, Bibb County. 
 
 Before me, John Gruy, of said county, an officer of said State 
 duly aubborized by law to administer oaths, personally appeared 
 John Jones, who, on oath, says that WilUwm Smith, of the county 
 
 -of , is indebted to him in the sum. of dollars, which 
 
 ■amount is now due, having become dvic on the — day of , 
 
 189—. (fi) 
 
 Deponent claims a lien for said debt upon the crops of the pres- 
 ent year, now in the county of , belonging to defendant, said 
 
 crops having been raised upon land lying in the county of , 
 
 rented from deponent for said year by said William Smith, said 
 •debt being for supplies (c) furnished by deponent as landlord (d) 
 to the said tenant to make said crops, as follows: (state what was 
 -furnished.) (e) 
 
 Since said debt became due deponent has made a personal de- 
 mand for the payment thereof upon defendant, who refused to 
 pay the same. 
 
 Wherefore this deponent now comes within one year after said 
 debt became due and prosecutes this his lien pursuant to the pro- 
 visions of §2816 of the Civil Code. 
 
 John Jones. 
 Sworn to and subscribed to before me 
 
 this — day of , 189 — . 
 
 John 'Gray, 
 
 Notary Public Bibb County, Ga. 
 
 (a) Landlord's lien for supplies foreclosed under §2816, and not by dis- 
 tress. For notes upon this form other than those below, see note (ft) to 
 the preceding form. 
 
 (6) Or, when appropriate in lieu of the words in italics, "and said Wil- 
 liam Smith is removing (or seeking to remove) his crops hereinafter men- 
 tioned," or "and legal process not in favor of, nor controlled by, nor levied 
 at the instance or procurement of deponent, is being enforced against said 
 William Smith's crops hereinafter mentioned." Demand then needless. 
 
 (c) Or, "money, horses, mules, asses, oxen, farming utensils of neces- 
 sity," as case may be, §2800. 
 
 (d) Landlord must have furnished the supplies as landlord, 83 Ga. 143. 
 -Must not be merely surety for them, 61 Ga. 579, 86 Ga. 792. 
 
 (e) Itemized account not necessary, 86 Ga. 616. 
 
AND PRACTICE. 177 
 
 Execution; §281fi(4). 
 
 To all and singular the Sheriffs of said State and^their lawful deputies [a) — Greeting : 
 
 We command you that of (&) certain personal property of Wi^ 
 
 Ivwm Smith (c) of the county of (d), to wit: (copy from the 
 
 affidavit description of property on which the special lien is 
 claimed), said personal prioperty described as aforesaid being now 
 
 in the county of (d), you cause to be made the sum of • • 
 
 dollars and — cents priucipal, and the further sum of dollars 
 
 and — cents interest up to the — day of , 18—, and also the 
 
 further sum of dollars and — cents for costs, with interest 
 
 oai the principal sum from the — day of , 18 — , "w^hich t/o/ira 
 
 Jones lately, to wit: on the — day of , 18 — , before the supe- 
 rior court of Bibb county, recovered against the said William Smith 
 and said described personal property by the foreclosure of a lien 
 thereon, pursuant to §2816 of the Civil Code; and that you have 
 the said several sums of money before the superior court of the 
 county of defendant's residence (d) at the next term thereof after 
 said money can be lawfully made (e) to render to the said John 
 Jones for principal, interest and costs as aforesaid, and have you 
 then and there this writ. 
 
 Witness the Honorable W. H. Felton, Jr., judge of said court, 
 
 this — day of , 18—. (/) 
 
 Robert A. Nisbet, Clerk. 
 
 (o) If the amount claimed is under one hundred dollars, the application 
 may be made to a justice of the peace, who may take all the other steps as 
 in cases in his court, §2816(3). 
 
 (6) In the case of a laborer, or other person entitled by statute to a gen- 
 eral lien on all the debtor's property as well as a special lien, insert after 
 the word "of" and before the words "certain personal property" the fol- 
 lowing: "the goods and chattels of William Smith, and particularly of." 
 .However, execution should not be against "lands and tenements," 65 Ga. 
 123. See note (e) under the affidavit. Execution based on laborer's lien 
 foreclosure conformed here, substantially, to the statute, 76 Ga. 752. 
 
 (c) Proceeding cannot be solely in rem; it must be against some per- 
 son as owner or lessee, 46 Ga. 585. 
 
 (d) While affidavit may be made before any officer of this State author- 
 ized to administer oaths. Acts of 1895, §2816(5), and this either in county 
 of defendant's residence or in county where property may be, the process 
 must be returnable to the proper court of the county of defendant's resi- 
 dence, if he resides in the State, 52 Ga. 79, 49 Ga. 596. Principal applied to 
 J. P. executions, 82 Ga. 745. 
 
 (e) §5416, making executions returnable to the next term, means that next 
 term after the money can be lawfully made, 68 Ga. 349. 
 
 (f) If it appear from date of judgment of foreclosure, and of levy that 
 execution must have issued between those two dates, and that every step 
 
178 GEOEGIA EORMS 
 
 was taken in time to foreclose and enforce the lien, omission of clerk to 
 date ^. ta. not fatal, 62 Ga. 180. 
 
 Execution may be quashed on- motion for patent defects without filing 
 counter-affidavit, 53 Ga. 433, 1 Ga. 317. 
 
 Execution, when issued, shall be levied by any sherifE of this State, or 
 bailiff, if the amount he less than one hundred dollars, on such property 
 as is subject to said lien, under the same rules and regulations as other 
 liens, §2816(4). 
 
 Counter- Affidavit ; §2816(6), (7). (a) 
 
 John Jones ) Foreclosure of Lien. 
 
 vs. \ Execution from Court of County. 
 
 William Smith. \ Returnable to — — Court of County. 
 
 Now comes WitUam Smith, defendaM (b) in the above stated 
 cause, and tenders tlhis, Ms counter-affidavit, pursuant to §2816 of 
 the Civil Code, and contests the amount of said claim (c), and for 
 cause of contest says (d) that he is not indebted to plotimtiff in the 
 sum elmmed, nor in any sum whatever, (e) 
 
 William Smith. 
 
 Sworn to and subscribed before me 
 tbis — day of , 18 — . 
 
 (o) If the defendant in execution, or any creditor of his, contests the 
 amount or justice of the claim, or the existence of such lien, he may file 
 his affidavit of the fact, setting forth the ground of such denial, which 
 affidavit shall form an issue to be returned to the court and tried as other 
 causes, §2816(6). 
 
 Counter-affidavit filed, plaintiff must make out his case, though defendant 
 not present at trial, 38 Ga. 639. 
 
 Counter-affidavit and reply not waiver of defects in foreclosure proceed- 
 ings, 78 Ga. 786, 49 Ga. 301. 
 
 A second counter-affidavit must allege that the facts set out were un- 
 known at time first was filed, 55 Ga. 57. (Jackson, J., dissenting.) 
 
 (6) Any creditor of defendant may contest, §2816(6). 
 
 Counter-affidavit of creditor must show that he is such, else he has no 
 right to be heard, 48 Ga. 576. 
 
 Creditor not concluded because of not filing counter-affidavit, 47 Ga. 643. 
 
 After the sale, too late for counter-affidavit; creditor should have claimed 
 proceeds in constable's hands, 78 Ga. 84. 
 
 (c) Or, "the justice of said claim," or, "the existence of said alleged lien," 
 §2816(6); if only part of amount claimed is denied, amount admitted to be 
 due must be paid before affidavit can be received by officer, §2816(7). 
 
 (d) Owner of saw-mill ordering feed, and stating that it was wanted for 
 mules used in running mill, estoppel to set up that feed otherwise used, 91 
 Ga. 643. 
 
 (6) See note (c) above. 
 
 Under the proceeding to foreclose liens on personalty provided by §2816, 
 no general judgment is obtainable, but only a special judgment against the 
 specific personalty, and this is so whether the property has been replevied 
 or not, 58 Ga. 73. 
 
AND PRACTICE. 1 79 
 
 Eevlbvy Bond; §2816(8). 
 
 Know all men by these presents: That we, Willmm Smith, prin- 
 cipal, and Henry Thompson, security, acknowledge ourselves 
 
 jointly and severally bound to John Jones in th© sum of 
 
 dollars, subject to tbe following conditions: 
 
 Wtiereas the said John Jones has sued out a proeeeding for the 
 foreclosure of an alleged lien upon personal property, the amount 
 claimed in said proceeding being dollars; and whereas execu- 
 tion has issued thereunder and been levied by V. A. Menard, 
 deputy sheriff of Bihh cowmty, upon the following described per- 
 sonal property, to wit: (describing the property). 
 
 Now should the said WilUam S'lnith pay to the said John Jones 
 the amount of the judgment and costs thiat he may recover in said 
 case, or should the said Henry Thompson do so for him, then this 
 bond to be void, else of full force and effect. 
 
 William Smith. 
 Henry Thompson. 
 Attest: 
 
 V. A. Menard, 
 Deputy Sheriff Bibi County, Ga. 
 
 Replevy bond must be in double amount claimed, §2816(8). See also 
 notes to said section. Judgment on replevy bond entered up as in cases of 
 appeal, §2817. 
 
180 GEORGIA FOKMS 
 
 CHAPTER 7. 
 HOMESTEAD AND EXEMPTION. 
 
 ARTICLE. 1. 
 
 Exemptions. 
 
 Petiteon for Constitutional Homestead; §§2827-28. 
 Georgia, Bibb County. 
 
 To the Ordinary of said County: 
 
 The petition (a) of John Jones of said coTinty (&) respectfully 
 shows the following facts: 
 
 Petitioner is the head of a family (c) consisting of (d) his wife, 
 (e) Mary Jones, and tioo minor children, Ruth and Sarah, aged 
 respectively twelve and ten years. 
 
 Petitioner desires under the provisions of the Constitution of 
 Georgia and the Acts of the General Assembly, embodied in §2827 
 €t seq. of ihe Civil Code (f), to have laid off and set apart out of 
 (g) his property, to be exempt from levy and sale, a homestead 
 for the use of said family, to wit: On or out of the real estate, 
 a schedule of which accompanies this petition marked Schedule 
 "A," whicih contains a minute and accurate description of all the 
 real estate belonging to him at the date of filing this petition ; the 
 portion so set lapart not to exceed the value of one thousand dollars. 
 
 Your petitioner therefore prays that an order may issue to the 
 county surveyor of said county; or, if none, to some other surveyor, 
 requiring him to lay off a homestead on or out of said land and 
 make a plat thereof, and make affidavit to the value thereof and to 
 the correctness of the plat, and return the same according to law. 
 
 Your petitioner further desires to have set apart, under said sec- 
 tions of the Code, to be exempt from levy and sale, for the use and 
 benefit of said family, certain personal property also, not to exceed 
 six hundred dollars in value. A schedule containing a minute and 
 accurate description of all the personalty owned by him at the date 
 of filing this petition, accompanies it marked Schedule "B," and 
 petitioner has indicated thereon the articles which he desires to 
 have exempted. Annexed hereto is a correct list of the nannes and 
 post-offices of the creditors of your petitioner, duly verified. 
 
 He therefore prays that the notice required by §2831 of the Code 
 may issue and be published. 
 
 John Jones. Qi) 
 
AND PEACTIOE. 181 
 
 (a) A petition sustained as sufficient is set out in full in 68 Ga. 324. An 
 award "in discharge of homestead," etc., is no substitute for statutory pro- 
 vision for obtaining homestead by petition to ordinary, 62 Ga. 447; the pe- 
 tition need not be approved by ordinary; §2835 requires his approval upon 
 the schedule of personalty and the plat, 85 Ga. 687; which is approval of 
 the "homestead," 85 Ga. 267. 
 
 (6) "Of said county" sufficient allegation of residence, 67 Ga. 669; alle- 
 gation of residence a necessary jurisdictional fact, 63 Ga. 27. Application 
 by head of family must be to ordinary of applicant's county, 41 Ga. 128, 
 or of county where minor beneficiaries reside, "where the application is 
 made for their benefit," §2828. Presumption as to a homestead granted is 
 in favor of local jurisdiction of ordinary, 80 Ga. 595. 
 
 (c) Besides every head of a family, the following are entitled to a home- 
 stead under §2827, viz.: "every aged or infirm person, or person having the 
 care and support of dependent females of any age, who is not the head of 
 a family," and also every "guardian or trustee of a family of minor chil- 
 dren." The foregoing petition by a head of a family is selected as the 
 most important, and it will suffice as a general guide in drawing the others 
 subject to suoh changes as will naturally suggest themselves if the drafts- 
 man have §2828 before him in doing his work. 
 
 Head of family: Bachelor, having servants, etc., is not, 42 Ga. 405; and 
 his general waiver of homestead effectual after marriage; else "creditors 
 of unmarried men would be at the mercy of the matrimonial instinct," 
 79 Ga. 84 (Bleckley, C. J.). Widow without children is not head of family, 
 46 Ga. 231, nor is a wife, relatively to husband's children by former mar- 
 riage, 45 Ga. 483; but guardian of minor child is, 59 Ga. 629. So adult indi- 
 gent daughters of applicant are proper beneficiaries, 63 Ga. 26, but married 
 daughter is not, 77 Ga. 682. One may homestead who is head of family con- 
 sisting of his indigent widowed daughter and her children, 56 Ga. 390, or 
 consisting of his mother and sister, living with and supported by him, he 
 being single, 41 Ga. 153. Homestead for wife and daughter terminating 
 by death of former and marriage of latter, second marriage entitled 
 widower to another homestead, 75 Ga. 813, but it did not where daughter 
 continued single and dependent on him after first wife's death, 63 Ga. 23. 
 Homestead proceedings are amendable, 68 Ga. 636, 61 Ga. 385. No petition 
 was necesisary in 1868, and allegation as to being "head of a family" not 
 necessary, 72 Ga. 239; absence of, curable by amendment, 72 Ga. 242; and 
 not fatal, petition showing that it is "for the use and benefit of his family," 
 and duly approved, 56 Ga. 520. So woman's application in 1869, as head of 
 family, not disclosing kind of family, not void, 59 Ga. 235; presumed that 
 came under law, lb. Held here, however, under same law, that demurrer for 
 failure to allege in what capacity applicant claimed homestead should be 
 sustained, 40 Ga. 173; but, under Constitution of 1877, capacity in which ap- 
 plicant claims homestead, whether as head of family, or how, not appearing, 
 homestead ineffectual against subsequent claim, 67 Ga. 728; not curable by 
 parol, 76. 
 
 As to homestead to *ife out of her property, when separated from hus- 
 band, see §2842. 
 
 §2843 provides that should the husband refuse to apply, his wife or 
 any person acting as her next friend, may apply, and it shall be as bind- 
 ing as if done by the husband. So, trustee or guardian refusing, next 
 friend may apply. Such application by wife should, properly, allege hus- 
 band's refusal, and also out of whose property exemption is sought. See 
 notes to §2843. 
 
182 GEOKGIA FOKMS 
 
 (d) In 1873 it was not necessary to set out names and ages of benefi- 
 ciaries, 67 Ga. 669; but under §2828 names and ages must be stated. Ap- 
 plying as bead of family and alleging of wbom it consisted (wife and chil- 
 dren) sufficiently indicates beneficiaries, 68 Ga. 324. Subject to dower and 
 year's support, minors bave a rigM to homestead out of deceased father's 
 estate, 40 Ga. 555; and their mother's moving with them to Tennessee on 
 marrying again, did not defeat tbat right, 46 Ga. 660. Semble, that benefi- 
 ciaries as well as applicant, must live in Georgia, 73 Ga. 424. 
 
 (e) Age of wife need not be alleged, 68 Ga. 324. 
 
 (f) Constitutional 'homestead cannot be supplemented by the statutory 
 or "pony" homestead, nor vice versa, 63 Ga. 167. 
 
 (ff) Where married woman /applies for bomestead record must show out 
 of whose property homestead is asked, 61 Ga. 105, 62 Ga. 568, 65 Ga. 347, 
 96 Ga. 339. Husband's assent presumed when, 93 Ga. 819. Relative to this 
 requirement, however, th-e affidavit is part of the record, 73 Ga. 189. "It 
 is better in all cases to state the ownership of the property," but omission 
 by husband not fatal, 67 Ga. 669; especially where asked out of property 
 whereon he resides, 68 Ga. 459. 
 
 Husband may homestead land if in possession thereof though legal title 
 in another, 91 Ga. 189; notwithstanding deed of gift to minors to defeat 
 judgment, lie mot parting with possessiou, 87 Ga. 108. Property in which 
 exiemption asked must be applicant's at the time he applies, 65 Ga. 326. 
 Partner may homestead in partnership property, 68 Ga. 32. 
 
 Husband and wife separated, wife may homestead in her separate prop- 
 erty, §2842. 
 
 (ft) Application signed by attorney for petitioner but verified by latter, 
 not void. 68 Ga. 324. 
 
 As to law governing waiver of homestead, see §§2863-4, and notes. 
 
 Schedule "A" — Eeal Estate. 
 
 This sohedule should simply describe the land as in deeds and 
 other conveyances. 
 
 While petition need not be approved by ordinary, §2835 requires his 
 approval upon the schedule of personalty and the plat, 85 Ga. 687, 267. 
 
 If applicant seeks exemption out of town property exceeding in value the 
 aimount of exemption claimed, and it cannot be so divided as to give an 
 exemption of that value, ordinary may pass an order providing that should 
 the property (describing it) be sold by virtue of any judgment, etc., enough 
 of the proceeds to make up full exemption shall be paid over to ordinary 
 for reinvestment. See §§2839-40. 
 
 Land in different counties may be embraced in application, §2829. 
 
 Schedule " B " — Personalty. 
 
 This schedule should consist simply of a minute and accurate 
 list of all personalty owned at time homestead applied for, and 
 petitioner should indicate thereon the articles in which exemption 
 is desired. 
 
 Under §2830, omission presumed fraudulent until explained and conse- 
 quences repaired, 63 Ga. 23. Possession of large means shortly before ap- 
 
AND PKACTICE. 183 
 
 plication requires explanation, 68 Ga. 32; debtor cannot witlihold money 
 "needful to employ attorneys, pay licenses, to carry on business, expenses, 
 etc.," 79 Ga. 616. Stock of drugs exempted must be specifically identified; 
 mingled, exemption lost, 44 Ga. 243. Chose in action may be exempted, 
 76 Ga. 795. Distress warrant levied on personalty pending application for 
 exemption discharged after grant, 69 Ga. 739. Under Constitution of 1868, 
 schedule of personalty was unnecessary where realty only asked, 46 Ga. 
 656. Exemption of personalty since 1877, as against debt made before 
 Constitution of 1877, could not be more than |1,000, 69 Ga. 605, nor could 
 cash here be exempted and then invested in realty to defeat the debt, 16. 
 While the petition need not be approved by ordinary, §2835 requires his 
 approval upon tlie schedule of personalty and the plat, 85 Ga. 687, 267. 
 
 Casli must be included in the schedule of personalty, but cannot be 
 exempted as cash; it must be Invested under order of ordinary, and when 
 so invested must be returned by schedule, §2841. See also notes to this 
 section. 
 
 List op Creditors. 
 
 William SmitL. Macon, Ga. 
 
 James Brown " Atlanta, G-a. 
 
 Henry Tbonipson Augusta, Ga. 
 
 Henderson, Eusiiing & Go No. 10 Main street, Gincinnati, O. 
 
 Georgia, Bibb County. 
 
 Personally came John Jones, wlio, 'on oath, says that the fore- 
 going is a true and correct list of Ms creditors and of their post- 
 offices, so far as known to him. John Jones. 
 
 Sworn to and subscribed before me 
 this — day of , 18 — . 
 
 As against creditor not designated in list of creditors, nor notified, homo- 
 stead proceedings void, 83 Ga. 297; designating one member of a creditor 
 firm and serving him individually does not bind the firm, 69 Ga. 842. 
 
 Form of Order to Surveyoe. 
 Georgia, Bibb County. 
 
 Office of the Ordinary of said County. 
 To Charge S. Birch, County Sfurveyor of said County: 
 
 John Jones, of said county,, having applied to me for the setting 
 apart of a homestead, 
 
 You are hereby ordered to enter upon the following lands of 
 said John Jones, to wit: (here describe the land), and lay ofE for 
 a homestead for the said John Jones and family, either the whole 
 or so much of said lands as will not exceed in value the sum of one 
 thmisand dollars, and make a plat thereof, and return the same to 
 me, together with your estimate of the value of the land so laid off. 
 
184 GEOKGIA FOKMS 
 
 on or before the — day of , 18 — -, under oath, as prescribed 
 
 by §§2834 and 2837 of the Code of Georgia. 
 
 Given under my band and seal of office, this — day of , — . 
 
 O. M. Wiley, Ordinary. (Seal.) 
 
 Surveyor's return must be at least five days before hearing, §2837. 
 
 That order to surveyor did not appear on homestead papers not exclude 
 record of grant of homestead if such grant appears on minutes, 69 Ga. 60. 
 
 As to this order, where land in another county is embraced in the appli- 
 cation, see §2829. 
 
 Form or Notice to be Published by Ordinary; §2831. 
 
 John Jones 'has applied for exemption of personalty, and setting 
 apart 'and valuation of homestead, and I will pass upon the same at 
 
 — o'clock, — ^^m., on the — day of , 18 — , at my office. 
 
 0. M. Wiley, Ordinary. 
 
 Time fixed must not be less than 20 nor more than 30 days from date of 
 order to surveyor, §2833. 
 
 Ordinary absent from county on day set for hearing, and no provision for 
 continuance made, judgment two days later, without further notice, void, 67 
 Ga. 368. 
 
 Form of Notice to Creditors; §2832. 
 Georgia, Bibb County. 
 
 To 
 
 You are hereby notified that I bave iiled with the ordinary of 
 said county my application for homestead, and that the hearing of 
 
 the saime bas been fixed for the — day of , 18 — , at the hour 
 
 of — o'clock. 
 
 John Jones. 
 As against creditor not designated in list of creditors, nor notified, home- 
 stead proceedings void, 83 Ga. 297. Designating one member of a creditor 
 firm amd serving him individually does not bind the firm, 69 Ga. 842. If 
 notice served on creditor designate no time for hearing application, and 
 notice published describe applicant as R. J. Smith instead of J. R. Smith, 
 there being then in county an R. J. Smith, judgment granting homestead 
 of no force against such creditor, 60 Ga. 462; but "a void thing is nothing," 
 and applicant may reapply, giving notice to the creditor not served in first 
 proceeding, 68 Ga. 635. Slight misnomer as to name of creditor firm, in 
 notice mailed to It, immaterial, 80 Ga. 595. Mere presence of plaintiff's 
 attorney when ordinary approved application, no waiver of notice, 60 
 Ga. 462. 
 
 Receipt of Ordinary for Notices. 
 
 [Not essential, but advisable to be entered on the record.] 
 
 Eeceived of John Jones written notices of bis application for 
 
AND PKACTICE. 185 
 
 homestead and the day of hearing, together with stamped envel- 
 opes for same. This — ■ day of , 18 — . 
 
 O. M. Wiley, Ordinary. 
 
 If record shows due delivery to ordinary, both of non-resident creditor's 
 name and address, and of a notice with stamped envelope, presumed ordi- 
 nary did duty, and notice sufficiently appears, 68 Ga. 324. 
 
 Entry on Petition. 
 
 ISTotiee published in the Macon Telegraph, in its issues of 
 
 and , and ■wri'tten notices mailed on the — day of , to the 
 
 following : 
 
 C. M. Wiley, Ordinary. 
 
 Notice should be published when application made; notices should be 
 mailed 15 days before hearing, §2832. 
 
 Oath by Person Serving the Notices ; §28.S2. 
 Georgia, Bibb County. 
 
 Personally comes , who, on oath, says that he has 
 
 given notice in writing, personally, to (here follow the names of 
 the resident creditors) of the filing of the application of John Jones 
 for homestead, whicih said notices specified the time fixed for hear- 
 ing the same, to wit: , and were all served on or before the 
 
 — day of , 18 — . 
 
 Sworn to and subscribed before me 
 this — day of , 18 — . 
 
 The two dates should be at least five days apart, §2832. Notice may be 
 served personally, or by leaving copy at residence or house of business of 
 creditor, §2832. 
 
 Sworn Return op Surveyor; §§2834, 2837. 
 Georgia, Bibb County. 
 
 Personally comes George 8. Birch, county surveyor of said 
 county, who, on oath, says, that in obedience to an order of the 
 
 ordinary of said county, to him directed, dated — day of , 
 
 18 — , he did on the — day of , 18 — , proceed to lay off a 
 
 homestead for John Jones and family, on or out of the land named 
 in said order. A correct plat of said homestead so laid off is 
 hereto attached. The value of the said land so laid off and platted 
 is, in deponent's opinion, one thousand dollars. 
 
 George S. Birch. 
 
 Sworn to and subscribed before me 
 this — day of , 18 — . 
 
186 GEO'EGIA FORMS 
 
 Surveyor's affidavit that the plat "is a correct plat," sufficient under 
 §2834, 85 Ga. 268. Mere certificate to correctness of plat no sufficient sub- 
 stitute for affidavit, neither is oral oath thereto; ordinary cannot act until 
 affidavit is made, 85 Ga. 340, 76 Ga. 35. That it was made on day set for 
 hearing, ground for postponement, but not fatal, 68 Ga. 324; omission to 
 make it may be supplied by amendment, 61 Ga. 385. Statute requires it 
 made five days before hearing, §2837. 
 
 Surveyor should attach his plat to his affidavit. 
 
 'Rule 56 of superior court, §5687, as to scale of surveys, need not be fol- 
 lowed by ordinary, 59 Ga. 240. 
 
 Plat need not be recorded in county where land lies, but in county where 
 jurisdiction to secure homestead is exercised, 85 Ga. 268. 
 
 It is right of applicant to amend schedule, or plat, after survey, to meet 
 creditor's objections. Which, if done, prevents appointment of appraisers, 
 40 Ga. 442. 
 
 Notes on the Plat and Schedule. — Plat of homestead and schedule of per- 
 sonalty not office papers; they, with ordinary's approval marked on them, 
 belong to applicant as his muniment of title, 60 Ga. 114, and are the best 
 evidence as to their own contents, 85 Ga. 687. 
 
 Liberal presumptions in favor of regularity of homestead proceedings; 
 proper order to surveyor presumed from approval of plat and schedule, 85 
 Ga. 267. 
 
 Ordinary's Order or Approval ; §2835. 
 
 Approved this the — day of , 18 — . 
 
 G. M. Wiley, Ordinary. 
 
 Ordinary enters foregoing on both plat and schedule of personalty, then 
 hands same to clerk of superior court for record, §2835. 
 
 Okdinary's Costs. 
 
 Before the ordinary's approval can be demanded, the applicant shall pay 
 him the cost of said proceedings, including the clerk's cost for recording the 
 same. And the ordinary shall be bound for the clerk's cost if he approve 
 the homestead application, §2845, 
 
 If any person filing objections to the schedule or plat shall fail to have 
 the same sustained, he shall pay the cost of said proceedings, §2845. 
 
 SUPPLKMENTAL HoMESTE.^D. 
 
 A supplemental homestead may be obtained when full amount allowed 
 by law has not been covered, by resorting to the methods provided for 
 obtaining a homestead. "The proceedings shall be in all respects the 
 same," §2865. 
 
 Should any creditor of applicant desire to make 
 
 Objection 
 to the ischedule, either for want of sufficiency or fulness, or for fraud of 
 any kind, or should any creditor desire to dispute the valuation of the per- 
 sonalty, or the propriety of the survey, or the value of the premises platted 
 as the homestead, he shall at the time and place of meeting, specify the same 
 in writing, §2836. 
 
 Certainly no "form" can be needed to make this plainer. 
 
 Upon objection made as provided in §2836, unless the applicant shall so 
 alter the schedule or plat, or both, as to remove the objection, there must, 
 under the statute, §2838, be an 
 
AND PRACTICE. 18T 
 
 Appointment of Appraisers. 
 
 In Re John Jones. 
 Petition for Homestead. 
 
 Bibi Court of Ordinary. 
 
 Term, 18—. 
 
 To , ■ — ■ — , and ; 
 
 "Whereas, , a creditor of tlie applicant in above stated peti- 
 tion, luas made objection to the schedule, for want of suflicienctf 
 and fulness, mud has disputed the valuation of the per- 
 sonalty, and the propriety of the survey and the value of the 
 premises platted as. the homestead, and 
 
 Whereas, You are deemed to be disinterested parties, you are 
 hereby appointed to examine the property concerning which the 
 objections are made, and to value the same, and to make a return 
 of your finding under oath. 
 
 Witness my official signature this — day of , 18 — . 
 
 C. M. Wiley, Ordinary. 
 
 Return of Appraisers. 
 
 [For couvenience, this return may be entered on back of order of appointment.] 
 
 We, the undersigned appraisers, appointed pursuant to the within 
 
 order, find the value of the realty to be dollars, and the value 
 
 of the personalty to be • — dollars. We find against the other 
 
 grounds of objection. 
 
 (Signed by the three appraisers.) 
 
 Subscribed and sworn to by , , and , before me. 
 
 this — day of ■ , 18 — . 
 
 John Gray, 
 
 E". P. Bibb County, Oa. 
 
 If, upon the return of the appraisers, either the plat of realty, or the 
 schedule of personalty be found too large, such alterations shall be made 
 therein as the ordinary may deem proper to bring the same ■within the 
 limits of the value allowed by the Constitution, and he shall then other- 
 wise approve said schedule and plat as required by §2835, and hand the 
 same to the clerk of the superior court of his county, who shall record the 
 same as required by §2835: §2838. 
 
 Appeal?. 
 Either party dissatisfied with the judgment, shall have the right to ap- 
 peal under the same rules, regulations and restrictions as are provided by 
 law in cases of appeal from the court of ordinary, §2838. 
 
 Sales for Reinvestment. 
 
 "The ordinaries and chancellors are the guardians 'and protectors 
 of the minor dhildren of the State ; and when applications are made 
 
188 GEOEGIA FOEMS 
 
 to them to sanction a obang© in tiie property of minors, be- 
 ■qneatlied to them by their fatii©T8, and to which they are entitled 
 tinder the law, we beg them, for the sake of the innocent and un- 
 protected, to look into these matters as if they were their own 
 •children; and we especially urge upon chancellors to examine 
 closely all petitions for the sale ^and reinvestment of trust property, 
 and of homestead property." 81 Ga. 382. 
 
 Justice Simmons, now Cliief Justice, delivered the opinion of the court 
 in the case from which the foregoing is talten. His words are, like himself, 
 plain an-d forceful. Ttiey may well be remembered by judges when called 
 upon to administer this law. 
 
 Petition to Sell Homestead for Eeinvestment ; §2847. 
 'Georgia, Bibb County. 
 
 To the Honorable W. H. Felton, Jr. , Judge of the Superior Court of said County : (a) 
 
 The petition of John Jones and his wife Mary Jones (h) respect- 
 fully shows the following facts: 
 
 1. Petitioners are residents of said county, (a) 
 
 2. HeretofoTie, to Avit, on the day of , 18 — , a home- 
 stead in real property and an exemption of personalty, was duly 
 set apart to the said John Jones by the ordinary of said county. 
 A copy of the proceedings under which said homestead and ex- 
 emption were obtained is hereto attached, marked Exhibit "A," 
 and the same is hereby made a part hereof, (c) 
 
 3. Petitioners jointly desire the homestead set apart as aforesaid 
 in the land to be sold for reinvestment, for the following reasons, 
 to wit: . (d) 
 
 Wherefore, the premises considered, petitioners pray that said 
 property may be sold for reinvestment, pursuant to the statute for 
 such cases made and provided. 
 
 A. B., 
 Plaintiff's Attorney. 
 
 (o) The application must be made to the judge of the superior court 
 ■of the county where the debtor resides, or where the property is situated, 
 or if such judge is disqualified, to the judge of an adjoining circuit, and the 
 judge may, upon a proper showing, in term or vacation, order the property 
 «old and the proceeds reinvested on the same uses, §2847(1). Sale without 
 sanction of judge is what Constitution of 1877 prohibited, and such sale is 
 void, 80 Ga. 330. There is no statutory authority for creating a mort- 
 gage upon exempted property, either with or without judicial order; it can- 
 •not be mortgaged at all, 83 Ga. 712. Where Jackson, C. J., characterized a 
 bill brougiht by minors to enjoin father from petitioning for sale of home- 
 stead for reinvestment as "the prattle of childhood," 72 Ga. 688. 
 
 (6) Since the 'homestead estate continues to beneficiaries, notwithstand- 
 ing death of head of family, wife may apply, on behalf of herself and chil- 
 
AND PRACTICE. 189* 
 
 dren, for sale for remvestment, though, husband dead, 78 Ga. 209. Wiea 
 the head of a family applies for leave to sell a homestead, it is necessary 
 for the wife, if he have one, to join in the application. In case applioajit 
 is a widow, who is head of family, children need not be joined. But if 
 application be by a trustee or guardian of minors, to whom as such the 
 homestead has been set apart, it is necessary to make the children parties^ 
 81 G-a. 370. 
 
 (c) Not essential that copy of the proceedings should be attached, 74 Ga. 
 541; but this very case illustrates the advisability of attaching such copy, 16. 
 
 (d) A proper showing is necessary, §2847(1). 
 
 The sale shall operate to pass to the purchaser the entire interest and 
 title of the beneficiairies, and also the reversion, §2847(2). The purchaser 
 shall receive the property and hold it as to all liens against the original 
 debtor, with the same exemption therefrom, and for the same length of 
 time as was allowed to said original debtor before such sale, §2847(3). By 
 consent of all lien creditors, the liens of such creditors may be, by suoh 
 order, divested and transferred to the newly-acquired property, §2847(3). 
 
 Where homestead land was sold for reinvestment, but the liens of credi- 
 tors thereon were not transferred (as the statute provides may be done by 
 their consent) to the property purchased, the purchaser of the homestead 
 land took it, as to liens thereon against the original debtor, with the same 
 exemption therefrom, and for the same length of time, as was allowed to 
 said original debtor before such sale, 79 Ga. 117. Therefore, after the sale, 
 a judgment creditor could not levy on and bring to sale the property sub- 
 ject to the homestead charge or incumbrance, the object being to sell the 
 reversionary interest in the hands of the purchaser before the termination 
 of the homesteaid ©state, 79 Ga. 117, distinguishing 73 Ga. 423, where the 
 principle just enunciated was recognized, but the court said: "Yet a sale 
 and removal frO'm the State terminates any immunity from levy, at least 
 as to the reversion"; and distinguishing also 69 Ga. 476, as not invoking 
 tMs statute at all. 
 
 The judge gihall order the entire proceedings recorded on the minutes 
 by the clerk of the superior court of the county in which the parties apply- 
 ing for the order of sale reside, and where land is sold, in the county where^ 
 the land is situated, §2847(5). 
 
 Levy and Sale or Homestead, When Allowed. 
 
 An officer knowingly levying on or selling property made exempt from- 
 sale (except as provided in §2850) shall be guilty of trespass, and tlie wife 
 or family of the debtor may reoover therefor for their exclusive use, §2849. 
 
 When defendant in /?. fa. replevied and gave forthcoming bond, but 
 before sale day had the property set apart as exempt, failure to produce 
 the property was no breach of the bond, 72 Ga. 478. 
 
 Affidavit TO Subject Homestead TO- Levy; §2850. [a] 
 Georgia, B'lhh County. 
 
 Before me, John Gray, of said county, an officer of said State 
 duly authorized by law to administer oatihs, personally appeared 
 
190 GEOEGIA FOEMS 
 
 the imdersigned, -wlio, on oath, says that he is plaintiff in an execu- 
 tion for the sum of — dollars principal, against Willia/m Smith, 
 issued from the court of county, and is seeking to pro- 
 ceed with the same; (V) that a homestead of realty and personalty 
 (or either) has been applied for (c) and set apart out of the defend- 
 ■ant's property, as provided for by the Constitution and laws of this 
 State; that there is no other property of defendant on which to 
 levy, (d) and that plaintiff's debt falls within some one of the 
 classes for which the homestead is bound under the Constitution, 
 for that said debt is for . (e) 
 
 Sworn to and prescribed before me John Jones. 
 
 this — day of , 18 — . 
 
 Johiiv Oray, 
 
 Notary Public Bibi County, Ga. 
 
 (o) When mortgage foreclosure proceedings all showed that homestead 
 waived, affidavit under §2850 unnecessary to subject to levy, 74 Ga. 380, 
 especially where levy antedated setting apart of homestead, 83 Ga. 177. 
 When the vendor of land, who took notes and gave bond for title, sues 
 the notes to judgment, and then makes and files his deed and levies, the 
 sale cannot be defeated by the vendee's having the land set apart as a 
 homestead, nor is it necessary for plaintiff to file affidavit under §2850 in 
 order to have the execution proceed, 92 Ga. 780. 
 
 (6) The levy is invalid unless the affidavit is made before the levy; if 
 made after the levy, though before the sale, the sale passes no title and 
 trover lies for personalty so sold, against the purchaser, 57 Ga. 218. 
 
 (c) Pending an application for homestead, and "up to the time the home- 
 stead is actually set apart," the property is subject to levy "with the quali- 
 fication only, that if the homestead should be thereafter established and set 
 up the purchaser at such sale acquires only the fee with his right of pos- 
 session postponed until the termination of the homestead estate," 96 Ga, 
 222, 86 Ga. 697, 87 Ga. 761. Where sheriff levies, and then defendant applies 
 for homestead, but application is not granted before sale day, sheriff must 
 sell, 91 Ga. 132. 
 
 (d) There are two averments essential. (1) That plaintiff's debt falls 
 within one of the claims for which the homestead is bound (specifying 
 the class, 57 Ga. 220). (2) That there is no property except the homestead 
 on which to levy, 95 Ga. 788. Affidavit omitting latter averment, sale 
 iTivalld, lb. 
 
 (e) Under the Constitution, the homestead is bound for (1) taxes, 
 (2) purchase-money, (3) labor done thereon, (4) material furnished there- 
 for, (5) removal of incumbrances thereon. 
 
 When the foregoing affidavit is placed in the hands of the levying officer, 
 he must proceed at once to levy and sell, as though the property had never 
 ibeen set apart, §2850. 
 
 But defendant may file his 
 
AND PEACTIOE. 191 
 
 Counter-Affidavit ; §2850. 
 Georgia, Bibb County. 
 
 Betfore me, John Ch-xiy, of said county, an officer of said State 
 duly authorized by law to administer oaths, personally comes 
 William Sirtith, who on oath says that a certain affidavit by Jokn 
 Jones, alleging that the homestead of deponent is subject to a cer- 
 tain execution for dollars principal, issued in favor said John. 
 
 Jones against deponent from the • court of — ■. — ■ county, is 
 
 untrue, in this, to wit: 
 
 V/illiam Smith. 
 Sworn to and subscribed before me 
 
 this — day of , 18 — . 
 
 John Gixiy, 
 Notary Public Bihh County, Ga. 
 
 "When plaintiff's affidavit alleged that the debt was for purchase-money, 
 counter-affidavit of defendant "that to the best of his knowledge and belief 
 he paid the purchase-money lor the land levied on," properly dismissed on 
 demurrer, 46 Ga. 282. 
 
 When the affidavit does not comply with the statute, claim is the proper 
 way to resist the levy, 77 Ga. 467. Quwre, whether if a proper affidavit 
 filed before the levy, the mode of contesting by counter-affidavit is exclusive 
 or only cumulative, 77 Ga. 467. At any rate, a proper affidavit not affirma- 
 tively appearing, claim is the remedy, lb. §§2850 et seq. do not apply to 
 distress warrants, and where landlord placed in levying officer's hands an 
 affidavit thereunder, counter-affidavit thereto by defendant was properly 
 dismissed, 75 Ga. 678; defendant ooTild file a claim, as head of family, hy 
 pauper affidavit, bTit 11 he wished to resist the idistress warrant, he had 
 but one course, viz., to make his regular counter-affidavit to the distress 
 warrcint, denying the indehtedness or giving bon-d, pursuant to the law of 
 distress for rent, §4819, 75 Ga. 678. 
 
 At the first term of the court to which execution and affidavits are re- 
 turned, an issue shall be formed upon the same, and tried as in cases of 
 illegality, §2852. 
 
 Any debtor may, except as to wearing apparel and three hundred 
 dollars' worth of household and kltcihen furniture and provisions, waive or 
 renounce his right to the benefit of the exemption provided for by the 
 constitution and laws of this State, §2863. 
 
 In case of such waiver, and the levy of an exception, the debtor and his 
 wife if he has any, may select and set apart, as free from levy and sale, 
 three hundred dollars' worth of household and kitchen furniture and pro- 
 visions, §2864. But "select and set apart" does not mean a mere personal 
 claim to certain property as selected, with no official action thereon; the 
 property must not only be selected by the debtor, but must be set apart as 
 exempt by the ordinary, 68 Ga. 252. 
 
 If the plaintiff in fl. fa. is of opinion that the property is of greater value 
 than $300, he may indemnify the officer and require him to proceed with 
 the levy upon some part of said property, or all, if it be incapable of 
 division, §2864. The debtor, or his wife, if any, may then place in the 
 levying officer's hands an affidavit that the property is not of greater value 
 tian three tundred dollars, whereupon the officer shall return the levy and 
 
192 GEORGIA FOEMS 
 
 affidavit into court as in illegality cEiges. And if tlie jury find that the levy 
 was not made in good faith, they may assess damages against the plain- 
 tiff in /?. fa., not exceeding 25 per cent, of the value of the property, §2864. 
 
 ARTICLE 2. 
 
 'Statutory or Short Homestead. 
 
 Under §2866 the following property of every debtor, who is the head of 
 a family, shall be exempt fro^m levy and sale by virtue of any process what- 
 ever, under the laws of this Staite, nor shall any valid lien be created 
 thereon, except in the manner hereinafter pointed out, but shall remain 
 for the use and benefit of the family of the debtor: 
 
 1. Fifty acres of land and five additional acres for each of his or her 
 children under the age of sixteen years. This land shall include the 
 dwelling-house, if the value of such house and improvements does not ex- 
 ceed the sum of $200: Provided, that none of the above land be within the 
 limits of a city, town or village, and does not include any cotton or wool 
 factory, saw or grist mill, or any other machinery propelled by water or 
 steam, the value of which excee>ds the sum of $iiOO: And provided also, that 
 such land shall not derive its chief value from other cause than its adap- 
 tion to agricultural purposes; or in lieu of the above land, real estate in a 
 city, town or village, not exceeding |500 in valuie. 
 
 2. One farm horse or mule, or in lieu thereof, one yoke of oxen. 
 
 3. One cow and calf. 
 
 4. Ten head of hogs and fifty dollars' worth of provisions, and five dollars' 
 worth additional for each child. 
 
 5. Fifty bushels of com, one thousand pounds of fodder, one one-horse 
 wagon, one table and a set of chairs sufficient for the use of the family, 
 and household and kitchen furniture not to exceed one hundred and fifty 
 dollars in value. 
 
 6. Beds, bedding, and common bedsteads sufficient for the family. 
 
 7. One loom, one spinning-wheel, and two pair of cards, and one hundred 
 pounds of lint cotton. 
 
 8. Common tools of trade of himself and wife. 
 
 9. Equipment and arms of a militia soldier, and trooper's horse. 
 
 10. Ordinary cooking utensils and table crockery. 
 
 11. Wearing apparel of himself and family. 
 
 12. Family Bible, religious works, and school books. 
 
 13. Family portraits. 
 
 14. The library of a professional man, in actual practice or business, not 
 exceeding three hundred dollars in value, and to be selected by himself. 
 
 15. One family sewing-machine; this exemption to exist whether person 
 owning said machine is the head of a family or not, and shall be good 
 against all debts except the purchase-money. 
 
 Every debtor seeking the benefit of §2866, or if he refuses, his wife or 
 pny person acting as her next friend, shall make out a schedule of the prop- 
 erty claimed to be exempt and return the same to the ordinary, without 
 making any application for homestead, and it shall not be necessary to 
 publish the same in a gazette, §2867. 
 
AND PRACTICE. 193 
 
 Schedule op Property Claimed to be Exempt. 
 Georgia, Bibb County. 
 
 To the Ord/vnary of said County: 
 John Jones {a), of said county, being tlie head of a family, con- 
 sisting of his wife, Mary Jones, and two minor children, to wit: 
 Ruth, aged ticelve years, and Sarah, aged ten years, and desiring 
 the benefit of the statutory or short homestead provided by §2866 
 of the Civil Code, returns herewith a schedule of property now 
 owned by him (h) claimed to be exempt, viz. : 
 
 SCHEDULE. 
 
 The following described real estate: (describe the same as in a 
 deed), (c) ^ , 
 
 The following described personalty, to wit: 
 
 Live Stock. — One hay horse about four years old, named 
 "Billj" one brindle cow about five years old, and one calf; ten 
 liead of hogs. 
 
 Provisions not exceeding sixty dollars worth, consisting of (indi- 
 cate in a general way what they are ). (d) 
 
 Corn, fifty bushels; fodder, mm thousand pownds; one one-horse 
 wagon. 
 
 Household and kitchen furniture, not exceeding one hundred 
 and fifty dollars in value, to wit : (giving list of same.) 
 
 Beds, bedding, and common bedsteads, as follows: (giving list 
 of same.) 
 
 One loom, one spinning-wheel, and two pairs of cards, and 
 one hundred pounds of lint cotton. 
 
 Common tools of trade of himself and wife, to wit: (giving list 
 of same), (e) 
 
 Equipment and arms of a militia soldier, and trooper's horse. 
 
 Crockery and cooking utensils, as follows: (giving list of same). 
 
 Wearing apparel of himself and loife. (f) 
 
 Books.— Owe Frnmily Bible, the following religious loorks (nam- 
 ing them), and the following school books (naming them). 
 
 Family Portraits (giving list of same). 
 
 Law library, not exceeding three hundred dollars in value, 
 l>elon,ging to the said Jones Jones, consisting of the following 
 books: (giving list of same). 
 
 One family sevmig-^machine. 
 
 (a) "It tas been uniformly held tiy this court, that when the application 
 is by the wife, it must show that the exemption is sought out of property 
 belonging to the husband," 96 Ga. 338. And when husband was in lunatic 
 asylum and wife secured exemption under §2866, as head of family, in 
 property which turned out tO' be the husband's, such property was subject 
 to his debts, 62 Ga. 568. 
 
 (6) One who takes a homestead can only have set apart property owned 
 by him at the time; that one who ha/d no horse included in his petition for 
 
194 GEOKGIA FOKMS 
 
 exemDtion, "one farm horse or mule," did not exempt a horse subse- 
 quently purchased, 65 Ga. 326. 
 See note (a) above. 
 
 (c) If the land the debtor owns is in excess of tflie statutory allowance, he 
 must have a plat of it made pursuant to §2868. See 64 Ga. 446. But when 
 the quantity of land owned by the debtor is not in excess of the statutory 
 allowance, no plat or survey is requisite, 20 Ga. 200; 22 Ga. 168. §2868, 
 which comprehends th« former case, provides that the debtor may procure 
 the county surveyor (or any other surveyor, if there be no county sur- 
 veyor), to lay off the statutory allowance out of tflie land and make a plat 
 thereof, and return the plat to the ordinary to be there recorded as 
 schedules are. 
 
 If any creditor desires to dispute the propriety of the survey, or the value 
 of the improvements, the ordinary may, upon application and notice to the 
 debtor, appoint three appraisers to pass on the matter. See §2869. So far 
 as the writer is advised, the Short Homestead has not been much used 
 since the adoption of the Constitutional Homestead, in cases where surveys 
 are necessary. In fact, one of the principal advantages of the Short Home- 
 stead is that it is a gwick homestead, for within an hour the "honest debtor" 
 may effectually reserve from his creditors property to the amount of 
 $1,200 or $1,500, or even more. 
 
 (d) Within the meaning of that clause of the constitution making a 
 waiver of homestead as to $300 worth of wearing apparel, provisions, etc., 
 ineffectual, a milch cow is not "provisions," 80 Ga. 733; but corn on ear 
 in shuck is, 88 Ga. 352. Yet, when debtor claims his full allowance of corn 
 as limited in bushels §2866(5), he cannot take more corn under the gen- 
 eral name of "provisions" as used in §2866(4), 88 Ga. 354. 
 
 (e) Formerly (1854) when wife's tools of trade were not exempt, it was 
 held, that her piano and guitar could not be exempted, though she was a 
 music teadher, 16 Ga. 479. A lawyer's library not included under "conimon 
 tools of trade," 20 Ga. 596 (1856). (Though since then specifically exempted 
 by statute.) 
 
 if) It is doubtful whether watches can come under the head of "wearing 
 apparel." "If, however, they can, we think that not more than one can 
 be made to do so,'' 16 Ga. 480. 
 
 Generally: — ^As to "increase," see Civil Code, p. 405. 
 
 The "pony" homestead cannot be supplemented by the other, nor viee 
 r<rsa; the debtor must chose between them; 63 Ga. 167. In fact, there 
 being no statutory provision for supplementing the "pony" homestead, it 
 seems that it cannot be supplemented at all; or, to use a colloquialism, the 
 debtor "cannot take two bites at the cherry." See 54 Ga. 515, 56 Ga. 520. 
 
AJS'D PRACTICE. 195 
 
 CHAPTER 8. 
 INTEREST AND USURY. 
 
 A few points of general information, pertinent to the subject of this so- 
 called chapter, are given here, because, for lack of space, it may be impos- 
 sible to deal with it in the Code of Practice. 
 
 WHAT IS LAWFUL INTEREST. 
 
 The legal rate of interest shall remain seven per centum per annum, 
 where the rate per cent is not named in the contract, and any higher rate 
 must be specified in writing, but in no event to exceed eight per cent per 
 annum, §2876. 
 
 "Higher rate must be specified in writing," but need not be signed by 
 debtor, 72 Ga. 863. 
 
 It is lawful to contract for interest on interest overdue, 79 Ga. 213. 
 
 Where the lender neither takes nor contracts to take more than lawful 
 interest, the loan is not rendered usurious by money paid or agreed to be 
 paid others by the borrower in order to obtain the loan, §2887. 
 
 The taking of interest in advance on short loans in the usual and ordi- 
 nary course of business is not usurious, if the interest reserved does not 
 exceed the legal rate, 90 Ga. 591, 599. 
 
 In a plea of usury, the amount of the original loan, and the time when it 
 was negotiated, as well as the amount of usury taken and reserved, are 
 mS,terial facts, 1 Ga. 108. 
 
 Maker of note may plead usury even though he stood by and saw it 
 transferred to' an innocent holder, 1 Ga. 392. 
 
 If a transaction be usurious, and several renewals have taken place, and 
 part of the interest reserved has been paid, the infection of usury follows 
 all the securities given in renewal, 1 Ga. 392, but the contract may be 
 purged, e. ff.,by an accounting, all sums previously paid usuriously being 
 deducted, and new security given for balance. 
 
 If an usurious debt due by a firm be divided on its dissolution, and each 
 partner assumes a nart, the division of the debt does not purge it of the 
 usury, 22 Ga. 193. 
 
 The plea of usury Is generally personal, but a creditor has no right to 
 collect usurious interest from an insolvent debtor to the prejudice of other 
 creditors, §2878. 
 
 Titles tainted with usury are void, §2892; but a mortgage passes no title, 
 and is void only as to the usury, 81 Ga. 276. A waiver of homestead in a 
 note is void for usury, and an indorser or other surety who became such 
 without knowing of the usury, is released; 91 Ga. 319, 89 Ga. 115, 385. 
 
196 GEOKGIA FOKMS 
 
 CHAPTER 9. 
 
 PEIISTCIPAL AND AGEIfT. 
 
 The relation of principal and agent arises wherever one person, ex- 
 pressly or by implication, authorizes another to act for him, or subse- 
 quently ratifies the acts of another in his behalf, §2997. 
 
 Power of Attorney, (a) 
 
 Georgia, Bibb County. 
 
 Know all men by these presents: Tbat /, John Janes, of the 
 county of , State of , have constituted and ap- 
 pointed, and by these presents constitute and appoiat William 
 Smith, of the county of , State of , my true and law- 
 ful attorney in fact, for me and in my name, place and stead, to 
 (h) sell certmn real estate belonging to mm, lying in the county 
 of Jones, (describing it), upon such terms as lie may deem best, 
 to execute comxyance of title accordingly, (c) and to receive pay- 
 ment (d). And I give and grant unto my said attorney full power 
 and authority to do and perform every legal act and thing neces- 
 sary in the premises, as amply, to all intents and purposes, as / might 
 or oould do if personally present; 'hereby ratifying and confirming 
 all that my aaid attorney shall lawfully do by virtue hereof. 
 
 In witness whereof, I have hereunto set my hand and seal the 
 
 — day of , 189—. 
 
 Jdhn Jones, (e) 
 
 Sealed and delivered in presence of : (f) 
 Robert Hunter, 
 S. B. Wiley, 
 
 Notary Pulblic Bibb County, Georgia. 
 
 (a) See note(/) below. 
 
 (6) The foregoing form will suflBce as a power of attorney to sell stocks, 
 bonds, debentures, etc., by substituting for the Italicized words giving 
 authority to sell land, the following: 
 
 POWER OP ATTORNEY TO TRANSFER STOCKS, DEBENTURES, ETC. 
 
 "To sell shares of the capital stock, (or of the bonds, etc.) of 
 
 company, (describing the series as they are usually described by brokers 
 and the financial world generally, and, preferably, giving the numbers of 
 the certificates) and to transfer the same pursuant to the constitution and 
 by-laws of said company." 
 
 Let such power of attorney be attested by a Notary. 
 
 In fact it may be remarked, apropos of powers of attorney generally, 
 that whatever one may do himself may be done by an agent, except such 
 
AND PRACTICE. 197 
 
 personal trusts in which special confidence is placed on the skill, discre- 
 tion, or judgment of the person called in to act; so an agent may not dele- 
 gate his authority to another, unless specially empowered to do so, J2999. 
 
 (c) See note (f) below. 
 
 (<J) In this connection, it would seem relevant to say to business men 
 generally, that where money is due on a note, or other written evidence 
 of debt, payment to an agent of the creditor who fails to produce the ob- 
 ligation is at the risk of the debtor. For non-production of the paper 
 rebuts the implication of authority to receive payment arising from the 
 agent's employment, and it must be otherwise established, §3006. 
 
 A principal may follow his money deposited by his agent in the agent's 
 name, and recover the same wherever found, unless the rights of innocent 
 third parties have intervened, §3005. 
 
 If a private agent deposit his principal's money with a bank of good 
 credit, and such deposit is according to the common usage of the place, 
 the agent will not be responsible for any loss arising from the failure of 
 the bank, §3008. 
 
 (e) Instrument signed by one as agent, trustee, guardian, administrator, 
 executor, or the like, without more, is the individual undertaking of the 
 maker, such words being generally words of description, §2998. 
 
 (f) The act creating the agency must be executed with the same for- 
 mality (and need have no more), e. g., writing must have same number of 
 witnesses, etc., as the law prescribes for the execution of the act for which 
 the agency is created, §3002; e. g., power of attorney to execute mortgage, 
 72 Ga. 845. Authority to buy land (see 73 Ga. 390), or to make a note or 
 renew it, may be verbal, 89 Ga. 466. 
 
 A corporation may create an agent in its usual mode of transacting 
 business, and without its corporate seal, §3002. Baptist church could 
 authorize its trustees by note, to convey land, 90 Ga. 195. 
 
 REVOCATION OF AGENCY. 
 
 Generally, an agency is revocable at the will of the principal. The ap- 
 pointment of a new agent for the performance of the same act, or the death 
 of either principal or agent, revokes the power. If, however, the power is 
 coupled with an interest in the agent himself, it is not revocable at will; 
 and in all cases the agent may recover from the principal, for an unreason- 
 able revocation, any damages he may have suffered thereby, §3003(1). 
 
 (The subject of power of sale in a mortgage or deed has received rather 
 elaborate treatment, in the chapter on mortgages, ante. Consult index 
 for the page). 
 
 But no person advancing money upon the pledge of a certificate of 
 stock, or other like script, shall be affected by the death, insanity, or 
 legal disability thereafter of the person in whose name such stock, or 
 other script, stands upon the books of any corporation in Georgia; but 
 such pledgee or holder of such stock or script assigned in blank, coupled 
 with the power of attorney, shall have same rights after as before, 
 §3003(2). 
 
 COMMISSIONS AND EXPENSES OF AGENTS. 
 
 An agent who has discharged his duty is entitled to his commission and 
 all necessary expenses incurred. If he has violated his engagement, he is 
 entitled to no commission, §3014. 
 
198 GEOK&IA FORMS 
 
 The fact that property is placed in the hands of a broker to sell does 
 not prevent the owner from selling, unless otherwise agreed. The broker's 
 commissions are earned when, during the agency, he finds a purchaser 
 ready, able and willing to buy, and who actually offers to buy on the 
 terms stipulated by the owner, §3015. 
 
 The agent must not make a personal profit from his principal's prop- 
 erty; for all such he is bound to account, §3011; e. g.. Husband managing 
 his wife's property for her, 85 Ga. 323. So, county commissioner cannot 
 take a commission for selling county property, 85 Ga. 734. 
 
 EMPLOYEE'S SUIT FOR WRONGFUL, DISCHARGE. 
 
 When the contract is for a year, and the employer wrongfully discharges 
 the agent before the end of the year, the agent may either sue immedi- 
 ately for any special injury from the breach of the contract, or, treating 
 the contract as rescinded, may sue for the value of the services rendered, 
 or he may wait until the expiration of the year and sue for and recover 
 his entire wages, §3016. When an agent has been improperly dismissed 
 before the expiration of his term, earnings which were realized or might 
 have been realized by him up to the end of the term, should go in mitiga- 
 tion of damages, §3017. 
 
AjSTD PEAOTICE. 1 9 9 
 
 FIFTH TITLE. 
 OF TITLE AND THE MODE OF CONVEYANCE. 
 
 CHAPTER 1. 
 PROCESSIONING. 
 
 Application to Peocessionees ; §3244. (a) 
 Georgia, Bibb County. 
 
 To Wolivr Bronm, Henry Thompson, and Jacoh Henderson, 
 prooessioners of land for the J^82d militia district, in said 
 county: (6) 
 
 The application of John Jones shows tliat he owns a certain 
 
 tract of land lying partially (c) in said district, 'containing 
 
 acres, more or less. 
 
 Tlic owners of the adjoining lands, resident in this State, are 
 (iiandng thein). {d) 
 
 Applicant desires the lines around his entire tract to be sur- 
 veyed and marked anew, (e) 
 
 Wherefore, he prays you to appoint a day when, after ten days 
 written notice to adjacent land owners (<?), you or'a rcuajority of yoUj 
 with the county surveyor, will trace and mark the said lines. 
 
 EespectfuUy submitted. J6hn Jones. 
 
 (a) Every owner cf land, any portion of which lies in any district, 
 though the remainder lies in an adjoining district, or an adjoining county, 
 who desires the lines around his entire tract to be surveyed and marked 
 anew, shall apply to the processioners of said district to appoint a day 
 when a majority of them, with the county surveyor, will trace and mark 
 the said lines, §3244. 
 
 Processioning laws applicable only to rural lands; after town lots have 
 been laid off, sold and used, some sort of action at law necessary to settle 
 disputed village boundary, 79 Ga. 407. 
 
 Processioning seems to be a proceeding sui generis. Independently of 
 the processioning laws, either party to any action at law may have a 
 survey made, without an order of court, under the provisions of the rules 
 of court on that subject, §§5686-90; (Rules 55-59). 
 
200 GEOEGIA FORMS 
 
 (*)) The Ordinary shall, at the second term of his court in every second 
 year, appoint three suitable persons in each militia, as processloners of 
 land. If none are appointed, he shall appoint at any regular term, on the 
 api'lication of any land owner, §3243. 
 
 (c) If the land lies wholly in the district to whose land-processioners 
 the application is made, the word "partially" will of course ue superfluous, 
 but if any portion of the tract lies in said district, the application may be 
 made to the processloners thereof, though the remainder lies in an adjoin- 
 ing district, or in an adjoining county, §3244. 
 
 (d) Ten days written notice of the time of running and marking the 
 land lines shall be given to all the owners of adjoining lands, if resident 
 within this State; and the processloners shall not proceed until satisfac- 
 tory, evidence of the service of such notice shall be produced to them, 
 §3244. Where due notice is given, if bad weather on day appointed neces- 
 sitate postponement, no further notice is required, 78 Ga. 163. 
 
 (e) The lines around applicant's entire tract must be marked out; where 
 the disputed line only was laid off, and protest was filed, the case was 
 properly dismissed on motion in the Superior Court, the return being 
 without legal effect, 69 Ga. 51. 
 
 But where only one line was run and marked, and the case was tried 
 solely on issue as to correctness of that line, and no defects appeared on 
 the face of the papers, losing party estopped to attack the verdict, 71 Ga. 
 528. See also, 77 Ga. 492. 
 
 The line "as run and marked" must be the subject matter of the protest, 
 if any filed; consent of parties will not dispense with an actual running 
 and marking, nor give validity to a protest based thereon, 88 Ga. 754. 
 
 Notice of Peocessioning ; §3244.* 
 
 (To be served ten clays beforehand on all owners of adjoining lands, if resident in Georgia.) 
 
 Georgia, Bihh County. 
 
 To 
 
 tf:jlin Jones, the owner of a certain tract of land lying in the 
 482d militia district, in said State and county, having applied to us 
 tc have the lines around said tract surveyed and marked anew, 
 you are hereby notified that on the — day of , 189 — , a ma- 
 jority of us, with the county surveyor, will trace and mark the said 
 
 lines. This — day of , 189—. 
 
 Walter Broion, 
 Henry Thompson, 
 Jacob Henderson, 
 Processloners of land for It82d Militia^ District. 
 
 "If the land lies only parlially in the district named In the notice, so state. 
 
AND PEAOTIOE. 201 
 
 Return of Processionees ; §3251. (a) 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 
 Tiie undersigned prooessioners for Ji.82d district, having been 
 applied to by John Jones, to trace and mark anew tbe lines around 
 a certain trfact of land lying in said distriiot, did appoint a day there- 
 for, pursuant to the provisions of section 3244 of the Civil Code, 
 and, having met pursuant to said appointmeoit, and satisfactory evi- 
 dence having been produced to them of the service of the ten days 
 written notice as required by statute upon all the owners of adjoin- 
 ing lands resident in Georgia, viz., upon (naming them) (Z>), 
 did, on Tuesday, the 16fh day of June, 1896, with the county sur- 
 veyor, proceed to (c) run and mark said lines around the said entire 
 tract of said applicant, {d) Attached hereto is a plat made by the 
 said surveyor, ain!d duly certified, which correctly represents said 
 tract, 'as marked out by said prooessioners 'and said surveyor. This 
 
 — day of , 189 — . 
 
 Walter Brown, 
 Henry Thompson, 
 Jacob Henderson, 
 Prooessioners of land for Ji82d Militia District. 
 
 (o) Surveyor, with processioners, shall mark out true lines, and make 
 out and certify a plat of same, and deliver a copy to applicant; and in all 
 future disputes with any adjoining land owner who had notice, such cer- 
 tified plat shall be admissible in evidence without further proof, as vrima 
 facie correct, §3245. But not conclusively correct, 69 Ga. 751. 
 
 The processioners shall make a return of their acts, together with the 
 plat of the surveyor, to the Ordinary, to be kept on file in his oflice, §3251. 
 
 (6) The processioners shall not proceed to run and mark the lines until 
 satisfactory evidence of the service of such notice shall be produced to 
 them, §3244. 
 
 (c) The law does not contemplate that processioners shall swear and 
 examine witnesses; it does not empower them to administer oaths, 34 Ga. 
 433. 
 
 (d) As to the Rules in cases of disputed lines, etc., see§§3246-8. 
 
 Surveyor's Certificate to Plat ; §3245. 
 Georgia, Bibb County. 
 
 I, George S. Birch, county surveyor of said county, do hereby 
 certify that the plat hereto attached correctly represents the boun- 
 dary lines around a certain tract of land in the 482d militia dis- 
 
202 GEORGIA FORMS 
 
 Ivict, said State and county, as surveyed and marked anew at the 
 instance of John Jones by the prooessioners of said district, together 
 
 \vith myself, on the — day of , 189 — . 
 
 In witness whereof, I have hereunto set my official signature, 
 
 ■this — day of , 189 — . 
 
 ■Oeorge S. Birch, County Surveyor. 
 
 THE PROTEST. 
 
 Any owner of adjoining lands dissatisfied with the lines as run and 
 marked, may file his protest with the processioners within thirty days, 
 specifying the lines objected to, and the true line as claimed by him; ana 
 they shall return all the papers, including the surveyor's plat, and the pro- 
 test, to the clerk of the Superior Court of the county or counties where 
 the disputed land lies, (copies being sent to the adjoining counties), and 
 the clerk shall enter the same on the issue docket, §3249. 
 
 THE COSTS. 
 
 Applicant must pay each processloner one dollar per day, the county 
 surveyor two dollars per day. If a protest is filed, the costs of the court 
 ■shall abide the issue, §3250. 
 
AND PEACTICE. 203 
 
 CHAPTER 2. 
 OF TITLE BY WILL 
 
 ARTICLE L 
 Of the Nature of Wills, by Whom and How Executed. 
 
 Form foe a Will, (a) 
 
 State of Georgia, \ ^ „„,, ,^ j. t , f /is 
 
 County of Bibb \ ^-"^^^ "^'^^ ^"*^ Testament of John Jones. (6) 
 
 I, John Jones, of said State and county, being of sound and dis- 
 posing mind and memory, (e) do make this my last will ((Z) and 
 testament, hereby rei>oMng all icills heretofore made by me. (Ee- 
 Toking clause is comm'On, but superfluous.) 
 
 Item 1. I wish-my executor, as soon as possible after my deatb, 
 to pay my debts. If a sale of property shall be 'necessary, I wish 
 him to select for sale that lOlvich cam, be 'most advantageously used 
 for that purpose; and I authorize him to sell the same at public or 
 private sale, as he may see fit. 
 
 Item 2. I give to my beloved wife (e) Catharine, the following 
 property, to wit: (particularly describing it). The foregoing pro- 
 vision is intended in lieu of dower. 
 
 Item 3. I give to all the children my brother Henry may have, 
 at his death, the farm known as the Watlcins place, near Olarks- 
 ville, in the county of Habersham, said State. 
 
 Item 4. I give to my widowed sisteir, Mary Thompson, for and 
 during her natural life, the house and lot in the city of GoVumbus, 
 Georgia, belonging to me, where she and her children now reside; 
 with remainder over, after her deiath, to my son Walter. 
 
 Item 5. I give to my friend A B, in trust for my unfortunate son, 
 
 Thomas, the following property, to wit: , to be held by said 
 
 A B and rented annually, and the proceeds applied for the sup- 
 port of my said son Thomas. 
 
 Item 6. I give to my son Jacob the following property (describ- 
 ing it) upon this condition: If he dies without wife or child the 
 same to belong to his two sisters. 
 
 Item 1. I give $2500 in cash to my daughter Louise, and the 
 
 same amount to my daughter May. 
 
204 GEORGIA FORMS 
 
 Item 8. I will that all the residue of my property be equally di- 
 vided among my children; but before the division is made, I desire 
 that all tihe children shall be made equal from said residue, each 
 child to aooount fully for v/haitever property or money I may have 
 given hiln or her. And tihe notes and receipts in my possession, 
 for monfey advanced and lent to my children, I wish not to be con- 
 sidered as debts, but as advancements, irrespective of the dates of 
 the same. 
 
 Item 0. I do hereby appoint C D executor of this my will, (f) 
 and as extra compensation for his services, over and above commis- 
 sions, give him the sum of $500, to be taken from the residuary 
 funds. 
 
 In testitniony whereof, I have hereto set my hand this — day of 
 , 189 — . John Jones. 
 
 Signed ajid published by John Jones, as his last will and testa- 
 ment, in the presence of the undersigned, who subscribe our names- 
 hereto as witnesses at the instance and request of said testator, and 
 in his presence, and in the presence of each other. This the — 
 
 day of , 189 — . James H. Magill, 
 
 Joseph 'Oale, 
 J<jumes G. Smith. 
 
 (a) A will is the legal expression of a man's wishes as to the disposition 
 of his property after his death, §3253. 
 
 As to titles dependent upon wills, the law is that a will takes effect in- 
 stantly upon he acath .f the testator, however long the probate may be 
 postponed, §3257. Applied where the testator died before the "married 
 woman's law" of 1866 and will was not probated until 1884, 90 Ga. 537. 
 
 (6) No particular form of words is necessary to constitute a will. But 
 if the intention be to convey a present estate, though possession be post- 
 poned until after the death of the maker of the instrument, it is a deed; 
 otherwise, a will, §3254. An instrument may have effect in part as a will, 
 even as to the same property, §3255. Beside the cases on this subject in 
 the Code under the section just cited, see also, 8 Ga. 450, 10 6a. 506. 45 Ga. 
 415. "If the title vests at the time of execution of the paper, it is a deed; 
 if the same is not to take effect until the death of the maker, it is a will," 
 73 Ga. 97. Instrument here, giving, granting and conveying property "to 
 have and to hold after my death," was held a deed, 31 Ga. 720. "An opin- 
 ion which seems doubtful," says Judge Reese, "Executors, Administrators, 
 etc.," p. 44. Informal instrument here, reserving the right to revoke, was 
 a deed, 32 Ga. 590. "An Instrument conveying property in presenU, and 
 having all the requisites of a deed, and delivered by the maker to the clerk 
 to be recorded as such, is not testamentary in its character, notwithstand- 
 ing it declares that the property is not to go into the possession of the 
 donors until the death -of the donor; especially as the paper would be in- 
 elfectual as a will, being attested by two witnesses only," 29 Ga. 677. And 
 see 56 Ga. 513. Paper here giving certain property to the donor's children 
 
AND PRACTICE. 205 
 
 In consideration of natural love and affection, to be equally divided among 
 them at donor's death, "to have and to hold all the property hereby given 
 * * forever as their own property," conveyed a present interest and was a 
 deed, 22 Ga. 460. Instrument here, conveying a slave in consideration of 
 . $."00, to be delivered at the death of the seller, was held a deed, 17 Ga. 234. 
 A sort of due bill here, "due at my death, to" a named person so many 
 aoUars, "from the general fund of my estate as a gift" was testamentary 
 in character, 20 Ga. 707. 
 
 Paper here, in form of deed, reserving a lifetime control and interest, 
 conveyed a present interest, and was a deed, 3 Ga. 569, 22 Ga. 472, 52 Ga. 
 S."?!, 56 Ga. 513, 66 Ga. 127. Words here, "Then the said negroes to revert 
 back to me * * * and after my death to be divided * * between," etc., made 
 the instrument a will. 4 Ga. 52. For a somewhat similar paper, also held 
 a will, see 8 Ga. 450. "I do hereby save and reserve to myself a life estate 
 iu the property above conveyed," made the paper a deed, 6 Ga. 516. But 
 <i somewhat similar reservation, followed by a clause that after the donor's 
 death the property was "then to go to the above named persons," was 
 held to constitute a will, 10 Ga. 506. In 2 Ga. 32, an instrument which 
 read, "I * * do give * * unto (a certain person) the following property, 
 (describing it) after my death, and the death of my wife, to have and to 
 hold forever," was held to be a will. A gift to take effect after the donor's 
 burial expenses and the payment of all his just debts, was a will, 28 Ga. 
 330, 55 Ga. 369. Instrument here, conveying all "that I may die possessed 
 of," was a will, 41 Ga. 212; and see 55 Ga. 369. But words here, somewhat 
 similar, did not affect the immediate vesting of the title, but were a mere 
 restriction. 74 Ga. 614. Instrument here, which declared that it was not 
 to go into effect until after the maker's death, was a will, 51 Ga. 23&. 
 
 ir) The amount of capacity necessary to make a will is stated in our 
 Code in the following clear, polished and forceful language: It is "that 
 which is necessary to enable the party to have a decided and rational de- 
 sire as to the disposition of his property. His desire must be decided, in 
 distinction from the wavering, vacillating fancies of a distempered intel- 
 lect. It must be rational, in distinction from the ravings of a madman, 
 the silly pratings of an idiot, the childish whims of imbecility, or the ex- 
 cited vagaries of a drunkard," §3268. 
 
 Infants under fourteen years of age are considered wanting in that dis- 
 firetlon necessary to make a will, §3265. 
 
 An insane person cannot generally make a will, §3266; 11 Ga. 338, 23 Ga. 
 267. A lunatic may, during a lucid interval, §3266. As to what is a "lucid 
 interval," see 27 Ga. 620. A monomaniac may make a will, if the will is 
 ln.no way the result of or connected with that monomania, §3266. Eccen- 
 tricity of habit or thought does not deprive a person of power of making 
 a testament; nor does old age, necessarily. Imbecility does. In cases of 
 ■doubt, the reasonableness of the will has much weight, §3267. 
 
 Felon May Make a Will. 
 
 §3269 provides that conviction of crime does not take away the power to 
 make a will. 
 
 Imprisonment does not prevent making a will, unless brought about for 
 the purpose of compelling the party to make the will, §3269. 
 
206 GEORGIA FOEMS 
 
 A person deaf, dumb, and blind may make a will: Provided, the inter- 
 preter and scrivener are both attesting witnesses thereto, and are both 
 strictly and closely examined upon the motion for probate, §3270. While 
 it is not absolutely necessary to the validity of a will by a blind or illit- 
 erate person, that it be read to him, yet the jury must be satisfied that the 
 paper offered as the will is his last will, 7 Ga. 564. If read to him, need 
 not necessarily be before the attesting witnesses, 28 Ga. 382. Will by a, 
 paralytic held valid h«re, 33 Ga. 77. 
 
 (d) The very nature of a will requires that it should be freely and vol- 
 untarily executed; hence anything which destroys this freedom of volition 
 invalidates a will; such as fraudulent practices upon testator's fears, af- 
 fections or sympathies, duress or any undue influence, whereby the will 
 of another is substituted for the wishes of the testator, §3260. "Influence,, 
 to be undue, must amount to moral coercion," 6 Ga. 325. See also, 59 Ga. 
 472. Where one moves a testator to leave him property, a presumption 
 arises that the moving was not right, which presumption, however, may be 
 rebutted, how, 17 Ga. 364. Dominion and influence which prevents the ex- 
 ercise of the testator's discretion, is undue, 32 Ga. 325. 
 
 (e) A man may bequeath his entire estate to strangers, to the exclusion 
 of his wife and children. But such a will is closely scrutinized by the law,, 
 and upon the slightest evidence of aberration of intellect, or collusion or 
 fraud, or any undue influence or unfair dealing, probate will be refused,. 
 §3258. The right to exclude the wife and children is further limited thus: 
 No person leaving a wife or child, or descendants of child, shall, by will,, 
 devise more than one-third of his estate to any charitable, religious, edu- 
 cational or civil institution, to the exclusion of such wife or child; and in 
 all cases the will containing such devise shall be executed at least ninety 
 days before the death of the testator, or such devise shall be void, §3277. 
 Where a woman willed her property to the Roman Catholic Bishop of 
 Savannah, in case of her daughter's dying childless, and the will was made- 
 within ninety days of her death, it was void under §3277, because it left 
 the daughter only a life interest, 82 Ga. 563. 
 
 (f) No formal words are necessary to the appointment of an executor. 
 Any expression of confidence by the testator, and a desire that such an 
 one shall carry into effect his wishes, will amount to an appointment asi 
 executor. Citizens of this State only are eligible to be executors, except 
 as provided in §3293. An infant may be appointed but cannot qualify 
 until of age, unless expressly directed by the testator, §3308. 
 
 Generally: — A will procured by misrepresentation, or fraud of any kind,, 
 to the injury of the heirs at law, is void, §3261. A will executed under a 
 mistake of fact as to the existence or conduct of the heirs at law of the 
 testator is inoperative, so far as such heir at law is concerned, but the tes- 
 tator shall be deemed to have died intestate as to him, §3262. 
 
 A testator may by will dispense with the necessity of his executor 
 making inventory or returns: Provided, the same does not work any in- 
 jury to creditors or third persons, other than legatees under the will, §3278. 
 
 THE ATTESTATION. 
 
 All wills (except nuncupative wills) disposing of realty or personalty, 
 must be in writing, signed by the party making the same, or by some other 
 
AND PKAOTIOE. 207 
 
 'l>erson ia his presence and by his express direction, and shall be attested 
 and subscribed in the presence of the testator by three or more competent 
 ■witnesses, §3272. A witness may attest by his mark, provided he can 
 swear to the same; but one witness cannot subscribe the name of another,, 
 even in his presence and by his direction, §3273. Witness who made mark 
 need not swear positively to it; may state belief, 59 Ga. 472. 
 
 An acknowledgment of signing the will, made by the testator to the wit- 
 ness called to attest, is a legal equivalent of signing in their presence, o\» 
 Ga. 808, 41 Ga. 696. But the witnesses must sign in the presence of the 
 testator, 23 Ga. 441, 33 Ga. 289, 45 Ga. 415. As to what "in the presence 
 of the testator" means precisely, see 6 Ga. 539, 26 Ga. 294, 64 Ga. 554, 26 
 Ga. 625. Meaning of "At the instance and request of" testator, 41 Ga. 696. 
 At time will is executed, testator must have sufficient strength to know 
 what he Is doing, 33 Ga., Supp., 106. 
 
 Attesting clause, though important, not essential, if the witnesses did 
 in fact attest properly, 24 Ga. 640, 45 Ga. 441, 30 Ga. 808, 45 Ga. 416. 
 
 Where the testator signed his will below the attestation clause, if he 
 did so with intention to sign it as his will, then, in law, it was a good sig- 
 nature of the will, Huff vs. Huff, 41 Ga. 696, a leading case upon the execu- 
 tion of wills, Lochrane, C. J., delivering the opinion. 
 
 A will written upon separate and detached sheets of paper, held good 
 here, 63 Ga. 147. Same here, 72 Ga. 568, (The Shorter will contest). But 
 the testator should write his name on each sheet of paper, to identify it,. 
 J I). 
 
 In all cases, a knowledge of the contents of the paper by the testator is 
 necessary to its validity; but usually, where a testator can read and 
 write, his signature, or the acknowledgment of his signature, is sufficient, 
 §3276. 
 
 If however, the scrivener or his immediate relations are large benefi- 
 ciaries under the will, greater proof will be necessary to show a knowl- 
 edge of the contents by the testator, §3276. 
 
 MUTUAL WILLS. 
 
 Mutual wills may be made either separately or jointly, and in such cases 
 the revocation of the one is the destruction of the other, §3256. 
 
 On the 25th day of March, 1856, in Baldwin county, two sisters, Jincey 
 and Patsy Smith executed an instrument which was, in substance, as fol- 
 lows: "Know all men, that we, Jincey and Patsy, do covenant and agree; 
 that, for the love we bear to each other, whichever of us may be the long- 
 est lived, shall be the heir of the other." To get a will drawn, they sought 
 for Hon. Iverson L. Harris, but "Harris was at Putnam court," so says the 
 record; so they executed the above. Held, that it was a good will entitled 
 to probate, 28 Ga. 98. 
 
 REVOCATION OP WILLS. 
 
 A will having no effect until the death of the testator, is necessarily 
 revocable by him at any time before his death; and even in case of mutual 
 wills, with a covenant against revocation, the power of revocation remains, 
 §3340. A revocation may be either express or resulting. An express revo- 
 cation is where the maker by writing or acts annuls the instrument. An 
 implied revocation results from the execution of a subsequent inconsistent 
 
208 GEORGIA FORMS 
 
 will. The former takes effect instantly or independently of the validity • 
 or ultimate fate of the will, or other instrument containing it. The latter 
 takes effect only when the subsequent inconsistent will becomes effectual, 
 and hence, if from any cause it fails, the revocation is not completed. 
 §3341. 
 
 An express revocation by written instrument must be executed with the 
 same formality and attested by the same number of witnesses as are requi- 
 site for the execution of a will. The destruction of a will expressly re- 
 voking all former wills does not revive a former will unless subsequently 
 republished. In such cases the republication may be proved by parol, 
 §3342. An express revocation may be effected by any destruction or ob- 
 literation of the original will, or a duplicate, done by the testator, or by 
 his direction, with an intention to revoke; such intention will be presumed 
 from the obliteration or cancelling of a material portion of the will; but 
 if the part cancelled be immaterial, such as the seal, no such presumption 
 arises, §3343. 
 
 Intention to revoke necessary, §3344. An implied revocation extends 
 only so far as the inconsistency exists, §3345. Revocation by marriage, 
 or the birth of a child, §3347. 
 
 Republication how effected, §3348. 
 
 ARTICLE 2. 
 Pkobatb Practice. 
 
 The Court of Ordinary has exclusive jurisdiction over the probate of 
 wills, §3279. Applied where will burned, 21 Ga. 13, 27 Ga. 17. Applied 
 where will lost, 55 Ga. 601. Bill in equity seeking to set aside a will pre- 
 viously admitted to probate, demurrable, 53 Ga. 302. 
 
 Every person having possession of a will must file the same with the Or- 
 dinary of the county having jurisdiction; and on failure to do so, the Ordi- 
 nary may issue process as for a contempt, and fine and imprison the 
 person thus withholding the paper, until the same shall be delivered, §3288. 
 
 Petition to Compel Production of Will; §3288. 
 Georgia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordimary of said Counity: 
 The petition of C D showetli that John Jones died in said county 
 
 on thy: day of , 189 — , possessed of real and personal 
 
 property, leaving la will Wherein petitioner is named as exeoutor. 
 Said will was left with one M. N for safe keeping; and soon after 
 the death of said testator, petitioner applied to said M IST for said 
 will, and requested that he deliver the same into the hands of the 
 
 Ordinary of said county for prdbate. For the space of 
 
 the said JVC N has neglected to comply with said request, although 
 well knowing of the death of said testator. 
 
AND PRACTICE. 209 
 
 Wherefore pebitioner prays that pTocese may issue directed to 
 the said M N, requiring 'hiin to show cause why he should noit file 
 said will with the ordinary of said county, or on failure to do so, be 
 attached as for a contempt, and fined, and imprisoned until the same 
 shall be delivered. C D. 
 
 Sworn to and subscribed to before me 
 
 this — day of , 189 — . 
 
 Rule Nisi; §3288. 
 
 Upon hearing the foregoing verified petition of C D, ordered by 
 the court that M IST show cause before me to-morrow afternoon ait 
 o o'clock, ait the court-house in said county, why he should not 
 file said will ^ prayed, or on failure to do so, be fined, ^and impris- 
 oned until the same shall be delivered. 
 
 Let a copy hereof and of said petition be served on M N instantly. 
 
 G. M. Wiley, Ordinary. 
 
 Rule Absolute, 
 GzoEGiA, Bibb County. 
 
 This court having, on yesterday, granted a rule nisi upon peti- 
 tion of C D, duly filed and sworn to, requiring M. N to show 
 cause why he should not file the will of John Jones for probate, 
 iind it appearing that said M N was on yesterday duly served with 
 •;i copy of said petition and rule, and that he has made no answer 
 thereto, ordered, that the sheriff of said county seize the said M IST, 
 .and imprison him in the common jail of said county until the said 
 will of John Jones be delivered up to him. 
 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
 Probate of a will may be in common or solemn form. In the former 
 •case, upon the testimony of a single subscribing witness, and without 
 notice to any one, the will may be proven and admitted to record. But 
 such probate and record is not conclusive upon any one interested in the 
 estate adversely to the will; and if afterward set aside, does not protect 
 the executor in any of his acts further than the payment of the debts of 
 the estate. Purchasers under sales from him legally made, will be pro- 
 tected, if 'bona fide and without notice, §3281. If testator die out of county 
 of his residence, and the witnesses to his will reside in the county where 
 he died, the ordinary there may receive probate in common form and 
 transmit it, certified, together with the original will, to the ordinary of 
 the county of testator's residence; and such certified probate shall author- 
 ize the latter court to grant probate in common form, and letters testa- 
 mentary or of administration, provided no caveat is filed, §3280. 
 
210 GEORGIA FOEMS 
 
 Petition to Probate Will in Common Fuom. 
 Geoegia, Bibb County. 
 
 To tlie Honorable O. M. Wiley, Ordinary of said County: 
 
 The petition of C D, a resident of said State, shows that John 
 
 Jones, late of said oounty, died testate an. the — day of , 
 
 189 — , owning real and personal property in said State, amounting 
 
 in value to the probable sum of dollars. Petitioner 
 
 herewith presents 'the last will and testament of said deceased, and 
 shows that he is named therein as executor. 
 
 Wherefore he prays leave to prove said will in common form, 
 and that letters testamentary do issue to him. G D. 
 
 (o) Probate in common form may be taken by the ordinary at any time 
 during vacation, but the order admitting the will to record, and granting 
 letters testamentary, shall be granted only at a regular term, §3284. So 
 soon as the probate is made in common form, in vacation, and before it is 
 admitted to record, and before qualification, the executor named therein 
 may exercise all the powers of a temporary administrator as to collecting 
 and preserving the estate; but if a caveat is filed to the record of the will, 
 pending the investigation of such caveat, even though the executor may 
 have been qualified on proof in common form, the ordinary, in his discre- 
 tion, may require of him a bond as temporary administrator on such 
 estate, §3307. 
 
 Probate in common form becomes conclusive upon all parties in interest, 
 after the expiration of seven years from the time of such probate, except 
 minor heirs at law, who require proof in solemn form, and interpose a 
 caveat at any time within four years after arrival at age. In such cases, 
 if the will is refused probate and record in solemn form, an intestacy shall 
 be declared only as to such minor, and not as to others whose right to 
 caveat is barred by lapse of time, §3283. 
 
 (6) The residence of testator at his death gives jurisdiction to the ordi- 
 nary of that county, §3279. 
 
 Affidavit Proving a Will in Common Form; §3281. 
 Georgia, Bibb County. 
 
 Before me personially appeared James H. Magill, named as a 
 witness to the within writing purporting to be the last will of John 
 Jones, who, being duly sworn, deposes and says that he, with 
 
 Joseph Gale and James Q. Smith, did, on the — day of , 
 
 ISO — , attest as witnesses the within writing, ia the presence of 
 John Jones ,who in their presence voluntarily signed and pub- 
 lished the same as his last will; and that the said John Jones was, 
 at the time of said attestation and signing, of sound and disposing 
 mind and memory. 
 
 Jrnnes H. Magill. 
 Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 G. M. Wiley, Ordinary Bibb County. 
 
AE"D PRACTICE. 211 
 
 Order; §3281. 
 
 The foregoing petition of C D, praying probate in common form 
 of the will of John Jones, and further praying the issuance of let- 
 ters testamentary to the petitioner, being supported by the affida- 
 vit annexed thereunto of Jamws H. MagiU, on© of the witnesses 
 to said will, and the contents of the said petition appearing to be 
 true, it is now ordered that the same be recorded, having been 
 duly proved in common form. Let letters testamentary issue to 
 him upon his taking the usual oath of office. 
 
 This — day of •, 189—. 0. M: Wiley, 
 
 Ordinary Bibb County. 
 
 FOREIGN WILLS. 
 
 A foreign will is one conveying property in this State, and executed by 
 a person residing out of this State, §3298. May be admitted to probate in 
 any county of this State in which such property is situated, if executed 
 according to the laws of this State, §3299. If previously admitted to pro- 
 bate in State where testator resided at death, it may be admitted to pro- 
 bate here, upon production of an exemplification of the probate proceed- 
 ings certified according to the provisions of the Act of Congress, which 
 §5237 embraces, §3301. If a will is probated in solemn form in a foreign 
 country of which testator was a resident at death, a certified copy of such 
 will and an authenticated copy of the proceedings, under the seal of the 
 court, shall be prima facie evidence of its due execution; and shall be ad- 
 mitted to probate here, subject to caveat, §3302. 
 
 PETITION TO Probate Will in Solemn Form ; §3282. (a) 
 Georgia, Bibb County, {b) 
 
 To the Honorable G. M. Wiley, Ordinary of said County: 
 The petition of C D, (c) a resident of said State, shows that John 
 
 Janes, late of said county, died testate on the — day of , 
 
 189 — , (d) owning valuable real and personal property in said 
 State. Petitioner herewith presents the last will and testament 
 (e) of said deceased and shows that he is named therein as executor. 
 Your petitioner shows that the following named persons are all 
 the heirs at law of said testator (naming them and stating their 
 places of residence), and that of said persons named, the follow- 
 ing are minors (n'aming them). Petitioner prays leave to prove 
 said will in solemn form, and that lettera testamentary. do issue to 
 him; and to that end he prays that citation do issue to said heirs at 
 law in terms of the statute for such eases made and provided, and 
 th.<iit guardians ad litem be appointed to represent said minors when 
 made party to this proceeding by proper service. 
 
 C D, Petitioner. 
 
212 GEORGIA FORMS 
 
 (a) Probate by the witnesses, or in solemn form, is where, after due 
 notice to all the heirs at law, the will is proven by all the witnesses in 
 existence and within the jurisdiction of the court, or by proof of their 
 signatures and that of the testator, the witnesses being dead, and ordered 
 to record. Such probate is conclusive upon all the parties notified, and all 
 the legatees under the will who are represented in the executor, §3282. 
 
 (6) The residence of testator at his death gives jurisdiction to the or- 
 dinary of that county, §3279. 
 
 (c) The right to offer a will for probate belongs to the executor, if one be 
 named. If the executor be dead, non-resident, or refuses to act, or none 
 be named, any person interested may offer the will for probate, §3292. 
 
 id) The executor must offer the will for probate as soon as practicable 
 after the death of the testator, and must qualify, unless restrained by the 
 will, within twelve months after the same is admitted to record. 
 
 If he fails to offer it for probate for an unreasonable time, or is not 
 qualified within the time specified, he shall be deemed to have renounced 
 his right as executor. If, however, there are several executors, and one 
 qualifies in the time specified, and afterward dies, or is removed, another 
 may then Qualify within twelve months from the decease of his coexecu- 
 tor, and be entitled to all the rights of an originally qualified executor, 
 53294. 
 
 (e) If a will be lost or destroyed subsequent to the death, or without 
 the consent of the testator, a copy of the same, clearly proved to be such 
 by the subscribing witnesses and other evidence, may be admitted to pro- 
 hate and record in lieu of the original; but in every such case the presump- 
 tion is of revocation by the testator, and that presumption must be rebutted 
 J)y proof, §3289. 
 
 Order Directing that Citation Issue ; §3285. 
 
 The foregoing petition read and oonsidered. Ordered that (najn- 
 ing i"he heirs at law enumerated in the petition), do be and appear 
 before the court of ordinaiy to be held in and for said State and 
 county on the — Monday in , 189 — . Let citation issue ac- 
 cordingly, and be served personally upon (naming the resident 
 
 heirs) ten days before the said term of this court; and let , 
 
 a non-resident of the State of Georgia, be served by publication of 
 said citation once a week for — • weeks in the Macon Telegraph, a 
 newspaper published in the city of Maoon, said State and county. 
 
 C. M. Wiley, Ordinary. 
 
 Citation. 
 Oeoegia, BiJbh County. 
 
 D 'having applied, 'as executor, for probate in solemn form of 
 the last will and testament of John Jones, of said county, you, as 
 one of the heire at law of said John Jones, are hereby required to 
 appear at the court of ordinary for said county on the — Monday 
 
 in , next, when said application for probate will be heard. 
 
 C. M. Wiley, Ordinary. 
 
A.ND PRACTICE. 213 
 
 Notice of a motion for probate in solemn form must be personal, if the 
 party resides in the State, and at least ten days before the term of the 
 court -when the probate is to be made; if the residence be without the 
 State, or unknown, then the court shall pass such order as to publication 
 as will tend most effectually to give notice. The records of the court shall 
 show the persons notified, and the character of the notice given, §3285. 
 
 Appointment op Guardian ad Litem. 
 Georgia, Bibb County. 
 
 In tie, petition of C Z),.for proba:te in solemn form of the -will of 
 John Jones. 
 
 It appearing that and , minor 'heirs at law, have 
 
 been duly cited and made parties to said case, ordered, that E F, 
 who oomies into oourt and signifies his willingness to act, be and he 
 is appointed guardian ad Utem to reperesent said minors in said pro- 
 ceeding. C. M. Wiley, Ordinary. 
 
 Caveat. 
 Georgia, Bibb County. 
 
 In re, petition of C D for probate in solemn form of the will of 
 John Jones. 
 
 And now come , and file this 'th'eir caveut to the above 
 
 stated petition, and object to the admission to record of said will, 
 and for cause of objeotion say: 
 
 1st. At the time of the execution of said instrument, John 
 Jones was not of sound and disposing mind and memory. 
 
 2d. Said instrument is not the will of John, Jones, because he did 
 not execute the same freely and voluntarily, but was moved thereto 
 by undue influence exerted over him by his wife C<itharine Smith. 
 
 3. It is- not his will, for the further reason that he was led to 
 believe that the paper signed by him was a certain paper thereto- 
 fore drawn up by him as his will, when in fact and in truth tbe said 
 in.-trument here offered for probate is a paper of which deceased 
 kne^v nothing, and (his imposition was practiced iipon him and upon 
 the witnesses thereto by Catharine Smith, wife of deceased. 
 
 Hardeman, Davis <& Turner, 
 
 Attorneys for Caveators. 
 
 On the investigation of an issue of devisavit vel non, the admission of an 
 executor before qualification, or of a legatee (unless the sole legatee) shall 
 not be admissible in evidence to impeach the will, except the admission 
 be in reference to the conduct or acts of the executor or legatee himself, 
 as to some matter relevant to the issue, §3296. 
 
214 GEOEGIA FORMS 
 
 Legatee who receives legacy must return, or offer to return it, if he de- 
 sires to caveat, 4 Ga. 446; unless he would be entitled in any event to as 
 much as he had so received, 23 Ga. 521. 
 
 Record shall show persons notified and character of notice, §3285. 
 
 The original will, when proved and recorded, shall remain on file, in 
 the office of the ordinary, and a certified copy shall be evidence in any 
 court in this State. §3290. 
 
 Oedbr Probating Will in Solemn Form. 
 Georgia, Bibb Count^v. 
 
 In re, Petition of C D for Probate in Solemn Form of the Will 
 of John Jones. Caveat by . 
 
 The above stated pe^tition ooming on regularly to be heiard, and 
 it appearing that the parties at interest resident in this State were 
 personally served with notice of the petition for probate at least 
 ten days before the term of this court at which said notice required 
 appearance, and that the parties at interest mot resident in this 
 State were duly served by publication of citation once a week for 
 — weeks in the iJ<icon Telegraph, a newspaper published in the 
 city of Macon, said State and county, and it appearing to the satis- 
 faction of this court by the testimony of all the subscribing wit- 
 nesses, that the instrument offered for probate is tbe last will and 
 testament of John Jones, as alleged by the propounder in his peti- 
 tion, and no legal £ind sufficient reason appearing why said will 
 sbould not be admitted to record as prayed; 
 
 Ordered that said will be, and the same is bereby established in 
 solemn form && tbe last will and testament of John Jones, and that 
 the same be admitted to record. 
 
 Ordered further that letters testamentary do issue to tbe execu- 
 tor named in said will, to wit, the said C D, upon his taking tihe 
 
 usual oath of office. This — day of , 189 — . 
 
 C. M. Wiley, Ordinary. 
 
 Oath of Executor; §3311. 
 I do solemnly swear that this writing contains the true last will 
 of the within named John Jones, deceased, so far as I know or 
 believe, and that I will well and truly execute the same in accord- 
 ance with the laws of the State. So belp me God. 
 
 C D. 
 
 Lessees Testamentary. 
 Georgia, Bibb County. 
 
 To whom it <may concern: 
 Whereas, at a regular term of the court of ordinary for said 
 
AND PRACTICE. 215 
 
 county, on the — day of , 189 — , tlie last "will and testament 
 
 of John Jones, late of said county, deceased, was duly proved and 
 admitted to recjord, and it was ordered tliat letters 'testamentary 
 issue to D, ihe executor named in said will, upon his taking 
 the oath of office ; 
 
 Now therefore, the said C J), having taken said oath, is by these 
 presents authorized and empowered to act as executor of said will, 
 and to administer all land singular the goods and chattels, rights and 
 credits, lands and tenements of said deceased according to said will 
 and lihe laws of said State. 
 
 Given und'er my hand and official seal this — day of , 
 
 189—. G. M. Wiley, 
 
 [Seal of Office.] Ordinary and ex officio Clerk. 
 
 Petition to Compel Executor to Give Bond; §3315. 
 Geoegia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordinary of said County: 
 
 The petition of A B, a legatee under the will of John Jones, 
 shows that Ilohert Erwin, qualified by this court as executor of 
 said will, is mismanaging the estate of his testator in this, to wit, 
 (specify acts of mismanagement). 
 
 Wherefore petitioner prays a rule nisi requiring said executor 
 to show cause why he should not give security for the execution of 
 said will. A B, Petitioner. 
 
 Rule Nisr. 
 
 The foregoing petition of A B read and considered. Ordered, 
 that dsifendant show cause at the next term of this court to be held 
 
 on the firfit Monday in , why he should not give security 
 
 for the execution of said will. Let a copy of said petition and of 
 this order be served personally upon defendant at least ten days 
 before the next term of said court. 
 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
 Order. 
 
 [Slate the Case.] 
 
 The above stated case coming on regularly to be heard after due 
 and legal notice to defendant, upon hearing the evidence. Ordered, 
 that defendant, on or before the day of , 189 — , give secu- 
 rity in the sum of ■ dollars for the execution of siaid will, and 
 
 that in default thereof his letters testamentary be revoked. Ordered 
 further that the said defendant pay the cost of this proceeding, 
 to wit, dollars. 
 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
216 GEOKGIA FORMS 
 
 CHAPTER 3.* 
 OF TITLE BY DESCENT AND ADMINISTRATION. 
 
 ARTICLE 1. 
 
 The Rules of Inheritance and the Relative Rights of 
 THE Heibs and Administrator. 
 
 Upon the death of the owner of realty, the title vests immediately in his 
 heirs at law. The title to all other property owned by him vests in the ad- 
 ministrator of his estate for the benefit of the heirs and creditors, §3353. 
 
 Title to realty descends directly to the heirs, as above stated, but the 
 right to the possession of the whole estate, both real and personal, is in the 
 administrator, if any, for he is charged with the duty of attending to the 
 payment of the dead man's debts and the distribution of the property 
 among the heira, and this of course he could not well do if the entire con- 
 trol of all the property were not placed by law in him. (See §§3081 and 
 3357 and notes). "The right to recover possession of the estate from third 
 persons is solely in him," §3357. Unless of course, he consents for the heirs 
 to take possession, §3357. 
 
 The administrator may recover possession of any part of the estate from 
 the heirs at law, or purchasers from them; but to recover land, he must 
 show either that it has been in his possession, and, without his consent, is 
 now held by the defendant, or that it is necessary for him to have posses- 
 sion for the purpose of paying the debts or making a proper distribution. 
 An order for sale or distribution, granted by the ordinary after notice to 
 the defendant, shall be conclusive evidence of either fact, §3358. (See 
 form under §3450, hereinafter. 
 
 Heirs may collect rents, 80 Ga. 260; Before administrator appointed, 
 may work lands and crop so made is theirs, subject to rent charge, 82 Ga. 
 51. See generally, notes to §3353. 
 
 THE RULES OF INHERITANCE. 
 
 The following rules determine who are the heirs at law of a deceased 
 person (see §3355). 
 
 1. Upon the death of the husband, without lineal descendants, the wife 
 1« his sole heir, and upon payment of his debts, if any, may take possession 
 
 ('Whatever usefulness this chapter possesses Is mainly due to that venerable and dis- 
 tinguished lawyer, probably the only living member of the Georgia Bar who ever studied 
 under Story and Greenleaf, Hon. William M. Eeeee, aulhor of the well known "Treatise on 
 the Law of Executois, Administrators and Guardians." Judge Reese very kindly gave me 
 permission to ute such of the forms contained in his work as I desired. In a few caser, 
 speoifloally noted above the form, hit form has been adopted in tola. In some instances such 
 as serving only a citation, in lieu of copy petition and rule nisi, where permissible, hU 
 method of procedure has been departed from ; and the language of statutes has perhaps been 
 followed here more closely than he deemed desirable or necetslty demanded. But through- 
 out the slow progress of this long chapter, his book has been always at hand, a companion to 
 cheer and a teacher to guide— a mind speaking with the clearness that gives peace. 
 
AND PRACTICE. 217 
 
 of his estate without administration. (And bo, upon wife's death, vict 
 versa, §3354.) 
 
 2. Whenever the husband or widow of a deceased person shall be under 
 the age of twenty-one years and entitled to a share in the" estate of such 
 deceased husband or wife, he or she shall be entitled to take and hold such 
 share without the intervention of a guardian or other trustee. 
 
 3. If there are children, or those representing deceased children, the wife 
 shall have a child's part, unless the shares exceed five in number, in which 
 case the wife shall have one-fifth part of the estate. If the wife elects to. 
 take her dower, she has no further interest in the realty. (As to her elec- 
 tion, within twelve months, see §4689(3).) 
 
 4. Children stand in the first degree from the intestate, and inherit. 
 equally, all property of every description, accounting for advancements as. 
 explained in §§3474-6. 
 
 Posthumous children stand upon the same footing with children in being, 
 upon all questions of inheritance. The lineal descendants of children 
 stand in the place of their deceased parents; and in all cases of inheritance 
 from a lineal ancestor, the distribution is per stirpes and not per capita. 
 
 As to distinction between these two terms, see 6 Ga. 42, 30 Ga. 229, 53 
 Ga. 664. 
 
 5. Brothers and sisters of the estate stand in the second degree, and 
 inherit, if there is no widow, or child, or representative of child. The- 
 half-blood on the paternal side inherit equally with the whole blood. If 
 there be no brother or sister of the whole or half-blood on the paternal 
 side, then those of the half-blood on the maternal side shall inherit. The 
 children or grandchildren of dead brothers and sisters stand in the place- 
 of their parents, but there shall be no representation further than this. 
 among collaterals. 
 
 6. The father. If living, inherits equally with brothers and sisters, and 
 stands in the same degree. If there be no father and the mother is alive,, 
 she shall inherit in the same manner as the father would. 
 
 7. In all degrees more remote than the foregoing, the paternal next of 
 kin shall stand on an equal footing. 
 
 8. First cousins stand next in degree; uncles and aunts inherit equally 
 with cousins. 
 
 9. The more remote degrees shall be determined by the rules of the canon 
 law as adopted and enforced in the English courts prior to the 4th day of 
 July, A. D. 1776. "To ascertain the degree of kindred we must count from 
 the intestate up to the ancestor one degree for each generation, thence down 
 the collateral line to the contestant; the number of degrees in the longer 
 of these two lines Is the degree of kin between the intestate and the con- 
 testant;" 60 Ga. 199. Where husband and wife, parent and child, brothers 
 and sisters, or other persons who could inherit each from the other, are 
 killed or lost, under circumstances making it impossible to determine 
 which died first, the property of each shall descend to their respective 
 heirs, excluding each as heir of the other, but nothing herein shall be held 
 to prevent children of either from inheriting as heir of the other, §3356. 
 
•218 GEOEGIA FOKMS 
 
 ARTICLE 2. 
 
 Of ADMINISTRATIOil. 
 
 Section 1. Tempoeaey Administration. 
 
 The ordinary may at any time grant temporary letters of administration 
 upon any unrepresented estate for the purpose of collecting and taking 
 care of the effects of the deceased, to continue and have effect until per- 
 manent letters are granted, §3359. 
 
 Appi^ication foe Tempoeaey Lettees of Adaiinistration ; 
 
 §3359: 
 
 To the Honorable 0. M. Wiley, Ordinary of said County: Bob- 
 <irt Evwin, a citizen of the United States residing in said State, 
 respectfully shows 'that John Jones, late of said county, died intes- 
 tate on the — day of — , 189 — , leaving an estate, real and per- 
 sonal, of the probable value of dollars. 
 
 Petitioner further shows that on account of the length of time re- 
 quired by law to advertise for permanent administration and the 
 circumstances of the estate of said deceased, it is necessary that 
 temporary letters of administration upon said estate should be 
 granted at once, for the purpose of collecting and taking care of 
 the property until yiermanent letters are granted. 
 
 Petitioner is lentitled under the law to be appointed admini^ra- 
 tor, (a) being ons of the next of Mn. of said deceased. Wherefore, 
 lio prays to be appointed temporary admioiistrator. 
 
 Robert Erioin. 
 
 (o) Rules for granting letters, §3367. 
 
 §3359 says no appeal from order granting temporary letters. But pending 
 an issue of devisavit vel non, upon any paper propounded as a will, tempo- 
 rary letters of administration may be granted, unless the will has already 
 heen admitted to probate In common form, and letters testamentary issued, 
 §3362; and generally, the nominated executor should be appointed, 
 §3367(10); and it seems that such grant of temporary letters may be ap- 
 pealed from: 16 Ga. 13, 17 Ga. 263, or certioraried 40 Ga. 390. 
 
 Oedee Granting Temporary Letters of Administration ; 
 
 §3359. 
 
 Georgia, Bibb County. 
 
 The application of Robert Erwin to be appointed temporary 
 administrator of the estate of John Jones, late of said county, de- 
 ceased, read and duly considered. 
 
AND PKAOTICE. 219 
 
 Ordered, that the 'ap;plieaj:it be and he is hereby apipointed tempo- 
 rary adminis'trator upon said estate, as prayed. Let temporary letters 
 issue to Mm, upon his taking the usual oath and giving bond in 
 double the amount of all the pereonal property of said estate, viz., 
 in the sum of dollars. 
 
 Given under my hand and official signature this — day of , 
 
 180—. C. M. Wilqi, 
 
 Ordinary. 
 
 Ordinary may grant temporary letters in vacation, 16 Ga. 15. See also, 
 §2527, 40 Ga. 391. 
 
 Administrator's oath, §3395, Bond of Temporary Administrator, §3360. 
 The form of the permanent administrator's bond, hereinafter, under 
 §3396, will suffice also for the temporary administrator's bond. 
 
 Tempoeaey Letters of Administration; §3359. 
 Georgia, Bibb County. 
 
 To whom it may ooncern: 
 
 Robert Erwin having applied for temporary letters of adminis- 
 tration upon the estate of John Jones, late of said county, deceased, 
 and having duly made it to appear that there is necrasity for imme- 
 diate appointment of a temporary administrator, to collect the ef- 
 f ecte of said estate and preserve the same from waste, 
 
 Now therefore, know ye, that I have this day appointed the said 
 applicant 'as such temporary administrator; 
 
 And he, the said Robert Erwiiv, having taken the oath 'and given 
 the bond required by law, is by these presents authorized and em- 
 powered ^.'0 act as temporary administrator upon said estate for the 
 purpose of collecting and taking ©are of the elGfects of the deceased 
 until permanent letters of administration are granted. 
 
 Given under my 'hand and seal, this — day of , 189 — . 
 
 C. M. Wiley, Ordinary. 
 
 Temporary administrator cannot sell realty, nor can he distribute estate, 
 82 Ga. 202. May stre for the collection of debts or personal property of 
 intestate. If a permanent administrator be appointed pending the suit, , 
 he may be made a party in lieu of the temporary administrator, §3361. May 
 file an illegality to execution levied upon property of the estate, 39 Ga. 
 565. Should ask injunction when assets of his intestate involved with 
 other estates, and likely to be seized and sold, 24 Ga. 131. May incur such 
 expenses as may be necessary, employing agents, etc., 46 Ga. 296. But has 
 no authority to employ counsel to caveat will, 56 Ga. 655. 
 
 Although temporary administrator had no authority here to sell cotton 
 to meet intestate's acceptance of draft, yet the drawer, the owner of the 
 
220 GEORGIA FORMS 
 
 cotton, (who had consigned it to deceased and drawn the draft on faith of 
 it) could not complain because of acquiescence by silence; 28 Ga. 272. 
 
 Temporary administrator should sell the perishable property of the es- 
 tate as soon as possible. For forms relative to this subject, see forms 
 under §3445, hereinafter. 
 
 Section 2. The General Law of the Appointment of- 
 Administeators, Their Bond and Removal. 
 
 Application for Permanent Letters of Administration;: 
 
 §3393. 
 
 Georgia, Bibb County. 
 
 To tlie Honiorable C. M. Wiley, Ordinary of said County: 
 
 Robert Ermn, a citizen of tlie United' States, resid/mg in said 
 Si-ate, (a) respectfully shows that John Jones, late of said county, 
 
 (6) died intestate on the — day of , 189 — , leaving an estate,, 
 
 Gonsisting of realty and personalty, of the pro'bahle -ralue of 
 
 dollars : 
 
 Petitioner further shows that administration upon said estate is 
 necessary, for the purpose of collecting the debts owing to, and 
 paying the debts owing by the said deceased, and for the proper- 
 distribution of Said estate among the heirs, (c) 
 
 Petitioner is entitled under the law to be appointed administrator 
 upon said estate, being (d) one of the next of kin of the deceased. 
 
 Wherefore he prays to be appointed as such administrator, and, 
 to that end, that citation, giving notice of this application to all 
 conoemed, be issued and published as required by law. 
 
 Robert Erwin. 
 
 (a) See §3365. A citizen of another State or Territory of the United 
 States who shall be heir at law, of equal, greater or sole interest, of any 
 estate of a deceased citizen of Georgia, may act as administrator of such 
 estate by giving resident security in double the amount of the estate, 
 §3366. 
 
 (6) Every application for letters of administration must be made to the 
 ordinary of the county of the residence of the deceased, if a resident of 
 this State, and if not a resident, then in some county where the estate, or 
 some portion thereof, is, §3393. But if non-resident had no estate here, 
 there is no basis for letters here, 22 Ga. 356. If he left assets in two coun- 
 ties, ordinary first taking jurisdiction retains it, 62 Ga. 628. A simple con- 
 tract debt "is" in the county where the debtor resides: R. R. stock "is" in 
 the county where the stock books are kept, transfers made, and dividends 
 paid, lb. Alabamian owning, at death, bonds, etc., in hands of a person in 
 Muscogee county, ordinary of that county could grant letters, 52 Ga. 648. 
 Administration in deceased's State, no bar to appointment of another ad- 
 ministrator here, 91 Ga. 31. 
 
AND PEAOTICE. 221 
 
 (c) Administration de bonis non is granted upon an estate already par- 
 tially administered, and from any cause unrepresented, §3363. 
 
 Administration with the will annexed is granted where the deceased 
 died testate, hut no executor appears to qualify and execute the will. If 
 the executor appointed is disqualified, for want of age, the letters may be 
 granted until the disability ceases, §3364. 
 
 ((J)'§3367 provides as follows; 
 
 In the granting of letters of administration of any kind the following 
 rules shall be observed, the applicant being, in all cases, of sound mind, 
 and laboring under no disability: 
 
 1. The husband or wife surviving, irrespective of age, shall be first en- 
 titled. (No debts, wife sole heir, she may take possession without admin- 
 istration, §3355(1). A pending libel suit is not a "debt" and it was error 
 here to grant administration at instance of plaintiff in said libel over ob- 
 jection by deceased defendant's widow, 96 Ga. 175.) 
 
 2. The next of kin, at the time of death, according to the law declaring 
 relationship and distribution, shall be next entitled; but if the party died 
 testate, the person most beneficially interested under the will shall have the 
 preference. Relations by consanguinity shall be preferred to those by 
 afllnity. (Law of relationship not relied on to exclusion of law of distri- 
 bution, 68 Ga. 164; in contest between A, a grandson, and B, a great-grand- 
 son, A was not necessarily entitled, neither he nor B being distributees — 
 4. e., heirs, A not being an heir because his mother, intestate's daughter, was 
 living, and B not being distributee of intestate's estate, but of B's ances- 
 tor's estate; the statute contemplates relatives entitled to distribution, 76. 
 Where next of kin an infant, his guardian is entitled; no collateral relative 
 of the child is entitled by reason of relationship; legal right is in infant, 
 31 Ga. 697.) 
 
 3. If there be several of the next of kin equally near in degree, the per- 
 son selected in writing by a majority of those interested as distributees of 
 the estate, and who are capable of expressing a choice, shall be appointed. 
 (See Form below.) 
 
 4. If no such preference is expressed, the ordinary may exercise his dis- 
 cretion in selecting the one best qualified for the oflSce. (And in passing 
 on rival applications by two persons equally near of kin, fact that one 
 applicant has been advanced full share and is setting up adverse claim, 
 should be considered; 29 Ga. 519.) 
 
 5. Where no application is made by the next of kin, a creditor may be 
 appointed; and among creditors, as a general rule, the one having the 
 greatest interest will be preferred. (Not simply creditor having largest 
 claim. 42 Ga. 402.) 
 
 6. The persons entitled to an estate may select a disinterested person as 
 administrator, and, if otherwise qualified, he shall be appointed. 
 
 7. The person entitled to administration may desire a third person asso- 
 ciated with him In the administration, and in such case, if otherwise quali- 
 fied, he may be appointed. 
 
 8. No person shall be appointed administrator, who is neither of kin to 
 the intestate nor a creditor, nor otherwise interested in the grant of ad- 
 ministration, except in the cases before provided. (See (3) above. Next of 
 kin may nominate such a person, 59 Ga. 268; but creditors cannot, 80 Ga. 
 614.) 
 
 9. As a rule, to cover all cases not specially provided for, the person 
 having the right to the estate ought to have the administration. 
 
222 GEORGIA FORMS 
 
 10. Temporary letters of administration, pending the litigation on a 
 propounded will, should generally be granted to the nominated executor. 
 Married woman may act, §3368. 
 As to county administrators, see §§3376-92. 
 
 Order. 
 
 [The order authorizing citation may, oJ course, be passed in vacation.] 
 
 The ordinary must issue a citation, giving notice of the application to 
 all concerned, in the gazette in which the county advertisements are usually 
 published, for thirty days, and at the first regular term after the expiration 
 of that time, the application should be heard or regularly continued, §3394. 
 
 Citation; §3394. (a) 
 
 GEOKGii, Bibb County. 
 
 To whom it may concern: 
 Roiert Erwin, (b) having made application to me in due form 
 to be appointed permanent administrator upon the estate of John 
 Jones, late of said couniy, notice is hereby given that said applica- 
 tion will be heard at the regular term of the court of ordinary 
 
 for said county, to be held on the first Monday in , 189 — . 
 
 Witness my hand and official signature, this — day of , 189 — . 
 
 G. M. Wiley, Ordinary. 
 
 (a) Without citation, appointment void, 12 Ga. 526. 
 
 (6) Administration may be granted to person other than him in whose 
 name the citation Issues, and without a new citation being published, §3371. 
 
 Order Granting Permanent Letters of Administration. 
 
 Georgia, | In the Court of Ordinary for said County. 
 Bibb County. J Term, 189—. 
 
 Robert Erwin having made application in due form to be ap- 
 pointed permanent administrator upon the estate of John Jones, 
 late of said county, deceased, and a citation, giving notice of said 
 application to all concerned, having been issued and pilblished as 
 required by lavs^, and it appearing tiha;t said application should be 
 granted, ordered that the said Robert Erwin. be, and he is hereby 
 appointed permanent administrator upon said estate. 
 
 Let permanent letters of administration issue to ihim accordingly, 
 upon his taking the usual oath of office and giving bond in the sum 
 of dollars. 
 
 This — day of , 189—. 
 
 G. M. Wiley, Ordinary. 
 
AND PRACTICE. 22a 
 
 Oath; §3395. 
 Georgia, Bibb County. 
 
 I do solemnly swear (or affirm) tbat John Jones, deceased, died 
 intestate, so far as I know or believe, and tliat I will well and truly 
 administer on the estate of the said deceased, and disburse the same 
 as the law requires, aoid discharge to the besit of my ability all mj 
 duties as administrator. So help me Grod. 
 
 Robert Erwin. 
 Sworn to and subscribed before me 
 
 this — day of , 189 — . 
 
 C. M. Wiley, 
 
 Ordinary Bihi County, Ga. 
 
 Administrator's Bond. 
 
 Georgia, Bibb County. 
 
 Know all men by these presents that we, Robert Erwin, princi- 
 pal, and Hugh Fletcher, sceurity, (a) are jointly and severally 
 bound uoito C. M. Wiley, Ordinary of said county, and his succes- 
 sors in office, in the sum of dollars, (&) 
 
 Upon condition, nevertheless, that if the said Robert Erwin 
 shall faithfully discharge his duties as permanent administrator 
 upon the estate of John Jones, ^as required by law, then this bond 
 to be void. 
 
 Witness our hands and seals, this the • — day of , 189 — . 
 
 Robert Erwin [L. S.], 
 
 Principal. 
 Hugh Fletcher [L. S.],. 
 Security. 
 Attested and approved: (c) 
 C M. Wiley, Ordinary. 
 
 (o) Ordinary may take security resident in another county, 16 Ga. 13. 
 
 Provisions of §2531 as to death or removal of sureties on a guardian's; 
 bond, made applicable to administrators, §3400. 
 
 The administrator and his sureties shall be held and deemed joint and 
 several obligors, and may be sued as such in the same action, and if th^- 
 administrator is beyond the jurisdiction of this State, or is dead, and his- 
 estate unrepresented, or is in such position that an attachment may be^ 
 issued against him, the sureties, or any one or more of them, may be sued. 
 No prior judgment, establishing the liability of the administrator for a. 
 devastavit by him, shall be necessary before suit against the sureties on 
 the bond, §3398. 
 
 (&) Temporary administrator's bond, double the amount of the per- 
 sonalty, §3360. Permanent, double the amount of the estate, §3396. 
 
224 GEORGIA FORMS 
 
 (c) As to attestation, 43 Ga. 340. 
 
 AH administrators' bonds shall be kept of file by the ordinary, the same 
 being first recorded within six days after their execution, in a book to be 
 kept for that purpose, §3397. 
 
 Permanent Letteks of Administration. 
 
 Georgia, Bibb County. 
 
 To wham it mwy concern: 
 
 Whereas, at the regular term, 189 — , of the oour't of ordi- 
 nary for said county an order was passed authorizing the issuing 
 to Robert Erioin of permanent letters of administration upon the 
 estate of John Jones, late of said county, deceased, upon his taking 
 the usual oath of office and giving 'bond as required by law, 
 
 Now therefore, the said Robert Erwin, having taken said oath, 
 and given the bond required, is by these presents authorized and 
 given power to act as permaneoit administrator upon said estate, to 
 ask, demand and recover all olaims and deibts owing to the de- 
 ceased, to pay all his obligations so far as the estate will extend, 
 and to make distribution of said estate according to law. Given 
 
 under my hand and official seal, this — ■ day of , 189 — . 
 
 .[Seal of office.] G. M. Wiley, Ordinary. 
 
 When seal held not essential to admit in evidence letters testamentary, 
 80 Ga. 507, or administration, 22 Ga. 112. 
 
 When any person holding an executorship or guardianship is elected 
 •ordinary, his letters and powers abate on his qualification, §4229. 
 
 Caveat to Application for Letters of Administration. 
 GEORGIA, Bihb County. 
 
 And now comes Thomas Middlebrooks, and files this his caveat 
 to the application of Robert Erwin for appointment as permanent 
 administrator upon the estate of John Jones, and for ground of 
 objection says: 
 
 1. Applicant is not a resident of the State of Georgia. 
 
 2. He is a minor. 
 
 3. He is entirely incompetent to discharge the duties of an ad- 
 ministrator. 
 
 4. Applicant and caveator are next of kin to the deceased 
 equally near in degree, and cavea'tor has been selected, as will 
 appear from the writing hereto attached, by a majority of those in- 
 terested as distributees of the estate, and who are capable of ex- 
 pressing a choice. Wherefore caveator prays to be appointed ad- 
 ministrator upon said estate. 
 
 Thomas MiMlebrooTcs. 
 
AND PEAOnCE;^ 225 
 
 Selection in WRiifNG by Distributees ; §3367. (3) * 
 Georgia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordinary of said County : 
 AVe, tlie undersigned, being interested as distribiitees of the es- 
 tate of John Jones, late of Bihh county, deceased, hereby^ express 
 our choice as to who among the next of kin equally near in degree 
 shall be appointed adminisitrator upon said estate. We select 
 Thamas MiddlebrooTcs, and ask that he be appointed as such ad- 
 ministrator. 
 
 (Signed by a majority of the distributees.) 
 
 If there be several of the next of kin' equally near in degree, the person 
 selected in writing by a majority of those interested as distributees of the 
 estate, and who are capable of expressing a choice, shall be appointed, 
 §8367 (3). 
 
 "Shall be appointed," see 35 Ga. 248. Where only person entitled to ad- 
 ministration selects one of two contestants as administrator, such selection 
 need not be in writing, 68 Ga. 166. Attorneys for non-residents cannot 
 make the selection without special authority in writing for that purpose, 
 72 Ga. 776. 
 
 REMOVAL OF ADMINISTRATORS, ETC. 
 
 Whenever 'the 'OTtdimary knows, or is informed by any person having 
 any interest in the estate, that the administrator wastes, or in any manner 
 mismanages it, or that he or his sureties are likely to become insolvent, or 
 that he refuses or fails to make returns, or that for any reason he is unfit 
 for the trust, he shall cite such administrator to answer such charge at 
 some regular term, and, upon the hearing, may, in bis discretion, revoke 
 the letters of administration, or require additional security, or pass such 
 other order as, in his judgment, is expedient under the circumstances of 
 each case. §3402. 
 
 Petition to Eemove an Administrator, or to Require 
 Additional Security, Etc.; §3402. 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 
 The petition of Charles Jones respectfully shows that Robert 
 EriD-in, administrator of the estate of John. Jones, late of said' 
 county, deceased, is unfit for the trust reposed in him for the follow- 
 ing reasons: He wastes and nvismanages the said estate; he is 
 in a had way financially and lihely to heeome insolvent; he fails 
 to malie, returns as required iy law; mid is grossly intemperate. 
 
 Petitioner has an interest in said estate, being one of the next 
 of hin of the intestate. 
 
 Wherefore he prays that the said administrator be cited to show 
 
 *Tlie worfls in this form " among the next of kin equally near in degree," are not intecdcil 
 to imply that the person selected must come from among the kin, as he does in the form. 
 
226 'GEORGIA FORMS 
 
 cause why his letters of administratioiUBhould not be revoked, or 
 snch other order be passed as may appear expedient. 
 
 This — day of , 189 — . Charles Jones. 
 
 Sworn to and subscribed to befote me, this — day of , 189 — 
 
 G. M. Wiley, Ordinary. 
 
 If there are more adminlisrajtors than one, and complaint is inade 
 against oine only, and his letters are revolted, the entire trust remains in 
 the hands of the others; and with iim, as to am administrator de honiB 
 iirm, the removed Oaa'dministrator inuslt account, §3405. 
 
 Rule Nisi; §3402. 
 
 Read and considered. Ordered that defendant make answer to 
 the foregoing petition at the regular term of the court of ordinary 
 
 for said county of Bibb to be held on the first Monday in , 
 
 189 — . Let 'a copy of said petition and of this order be served 
 upon him at least ten days before said date. 
 
 C. M. Wiley, Ordinary. 
 
 Order Removing Administrator; §3402. 
 
 Ghas. Jones 
 vs. 
 Robert Erwin, 
 Administrator, etc. 
 
 Petition to remove Administrator. 
 Bibb Court of Ordinary, Term, 189- 
 
 The above stated application coming on regularly to be heard, 
 ■ and it appearing that defendant was duly served personally with a 
 copy of said petition and of the rule nisi granted thereon ten days 
 before the present term of this court, and the facts alleged in said 
 petition having been duly proved, it is ordered that the letters of 
 administration upon the estate of John Jones heretofore granted 
 to Robert Enoin be and the same are hereby revoked. This — 
 day of , 189 — . G. M. Wiky, Ordiaary. 
 
 Section 3. Of Inventories, Appraisements and Returns. 
 
 Immediately upon the qua/lific'ajblon of every adm/in'isitraitor, the ordinary 
 should issue a warrant (or if property be in different 'coumties, warrants) 
 of appraisement directed to five idisinterested freelhiolders, dtizenis of 
 the county where the property is, any three of whom shall be qualified to 
 act, requiring them on oath fairly and justly to appraise and value all of 
 the ipersonal property of ifhe deceased produced to them .by the admindstira- 
 tOT, and also all real estate 'belonginig to tlhe deceaised, lying In the county 
 in which administration may be had, §3407. 
 
AND PEACTICE. 227 
 
 Order Appointing Appraisers foe Decedent's Estate ; 
 
 §3407. 
 Georgia, Bibb County. 
 
 Robert Erwin .having qualified as adminisrtrator of tlie estate of 
 John Joms, it is ordered that a -warrant of appraisement -in the 
 usual form do issue ^to the following five disinterested freeholders, 
 
 citizens of said county (naming them). This — day of , 189 — 
 
 C. M. Wiley, Ordinary. 
 
 Warrant to Appraise Decedent's Estate; §3'107. 
 
 Georgia, Bibb County. 
 
 Office of the Ordinary. 
 To (naming the five appraisers), all of the county of Bibb, 
 
 ■ Greeting: 
 
 Robert Erivin being, by appointment of the court of ordinary 
 of Bibb county, "the duly constituted administrator of the estate of 
 John Jonos, who lately died leaving property in the county of 
 your residence, you, or a majority of you, are hereby required, 
 after having first taken an oath faithfully to discharge your duty 
 as appraisers, 'to proceed fairly and justly to appraise and value all 
 of the personal property of the deceased produced to you by the 
 administrator, and also all real estate belonging to the deceased 
 lying in the county of your residence. You are further required 
 to execute this warrant of appraisement within sixty days, and to de- 
 liver to said administrator your return in writing, certified by your 
 own signatures. 
 
 Witness my official signature, this the — day of , 189 — . 
 
 C. M. Wiley, 
 Ordinary Bibb County. 
 
 Administrator shall make a just and true Inventory of all the property 
 of deceased lying in the cOunty amd ishall produce and exhibit the same, if 
 possible, to the appraisers appointed as aforesaid. 
 
 Administrator's Inventory ; §.3408. 
 
 Inventory and appraisement of all the property in the county of 
 
 ;-, belonging to the estate of John Jones, late of Bibb county, 
 
 deceased. 
 
 Household and kitchen furniture : 
 
 1 Bureau $ 25 00 
 
 1 Bedstead 25 00 
 
 3 Carpetis 40 00 
 
228 GEORGIA FORMS 
 
 1 Dozen fine oak chairs 60 00 
 
 1 Kitclien range 25 OO 
 
 &c., &c., &c. 
 
 2 Sorrel horses, $150 each 300 00 
 
 1 Carriage 100 00 
 
 1 -Set of double harness. . . : 50 00 
 
 Plantation in Godfrey district, said county, contain- 
 ing 200 acres 2,000 00 
 
 Stock on said plantation as follows: (giving li^t, with "values). 
 
 Stocks, bonds, notes, accounts, and claims of all sorts as follows: 
 
 10 shares of Exchange Bmik stock 2,000 00 
 
 10 Shares of Bihl Real Estate <md Improvement 
 
 •Compcmy stock 1,000 00 
 
 10 State of 'Creorgio, bonds, each $500 principal, 
 
 issued — day of , 18 — , signed by , 
 
 dated — day of , 18 — , due — day of 
 
 , 19— 5,000 00 
 
 10 City of Macon bonds, each $100 principal, 
 
 dated — day of , 18 — , and due — day of 
 
 , 18—; signed by 1,000 00 
 
 One piomissory note signed by Peter Harris (good) 
 
 dated — day of , 18 — , due ■ — ■ day of 
 
 , 18 — , for the principal sum of 1,000 00 
 
 One promissory note signed by Chris Suiter, dated 
 
 — day of ■ , 18 — , due — day of , 
 
 18 — '-, for the principal sum of $300, credited 
 with $100 on — day of — ■ — , 18 — (insolvent). 
 
 The following open accounts : 
 
 On Charles Magee, due — day of , 18 — , for 
 
 merchandise sold him (see books), (good) . . . 100 00 
 
 &c., &c., &c. 
 
 A debt due by the adiministraitor to the estate must be Include'd in the in- 
 ventory, and notice taken of any interest ^the estate may have ij an un- 
 settled partnership, thcugh the assets 'be lin the 'hands at a 'surviving part- 
 ner, §3410. But failing to do so, he will only be chairgeaible with real 
 value of siuch interest, 50 G-a. 9. Joint invenitoTy, §3411. 
 
 Judgment of court of ordinary, allowing a schedule of debts returned by 
 an administrator as desperate, is i)rima facie evidence for him, 32 Ga. 82. 
 Administrator is accountable for the property at its true value, regardless 
 of its appraised value, §3415. 
 
 Admikisteatoe'b Oath to Inventory ; §3408. 
 I do solemnly swear that the foregoing inventory contains a true 
 
AND PRACTICE. 229 
 
 aeoount of all the goods and ^battels, rights and credits of Jolviv 
 Jones, in the county of Bibh, so far as the same hare oome within 
 my hands, possession or knowledge. • 
 
 Robert Erwin. 
 Sworn to and subscribe'd before me 
 
 this day of , 189—. 
 
 C. M. Wihy, Ordinary. 
 
 Retuen of Appeaisees; §3413. 
 
 We, the undersigned appraisers, do certify that the above is in 
 our judgment a true appraisement and valuation of all the prop- 
 erty in Bihh county, both real and personal, belonging to the estate 
 of John Jotws, and that the foregoing list was produiced and ex- 
 hibited to us by Robert Ermn, administrator of said deceased, 
 as being a just and true inventory thereof. W© do further certify 
 that before entering upon our duties, we did take and subscribe an 
 oath faithfully to discharge the same. 
 
 "Witness our hanids and official signatures this — day of • , 
 
 1S9 — . (Signed by the appraisers.) - 
 
 Annual Eetuens of Administeatoes. 
 
 [For form of, see Guardian's Returns, p. 116, which are similarly made, J 
 
 i 
 
 On or before the regular term of the court in July in. each and every year, 
 every administrator shall make, a true and Just account, upon oath, of his 
 receipts and expenditures in behalf of the estate during the preceding year, 
 together with a note or -memorandum of any other fact necessary to the 
 exhibition of the true condition of such estate. To this account shall be 
 attached oopdes of all the voiuchers, showing the oorrectness of each item; 
 or, at the option of the executor or administrator, the originals may be 
 filed" "With the return, and shall remain In the ordinary's office for thirty 
 days. If any of the receipts be for cotton, corn, or other produce sold, the 
 name of the purchaser, and the time.pf the sale, -§3416. 
 
 The annual retilrh-of an administrator shall be accompanied by the 
 origiinal vouchers, and it sliall be the duty of the ordinary to compare the 
 originals with the copies, before returning the originals to the adminis- 
 trator, §3417. 
 
 T^e ordinary shall carefully examine each return and its vouchers', and 
 if found oorredt, and no cbjecttoa be filed withiu thirty days from tihe 
 time it Is filed in ofiice, shall allow the same, and order it to be recorded, 
 together with the original or copy vouchers attached. The return and copy 
 vouchers shall be kept of file in the ordinary's office. If the origdnal 
 ■vouchers are filed without copies, they shall, when recorded, be returned 
 to said executor or administrator on demand. The return thus allowed and 
 recorded shall be prima facie evidence in favor of the administrator of its 
 correctness, §3418. 
 
230 GEORGIA FOEMS 
 
 The return of a non-resident administrator may be admitted to record 
 upon the affidavit of his surety; and if the administrator be dead, his legal 
 representative if any, or, if none, his security may make his returns, §3419. 
 
 To insure annual retlirns from every administrator, it shall be the duty 
 of the ordinary to keep a dwket of all such as are lia'ble to make rturns, 
 and immediately after the session of the July term in each year to cite all 
 defaulters to show cause for their neglect. A wilful and continued failure 
 shall be good cause of removal from the trust, §3420. 
 
 Section 4, Of Managing the Estate and Paying the 
 
 Debts. 
 
 Administrator's Notice to Debtors and Creditors; §3421. 
 
 [To be published for six weelts in a public gazette, or at three different places of the most 
 public resort in the cjunty. ] 
 
 ISTotice is hereby given to all creditors of the estate of John; Jones, 
 late of siaid county, deceased, to render in an account of their de- 
 mands to me within the time prescribed by law, properly made out. 
 And all persons indebted to said deceased are hereby requested to 
 make immediate payment to the undersigned. This — day of 
 
 , 189 — . Robert Erwin, 
 
 Administrator of John Jones. 
 
 The administrator shall be allowed twelve months from the date of his 
 qualification to ascertain the condition of the estate. Creditors failing to 
 give notice within that time lose all right to an equal participation with 
 creditors of equal dignity to whom distribution Is made before notice of 
 such.cMms.is ibrought to the aldminlstraitlor; nor can th«y hold the admin- 
 istrator liable for a misappropriation of the fund; if, however, there are 
 assets in the hands of the administrator sufficient to pay such debts, and 
 no claims of higher dignity are unpaid, the assets shall be thus appropria- 
 ted, notwithstanding the failure to give notice, §3421. 
 
 The administrator should pay the debts of the estate, wholly or in part, 
 at the expiration of the first year froni his appointment. If partial pay- 
 ment is made it should be prorated on debts of equal dignity. Successive 
 dividends to creditors should be made at the end of every year, until the 
 estate is paid out. If the administrator is himself a creditor he cannot 
 retain his own debt, but must share with others of equal dignity, §3423. 
 
 ORDER OF PAYMENTS OP DEBTS. 
 
 §3424 provides that in the payment of the debts of a decedent, they shall 
 rank in priority In the following order: 
 
 1. Year's support for the family. 
 
 2. Funeral expenses to correspond with the circumstances of the deceased 
 In life, including the physician's bill and expenses of the last sickness. If 
 the estate is solvent, the administrator is authorized to provide a suitable 
 protection for the grave of the deceased. 
 
 3. The necessary expenses of administration. 
 
AND PRACTICE. 231 
 
 4. Unpaid taxes or other debts due the State or United States. 
 
 5. Debts due by the deceased as executor, administrator, or guardian, for 
 the estate committed to him as such, or any debt due by the deceased as 
 trustee, having had actual possession, control and management of the 
 trust property. 
 
 6. Judgments, miortgages and oitlher lien's created during tihe lifetime of 
 deceiaised, and to 'be paid 'aicciordin^ to their priority of lien. Mortgages 
 and other liens on specific property to be preferred only so far as such 
 property extends. 
 
 7. Debts due for rent. 
 
 8. All liquidated demands. Including foreign judgments, dormant judg- 
 ments, bonds, and all other obligations in writing for the payment of 
 money, promissory notes, and all debts the amount due on which was fixed 
 and ascertained or acknowledged in writing prior to the death of the de- 
 cedent. 
 
 9. Open accounts. 
 
 An administrator is bound to place in suit every debt due the estate 
 which he may reasonably expect to recover; and if by his neglect, or in- 
 dulgence, the deibt is barred by tih© Qiaps© of time, or is otherw'ise I'ost tk> the 
 estate, he is responsible therefor, §3426. 
 
 As to collection by heirs, see §3427. 
 
 As to compromises by administrator, see §§3428-30. 
 
 Guardians, trustees, executors and administrators are authorized to in- 
 vest any funds held by them as such guardians, trustees, executors and ad- 
 ministrators, in lands: Provided, an order to that effect be first obtained 
 from tihe judge of th superior court, who Is 'authorized to consider and 
 pass upon such applications, either in term time or vacation, §3432. 
 
 Petition to Invest Trust Funds in Land; §3432.* 
 
 Georgia, Bibb County. 
 
 To the Honorable W. H. Felton, Jr., Judge of tlie Superior Court 
 of said County: 
 The petition of Robert Erwrn respectfully shows : 
 
 1. That he is administrator upon the estate of John Jones, late 
 of said county, deceased. 
 
 2. That certain funds to wit, dollars, now held by peti- 
 tioner as such administrator, are lying idle, the same not being 
 needed in the conduct of the affairs of 'said estate. 
 
 3. Petitioner desires to invest said funds in certain lands (de- 
 scribing them). 
 
 Wherefore, he prays an order authorizing such investment. 
 
 Robert Erioin, 
 
 Administrator of the estate of Jtihii Jonea. 
 
 Administrator may provide for the estate competent counsel, §3434. 
 Administrator may Invest in State bonds without order, §3435. May in- 
 vest in Savannali 'or Au'gugt'a 'oity bonds, by leave of or<dinary, making due ' 
 
 "In this connection the atiention of Judges of the Superior Court is respectfully called to 
 the remarks of Justice Simmons (the present Chief Justice) quoted from 81 Ga., 382 on pp. 
 187-8 ante, apropos of Sales of Homestead Property for Ee-investment. 
 
232 GEOKGIA FOKMS 
 
 return thereof, lb. Executor, etc., having in his hands money as the sepa- 
 rate estate of a married woman, absolutely or for life, may, under direction 
 of the BU'perioT court. Invest such funds in land, §3435. 
 
 An administrator may exercise his discretion in continuing the business 
 of his intestate until the expiration of the current year. Up to the time of 
 sale or distribution the administrator must manage and dispose of the 
 property of the estate for the best interest of the estate, §3436. 
 
 The administrator may make contracts for labor or service for the bene- 
 fit of the estate he represents, upon such terms as he may deem best, and 
 all such contracts made in good faith', shall be a charge upon, and bind the 
 esbaite whenever the same are approved by the ordinary of the county, 
 §3437. 
 
 The administrator, as far as possible, must fulfill the executory and com- 
 ply with the executed contracts of the deceased, and he has a correspond- 
 ing right to demand the same of the parties contracted with. If, however, 
 the personal skill of the intestate entered into the consideration of the con- 
 tract, his death renders the execution impossible, and the contract, though 
 entire, must be considered as divisible and closed at his death, and the 
 part execution by the deceased authorizes and requires a corresponding 
 compliance by the other contractor, §3438. 
 
 No suit to recover a debt due by the decedent shall be commenced against 
 the administrator until the expiration of twelve montts from his qualifi- 
 cation. This exemption shall not apply to an administrator de bonis non, 
 unless appointed within the year allowed to his predecessor. And in all 
 cases the administrator 4e bonis non shall be made a party to suits pending 
 against the administrator upon scire facias issued to the first term, §3439. 
 
 Section 5. Of Eeceiving and Making Titles on Bonds 
 
 FOR Title. 
 
 If the intestate, during his life, executed a bond to make titles to land, 
 and died without making such titles, the holder of such bond, after having 
 complied with its condition, miay ajpply to the ordinary hiaving jurisdiction 
 over the estate, for an order requiring the administrator to execute the 
 titles axiooriding to the terms of the bond, in all cases annexing to his peti- 
 tion a copy of the bond, §3440. 
 
 Application to Require Administrator to Execute Title ; 
 
 §3440. • 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 The petition of Eugow Leims respectfully shows that John 
 
 Jones, late of said county, died on the — day of , 189 — , and 
 
 that the following named persons 'are lUie heirs at law of the de- 
 ceased residing in this State: (Give their names and their rela- 
 tionship to the deceased, and if any of them are mmors, state that 
 fact and give the name of the guardian, if any) ; and the following 
 are his non-resident heirs at law (naming them). 
 
 Robert Enoin is the duly appointed administrator of said estate. 
 Petitioner shows that the said deceased, during his life, exe- 
 
AJfD PRACTICE. 233 
 
 ■cnted a bond tx) make titles to oertain land tiierein described, a 
 •oppy of which bond is annexed hereto, but that he died without 
 making such titles. Petitioner is the holder of said bond, and has 
 complied with its condition, by paying to said administrator the 
 purchase money of said land as stipulated therein. 
 
 Wherefore, petitioner prays an order, requiring said adminis- 
 trator to execute to him titles to said land according to the terms of 
 said bond. Eugene Lewis. 
 
 Notice.; §3441. 
 
 llTo be served personally fifteen days belnrehanii, on the Executor or administrator and the 
 heirs at law to be found within the State, and upon non-residents by publication for 
 thirty days.] 
 
 Eugene Lewis having mad© applidation to require titles to be exe- 
 cuted to him to oertain land described in a bond for titles thereto 
 attached purporting to be signed by John Jones, late of said county, 
 deceased, the said application alleging that said land has been fully 
 paid for, all parties concerned are hereby notified that said appli- 
 cation will be heard before the court of ordinary for said county 
 •on the — day of , 189 — . 
 
 This — day of ,189—. 
 
 C. M. Wiley, Ordinary. 
 
 Oedee Requiring Administeator to Execute Titles ; 
 
 §3441. 
 Eugene Leiois 
 
 Application to require administrator to exe- 
 cute titles. 
 BibbQoxnt of Ordinary, Term, 189—. 
 
 Robert Erwin, 
 Administrator, et al. 
 
 The above stated application coming on regularly to be heard, 
 and it appearing that fifteen days' notice thereof was duly served, 
 personally, upon said administrator and the heirs at law to be found 
 in this State, to wit (naming them), and (when there are non-resi- 
 dent heirs) that like notice was duly published for thirty days in 
 the Macon Telegraph, and the truth of the lallegations in said 
 petition satisfactorily appearing, and no good cause being shown 
 why the relief sought sihould not be granted, it is ordered, that said 
 administrator do execute to the said Eugene Lewis titles to said 
 
 land as prayed. This — day of , 189 — . 
 
 O. M. Wiley, Ordinary. 
 
 Administeator's Deed. 
 
 [By virtue of an order pursuant to bond for titles, executed by deceased during life.] 
 
 Oeorgia, Bibb County. 
 
 This indenture made this — day of — — , 189 — , between 
 Robert Erioin, administrator upon the estate of Jolin Jones, late 
 
234 GEORGIA FORMS 
 
 o£ Bibb coTiaty, deceased, as party of the first part, and Eugene 
 
 Lewis, of the county of , State of , as party of the second 
 
 part, 
 
 Witnesseth, that whereas thte said deceased, during his life, exe- 
 cuted a bond to make titles to certain land (describing it), and 
 died without making such titles, and whereas the holder of said 
 bond, the said party of the second par't, after having complied with 
 its condition has duly applied to the ordinary of Bihh county, 
 and has duly obtained a.n order requiring said administrator to exe- 
 cute titles according to the terms of said bond. 
 
 Now therefore, the said administrator doth htereby sell and con- 
 vey to the said Eugene LeiiAs, >all the above described tract of land,, 
 to have and to hold the same as fully as the same was held by said 
 intes'tate. 
 
 In Avitness whereof, the said 'administrator has hereto set his hand 
 and affixed his seal, the day and year first above "written. 
 
 Robert Erwin, 
 Administrator of the estate of John Jones. 
 Signed, sealed and delivered in presence of: 
 Rohert Hunter, 
 Blanton WinsMp, 
 
 Notary Public Bihb County, Ga. 
 
 Section 6. Of Abministeator's Sale. 
 
 All sales by administrators (except of annual crops sent off to market, 
 and of vacant lands), shall be at public outer jr, between the hours of ten 
 o'clock a. m. and four o'ctock p. m.; nor ^hall any sale Tse continued from, 
 day to day unless so advertised. Good faith is required of the adminis- 
 trator in all cases that the property be sold in such manner and quantities, 
 as shall be deemed most advantageous to the estate, §3446. 
 
 The personal perishable property should be sold at as early a day as 
 practicable, consistent with the interest of the estate, under an order from 
 fhie ordinary, in which the kind of niotlce and the length of time it shall 
 be given, being not less than ten days, shall be specified, §3445, 
 
 Petition for Leave to Sell Perishable Property ; §3445. 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 
 Robert Erwin, administrator of the estate of John Jones, late of 
 said county, deceased, respectfully shows that the personal perisha- 
 ble property of said estate should be sold at as early a day as prac- 
 ticable. 
 
 Wherefore he prays an order authorizing such sale. This — 
 day of • — — , 189 — . Robert Erwin, Administrator. 
 
AND PKAOTICE. 236 
 
 The order for sale shall Tje 'graisfced as -of course, unless the application is 
 from a temporary administrator, in which event granting It is -within 
 certain limits, discretionary with the Ordinary, §3445. 
 
 Order. 
 
 The foregoing application read, considered and granted. Let 
 ten day?' notice of the sale be given by an advertisement posted at 
 the eourt-house door mid at two other public places in the county. 
 
 This — day of , 189—. 
 
 C. M. Wiley, Ordinary. , ' 
 
 Advertisement op Sale of Perishable Property of a 
 Decedent's Estate; §3445. 
 
 Georgia, Bibh County. 
 
 Will be sold in said county on 'the — day of , 189 — , be- 
 tween the. hours of. 10 o'clock A. 'M. and 4 o'clock P. M., at public 
 outcry at the late residence of John Jones, deceased, to the highest 
 bidder, for cash, all of the perishable property of said Joh/n Jones, 
 embracing his stock of miules, cwttte,- sheep and- hogs, his provis- 
 ions of every sort, corn, wheat and oats, und all his plantation 
 tools. Said sale will be continued from day to day until com- 
 pleted. Robert Erwin, 
 
 Administrator of thg-'eBtiate Of John Jones. 
 
 Application for Leave to Sell Insolvent Papers; §3449. 
 
 Georgia, Sibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 
 The petition of Robert Erwin, administrator of John Jones, 
 shows that -as such administrator he holds the following ■notes, 
 to wit (giving the makers' names, the amount, the date of making, 
 d-at« -of maturity, 'and credits, if any), that he has diligently en- 
 deavored to coUect the same, but that the same remain uncollected. 
 and that he dSems' 'them insolvent (or doubtful). 
 
 Wherefore, petitioner prays leave to sell said notes at public- 
 outcry, pursuant to the pro-dsions of §3449 of the Civil Code 
 
 This — day of , 189 — . Robert Erwin, 
 
 Administrator of John Jones. 
 Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 C. M. Wiley, Ordinary. 
 
:236 GEORGIA FOEMS 
 
 Bibb Court of Ordinary, 
 
 Term, 189—. 
 
 The foregoing application read, considered, and granted. 
 
 THs — day of , 189—. 
 
 C. M. Wiley, Ordinary. 
 
 Advertisement of Sale of Insolvent Papers-; §3449. 
 
 (To be posted at the Court-house door, and at three or more public places in the county.') 
 
 'Georgia, Bibb County. 
 
 By virtue of an order of the Court of Ordinary for said county, 
 
 .granted a't the term, 189 — , the undersigned, as administrator 
 
 upon the estate of John Jones, late of Bibb county, deceased, will 
 
 -sell at the court-house in Bibb county, on the first Tuesday in , 
 
 189 — , between the usual hours of sale, at public outcry, to the 
 highest bidder for Gash, the follomng notes (describing them), 
 :giving as to each the name of maker, amount, date of making and 
 -of maturity, the same being deemed to be insolvent. 
 
 This — day of , 189—. Robert Erwin, 
 
 Administrator of John Jones. 
 
 Application for Leave to Sell Land ; §3450. 
 
 "Georgia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordinary of said County: 
 The petition of Robert Erwin, administrator of the estate of 
 ■John Jones, respectfully sboiws that it is necessary (a) for the 
 payment of the debts of said estate (or, for the purposes of distribu- 
 tion, or both), to sell. certain land of said decedent lying in the 
 ■county of Bibb, (b) described as follows: 
 
 Wherefore, he prays that after notice of this petition shall have 
 been published pursuant to §3450 of the Civil Code, ^an order be 
 passed granting to 'him leave to sell said land. 
 
 Robert Erwin, 
 Administrator of John Jones. 
 
 .Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 C. M. Wiley, Ordinary. 
 
 (a) Sale enjoined where not necessary, 72 Ga. 150; division in kind, 76. 
 
 Injunction of sale refused where no equitable ground alleged, 71 6a. 771. 
 
 (6) If a will authorizes a private sale by the executor, an adininistrator 
 with the will annexed, may execute the power and sell the property with- 
 •out order from the Ordinary. If the will merely designates the property 
 
AlTD PKACTIOE. 23T 
 
 to be sold without specifying the mode of sale, no application for leave to- 
 sell is nec6$sary; but in other respects the executor or administrator with 
 the will annexed must comply with the requisitiiocas before specified, §3460.^ 
 
 Notice op Application for Leave to 8ell Land ; §3450 
 
 (To be published once a week for four wjek5,'in the gazette in which the county advertise-- 
 ments are published.) 
 
 Georgia, BM County. 
 
 Notice is hereby given tliat the undersigned has applied to the-- 
 Ordinary of said county for leave to sell land belonging to the es- 
 tate of John Jones for the payment of debts (or for the purpose- 
 of disitribution). Said application will be heard at the regular 
 term of the Court of Ordinaiy for said county to be held on the- 
 first Monday in , 189 — . 
 
 This — day of • , 189 — . Robert Erwin, 
 
 Administrator upon the estate of John Joives^ 
 
 Order Granting Leave to Sell Land; §3450. 
 
 Georgia, Bibb County. 
 
 In 'the Court of Ordinary for said County, 
 
 Term, 189—. 
 
 Robert Erwin, administrator upon the estate of John Jones,- 
 late of Bibb county, deceased, having duly applied, by petition',, 
 for leave to sell certain land hereinafter described belonging to said 
 estate, and notice of the same having been published 'as required' 
 by §3450 of the Civil Code, and it appearing that the allegations in. 
 said petition are true, it is ordered, that leave be granted to siaid' 
 petitioner to sell the follo'wing land of said estate, to wit . 
 
 This — day of — , 189—. G. M. Wiley, Ordinary. 
 
 Administrator de honis mom may sell under an prder granted at instance 
 O'f his preidecesBor, 91 'G'a. 811. May sell leis'ser interest than order allows^ 
 95 Ga. 543. Bee also 81 G-a. 661, and 50 Ga. 2^1. 
 
 Presumed that court of Ordinary did all the law requires to be done be- 
 fore granting the order to sell, and "we will not go behind that judgment," 
 4 Ga. 154. Order to sell imports, legally, a necessity for the sale, and can- 
 not be atacked collaterally; it is a judgment of the court that the sale will 
 be for the benefit of heirs and executors, 7 Ga. 562, 47 Ga. 195, 33 Ga. 237, 
 6S 'Ga. 735, 70 Ga. 196. It 'concludes heir if served on him personally,. 
 §3358; personal service safe, 56 Ga. 431. 
 
 Advertisement OF Administrator's Sale of Land; §3452.- 
 
 (To be published in some newspaper having a general circulation in the county whe;e prop-- 
 erty to be sild is located, once a week for four weelss aftsr the leave is granted, and"- 
 before the sale ) 
 
238 GEORGIA FORMS 
 
 Geokgia, BM County. 
 
 By virtue of an order of the Court of Ordinary of said county, 
 
 will be sold at public outcry, on the first Tuesday in , 189 — , 
 
 at tbe court-house in said county, between the usual hours of sale, 
 
 the following real estate situate in Bibi county, (a) to wit: . 
 
 The sale will continue from day to day, between the same hours, 
 until all said property is sold. (6) Terms, cash, (c) 
 
 This — day of ,, 189 — - Robert Erwin, 
 
 Administrator of John Jones. 
 
 (a) Land lying in two counties may be sold in either, §3455. 
 
 Administrator must be in possession, §3457. 
 
 (6) §3446. 
 
 (c) Advertisement must state terms of sale, §3461. 
 
 An administrator may exercise his discretion in demanding cash or ex- 
 tending credit. Pull notice should be giveii, and the best interest of the 
 estate observed. If credit is given, the administrator must, at his own 
 risk, deteffinine the sufficiency of the security given. If the security taken 
 is ample at the time, and subsequently the debt is lost, after the utmost 
 diligence by the administrator, he will not be responsible for the amount, 
 §3447. 
 
 Generally: Sale, how made, §3446. Exception as to annual crops and 
 vacant lands, Ih. Annual crops must be carried to market, 40 Ga. 363. 
 See also, 47 Ga. 79(4). 
 
 Administeatoe's Deed to Land. 
 Georgia, Bibh County. 
 
 This indenture made this — day of , 189 — , between Rob- 
 art Erwin, administrator upon the estate of John Jones, late of 
 said county, deceased, as party of the first part, and J. 8. Raley, of 
 the county of Bibb, State of Georgia, as party of the second part, 
 
 Witnesseth, that whereas, the Court of Ordinary of Bibb county, 
 did, at its regular term, 189 — , duly authorize^ the said admin- 
 istrator to sell cei^in real estate of said deceased, ihereinaf ter de- 
 scribed, 'and whereas the said, administrator, after advertising such 
 sale in the. Maoon Telegraph, a newspaper having a general circu- 
 lation in the county where said real estate lies, once a week for four 
 weeks after the leave was granted and before the sale, did expose 
 the same at public auction on the first Tuesday of the month of 
 
 , 189 — , between the legal hours of sale, at the oourt-house in 
 
 said county, when the same was then and there knocked off to said 
 J. S. Raley as the highest and best bidder, at and for the sum of 
 tioen-ty--five hmidred dollars; 
 
AND PKACTICE. . 239 
 
 !N'ow therefore, the said administrator, in consideration of said 
 sum of $2500.00, in hand paid, receipt whereof is hereby acknowl- 
 edged, doth sell and convey to the said J. S. Raley the following 
 real estate (describing it). To have and to hold said property as 
 fully and completely as tlie same was held by the said deceased. 
 
 In witness whereof, the said administrator has hereto set his 
 hand and affixed his seal, the day and year first above written. 
 
 Robert Erwin, 
 Administrator of John Jones. 
 Signed, sealed and delivered in the presence of: 
 Robert Htmter, 
 Blmiton Winship, 
 
 Notary Public Bibb County, Ga. 
 
 Recital in administrator's- deed of a compliance witli all the requisites 
 of tlie law necessary to be done after the order is granted, is prima facie 
 evidence that those requisites were complied with, 4 Ga. 155, §3454. 
 
 An administrator cannot bind the estate by any warranty in any con- 
 veyance or contract made by him, nor is he personally bound by such cove- 
 nant, unless the intention, at pGrBional liability is distinctly expressed, 
 §3456. 
 
 Failure of purdhia/ser at adni'iinlBtratJor's sale to record has deed in due 
 time, not postpone his -deed to judgment obtiaineid before record, 47 Ga. 195. 
 
 Power of Attorney by Administrator. 
 
 (See §3000.) 
 
 GiJORGiA, Bibb County. 
 
 This power of attorney executed this — day of , 189 — , by 
 
 Robert Erwin, of the county of Bibb, said State, the duly consti- 
 tuted administrator upon the estate of Jolm Jones, late of Bibb 
 county, deceased, witnesseth that the said administrator does by 
 these presents authorize RMand Ross, of the cotinty of Jones, said 
 State, to advertise in the proper paper, and then to sell in the name 
 of said adminisitrator at the court-house in said county of Jones 
 within the legal hours of sale the following described real estate 
 situated in said county of Jams (describing it). And when said 
 sale has been so made, the said Roland Ross is authorized, pursuant 
 thereto, to make a deed to the purchaser in the name of the said 
 Robert Erwim, administrator. 
 
240 GEOEGIA FORMS 
 
 In witness wkereof the snid' Rohert Erwin, administrator, has 
 
 hereto set his hand and seal this — day of , 189 — . 
 
 Robert Enoiii, 
 Administrator of John Jones. 
 Attest: — 
 
 Robert Hunter, 
 8. R. Wilei/. 
 
 Notary Public Bibh County, Ga. 
 
 As to administrator's sales of bank stock, see §3451. 
 
 Section 7. Disteibution and Year's Support. 
 
 After payment of expenses of administration and tlie debts of the de- 
 ceased, the balance of the estate stands subject to distribution among the 
 heirs at law, according to the relationship prescribed in §§3354-6, of the 
 Civil Code, §3464. 
 
 Among the necessary expenses of administration, and to be preferred 
 before all debts, is the provision for the support of the family, to be as- 
 certained as follows: 
 
 On the application of the widow, or the guardian of the child or children, 
 or any other person in their behalf, on notice to the representative of the 
 estate (if there is oine, and if none, w'ithbut notice), the Ordinary shall 
 appoint five discreet appraisers, to set apart support for twelve months, 
 from the date of administration, if any, to be estimated according to the 
 circumstances and standing of the family previous to the death of the 
 testator or intestate, keeping in view also the solvency of the estate. If 
 there be a widow, the appraisers shall also get apart, for the use of herself 
 and children, a sufficient amount of the household furniture. The pro- 
 vision for the family shall, in no event, be less than one hundred dollars, 
 and if the estate does not exceed five hundred dollars in value, the ap- 
 praisers shall set apart the whole of it, §3465. 
 
 Application for Twelve Month's Support; §3465. (a} 
 
 Georgia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordinary of said County: 
 
 The petition of Sarah Jones respectfully shows that she (6) is- 
 the widow (c) of John Jones, late of said county, (d) who died 
 
 testate on the — day of , 189 — , leaving two minor children, 
 
 Viz., Ruth and. Mary, aged respectively ten and four years. The 
 ''ast (cill of said d^coeased toas duly probated before the Court of 
 (h-dinarij jor said '-ourly, and Robert Enoin was duly qualified 
 as executor. 
 
 Pui-5uant to' the i.rovisions of §3465 of Civ'l Code, p'titioner 
 
AND PRACTICE. 241 
 
 mlakes this her application for provision for a year's support out of 
 said estate (f) for liCiself and said children. 
 
 "WTierefoTe slie prays that, lafter n'otice to said representative of 
 said es'tate, appraisers be appoin'ted to set apart and lassign to her 
 and said children, (g) am allowance of household furniture, 'and a 
 sufficiency from said estate for their support and maintenance for 
 the space of twelve months. Sarah Jones. 
 
 [In case th'e deceased 'died intestote, 'viairy albove aind foWowinig forum 
 aoooiraiinig'ly.] 
 
 (o) Year's support comes in before the costs of the Ordinary, funeral 
 expenses or taxes; in fact, first, §3424(1). It is not superior to a lien on 
 the property out of which it is claimed when such lien existed on the 
 property before it became deceased's property, 55 Ga. 361. 
 
 Prior to actual allowance of the year's support by the court, executor or 
 administrator may advance necessary money to the deceased's family and 
 will 'be credited therewith, 49 'Ga. 285, 38 Ga. 264. And, iBhougOi no yeiax's 
 snpiKxrit set apiairt, a)sseibs iwitfli iwhl'cai he is chaaigeaibl* so credited, 82 Ga. 67. 
 (6) Petition in writing necessary, 54 Ga. 94, 45 Ga. 459. 
 (c) Marriage a nullity because husband insane at time of marriage, 
 year's support not allowed to widow, 73 Ga. 784. 
 
 Widow may repudiate hasty election of a legacy in lieu of year's support 
 and dower, 88 Ga. 616. 
 
 Her right to dower not diminished by taking year's support, 74 Ga. 278. 
 
 Where, as her husband's administratrix, she paid claims inferior to 
 year's support, right of not necessarily lost, 96 Ga. 497; if such claims so 
 paid were open accounts, and not enough remuined to pay other accounts, 
 it wtoul'd be lost as laigialimst eudh others, 16. on other ihiand, the rigiht would 
 not be lost as against open accounts, if she paid notes only, J6. 
 
 Widow becoming chargeable, as administratrix, with more than amount 
 allowed as year's support, cannot collect it, 94 Ga. 665. A widow who has 
 drawn her support from her husband's estate during the year succeeding 
 his death, though it was not formally set apart to her, is entitled to no 
 further allowance by way of year's support, 34 Ga. 419. (This decision 
 is %■ the elder Lumipbin, an'd seems to 'be the true daw.) Lapse 'Of time 
 (four years) during which widow lived on the land and made use of the 
 personalty, might defeat application, but judgment allowing it not at- 
 tacked on that ground in another court, 70. Ga. 130; distinguishing 34 Ga. 
 418, and 36 Ga. 194, as beinfe o'ases where oibjectioins were duly filed; folloiw- 
 ing 68 Ga. 641, where ten years elapsed before the year's support was set 
 apart, and 50 Ga. 566, where the year's support was allowed after the 
 family had lived nearly twelve years on the land after the death of the 
 husband and father. 
 
 Temporary administrator may apply, 49 Ga. 367. 
 
 Widow dying before year's support set apart, right thereto survives to 
 her administrator, and he may apply just as she could have done, 77 Ga. 
 232; but setting apart property to her after her death, under application 
 made by her during life, void, 76. 
 
 id) Where the man dies domiciled In Georgia, family entitled to year's 
 
24-2 GEOEGIA FOEMS 
 
 support though non-resident, 80 Ga. 187; notwithstanding divorce, 80 Ga. 
 721. 
 
 (e) The word "person" in §3465 includes both sexes, 74 Ga. 795. 
 Widow dying, liier minor chiil'd enititled to BU'pipioipt out at her estate, J6. 
 
 (f) No representative, no notice necessary, 70 Ga. 130. 
 
 {g) When the family of a decedent embraces two sets of children, each 
 is" entitled to an allowance of furniture, or to an equivalent thereof, 35 Ga. 
 124. 
 
 Wheal an estate is ito be kept tog'etlher longer than twelve mionths, and 
 there are mo delbts to pay, and a widow or (70 iGa. 733, 74 'Ga. 355) mintor 
 children to 'be suipported out tof saJM ©ataite, ithey shall have a yelar's sup- 
 port for each year that such estate may be kept toigetli'er, and the origdnal 
 appnaisers may act in the same caipaciity for tihe second and any subse- 
 quent year, 'or new appraisers may ,be app'ointed by tlie Ordinary to as'sigm 
 such support after the iirsit year, §3466. 
 
 Order. 
 
 The foregoing application (read and considered. Ordered tliat 
 Robert Erwm, executor of said es'tabe, do sliow cause before tke 
 
 Court of Ordinary for said county, on the — day of , 189 — , 
 
 why said application should not be granted as prayed. Let him be 
 personally served with a copy of said application and of this order 
 at least ten days before said date. 
 
 This — day of — , 189—. 'C. M. Wiley, Ordinary. 
 
 Year's Support — Order Appointing Appraisers ; §3465. 
 
 Sarah Jones ^ 
 
 vs. I Application for Year's Support. 
 Robert Erwin, [ Bibb Court of Ordinary, 
 Executor of John Jones, j Term, 189 — . 
 
 A copy of the above stated lapplication, together with the rule 
 ■msi, having been duly served personally upon Robert Erwin, exec- 
 utor of the estate of John Jones, according to law, and no objection 
 being offered, the following named five persons (naming them) are 
 hereby appointed -as appraisers to set apart out of said estate a 
 twelve months' support as prayed. 
 
 This — day of — , 189—. G. M. Wiley, Ordinary. 
 
 Order should, under §4255, recite person notified, 45 Ga. 459; and was 
 void here for failure so to do, and creditor came in ahead of widow, 16. 
 
 Warrant to Appraise Year's Support. 
 
 Georgia, Bibb County. 
 
 'i'o (naming the five appraisers). Greeting: 
 
 Sarah Jones, widow of John Jones, late of said county, de- 
 
AND PKAOTICE. 243 
 
 ceased, having made application for a year's support out of the 
 estate of said deceased, for herself and two minor children, aged 
 respectiYely t^en an'4 four yeiairs, you have been, by order of the 
 Court of Ordinary for said county, appointed as appraisers on thfi — 
 day of — , 189 — . Theirefore, you or a majority of you, are hereby 
 required to set apart and assign to said widow and children, either 
 in property or money, a sufficiency from said estate for their sup- 
 port and maintenance for the space of twelve months from the 
 — day of , 189 — •, to be estimated according to the circum- 
 stances and standing of the family previous to the dealth of said de- 
 ceased, keeping in view also the solvency of the estate. You will 
 also set apart for the use of the 'widow and children a suffiicient 
 amount of the household furnitiire. 
 
 You are further required to make out a schedule of the property, 
 or a statement of the amount of money set apart by you, and return 
 the same under your hands and seals to the Ordinary within thirty 
 days from the date of your appomtment. 
 
 Witness my hand and official signature, this — ■ day of , 
 
 189—. G. M. Wiley, Ordinary. 
 
 Return does not charge administrator with assets, 94 Ga. 665. 
 
 Whole estate less than five hundred dollars, direction to appraisers to 
 set it all apart, proper, 74 Ga. 355. 
 
 The appraisers shall make a schedule of the property, or statement of 
 the amount of money set apart by them, and return same to Ordinary 
 within thirty days from their appointment, §3467. 
 
 Year's Support — Reitirn of Appraisers; §3467. 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said County: 
 
 We, the undersigned appraisers, appointed upon the application 
 of Sarah Joives, widow of Jdlin Joms, late of said county, de- 
 ceased, to set apart from the estate of said deceased a twelve 
 months' support for the widow and the children, herewith make our 
 return. We have set apart and lassigned to said widow and children 
 the following articles of property, our estimate of the value of each 
 article being set opposite the same: 
 
 We have also set apart, for the use of the widow and children, 
 the following household furniture : 
 
 In witness whereof, we have hereunto set our hands and seals 
 
 this — day of , 189—. » 
 
 (Signed by the appraisers, with an "[L. S.]") 
 
244 GEORGIA FORMS 
 
 The property set apart by the appraisers shall vest in the widow and 
 child, or children; and if no widow, in such children, share and share- 
 alike: and the same shall not be administered as the estate of the deceased 
 husband or father, §3468. Sale by widow good, 70 Ga. 168. 
 
 Upon filing of the return the Ordinary shall issue the following: 
 
 Citation; §3467. 
 
 [To be 1 ublislii d once a week 'o : four w .eks ] 
 
 Geoegia, Bibb County. 
 
 •8-arah Jones, having mad© applioation for twelve montli's sup- 
 port out of 'the estate of John Jams, and. appraisers duly ap- 
 pointed to set apart the same having filed their return, all persoas- 
 concemed are hereby required to show oause before the Court of 
 Ordinary of said county on the first Monday in. , 189 — , why- 
 said applieation should not be granted. 
 
 This — day of — , 189—. €. M. Wiley, Ordinary. 
 
 lAny 'one aesirinig Do caveat th© aJpplldaibiion for yeiar''S .siup.port must file- 
 his objections in writing, as required by §4256. 
 
 Objections in time if before term to which citatipn returnable, 79 Ga.. 
 567. 
 
 Burden on caveator; return presumed correct, 82 Ga. 153. 
 
 After publication of the citation, if no objection be made, or, if made,, 
 be disallowed, the Ordinary shall record the return of the appraisers in a. 
 book to be kept for that purpose; if an appeal be taken, pending the; 
 appeal the family shall be furnished with necessaries by the representa- 
 tive of the estate, §3467. 
 
 Order CoNriEMiNG Report of Appraisers. 
 
 Sarah Jones ^ 
 
 vs. [ Application for Year's Support. 
 Robert Erwin, \ Bibb Court of Ordinary, 
 Executor, &c. J Term, 189—. 
 
 It appearing to the court 'that the appraisers appointed pursuant 
 to the above stated applioation have duly filed their return and that 
 citation has issued and been published in terms 'of §3467 of the 
 Civil Code, mid no ohjections to said return ham'mg been made, the-' 
 same is hereby confirmed. 
 
 This — day of — , 189—. 'C. M. Wileij, Ordinary. 
 
 Generally: Whore Ordin-ary allowed $5,000, and jury on appeal reduiceict 
 it to $2,500, and Supreme Court reversed the verdict, 73 Ga. 66; as for 
 claims for year's support, "This court has always regarded such claims, 
 favorably," Ih.. citing 10 Ga. «7; 23 Ga. 235, 237; 55 Ga. 361; 44 Ga. 316;. 
 61 Ga. 218, 221; 64 Ga. 208, 221. In 10 Ga. 37, $6,000 was upheld. 
 
AND PKACTIOE.. 245 
 
 Application fok Distribution of Estate in Kind ; §3479.* 
 
 To thio Honorable C. M. Wiley, Ordiniaay of said Oouiity : 
 Th© petitaon of Robert Erwm, ladmimstrator of the estate of 
 John Joms, late of said county, deceased, respectfully sho-vre tli'at 
 vail tlie del>ts of said deceased hare been paid, and that it is pa?acti- 
 ■cable to make distribntion in kind of the residue of said estate now 
 rc^maining ia his hands, the same consisting of the following prop- 
 
 -erty, to wit : 
 
 The parties in interest in this State are as follows: (giving their 
 names and the names of the gu'ardianis of thiose who« are minors), and 
 ■the following lare all the persohs in interest who reside out of this 
 
 State: 
 
 Wherefore petitioner pi^ays for an order of distribution of said 
 ■estate in kind, pursuant to the statute for such cases made and 
 provided. ' Robert Erwin, 
 
 Administrator of John Jones. 
 
 Notice; §3479. 
 
 ;[ r'o^j served peraaually. at least tvreaty days before hand, upon aU adult parties in interest 
 within this State, and upon guardians of minor distributees, anl to be served upon non 
 resident parties in ioterest by publication at least twice a month for four months.] 
 
 Notice is hereby given that I have filed my applica'tion with the 
 ■Ordinary of said county for lan order for distribution in kind of the 
 residue of the estate of John Jones now remaining in my hands 
 -as administrator, and that said application will be heard at the 
 regular term of the Court of Ordinary for said county, to be held 
 
 on the first Monday in , 189 — . Robert Erwin, 
 
 Administrator of John Jones. 
 
 Order for Division of Estate in Kind; §3480. 
 
 Robert Erwin, ~] Application for Distribution of 
 
 Administrator of John Jones, [ ■ Estate in Kind. 
 
 vs. I Bibb Court of Ordinary, 
 Heirs of said intestate. J Term, 189 — . 
 
 The above stated application coming on regularly to be heard, 
 and it being ^hown to 'hho dount that written notice has been duly 
 
 served upon all the parities in interest within this State, viz. : , 
 
 and that like notice has been served by publication in the Macon 
 
 Telegraph upon , and no good cause being shown against the 
 
 granting of said application, it is ordered that the following persons, 
 
 *See the subject of Partition. 
 
246 GEQEGIA FOKIIS 
 
 freeholders of tlie county wHere the property is sitaalted, viz., A, 
 IJ, and G, be and they lare herdby appointed to .appraise and impar- 
 tially divide the property into the requisite number of shares, 
 equiaHzing the same, if necessary, by balances in money, to be paid 
 either out of the estalte or by the respective distributees. 
 
 Let said appraisers be first sworn to the faithful and impartial 
 discharge of their duty. And let them make their return in -writing. 
 
 This — day of — , 189—. 0. M. Wiley, Ordinary. 
 
 Oath of Appraisers; §3480. 
 
 Georgia, Bihh County. 
 
 You do solemnly swear that you will faithfully and impartially 
 dischai-ge your duty in appraising and dividing the property of the 
 estate of Johm Jones in the hands of Robert Encin, his adminis- 
 trator, pursuian/t to the foregoing order. 
 
 Return of Appraisers; §3481. 
 
 [Where the administrator has on hand enough cash to equalize inequalities in division of the- 
 estate. Sahstantially from p. 414 of Judge Reese's Work on Executors, &c , pursuant to th& 
 permission heretofore referred to.] 
 
 Georgia, Bibb County. 
 
 "We, the undersigned lappraisers, report that after having beeit 
 first duly sworn by each other, we have executed the order of the 
 Court of Ordinary of said county, hereto attached, in the following, 
 manner: 
 
 The distributees being three in number, we arranged the prop- 
 erty as nearly as possible in three equal lots. These lots we named 
 lals ISTo. 1, ISTo. 2, and l^'o. 3. "We valued Ko. 1 at fwenty-orvs 
 tJiousand dollars, JSTo. 2 at Uoenty thousand dollars, and ISFo. 3 at 
 twenty thousand dollars. To equalize this deficiency of lots ISTos. 
 2 and 3, we agreed that the administrator should, from the funds- 
 in his hands (undistributed) pay to. the owner of lot No. 2 $1000 
 and to the owner of lot "JSTo.. 3 $1000, when their respective ownei^ 
 should be iascertained. Having settled what should constitute the 
 several lots, we assigned the siame to the distributees thus: We 
 wrote on one set of cards the names of the distributees, and on 
 another set of cards the numbers of the lots of property, placing- 
 the name cards in one hat, and the lot-number cards in another. 
 Both hats were then shaken, and from them we proceeded to draw, 
 an one time, a name card and a lot-number card, and so on, until the 
 hats were empty. We had, previously to this drawing, 'agreed 
 that the lot of property designated by the number on a given lot- 
 
AND PKAOTIOE. 247 
 
 numlber card sbouild go to the distributee designated on tihe name 
 card co'temporaneo'usly drawn out. Under these provisions, lot 
 
 No. 1, consisting of , fell to D ; lot ISTo. 2, cansisting of , 
 
 fell to E ; land lot No. 3, consisting of , fell to F. 
 
 All of wliicli is respectfully submitted. 
 
 GiTen under our hands and seals, tliis — day of , 189 — . 
 
 (Signed, with an "[L. S.J," by the appraisers). 
 
 Section 8. Commissions and Extra Compensation. 
 
 The administrator shall have a commission of two and one-half per ce-t. 
 on all sums of mioniey received "by (him on laccooinit of itihe estate (except 
 money loaned hy him and repaid to him), and a like commission on all 
 sums plaid out iby him, ettther to dehts, legacies, or dfetnilbutees, §3484. 
 
 An administrator in the discharge of his duty, required to travel out of 
 his county, shall be allowed the amounts of his actual disbursements, to be 
 ascertained by his own statements under oath. The Ordinary may, in his 
 discretion, also allow a reasonable compensation for the time devoted to 
 this service, §3485. 
 
 In other cases of extraordinary services, extra compensation may be 
 allowed by the Ordinary. But in no case is the allowance of extra com- 
 pensation iDy the Crdiniary comcluisive upon the parties in iniberest, §3489. 
 
 Wlhere a .tnusit fund shall pajsis througtt the hands of several aJdmims- 
 trators, by reason of the death, removal, resignation or otherwise of the 
 first,, it shall not be subject to commissions by each; but commissions for 
 receiving shall be paid to the first or his representative, and commissions 
 for paying out shall be paid to the one actually disbursing the fund, and 
 no commission shall be paid for handing over the fund to a successor, 
 §3490. 
 
 Administrators falling to make annual returns shall forfeit all commis- 
 sions for that year, unless the Ordinary, upon cause shown, shall, by 
 special order on the minutes, relieve them from this forfeiture, §3491. 
 
 Section 9. Settlements and Herein of Pleas. 
 
 Any person interested as distributee or legatee, may, after the expiration 
 of one year from the grant of administration, cite the administrator to 
 appear before the Ordinary for a settlement of his accounts, or, if the ad- 
 ministrator chooses, he may cite all the distributees to be present at the 
 settlement of his accounts by the Ordinary; such settlement shall be con- 
 clusive upon the administrator, and upon all the distributees, who are 
 present at the hearing, §3493. 
 
 Petition to Cite Administrator to a Settlement; §3493. 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordinary of said Oounity: 
 
 A B shows that he is a digtributee of the estate of John Jones, 
 that administration was granted to Robert Erwin upon said estate 
 
248 
 
 GEORGIA FORMS 
 
 by tbe Court of Ordinary for said county more tlian one year ago, 
 
 to "wit, on tlie — day of , 189 — . 
 
 Wherefore petitioner priays that citation issue requiring the said 
 Roiert Erwin, administrator as aforesaid, to appear before said 
 court for a settlement of his accounts. A B. 
 
 Citation and proof thereof is what §§3493-4 seem to contemplate. A 
 petition is not necessary to give the court of Ordinary jurisdiction, see 68 
 Ga. 435, 71 Ga. 13; but it is usual. 
 
 Order for Citation. 
 
 The foregoing petition read and considered. Let defendant ap- 
 pear before the Court of Ordinary for said county on the first Mon- 
 day in , 189 — , for a settlement of his accounts. Let a copy of 
 
 said petition and of this order be served upon him ten days before 
 said date. 
 
 This — day of • 
 
 189- 
 
 C. M. Wiley, Ordinary. 
 
 Due notice appearing, Ordinary may proceed to make an account, hear 
 evidence upon any contested question, and settle finally, between the dis- 
 tributee and administrator; such settlement may be enforced by execution 
 or attachment for contempt, either party 'having the liberty of appeal, 
 §3494. 
 
 As to rules for charging administrator with interest, see §§3496-8. See 
 also, last edition of Reese on Executors, Administrators and Guardians, 
 on p. 245 of which appears & personal letter to Judge Reese from Alexan- 
 der H. Stephens, discussing the law of this subject at length. 
 
 Judgment. 
 
 A. B. 
 
 vs. 
 
 Hobert Erwin 
 
 Administrator of John Jones. 
 
 Petitioa to Cite Admiuistrator to 
 Settlement. 
 Bibb Court of Ordinary, 
 ~— Term, 189—. 
 
 It appearing that a copy of the above petition and of the rule 
 nisi granted thereon was duly served upon Robert Erioin ten days 
 before this term of the court, and it further appearing, upon an 
 accounting, that defendant, as admimstrator of John Jones, is due 
 
 the said A B the sum of dollars, it is ordered that said A B dd 
 
 recover said sum of the defendant, to be levied of the goods and 
 chattels, lands and tenements of the deceased, in the hands of said 
 administrator to be administered. 
 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
AisTD PEACTICE. 249 
 
 The toregoiinig is wHnait is tenu'ea a juidlgimeat de bonis testatoris, wliiclh 
 being interpreted, means a judgment subjecting the dead man's property 
 if there be any. It need not describe the assets, 71 Ga. 13. 
 
 A judgment de 'bonis propriis Inioludes a ipersonal judgment against tlhe 
 iDdividwai who liappens tio be adminlistratoir ajs am inld'ividuial. It is like any 
 other personal judgment, so far as personal anguish to the defendant is 
 concerned, §3508. It cannot be rendered unless certain special pleas (see 
 below) are filed by the administrator and found against him, §3508; 66 Ga. 
 324. Where suit brought against an executor upon a demand due by his 
 testator, and no defense made, judgment properly entered against the de- 
 fendant de bonis testatoris, and amounted to a conclusive admission of as- 
 sets on the part of the executor; and execution having issued and been 
 returned miUa bona (see §3501 and niote's), amid a subisequeaiit 'acitibn upon 
 this judgment having been brought against the executor in his individual 
 capacity, it was too late for him to plead or prove as a defense a want of 
 assets existing alt the time when the original suit was brougih/t, 95 Ga. 215, 
 48 Ga. 420. The above judgment, to be de bonis propriis, should be amen- 
 ded by subjoining to it these words: "if^to be found, and if none to be 
 found, then of the goods, and chattels, lands and tenements of the said 
 Robert Erwin held in his own individual right." 
 
 A judgment guando acoiderint looks to the future, "when (assets) shall 
 Mave arrived." Upon a pleia of plene administravit by A, an admin'Mrattor, 
 a judgment against him quando acoiderint was no lien upon land which 
 went Into A's possession ait intestate's deaith (even tlhough A aflwiayB 
 claimed it as his individual property under a prior gift from the intestate) ; 
 the judgment guando admitted the plea; 59 Ga. 552: distinguishing 7 Ga. 
 149. 
 
 The above judgment, to be guando acoiderint, should be amended so as to 
 reaid "tO' be leviied of the igoWdis, dbc. at tbe deceased which may hereafter 
 come into the 'hands, etc." • 
 
 An executor or administrator, when the cause of action originated in 
 ■the Mfetlime 'of .tlhe testaitlor or intestate, may plead any t>lea whic'h gu'ch tes- 
 tator or intestate might plead if living, and he may also plead in abate- 
 ment in all such cases where such plea is applicable, §3507. As to plea to 
 merits depriving him of right to plead that assets were reserved to pay 
 a judgment but depreciated in value, 91 Ga. 791. 
 
 "When ah executor or administrator is sued as such, he may plead ne 
 ungues executor, or that no assets have come into his hands, or plene ad- 
 ministravit prwter, a sum not sufficient to satisfy debts of a higher nature 
 against the deceased, hel'd by third persons, or plene administravit, that She 
 has fully administered the assets that came into his hands, or, pending 
 the action, his letters testamentary or of administration have been re- 
 voked, and the administration committed to another, to whom all the as- 
 sets which came into his hands have been delivered, §3506. 
 
 Plea or Ne Unques. 
 
 Now comes the defendant and for plea says tliat he never was 
 administrator upon the estate of the said John Jones, deceased. 
 And of this he puts himself upon the country. 
 
 Eohert Erwin. 
 
250 GEORGIA FORMS 
 
 Where no such plea, proof of representative character not necessary, 
 E5 Ga. 103. For heirs to Intermeddle with realty will not constitute them 
 executors de son tort, 80 Ga. 260; any sale by them would leave it sub.iect 
 to administration for payment of debts, /6. Plea of ne ungues properly 
 sustained here. 16. 
 
 Plea of No Assets. 
 
 Now comes defendant and for plea says tliat no assets of the 
 estate of John Jowes have oome into 'his hands. And of this he 
 puts himself upon the country. Robert Erwin. 
 
 Plea of Plene Administravit. 
 
 Now comes defendant and for plea says that he qualified as ad- 
 ministrator upon the estate of the said John Jones on the — day of 
 
 , 189 — , that he gave due and legal notice to the creditors of 
 
 the estate to render in an account of their demiands, that plaintil? 
 failed to give notice of his claim within twelve months from said 
 date, and that before 'any notice of plaintiff's claim was brought to 
 him he had fully administered upon all the assets belonging to said 
 estate that came into his hands, (a) And of this he puts hims.elf 
 upon the country. Robert Erwin. 
 
 (a) For a plea of plen^ administravit prwter, add iere "except certaJia money, 
 to wit, — dollars, a sum ntolt sufia'cieot to Batis'fy delbts of a higher n'aiture 
 against the deceased, held by third persons, said debts being as follows — . ' 
 Where appropriate to the facts, say "except certain property of the value 
 of — dollars," etc. 
 
 See generally, notes to §§3501 and 3506. 
 
 Sbctios 10. Of Letters of Dismission and Resignation. 
 Administrator's Petition for Letters of Dismission; §3509. 
 
 Georgia, Bibb County. 
 
 To the Honorable C. M. Wiley, Ordimary of said County : 
 
 The petition of Robert Erwin respectfully shows that on the — 
 
 day of , 189 — ; he was duly appointed administrator upon the 
 
 estate of John Jones, late of said county, deceased, that he has fully 
 discharged 'all his duties as^uch administrator, that he has paid all 
 the debts of his intestate, and has turned over the residue in his 
 hands to the lawful heirs, 'as will appear fully by reference to his 
 returns duly made and of record in this court. 
 
 Wherefore he prays to be finally discharged. 
 
 This — day of , 189—. Robert Erwin. 
 
AN^D PRACTICE. 251 
 
 Order. 
 
 The foregoing petition read and 'Considered. Let citation issue 
 requiring all persons concerned to show cause, if any they have, 
 
 before the Court of Ordinary, on 'the first Monday in , 189—, 
 
 why said administrator should not be discharged. 
 
 This — day of , 189—. O. M. Wiley, Ordinary. 
 
 Citation; §3509. 
 
 [To be publishe 1 for tiiree mon hs.] 
 
 Georgia, Bibb County. 
 
 BoJkrt Erwiri, administrator upon the estate of John Jones,. 
 late of said county, deceased, having filed his petition for discharge, 
 this is to cite all persons concerned to show cause lagainst the grant- 
 ing of this discharge, at the regular term of the Court of Ordinary 
 
 for said county to be held on the first Monday in , 189 — . 
 
 C. M. Wiley, Ordinary. 
 
 Order of Dismission; §3510. 
 
 [State the case.] 
 
 This petition coming on regularly to be heard, and, it appearing 
 to the court that citation in terms of the law has been published irt 
 the Macon T'elegraph. newspaper for three months, and it- further 
 appearing, upon a close examinationj into the condition of said 
 estate and the conduct of said administrator that he has faithfully 
 and honestly discharged the trust and confidence reposed in him, 
 it is ordered, that the prayer of petitioner be granted, and that he 
 be released from all liability as administrator aforesaid. Let let- 
 ters of dismission issue to him accordingly. 
 
 G. M. Wiley, Ordinary. 
 
 What the order of dismission should contain, 9 Ga. 550. Its effect, IS 
 Ga. 346. 
 
 Letters of Dismission. 
 
 <teoegia, Bihh County. 
 
 To lohom it may concern : 
 This is to certify that Robert Erwin, administrator of the estate 
 of John Jones, late of said county, d*eiased, having faithfully and 
 honestly administered upoin siaid estate, was by the Court of Ordi- 
 nary for said counity foirm:aIly and finally discharged from such ad- 
 ministration, by 'an. order passed on the — day of , 189 — , 
 
-252 GEORGIA FORMS 
 
 ^ter due and legal n'otice to all parties at interest. Witness my 
 
 liand and officd'al seal this — day of , 189 — . 
 
 G. M. Wiley, Ordinary. 
 
 Petition to be allowed to Resign; §3515. 
 
 <jeoegia, Bihh County. 
 
 To the Honorable C. M. Wiley, Ordinary of said Ooumty: 
 
 The petition of Robert Erioin respectfully shows that on the — 
 
 ■day of , 189 — , he was appointed by the Oourt of Ordinary' 
 
 for said county as administrator upon the estate of John Jones, 
 late of said county, deceased, that he qualified accordingly, and 
 ■entered upon the discharge of the duties of said tanist, and that he 
 has continued to act 'as adminisitrator as aforesaid until now. 
 
 Petitioner has not yet fully administered upon said estate, but 
 he desires to resign his said trust because he is now seventy yewrs 
 ■old and quite infinn. Petitioner niames Williwm Fuller as being 
 a suitable person qualified, entitled, and willing to accept the trust. 
 
 The next of kin of the said intestate are '(? H and / /. 
 
 Wherefore petitioner prays that citation may issue to said Wil- 
 liwm Fuller, and to said next of kin, to appear and show cause 
 why said order should not be grante'd. 
 
 This — day of , 189 — . Robert Erwin. 
 
 Read and considered. Let citation issue as prayed. 
 
 This — day of , 189—. G. M. Wiky, Ordinary. 
 
 Rule Nisi. 
 
 ■Geoegia, Bibb County. 
 
 Robert Erwin, administrator upon the estate of John Jones, 
 late of said county, deceased, having filed his petition to be allowed 
 to resign his said trust, this is to cite WilUatm Fuller, and the next 
 of kin of the intestate, viz., G II and / J, to show cause before thd 
 
 Court of Ordinary for said county, on the first Monday in , 
 
 •189 — , why an order allowing such resignation should not be 
 -granted. 
 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
 In the proceedings (ante) to obtain an order allowing a guardian to 
 resign, as provided by §2566, which section comes from the same sources 
 as §3515. the citation was put in the form of a rule nisi granted by the 
 •Ordinary, ordering service of a copy of the petition and of the rule upon 
 the parties at interest. That method would be sufficient here, as would 
 this there. 
 
AISTD PRACTICE. 25a 
 
 Okder Allowing Resignation. 
 
 Bibb Court of Ordinary. 
 
 Term, 18—. 
 
 In re, Robert Erwin, ") 
 
 Administrator of the estate of > Petition to be ailovved to resign. 
 John Jones. } 
 
 This petition coining on regularly to 'he heard, and citation hav- 
 ing duly issued and been served upon the person therein namei 
 ae suitable and willing to accept the trust, viz., WilUwm Fuller, 
 and also upon tlie next of kin of tbe intestate, G H and / J, and 
 the allegations in said petition being duly proven, and no good- 
 cause being shown why the ^me should not be granted, and it satis- 
 factorily appealing that the interest of 'the estate will not sniffer,, 
 the resignation is allowed as prayed, and the said Williaim Fuller' 
 is hereby appointed to succeed tlie petitioner. Let the said Robert 
 Erii'in be discharged from bis trust whenever he has fairly settled) 
 his accounts with bis successor and filed with the Ordiniary the re- 
 ceipt in full of said successor. 
 
 This -^ day of , 189—. O. M. Wiley, Ordinary. 
 
254 GEORGIA FORMS 
 
 CHAPTER 4. 
 OF CONVEYANCE OF TITLE. 
 
 A deed to lands in this State must be in writing, signed by the maker, • 
 attested by a)t leaist two witneeises, aiiid delivered to the purchaser, or some 
 one for him, and be made on a valuable or good consideration. The con- 
 sideration of a deed may be always inquired Into when the principles of 
 justice require it, §3599. 
 
 Wareanty Deed. 
 
 This indenture made this — day of , 189 — , between Wil- 
 
 liam Smith, of the county of , State of , of the first part, 
 
 and John Jones, of the county of , State of , of the second 
 
 part, witneeseth that the said Willinm Smith, in consideration of 
 
 dollars in band paid, receipt whereof is hereby acknowledged, 
 
 ' has this day sold and conveyed to the said John Jones the follow- 
 ing described real estate (describing it), the grantor (a-) hereby 
 warranting the title thereof against the claims of all persons. 
 
 In witness w:her6of the said William SnvitJi has hereto set his 
 hand and affixed his seal and delivered these presents, the day and 
 J ear first above written. WillicPm Smith, [L. S.] 
 
 Signed, sealed and delivered in the presence of: 
 John Oray, 
 Walter Henderson, 
 
 Notary Public Bilib County, Ga. 
 
 (a) The object of quit-claim deeds is to "transfer without recourse." 
 The foregoing will suffice for a quit-claim deed by altering it so that the 
 following words may immediately follow the word "grantor": "Not, how- 
 ever, warranting the title except as against himself and those claiming 
 under him." * 
 
 THE PURiCHASflER RAYS FOR THE DEED. 
 
 WSlfihlout lam express sti'pullaltlon tlo the comtrary, a puTchaser (must pay 
 the Costs of the oonveyance, §3528. 
 
 GEiNERALLY AS TO THE FORM OF DEED. 
 
 No precribed' form is essentiial to the validity of a deed. If sufficient 
 in i'tiselif to mfeke known the transaotiom hetweem the ■parties, no want of 
 form will invalid'alte It, §3602. 
 
 RECITAL OP RECEIPT OF PURCHASE MONEY 
 
 does not estop the maker from denying the fact and proving the contrary, 
 §3608. 
 
 * For another form of quitclaim deed, strike out "conveyed" in line 6, and insert "quit- 
 claimed;" and strike ou; altogether (he clause "ihe grantor hereby warranting, etc.," in 
 lines 7 and 8. 
 
AND PKAOTIOE. 255 
 
 AS TO THE WARRANTY OF TITLE. 
 
 In a sale of land there is no implied warranty of title, §3613. A general 
 ■warranty of title against all persons includes in itself covenants of a right 
 to sell, and of quiet enjoyment, and of freedom from inicumlbranoes, §3614. 
 
 A general warranty covers defects in title known to the purchaser at 
 the time of tailing the deed, §3615. 
 
 AS TO THE REGISTRATION OF DEEDS. 
 
 Every deed conveying lands shall be recorded in the office of the Clerk 
 of the Superior Court of the county where the land lies. The record may 
 be made at any time, but such deed loses its priority over a subsequent 
 recorded deed from the same vendor, taken without notice of the existence 
 of the first, §3618. 
 
 Re-recording: Clerks of the Superior Courts may record the second time 
 any 'deed or other recorded insibrumenit, anid the certificate of record, when 
 the record of such instruments is lost or destroyed by fire. Such re-record- 
 ing shall take effect from the date of the first record: Provided, the second 
 reeond is wiUhin twelve monithe aifiter lihe loss lor dieHtru<jtion of the first, 
 §3619. 
 
 ATTESTATIO>N OR ACKNOWLEDGMENT OF DEEDS. 
 FIRST: WITHiIN THIS ISTATE. 
 
 To authorize the record of a deed executed in this State, it must be at- 
 tested by a judge of a court of record, or by a justice of the peace, or notary 
 public, or clerk of the Superior court, in the county in which the three 
 last mentioned officers respectively hold their appointments. If subse- 
 quent to its execution the deed is acknowledged in the presence of either of 
 the officers named, that fact, certified on the deed by such officer, shall 
 entitle it to be recorded, §3620. 
 
 The old attesting clause, "Signed, sealed and delivered in presence of" 
 has been in use in Georgia for a long time. On the whole, it might as well 
 remain unchanged. It would seem, however, thait sometlhiinig more should 
 be required than merely having the unofficiall -an'd the official witnesses 
 sign 'thelir names below 'tihis attesfcaJtion, wlith t)he Matter's official desigina- 
 tian amd sdal placeid after his name. Wlhile .this is all now requisite under 
 our statute, I venture, after dome thouglht, and after careful oibservation 
 of the laws of all the other 'States upon the subject as synJofpsized in Hub- 
 bell's Legal DiatlioinaTy* for 1897, to isu'glgesit tihe form below, as one whidh 
 shoiuld be used, .anfl fOT the folliowinig feaeons: 
 
 (1) Because many people in Georgia, even notaries public or other offi- 
 cers, wihen cafeually asked to attest a paper, usually take no .pialins to 
 ascertain whether the person who asks them to attest it as his deed is 
 leally the person described in the deed as maker thereof. (A practice 
 whereby a Macon bank once became the victim of a forged deed; and a 
 pmctlice wh'idh no man would follow in iidenitifying a stranger who wiis!hed 
 to cash a check); 
 
 *rhe emiaent respectability oJ this compilation may be inferred from the fact that it has 
 been issued annually ior more than twenty-five years ; and fro tn the further fact that, the synop. 
 sis of the laws of each State, which it furnishes, is prepared for Georgia by Judge Clifford 
 Anderson's firoi, for New York by James C. Carter's, for Ohio by Judson Harmon's, for Colo- 
 rado by Senator Wolcott's firm, and for Pennsylvania by Francis Rawle. 
 
256 GEORGIA FORilS 
 
 (2) Because this very defect and danger has been recognized by nearly 
 every other State in the Union, some such clause of acknowledgment as 
 that below being required in nearly all of them; 
 
 (3) Because said form subjoined will be a valid certificate of attestation 
 or acknowledgment under Georgia law governing deeds to Georgia real 
 estate, anywhere upon the globe. Its phraseology covers acknowledgment 
 by Consular Officers of the United States, by Commissioners of Deeds for 
 Georgia and Clerks of Courts of Record in other States, and by any Notary 
 in the United iStaites Tviitlhia or witliiout thte iStiaite oC Georgliia. As to the last, 
 viz. : Nctories ouAsid© the iStaite, a 'cerblfi-cate thait tihey aire such muist be 
 aittaclhed. 
 
 Form of Acknowledgement of Conveyance. 
 
 (There sbpuld first be a caption stating the place of execution, e. g., '-Georgia, Bibb 
 County," "State of Alabama, Counts- of Jefferson." 
 
 Where the deed is executed in a foreign country, it is always better that the consulai 
 officer should see to it that the name of the city or town, if any, be given as part of the 
 caption.) 
 
 On this — day of , personally appeared Willmm Smith to 
 
 me well known to be (or, "fully identified as") tte person de- 
 scribed in and who executed the foregoing instalment, and ac- 
 knowledged lihat the same Was by him signed, sealed and deliv- 
 ered on the day therein named, and for the purposes therein stated. 
 
 In witness whereof I have hereto set my hand and official seal. 
 
 > 
 
 ^Signature of the official witnessO 
 
 (Official character of the ofliuial witness.) 
 
 As will appear upon a moment's reflection, the attestation contemplated 
 by our 'stobute does' mot lat all militate aigalinst tih'e above form, for, under 
 the statute, acknowledgment is always as good as attestation, and the 
 ackniawliedgimemt may be mad© the moment aifter the ofiBcer seeis the grantor 
 sign. 
 
 SECOND: WITHIN UNITED STATES BUT WITHOUT GBORlGIA. 
 (A)^ BBFOBiE THE ACT OF 1895. 
 
 To authorize the record in Georgia of a deed to Georgia land executed 
 within the limits of the'United States, but without this State, before the 
 Aot loif 1895 provided an a'dditioniaJl amd less cmmibriO'UB pilan, only two offl- 
 oiialls were oO'mip'etent fcO' attest*: (1) A CommisSiioner of Deeds for the iSitate 
 of Georgia, who signed a certificate substantially like the above acknowl- 
 edgment; and, .(2), a Judge of a Court of Record in the State where the 
 deed was executed. To the latter's signature there had to be subjoined a 
 certificate by the Clerk of such court, under the seal of such court, verify- 
 ing the genuineness of the signature of such judge. Such attestation by 
 a judge, "^hem In proper form, wals subistantially this: 
 
 *And these two officials are still so competent. The act of 1893 did not take sway their 
 authority. It simply provided an-additional method of ha-vingdeeds attested. 
 
AND PRACTICE. . 257 
 
 In witness -whereof the said Willwm Smith has hereto set his 
 
 land and affixed his seal and delivered these presents lihe day and 
 
 jear first above written. 
 
 William Smith. 
 
 Signed, sealed and delivered in presence of: 
 
 ■Gilbert Price, 
 
 John T. Moore, 
 
 Judge of the Superior Court for the County 
 
 of S<in Francisco, Staite of California. 
 
 State of California, \ 
 •County of San Francisco. J 
 
 I, Robert Mills, clerk of the Superior Court for the County of 
 
 .San Francisco, State of California, said court' being a court of 
 
 Tecord, do hereby certify t^hsit the above signature, purporting to 
 
 be the signature of John T. Moore as judge of Said court afore- 
 
 :said, is the true and genuine signature of said John T. Moore, and 
 
 •that he is judge 'of said court. Witness my hand and official seal 
 
 -tliis — day of , 189—. 
 
 Robert Mills^ 
 
 •Clerk of the Superior Co'Urt of San Francisco County, California. 
 [Seal.] 
 Of course it is a well known fact that when a deed to Georgia land was 
 •sent to another state or territory to be executed, it usually came back 
 -improperly executed, but still this clumsy way of doing things went on 
 ^or several generations and might have gone on for several more, had not 
 the leading lawyers of the state, speaking to the legislature through the 
 3ar Assoiciatitoii, secured the piassase of 
 
 (B) THE AOT OF 1895. 
 
 'TMs aiot of .1895 IhaJs the merit of direetmiess. Umder our co-nveyiaadng 
 laws ais itihey sfcoioa prior to (that time, in ord-eir to gelt .to San, Pramcisco we 
 were compelled to go, so to speak, around Cape Horn. Now we go directly, 
 ^vrith greater safety, and without legal circumnavigation. The law govern- 
 ing the execution of deeds out of this State appears in §2706 of the Code of 
 1882, and in §3621 of the Code of 1895. The Act of 1895, §3621, repeats 
 ■'§2'i06 of the Code of 1882, with some slight differences in phraseology, and 
 then makes the additions referred to. In order to make the change clear, 
 •observe §3621 of the Code of 1895, that part which repeats §2706 of the 
 <;ode of 1882 being in ordinary type, and the additions being in italics: 
 
 ' 'To authorize the record of a deed to realty or personalty, whea executed out of the State, the 
 -deed must be attested by or acknowledged before a commissioner of deeds for the State of Geor- 
 gia, or a consul or a vice-consul of the United States (the certificate ot these officers under their 
 seal being evidence of the fact), or by a judge of a court of record in the State where executed, 
 -with a certificate of the clerk under the seal ot such court of the genuineness ot the signature 
 of such judge, orby aderkof a court of record, under the seal of Ihi court, or by a notary pvilic of 
 iM Stite and county where executed, with a certificate under the seal of the court, from the clerk of the 
 -court under which thenotary holds his appointment, or if appointed by the Governor, then with a cer- 
 tificate from the Secretary of State, certifying that said notary was at the time of the execution of the 
 .deed regularly commissioned and authorized by law to attest deeds and take acknowledgements thereof, ' ' 
 13621. 
 
258 . GEOEGIA FORMS 
 
 It will therefore be apparent that under our law as ft now stands, any 
 clerk ol a court of record in any State in the Union, under the seal of his 
 office, may attest a deed tto 'deiargiai lands as fully and <5omiplet©Iy as the- 
 Hon. Rjoibert 'A. Mshet, Clerk of the S-u'peir'iioa: Court of 'Biibh oounity, Georgia,, 
 may attest such a deed in Bibb county. This is the simplest form now 
 allowed by our law for the execution of a deed without the State. No 
 further certificate, or other formality is required, any more than if the deed 
 were executed here. The deliberation which the public has a right to- 
 exercise, and which in its sovereign conservatism it always will exercise,, 
 about fully accepting changes in the law, must be my excuse for one other 
 remark. Suppose California's law to-day to be identical with ours, a deed 
 conveying California land executed in Macon would be entitled to record 
 in California upon the maker's going before the clerk of the Superioi- 
 court in Macon and acknowledging the execution, said clerk then certi- 
 fying the fact, under his seal on the deed. See the Form ant^. If this be 
 true, why, when such person comes to the clerk's office in Bibb county, 
 should the clerk make him hunt up the Judge of the Superior court with a. 
 view to getting the Judge to attest, only to come back to the clerk to com- 
 plete (by certificate to the genuineness of the Judge's signature) a legal 
 act which the clerk had full power to consummate without the Judge. It 
 will be further apparent from §3621 that a Notary gf any other State may 
 there attest our deeds, just as our own Notaries may, with one additional 
 formality, viz.: a certificate attached that he was at the time regularly in 
 ooimim^isBion. (See form rb-elo'w.) This .is alsio the law as tO' deeds executed 
 without the State but within the United States in Massachusetts, New 
 Jersey, New York, South Carolina, Wisconsin, and the District of Colum- 
 bia. The law of nearly every other State is that the attestation of a deed 
 by a Notary Public in another State under his seal is given as full faith 
 and credit as would be accorded here to his attestation of an affidavit to 
 an open account sent here from without the State. The following form, 
 of certificate, substantially the one used in Wisconsin, seems to cover our 
 statute. (It goes farther, but the last clause is not demanded by our law., 
 and hence is omitted) : 
 
 Certificate J §3621. 
 
 [Caption, "Stateof .County of ."] "~" 
 
 I, , clerk of tihe court in and for said county, the- 
 
 same being tlie court under whioh. the notary hereinafter named 
 
 holds his appointanent, (or, I, , the secretary of State of 
 
 such State or Territory), do hereby certify that , by and 
 
 before "whom the foregoing acknowledgement was taken, was atr 
 the time of taking the same a notary public in land for the county 
 of , regularly commissioned and autlhorized by law to at- 
 test deeds and take acknowledgements thereof. 
 
 "Witness my 'hand and official seal, this — day of , 189 — . 
 
 (Signed by the clerk of the court which commissioned the notary, or by the Secretary of 
 State dJ the State orTerri'orj', if notaries there receive their commissions from that oflacial.) 
 
AND PKACTICE. 25 1> 
 
 THIRD : WITHOUT THE UNITED STATES. 
 
 To authorize the record in Georgia of a deed to Georgia lands, executed 
 in a foreign country the deed must be attested by or acknowledged before 
 a consul or vice-consul of the United States, his certificate under his seal 
 being evidence of the fact. The form for acknowledgment of a deed, ante^ 
 will sufiBoe; cti'aaiging 't(he caiption .by stating itihi& city anid country, instead 
 of the State and county. In fact, as was remarked, preliminary to said 
 form, one of the reasons for its general adoption is that it will suflBce both 
 wiftthin this (State, and wiitthin land without the Unlitdd States — remembering, 
 always that as to Notaries in other States, who may use it, their authority' 
 mast be certified by the power that appointed them. 
 
 Deed to Peksonalty.* 
 
 (More commonly kuowQ by the name " Bill o£ Sale.") 
 
 Maoon, G^a., day of ■ ~, 18 — . 
 
 In consideration of dollars, receipt of ■wtMcK is hereby ac- 
 knowledged, I have tihis day sold to 0. D. the folowimg propeirtj 
 (describing the pnoperty) : 
 
 A. B. 
 
 A deed to personalty "needs no attesting witness to make it valid; in- 
 other respects the principles applicable to deeds to lands are applicable to 
 it, §3606. 
 
 Deeds to personalty land 031113 of sale to personalty (w(h'icih are one anid 
 the same sfihing) may be recorded in the office dt the Clerk lof the Superitor 
 OouTt of the county wfhene the maker Tesiides. But *Mb really dioes the pur- 
 Chiaser no gotod, i. e., giivos him no special protection agiainst 'subsequent 
 purdhasters of the same iperSonailty who flnid it iStill in the passeBSion of tihe 
 maker of ithe bill <oi isiale. True, if Sucli aulbseciiient purchaser shoulld, iby 
 seeing ^the reooiid-lbook ait 'the donirit-'hiouse, or by any othor m'ortal means, 
 actually find out Hhat the personalty in question had already ibeen idold, he 
 would ©et no more tli'tle in law ithlan to'e woidld in g-ood morals. But it is 
 only as to such conveyances as the law reqiuires to be entered on tihe 
 oourt-honse records, th.at everyiboidy is dhiargaable iwitlh noitloe. See '§3620 
 and §3626. But where the purchaser sees fit to take a bill of sale, th'a* bill 
 of 'siale is the best evidence of ihis title, ana lie oanncit then prove 'his title 
 by ■OT'al testimony, 55 Ga. 377. 
 
 In oonneotiion w'ith the statemient albove made, that, igemenally, a deed is 
 mot necessary to 'tfonvey /titles to persionalty, it miay 'be remarkeid that Uhwe 
 dan be no question but that .buain'Sss men (gem^enally do not, ibut would like 
 to, un'denstand the principal kinds of instruments reooignized iby the law 
 ■governing conveyanoe of title to personlal property. There are th^ree prin- 
 cipal kinds, viz., the urnnecessary one just explained, i. e., iflie oridi-nary 
 bill of 'Sia;ie, wihiioh is m'any centuries old, 'havinig com© "across the water" 
 with our iancestors, and two kinds createld by thie Georgia LegiiBlature, viz., 
 Mils of saile to secure 'deibt (§2771) land oonidiltiomal :sal^, §2776. That 
 created (by §2771 is 'a'lSort of im'pirovement upon a chattel mortgage, because, 
 amiong other th'in'gs, the delbto'r's family, in event of Ms death, cannot 
 take year's support lin ,the 'property. On 'the .othter ihiand, the isecurity oon- 
 
 *Generally, a deed is unnecessary to convey titles to personalty (§3606), be the personalty a 
 jews-harp or a piano, a pocket-knife or a cotton-gin. 
 
260 GEOEGIA FOKMS 
 
 teroplated by §2776, viz., tlhe written conditional sale, is thiait made faiimiWar 
 to the general public by the book-'agemt, UhB sewiag-madhine man, the 
 piano man, etc. It oonitemiplatee imimediate deilivery of the pfoperty, b-ut 
 ■stipulaites that it shall net cease to lie the aeUer's un'tlil it is fully paid 
 for.* 
 
 Bill of sale of cotton orop for 1874, executed Fehniary Sfh, 1874, Obefore 
 crop planted), void, iDecause subject miatter lof a sale must have exiat- 
 enoe, 55 Ga. 586. 
 
 ■A bill of salle to a newBpaiper, Imdudiing ■presses, fixtures, etc., together 
 with "the good will" of the pai>er, miot prevent seller from starting rival 
 isewspaper; when a (business is sold an express istipulatlon is necessary 
 to prevent the iseller from carrying on the siamfe oocupation in that Down, 
 65 Ga. 11. 
 
 iGOODS TO AMOUNT OF $50 OR OVER. 
 
 There 'are certain oibllgiations Wbidh, un'der a Statute passeld in the 
 reign of Charles 11, aud emJbodied in §2693, are noit ibiirtdlng on the prom- 
 isor unless the promise (be in writing, isligned hy the party to he charged 
 •therewith, or hy.isome person by him lajwfully authorized; one of these 
 is any .contract for the sale of goods to the amount of $50 or more. How- 
 ever, such a contract is made binidinig if "the (buyer shiall accept part of 
 the goods sold and actually receive the same, w give something in earn- 
 est to bind the bargain, or in part payment." §2693 (7). 
 
 PUROHAISE BY INSOLVEiNiT PERSON, FRAUDULENT. 
 
 Wihere one 'who is insiolvent purdhases g'ortds, and, nfot inten'dinig to pay 
 therefor, oonoeals his insolvency and intention not to 'pay, the vendor may 
 disafarm the contract amd redover the goiods, if no innocent third person 
 has acquired an interest in them, §3531. 
 
 THE MORAUS OF THE XlA(W OF TITLE BY CONTRACT. 
 
 BVaud Voids all contracts, §3669. A false representation voids a sale, if 
 acted on, though the party miakin'g iit not aware that his staitemenlt was 
 false, §3533. A 'misrepresentation may Tae perpetrated "by acts as well as 
 words, and by -any artifices designed tO' miisleaJd, §3533. 
 
 The law iof fraud in relation to oMaining fire insuTanoe may be found in 
 §§2097-2101. 
 
 A fraud may toe 'dommiiitted hy acts as well as words; and one who silently 
 stiandB 'by and permits aniothier to purchase Mb property without disdols- 
 ing his title is guilty of such a frauld as estop® (him from suibsequenitly 
 setting up such title against the purchaser, §3823. As to actual or moral 
 fraud, and constructive or legal fraud, see §§4025-6. 
 
 Concealment of material facts may, in itself, amount to a fraud — 
 
 1. When direct inquiry is nuade and the truth evaded. 
 
 2. When, from any reason, one parity has a 'right to expect full 'Oommu- 
 nicatiion of the facts from the other. 
 
 <'As the Deed to Land on p. 164 is EO lorg, and as do special snorter form for a Bill of Sale 
 was then presented, although the Bond for Title on p. 166 Is made applicable to personalty as 
 will as to realty, the following is suggested for a Bill of Sale to Secure Debt under §§2771, 5432, 
 and 2775 . Substitute in lieu of the 1st two paragraphs of the Deed beginning on p. 164, the 
 Bill of Sale in the text above. .„ i, , j i^- 
 
 A form for a conditional sale under §2776 will be found on p. 16;. 
 
AND PRACTICE. 261 
 
 3. 'Wltore ome party knows tbat itllie other is 'laboring unider a delusion 
 '■with, respect to 'the property 'Sold or the condition, of the athier pairty, and 
 yet keeps isillemce. 
 
 4. Wher© th« oonoelalmient is of intrinsic qualities of the article 'w'Mch 
 itihe other party, 'by itihe exercise of ordimry prudence and ciauti'on, oouild 
 not discover, §3534. 
 
 WHEiRiB A PUBCHASER BBFUSES TO TAKE AND PAY FO'R GOODS 
 
 BOUGHT. 
 
 The seller has three remedies: (1.) He ■miay retain them anid recover 
 the difference ibet'Ween t)he contract pirice and the market price at the time 
 and place for delivery. (2.) He miay sell the property, awtSnlg for this 
 ■purpoee as agent for the vendee , and recover tlhie differen'ce T)^ween the 
 contract iprice and tli'e price on resialle. (3.) (He may store or retain the 
 property for the vendee and sue Mm ifor the entire pri'oe, §3551. 
 
 STOPPAGE IN TRANSIT. 
 
 If goods 'are delivered before the price is 'paid, the 'se'Uer canniot retake 
 because of failure to pay; but until actual receipt by tlie pnrcha'ser 'the 
 sel'l'er imay at 'any time arrest them on the way^and retain tlhetoi untii the 
 price is palid. If credit h;as 'been agreed to be given, but the insolventey of 
 the purdhaiser is made known to the 'seller, he imay still exercise the right 
 Of sifiappage in transitu, §3552. The right of stoppage in transitu exists 
 wih'enever 'the vendor in a sale on credit seeks to resume the poB'session of 
 gooids wlhlile they are 'in the hands of a oarrier or 'middle man, (in their tram- 
 sit to thie ven'dee or 'Consignee, on 'his toecominig insolvent. It continues 
 until tie veiidee olbtalns actual pbBsession of the goods, §2284. 
 
 The 'carrier cannot dispute the title 'of the person delivering the goods 
 to li'im by set'tiing up adverse title in himself, or a title in third persons, 
 wMdh is not being enforced against 'Mm, §2285. 
 
 CHOSES IN ACTION. 
 
 A chose in actioii is personalty to which the owner has a right of posses- 
 sion in future, or a right of present possession wrongfully withheld, §3072. 
 
 All choses in action arising upon contract may be assigned so as to vest 
 the title in the assignee, but he takes it, except negotiable securities, sub- 
 ject to the equities existing between the assignor and debtor at the time 
 of the assignment, and until notice of the assignment is given to the per- 
 son liable, §3077. 
 
 A fund may be assigned in writing; the written acceptance of a draft 
 Will 'be treated as an assignment pro tanto of funds of the 'drawer in the 
 hands of the acceptor, §3078. 
 
 'Wh'en a sih'ipper draws a draft on a oo'usignee for goods ordered, with 
 till. of 'laiding attached tO' the draft, the bill of lading becomes security for 
 the draft, and 'the gioOds 'do not become the consignee''S, nor 'has he any 
 rig'ht to the bill 'of ladlnlg until 'he pays for 'the igO'O'ds, §3554. 
 
262 GEOEGIAEORMS 
 
 SIXTH TITLE. 
 OF CONTRACTS. 
 
 CHAPTER 1. 
 OF NEGOTIABLE INSTEUMENTS. 
 
 GBNEJR/AL PRINCIPLES. 
 
 The bona fide holder for value of a t)iU, draft, 'or promissory note, or other 
 negotiahle instrument, who receives the same before it Is due, and without 
 liotice of any defect or 'defense, lis protected froim any 'defenses 'set up by 
 the malcer, acceptor, or Indorser, except the following: 1. Nan est factum; 
 2. Gambling, or immoral and illegal consideration; 3. Fraud in its pro- 
 curement. (By the holder thereof, 37 Ga. 66), §3694. 
 
 The above is a financial section. It embodies the central principle of 
 the law ut negotiable paper — negotium, i. c, business, commerce. Firsit 
 there was barter, then money, then negiotialWle 'papeir. From the very ma- 
 ture an'd uses 'of miomey, the laiw of propeir'tiy, in its application to money, 
 is un'ique. -If la wl&n loses or is riobbed of his walfcolh, 'no "buyer acquires tihe 
 slligh'test prioiverty in it- — i. e., la tona fide h'oMer of it for value, who receives 
 it "without notice" is n'ot proitecteld, 'but thie owner can reclaim it iwherever 
 lie can find it; but if a man loses or is robbed of money, and the thief or 
 Under spends it wiith am inmocent party, sueli "6o«ffl fids i older for value," 
 will be protected. As commerce increased, the physical diflBculties in the 
 •way of exchanging gold became great on account of its bulk, and mer- 
 •chamts invenlteid lamtother representatiive of value, viz., a written contract 
 v/hich tells its own story on its face, no "ifs" or conditions, is as transfer- 
 able as money and has all the privileges and immunities thereof. In other 
 -words, they created negotiable paper, and endowed it with the attribute 
 of safe tranisferalbility pecullair to money, so that it could do 'their nego- 
 iiiim, ithelr transfers, their Commerce; 'anid thus, by the law merdhaTit, set 
 iortli in §3694, what was already true of money became true of the new 
 substitute for 'money. lA'dd to this ttJhe reflectlioii ttlhlat wlien 'overdue and 
 •dist'omiored uogotiaMe paper /beoo'mes discredited, and is no longer the 
 •equivalent of money, 'havinlg tlhem no fixed 'an'd certain date for conversion 
 into money, and this attempt to descxliibe §3694 fe at an end. T!he law 
 books agree that most of the confusion and differences of opinion concern- 
 ing negotiable paper arise from a failure clearly to apprehend its parent- 
 lage."" 
 
 * The foregoing is a condensed restatement ol certain views upon the subject presented in 
 I very able article in the American Cyclopaedia, entitled " Negotiable Paper." 
 
AND PRACTICE. 263 
 
 Bill of Exchange; §3676. 
 
 $1000.00. Macon., Qa., August 4th, 1896. 
 
 Ninety days after date pay to the Excha/ivge Bank of Macon, 
 or order, one thousand dollars. Value received. 
 
 To William Smith. John Jones. 
 
 DiBtinotion 'befcweeai a "bill of exo]ian'g« (except a sigM draft) anid a 
 ■check, is that the element of credit enters into the former; a check is an 
 -appropriation of cash, a bill of exchange looks to the future, 46 Ga. 491-2. 
 
 "It (the Bill of Exchange) was introduced into commercial transactions 
 "upon the idea that the drawer claimed to have in the hands of the drawee 
 a sum certain, which he was willing, for some agreed value, to transfer to 
 "the payee, who helieved it Ms inteiresit to pay ifjhat Value 4ot it. It was 
 ■afterwards improved and made an available comnfercial security, by adding 
 after the name of the payee, the words 'or order,' or else 'or hearer' thus 
 imparting to it a negotiable quality." 33 Supp. 188. "Without the desig- 
 natJion of a sum cerfcaiin, withtout characteristic upon it® face of albBolulte 
 ness, it cannot subserve the purposes of commerce: it is no bill of ex- 
 -change," lb. 
 
 Oedinaey Bank Check. 
 
 -$1000.00. Macon, Ga., August Jfth, 1896. 
 
 Pay to John Jones or order one ifchousand dollars. 
 'To T'he Eafchange Bank of Maeon. William Smith. 
 
 or, as is more common, 
 
 $] 000.00. Maoon, Ga., August 4th, 1896. 
 
 Exchange Bank of Macon pay to John Jones or order one 
 -thousand dollars. ' William Smith. 
 
 As between the holder of a check and the indorser, it ought to be pre- 
 sented for acceptance with due diligence. But as between the holder and 
 the drawer, a demand at any time before suit brought will be suflBclent, 
 unless it appears that the bank has failed, or that the drawer has other- 
 Avise been hurt by the delay, 1 Ga. 304, 5 Ga. 245. 
 
 Pbomissory Note; §3677.'* 
 
 -$1000.00. Macon, Oa., August 4th, 1896. 
 
 Ninety days 'after date I promise to pay to the order of John 
 ■Jones one thousand dollars. Value received. William SmAth. 
 
 *The form offered in the text is the simplest form of a promissory note. A note that specifies 
 no interest, bears interest at 7 per cent, per annum ; 8 per cent, is the maximum legal rate in 
 Georgia, §2876. When 8 per cent, is to be charged, add, between " value received " and " dol- 
 lars" the words "with interest from maturity, (or, date, as the ease may be) at 8 per cent, per 
 
 jannum." 
 
 A stipulation for attorney's fees is now " void unless a plea or pleas be filed by the defend- 
 ant and not sustained," or in common parlance, unless when sued he " fights the case." See 
 •§3t)67— But such a stipulation is still of^ considerable practical value. It usually follows the 
 
 :stipulation regarding interest, and may be thus : " And ten per cent, attorney's fees for col- 
 lection, in the event this paper should not be paid at maturity, and should be collected by 
 
 «uit or through an attorney-at-law." 
 
264 GEORQIA TORMS 
 
 Tlie following is the usuial Tviaiveir lof ihomesteiad 'Cttause: 
 "Anld I iereby waive and renicmnioe for myseilf anid sfamlily, and for all 
 other peipsoiils claiminig in and tlhrouglh mte, lamy and all homesteaid and ex- 
 emption rig'htis to wMclh I may in any event he enitlitled, undeir any piio- 
 vision of tfhe iConstituitlon or laws of tihe Stiate of G^orgiia, or of the Unitei 
 'States, ais aigaimst 'this idetat, or any T&aewaSl lih'ereof." 
 
 (For a clause believed to be a valid waiver of exemption from garnishment, see "Garnish- 
 ment," hereinafter.) 
 
 The transfer of notes secured by a mortgage or otherwise conveys to the 
 transferee the benefit of the security. If more than one note is secured,, 
 and the mortgagee transfers some and retains others, the bolder of the- 
 transferred notes has a preference over the mortgagee if the security is. 
 Insufllcient to pay all the notes, §3684. 
 
 In ordinary lindariseiments ithe 'Cianitnact of tih© inidorser is to i<ay 'the- 
 money, if the party to th'e instrument primarily liable thereon fail to do 
 so; hence, if there are several Indorsers, each is liable to subsequent ones- 
 in the order of their indorsements, §3687. 
 
 Blank indorsements of negotiable paper may always be explained be- 
 tween the parties themselves, or those taking with notice of dishonor or- 
 of the actual facts of such Indorsements, §5209. 
 
 Any act of ereidlljOT rwMch increiaBes 'a 'siureity'is riisk diaoiiarges the- 
 surety, §2972. A clhlange or Tieniewiail of tihe oomta'aat rwithout the oonsent 
 of the indoTBer or surety, disclDarges him, §2971. Homiestead waiver in. 
 note void for usury, 'surety to wlhiom uswry not kniown, released, 94 Oa. 
 698; actuail 'lioiss mot necessary, expoisure to.nisk reileaises, 91 G'a. 319, 89' 
 Ga. 385. 
 
 Notice of Protest.* 
 
 Tate notice, tihat a cei^fcain promissory note for tiie sum of 
 
 dollars, principal, dated May 7th, 1896, payable October 10th,. 
 1896, made by A B and endorsed by C D, 'bas tbis day been pro- 
 tested by me for juans-payment, payment Laving been duly de- 
 manded and refused. As endoraer of same, you will b© beld lia- 
 ble for tbe amoumt, witb interest, dajnages 'and costs. 
 
 Respectfully, 
 To C D, Macon, Ga. W. P. Wheeler, N'otary Public. 
 
 Last day of grace is day of maturity except on bill or draft payable at 
 Eight, §§3679-80. 
 
 Note payable at bank, placed there for collection, bank bound to prop- 
 erly present it, 46 Ga. 487. In the case just cited the following paper 
 (substantially) was under discussion: 
 
 Atlanta, Ga., August 4th, 1866. 
 Georgia National Bank, Atlanta, Georgia: 
 
 Ninety days after date, pay to A , or order, $1,000. 
 
 (Signed) B. 
 Indorsed by G and D. 
 
 *The notice must be given within a reasonable time, else the indorser will be relieved. 
 
AND PRACTICE. 265 
 
 E, tlie Ti'older of it, delivered it to *hie Geioiri^a iNaliioiM Bank tor ooHec- 
 lion. The Bank, treating it as a check, and not entitled to days of grace, 
 protested it on the day of its maturity without grace, by means of which 
 the indorser was discharged. Held, the Bank was liable to B for the loss, 
 46 Oa. 488. Says Chidf JuBtice Warner, on p. 495, "If the defendant did not 
 know these things, then it ought to have taken down its sign and quit the 
 business of collecting commercial paper." 
 
 Whenever a (holiday slhiall tfalll upon Sunday, ithe Monday neat follow- 
 ing ghall be deemed a public holiday, and papers due on such Sunday shall 
 be payable on the Saturday next preceding, and papers which would other- 
 wise be payable on such Monday shall be payable on the Tuesday next 
 thej^eafter. iWhenever any holiday shiaH fall om Satuirid'aiy, the papers, 
 due on the Sunday following shall be payable on the Monday next succeed- 
 ing. Wihenever any holiday slhalll fall 'on Manlday, tffliie piaper iwlilclh. 
 would otherwise be payable that day shall be payable on the Tuesday next 
 succeeding, §3693. 
 
 The Supreme Court of Georgia has never passed upon the question, but 
 the law is that where the indorser is dead when the paper matures, ths- 
 protest should be sent to his executor or administrator, and if none, to his 
 last address. 
 
 Certificate of Protest; §52.35. 
 
 Georgia, Bibb County. 
 
 I, W. P. Wheekr, a notiary public in and for said county, do here- 
 by certify that on the 10th day of October, 1896, I duly present©! 
 
 to A B for payment a certain promissory note for dollars, 
 
 principal, dated Mai/ 7th, 1896, payable October 10th, 1896, made 
 by tlhe said A B ^and endorsed by C D, and demanded payment ot 
 the same; that payment thereof was refused, and that said paper 
 was on the same day protested by me for non-payntent. 
 
 And I further certify that on the same day, to wit, on October 
 10th, 1896, I gave written notice of the non-payment thereof to- 
 C D by depositing the said notice postage prepaid, in the post-oflB.ce 
 at Mamn, duly enclosed in an envelope directed to the said O Dy 
 at Macon, Ga., where he resides. 
 
 Witness my hand and seal of office this October 10th, 1896. 
 
 W. P. Wheeler, 
 Notary Public Bibb County, Gra. 
 
 All notarial acts of Notaries Public in relation to bills of exchange,, 
 drafts and promissory notes, required to be done by the laws of this State,, 
 may be proved by the certificate of such Notary under his hand and seal: 
 Provided, such certificate is filed in the court at its first term, and permitted, 
 there to remain until the trial, 15235. 
 
 The necessary recitals in a notarial certificate of protest are fully indi- 
 cated in 60 Ga. 348. 
 
266 Q-EOEGIA EORMS 
 
 SEVENTH TITLE. 
 OF TORTS. 
 
 CHAPTER 1. 
 HOMICIDE. 
 
 RECOVERY BY DEAD HUSBAND'S FAMILY. 
 
 A widow, or if no widow, a child or children, may recover for the homi- 
 ■cide of the husband or parent; and if suit be brought by the widow or chil- 
 <lren, and the former or one of the latter dies pending the action, the same 
 shall survive in the first case to the children, §3828. 
 
 The substantive law upon this subject is fully annotated under §3828 in 
 the Code. 
 
 RECOVERY BY DEAD WIFE'S FAMILY. 
 
 The husband may recover for the homicide of his wife, and if she leaves 
 ■child or children surviving, said husband and children shall sue jointly, 
 and not separately, with the right to recover the full value of the life of the 
 -deceased, as shown by the evidence, and with the right of survivorship as 
 to said suit, if either die pending the action, §3828. 
 
 The substantive law upon this subject is also fully annotated in the Code. 
 
 RECOVERY BY DEAD CHILD'S PARENTS. 
 
 A mother, or if no mother, a father, may recover for the homicide of a 
 ■child, minor or sui juris, upon whom she or he is dependent, or who con- 
 tributes to ilia or her suippiort, unleiss said child leave a wife, husbajMi or 
 dhild. Said mo'tlher or father shall he entitled tio^ recover the full value of 
 t!he Mfe of said craild, §3828. 
 
 The substantive law upon this 'subject is alsio 'fully anntotated under 
 §3828 of 'the Ooide. 
 
 HOMICIDE 
 
 As used in §3828, includes all cases where the death of a human being re- 
 sults from a crime or from criminal or other neglience, §3829. 
 
 In the event of a recovery by the widow, she shall hold the amount re- 
 ■covered subject to the law of descents, as if it had been personal property 
 ■descending to the widow and children from the deceased, except that the 
 same shall not be subject to the deceased's debts, §3829. 
 
 After many decisions on the mortality and annuity tables, the whole sub- 
 ject has at last been cleared up by the case of Florida Central and Penin- 
 sular Railroad Company v. Burney, 98 Ga. 1. Says Justice Lumpkin, in de- 
 livering the opinion of the court: 
 
AND PRACTICE. 267 
 
 Justice Lumpkin on the Law of the Life Tables; 98 Ga. 1.* 
 
 "As cases of tort are constantly arising, both where death, has been 
 ■caused, and also where permanent injuries have been inflicted, occasion- 
 ing a total destruction of, or a material diminution in, the earning capacity 
 ■of the injured person; and generally on the trial of such cases, these ta- 
 bles are initrodu'cod in evidenoe; and as there i-s much confu'sion with 
 referenoe to the miann.er of using them, we Ihave concluded to un^deir- 
 take the formulation of instructions concerning their use, which, in each 
 ■class of cases, respectively, may be appropriately given in charge. It 
 must not be understood that in so doing we are presuming to dictate to 
 ■our brethren of the trial courts as to how they shall charge on this subject, 
 or to prescribe forms which they must feel constrained to follow; but 
 as we have devoted much study and thought to this particular matter, we 
 venture to hope that the 'charges' below suggested may be found helpful." 
 
 The opinion in question refers to the two tables which follow below, 
 ■designating the first as the 'mortality table,' and the second as the 
 "annuity table." 
 
 On page five of 98 Ga., the opinion above referred to, by Justice Lumpkin, 
 goes cQi to Siay: "With reference to the 'six 'per cent.' and 'seven, per cemt.' 
 •columns in the annuity table, we have thought it best that juries should be 
 restricted 'tlo the use of the latter only, because seven, per cent, is the legal 
 late of interest in this State where none is fixed by contract in writing, 
 and calculations of annuities based upon any other rate would be purely 
 ai'ibitrary. ilndeed, the tiable * * * might ihiave had, in addlitiion to tOiose it 
 now conbains, a five per cent, and an oiglht per cent, ooluimm, 'or any other 
 number of columns based on different rates of interest, in which event 
 there would have been no safe criterion, save that just indicated, as to 
 T/hiiOh of them a jury sihiQiui'd sietect." 
 
 "Tlhe instrudtion's we have undentaken to frame for thfe guidance of the 
 jury in that class of cases in which the plaintiff seeks to recover for the 
 Tiomicide of another, have, of course, been prepared with reference to the 
 rule of law prevailing in this State which allows such plaintiff to recover 
 'the fuil value of the life of the deceaised, as Shown by tlhe evidence, wi'tih- 
 •out any deduction for necessary or other personal expenses of the deceased, 
 iha/d he liv«id.' (See'Oivil Oo'de, §3828.) 
 
 *Thi8 case ought to be, and will be, a landmark in our law. At the time the opinion there- 
 in was published, the writer had on hind a quantity of unassorted material, consisting of 
 notei from each of the many cases where nisi prlus instructions to juries had been under re- 
 view. Great as was the tisk of dealing at reasonable length with the many topics which a form 
 Tjook could not omit, the idea of furnishing t9 the Bench and Bar, in the shape of a General 
 Note on the Life Tables, a brief which should present the net results of our ease law thereon, 
 -was exceedingly inviting. There could be no doubt that such a conception, resfionably well 
 executed, would meet with general favor, and this reflection minimized the labor in prospect, 
 by maximizing the attractiveness of ^he undertaking. But it seems that a similar idea was eon 
 <;elved about the same time, by one whose long experience on both the Circuit 
 and Supreme Bench, made it peculiarly fortunate for the public 'that he should un- 
 ■dertake the task. Andso, upon the publicition of the Suggestions for Forms of Charges on 
 the Life Tables, made by Justice Lumpkin in Burney's Case, the thing which the author 
 had only thought of, stood forth— a notable fact, a masterly presentation of the Life Table 
 Law, by one speaking "with authority, and not as a scribe." No man of ability and in- 
 dustry can aflTord to be ungenerous in according to a definite public service Its full due ; and 
 what Judge Lumpkin has done in the Burney case is, like many others of his opinions, matter 
 entitling him to lasting gratitude from "The Trustees of Public Opinion," both those now at 
 the Bar, and those who shall come after them. And for the reason that Its use will, in the 
 years to come, greatly decrease the percentage of reversals in cases InvolyiHg the value of hu- 
 man life, the Charges suggested are here transcribed in full. 
 
268 
 
 GEOEGIA rORMS 
 
 MORTALITY TABLE (The Cahlislb Table). 
 (The table referred to by Justice Lumpkin in 93 Ga. 1, as being on page 845 of the 70 Ga.) 
 
 
 Expectation, 
 
 
 Expectation, 
 
 
 Expectation, 
 
 
 Expectation,, 
 
 
 Years 
 
 
 Years 
 
 H 
 o 
 
 Years 
 
 
 Years 
 
 <1 
 
 
 ■< 
 
 
 < 
 
 
 <i 
 
 
 0.. 
 
 38.72 
 
 26.. 
 
 37.14 
 
 52,. 
 
 19.68 
 
 78.. 
 
 6.12 
 
 1.. 
 
 44.68 
 
 27.. 
 
 36.41 
 
 53.. 
 
 18.97 
 
 79.. 
 
 5.80 
 
 2.. 
 
 47.55 
 
 28.. 
 
 35.69 
 
 54.. 
 
 18.28 
 
 80.. 
 
 5.51 
 
 3.. 
 
 49.82 
 
 29.. 
 
 35.00 
 
 55.. 
 
 17.58 
 
 81., 
 
 5.21 
 
 4.. 
 
 50.76 
 
 30., 
 
 34.34 
 
 56.. 
 
 16.89 
 
 82.. 
 
 4.93 
 
 5.. 
 
 51.25 
 
 31.. 
 
 33.68 
 
 57.. 
 
 16.21 
 
 83.. 
 
 4.65 
 
 6.. 
 
 51.17 
 
 32.. 
 
 33 03 
 
 58.. 
 
 15.55 
 
 84.. 
 
 4.39- 
 
 7.. 
 
 50.80 
 
 33.. 
 
 32.36 
 
 59.. 
 
 14.92 
 
 85.. 
 
 4.12 
 
 8.. 
 
 50.24 
 
 34.. 
 
 31.68 
 
 60.: 
 
 14.34 
 
 86.. 
 
 3.90 
 
 9.. 
 
 49.57 
 
 35.. 
 
 31.00 
 
 61.. 
 
 13.82 
 
 87.. 
 
 3.71 
 
 10.. 
 
 48.82 
 
 36.. 
 
 30.32 
 
 62.. 
 
 13.31 
 
 88. . 
 
 3..5* 
 
 11.. 
 
 48.04 
 
 37.. 
 
 29.64 
 
 63.. 
 
 12.81 
 
 89.. 
 
 3.47 
 
 12.. 
 
 47.27 
 
 38., 
 
 28.96 
 
 64. . 
 
 12.30 
 
 90.. 
 
 3.28 
 
 13.. 
 
 46.51 
 
 39., 
 
 28.28 
 
 65.. 
 
 11.79 
 
 91.. 
 
 3.26 
 
 14.. 
 
 45.75 
 
 40.. 
 
 27.61 
 
 66.. 
 
 11.27 
 
 92 . 
 
 3.37 
 
 15,. 
 
 45.00 
 
 41.. 
 
 26.97 
 
 67, . 
 
 10.75 
 
 93.. 
 
 3.48 
 
 16.. 
 
 44.27 
 
 42.. 
 
 26.34 
 
 68.. 
 
 10 23 
 
 94.. 
 
 3.53 
 
 17.. 
 
 43.57 
 
 43.. 
 
 25.71 
 
 69. . 
 
 9.70 
 
 95.. 
 
 3.53 
 
 18.. 
 
 42.87 
 
 44.. 
 
 25.09 
 
 70 . 
 
 9.18 
 
 96. . 
 
 3.46 
 
 19.. 
 
 42.17 
 
 45.. 
 
 24.46 
 
 71.. 
 
 8.65 
 
 67.. 
 
 3.28 
 
 20.. 
 
 41.46 
 
 46.. 
 
 23.82 
 
 72.. 
 
 816 
 
 98.. 
 
 3.07 
 
 21.. 
 
 40.75 
 
 47.. 
 
 23.17 
 
 73.. 
 
 7.72 
 
 99.. 
 
 2 77 
 
 22.. 
 
 40.04 
 
 48.. 
 
 22.50 
 
 74.. 
 
 7.33 
 
 100. 
 
 2.-i8 
 
 23.. 
 
 39.31 
 
 49. . 
 
 21.81 
 
 75.. 
 
 7.01 
 
 101. 
 
 1.79 
 
 24.. 
 
 38.59 
 
 50.. 
 
 21.11 
 
 76.. 
 
 6.69 
 
 102 
 
 1.30 
 
 25.. 
 
 37.86 
 
 51.. 
 
 20.39 
 
 77.. 
 
 6.40 
 
 lo.-?. 
 
 0.83 
 
 ANNUITY TABLE. 
 (The table referred to by Justice Lumpkin in 98 Ga. 1, as being on page 847 of the 70 Ga.) 
 
 ?n 
 
 6 perct. 
 
 7 per ct. 
 
 so 
 
 6 per ct. 
 
 <3 
 
 
 
 < 
 
 
 
 
 10.439 
 
 9.177 
 
 
 
 1 
 
 12.078 
 
 10.605 
 
 27 
 
 13.275 
 
 2 
 
 12.925 
 
 11.342 
 
 28 
 
 13.181 
 
 3 
 
 13.652 
 
 11.978 
 
 29 
 
 13.096 
 
 4 
 
 14.042 
 
 12322 
 
 30 
 
 13.020 
 
 5 
 
 14.325 
 
 12.574 
 
 31 
 
 12.924 
 
 6 
 
 14.460 
 
 12.698 
 
 32 
 
 12.860 
 
 7 
 
 14.518 
 
 12.756 
 
 33 
 
 12.771 
 
 8 
 
 14. -526 
 
 12.770 
 
 34 
 
 12.675 
 
 9 
 
 14.500 
 
 12.754 
 
 35 
 
 12.573 
 
 10 
 
 14.448 
 
 12.717 
 
 36 
 
 12.465 
 
 11 
 
 14.384 
 
 12 669 
 
 37 
 
 12.354 
 
 12 
 
 14.321 
 
 12.621 
 
 38 
 
 12.239 
 
 13 
 
 14.257 
 
 12.572 
 
 39 
 
 12.120 
 
 14 
 
 14.191 
 
 12.522 
 
 40 
 
 12.002 
 
 15 
 
 14.126 
 
 12.473 
 
 41 
 
 11.890 
 
 16 
 
 14.067 
 
 12.429 
 
 42 
 
 11.779 
 
 17 
 
 14.012 
 
 12.389 
 
 43 
 
 11.668 
 
 18 
 
 13.956 
 
 12.348 
 
 44 
 
 11.551 
 
 19 
 
 13.879 
 
 12.305 
 
 45 
 
 11.428 
 
 20 
 
 13.835 
 
 12.259 
 
 46 
 
 , 11.296 
 
 21 
 
 13.769 
 
 12.210 
 
 47 
 
 11.154 
 
 22 
 
 13697 
 
 12.156 
 
 48 
 
 10 998 
 
 23 
 
 13.621 
 
 12.098 
 
 49 
 
 10.823 
 
 24 
 
 13.541 
 
 12.037 
 
 50 
 
 10.631 
 
 25 
 
 13.456 
 
 11.972 
 
 51 
 
 10.422 
 
 26 
 
 13.368 
 
 11.904 
 
 52 
 
 10.208 
 
 7 per ct. 
 
 
 6 perct 
 
 7 per ct 
 
 ?n 
 
 <1 
 
 
 
 O 
 
 53 
 
 9.9S8 
 
 9.205 
 
 79 
 
 54 
 
 9.761 
 
 9.011 
 
 >-0 
 
 55 
 
 9.524 
 
 8.807 
 
 81 
 
 56 
 
 9.280 
 
 8.595 
 
 82 
 
 57 
 
 9.027 
 
 8.375 
 
 83 
 
 58 
 
 8.772 
 
 8.135 
 
 84 
 
 59 
 
 8.529 
 
 7.940 
 
 85 
 
 60 
 
 8.304 
 
 7.743 
 
 86 
 
 61 
 
 8.108 
 
 7.572 
 
 87 
 
 62 
 
 7.913 
 
 7.403 
 
 8S 
 
 63 
 
 7.714 
 
 7.229 
 
 89 
 
 64 
 
 7.502 
 
 7.042 
 
 90 
 
 65 
 
 7.2S1 
 
 6.847 
 
 91 
 
 66 
 
 7.049 
 
 6.641 
 
 92 
 
 67 
 
 6.803 
 
 6.421 
 
 93 
 
 68 
 
 6.546 
 
 6.189 
 
 94 
 
 69 
 
 6.277 
 
 5.945 
 
 95 
 
 70 
 
 5.998 
 
 5.690 
 
 96 
 
 71 
 
 5.704 
 
 5.420 
 
 97 
 
 72 
 
 5.421 
 
 5.162 
 
 98 
 
 73 
 
 5.170 
 
 4.927 
 
 99 
 
 74 
 
 4.944 
 
 4.719 
 
 100 
 
 75 
 
 4.760 
 
 4.549 
 
 101 
 
 76 
 
 4.579 
 
 4 382 
 
 102 
 
 77 
 
 4.410 
 
 4.227 
 
 103 
 
 78 
 
 4.238 
 
 4.067 
 
 
 , 6 per ct 
 
 7 per ct 
 
 11.832 
 11.759 
 11.693 
 11.636 
 11.578 
 11.516 
 11.448 
 11.374 
 11.295 
 11.211 
 11.124 
 11.033 
 10.939 
 10.84.'i 
 10.757 
 10.671 
 10.585 
 10.494' 
 10.3971 
 10.292, 
 10.178 
 10.052 
 9.908 
 9.749' 
 9.573' 
 9.329 
 
 4 040 
 3.8.58 
 3.556 
 3.474 
 3.286 
 3.102 
 2.909 
 2.739 
 2.599 
 2.515 
 2.417 
 2.266 
 2 248 
 2.337 
 2.440 
 2.492 
 2.522 
 2.486 
 2.368 
 2.227 
 2.004 
 1.598 
 1.175 
 0.744 
 0.314 
 
 3.883. 
 3.713 
 3.523 
 3.352 
 3.174 
 2.999 
 2.8:5 
 2.652 
 2.519 
 2.439 
 2.344 
 2.198 
 2.180- 
 2.266 
 2.376 
 2.419- 
 2 451 
 2.420 
 2.309- 
 2.17T 
 1.964 
 1..569 
 1.159 
 0.735 
 0.312 
 
AND PEAOTIOE. 269 
 
 Assuming, then, that an action to recover the value of a life is on trial, 
 and that the Carlisle mortality table and the annuity table are in evidence. 
 It would, we think, be proper to give the following instructions, which (for 
 a purpose hereinafter appearing) we will divide, somewhat arbitrarily, into 
 paragraphs, and designate as: 
 
 CHAROB 1. 
 
 (1) In case you should find that the defendant is liable, it will be your 
 •duty to determine what amount of damages should be allowed. 
 
 (2) Certain tables are in evidence before you. One of them is the "Car- 
 lisle mortality table," and the other is a table showing the value of annu- 
 ities. We will call the first "the mortality table," and the second "the 
 annuity table." They are not binding upon you, and you are not obliged 
 to use them, or either of them. If you use neither, you need not consider 
 the instructions now about to be given; but as these table are in evidence, 
 <ind you have the right to avail yourselves of the assistance to be derived 
 irom them, it becomes proper to explain • them, and Inform you in what 
 manner, and for what purpose, each can be made serviceable. Care, how- 
 ever, must be taken to avoid confusion; and you should be very particular 
 not to use one of them where the other ought to bfr used. Tou are also 
 ■cautioned that you cannot advantageously use both in one and the same 
 ■calculation. While the proper use of these tables separately ought to lead 
 to the same result, using them conjunctively or indiscriminately in the 
 same calculation, or without understanding the real purposes they are re- 
 spectively intended to subserve, will surely lead to erfor. 
 
 (3) You should ascertain from the evidence the annual earning capacity 
 ■of the deceased; that is, seek honestly to reach a just conclusion from the 
 facts before you as tlo wtuaJt 'amourat sihouM be regar^ded as fairly repre- 
 senting his yearly income from his own labor to the end of his life, if he 
 liad not been killed; and, in so doing, give due weight to the various con- 
 •itinigeincies w^ich w'ill ibe polinteid out ibefore concdud'inig ifihese instructioDB. 
 It is proper to remark, just here, that the age of the deceased at the time 
 of the killing and his probable expectancy of life may be considered in 
 arriving at his average yearly earnings, if in your opinion, in view of all 
 the evidence, his earning capacity would have varied at different perlcfds 
 In his life between the time he was killed and the time he would have died 
 in the course of nature. 
 
 (4) Another and more direct use which you can make of the figures 
 representing such probable expectancy of life will presently be stated. In 
 iixing upon this expectancy, you may consult the mortality table, which 
 wiQil now he explainsed. This tlalble is designieid to show the expeatancy of 
 life which may be entertained by average persons of given ages. The 
 •only material information you can derive from it is, the time which an 
 average person of equal age with the one under consideration in the pres- 
 •enit case 'miay tie expected to live. Tlhlis tlaible haJs two isets of tfoluams, 
 marked, respectively, "Age" and "Expectation Years." If it should be 
 •desired to ascertain how long a person of average health and constitution, 
 aged 33 yeiars, wouW proibalbly live, you wouHd ilook fotr tihe figures "33" in 
 the "Age" column; amd opiioisite tlhesie figures, in the "Expectation Yeajps" 
 column, on the right of the '^Age" oolumiL, you would flind the fiigures 
 •"32.36," wlhich would indicaite that sudh a per-siom proibalbly 'had thlirty-twO 
 and 36-100 years to live. In the naiture of things, there can be nto cerMnity 
 
270 GEORGIA FOEMS 
 
 whether any particular individual will live for a longer, or shorter period 
 than the probable expectancy of an average person of his age, as laid down 
 in this table. In estimating the probable length of a given man's life, as 
 compared with the average duration of life of one of the same age, his 
 heailth, oocupaition, hiabits and surpoiun'dings, just as itbey are ^disoloseid hy 
 the evidence, ought to be considered, and the proper weight should be 
 given to all of these things in fixing the expectancy of the life — diminish- 
 ing or Increasing the figures laid down in the table according to the facts 
 in the particular case under investigation. The age "33 years" has been 
 selected merely for illustration. You, of course, in using the table, would 
 select the age appropriate to the present case. 
 
 (5) Having from the evidence fixed, as accurately and as fairly as you 
 posisiWy oan, upon the numlber of dollars reipresenting tihe yearly earnings 
 of the deceajsed; and havlmg ascertJaline'd from the mor'tality talbte. In oon- 
 nection with all the other evidence, ihis expectancy (that ds, the numiber of 
 years whioh he would proibaWy have lived), you ooiuM, by multiplying 
 one 'oif tihes© numbers by the other, determiine 'approximately what would 
 have been itihe gro-sis amount of the earndnigs of Ms fwhole llfetiime. 
 
 (6) This gross amount, when ascertained, would, of course, have to be 
 reduced to its present value — that is, to a sum which, paid down all at once, 
 would be the just and legal cash equivalent of such gross amount. The 
 present value would necessarily be less than the gross amount; and the 
 longer the life, the greater would be the difference in these respective sums. 
 If you pursue the course above indicated, and arrive at the gross amount 
 In the manner which has just been explained to you, it would then be in- 
 cumbent upon you to make the necessary calculations for ascertaining its 
 present caish value. But Inasmuc'h as tflie proper result can be more readily 
 reached by availing yourselves of the work which has been done in com- 
 piling the annuity table, you may prefer to resort to it. In that event, you 
 would not find it necessary to arrive at a groBis amount, and !tlhen reduce 
 it to present value; for the use of the annuity table enables you to accom- 
 plish the same end by a shorter process. The following illustration will 
 aid you in understanding how to use this table: 
 
 (7) Suppose a man 33 years old was killed, and, at the time of his death, 
 was earning $40 per month, which would make $480 per year. If it was 
 certain that he would continue to earn this amount every year as long as 
 he lived, his lalbor would represent a yearfy aamuity of $480; and one enti- 
 tled to recover the value of his life would have the right to receive such an 
 amount as would be the fair cash equivalent of an annuity of $480, payable 
 in yearly installments, during the period the deceased would have lived but 
 for the homicide. 
 
 (8) To arrive at such amount in the case supposed, the annuity table 
 could be made available in the following manner: First, you would look 
 In the column marked "Aige" tail you found the figures "33." Opposite these 
 figures you would find. In a column marked "7 per cent." (it being on the 
 right of the "Age" column), the figures "11.448." The meaning is, that an 
 annuity of one dollar, in favor of an average person 33 years old, and to 
 continue through life, would, on the 7 per cent, basis, be worth, cash down, 
 eleven dollars and 44 8-10 cents. 
 
 (9) Therefore, multiplying $480 by the figures "11.448," would give the 
 cash value of a like annuity of $480, viz. : $5,495.04. 
 
 (10) This annuity table can be used for any age up to 103, and with 
 reference to any sum of money representing or standing in the place of an- 
 
AND PEACTICE. 271 
 
 annuity. The illustration shows you how to use the table, but you must 
 not donluse Whe figures mientioned in it witJh the actual figures of the case- 
 now on. trial. On the oontriary, you 'Should 'be govemea, as to tlhese mat- 
 ters, (by the efvidenjco. 
 
 (11) You will also observe that the illustration given is based upon the 
 assumption that the deceased would have actually earned $480 every year 
 during the entire period ol 'his life, if he 'had mot tieea killed. 
 
 (12) It rarely, if ever, happens that a man labors every day until hi& 
 death, or receives all the while a fixed and regular income from his labor; 
 nor does his capacity to earn money often remain undiminished to old age. 
 In arriving at the amount to be allowed as damages in any particular case, 
 these things should be carefully borne in mind. The illustration given is. 
 also based upon the further assumption that the supposed person was one 
 whose expectancy of life was that of an average man. If, in any case, the 
 expectancy of the person under consideration would, under the evidence, 
 have pnobalbly been greater, or 'less, than that 'of the average man, the 
 amount of the damages to be allowed should be increased, or diminished, 
 accordingly. In applying these instructions to the case which you are now 
 trying, you will, of course, be governed by its facts and circumstances as. 
 proved. Feebleness of health, actual sickness, the loss of employment, 
 voluntarily abstaining^ from work, dullness in business, reduction in 
 wages, the increasing infirmities of age, with a corresponding diminution 
 of earning capacity, and other causes, may contribute, in greater or less 
 degree, to decreasing the gross earnings of a lifetime. In estimatirg- 
 damages, a proper allowance and deduction should be made in favor of the 
 defendant for any diminution In income from labor which would have re- 
 sulted from any of these sources. The defendant is not responsible for 
 the consequences of the acts of others not its agents, nor for results which 
 would in any event, and without reference to the conduct or negligence of 
 the defendant, have come to pass. 
 
 (13) In arriving at the cash value of the life of the deceased, and fixings 
 the amount of the damages, you should take all these matters into con- 
 sideration, and give them due weight. 
 
 (14) If the defendant Is not liable at all, the instructions which have- 
 been given concerning these tables should be disregarded entirely. If 
 liable, and you see proper to use the tables, or either of them, an observ- 
 ance of these instructions will aid you in reaching a proper conclusion as 
 to the amount of damages to be allowed. 
 
 [Note: If the evidence so warrants, an additional instruction, such as is 
 embraced in the words below quoted, may be added to paragraph 12. But 
 this should not be done unless in view of all the testimony the propriety 
 and fairness of such an instruction is manifest. 
 
 ******** "You should also take Into consideration, and give the proper 
 effect to, any evidence before you, if there be such, tending to show a 
 reasonable prospect of increased earnings on the part of the deceased."] 
 
 When the above mentioned tables are introduced in evidence upon the 
 trial of an action for personal injuries involving an alleged diminution of 
 the plaintiff's earning capacity, and there is evidence to warrant a finding 
 that there was such a diminution, and that it will be permanent (that is, 
 lasting during the plaintiff's life), the following instructions as to th& 
 methods of using the tables may be given. We will designate the same : 
 
^72 GEORGIA EORMS 
 
 CHARGE 2. 
 
 (1) If you find that the defendant is liable, it will be your duty to fix the 
 measure of the plaintiff's damages. Among other things, he claims that 
 he has been permanently injured; that his capacity to labor and earn 
 money has been decreased, and that this condition will continue to the end 
 ■of his life. If this contention has not been proved to your satisfaction, you 
 will have no occasion to consult the tables concerning the use of which 
 you will presently be instructed, and should disregard them entirely. But 
 if you find that the defendant is liable, and should believe from the evl- 
 tience that the plaintiff was capable of earning by his labor so much per 
 year, and, because of personal injuries wrongfully inflicted upon him by 
 the defemdant, his eamiag capacity has been maiterially reduced; and U tihe 
 injuries were of such a permanent and lasting character that this decreased 
 capacity to earn money will continue through life, the following instruc- 
 tions will be pertinent: 
 
 (2) [Same as paragraph 2 of Charge 1.] 
 
 (3) You should ascertain from the evidence the annual loss which has 
 been occasioned to the plaintiff by reason of his injuries. To do this, you 
 Tvill have to take into consideration his earning capacity before he was 
 injured, and the per cent, (or ratio) in which that capacity has been di- 
 minished. Seek honestly to reach just conclusions from the fact before 
 30U as to what amount would have fairly represented the yearly earnings 
 of the plalintiff to tihe end tof Ms life, had ihe n;oit heen Injured, anid as to 
 the proportion — ^whether one fourth, one half, or more or less than these 
 Iractions — in which such earnings will be reduced because of his injuries. 
 Ill estimating whiait wiQiuld have heen the plainitSff's 'probaible earnings 
 
 through life, if his laboring capacity had remained unimpaired, you should 
 £ivfi due weight to the various contingencies that will be pointed out to 
 yon before ooncluldimg these lostruotiomis. It is proiper to remark, just 
 liere, that the plaintiff's age at the time he was injured, and his then 
 probable expectancy of life, may be considered in arriving at what would 
 liave been his average yearly earnings but for the injury, if in your opin- 
 ion, in view of all the evidence, his earning capacity would have varied at 
 differeoit periods o^ his life, dn 'oase there Ihad heen no injuxy. 
 
 (4) [Same as paragraph 4 of Charge 1.] 
 
 (5) Having from the evidence fixed, as accurately and as fairly as you 
 possibly can, upon the number of dollars representing the yearly loss in 
 «arnings occasioned to the plaintiff by his injuries; and having ascertained 
 fro'm *he mioritallty table, in oonmeetion -with all the Jofflier evidence heiEore 
 you, his expeoOaincy (that Is, the mumlber of years whidh, at the time of Ms 
 injury, he oould reaBonialbly have espeoted to live), yooi could, (by multiply- 
 ing one of these numbers by the other, determine approximately the gross 
 amount of the loss. 
 
 (6) [Same as paragraph 6 of Charge 1.] 
 
 (7) Suppose a man 33 years old, and capable of earning $40 per month, 
 •or $480 per year, was so injured that he could earn only $20 per month, or 
 ^240 per year, and that this decreased capacity to earn money would last 
 ■during his ehtire life. If It was certain that, but for the injuries, he would 
 have continued to earn the full amount of $480 every year as long as he 
 lived, his loss on account of the injuries would represent a yearly annuity 
 of $240; and, if entitled to recover, for such loss, his damages, as to this 
 
AND PRACTICE. 273 
 
 matter, should be such an amount as would be the fair cash equivalent of 
 an annuity of $240, payable in annual installments, until the end of his life. 
 
 (8) [Same as paragraph 8 of Charge 1.] 
 
 (S) Therefore, multiplying $240 by the figures "11.448," would give the 
 cash value of a like annuity of $240, viz. : $2,747.52. 
 
 (10) [Same as paragraph 10 of Charge 1.] 
 
 (11) For instance, you will have noticed that the case supposed in the 
 illustration is one where the earning capacity was reduced one half. It 
 might be that it was reduced two thirds, or only one third, .or one fourth, 
 or any. other fraction. The true per cent, of the decreased capacity must 
 in each case be ascertained from the evidence, the Question being: In 
 what proportion does it show the ability to earn money has been lessened? 
 You w'i'U also obsierve that itihe iUuetrafflon given rests upon the assump-. 
 tion that the injured person would have actually earned -$480 every year 
 during the entire period of his expectancy, if he had not been hurt, and his 
 consequent loss on account of the decrease in his ability to labor is cal- 
 culated upon that basis. 
 
 (12) [Same as paragraph 12 of Charge 1.] 
 
 (13) In arriving, therefore, at the amount which should be allowed the 
 plaintiff on account of loss arising from diminished ability to labor, you 
 should take all these matters into consideration, and give theni due weight. 
 
 (14) [Same as paragraph 14 of Charge 1.] 
 
 INote: In a proper caKe, the reading of poiragfflaiplh 12 of Chairge 1, ais a 
 part of Charge 2, may be followed by giving the additional instruction 
 below quoted. In this connection, however, see note at end of Charge 1. 
 ******** "You should also take into consideration, and give the proper 
 effect to, any evidence before you, if there be such, tending to show that 
 there was a reasonable prospect of increased "earnings on the part of the; 
 plaintiff, in case he had not been injured."] 
 
 THE FULL VALUE OF THE LIFE OP THE DECEASED 
 
 As shown by the evidence, without deduction for necessary or other per- 
 sonal expenses had he lived, may be recovered by the widow, or child, or 
 children, §3829. 
 
 Declaeation foe Homicide; §3828. 
 
 (The usual style of heading for a form, heretofore emploved, is here inserted by way of 
 cross-reference, because a Declaration for Homicide would" likely be looked for at this point 
 by many persons. For such a Declaration, see the chapter hereinafter containing the Com- 
 mon Forms of Actions, and commencing with Mr. Neel's letter on the Neel Act.) 
 
 Before leaving these tables, another use to which they may be put should 
 be explained. Appended to the "Annuity table" in the 70th Ga. (p. 847) 
 is an explanation of its use, where a widow elects to take cash in lieu of 
 Iter dower, i. e., in lieu of a life interest in land, as she is allowed to do by 
 §4696 of the Civil Code. That explanation seems to have been taken from 
 JuyJge William ^. Bjeeise's "TrejaAlsie on fhe Daw of Executors, Aamirnisifcra- 
 tors and Guardians," p. 401. It is here subjoined with some slight altera- 
 tions. 
 
274 GEOKGIA FORMS 
 
 How TO Estimate the Cash Value of a Life Estate. 
 
 Estimate the value of the property in which the life-estate or dower is 
 held, then find its yearly value at 6 or 7 per cent, on the rate agreed upon,, 
 multiply this result hy the figures In the annuity table opposite to the age 
 of the life-tenant under the 6 or 7 per cent, column, as the case may be. 
 The reversionary interest is obtained by subtracting the value of the life- 
 estate from the value of the property. To illustrate: A jperson aged 55 
 years ia life-temiant in a proiperty worth |25,000; ait 6 per cept. isihe would be 
 enrtatled to $1,500.00 per annum. What is the life-estaite anid reversion In 
 this 'property worth? Flirst, look in tlie columm maipked "AJge" until you 
 find the figures "55." Opposite these figures, you find in a column marked 
 "6 i»er cent." ('it being 'on the rigiht of Iflie "Ajge" ooil-umn), t!he figures 
 "9.524." The meaning is, that an annuity of one dollar, in favor of an 
 average person 55 years old, and to continue through life, would, on the 6 
 per cent, basis, be worth, cash down, nine dollars and fifty-two and 4-10 
 cents. And, if one dollar would be worth $9.52 4-10, $1,500 would, on a like 
 basis, be worth fifteen hundred times 9.524, or $14,286. So the life-estate 
 is worth $14,286. The difference between that and the $25,000, the value 
 of the whole estate, gives $10,714 as the value of the reversion. 
 
 To illustrate by another example: A woman aged 21 years has dower 
 in a tract of land worth $46,250; one-third of this is $15,416.66 2-3, in which 
 the widow hais a life interelst. At 6 por cent, she would be entitled to an 
 annuity of $925.00; this sum muiltiplied by 13.769, taken fromi the amniuitiy 
 table, as above directed, gives the value of the dower, viz., $12,736.33. 
 
 The foregoing will be of service to commissionerH appointed to assign dower, where the 
 widow elects to take cash in lieu of dower, since in case of such election it becomes their 
 duty to ascertain the cash value of her dower. The statute allowing such election is as 
 follows : 
 
 Or, similarly, she may elect, in lieu of her dower, an amount in money 
 to belong absolutely to her, to be determined by the commissioners to as- 
 sign dower, whose report shall be subject to the same objections as are ad- 
 measurements of dower in land. §4696. 
 
_ FORMS BASED ON THE 
 
 CODE OF PRACTICE 
 
 FIRST TITLE. 
 
 COURTS OF ORIGINAL JURISDICTION. 
 
 CHAPTER 1. 
 OF PEACTICE IN JUSTICES' COURTS. 
 
 Form for Summons in Justices' Courts, (a) 
 
 State of Georgia, Bibb County, {b) 
 
 564th District a. M. (c) 
 To any Lawful Constable of said County — Greeting: (d) 
 
 The defendant, William 8mith, (,e) of said district, (f) is hereby 
 required to be and appear at the next Justices' Court to be held in 
 and for siaid district, at Masonic Temple, Mulberry Street, Macon, 
 (g) on Dhe first day of August next, (h) at 10 o'clock A. M., to 
 answer the complaint of John Jones, in an action upon a (note, 
 account, or other cause of action, as the case may be) , a copy of 
 which said (note, acootmt, or other cause of action) is attached to 
 this summons; or in default, the Court will proceed as to justice 
 . shall appertain. Hereof fail not. 
 
 Given under my hand and seal, this 22d day of July, 1896. (i) 
 
 J. H. L. Gerdine, N. P. and ex. off. J. P. [Seal.] (;') 
 Attach copy of note, account, or cause of action sued on. 
 
 For forrois, pTactice, etc., 5n reliaition to copy of loatiise of action. su«d on, 
 see next euoceedlnfe foranfe. 
 
 For forms, praotice and. suggiestions reflative to issulinig, serving amd 
 answering garnlslinients; etc., consult index, title "Garnisliments." 
 
 (a) See §4116, as to how suits are commenced in justices' courts. Sum- 
 mons indispensable; without it there is no case, and garnishment sued 
 out and served aJnounts to nothing, 72 Ga. 136 ; nor can defendant's 
 acknowledgement of service, written on bacli of note left with J. P. for 
 
 *SiBce the Act approved December 6th, 1897, the summons ne=d only bear date 10 days be- 
 fore court. See foot note p. 277 hereinafter. Note (i) was prepared before this Act passed. 
 
276 GEORGIA FORMS 
 
 suit, dispenise with suimmionB, 54 G<a. 496. Pleadling in justi'oes' «(>urts 
 loose, 46 Ga. 4f6; 55 Ga. 315. IStriCftinesis im, mot reciuiired, 72 Ga. 660. None 
 * necessary except summons and copy of cause of action, 74 Ga. 366. Dis- 
 tination of Sugerfoir 'Oourt as t)o pleading's do nrot ototain in justioes' couTts, 
 74 Gfa. 293. Before Ajot of 1881, §4116, requiring copy of ^plain'tiff's demand 
 attached, absence of any description whatever of demand sought to be 
 recovered, not fatal, though "no amount, date, or contract specified, no 
 account, note or other instrument mentioned, and no copy attached or set 
 out," 61 Ga. 388 (decided 1878). Omission to allege the amount claimed 
 not fatal in 1880, 73 Ga. 90; no pleading was required except summons. 
 lb., and that needed only to arouse defendant to exclaim "What's the 
 matter? What's up?" 62 Ga. 683 (Bleckley, J., delivering the opinion). 
 Since said Act, not so utterly loose; for example, see 73 Ga. 98. 
 
 (6) Summons headed "Georgia county county," amendable so as to read 
 "Georgia, Crawford County, 494th district," 67 Ga. 512. Irregularities in 
 summons curable by amendnient, 76 Ga. 683. 
 
 (c) The summons is amendable, 91 Ga. 609; if the words "564th District 
 G. M.," were omitted, inadvertently or otherwise, they could be inserted 
 by amendment, J6. 
 
 (d) A sheriff may execute justice court process, and under certain con- 
 ditions is bound to do so; §4381; 94 Ga. 680; and may be ruled for not 
 making the money thereon, 82 Ga. 736; and may levy on land without re- 
 turn of "no personalty," (see §5429), when fl: fa. is being enforced against 
 specific land, 88 Ga. 177. 
 
 (e) Direction of summons to the local agent of a railroad, in a suit 
 against it, not necessarily bad, 66 Ga. 86. Acceptance made in name of 
 person other than defendant, summons with copy thereof annexed, directed 
 to defendant in his own name, "doing business under the name and style 
 -of," the acceptor, not fatally defective, 94 Ga. 408. 
 
 In suits against joint obligors, joint contractors, co-partners, joint tres- 
 passers, imakers aimd inldorsers -oC promiiBaory njotes, .drawers, aooeptors and. 
 -iiudorsers of hills of exc'hlanlge, or other like insitrum)e(nfts, tf any of the, 
 -defendants reside out of the county, the Justice shiall isau'e a second origi- 
 nal amd copy for suah otlher oounty or counties, and forward the same to' 
 ■ainy oouisitable Of the oounty wlhere suoh defeuidaiut may reBmiie, who shiall 
 .serve the Copy and return itfhe ®eoon(d originial wiEh ihife entry thereon to the- 
 .Juisti'oe before ■whom tflhe suit Is brought, §4121. 
 
 (f) Substitute "of said city"' for "of said district," if district wholly or 
 -partially in city of over 5,000 inhabitants, and defendant live in city, §4102.' • 
 
 It would see'm advisaJWle, from 61 'Ga. 133, that su'mmonB sihtouM describe 
 -dfifendant as beinig of said district, and in 69 Ga, 183, rediitlal in sumrn'Ous 
 "that defenidiant iwas a resideoit of th© district, coupldd wiitta. perslonal Bervjwe, 
 concluidsd' defendant,. amJd toe couHd mot by Illegality 'set up hisnion-resl- 
 •deu'ce. . Defendant mlay wiaive fact of toiis own non-tcesidence in distriet, 
 82 &a. 25; 65 Ga. 254; but moreily saying 'tio oonatable thiaJt hte waived juris- 
 •dJi'cti'on Hot sufiaoient, 86 Gav 482. In any dietfict through . wTiich a. rail- 
 road runs in a igiven doun/ty, an acti'on ftor killing ^bock iu that oounity will 
 lie, 96 Ga. 655. 
 
 (g) Under §4102, Notary may hold court at different time and place from 
 the J. P. of the district in cities of more than 5,000 inhabitants, 96 Ga. 770; 
 
 '95 Ga. 178. The place must be specified in the summons, §4116, and it must 
 ~be within the geographical limits of the militia district, 75 Ga. 881, and this 
 •■cannot be waived, although hon-residence in district can be, 82 Ga. 25, and 
 
AND PRAOTICE. 277 
 
 where levy aad claim was tried outside district with claimant's consent^ 
 judgment ffnding property subject was a nullity, and constable could not. 
 recover on claim bond, Ih.; of course, if the property had been sold under 
 the judgment, and claimant had attended the sale and seen an innocent 
 third party buy and pay for it, as was the case in 78 Ga. 54, claimant would 
 have been estopped, 16. Judgment is void if not rendered at regular court, 
 ground and on day court legally held, 70 Ga. 685; 76 Ga. 741. So where 
 rendered at justice's house instead of at court ground, 66 Ga. 595. Judg- 
 mient rendiered on court day at couj't ground, tout siigmeid lalter eilseiwheir©,. 
 moit void, 92 Ga. 378 r .however, "ithe betlter and propieir practice" 'i® to write 
 it out at 'Court gpoiund biefore lie ajdjourirs court, 81 iGa. 199. 
 
 (ft) Summons to appear March 27, served before that date, meant March 
 of that year, 84 Ga. 751. As to date of summons, court-day, etc., see note 
 (i) following. 
 
 (i) Under §4102, Notary may hold court at different time and place from 
 .ibh« J. P. of tihe disitrict in cities oif more thau 5,000 mhafbitaants, 96 Ga. 770; 
 95 Ga. 178; under Act of 1885, §4101, miay '•ho'iA from diay to day unitHl >bu!sl- 
 mess idiisposed 'Of, 79 Ga. 537; nldtwiithisitaiildtnlg that Justice publiBhes aldveo-- 
 tisement thait ihiis oouiit will ciontinue 15 dlays, 93 Ga. 224; as to judlgment 
 rendered 'om a day jotlher tham reigulaT dourt day, dedision 72 Ga. 705, was 
 rendered beifore Adt of 1885; furtlhiermiore, inifimiaition there itihalt in order for 
 justices' courts to hold a term lasting more than one day, times must be 
 fixed in advance, is disapproved, 79 Ga. 537. Under §4101, in order to suc- 
 cesfully attack a judgment rendered on a day other than regular court day, 
 it should appear that court did not sit from day to day or that its business 
 was disposed of before the day on which such judgment was rendered, or 
 that for some reason it was not in legal session, 91 Ga. 234. Again, these 
 facts must appear as to such a judgment, else it is a nullity, 89 Ga. 486. 
 §4118 only means that there must be not less than 15 days from date of 
 summons to court day, 61 Ga. 463. When, at defendant's request on court 
 day, case postponed 10 days judgment on day set, valid, 61 Ga. 463. In 
 computing the number of days "only the first or last day shall be counted," 
 
 56 Ga. 284; summons bearing date less than required number of days before 
 court day, is void, 56 Ga. 284, 59 Ga. 533; and continuing case on court day 
 Until later will not cure the defect, 59 Ga. 603; but appearance and pleading 
 will, since Constitution of 1877, 67 Ga. 487, though it would not before, 56 
 Ga. 283; 59 Ga. 534, 603; 60 Ga. 631, 466; 65 Ga. 557; 70 Ga. 794.* 
 
 (j) Failure of Magistrate to add "J. P." after his signature amendable, 
 
 57 Ga. 153;. copy summons served on defendant not, signed here, but h"e ap- 
 peared and plead, 53 Ga. 134. Removal of J. P. from district vacate's his 
 office. 20 Ga. 746; see also, §4064. Acts of de facto J. P., or other officer, 
 valid, 20 Ga. 749; de facto, one "who has the reputation of being," whether 
 actually officer in law or not, J&. Justice not disqualified because his wife 
 was cousin to plaintiff's wife, 84 Ga. 145. Judgment merely voidable for 
 kinship, 77 Ga. 46; see, generally, §4072 and notes. A Justice of the Peace 
 is a collecting lofficer, 5 Ga. 384, i. e., relatively to each claim, left with 'him 
 ("pro iiao vice" , 2 Ga. 56; ajid thbuglh hte (is a jud'ge, it is also Ms duty as a 
 collecting agent to see to the collection of processes in his court, 96 Ga. 
 
 *The bill introduced by Mr. Chapman, of Muscogee, and approved December 6th, 1897 
 amends §4118 by striking out the words, "shall bear date fifteen dijs before the time of the 
 trial of the ea;se," so that the section, as amended, reads as follows ; 
 
 " All summonses shall be served upon the defendant, either by giving him a copy of the 
 same in person, or by leaving such copy at his usual and most notorious-place of abode.'at 
 least ten days before the trial." Hence, summons need not now bear date 15 davs before court 
 
278 GEORGIA FORMS 
 
 165; he is liable to rule in Superior Court for money collected, 5 Ga. 384; 
 or If he "neglect to collect," 77 Ga. 552; or collude with defendant, 66 Ga. 
 228; if plaintiff does not appear he should not dismiss, but proceed with 
 trial and introduce note sued on, and may be ruled for not doing so. J6. 
 He cannot with his own money pay to plaintiff amount of fl. fa., and then 
 levy it (unless so stipulated), for it is then dead, functus offioio, 2 Ga. 53. , 
 But a J. P. is not subject to attachment for contempt as an "officer of" 
 the Superior Court, 54 Ga. 621. • '■ 
 
 Copy to be Attached in Suit on Note (a). 
 
 $50.00 Mmon,^ Qa., June 1, 1895. 
 
 Sixty days after date I promise to pay to the 'order of John 
 Jones Fifty dollars, for value receiyed, with interest from maturity 
 at tke rate of eight per cent, per annum, wi'th all oosis of collec- 
 tion, including ten per cent, attorney's fees. 
 
 William' Smith. 
 
 (a) Jurisdiction as to amount sued for, generally, and effect on, of attor- 
 neyis feeis in a note for JIOO.OO or thei^eiaJbouits, see niolteis to §§4068 and 4101. 
 Under the Act of 1883, §4134, defense to suits on notes, etc., must be made 
 at first term; case cannot ibe retupeneld by appeaA to jury, 85 Gia. 619; but 
 "defense" is "made" (see Act of 1891, §4135) whenever counsel's name is 
 marked on the docket, and other defense may be made later by amendment, 
 95 Ga. 714. Issuable defense on oath is not necessary to suit on note in 
 Juistioe's Court, 59 Gia. 774. Pleia of non est factum miust b© filed ait flnst 
 term, §4128, cited 91 Ga. 175; 79 Ga. 761; so must defense to unconditional 
 contract In writing, under §4134; and where such defense was allowed at 
 second term, but J. P. found for plaintiff, he could correct his error by 
 striking the plea on appeal to jury in his court, 91 Ga. 175; §4134 is im- 
 perative that defense to unconditional contracts in writing in Justices' " 
 Courts shall be filed at first term, 85 Ga. 619. Case in 85 Ga. 619, ruled that 
 a plea dould mot 'be fifed in a Jusltice COuTt exceipt it be in wriiting, 95 Ga. 
 715. Examine also 94 Ga. 648. General issue considered filed where case 
 answered at first term; marking counsel's name is answering, 88 Ga. 740, 
 90 Ga. 826; wlhere by mlisitake niagisitrate failed 'to mark clounisel's name, 
 judgmient enjoineid, 44 Ga.. 71. Tsfon est factum veriifl«id on imtormatlon and 
 belief, effect of, 77 Ga. 252; must be veiTifled, generiailly, by d'efendajit aaild 
 mat by an ajgent; exception, liif any, is in §5059, 88 Ga. 29. Joint makers 
 of a uat'e, only one of them sued, suit shiooilid be 'dismrsised where no return 
 of non est inventus ais to other maker, anid it d'oeis not appear tlhiat he Is 
 dead, 'see §§ 5009, 4562, 95 Ga. 38, 43 Ga. 587. That ntote and mortgage 
 oomlbined In 'oae paper niot n'ecessiariily an obstacle to suelng on note alone, 
 84 Ga. 274. Note conltaininig two promlseis, one to pay flxeid sum on day cer- 
 tain, other to redognize payee as lanidtord to estemt of 2,000 pounds Of OottOn, 
 form'er is "unconditional," lialtter condiiitionial; suiit on former alone may be 
 brought, It). That maker of note sued as guarantor not important, there 
 being no plealdings neoessairy in Justicete' Oourlis, 73 Gia. 739. Staitute of 
 limitation as to notes, see §3765, Note made on Sunday unless for work 
 of neoe'ssity or dhiarity void, 29 Ga. 527. So are dbligiatiiome to pay attorneys' 
 fe°B, unless plea filed and not sustained, §3667, 94 Ga. 563. 
 
AND PRACTICE. 279 
 
 Copy to be Attached in Suit on Account (a). 
 
 M<Kxm, Qa., July 17th, 1896. 
 
 Williwrn Smith to John Jones, Dr. 
 
 Jan. 1, 1895. To 10 lbs. Sugar $1.00 
 
 Jan. 15, 1895. To 1 oan Synap 40 
 
 Jan. 18, 1895. To 2 dozen Eggs 40 
 
 Jan. 23, 1895. To Coffee 35 
 
 Jan. 25, 1896. To 1 dozen Lemons 20 
 
 Jan. 26, 1896. To 1 peck Irish Potatoes 30 
 
 Jan. 27, 1896. To 2 dozen cans Condensed Milk 4.00 
 
 $6.65 
 
 Personally conies John Jones, who, being duly sworn, says that 
 the above account is just, true, due and unpaid. 
 
 John Jones. 
 Sworn to and subscribed before me, this 17th day of July, 1896. 
 J. H. L. Gerdine, N. P. m-d Ex-off. J. P. Bibb County, Ga. (6) 
 
 (a) Amount sued for, jurisdiction as to, see §4068 and notes thereto. 
 Original account sued on, lost, copy may be established instanter by plain- 
 tiff and ease proceed, 91 Oa. 234. Bill of ■partioulllaT's amendable, 86 Ciia. 17. 
 
 (&) As to attestation generally, see index title "Deeds." All affidavits 
 and counter-affidavits in legal proceedings are amendable; §5122, 94 Ga. 429, 
 Failure to add to jurat, after name of officer who administred the oath, 
 the officer's official designation is amendable, 93 Ga. 252. The jurat is 
 no part of an affidavit, 93 Ga. 252, "no part of the oath, simply an officer's 
 enifcry," 47 Gia. 95, aa'd miay be signed nunc pro tunc if it be proven thiaJt tihe 
 paper was in fact sworn to before him, 76., disapproving 8 Ga. 521. 
 
 As to suits on account generally: — Amendable by setting forth a written 
 contract explanatory of the items, etc., of the account, 93 Ga. 594, 721, 779; 
 or by adding "in writing," and annexing copy, 89 Ga. 349. Rule as to 
 mutual accounts, relatively to statute of limitations, see §3769, codified 
 from 80 Ga. 1. Dividing up debt to give Justice Court jurisdiction, see 
 §4069, and notes; whether legal, if done to get judgment before competing 
 attachment reduced to judgment, see 69 Ga. 136; so held, 60 Ga. 669. Sin- 
 gle open account for $187 not cut up to J. P. jurisdiction without debtor's 
 consent, 94 Ga. 549; it may be, however, with his consent, which is pre- 
 sumed from his not objecting, 16. Two suits on account against same de- 
 fendant to same term, involving same questions, should be consolidated if 
 whole amount not over $100, 65 Ga. 257; so as to five notes for ten dollars 
 each, 45 Ga. 96. J. P. may render judgment by default on open account 
 sworn to, when defendant personally served, 76 Ga. 634. Under Act of 1883, 
 §4130, where account sued on is sworn to, plaintiff is entitled to judgment 
 unless counter-affidavit is filed; for defendant cannot defend without 
 (iouiniter-affidaviies, 94 Ga. 648; counteir-affl'davit duly flied, plainltift not pres- 
 ent, J. P. must continue case, see §4130, et seq.; unsworn plea not sufficient; 
 neither is sworn plea, unless oath thereto be in writing, ^ Ga. 648. 
 
280 G-EOBGIA FORMS 
 
 Copy to be Attached in Suit foe Beeach of Contract. 
 
 S Maoon, Ga., July 17th, 1896. 
 WiUiann Smith to John Jones, Dr. 
 To. damages for breaoli of a contract of whidh the following is a 
 -popy (or, wticli was verbally madS; but was substantially 'as fol- 
 lows: — ) $50. 
 
 (Attacb oopy of the contract). 
 
 ' Copy to be Attached in Teover. 
 
 Macon, Q-a., July 17th, 1896. 
 Willmn Smith to John Jones, Dr. 
 To certain personal property, belonging to plaintiff, of whicb 
 
 deftodant wrongfully deprived plaintiff on tbe ' — day of , 
 
 1S9— , viz.. 
 
 One hay horse named Tom, six years old $75.00. 
 
 Justices' courts may hold to bail for all debts within their jiirisdiction 
 and to enforce the liability of bail under 'the same rules and regulations as 
 those which prevail on that subject in the Superior Courts; (see §4604), 
 and when a bail process is placed in the hands of a constable against one 
 who is moving about from one district to another, such constable may 
 follow such itinerant defendant, and serve the process in any district in 
 the county, §4124. 
 
 Copy to be Attached in Suit for Damages to Personalty.* 
 
 , . , _ . Maeon, Ga,, July 17, 1896. 
 
 Willioim- Smith to John Jones, Dr. 
 
 To damage done on tlie — day of' , 18 — , to ceiitain 
 
 personal property of the plaintiff, to wit: one red cote, 
 said damiage oonsdsting in shooting mvd hilling the 
 same $20 00 
 
 Actions for injuries to personalty shall be brought within four years 
 after the right of action accrues, §3899. 
 
 If- any dog, not being at the time on the premises of the owner, possessor, 
 or person having charge thereof, shall kill or injure any hogs, cattle, sheep, 
 goats, or other live stock, the property of any ether person, then anrl in 
 such case the owner or person possessing or having such dog in charge 
 shall "be liable to be sued, in any court having jurisdiction thereof, for such 
 damages as may have been sustained by the- killing or maiming of any 
 hogs, cattle, sheep, goartjs, or other live stock so killed or injured, §3822. 
 
 *The Constitution confines the jurisdiction of Justices' Courts over actions arising ex ddieto 
 '-'to eases (ff Injuries or damages to personal property" 62 Oa. 345, 69 Ga. 877, 81 Ga., 47^ 
 Hence they have no jurisdiction of damages to realty, 98 Ga. 626 (a leading case). A fence is 
 partof the realty ; so is unmatured crop ; hence justice court has no jurisdiction of suit for 
 damages against railroad for setting: fire to fence, crop, etc. lb. 
 
-AND PRACjnCE. 281 
 
 • The above will suffice for any action under §3822 for damages by a man's 
 dog to his neighbor's stock. Simply change the statement of' what the 
 damage consisted in, i. c, strika out the words in italics, "shooting and 
 killing," and insert "injuries done away from defendant's premises by 
 defendant's dog." 
 
 SUMMONS IN SUIT AGAINST RAILROAD FOR DAMAGE TO STOCK. 
 
 For a form for proceeding against a railroad for injuries to live stock 
 under §2254, which 'proceeding is much quicker than an ordinary suit (flva- 
 days notice only, being necessary), see p. 57, ante. 
 
 FOEM FOE EeTUEN OF SeEVIGE IN JuSTICES' CoUETS. (a) 
 
 Geoegia, Bibb County. 
 
 I liave this day served the defendant, (&) Willimn Smith, with a 
 copy of the within summons, by handing same to said defendant 
 ftimself (or "by leaving saone at Ms usual and most notorious place 
 of "abode.") (c) This 22d day of July, 1896. (d) 
 
 R. F. McGomen,, Constable. (4) 
 
 (a) Amending returns of constable, 79 Ga. 534; 77 Ga. 436; 76 Ga. 683; 
 oonistaibile's entry 'must be tnaveaiseid.at firsit term after n'otSce of it, if alt all,. 
 52 Ga. 134; see §4988. 
 
 (6) Illiteracy of a defendant is no excuse for not knowing contents of a 
 written notice served on him and making defense in due time, 86 Ga. 652. 
 
 (c) In suits on account, personal service must affirmatively appear, to 
 authorize default finding in favor of plaintiff without proof, 92 Ga. 405; 
 but illegality for lack of personal service not lie, a summons having been 
 left at defendant's residence, 64 Ga. 566; held here, that service at defend- 
 ant's residence^ even while he was out of town at bedside of sick wife^ 
 authorized default judgment by J. P., 96 Ga. 770; 95 Ga. 503. Firm sued, 
 return reciting that officer had served the partners, naming them, "each, 
 with a copy of this within writ and process," does not show that service 
 was personal, 92 Ga. 405. 
 
 (d) Under Act of 1885, §4992, summons served before court day named 
 therelin, ibuit tob liaite for 'tlhat courit day, goes over to the next term, las iw 
 Superior court, 90 Ga. 808; but summons falls if no legal service at all is 
 had before court day named therein, and court has no power to continue 
 in order to perfect service, 79 Ga. 532; but if service • short of time pre- 
 scribed, defendant may waive the defect, 67 Ga. 487. The law knows no. 
 fraction of a day, 59 Ga. 394. Service on Sunday is void, 12 Ga. 96. If last 
 day for service falls on Sunday, service on Monday following is too late, 
 57 -63.-244. 
 
 (e) Where J. P., at request of constable, who did not write a good hand,, 
 made entry for him in his presence at his dictation, entry good, 9 Ga. 325; 
 official acts of constable who has not given bond and taken oath not In- 
 valid, §242; so, as to not qualifying, 20 Ga. 336; 67 Ga. 726. J. P. fills va- 
 cancies in office of constable, §4085, and removal of J. P. from county nc^ 
 prevent bailiff appointed by bim, but who failed to qualify, from being 
 officer de facto, 67 Ga. 727, 
 
282 GEOEGIA TOBMS 
 
 General Jfote as to Service. — Justice should file papers returned to him by 
 
 constable aad preserve same, 84 Ga. 148, §4122; as to whether Justice's 
 docket should sh|ow service — held yes, 69 Ga. 190; held no, 76 Ga. 683; at 
 any< rate, omission to do so curable by Justice on his own motion, 69 Ga. 
 
 190. Service of summons, proof of, essential to admit judgment of J. P. 
 
 Court in evidence to establish plaintiff's demand In another court, 12 Ga. 
 
 424. As to service on defendants living in other counties, see §4121. 
 
 Subpoena. 
 
 You are hereby required to be and appear at the Justice's Court 
 for said distriot, a;t Mamnic Temple, Mulberry Street, Maaom, on 
 
 tie — day lof , 189 — , at — o'clock, — . M., then and there 
 
 to testify in the case of vs. . Hereof fail not, under 
 
 a penalty of $10. This — day of , 189 — . 
 
 J. H. L. 0-erdine, IST. P. and ex-off. J. P. 
 
 Maximum penalty for disobedience to subpoena, $10 fine, §4164. Sub- 
 poenla to .'be isierv^d on witoess three dajys before tlhe trial, -§4131. See also 
 the gienieral llaiw ;oif sulbipoenia, §5260. 
 
 Interrogatoriies, igemenal law lof, in hiigher courts, see §5297. In Juls)tioels' 
 Court tlhey need only hiave beten flleid five days, Inist^ad of ten, toefore com.- 
 misslion issueis, §4132. 
 
 RLiEJAiS ANlD DEFENSE. 
 
 The- defendant may appear at the time and place specified in the sum- 
 mons served upon him, and plead any matter of defense to the action, 
 which would be allowed to suits in the Superior courts, §4127. 
 
 All dilatory pleas, and pleas of non est facttim must be verified by the 
 affidavit of the defendant at the time of filing the same, §4128.* 
 
 All cases before a Justice of the Peace stand for trial at the time and 
 place designated in the summons, and shall be then and there tried unless 
 continued according to law, §4133. 
 
 Defense to unconditional contract in writing must be made at first term, 
 i§4134. See also notes to the form for copy to be attached in suit on a 
 note, ante. 
 
 Where suit is brought upon an open account in a justice court, such 
 account may be proved by the written affidavit of the plaintiff; and when 
 so proved shall be received In evidence as if it was proved in open court. 
 Neverthelss, if th defendant will file his written affidavit denying the jus- 
 tice and fairness of the whole or any part of such account, the court shall 
 not give judgment in favor of the plaintiff for that part of the account so 
 denied and controverted, unless supported by other proof, §4130. 
 
 Counter Affidavit to Suit on Account; §4130. 
 Personally com'es William Smith, ■w'ho being duly sworn denies 
 the justice and fairness of the whole (or, of a part, specifying what 
 part), of the foregoing account sued on by Johm/ Jones. 
 
 William Sunith. 
 Sworn to and subscribed to before .me 
 this — day of , 189—. 
 
 *A definition of " dilatory plea " will be found under " Pleas " hereinafter. See Index. 
 
AND PRAOTICE. 283 
 
 Svpgestions as to Trial. — Order of argument: See rules of Superior Court. 
 Contempt of Court: Justice's power to punish for, see §4082(2). 
 
 Trial suspended to give parties opportunity to settle, 'wiliich they fail to 
 effect, neither is entitled to notice when case will come up for trial, 93 Ga. 
 224. 
 
 Untler custom in Atlanta to OaJl'l docket on oourit 'diay to set litigiaited ctoses, 
 if, after such call, counsel make inquiry whether given case was called, 
 magistrate's reply, made while he was not presiding, not judicial, and coun- 
 sel take risk of its being correct, 91 Ga. 234. 
 
 Allowing leading question, largely within discretion of presiding magis- 
 trate, 73 Ga. 90; see also §5283; absence of counsel without leave, without 
 good reason to think he 'had, no obstacle to judgment, 79 Ga. 532. 
 
 FoEM FOE Judgment by Magisteate. 
 
 (To be entered on docket, not on original summons, 84 Qa., 148.) 
 
 Judgmen't is tereby rendered for plaintifF, John Jones, against 
 
 defendant, WilUam Sinith, for dollaTS principal, and 
 
 dollars interest to tihis date, (and all future interest on said 
 
 principal sum at tlie rate of per cent, per annum, and — — 
 
 dollars for attorneys' fees) (a) and costs of suit. This 1st day of 
 , August, 1896. J. H. L. G-erdMe, N. P. mid ex-off. J. P. 
 
 (a) When no interest is stipulated in the contract, or none greater than 
 seven per cent., the judgment may be silenit as to future interest. Only 
 where contract calls for attorneys' fees can judgment therefor be rendered, 
 and not even then unless a plea is filed and not sustained, §3667, 94 Ga. 563. 
 
 General Note on Judgments. — ^Sunday, disouissed, 12 Ga. 95, Lmmipkin, J., 
 delivering the opinion; judgment for want of a plea cannot be signed on, 
 12 Ga. 96. Failure to itemize costs on docket, though a misdemeanor, 
 Criminal Code, §§293-5, not invalidate judgment, 67 Ga. 728. Judgment on 
 docket need not be signed by J. P., 67 Ga. 727. Docket, not original sum- 
 mons, is where magistrate's judgment should appear, 84 Ga. 148, citing 
 §4082(6); docket ought to show, not only that judgment was taken, but 
 also itlhe fact and daJte lol service on dcifenidianit, 12 Ga. 425; service njot ap- 
 pearing, his court records do not show his judgment to have been valid. 
 It. Proper way to amend irregular judgment of Justice is by application 
 to his court in term time, 84 Ga. 149. As to whether judgment can be en- 
 tered on Justice's docket nunc pro tune, see §4082(6), and 86 Ga. 264. 
 Magistrate not liable for error of judgment unmixed with malice or cor- 
 ruption, 53 Ga. 675, and such malice not presumed against him, 48 Ga. 354. 
 Reopening case after judgment entered on docket, illegal, 64 Ga. 565. 
 Justice's court cannot grant new trial, 68 Ga. 455, 78 Ga. 322, 55 Ga. 410, 
 and may be restrained fw>m setting aside its own judgment, 54 Ga. 595; 
 justice, however, may disregard his own judgment if void, 55 Ga. 410. 
 
 Crosg-Referenoes: — Appeals to jury in Justice courts, see Code sections 
 4138-4141 and notes thereto; forms, practice and decisions, relative to, see 
 index, title "Appeals." Certiorari, petition, certificate, answer of Justice, 
 €)tc., etc., oonsuiH inldex, title "Oertior'arii," alsio §§4634 et seq. 
 
284 GEORGIA FORMS 
 
 FoEM FOE Magisteate's Fi. Fa. 
 
 State of Geoegia, Bibb County. 
 
 -664th DistTict, G. M. 
 Tc all and singular tlie constables of ^aid county-^Greeting: («■) 
 
 You are lioreby comniianded, That, of the Goods and Ohattels, 
 Lands and Tenements of William Smith, you oause to he made the 
 
 sum of dollars and — cents, for principal, and 
 
 dollars and cents, as interest to the ■ — day of , 189 — ,. 
 
 and all future interest -wlhioh John Jwws recovered against said 
 William Smith in our Justice's Court, held in aud for said distritet 
 and county, on the 1st day of August, 1896. Also the further 
 
 sum of \ ' ' ' ■ dollars and cents, for costs thereon, and all 
 
 further costs -that may accrue. And have you the -sadd sums of 
 ' momey, together with this executi'on, at the Justice^"s Court afore- 
 said, at the nesrt tea-m after said money can be lawfully made, (b) to 
 reoider iii siatisfaotion of said Debt and Costs. 
 
 Given under my hand and seal, this 7th day of August, 1896. (c) 
 
 J. H^ L. Gerdine, 
 ¥. P. and Ex-Off. J. P.' [seal] (d) 
 
 (o) iElmtry on execution by any "lawful ooniStajble laf said county," thougli 
 niot lof tlie piaritioulair di'sltr'ict, good, 87 Ga., 133: (for satme reason, nulla 
 bona retiurni on fl. fa. <by any constable of the county, will keep /?. fa. in date, 
 88 Ga., 177; so 'wiH lievy by any ®ucli tianBtaWe upon land, 82 Ga,, 431. 
 
 -(6) ■ TJnider Oode, 'section 5416, as to exoouti'onfe "retnmalble tO' iiie next 
 term" meiams tliat next tewn cifter th'e moniey cam "be lawfully miaide, 68 
 Ga., 349. 
 
 (c) 'August-lst, 1896, ifell on Saturday, and Sundiaye do not eo'unt, §4165. 
 On J. P.'s judgment, JuHy 26^11, execution slhould n'ot iBIsue until J^y 31st, 
 i. e. after itilie expiration of ttti© four daiys; issued JuHy 30tili, drregulair 'but 
 not void, 83 'Ga., 563. 
 
 (d) Every act of an officer eboiuld 'bear on its face evidienoeof liiis 
 official dbaraoter, 79 'Ga,, 550; tlius, if executiion be signeid by Officer oiierelly 
 indlividuallly, resistinig levy is not "oib'structin'g iegial process," lb. 'And 
 a/gain, miagiisitnaite failing to add "J. P." lafteir signature, receipt for costs 
 upon fi. fa., did mot keep same in d'a,te unider §3761, 96 Ga., 811; from entry 
 so signeid presiumiption 'is '\limt life w!as out of offi'oe, lb.. In iwhich case Ihe 
 ■would Kaye no autlh'Ority to make the entry, even by consent, 91 Oa., 148. 
 
 'CrosB-References to (Subjeobs 'Cognate to Eseoutions. — 'A'dventisem-emlt, 
 consult index, title "Executionls," sub-title "Saleis." Aliias fl. fa., whiere 
 originial lost, see §5115. Backinig exeoution's, see §4160, iand 94 !Gia., 670. 
 Claims see annotated forms postea; aSlso Cod'e §4611, et seq. Generiall execu- 
 tion docket of Superior OonTt, justice ctoiurt ©xeoultions should ,go on, §3762, 
 and for imCormiation as to, 'uin'der recording act of 1889, see §§2778, et seq. 
 'Homest'ead, affidavit ,by i>laintiff to sufbj'eot to levy, essentials of, see 
 §2850 and nioteis, 'see aHisio 'datoh-word "iJevy" in tli© 'General Note on 
 the subject. Illegality, affidavit of, to execution, forms land priactioe 
 
AND PRACTICE. 285 
 
 as to, consult diudex, tltile "Execuitliioins," aiDd §§4736-4742. (Levy, for de- 
 cision's as to rights land duities 'of levying offlcans, consult inld'ex, title 
 '"Sheriffs ; " for form and 'sufflcienicy of, see inldex, title "Esecutioms." - 
 
 APPEALS AND JURIES. 
 
 The law of appeals to juries In justice courts, as well as that of appeals 
 to the Superior court from those courts and from the other lower courts, 
 including the court of ordinary, being governed by the same general law, 
 it seemed utterly unnecessary to prepare appeal forms more than once. 
 Therefore, for forms pertaining to appeals, which subject is treated in 
 §§4453 et seq., consult index title "appeals." \[ 
 
 APPEALS TO SUPERIOR COURT. 
 
 Either party being dissatisfied with the judgment of the justice of the 
 peace or notary public, arid upon all confessions of judgment, provided 
 the amount clairiaed in said suit is ovei; fifty dollars, may, as a matter of 
 right, enter an appeal from said judgment to the Superior court within 
 four days (exclusive of Sundays) after'.lhe rendition of such judgment 
 as provided in §§4453 et seq. (which see), §4138. In such cases, defendant 
 jnust reduce his defenses to writing before the case proceeds to trial in 
 the Superior Court, if he relies on any plea other than the general issue. 
 But his right to amend his pleadings as in other cases, is preserved. §4139. 
 
 APPEALS TO JURY IN JUSTICE'S COURT. 
 
 In any civil case in a Justice's Court, either party dissatisfied with the 
 judgment of the Justice, may enter an appeal to a jury in said Court, or 
 in the Superior Court, "under the same rules as now regulate appeals to the 
 Superior Court. By consent of parties,- sueh a case may be passe'd to the 
 appeal, before judgment of the Justice, without giving bond for the event- 
 ual condemnation money. §4140. 
 
 No case appealed to a jury in one court shall be appealed to a jury in 
 the other court. §4141. 
 
 In any case referred to in this and the preceding section, appeals in 
 forma pauperis may take place. §4142. 
 
 All appeals shall be tried before the Justice and five jurors. §4143. 
 
 The jurors drawn shall try appeals in said courts, and shall be sum- 
 moned by the constable of the district or other lawful ofBcer, at least five 
 ■days before the court at which they are called upon to serve, and if there 
 should 'be a deficieincy of jurors at the trial from cause or abisienoe, thtei con- 
 stable, by direction of the court, shall complete the jury by talesmen to 
 nine, from whom plaintiff and defendant shall have two strikes each, 
 §4143. 
 
 Justice's Couet Jury Summons; §4143. 
 <jeoegia, Bibb County. 
 
 You are liereby summoned to appear at the Justioe's Court for 
 the 564th Militia Distri<jt, said county, at Mwsomc Temple, Mul- 
 berry Street, Macon, at 10 o'clock, A. M., on tftie — day of , 
 
 189 — •, to serve as a juror. Pail not, under penalty of five dollars. 
 
 Witness my official signature, this — day of , 189 — . 
 
 /. U. L. Gerdim, N. P. and ex-off. J. P. 
 
286 GEORaiA FOKMS 
 
 Justices of the peace have power to impose fines and issue executions 
 against defaultlns jurors. Said fine^ shall not exceed five dollars, and 
 shall be collected by the constable, unless the absentee by aexL, court files 
 his excuse under oath, or makes it in open court, to be passed upon ml 
 either case by the justice, §4146. 
 
 Oath of Juey; §4144. 
 
 "You shiall well and tnuly try thte caueeis depen'ding beitweeoi the 
 pai'ties at Variaa'cie, land a true verdict give according to equity and 
 the opinion you emtei'tain of the evidence produced to you, to the 
 best of your skill and knowledge, Avifihout favor or affection to 
 either of the parties, providing the case or cases shall not be witli- 
 dravrai from your consideration. So help you God." 
 
 Veedict. 
 
 We the jury, find for the pImnUff — • dollars principal, with 
 
 intea-est from the — day of , 189 — , at eight per cent, per an- 
 num. 
 
 This — day of , 189 — . M. C. Balkcom, Foreman. 
 
 When either party is dissatisfied with the verdict of a jury in any 
 appeal case, tried in the justice courts, he may apply for and obtain a 
 writ of certiorari, as provided in §§4634 et seq of the Civil Code, §4149. 
 
AND PRACTICE. 287 
 
 CHAPTER 2.* 
 OF ADMISSION TO THE BAK. 
 
 Application for Admission to the Bak; §4400. 
 
 Georgia, Bibb County. 
 To tihe Supeoior Court of said Oounty: 
 The peti'tion 'of A. B. Tespefdtifiilly stows: 
 
 1. That li© is a citizen 0(f the State of Greorgda. 
 
 2. ThaJt he is prepared to show, to the s:atiBfact4oii of tihe Court, 
 that he is of goiod moral character. 
 
 3. That he has, read law. 
 
 4. That he (has been a resident of (or, "has reiad law in") the 
 Macon Judicial Circuit. 
 
 Wheref or^e, he prays to be licensed to plead an'd practice law in 
 this State. 
 
 A. B. 
 
 CeKTIFICATE TO THE PETITION; §4401. 
 (To be signed by two attorneys of the court.) 
 
 We certify that the statements of fact in the foregoing petition of 
 A. B. are true. 
 
 Charles L. Bartlett. 
 Dupont Guerry. 
 
 Certificate as to Completion of Study; §5633. 
 Georgia, Bihb County. 
 
 I, B. M. Davis, member of the Bar of the Macon Circuit, do cer- 
 tify upon my personal and profesionial honor that A. B. has, under 
 my inistruiction and direction, 'satisfactorily completed the study of 
 some standard work on the several subjects upon which he is re- 
 quired by the Code of this State to be examined. 
 
 B. M. Davis. 
 
 [The " several subjects " (see §li02) are : (1) The principle.^ of the common and statute law 
 of England of force In this State. (2) The law of pleading and evidence. (3) The principles 
 of equity and equity pleading and practice. (4) The Code, the Federal Constitution, the State 
 Constitution, and the Rules of Practice in the Superior Courts.] 
 
 '[According to the arrangement of the Code, the subject of this chapter should properly 
 be " Superior Courts and their OCacers." But as the law pertaining to Sheriffs, Clerks, etc., 
 has been dealt with under various heads elsewhere in this book (see index), only the sub- 
 ject of Attorneys-at-Law imperatively demands recognition at this point. 
 
1J88 GEORGIA FORMS 
 
 Then follows the order of court, reciting that applicant has been examined in open court, 
 ■etc., an d authorizing the clerk to Issue to him a license to practice law. This order of things, 
 however, is to be suspended after August 1, 1898, by the Slaton Act, a,pproved Dec. 21, 1897, 
 which provides as follows : 
 
 1. From and after the first day of August, 1898, any male person desiring to become a 
 member ol the bar of this State shall make written application to a Judge of a Superior Court, 
 accompanying said application with the certificate described in section two of this Act. 
 
 Said applicant ehall submit to an examination in writing, which shall be prepared by the 
 Supreme Court, and said court shall determine upon the topics now provided by law, and 
 ■shall appoin t a time and place in each year, within its discretion, when said examination 
 shall be given. Said examination shall be conducted under the supervision of the Judges of 
 the respective Superior Courts, under such rules as the Supreme Court may adopt, and shall 
 be forwarded to the Supreme Court, who shall pass upon the merits of said examination and 
 upon the admission of the applicant. The applicant shall sign his examination by number, 
 ■and in a sealed envelope accompanying said examination shall state the number he has 
 adopted, eo that the name of the applicant shall not be known until after his admifsion or 
 rejection. - ' 
 
 2. Each candidate shall accompany his application with a certificate as to his moral char- 
 acter from two members of the bar. who shall further state in said certificate that they have 
 examined the applicant upon the various branches of the law and deem him qualified for 
 admission to the practice of the law. Said certificate of character and gualificaiion shall be 
 sealed and accompanied by the number assumed by the applicant, so that said name shall 
 not be discovered until after the grading of said examination. . , 
 
 3. (The Act does no.t apply to graduates of law schools of this State, nor to lawyers of 
 other States, which by comity admit to practice the duly licensed lawyers of this State.) 
 
 4. All male persons who have sucoesslully passed the examination, with a proper certifi- 
 ■cate from the Supreme Court to that effect, may be duly licensed to practice law in this State 
 upon taking the oath now provided by law, and may receive a license to practice upon pre- 
 sentation of sai^ certificate to the Clerk of the Superior Court of his resi(}ence upon payment 
 of the tee now jBbvided. 
 
 5. The Supreme Court shall ha^e the power to pass such rules as may be necessary to 
 ■carry into effect the provisions of this Act. 
 
 Oath of Attoeney; §4407. 
 
 " I, A. B., sweiar that I will jiistly amd uprightly demean myself, 
 acoarding to the I'aws, as an atitoTney, counselor and solicitor, and 
 that I "will suppofrt and defeaid the Constitu'tiion of the United States 
 and the CoiiBtiitution of the State of Georgia. So help me God." 
 
 FoKM OF License to Practice Law; §6633. 
 
 (This form is prescribed by statute, §5633, and hence there is no absolute necessity for-rc' 
 producing it here. Any one desiring to examine it can easily find it.) 
 
 Application foe Admission to the Supreme Court; §§4412, 5600. 
 
 To the Honorable Supreme COiurt of Georgia: 
 
 A. B., ha'ving been r'egulairly admitted and liioensed to practice in 
 the Superior Courts ocf this State, respectfully applies for admission 
 to the bar of this Court. 
 
 A. B., 
 
 Post-office laddress; '■ . 
 
 Atlanta,, Ga., -^ — dayof. -. ,189^. 
 
 Certificate. 
 
 We hereby certify that We know A. B., Esquire, personally, and 
 
 that his private and prafeBsional character is good. ' 
 
 ■ CD:! 
 
 Atlanta, Ga., day of , 189 — . 
 
 '(Next follows the order admitting applicant. For oath, see §5600 ; it is almost identical 
 with the oath prescribed by §4407, above.) 
 
AND PKACTICE. 289 
 
 SECOND TITLE. 
 SPECIAL RIGHTS, REMEDIES AND PROCEEDINGS. 
 
 CHAPTER 1. 
 APPEALS. 
 
 In all civil cases tried and determined by a county judge, or a Justice of 
 the peace, or a notary public who is ex officio a justice of the peace, and on 
 all confessions of judgments before either of said officers, where the sum 
 claimed is more than fifty dollars, either party may, as a matter of right, 
 ■en:ter an. appeal to the Superior Court, §4453. Except as to errors purely at 
 law, 86 Ga. 582. 
 
 An appeal lies to the Superior court from any decision made by the court 
 of ordinary, except an order appointing a temporary administrator, §4454. 
 
 Appeals must be entered within four days after the adjournment of the 
 ■court in which the judgment was rendered, §4455. 
 
 Sundays and holidays are not included in the computation of the time 
 "within which an appeal shall be entered, except that holidays are included 
 in the computation in cases of appeals from justices' courts, §4456. 
 
 When either party dies pending a trial, or after it, and before the expi- 
 Tation of the time within which, if living, he might enter an appeal, and 
 310 appeal has been entered, his legal representative may enter an appeal 
 within thirty days from qualification as such, otherwise, judgment may be 
 entered and execution issued without making the representative a party, 
 i§5023. 
 
 Appeal and Bond; §4458. 
 
 (State the case.) 
 
 And now, witMn tiie time allowed by law, comes William Smith, 
 and, being dissatisfied with the judgment in tbe above stated case, 
 enters tihis bis appeal to a jury in tbe Superior CouTt, (or, in said 
 ■court, if an appeal to a jury in a Justice Court is tbe subject mat- 
 ter), and tiie said Williain Smith, as principal, and tbe under- 
 signed Henry Thompson as security, bereby acknowledge tbem- 
 selves bound for tbe eventual cond emulation money in siaid cause. 
 
 Witness our bands and seals tbis — day of , 189 — . 
 
 Approved: William Smith, [L. S.] 
 
 Henry Thompson, [L. S.] 
 
 The appellant (except as hereinafter provided) shall, previous to appeal, 
 pay all costs accrued up to the time of entering such appeal, and give bond 
 for the eventful condemnation money, §4458. 
 
290 GEOEGIA FOEMS 
 
 Executors, administrators, and other trustees, when sued as such, or 
 defending solely the title of the estate, may appeal without paying costs, 
 and giving bond, but if a judgment be obtained against such trustee, and 
 not against the assets of tlm estate, he must pay costs and give security as- 
 in other cases, §4464. 
 
 If, upon the trial, any appeal, except from a justice's court, appear to 
 the jury frivolous and intended for delay only, they shall assess damages, 
 not exceeding twenty-five per cent, on the principal sum which they find 
 due, which damages shall be specially noted in their verdict; similarly, 
 in an appeal from a justice's court twenty per cent, damages may be 
 awarded, §4473. 
 
 Appeal by Pauper Affidavit; §4465.* 
 
 (State the case.) 
 
 Personally comes Willicun Smith and 'being dissatisfied with the 
 judgment in the above stated cause, enters this his appeal to a jury- 
 in the Superior Oouil;, (or, in swid court, if an appeal to a jury in 
 a Justice Court is the subject matter), and on oath says that he is 
 advised and believes that he has good cause of appeal, and that 
 owing to his poverty he is unable to pay the costs (or, "and that 
 owing to his poverty he is unable to give the security") required 
 by law in cases of appeal. 
 
 William Smith. 
 Sworn to and subscribed to before me 
 
 this — day of , 189 — . 
 
 An appeal is a de novo investigation. It brings up the whole record, and 
 all competent evidence is admissible on the trial thereof, whether adduced 
 on a former trial or not; either party is entitled to be heard on the whole 
 merits of the case, §4469. 
 
 An appeal suspends, but does not vacate judgment, and, if dismissed or 
 withdrawn, the rights of all the parties are the same as if no appeal had 
 been entered, §4470. 
 
 No person shall withdraw an appeal after it shall be entered but by the 
 consent of the adverse party, §4471. 
 
 When an appeal has been entered in the court of ordinary, the ordinary 
 shall transmit the same to the clerk of the Superior court at least ten days 
 before the next Superior court, §4467. 
 
 So, as to justices' of the peace. But nothing herein contained shall deny 
 the right of certiorari, when the amount is less than fifty dollars, §4468. 
 
 GENERAL NOTE ON APPEALS. 
 
 Appeal lies upon a confession of judgment, 94 Ga. 450. The point here 
 made was that where one confesses judgment he is not dissatisfied there- 
 ■with, within the meaning of the law, 16. Such appeal, where claim is over 
 
 *The bill introduced by Mr. WhitRlcer, of Heard, and approved Dreecmber 21, 1897, ataends 
 §4465 by striliing from the tliird and sixth lines thereof the word " and," and inserting in 
 lieu thereof the word " or," and by inserting between the words "security," and " as," in the 
 last line thereof tlie words "as the case may be." 
 
AND PRACTICE. 291 
 
 fifty dollars,- lies either to jury or to Superior court, lb. Judgment may 
 be confessed even after case submitted to jury, 5 Ga. 298. 
 
 A consent appeal "is equivalent to a confession of judgment by the 
 movant in favor of his adversary reserving the right of appeal," 13 Ga. 
 181-2; (NiEbet, J.) 
 
 Appeal by consent customary practice, and applicable to justices' courts, 
 61 Ga. 210. 
 
 Appeal by consent allowable without paying cost or giving bond or 
 making pauper oath; appellee waives them, 10 Ga. 426. 
 
 Where a magistrate errs in requiring attachment or garnishment bond 
 strengthened, the law makes no provision for appeal to the Superior 
 court; certiorari is the remedy, 73 Ga. 542. 
 
 The case of E. Wltkowski vs. B. Skalowski, ceriioraried to the Superior 
 Court of Bibb county from the 710th District, G. M., decided in 1872, is 
 ODe of the earliest rulings upon the law laid down in §4453. Counsel for 
 Skalovi'ski moved to dismiss Witkowski's certiorari upon the ground that 
 the sum involved in the original suit exceeded fifty dollars, and that there- 
 fore appeal and not certiorari was the remedy, (question of fact being in- 
 volved). The Superior court sustained the motion and the Supreme court 
 affirmed its judgment, 46 Ga. 41. 
 
 The same thing occurs in 53 Ga. 569. If the only question involved is 
 a question of law which must necessarily control the case, then a proper 
 remedy is by certiorari, i&. 
 
 Amount claimed less than fifty dollars, judgment of Superior court dis- 
 missing appeal was correct, 61 Ga. 74. 
 
 In cases involving more than fifty dollars, and resting solely on ques- 
 tions of law, certiorari lies; if facts involved, appeal lies; 63 Ga. 742; 69 
 Ga. 745, 842; 70 Ga. 723; 72 Ga. 184; 79 Ga. 680; 86 Ga 542. 
 
 But in 91 Ga. 277, Bleckley, C. J., makes this distinction, viz., that 
 "where the judgment appealed from does not turn the case out of court," 
 appeal lies, "although as matter of election the losing party might have 
 brought certiorari had such been his preference." 
 
 In suit in justices' court for $49.25 principal alleged to have become due 
 more than a year before the suit, appeal lay, 68 Ga. 831. The interest is 
 as much a part of the claim as the principal; 64 Ga. 696. "In defining the 
 jurisdiction (of justices' courts) it is the principal sum claimed, but In de- 
 fining the cases in which there may be an appeal to the Superior court, 
 it is * ■* * the sum claimed, * * * whether principal and interest or other- 
 wise," 62 Ga. 611. 
 
 Special contract sued on, "writing off" in the justices' court, to defeat 
 defendant's appeal, not allowable, 64 Ga. 696; aliter, had suit been for 
 damages for breach of the contract, lb. See also, 73 Ga. 112. But compare 
 63 Ga. 744. And examine 58 Ga. 77, 60 Ga. 155. 
 
 Where judgment of Superior court dismissing an appeal carried to Su- 
 preme court. It must affirmatively appear that the amount Involved was 
 over fifty dollars; hence where the record entirely failed to show what 
 the amount involved was, the Supreme court could not reverse the judg- 
 ment, 55 Ga 410. 
 
 Bond imth security a prerequisite under §4458. Hence, where magistrate' 
 transmitted appeal papers to Superior court before security signed the 
 bond, appeal dismissed, 94 Ga. 453. 
 
 Appeal a nullity where surety on appeal bond same as on original re- 
 plevy bond. 93 Ga. 445. 
 
292 . GEORGIA FORMS 
 
 Appellant prevailing, surety protected though not appealing, 18 Ga. 38. 
 Pending appeal by one of two joint defendants, execution cannot issue 
 against other; and if plaintiff's case dismissed on appeal, both defendants 
 take the benefit, 69 Ga. 752. 
 
 The "condemnation money" for which the surety on appeal is liable Is 
 that which is recovered in the identical case in which the appeal is taken, 1 
 Ga, 72. If, (by rea&oin of Injunjction!, death or oitSher cause, no trial of the 
 case is or can be had as to the appellant, the surety is not subject for a 
 breach of his bond, 84 Ga. 108. The surety is entitled to stand upon his 
 contract, 38 Ga. 224. 
 
 The constitution gives the right of appeal, (§5847), and the statute regu- 
 lates its exercise, (§§4453 et seq) ; §4468 makes it the duty of the justice of 
 the peace to transmit the appeal to the clerk of the Superior court at least 
 ten days before tihe next tenm, but Ms failure to dio so will mot deprive a 
 party who has duly entered an appeal of the benefits thereof, 59 Ga. 599. 
 The cases in 59 Ga. 103 and 68 Ga. 194 merely re-aflirm this. 
 
 Appellant must watch Ms appeal; where, after long neglect, clerk dock- 
 eted appeal, no order or notice was necessary, and injunction against judg- 
 ment was properly refused, 89 Ga. 779. 
 
 Plaintiff dismiissang his case lin iSiuperlor oouTt cm appeal, and suing 
 again (as he may do under §5043), plea of res adjudicata demurrable, 81 
 Ga. 73. Appeal dismissed or withdrawn, rights of all parties are the same 
 as if no appeal had been entered, §4470; but there is a difference between 
 dismissing the appeal and dismissing the case, lb. 
 
 Absence of appealing defendant no ground for dismissal of his appeal, 
 and Superior court here erred in holding otherwise, 77 Ga. 649. 
 
 Where judgment absolute forfeiting recognizance in county court was 
 appealed from, securities could show that since such judgment the prin- 
 cipal had been tried in the county court and acquitted, 77 Ga 4; and, gener- 
 ally, upon the proposition that an appeal is an investigation de novo, see 
 notes to §4469. 
 
 "Where defendant appealed to a jury in a justices' court, and afterwards, 
 within the four days, plaintiff appealed to Superior court, former took 
 precedence; 72 Ga. 253. 
 
AND PRACTICE. 293 
 
 CHAPTER 2. 
 ARBITRAMENT AND AWARD. 
 
 Common Law Award will be found in §§4474-84; Statutory Award in 
 §§4485-4509. 
 
 The practical difference between statutory and common law award, in 
 the matter of procedure, is the comparative informality which is consistent 
 in tffe latter, with validity as between the parties. 
 
 Not exceeding |500 involved, submission and award may be verbal, 
 except submissions by trustees, §4476. But verbal submission illegal where 
 more than $500 worth involved, 35 Ga. 176. Verbal submission revocable 
 verbally at any time before award, 15 Ga. 473. Verbal submission of dispute 
 as to damage to flour, according to custom with railroads and merchants in 
 Macon, too loose to be effectual, arbitrators not being sworn and not exam- 
 ining any witnesses, 57 Ga. 336. Award tfeed not be under seal, where sub- 
 mission merely directs that it be In writing, 8 Ga. 8. Not Imperative, under 
 common law award, as it is under statutory, to furnish parties with copies 
 of award, 31 Ga. 3. Under general submission, arbitrators are bound to 
 dedide onily fh'ose tmalttars brouglht to thedr iconBiderlaJtiou by it!he piarties; 
 §4478. And ■fSh.ey sihould n'ot exceed tlheir aiuthoriity; §4477. iPl&a. CUat 
 they did, in am action on a common law awiar^d, goad; 54 Gla. 500. If they 
 exceed iauitlhoT'ity, their :arwaird in a pemdinig >ca8'e, tlhouigli made judgment 
 of coort, may 'be set aiside as Void tor want of juriisdictian, like amy otiher 
 judgment; 55 Ga. 167. iPresfUimed prime facie, 'hiowever, tlhlat miaJtters de- 
 cided by arbitraitors were ibrouglht to tlheir Ootnaiider'ation; 73 Gia, 92. Under 
 common law award, any number of arbitrators will do, while under statu- 
 tory, there must be three, §4485, 76 Ga. 517. Umpire provided for in sub- 
 mission, award by him alone, or jointly with arbitrators, good, §4481. 
 Award signed by umpire alone, or by him and one arbitrator, good, 73 Ga. 
 92. He must give notice of his sittings, 28 Ga. 140. Arbitrators disagree- 
 ing, umpire not limited by submission here to their differences, but his 
 duties extend to all questions submitted, 8 Ga. 8. He need not give his 
 reason, n. Award should cover all matters submitted, and should be ren- 
 dered in accordance with the terms of the submission, §4477. Still, if it 
 cover all matters actually in dispute, it is good, 8 Ga. 8. If it covers too 
 much, the good portion, if separable, Is valid, §4477. If defective in part, 
 valid part, if separable, stands, §4480. It must be certain and final, possi- 
 ble and reasonable, §4479. Award conditional and uncertain here, 69 
 'Ga. 113. Pending litigation is referable to arbitration under consent 
 order; aiward to 'be mlade judgmient of court, §4482. But SiUibmission 
 without order, good, 15 Ga. 473; 61 Ga. 162; 64 Ga. 592. No order necessary 
 to make award pending suit the judgment of the court, 76 Ga. 522. Refusal 
 here to make so-called award the judgment of the court was proper, there 
 being no case pending, 57 Ga. 176. No unfair advantage allowed; palpable 
 m'istoke of law, lor reference to clhance or Mt, vitiiates awai^d, §4483. Awards 
 favored, 34 Ga. 560, and set aside only in clear case, 64 Ga. 592. Mistake, 
 whether of law or fact, must be gross and palpable; mere error of judg- 
 ment is not enough, 47 Ga. 22; 41 Ga. 10. Error of law here did not vitiate, 
 54 Ga. 252. To set aside award as contrary to evidence, must set forth all 
 the evidence adduced and show that it was all, 47 Ga. 10. Same rule ap- 
 plies as in grant or refusal of new trial, lb. Award generally final on 
 
294 GEORGIA FORMS 
 
 questions of law submitted; aliter if it show on its face tliat they acted on 
 misapprehension of law, 8 Ga. 8. See also 28 Ga. 399; 27 Ga. 314. May- 
 be set aside for mistake not apparent on face, 25 Ga. 264. Award set aside 
 for fraud in arbitrators, or either party, in obtaining it, §4484, and notes. 
 Arbitrator, like juror, cannot impeach his findings, 47 Ga. 10. On motion 
 to set aside award by umpire, acts of arbitrators not inquired into, 16. 
 
 Submission to Arbitration ; §4485 et seq. 
 
 Georgia, Bibb County. 
 
 This 'agreement, made this the — day of , 18 — , between 
 
 John Jones, of the county of ■ , said State, of the one part, and 
 
 WUliam; Smith, of the county of , said State, of th© other part, 
 
 Witnesseth, That certain differences have arisen between the 
 aforesaid parties, by reason of the rejection by the said William 
 Smith of twenty oar loads of corn which the said John Jones had 
 procured to be shipped from Kansas City to Macon at the instance 
 of the said William Smith, said Smith having undertaken at the 
 time he ordered said com to pay for the same on delivery at the 
 
 rate of . Said John Jones contends that said William Smith 
 
 is liable to him in the sum of , being the difference between 
 
 the said sum of ■ dollars and the price at which said com was 
 
 finally disposed of after the said William Smith rejected it. The 
 said William Smith rejected the said corn upon its arrival at 
 Macon for the reason that, as he contends, its arrival was unrea- 
 sonably delayed, and the market had gone down between tihe date 
 when said com should have arrived and the date of its arrival; 
 and for the further reason, that, as he contends, said com was in 
 a damaged and "weevily" and utterly worthless condition when 
 it arrived. 
 
 The said William Sm/ith further contends that if he is liable to 
 the said John Jones in any amount, whidh he denies, still he is 
 not liable for the full amount claimed, because said John Jones 
 should have sold said corn immediately after its rejection for the 
 best price obtainable; whereas, in fact, he received several offers 
 better than "the one Which he finally accepted. 
 
 Now, in order to adju^ said differences lih© parties do hereby 
 submit the same to three arbitrators, viz. : to James Brmon, chosen 
 by the said John Jones; to Henry Thompson, chosen by the said 
 William Smith, and 'to Walter Henderson, chosen by the arbitra- 
 tors selected by the parties. 
 
 This submission, when signed, shall be delivered to one of the 
 arbitrators chosen by the parties, and shall then be irrevocable. 
 
AE^D,PRAOTIGE. 295 
 
 The award made hereunder shall be entered on the minutes of 
 the superior court of Bill) county according to law, and shall have 
 all ih© force and effect of a judgment or decree of said court. 
 
 Witness our hands and seals, this the day of , 18 — . 
 
 John Jones. [l. s.] 
 
 William Smith. [l. s.] 
 
 statutory isubmissjon must be in writing, §4486. Debtor's contract with 
 Jiis creditor for sale of certain merchandise, same to b« credited on ac- 
 count, stipulated that if they disagree as to value, assessors should deter- 
 mine same; held, not a submisislon, but a sale, and no writinig prerequisite 
 to the assessment, 74 Ga. 759. Submission should contain clear and ac- 
 curate statement of matters in controversy submitted, and any other per- 
 tinent matter. Submission should contain names of arbitrators chosen by 
 the parties, §4486. Third arbitrator's name is inserted by the two when 
 they have chosen him, §4488. Under staitutory submission, three arbitra- 
 tors necessary — parties choosing two and they the third, §4487. Where the 
 three were empowered to call in a fourth, the award was not a statutory 
 one, and could not be made judgment of court on motion, 57 Ga. 176. So, 
 submission to seven arbitrators not statutory, 51 Ga. 558; and if not s'tatu- 
 ■tory, submission is revocable any time before award made, 27 Ga. 368. 
 Under act of 1859, §4501, award by two of three arbitrators valid; aliter in 
 1858, 26 Ga. 249; 31 Ga. 589. Fact that submission nowliere provided that 
 award was to be made -the judgment of the court, indicated that it was a 
 mere common law submission which can only be the foundation of an ac- 
 tion, 47 Ga. 477. Test whether parties Intended to submit to statutory arbi- 
 tration is whether details of statute have been followed, J6. Submission 
 «hall be signed 'by the parties or their agents and delivered to one of the 
 airbitrators ctiosen by the parties; it is then Irrevocable, §4486. A common 
 law submission, on the other hand, is revocable at any time before the 
 -award, 27 Ga. 368. 
 
 SuBMissioisr Pending Suit. 
 
 This form may be substantially the same as the foregoing, with two 
 ■changes: 
 
 1. Ajfter the Tvords "finiaflly accepted," line 26, Insert, "This referemse is 
 made pending a suit in the superior court of BiBS county, brought by said 
 -John Jones against said William Smith for the recovery of the amount 
 claimed as above stated." 
 
 2. In lieu of the last paragrapih, substitute the following: "The award 
 made h'areuinder shall Tie returned into the OOTint where said suit is pend- 
 ing as aforesaid, and shall there be made the judgment of the court, as 
 provided by §4509 of the Civil Code." 
 
 Submission may be made pending suit without order of court, 64 Ga. 582. 
 Submission pending suit comes under Act of 1799, §4509, and not under Act 
 •of 1856, §4496 et seq., and it is error to order award pending suit entered on 
 jninutes without first hearing and determining validity of exceptions 
 thereto, 25 Ga. 65. See also annotated form for order, hereafter under the 
 Act of 1856, known as the Statutory Award. 
 
296 GEORGIA FORMS 
 
 Notice by the Arbiteators to the Parties; §4489. 
 
 Georgia, Bibb County. 
 
 To John Jones mid WilUmm Smith: 
 
 Take notice tliat we, the undersigned, will meet at the Chamber 
 of Commerce, on Cherry street, in tihe city of Macon, on the — 
 
 day of next, at tlie tour of ten o'clock a.m., for the purpose 
 
 of ihearing and passing upon the differences 'between you ooncem- 
 ing the rejection of certam cars of com, wMcii said differences- 
 were lately submitted by you to us as arbitrators. This the — 
 
 day of , 18—. 
 
 James Brown, 
 
 Henry Thompson, 
 
 Walter Henderson, 
 
 Arbitrators. 
 
 Parties shall have ten days' notice of time and place of meeting, §4489.. 
 But this, like service of process In ordinary suit, may be waived by appear- 
 ance, 52 Ga. 659. Appearance Waives notice, 71 Ga. 860. Arbitrators must 
 be furnished with list of witnesses within ten days, §4490. Successor to- 
 absent or disqualified arbitrator chosen just as he was chosen, §4491. 
 
 Arbitrator's Oath ,• §4492. 
 
 Georgia, Bibb County. 
 
 We do swear impartially to determine the matters submitted to- 
 us by John Jones, of the one part, and William, Smith, of the- 
 other part, according to law and the justice and equity of the case,, 
 without favor or affection to either party, so help us God. 
 
 Sworn to and subscribed by James Brow,n~\ 
 
 before me, Henry Thompson, one of the I j- -r, 
 
 u-i i i.\.- iu A ( iQ r James Brown. 
 
 arbitrators, this the — day oi — , 18 — . 
 
 Henry Thompson, Arbitrator. J 
 
 Sworn to and subscribed hy Henry Thomp-^ 
 
 son and Walter Henderson before me, | Henry Thompson, 
 James Brown, one of the arbitrators, ^ 
 this the — day of — , 18 — . j Walter Henderson. 
 
 James Brown, Arbitrator. J 
 
 §4492 prescribes the oath ana authorizes arbitrators to swear each other.. 
 Oath taken not that prescribed, award set aside, 78 Ga. 559. Arbitrators- 
 Should be impartial; "It is a misconception of the relation of arbitrators to- 
 consider one of them as being the arbitrator of one party, and the other 
 the arbitrator of the other party," 78 Ga. B68, quoted and followed 95 Ga. 419.. 
 
AND PKAOTIOE. 297 
 
 Award. 
 Georgia, Bibb County. 
 
 "We, the undersigned arbitrators, to Wlioni were submitted the 
 diflferences between John Jones and William Smith arising out 
 of the rejection by scuid S'mith of certain cars of corn, berewitli 
 return our award. 
 
 Upon delivery of the artidles of submission to the arbiti'ators, 
 they met, and appoiat^ a time land place of heaning, of which due 
 and legal notice was given to the par ties 
 
 On the — day of , 18 — , pursuant to said notice, the hear- 
 ing was had. After hearing the evidence and considering the 
 matters submitted to us, we find: 
 
 (1) That said corn arrived without unreasonable delay, and 
 that William Smith was not justified in rejecting the same be- 
 cause of delay, as clmmed. 
 
 (2) That said com was not in a damaged condition when it 
 arrimd, but loas in good marketable condition, and that said 
 William Smith was not justified in rejecting it because of it» 
 condition. 
 
 (3) That said Jolvn Jones did, in fact, receive a better offer 
 for said com than that of the Jaques-Tinsley Company, made on 
 the 10th day of January, 1896, which he finally accepted. We 
 find that the said John Jones should not have longer held said com. 
 after receiving the offer of Adams & Harper, made on the 5th 
 day of January, 1896, but should have accepted the same. 
 
 We, therefore, find in favor of eaid Joh/n Jones against said 
 Willia/in Smith the difference between the price originally stipu- 
 lated, to wit: — dollars and the said price offered by Adams & 
 Harper on the day of the rejection, to wit: — dollars, together 
 
 with the following costs, to wit: , and $10 to each of 
 
 the arbitrators, that amount having been agreed upon by the parties 
 as reasonable and just prior to the hearing. 
 
 James Broton, 
 Henry Thompson, 
 Walter Henderson, 
 
 Arbitrators may tax the costs against edtlier party, §4506. See also §4508.. 
 Amy twio ai'bitrait'ors may make an arvrard; §4501. Oonsenit to go on before 
 two arMtrators at flrsit mieeitimg is 'waiver of. albsence of third, 44 Ga. 
 585. Arbitrators shall furnish each party with copy of their award, §4502. 
 But this is directory only, and may be waived by conduct, 41 Ga. 10. Not 
 required at common law, 31 Ga. 3. Arbitrators shall return original award, 
 which being entered on the minutes of the court, has force and effect of 
 
298 GEORGIA FORMS 
 
 judgment, §4502. For objections, - how pleaded, etc., see §4504. Award is 
 returnable to nejrt term of superior court, even though, next term be an 
 adjourned term, 40 Ga. 273. 
 
 Order; §4502. 
 
 The foregoing award read and considered, and u^TOn motion of 
 John Jones, 
 
 It is ordered that tlie same be received, and entered by tbe 
 clerk upon the minutes of the court, as provided by law. 
 
 This — day of ■ , 18—. 
 
 W. H. Felton, Jr., 
 
 J. S. 0. M. 0. 
 
 Foregoing order is proper under that section of tlie Act of 1856 embraced 
 in §4502. Under the said act (§4486 et seq.), governing awards where no 
 suit is pending, award goes on minutes as an original award, and excep- 
 tions heard later, 69 Ga. 710. While under Act of 1799, §4509, governing 
 submi'ssaons pending suit, award goes om; mlimit^s upon motion heard and 
 .granted, as a judgment, and exceptions should be considered before judg- 
 ment is entered up, 25 Ga. 65. 
 
 A submission made when no suit Is pending must follow our statute in 
 order for the award to be made the judgment of a court; judgment making 
 common law award the judgment of the couift, void for want of jurisdic- 
 tion, such an award, unlike the statutory one, being only the foundation 
 lor an action, 47 Ga. 478. 
 
 Award in pending suit shall be entered on the minutes of court where it 
 is pending; no suit pending, entered on minutes of the superior court of 
 county where losing party resides, if a resident of this State; otherwise, 
 in county Where award made, §4503. Award must be entered on court 
 minutes la proper county, else judgment void, 61 Ga. 72. So, ft. fa. from 
 Baker county, based on award made in Dougherty, was held void, 68 Ga. 
 157. So much of award as exceeds authority submitted, may be rejected as 
 surplusage, 33 Ga. 476. Award here void for uncertainty, 69 Ga. 101. 
 
 Exceptions to Award, (a) 
 
 John Jones ^ Submission to arbitration. 
 
 vs. > A. ward returned to Bibh Superior Court, 
 
 William Smith.) ISTovember term, 1895. 
 
 And now comes William Smith, at the term to which the above 
 stated award was returned, and on oa«tli says that the said award 
 was the result of accident (6), for the following reasons, to-wit: (c) 
 
 Wherefore, deponent prays that the said award may be vacated 
 and set aside, as provided by law. 
 
 Sworn to and subscribed before me, this — day of , 18 — (d). 
 
 William Smith. 
 
 (a) Award entered on minutes, either party may suggest, on oath, at term 
 to which it is returnable, that it was result of accident, or mistake, or of 
 
AND PRACTICE. 299 
 
 fraud, in. some one or all of the arbitrators, or parties, or is otherwise ille- 
 gal; isisue tried ajs appeals at term suggestion is made, §4504. Less latitude 
 is allowed in attacking statutory than common law award, 28 Ga. 399. Con-^ 
 tpa'ct 'sibipulation tlhat an award shiaiU be con-elusive, not a waiver of right 
 of appeal, because such waiver contrary to public policy, 49 Ga. 266. 
 
 (6) Award not set aside on ground of a "legal accident" where not 
 alleged in what particular it occurred, 43 Ga. 193. 
 
 (c) Exceptions to award must be specific, 38 Ga. 135; else demurrable, 63 
 Oa. 752; 86 Ga. 337. Not sufficient to state in general terms that the award 
 Is the result of accident, mistake or fraud, or is generally illegal, 41 Ga. 
 370; 74 Ga. 399. However, such a defect is curable by amendment, 39 Ga. 
 '678. For fraudulent concealment of material testimony from arbitrators, 
 award may be set aside, 27 Ga. 314. Or even for mistake of fact in allow- 
 item of an account, though such mistake not apparent on face of award, 
 25 Ga. 264. Award not set aside merely because contrary to the weight 
 of the evidence, 64 Ga. 582; 42 Ga. 495; 73 Ga. 731. Award on disputed 
 ipoirtt loif law ibiniding, thoiugli erroneous, 54 Ga. 252; 41 Ga. 10. So<me ex- 
 ceptions prima facie good, and well pleaded, general demurrer .to them all 
 overruled, 78 Ga. 557. 
 
 (4) Objections to award must be on oath, §4504; else demurrable, 59 Ga. 
 459; 76 Ga. 692. 
 
 General Note. — Objections to award should be accompanied by all the 
 evidence introduced, 59 Ga. 459; 86 Ga. 337; 76 Ga. 692. It must appear that 
 evidence set forth is all that was submitted, 47 Ga. 10. So, in Supreme 
 Court, 50 Ga. 641; 44 Ga. 585. AUter where questions purely of law are 
 raised, 69 Ga. 114; e. g., .where motion to set aside was based on partisan 
 conduct of one arbitrator, 95 Ga. 418. Arbitrator's impeaching award analo- 
 .gized to juror's impeadhing verdict, 28 Ga. 399. Unfair advantage to either 
 party, forbidden, §4483. If shown, injury presumed, 90 Ga. 671; 95 Ga. 419. 
 Handing newspaper containing market quotations, after evidence closed, 
 unfair, 78 Ga. 557. Guardians, trustees, executors, administrators, may 
 submit estaite matters to arbitration, §4475. So may an attorney, without 
 iis client's consent, 31 Ga.,3. Minors cannot bind themselves by arbitra- 
 tion ; lapipodnitimg gulardian ad litem after the submission. Ineffectual, except 
 by chancellor, where suit is pending to which the minors are parties, 41 
 Ga. 23. 
 
300 • GEOEGIA FORMS 
 
 CHAPTER 3. 
 ATTACHMENTS. 
 
 AETIOLE 1. 
 Obdinary Attachmekts. 
 
 Ordinary Attachment Affidavit; §4510-11, 4529. 
 Georgia, Bibb County. 
 
 Before me, the subscriber, a Notary Public and Ex-Offwio 
 Justice of the Peace in and for said county (a), personally appeared 
 John Jones (b), and, on oath, says that William (Smith (c) is (d) 
 
 indebted to him (e) in the sum of (/) dollars and — cents (g)^ 
 
 and tbat the said William Smith (h) resides out of the State (t). 
 
 Sworn to and subscribed before me this the — day of ,. 
 
 18 — ■ (k). John Jones (J). 
 
 J. H. L. Crerdine, 
 N. P. d Ex. Off. J. P. (I) 
 
 (o) May be before any superior or county court judge, or any J. P. or 
 N. P., Ex-Officio J. P., §4511. The amendment to this section enacted 
 in 1893 put an end to the issuing oi attachments by commercial notaries. 
 The statutq containing no special requirement as to officer's residence, 
 officer of one county may issue attachment returnable to the courts of 
 another county, 36 Ga, 598. 
 
 (6) "Harman" in body of affidavit signed by "Herman" idem sonanSy 
 3 Ga. 266. Surety or endorser may have attachment against his prin- 
 cipal, §4525. Affidavit must allege fact of securityship, and payment by- 
 surety, or pendency of suit, or liability not yet due, 18 Ga. 283. Any 
 partner may make the affidavit where debt Is due to his firm, §4513. 
 
 (c) Ordinarily, attachment will not lie against one partner for a part- 
 nership debt, to be levied on the partnership property, since in such case- 
 the firm, not the individual, is the debtor, and since action against partner- 
 ships must be joint, 8 Ga. 532. Aliter, where resident defendant only sur- 
 vivor, 76. Attachment lies against one joint debtor for a joint debt, where 
 both joint debtors reside out of the State, 17 Ga. 625. Where any one of 
 several joint contractors or co-partnera- renders himself liable to attach- 
 ment, attachment may issue against him, but shall be levied only on his- 
 separate property, §4522. And where attachment issues against a non- 
 resident partneir, dedlariation need not .be againBt both partners, the aitltach- 
 ment, of course, being leviable only on defendant's separate property, 
 64 Ga. 681. A partnership, however, becomes liable to attachment for its 
 debts where each and every partner has become so liable as to his indi- 
 vidual debts, 60 Ga. 549. And attachment properly issued against it can 
 be levied on partnership effects, 47 Ga. 587, 19 Ga. 84. §4522 above quoted. 
 
AND PRACTICE. 301 
 
 provides for a different case; it gives remedy to firm creditor against 
 individual property of a single member wio is in situation to be attached, 
 ^0 Ga. 549. Attachment against a firm where affidavit against It named 
 it, but did not set out names of its members, not void, especially if 
 ■defendamts plead to mierits; "better ppaotifee, however, is tO' set out nam.es 
 of the members, 83 Ga. 779. Failure to do so Is cured by replevy, 77 Ga, 
 740. Affidavit against H. I. Kimball & Company, oomiwsed of H. I. Kim- 
 ball and parties unknown, sufficient aigainst said firm, 47 Ga. 587. Where 
 it was _sought to attach a vessel for daanages for negligent collision, affi- 
 davit alleging that defendant named was master and part owner of said 
 vessel, followed up by declaration alleging other owners unknown, good, 
 74 Ga. 19. Part owners of ship being tenants in common, not joint ten- 
 ants or co-partners, the said part owner had a leviable interest, 16. Two 
 joint debtors non-residents of State, anidavit against one of them meed 
 not recite that the indebtedness is upon a joint contract, 17 Ga. 625. Affi- 
 davit against A. B., declaration against A. B., surviving partner, not 
 -variant, 14 Ga. 537. For attachments against administrators or executors 
 who are actually removing, or about to remove, the estate's property out 
 of the county," see note (i) below, sub-division 2. No other attachment 
 againist fiduciary trustee allowed in this State, 52 Ga. 24. ^None ■agalmat 
 non-resident lunatic and his non-resident committee, I&. Homestead 
 i>roperty is to be made liable for debts chargeable upon it like other 
 trust estates, 59 Ga. 330, 67 Ga. 669; and a trust estate is not subject 
 to attachment for non-residence of trustee, 86 Ga. 598. Attachment against 
 ioreign corporation, see note (i) below. 
 
 (d) Clerical omission of word "is" not fatal, 63 Ga. 227. 
 
 (e) Affidavit need not describe evidence of debt, but need only state 
 the amount, 37 Ga. 18; it "never sets forth the nature or particulars of 
 the demand," 74 Ga. 24. It need not allege that debt not due, 26 Ga. 514, 
 although attachment lies where debt not due, §4521; however, attachment 
 based on promise to pay a certain amount in solvent notes, certainly does 
 not lie before such promise is toe, 29 Ga. 159. In 1853, at'tachment wouJd 
 not lie for unliquidated damages consequent upon breach of covenant, 
 but oflly upon contracts, express or implied, for the payment of money, 
 14 Ga. 230. But under §4524, attachment lies for all unliquidated money 
 demands; e. g., for damages for breach of promise, 28 Ga. 323; or seduction, 
 37 Ga. 32. Damage suit for personal injuries against non-resident rail- 
 road begun by attachment, 95 Ga. 79. Sum need not be liquidated; may 
 be for sum certain, stated to be balance on account sales of cotton, 12 Ga. 
 564. Indebted so much, "subject to a set-off for an unascertainable sum 
 which on final settlement will be due the defendant," sufficiently certain 
 as to amount of indebtedness, 18 Ga. 647. Affidavit that so much due on 
 ft. fa. from a particular judgment, is equivalent to saying that that amount 
 Is due on the judgment itself and is good as to the amount of the indebt- 
 edness, 26 Ga. 290. Where one is fraudulently induced to subscribe cash 
 to stock in foreign corporation, attachment will lie for such payments 
 upon rescission, 61 Ga. 561. Attachment will lie at instance of a surety 
 or indorser, against his principal; debt not due, execution stayed until 
 due §4525 Whenever a vendee of land holding bond for titles becomes 
 liable to attachment on any of the grounds provided in §4510, attachment 
 may issue for the purchase money, §4538. 
 
 (f) That sum sworn to greater than that proved on the trial, is no 
 ground for dismissing an attachment, 32 Ga. 487. ^^ ^ ^ , 
 
 (g) If affidavit made by attorney or agent, the words to the best of 
 
302 GEORGIA FOEMS 
 
 deponent's knowledge and belief" should come in just here, thus only 
 qualifying the statement as to the indebtedness and not qualifying the 
 other clauses, 72 Ga. 195. Where those words precede "is indebted," they 
 qualify all that follows, and the affldayit is insufficient, 72 Ga. 898. Affida- 
 vit by attorney that he was "informed and believed that the debtor resides 
 out of this State," insufficient, 9 Ga. 598. To recapitulate, then, affidavit 
 by attorney may be "to the best of his knowledge and belief" as to the 
 amount, §4511, 7 Ga. 167; Taut must be positive as to the ground of attach- 
 ment, 9 Ga. 598, 2S Ga. 351; and language used must be sucli as not to 
 leave it doubtful whether this requirement lias been complied with, 75 
 Ga. 602; there must be no ambiguity as to what allegations the words 
 "to the best of his knowledge and belief" qualify, 60 Ga. 112. 
 
 (70 Affidavit that said -■ resides, etc., fatally defective, 48 Ga. 12 
 
 (j.873), citing §5122. But under that section, as it now stands, all affida- 
 vits in legal proceedings are amendable. 
 
 (i) Under §4510, attachmen± may issue in the following cases: 
 
 1. When the debtor resides out of the State. 
 
 Attachment will lie against foreign corporation, 5 Ga. 531; not only 
 when it is not doing business here, 47 Ga. 676, but also when it is doing 
 business here, §4527. §4527 is merely cumulative, 47 Ga. 676. Statutory 
 liability of foreign railroad corporation to suit in proper courts here is 
 merely cumulative of, and not in conflict with prior attachment law, 64 
 Ga. 18. Non-resident lessee of railroad liable to attachment, though sua- 
 ble here, 48 Ga. 533. If affidavit name a Arm, and its members, and state 
 that said firm reside out of ithe State, it sufficiently alleges that its mem- 
 bers reside out of the State, 19 Ga. 84. If it name the firm, but not its 
 members, and state thait said firm reside out of the State, it is good after 
 replevy, 77 Ga. 740. Railroad contractor sojourning here to build road, 
 subject to attachment as non-resident, 92 Ga. 225; intention not to return 
 to State whence he came and conditional purpose to remain in Georgia, 
 not negative non-residence, 16. Seizure of ship by attachment from State 
 court, against mon-rasid'enit 'Own'er, not dn coiifliot witlh federal 'aidimiralty 
 jurisdiction, 74 Ga. 18. Attachment does not lie against lunatic and iis 
 committee, both non-residents, 52 Ga. 24. Defense can show declarations 
 accompanying departure indicative of intent to return, 67 Ga. 636. Statu- 
 tory attachment against non-resident debtor is not in conflict with Federal 
 CoBsitution, 73 Ga. 491. 
 
 2. When he is actually removing, or about to remove, without the 
 limits of the county. 
 
 This covers non-resident passing through the county with his goods, 
 47 Ga. 560. Good in alternative, 37 Ga. 18. Under §5122, as to amending 
 affidavits, ground of attachment that debtor is "about to remove without 
 the limits of the State," amendable by adding "and county," 94 Ga. 429. 
 Upon affidavit charging that defendant was "about to remove," plaintiff 
 may show acts and conduct of defendant not merely on date of attach- 
 ment affidavit, but about that time, 36 Ga. 531. Good defense thait when 
 attachment sued out, defendant had removed and was residing in another 
 county, 22 Ga. 612. Attachment lies against administrator actually remov- 
 ing or about to remove propei-ty of the estate out of the county, §4523, 
 36 Ga. 599. That he himself is removing is, however, no ground for attach- 
 ment, the proper allegation being that he is removing the property of the 
 
 estate, 40 Ga. 346. 
 3. When he ahsoonds. 
 
AJS^D PEACTICE. 303 
 
 "Is absconding," good, 36 Ga. 90. "Has absconded," bad, 26 Ga. 577, 
 7 Ga. 167. Attachment against absconding contractor and garnishment of 
 owner of premises, good basis for suit to foreclose material man's Hen, 
 92 Ga. 499. Error >to cliarge that debtor once shown to be absconding, con- 
 tinues so until 'his creditors get notice of his new residence, 29 G<a. 642. 
 His sayings at (time of leaving were com-petent as res gestcB in his behalf, 
 n., 67 Ga. 636. Affidavit^against A. B. & Co., composed of A. B. and parties 
 unknown, alleging that said A. B. & Co. abscond, authorizes attachment 
 against effects of firm, 47 Ga. 587. 
 
 4. When he conceals himself. 
 
 Affidavit against firm of D. & H., giving :pani©s of partners, and stating 
 that the said D. & H. "conceal themselves," sufficiently alleged that the 
 individual nverabers of the firm concealed themselves, 74 Ga. 1. 
 
 5. When he resists a legal arrest. 
 
 6. When he is causing his property to be removed beyond the limits 
 of the State. 
 
 Allegation that defendants were "removing their property to be removed 
 bfeyo^d the limits ,of this State," held good, 36 Ga. 89. 
 
 (;') Signing affidavit "as guardian" no ground for dismissal, 53 Ga. 26. 
 Failure of plaintiff to sign affidavit, fatal and not amendable, 28 Ga. 27. 
 
 (fc) Attachment may issue and be levied on Sunday, if the following be 
 added to the aboA^e affidavit: "And deponent has reason to apprehend the 
 loss of said debt unless process of attachment do issue on Sunday" §4520. 
 
 (0 Paper purporting to be an attachment affidavit, wanting signature 
 and official attestation of magistrate, a nullity and not amendable, 8 Ga. 
 521 (1850). Attachment affidavit not amendable in 1858, 26 Ga. 578. But 
 this is no longer the law. It haying been held in 1872 that the jurat is "no 
 part of the oath, simply an officer's entry," 47 Ga. 95; where 8 Ga. 521 is 
 expressly disapproved. Failure to add to jurat, after name of officer who 
 administered the oath, the officer's official designation Is amendable, 93 
 Ga. 252. And see §5122, which makes all such affidavits amendable. 
 
 General Nntc. — If two grounds Included In one affidavit, would this 
 vitiate it? 37 Ga. 18. No, 36 Ga. 91. Attachment may Issue pending suit, 
 §4526. May issue pending bail trover, 29 Ga. 580; but not ootemporane- 
 ously therewith,* 18 Ga. 606. One attachment proceeding legally, another 
 cannot be sued out by same plaintiff against 'same defendant on same 
 debt, 66 Ga. 575. When an attachment is dismissed, Its lien is lost, 38 
 Ga. 139, 54 Ga. 678, 53 Ga. 442. Motion to dismiss attachment for defect- 
 ive affidavit is not too late after replevy, 54 Ga. 678, 53 Ga. 558. Demurrer 
 to affidavit heard at first term, 77 Ga. 740. 
 
 Attachment Bond; §§4512, 4529. (a) 
 
 Georgia, Bibb County. 
 
 We, John Jones, principal, and James Brown, security, 
 acknowledge ourselves bound unto Willmm Smth (b) in tbe sum 
 
 of doUaiB (c), subject to tbe following conditions: (d) Tbat 
 
 tbe said John Jones, principal, is seeking an attaobment against 
 tbe said William Smith, wbicb is now about to be sued out, return- 
 able to tbe term of tbe court of tbe county aforesaid; 
 
 now, if tbe said John Jones sball pay all damages tbat tb© said 
 
.304 GEOEGIA FOEMS 
 
 William Smith may sustain, and also all costs that may be incurred 
 by /fcini in consequenbe of suing 'out suck attactimeut, in the event 
 that the said John Jones shall fail to recover in said case, then this 
 bond to be void. 
 
 John Jones, (e) [l. s.J 
 James Brown, (f) [l. s.] 
 
 Executed in the presence of the undersigned, this the — day of 
 , 18-. (g) 
 
 -J. P. (h) 
 
 (fl.) Party seeking attacliment, before same issues, shall give bond, 
 ■with good security, payable to defendant, not to exceed $20,000.00, §4512. 
 
 (6) Attacbment sued out against a firm, bond made payable to indi- 
 vidual partners, proceeding void, 8 Ga. 521. Obligee's name omitted by 
 mistake, added by amendment, 53 Ga. 442. 
 
 (c) Bond must be at least double debt claimed, §4512. But good tbou^h 
 greater than double, 17 Ga. 175. Officer is authorized to accept no bond 
 for less than double the debt, nor any security except good for at least 
 that amount, 55 Ga. 454. Debt sworn to being $45.92, "besides interest," 
 bond for double $45.92 good, 10 Ga. 510. Bond in sum one dollar less than 
 double the amount, good, and amendable Tvith consent of security, 37 Ga. 
 24. Attachment bond amendable, §4564, 29 Ga. 642, 46 Ga. 225. 
 
 (d) Conditions are prescribed by §4512. 
 
 (e) Debt a firm debt, any partner may sign firm name to attachment 
 bond, §4513, 8 Ga. 551. Attorney may sign attachment bond for client, 
 §4513, 74 Ga. 1. Proper pracitice is to sign "John Jones, by his attorney at 
 law, A. B. ; " but signing "A. B., attorney at law for John Jones," not fatally 
 irregular, 46 Ga. 225. That plaintiffl's name signed to attachment by his 
 attorney, where plaintiff himself had made the attachment affidavit, not 
 fatal; certainly amendable, 92 Ga. 409. 
 
 .(f) Plaintiff's attorney cannot be surety on attachment bond; nor can 
 non-resident of Starte, unless he own sufficient real estate in county 
 where attachment issues, §4514. But this section is directory, and disre- 
 gard of it will not vitiate whole proceeding, bond being amendable, 55 
 Ga. 617. 
 
 {g) Questions of mistakes in dates being involved. It will not be pre- 
 sumed that attachment was issued before bond was given, 41 Ga. 513. 
 
 (7i) Official attestation is prima facie proof of genuineness of papers, 
 17 Ga. 629. Bond not attested by officiarf;ing magistrate, not fatally de- 
 fective when recited in body of it that taken by magistrate who in fact 
 Issued writ, Ih. The bona need not be taken by the magistrate who issued 
 the writ of attachment, 27 Ga. 65. Such bond being good, attachment 
 reciting that bond given pursuant to statute, 12 Ga. 564. 
 
 General Note. — ^Judgment in attachment not set aside, nor fl. fa. quashed, 
 lor amendable defects in bond and attachment, 66 Ga. 552. Before defend- 
 ant in attachment can sue on the bond, he must recover against plain- 
 tiff, 19 Ga. 411. To recovery of general damages from suing out attachment, 
 malice and want of probable cause are both essential, 29 Ga. 64, 75 Ga. 73. 
 Formerly when our statutory attachment bond was conditioned to pay all 
 damages which might be recovered, recovery against principal in action on 
 the case was prerequisite to suit on the bond, 19 Ga. 411; aliter since Act 
 
AND PRACTICE. 305 
 
 of 1856, §4512, and defendant may recover in action on bond any special 
 damage sustained; e. g., attorney's fees, interest on money lield up by gar- 
 nis'hment, etc., 96 Ga. 728; though not exemplahy damages, 16. In action 
 on attachment bond, onus is on plaintiff, 29 Ga. 65. State court has juris- 
 diction of suit on bond to obtain attachment given by National Bank, 78 
 Ga. 449. Atid under §5013, servi'oe on local surety sufficient, lb. Officer 
 issuing attachment passes on sufficiency of bond, 58 Ga. 479. 
 
 Error to non-suit action on attachment bond because surety not sued 
 with principal. Fourtli National Bank v. Mayer, decided Nov. 30, 1896. 
 
 Affidavit Contesting Sufficiency of Attachment Bond ; 
 
 §4517. 
 
 Georgia, Bibb County. 
 
 Before me, John 'Gray, of said county, an ofEcer of said State 
 duly authorized by law to administer oaths, personally appeared 
 William Smith, who on oath says that he is defendant in an attach- 
 ment for the recovery of dollars, lately issued by J. H. L. 
 
 O-erditie, a noim-y public and ex officio justice of the peace in and 
 for said county, at the instance of John Jones, and levied upon 
 the pnoperty of deponent by V. A. Menard, deputy sheriff j depon- 
 ent says that he has a good defense to the said action, and that the 
 bond given in said attachment case is not a good bond, but is insuffi- 
 cient for the regson that Jmnes Brown, tlie surety thereon, has no 
 visible property out of which the bond could be collected- in case- 
 
 of a breach. 
 
 William Smith. 
 
 Sworn to and subscribed before me, this the — day of , 
 
 18—. 
 
 John Gray, 
 Notary Public Bibb County, Ga. 
 
 Attachment levied on property of defendant, he or his agent, or attorney, 
 may file affidavit, as above, and deliver it to levying officer. Latter shall 
 then return it and the attachment to the officer issuing the attachment, 
 ■wto ^all without delay bear testimony us to the sufficiency of the bond, 
 and may, in Ms discretion, require additional security, or a new bond, 
 within a given time, in default Whereof levying officer shall dismiss the 
 levy, §4517. 
 
 Order to strengthen not complied with in ime prescribed, error to order 
 attachmeflt and l^vy dismissed; proper order is one declaring plaintiff's 
 default, anf "direQting levying officer to dismiss levy, 55 Ga. 454. Burden 
 is on the movant in this proceeding, 93 Ga. 696. No question of amend- 
 iMnt considered, except of bond, and of that only to make it conform to 
 ■ the statute, 55 Ga. 454. Amendment offering to reduce debt claimed from 
 $750,000 to $100,000, so as to make the bond a good one, properly refused, 
 /6. Affidavit bo i&ve bond strengthened shall be returned by levying 
 officer to magistrate who issued attachment, "forthwith," §4517. But fact 
 
306 GEORGIA FORMS 
 
 that magistrate cannot be found until after first day of return term not 
 cause for dismissing proceedlnig, 93 Ga. 696. Burden is on defendant to 
 sliow bond insufficient, 76. Magistrate miay pass on bond though pro- 
 ceedings returnable to superior court, 73 Ga. 542. Sufficiency of attach- 
 ment bond primarily for officer issuing aittacbment, 55 Ga. 454. Not for 
 judge of court to which it is returnable, 93 Ga. 696. Not for superior court 
 on trial of cause; especially when defendant pleaded to merits, 58 Ga. 
 479. But under act of 1892, §§4512 and 4517, in cases where the amount 
 of the bond is $20,000.00 oT more, superior court may order bond strength- 
 ened in its discretion. 
 
 Attachment; §4529. (a) 
 
 Georgia, Bibb County, (6) 
 
 To All and Singular the Sheriffs and Constables of said State : (c) 
 
 You are herehj commanded to attaoh. and seize so much of ihe 
 
 property ((Z) of William S'mith (e) as will make the sum of 
 
 dollars and — cents (f ) an'd all costs, and also to serve such summons 
 of giamishmemt as may he placed in your hands (g), and that you 
 make return of this attachment, with your actings and doings 
 
 entered thereon, to the term of the court of 
 
 county (h), to which court this attachment is hereby made return- 
 able. Hereof fail not. 
 
 Witness my hand and seal this day of , 18-^ (i). 
 
 J. P. [i.. S.J 
 
 (a) This form is prescribed by §4529. 
 
 (6) Officer of one county may issue attachment returnable to another 
 county, 36 Ga. 597. Under §4511, any J. P. in the State may issue attach- 
 ment, regardless of where defendant resides, provided it be made return- 
 able to the proper c&unty, 82 Ga. 747. 
 
 ([,■) After "of said State," "of said county" added, avoided the writ, 
 15 Ga. 267. Attachments returnable to superior and county courts shall 
 be directed "To all and singular the Sheriffs and Constables of this State." 
 Returnable to justice court, it should be directed "To all and singular the 
 constables of this State," §4519. Direction to sheriffs and constables not 
 vitiate attachment returnable to justice court, levy being made by con- 
 stable, 63 Ga. 227. But levy thereof by sheriff bad, 68 Ga. 194 (1881). But 
 Act of 1885, §4381, authorizes sheriffs to execute justice «ourt process. 
 Special county court bailiff is a "constable" and may 'serve attachment, 
 36 Ga. 95. 
 
 ((/) Officer must levy on property of defendant to be found in the 
 county of Which he is sheriff or constable, and where defendant has 
 removed the property, officer must follow it into any county of the State, 
 levy on it, and bring it back, §4530. Officer can levy only on property of 
 defendant, and not on property of another of like kind, though defendant 
 lately sold it, 57 Ga. 596. Discrepancy between attatfliment and levy as 
 to whose possession property was in, immiaterial after replevy, 65 Ga. 702, 
 Land cannot be levied on and sold under an order of the magistrate in 
 aittachmenits retumalble *o ju^ice oour'ts, 'but only by virtue of execution 
 
AXD PKACTICE. 307 
 
 Issuing upon the judgment in attachment, 9 Ga. 506. Notice to defendant 
 essential to levy of attachment upon the land; mailing notice not suffi- 
 cient if defendamt did not get it, 96 Ga. 274. Entry on attaldhment .against 
 non-resident of State reciting levy on land and adding "tenant in posses- 
 sion this day notified in writing," insufficient without more; New England 
 Co. vs. Watson, decided Nov. 23, 1896. Levy is Us' pendens, 53 Ga. 118, 87 
 G-a. 742. Corporate stock, how levied on, see §4535. Formerly corporate 
 stock was not subject to attachment levy, 16 Ga. 437 (1854). 
 
 (e) Attachment being amendable, §4564, affidavit and bond may be 
 looked to where writ Itself uncertain as to defendant intended, 94 Ga. 260. 
 (jf) As tc the court to which attachment is returnable, relatively to 
 amount invdlved, see note (/i) below. 
 (.g) See Index, title "Garnishment." 
 
 {h) When amount sworn to exceeds $100, attachment returnable to next 
 superior couM of county where defendant resides, or where he last resided, 
 or to any superior court in the State if defendant resides out of the State; 
 but if superior coTirt sit within twenty days or county court witbin fif- 
 teen days, return term of the attachment is next term thereafter; debt 
 not over $100, aittachment returnable to next justice's court of district 
 where debtor resides or last resided, or to any justice court in the State, 
 if debtor resides out of tlie State, unless the court sit witMn ten days, in 
 which event return next term thereafter, §4518. Aittachment returned 
 after levy and replevy to Quitman superior court, when defendant lived in 
 Clay county, illegality lay to execution based on judgmient rendered against 
 replevy bond in Quitman county, 54 Ga. 576. Attachment Issued August 
 12, 1870, made returnable by mistake to May term, 1871, 44 Ga. 117. §4518 
 construed with §4516, means that attachment for more than $100 against 
 debtor residing out of the State, is returnable to superior court of any 
 county, wbether he bas effects there or not, 94 Ga. 413. Under above 
 quoted § 4518, providing that if the debt sworn to not 'over $100, the at- 
 tadiment is returnable to justice court, it has been held that even though 
 note stipullated for attorney's fees, if principal (excluding them) not over 
 $100, attachment for such principal is returnable to justice court, 95 Ga. 757. 
 Attachment in {act returned to justice court where it was properly return- 
 able, to-wit, 1120 District, G. M., that by clerical mistakfe of magistrate 
 issuing it (who used his printed form returnable tO' his own distript) it was 
 made returnable to 919th District. G. M., not iatal, 45 Ga. 298. Plaintiff 
 could elect whether to make attaohmient returnable to superior or inferior 
 court, 37 Ga. 24, 13 Ga. 441. Attachment issued April 3, 1866, returnable 
 to inferior court, amendable by substituting "county" for "inferior," 
 35 Ga. 156. 
 
 (i) Not to be presumed that attachment Issued before bond given and 
 court should have continued case here to allow mistake in date shown, 
 41 Ga. 513. 
 
 (/) Officer issuinig attachment need not be same one before whom affi- 
 davit was made, 59 Ga. 210, or bomd given, 27 Ga. 65, 12 Ga. 564. Attach- 
 ment good though officer omits to add J. P. to his name, 20 Ga. 735. J. P. 
 miay be added by amendment, 57 Ga. 153, 47 Ga. 92. 
 
 General Note. — Devy of attachment is lis pendens, 52 Ga. 118, 87 Ga. 742. 
 Motion to dismisis levy need not be in three years from judgment, 75' Ga. 
 603. Parol evidence of pendency of attachment incompetent, 74 Ga. 791. 
 Lien of attachment created by levy not by the judgment; as against con- 
 flicting attachments, first levied prevails; as a,gainst ordinary judgment on 
 
308 GEORGIA FORMS 
 
 suit filed before the levy, judgment, not levy, fixes the lien; while as to 
 suits filed after the levy, attachment has priority, §4578. Judgment in 
 Ordinary suit commenced on day attachment levied, has priority, unless 
 attachment creditor aflarmatively show such ordinary suit was filed later 
 in the day after the levy of attachment, 94 Ga. 610. Defendant pleading, 
 general judgment obtainable, though attachment dismissed, 52 Ga. 332. 
 But money divided between competing attachments according to date 
 of levies, 51 Ga. 241. 
 
 ARTICLE 2. 
 
 Attachments for Purchase Money. 
 
 Affidavit for Attachment for Pdrchase Monty ; §4539 
 
 et seq. 
 
 Georgia, Bibb Coijnty. 
 
 Before me, the subscriber, a notary public and eoo officio justice 
 of the peace in and for said county, personally appeared John 
 Jones (a), -who on oatib says that William Simth- is indebted to 
 
 him in the sum of dollars and — cents (b) ; that said debt was 
 
 created by said WilUam Smith by the purchase of the following 
 property, to wit: (Describe the property) (c); that said debt is 
 due (d) and that swid William Smith is in possession of said 
 property (e). 
 
 Sworn to and subscribed before me, this — day of -, 18 — . 
 
 John Jones. 
 
 J. H. L. Crerdvne, 
 
 N. P. & ex off. J. P. 
 
 (a) Transferee without recourse of purchase money notes has same rights 
 of attachment for purchase money as original payee, 88 Ga. 791. 
 
 (6) Attorney at law or agent may swear to the debt to the best of his 
 knowledge and bedief, §4540. 
 
 (c) Affidavit shall describe the .property §4540; so as to certify the 
 officer What he Shall seize, 64 Ga. 275. Goods mingled with others in 
 same store, affidavit must separate them, 74 Ga. 526. However, descrip- 
 tion of stock 'of goods as in certain store in defendant's possession, suffi- 
 cient, lb. Affidavit must contain a description of the property for which 
 the debt was created, 54 Ga. 678; the description here was insufficient, 52 
 Ga. 332, 64 Ga. 275. Allegation that certlaln property is the property for 
 which the debt was created in part, insufficient, 53 Ga. 558. Ifescription 
 must be sworn t)o positively, 54 Ga. 678. 
 
 (d) No allegation that debt was due, proceeding dismissed, 52 Ga. 332, 
 77 Ga. 45. 
 
 (e) Or "said William Smith has sold and is not in possession of a part 
 of said property, and 'has not been paid for tlie same," or "said property 
 :.<! in the possession of one holding the same for the benefit of said WllUoim 
 Smith, to-wit, one James Brown;" or "said property is in the possession 
 
AND PRAOTIOE. 309 
 
 of one bolding the same in fraud against the deponent, to-wlt, James 
 Brown," §4539. iStating grounds in alternative, insuflacient, 78 <Ja. 32. 
 
 General Note. — Por matters pertaining to attachment -wliich are not 
 peculiarly pertinent to attachment for purchase money, examine the gen- 
 eral subject, ante; or, for readier reference, see index, title "Attachments." 
 
 There are three issuable grounds: Isit, purchase money; 2d, posses- 
 sion; 3d maturity of debt, 74 Ga. 815. Only issues raised by traverse are 
 passed on; evidence unnecessary as to maturity of debt where that issue 
 not raised, 16. Right to general judgment acquired by notice to defend- 
 ant under §4557 applies to attachment for purchase money, 86 Ga. 652. 
 No vendor's lien in Oeorg'ia; right to attach for purchase money is a 
 privilege, not a lien, 68 Ga. 152; hence vendor's re-i)urchaaiing 'horse did 
 not release security 'on purchase money note,»J6. 
 
 Bond must be given as in other cases of attachment, §4540; see ante. 
 
 Attachment may then issue; the form therefor may be like that in other 
 cases of attachment, see ante, page 306, except that after "William Smith" 
 in line 2, insert "to-wit," and then describe the property, §4541. Sheriff 
 can levy only on property described in affidavit, §4541. Attachment no 
 auttorily to sheriff to seize goods of another than the defendant; such 
 seizure becomes conversion (after demand) and actionable, 60 Ga. 516. 
 (Between the risk of 'Ha:bility to the owner by holding on, and the risk of 
 liability to tie plaintifC in attachment by letting go, Sheriff's position 
 uncomfortable; but such risks are; incident to his office, lb. Though 
 attachment commanding seizure of defendant's property, specify in gen- 
 eral terms of what it consists, still officer 'can levy it only upon property 
 of defendant and not on like property of another, though defendant lately 
 sold it, 57 Ga. 596. Levy by garnishment on property not described in 
 affidavit, inefeectual, 56 Ga. 278. 
 
 FoEM F.OR Garnishment Summons; §4541.* 
 
 John Jones ^ Attaclimeiit for Purdhase Money, Retuma- 
 vs. y ble to Bibi Superior Court, November Term, 
 
 William Smith. ) 1895. 
 Georgia, Bibb County. 
 
 To J amies Brown: 
 You are 'hereby required to be and appear at the next superior 
 court to be held in and for said county, on the iirst Monday in No- 
 vember, 1895, then and there bo answer on oath what you owed 
 Willwm Smith at the date of the service hereof for any part of the 
 following property, to wit: (Describe the property as described in 
 plaintiff's affidavit.) 
 
 This — day of , 1895. 
 
 J. H. L. Gerdinc, 
 N. P. and ex off. J. P. 
 
 Levy by garnishment on property not described in affidavit ineffectual, 
 56 Ga. 278. 
 
 *rhl3 particular form of garaisbm3Qt seemed so peculiarly a part of the law of attaohaietit 
 for purchase money that logical adherence to the plan o! this book demanded Its location 
 just here. All other f jrms relating to garnishment, together with decisions thereon, wiU he 
 found under "Special Rights, Remedies and Proceedings," in the chapter on " Garnishments." 
 
310 GEOKGIA FOEMS 
 
 AETICLE 3. 
 
 Attachment Against Fraudulent Debtors. 
 
 Petition; §4643, (a) 
 
 Georgia, Bibb County. 
 
 To the Honorable W. H. Feiton, Jr., Judge of the Superior 
 Court of said county: 
 
 The petition of Johii Jones respectfully shows that William 
 8irmth, of said county, is indebted to your petitioner in the sum of 
 
 dollars and — cents, and that the said Willimn Smith (b) 
 
 conceals his property liable for the payment of his debts (c) for 
 the purpose of avoiding the payment of the same ((Z). 
 
 Wherefore your petibiooier prays for an attachment against the 
 property of the said defendant liable to attachment. 
 
 A. B., 
 Petitioner's Attorney. 
 
 (a) Petition easenti^^ lo attachment against fraudulent debtor; mere 
 affidavit no substltufe; levy dismissed on claimant's motion, 88 Ga. 467. 
 
 (6) Although the section requires petitioner to state grounds of com- 
 plaint lully and distinctly, he need not altege debtor's acts In more 
 specific terms than the language of the statute, 78 Ga. 504. 
 
 (c) Or "has sold" or "has conveyed" or "is preparing to conceal" or 
 "threatens to conceal," or "is preparing or threatening to sell or convey," 
 §4543. Or "hlas made a fraudulent lien on hiis property .liable for the 
 payment of his debts," §4544. 
 
 (d) Purpose to hinder and delay creditors is purpose to avoid payment 
 of debts, 86 Ga. 188. 
 
 "Supporting his petition by affidavit or testimony, if he can control the 
 same," §4343. Signature of witness and jurat of magistrate annexed to 
 , petition, petition is sworn to, 78 Ga. 504. Attachment cannot issue unless 
 petition supported by affidavit or testimony of like character, 78 Ga. 512. 
 Testimony must be in writing; mere oral testimony cannot be heard or 
 considered; defendant otherwise coulld have no writ of error to an ex 
 parte grant of attachment, 78 Ga. 508. Affidavit by attorney which is not 
 positive, does not authorize attachment against fraudulent debtor, 85 Ga. 
 265. Such affidavit by attorney here, which was partly positive and partly 
 on information and belief. Was insufficient, 71 Ga. 859. Void proceedings 
 are not amendable, 86 Ga. 186. Attachment based on affidavit not posi- 
 tive as to grounds, dismissed at hearing, 85 Ga. 266. Onus on plaintlfC In 
 attachment against fraudulent debtor if affidavit is only to best of knowl- 
 edge and belief, 87 Ga. 724. Attachment against fraudulent debtor issued 
 on petition and proof without previous order for attachment to Issue, the 
 proof is open to inspection and if insufficient, attachment properly ad- 
 judged void, and dismissed, 89 Ga. 834. Judge acts judicially in granting 
 attachment, but ministerially in issuing it; attachment is but a writ, and 
 
AND PEACTICE. 311 
 
 is issuable by olerk; the order is its basis; proper order behind it, testi- 
 ■mo'ny on whidh judige acted not examinable collaterally, but only .by writ 
 oi error or by motion to remove under §4546, 78 Ga. 504. A defective 
 affidavit, no order appearing, is ground for dismissing the attachment, 
 71 Ga. 859. Attachments against fraudulent debtors are returnable only 
 to the superior oourt, 92 Ga. 333. 
 
 Bond. — Bond essential before a;ttachment can Issue under §4543; mar- 
 ginal note O'f judge issuing it that it is not to be levied until bond given, 
 will not save it, 79 Ga. 596. Bond pre requisite, 72 Ga. 133. Even before 
 Act of 1877 (§4544), 52 Ga. 376. 
 
 General Note. — Attachment under §4543 adequate against pretended sale 
 by debtor for purpose of defrauding creditors; equitable 'interference un- 
 nfvcessary, 63 Ga. 163. No equity in bill here attacking fraudulent trans- 
 fer; remedy by attachment ample, 75 Ga. 294. 'Creditor -without lien, 
 wtLose detot is mot in juldlgment, and w(ho dioeB mot seek to resciinid 'sale, hais 
 ample remedy by atitaciment under §4543, and cannot invoke aid of equity,. 
 81 Ga. 129. Where it wias error to merge one creditor's attacliment pro- 
 ceedings lagainst fraudulent debtor into bill by other creditors, 80 Ga. 205. 
 There was equity in bill here in aid of ajttachments, where certain shares 
 of stock transferred to trust estaite to avoid debts, 71 Ga. 815. 
 
 A declaraition must be filed in this, as in other ajttachment cases; and 
 notice to defendant authorizes judgment though attacliment dismissed, 
 73 Ga. 144. Service acknowledged by attorney, prima facie presumed 
 authorized, 71 Ga. 742. 
 
 The following summary of the practice in the ordinary proceeding 
 against fraudulent debtors (86 Ga. 191-2) is well calculated to be fre- 
 quently useful. Such ordinary proceeding would be "Por the party to 
 petition for a writ of attachment, to present his proofs by afiidavits to the 
 judge, and that such judge, after having considered the proo'fs submitted 
 to him and found them sufiioient, Should then adjudge and 'grant an order 
 that the attachment issue. The attachment might be issued by the judge 
 himself thereafter, as under the law of this State he lias a right to issue 
 .an attachment; or by any other officer who, under the law of this 'State, iis 
 authorized to issue attachments in suc'h cases. It might be issued by the 
 clerk O'f the superior court under the direction of the judge, the papers 
 containing the afiidavits and proofs submitted to the judge upon such ap- 
 plication being filed with the dlerk of the court. The opposite party, if he 
 thought proper to do so, might except to the issuing 'Ol said arttacli'ment, 
 and by writ of error could have the same reviewed by this court; or he 
 might controvert the grounds of the attachment by applying to the judge, 
 stating fully and distinctly his grounds of defense, and showing why 
 such attachment should not have been issued or should be removed, sup- 
 porting the same by affidavit or such other testimony ais he Can control; 
 and the judge should then appoint a time and pHace for hearing botti par- 
 ties (plaintiff and defendant) provide for due notice to all persons inter- 
 ested, allowing them full 'opportimity to sustain their respective 'cases, as 
 in application upon injunction, and upon a review of the law and the 
 facts of the case, make such order in the premises as is consistent with 
 justice, either totally or paritially • removing such attachment, or wTiolly 
 or partially retaining the same, or disposing of the sa)me in some manner 
 Which would be equitable and just to all parties. And it Is further pro- 
 vided that the decision of the judge granting or refusing an attachment 
 under the provisions of this article may be excepted to and- carried to the 
 
312 GEORGIA FORMS 
 
 supreme court, as was practiced ' in applications for injunctions prior to 
 tlie 28th of October, 1870." 
 
 Defendant can proceed to have the attachmenit removed, although he 
 does not lay claim to the property, 73 Ga. 493. Refusal to remove not 
 reversed unless diiscretion abused, 94 Oa. 303. 
 
 Cross reference: (For garnishment bond upom attachment, see J§4549 
 et, seq., an'd aJso the generafl subject of g'amlisbment, (hereinafter. 
 
 ARTICLE 4. 
 Pleadings and Defense in Attachment. 
 
 Declaration in Attachment; §4556. (a) 
 Geobgia, Bihh County. (6) 
 
 To the Superior Court of said County: 
 
 John Jones (c) 'brings liliis his petition against William- Smith (d) 
 and alleges: 
 
 1. Defendant is indebted to petitioner in the sum of dol- 
 lars (c) for that said defendant did on the — day of , 18 — , 
 
 eawcute to petitioner Ms promissory note, whereby he, the said 
 
 defendant, promised to pay to petUicmer the sum of dollars, 
 
 twelve months after the date thereof. A copy of said note is hereto 
 attached (/). 
 
 (2) The said defendant 'has not paid said note nor any part 
 thereof. 
 
 (3) On the ■ — day of , 18 — , petitioner sued out before 
 
 J. H. L. iG-erdin<e, a notary puhUc <t,nd ex officio justice of the 
 peace for the county of , 'an attachment against the said de- 
 fendant for said debt, returnable to the teirm, 18 — , of this 
 
 court, w'hicih said attadhiment was on the — day of , 18 — , 
 
 levied by "F. A. Menard, Deputy Sheriff, upon the following 
 property, to wit: (Describe the property.) (g) 
 
 Wherefore, petitioner prays judgment for said debt, 'as allowed 
 by law, 'and that said property be sold to pay the same, (h) 
 
 A. B., 
 Petitioner's Attorney. 
 (To deelanation, attach 'a copy of note or otiher cause of action 
 sued on.) 
 
 (a) Attachment returnable to superi'Or 'or county court, plaintiff shall 
 file his declaration at the first term, §4556, 7 Ga, 167. In justice's court 
 declaration in attachment need not be filed, 58 Ga. 322, 74 Ga. 528. Decla- 
 lation is in time if filed on the last day of first term, 86 Ga. 822, 652. Where 
 
AND PEACTIOE. 313 
 
 regular term of superior court not held, but legally adjourned over, such 
 adjourned term stands in its stead with reference to process and pleading, 
 93 Ga. 645. Declaration not filed at first term, arttachment dismissed, 
 though levying ofliceT failed to make actual return until second term, 
 89 Ga. 818. Declaration not filed first term, general judgment based 
 thereon a nullity, and levy thereunder properly dismissed, 66 Ga. 226. 
 
 (6) Declaration amendable by strikimg out "Georgia, Decatur county," 
 and inserting "GeDrgia, Barly county," true Venue being Early county,, 
 and trial pending there, 58 Ga. 479. 
 
 (c) Where one purchased plaintiff's claim after levy, amendment to 
 declaration alleging' that plaintiff sued for use of purchaser did not dis- 
 solve attachment, 79 Ga. 719. 
 
 (d) Defendant against Vhom attaohmen* did not issue may he stricken 
 from declaration by am6n4ment, 60 Ga. 547.. Where attachment sued out 
 agiainst one partner on partnership aooount, declaration need only be 
 against him wQio is thus suibject to summary process, 64 Ga. 680. 
 
 (e) • That greater damaiges declared for than claimed in the afiidavit, 
 uniimportant, no recovery beyond actual damages proven being allowable, 
 37 Ga. 623. Declaration is amendable after first term, but no more dam- 
 ages recoverable than are claimed in the affidavit, 94 Ga. 407. 
 
 if) Declaration on note not amendable by adding count on judgment 
 rendered on same n'ote in an^other State, after attachment here was sued 
 out and declaration filed, 58 Ga. 168. 
 
 (g) Declaration will be construed in oonneotion with attachment papers 
 where it distinotly refers to them, 59 Ga. 381. Declaration here suffi- 
 ciently identified attachment on which it was based, 74 Ga. 1. Declaration 
 fatally meagre here, 62 Ga. 159. 
 
 (ft) Process need not be annexed to declaration in attachment; statu- 
 tory notice sufficient, 86 Ga. 652. Declaration in attachment agiainet non- 
 resident not alleging that defendant's 'property ajttadhed, and praying 
 process instead of sale of tlie property levied on, fatally defective; jud'g- 
 ment set aside, 58 Ga. 377. 
 
 Generally. — Declaration in attachment should allege a levy, describe the 
 property and pray for a proper judgment, 63 Ga. 688. Allusion to attach- 
 m'enit 'piroceedinlgis too meagre here, and no prayer liar judgment niade, 
 declaration fatally defective,. 66 Ga. 575. Declaration amendable as in 
 other oases, 37 Ga. 18. Attachment writ, declaration, or bond amendable, 
 as in other cases at common law, 74 Ga. 1. 
 
 Defense. — ^Defendant may appear and make his defense at any time before 
 final judgment is rendered against him, §4558. EJven down to atotual ren- 
 dition of judgment, 58 Ga. 175, 88 Ga. 15. And that witli'out replevy, 12' 
 Ga. 368. But all defenses must be submiitted and disposed of in their 
 proper order; consequently special demurrer to declaration too late after 
 plea to merits and term pEissed, 95 Ga. 78. Attachment based on debt 
 due 'by lOomtTiact, and mo lisisuable defense filed on oath, judgment wi'thoiut 
 jury proper, 58 Ga. 377. 0.n6 attachment pending, another cannot be sued 
 out by same iplaintiff against same defendant on same debt, 66 Ga. 575. 
 Second attaohiment toy same 'pliaiintifC wiith gam'iSihmient, lies to suibject 
 money in sheriff's hands, raised from property sold under first attach- 
 ment, which was di'smissed 'ooi defendanf'S motion for fatal defects, 92 
 Ga. 409. Verdict in attachment for specified sum, sufficient, 66 Ga. 575. 
 Where, after attachment levied in Georgia, on property of foreign cor- 
 poration, a receiver is appointed in its own State, he must become party 
 to such attacliment proceedings before he can defend, 64 Ga.. 18. 
 
-314 GEORGIA FORMS 
 
 Judgment. — ^Defense mad-e, general judgment oibtaina'ble, §4575, 52 Ga. 332. 
 Plea recitiag a'ppearance for limited purpose is a defense, 95 G-a. 423; so 
 is moving non-suit, 95 Ga. 450; or traversing aittachment affidavit, 92 Ga. 
 225. 'But the rule does not apply where courit had no jurisdiction; e. g., 
 where attachment against fraudulent debtor was returned tO' a court other 
 than superior court, 92 Ga. 333. Unauthorized general judgment is no 
 Lar to being heiard on plea filed thereafter, 58 Ga. 175. Acknowledgement 
 oi servi'co auitihiorizes g'sneral judgment, 64 'Ga, 769. iS'o does reiplevy, 53 
 Ga. 558, 12 Ga. 368; especially with plea., 46 Ga. 225. Attachment levied 
 and returned to justice's court, and property replevied, plaintiff oould 
 take general judgment, though attachme.nt dismissed, 74 Ga. 526. Gen- 
 eral judgment amendable into judgment in rem, 35 Ga. 207. 
 
 Notice to Defendant; '§4557. 
 Oeoegia, Bihh County. 
 
 To WUlmm Smith: 
 
 You are -hereby notified that on the day of , 18 — , T sued 
 
 out an attachment against you, returnable to the term, 18 — , 
 
 of the superior cotirt of said county of Bibb, whoich said attach- 
 ment was on — ■ day of , 18 — , levied by V. A. Menard, 
 
 Deputy Sheriff, upon the following property, to wit: (describe tihe 
 property as it is described in the levy) and that at the above stated 
 term of said court I filed my declaration in attachment against 
 you, in terms of the law. 
 
 John Jones. 
 
 Copy of foregoing notice sihould be served personally on defendant by an 
 officer of oounty w'here attachment is returnable, at least ten days "before 
 final judgment on the aittachment. Such officer must return the original 
 notice into court with Ills entry of service thereon; the case is then iu 
 proper shape for a general judgment against defendant; dismissal or dis- 
 continuance of the attachmenit will not work dismissal of the declaration, 
 §4557. Notice to defendant that an attachment is pending against him, 
 stating the court, time, and property levied on, sufficient, 44 Ga. 454. De- 
 fendant notified, error to dismiss declaration because attachment dismissed, 
 95 Ga. 450. Immaterial that dismissal of levy was on magistrate's order 
 for failure of plaintiff to sitrengthen attachment bond, 93 Ga. 645. Imma- 
 terial also whether such dismissal was hefore or after defendant was noti- 
 fied, 76. Defendant dying, and administrator made party, notice to him 
 not dispensed with, 52 Ga, 24. Plaintiff not served, may dismiss, notwith- 
 standing ootemporanoous plea to merits, 52 Ga. 31. 
 
 Notice to non-resident whose property is attached on ground of non- 
 residence, not necessary to judgment against the property, 73 Ga. 246. 
 
 General /?. fa. based on attachment does not imply notice to defendant 
 and is prima facie void, 52 Ga. 395; plaintiff should affirmatively show 
 notice to, or replevy, or appearance by defendant, 85 Ga. 479. 
 
AND PRACTICE. 315 
 
 Traverse of Attachment Affidvit; §4560. (a) 
 
 1 Attachment returnable to Bibb Superior Court, 
 
 And now oom>es WilUcDm Smith, defendant in the above stated 
 attachment, at this the return term thereof (6) and traverses the 
 truth of the affidavit in relation to the ground npo-n "Which said 
 attachment iss.ued, and sa.ys that it is not true in point of fact that 
 at the time said attachment issued he resided out of the State, as 
 alleged in said affidavit, but that on the contrary he was then resid- 
 ing in this State. 
 
 William Smith. 
 
 (ft) Defendant may at return term traverse tlie truth of alRdavit in 
 relation to ground of attaclimenit; attachment returnable tO' superior court, 
 traverse tried by jury at same term; returnable to justice court, tried by 
 J. P.; plaintiff losing, attaobiment dismissed at his cost; Code §4560. 
 Although Benning, J., remarked in 28 Ga. 110, that "Plaintiff's affidavit 
 makes out a prima facie case for him," the court in 29 Ga. 645 says on the 
 contrary that it "does not enter into the proof at all and cannot shift the 
 burthen;" and they there hold that on trial of traverse, burden is on 
 plaintiff. 
 
 (6) Traverse is a dilatory plea, or plea in abatement, 70 Ga. 741, and 
 must be Hied at first term, 30 Ga. 40, 49 Ga. 265. Traverse made on appeal, 
 stricken, 37 Ga, -18. Allegation In traverse setting forth place where 
 diefendant was publicly living wihen altUaohmemt issued, superfluJouB, but 
 good, 29 Ga. 642. 
 
 General iVo*e.— Traverse need not be sworn to; not unlike plea of gen- 
 eral issue in trover,- 47 Ga. 359. Attachment dismissed on demurrer at 
 first term for want of a proper affidavit, 77 Ga. 740. Objections to form 
 of attachment affidavit, waived by plea to merits, 44 Ga. 455. But the 
 traverse goes to its truth, not to its form, and is not so waived, 56 Ga. 376. 
 The relation of the two resembles that of a plea in abatement and a plea 
 in bar, 16. Replevy is no obstacle to traverse, 94 Ga. 429. Where personal 
 .service perfected, traverse shall not delay judgment on declaration, which 
 roay be had as well before traverse is tried as afterward, §4561. Still 
 traverse should be tried either before or with the main case, unless con- 
 tinued for cause when main case is ready, 56 Ga. 373. General judgment 
 (reditor cannot traverse truth of affidavit after judgment on the attach- 
 ment, 8 Ga. 551, and see 49 Ga. 265. 
 
 Dismissal of attachment final and reviewable, 54 Ga. 678, 53 Ga. 442. 
 
 ARTICLE 5. 
 Replevy and Disposition op Peopeety Attached. 
 
 Replevy Bond in Attachment ; §4567. (a) 
 
 Georgia," i?) 66 C9USTY. 
 
 Know all men by these presents, That we, William Smith, prin- 
 cipal, and Henry Thompson, security, acknowledge ourselves jointly 
 
316 GEORGIA FORMS 
 
 and severally bound to John Jcnes (b) in •Vhe sum of $100 (c) 
 subject to the following oouditions: 
 
 Whereas, the said John Jotves has sued 'ottt ata attaditnent against 
 the said William Smith for the recoveoy of $500, returnable to lihe 
 
 term of the superior court of Bibh county, -w-hioh aittachment 
 
 has been levied by V. A. Menard, deputy sheriff, upon the folowing 
 propea-ty, to wit: (Describe the property.) 
 
 Said property so levied on being of the value of $50, 
 
 ISTow, shoTild the said William Sonith pay to the said John Jone& 
 the amount of the judgment and costs that 'he may recover in said 
 case, or should the said Henry Thompson do so for him, then this- 
 bond to be void ; else of full force and effect. 
 
 William Smith (d) 
 Henry Thompson (e) 
 
 Attest: 
 V. A. Menard, Deputy Sheriff, Bihh County, Oa. 
 
 (o) Levying ofBoer miist deliver property levied on to defendant upon 
 Mb giving bond witli good security, §4567. Replevy terminates attaah- 
 ment proceeding, and thereiafter case proceeds like any ordinary suit 
 at law, 74 Gta. 19, 25. 
 
 (6) Replevy bond must be made payable to plaintiff in attachment, §4567. 
 
 (c) Bond must be sufllcient to secure amount of judgment and costs 
 (usually in double the amount thereof), except where property levied on 
 is of less value than sajid amount, in which case bond shall be double 
 value of property levied on, to be judged of by the levying officer, §4567. 
 
 {d) Replevy is no admission of ownership; hence, verdict against 
 replevying defendants s:hould have been supported by evidence of joint 
 ownership, 89 Ga. 673. 
 
 (e) Sureties to replevy bond cannot object that attachment bond not 
 executed by principal and sureties therein themselves, but by principal's 
 attorney, apparent makers raising no such question, 80 Ga. 709. Plaintiff 
 in attachment may take judgmenit against defendant and his securities 
 for amount he recovers in the case, §4567. No service of process upon 
 sureties on replevy (bond Is necessary to bind them, 80 Ga. 710. Fortlh- 
 coming bond taken instead of statutory replevy bond, judgment could 
 not, on mere motion, be rendered against surety, 65 Ga. 520. That sure- 
 ties were induced to sign replevy hond by fraud of sheriff, to which 
 plaintiff was not privy, not ground for illegality, 80 Ga. 710; distinguish- 
 ing 60 Ga. 112. 
 
 General Note. — Attachment void, defendant may dismiss, notwithstanding 
 replevy, 74 Ga. 26, citing 54 Ga. 680, 60 Ga. 113. But after replevy by firm, 
 too late to object to failure 'of affidavit to set out its members, 77 Ga. 740. 
 Adverse ruling made on motion of principal, not conclude surety on replevy 
 bond; attachment affidavit void on face, judgment arrested as to surety 
 on motion made at same term, 60 Ga. 113. Failure to advertise, after 
 replevy, does not invalidate subsisting suit against defendant, 19 Ga. 436. 
 Bond for forthcoming insufficient, 25 Ga. 381. Replevy bond here was 
 BuHStantially sufficient, 37 Ga. 24, 28 Ga. 431. Where tihree attachments 
 levied, one bond given to replevy all the property levied on is liable for 
 amount of judgment in each case, 37 Ga. 19. Surety not released by loss 
 o:- destruction of property levied on; t. g., emancipation of slave, 37 Ga. 19. 
 
AND PRACTICE. 317 
 
 CHAPTER 4. 
 BAIL IN ACTIONS FOR PERSONALTY. 
 
 Affidavit to Obtain Bail ; §4604. (a) 
 Georgia, Bibb Coukty. 
 
 Before me, , of said oounty, aji officer of said State duly 
 
 authorized by law to administer oaths, personally appeared John 
 Jones, who on oath says that he is about io institute (6) iu the 
 superior court of said oounty, an action iagainst Willimn Smith, 
 returnable to the April term, 1896, of said court, for the recovery 
 of ceo-taia personal property, to wit: (Describe the property.) 
 
 Said property is in the possession, custody or control of the said 
 defendant (c), and deponent has reason to apprehend that the same 
 will be eloigned or moved away, and will not be forthcoming to 
 answer the judgment, execution or decree that Shall be made in said 
 case. 
 
 The value of said property is $500 (d) and the amount of hire 
 
 claimed is $50 («), and deponemt does verily and bona fvcis claim 
 
 said personal property. (/) 
 
 Jones Jones. 
 
 Sworn to and snbscribed before me this day of , 18 — . 
 
 John Oray, 
 
 Notary Public Bibb County, Ga. (g) 
 
 (o) Original afiRdavit to hold bail must be filed in clerk's oflace, one copy 
 of it must be affixed to original declaration, and another copy of It to copy 
 declaration served on defendant, §4605. But, attaching original affidavit 
 Instead of a copy of it, to thi declaration, not fatal irregularity, 71 Ga. 
 380. So, incompleteness of copy affidavit accompanying copy-suit served 
 en defendant in trover, will not void the service; the copy is amendable, 
 89 Ga. 361. 
 
 (6) Or "has heretofore instituted" if affidavit made during pendency of 
 suit as provided in §4606. 
 
 (c) Affidavit for bail not true as to possession, defendant discharged from 
 custody, 93 Ga. 712. 
 
 (d) Judgment granted defendant for value of property, where trover 
 non^suited, 88 Ga. 533; or voluntarily dismissed, 77 Ga. 21; though 
 plaintiff surrendered property to levying officer and renewed suit, 95 Ga. 
 436. Such dismissal amounts to a judgment of restitution, and plaintiff's 
 affidavit to obtain bail is oompetent evidence of value of the property, 
 79 Ga. 802. 
 
 (e) See verdict in trover. 
 
 (/) Where the facts so require, insert after "claim" and before "said 
 personal property" the words "a valuable interest in," §4604. 
 
318 GEORGIA FORMS 
 
 (ff) Notary public may take bail-afladavit, and no seal is necessary, 58 Ga. 
 383. So. commissioner for this State in New York may take the affidavit, 
 13 Ga. 462. 
 
 §4607 allows perishable property seized to be sold under the provisions 
 ot §§5463-4, "Where not replevied either by plaintiff or defendant. But 
 after replevy, defendant (had no right to 'SiurreTuder property to shedviff and 
 if he did so, he was liable for its value, 83 Ga. 570. Under §4605, sheriff 
 serving defendant in bail trover, must take reoognizance as follows: 
 
 Bail Bond of Defendant in Actions for Personalty, (a) 
 
 (This form will suffice whether affidavit to obtaia bill be made at the eomtnencement of 
 the action or during its pendency.) 
 
 Georgia, Bibb County. 
 
 Know all men by these presents: That we, William Smith, 
 principal, and James Brown, security, aeknO'yledge ourselves 
 jointly and severally bound to John Jones in the sum of eleven 
 himdred dollars, subject to the follovsring oonditd'oms : 
 
 AYhereas, the said John Jones has 'heretofore instituted in the 
 superior court of said county an action -against the said WilU<i>in 
 Smith, returnable to the April tei'm, 1896, of said court, for the 
 recovery of certain personal property, to wit: (describe the 
 property) and has also filed his affidavit to obtain bail, alleging the 
 value of said personal property to be $500, and claiming $50 as 
 hire ; 
 
 Now, if the said William Smith shall have the said personal 
 property forthcoming to answer sudh judgment, execution or decree 
 as may be rendered or issued in said case, and shall well and truly 
 pay the eventual condemination money, or if the said security, the 
 said James Bromi, shall do so for him, then this bond to be void, 
 else of full force and effect. 
 
 Witness our hands and seals this thef — day of , IS — . 
 
 William Smith [l. s.J 
 James Brown. [l. s.] 
 
 Attest: 
 G. S. Westcott, Sheriff Bihh County, Ga. 
 
 (a) Replevy bond here was substantially sufficient, 93 Ga. 220. Defend- 
 ant failing to give foregoing bond, officer must seize the property. Plain- 
 tiff may then take it by giving like bond. Foregoing form will suffice for 
 such bond, if plaintiff's name be substituted in lieu of defendant's wherever 
 iatter's name appears in the 1st and 3rd paragraphs of the form, §4606. 
 
 (6) Judgment may be signed up against defendant and security on bond 
 without further proceeding, §4605, i. e., no suit on bond necessary, 
 (il Ga. 545. 
 
 Hota. — Property not found, defendant committed to jail until he pro- 
 duces it, wr gives bond, §4606. Sheriff having served declaration and 
 
AND PRACTICE. 319 
 
 process in ^bail-trover merely by leaving copy ait defendant's abode, mak- 
 ing no return as to property or as to arrest of defendant, is liable for 
 eventual condemnation money, 62 Ga. 743. But is not chargeable as 
 special bail, 27 Ga. 365, 71 Ga. 381. Party at whose instance defendant is 
 arrested, non-resident oif county where defendant lies in jail, jail fees 
 must be secured by plaintiff by bond or cash deposit, §4610. Plaintiff 
 must pay accrued jail fees weekly, else defendant discharged on liabens 
 corpus upon application of jailer, §4610, though not- at instance of parties 
 confined, 62 Ga. 605. Defendant held in imprisonment may, under §4608, 
 petition the judge of the court in which suit is pending as follows: 
 
 Petition of Dependant in Bail Process for Release 
 FROM Imprisonment; §4608. 
 
 Georgia, Bibb County. 
 
 To the Honorable W. H. Felton, Jr., Judge of the Superior 
 Court of said county : 
 
 The petition of WilUwm Smith respectfully shows that John 
 Jams has hertofore instituted in the superior court of said county 
 an action against your petitioner, returnable to the April texm, 
 1896, of said court, for the recovery of certain personal property, 
 to wit: (describe the property), and has also filed his afii davit to ob- 
 tain bail, alleging the value of said property to be five hundred 
 dollars, and claiming fifty dollars as hire. 
 
 Petitioner is now held in imprisonment by virtue of said pro- 
 ceedings, -and is neither able to give the security required by law, 
 nor produce the said property, and can furnish satisfactory reasons 
 for its nion-production. And petitioner wias not, -at the date, of 
 plaintiilf's affidavit to obtain bail, in possession, custody, or control 
 of said property, noa* has he siinice been. 
 
 Wherefore, petitioner prays to be discharged from imprisonment. 
 
 Willkmi Smith. 
 
 Petitioner's affidavit to the facts stated in the petition must here 
 follow. 
 
 In cases of imprisonment under bail trover or other mesne process, 
 inquiry upon habeas corpus is limited to regularity of the proceedings, 
 64 Ga. 146. Generally, defendant must follow §4608 in order to regain his 
 liberty; discharge on habeas corpus was error, 94 Ga. 602; and refusal of 
 such discharge was proper, 57 Ga. 407. But after final judgment, habeas 
 corpus is the only way to try legality of the detention, 65 Ga. 245. "Even 
 if a man does obtain possession of personal property illegally, and wrong- 
 fully, and disposes of it," if, when bail affidavit sworn out, he was not in 
 possession and has not been since, he must be discharged, 93 Ga. 714. 
 
 Rule Nisi. 
 
 The petition of William Smith for discharge from imprison- 
 ment under bail process, read and considered. 
 
320 GEOEGIA FORMS 
 
 Ordered, that John Jones sliow cause before me at the court- 
 house in the county of Bilib, at the hour of ten o'clock a.W)., on 
 
 the day of , 18 — , why the said WilUam Smith should not 
 
 be discharged from imprisonment as prayed for. 
 
 Let both parties be served "with a copy of thds order five days 
 before the hearing. 
 
 W. H. Felton, Jr., 
 
 J. S. 0. M. 0. 
 
 Not less than five days' notice of time and place of hearing must be 
 given to both parties, §4608. 
 
 Foregoing rule nisi should be served on both parties at least five days 
 before hearing. 
 
 Order Discharging Defendant; §4608. 
 
 After hearing evidence as to the matters alleged in the fore- 
 going petition, it appearing that the petitioner can neither give the 
 security nor produce the property, and that the reasons for its non- 
 production are satisfactory, ordered, that he be discharged upon his 
 own recognizance, conditioned for his appearance to answer the 
 
 suit. 
 
 W. H. Felton, Jr., 
 
 J. S. C. M. a 
 
 Recognizance of Defendant in Bail Process. 
 
 (.Defendant signing this, discharged; otherwise committed to custody ; §4608.) 
 
 Georgia, Bibb County. 
 
 Know all men by tbese presents: That I, William Smith, 
 acknowledge myself bound unto John Jones in the sum of eleven 
 hundred dollars, subject to the following conditions: 
 
 Whereas, the said Johm: Joties bias heretofore instituted in the 
 superior court of said county, an action, against me, returnable to 
 the April term, 1896, of said court, for the recovery of certain 
 personal property, to wit: (describe the property), and has also filed 
 his afiidavit to obtain bail, alleging the value of said personal prop- 
 erty to be five hundred dollars, and claiming fifty dollars as hire; 
 
 And whereas, by virtue of said proceeding, I was taken into 
 custody, but was afterwards, upon petition to the Honorable W. H. 
 Feltcm, Jr., Judge of the Superior Oourt of Bibb County, ordered 
 discharged upon my own recognizance; 
 
 Now, should I appear to answer said suit, then this bond to be 
 void, else of full force and effect. 
 
 William Smith. 
 
 Attest: 
 John Oray, Notary Public, Bibb County, Ga. 
 
AXB PRACTICE. 321 
 
 CHAPTER 5. 
 OF CLAIMS. 
 
 Claim Affidavit ; §4611. 
 
 GiJOEGiA, Bibb County. 
 
 Before me, J. H. L. Q^rdme, an officer of said State duly author- 
 ized by law to administer oa-ths, personally appeared Arthur Dean, 
 who, being duly swtorn deposes and aays that certain property to wit, 
 (describing it), upon which 7. A. Memvrd, deputy-sherif of said 
 county, has lately levied an eoeecution in favor of John Jones 
 against WilUam Smith issued from ijh© Superior Court of Bibb 
 county, is not the property of the said def endaat but is the property 
 of this deponent. Arthur Dean. 
 
 Sworn to and subscribed before me 
 
 this — day of ■ , 189—. 
 
 Mistake in Christian name of deponent (the claimant), not fatal, 17 Ga. 
 615. Property of A B & Co. levied on, A B should claim in name of A B 
 & Co., not in name of A B alone, 66 Ga. 240. 
 
 Claim admits fact of a levy, 54 Ga. 297; but not legality of the process, 
 68 Ga. 194. ^ 
 
 Fi. fa., against a sole defendant, levy not stating "as whose property" 
 Tand 's levied on, cured by the claim papers, 59 Ga. 849; aliter however, 
 where more than one defendant, and levy otherwise defective, 69 Ga. 780. 
 Claim laws cumulative and permissive, not mandatory, 9 Ga. 28, 60 Ga. 516. 
 Failure to claim not estop subsequent assertion of title, 69 Ga. 429. 
 
 Landlord's lien is not title, 60 Ga. 478. He cannot resist old judgment 
 against tenant by statutory claim, 80 Ga. 95. Must foreclose his lien and 
 look to proceeds, 96 Ga. 263. Except where rent stipulated is part of crop, 
 and has been delivered, 75 Ga. 228. 
 
 Homestead levied on without affidavit under §2850, no counter-affidavit 
 necessary, claim proper; 77 Ga. 467. Beneficiary of homestead may, as 
 such, claim property which has been levied on as her individual property, 
 78 Ga. 767. 
 
 Claim Bond; §4612. 
 
 Xjeoesia, Bibb County. 
 
 Know all men by these presents: 
 That whereas, T. A. Menard, deputy-sheriff of said county, has 
 
 lately levied ark execution for the sum of doUa;^ in favor of 
 
 John Jones against Williwm Smith, issued from the Superior 
 Court of Bibb county, upon certain property, to wit, (doscribing it), 
 to which said property the undersigned Arthur Dean, claims title, 
 
322 GEORGIA FORMS 
 
 Therefore, the said claimant, having made oath to the said prop- 
 erty, and the undersigned security, aeknowledge themselves jointly 
 and severally bound to the said plaintifF, in double the amount o£ 
 Siaid execution, (or, "in double the value of said property," where 
 the property levied on is of less value than the amount of the eixe- 
 cution), to wit, in the sum of d'ollars; 
 
 Upon condition, that if the said claimant, or the said surety, 
 shall pay the plaintiff all damages w'hich the jury on the trial of the; 
 right of property may 'assess against him, in case it should appear 
 that said claim was made for the purpose of delay only, then this 
 bond to be void. 
 
 Arthur Dean, [L. S.] 
 Thmnas Fletcher, [L. S.J 
 
 Approved by the levying officer: 
 i V. A. Menard, Deputy-Sheriff. 
 
 Affidavit and ibomd being made and delivered tlie levying officer shall 
 poBltpone tlie sale until otherwise ordered. §4613. 
 
 But no second claim shall be received and returned to court by any 
 sheriff where a cliaim has already been filed by the same claimiant, and a. 
 verdliot hiad findinig tlhe property subject, and no sulbsequent claim ^all 
 be received from any person who holds under a oomveyance frton the first, 
 claimant, made sufbsequeat to fhe finding of the first claim. §5643. 
 
 Sheriff taking claim affidavit, and forthcoming bond, but neglecting to 
 take claim bond, liable for value of property levied on, 43 Ga. 250. 80 Ga. 
 670. 
 
 Claim bond must accompany affidavit; too late to offer it at trial term, 
 91 Ga. 130. Amendable; duly amended here; refusal to dismiss claim was 
 proper, 69 Ga. 740. 
 
 Surety on claim bond cannot go behind judgment for damages in the 
 claim case by illegality, 68 Ga. 247. 
 
 Effect of bond, where not accompanied by claim affidavit, 94 Ga. 645. 
 
 Claim case called for trial, no claim bond a,ppearing, presumed lost prima 
 facie, but presumption of loss rebutted here, and allowing copy established 
 was error, 91 Ga. 130. 
 
 FORTHCOMIKG BoND ; §4614.* 
 
 When claimant cannot, and plaint itT does not, giveforthooniin.; bond, claimant mny appiy 
 to Ordinary and have the property sold, and then litigate over he i.roceeds, §4620. 
 
 Georgia, Bibh County. 
 
 Know all men by these presents : 
 That whereas, Y. A. Menard, deputy-sheriff of said county, has 
 has lately levied an execution in favor of Jolm Jones against Wil- 
 liam Smith, issued from the Superior Court of Bihb county, upon 
 certain personal property, to wit, (describing it), which said per- 
 sonal property is claimed by Arfhvr Dean, 
 
 ^■' Sometimes calkd Replevy Bond. 
 
a:n'd practice. 323 
 
 Therefore, the undersigned principal, Arthur Dean, acknowl- 
 edges Mikself bound to the said levying officer, as does also the un- 
 dersigned security, Thomas Fletcher, jointly and severally, in 
 double the value of said personal property as estimated by said 
 levying officer, to wit, in the sum of dollars, for the deliv- 
 ery of the said personal property at the time and place of sale, pro- 
 vided the sam'e shall be found subject to said execution. 
 
 Witness our hands and seals, this — day of , 189 — . 
 
 Arthur Dean, [L. S.] 
 
 Thomas Fktcher, [L. S.J 
 Approved by the levying officer: 
 
 V. A. MeiKvrd, Deputy-Sliieriff. 
 
 (With two changes, the above form will sufflie for the plaintiff's use under §4619, where' llie 
 claimant is unable to give bond as there contemplated : (1) Strike Arthur Dean's name from 
 the first line of this page, and insert in lieu thereof, " John Jones," and (2) & dd, at the close of 
 the paragraph ending "subject to said execution," this: "And if not found subjpct, then for 
 the delivery thereof to said levying officer, when said claim shall have been adjudicated.") 
 
 Forthcoming bond made payable, by mistake, to James B. S. instead 
 of Wm. B. S., Wm. B. could sue on the bond and show the mistake, 26 Ga. 
 228. 
 
 Forthcoming bond signed by A as "trustee for wife," by virtue of which 
 A got and consumed property, such words merely descriptive, and A indi- 
 vidually liable, 76 Ga. 743. • 
 
 Personalty levied on and replevied by defendant, afterwards claimed, 
 sheriff not bound to accept forthcoming bond from claimant and transfer 
 possession- tablnj^ 15 Ga. 518. 
 
 Claimant replevying, and afterwarlis becoming insolvent, sheriff no au- 
 thority before breach to re-seize property and charge plaintiff with expense 
 of keeping, 84 Ga. 601; nor can he accept voluntary surrender by claimant, 
 90 Ga. 21. 
 
 Verbal agreement of sheriff, made at time forthcoming bond executed, 
 and qualifying its terms, is void, and is no defenije to suit on it, 91 Ga. 488. 
 
 Though the forthcoming bond is payable to the sheriff, §46i5, yet, under 
 §13, "any person interested * * may bring suit thereon in his own 
 name;" 75 Ga. 530. 
 
 Measure of damages in suit on forthcoming boad, see §5438. As cognate 
 to claimant's forthcoming bond, above, see that required of persons filing 
 Illegality under §5435 hereinafter. 
 
 Claim dismissed, property levied on is then subject, and claimant's rep- 
 levy bond is responsible, 97 Ga. 445. 
 
 Sale of the property, or consumption thereof, or any physical impossi- 
 bility to have.it forthcoming, is ipso f<icto breach of bond, 97 Ga. 442, 76 Ga. 
 743, 92 Ga. 121, 85 Ga. 657. And, claim being dismissed, failure to read- 
 vertise is no defense in -such cage, 55 Ga. 206. But sale by claimant pend- 
 ing claim.,n,ot prevent him from matiitaining his title, 69 Ga. 284. 
 
 Property providentially destroyed, obligor must so show, 91 Ga. 765. 
 
 Refusal to deliver on demand is breach, without proof of advertisement, 
 54 Ga. 676. Claimant must take notice of time and place of sale,' and have 
 property there, 6 Ga. 262. Demand not pre-requlsite to suit on bond, /6. 
 Advertisement is notice, 9 Ga. 42. Tender of the property after day of sale 
 not relieve obligors, /b. But lien of judgment upon the property not dis- 
 
324 GEORGIA FORMS 
 
 charged by forfeiture of the forthcoming bond and plaintiff finding the 
 property priding suit on the bond, may sell- it, 85 6a. 552; criticising as 
 oMier and ill advised the suggestion in 9 G-a. -12, that forfeiture of bond 
 discharges the judgment lien and relegates plaintiff to the bond alone for 
 redress. 
 
 Dismissal of claim because sheriff delivered property to claimant withr 
 out forthcoming bond, error, 29 Ga. 538. 
 
 In suit on forthcoming bond,, execution und<^ which levy made indis- 
 pensable evidence, 29 Ga. 427. : ' - ; 
 
 Where claimant is unable to give bond, he may file, in addition to the 
 oath required in §4611, an aflldavit as follows: 
 
 Paupee Claim Affidavit; §4618. 
 
 Georgia, £M County. 
 
 "I, A B, do swear that I do not interpose this claim for delay 
 only; that I bonu fide cliaim the right and title to the same; that I 
 am unable 'to give l)ond and security as now required by law." 
 
 Arthur Dean. 
 Sworn to and subscribed before me 
 
 this — day of , 189 — . 
 
 A man cannot take the pauper affidavit by an agent; he must take it 
 himself, 83 Ga. 636. 
 
 The levying officer shall return the claim, together with the execution, 
 to the next term of the court from which said execution issued; but should 
 it be levied upon real property, then to the next Superior court of the 
 county in which the land lies, §4621. 
 
 Where a Justice Court chattel mortgage fi. [a. is levied, a claim filed 
 thereto is returnable to the court where foreclosure took place, 77 Ga, SSg." 
 §2762 authorizes the justice who issues such fl. fa. "bo hear the oa«iein its 
 totality." J6. 
 
 Execution from court of ordinary, returnable to next Superior court of 
 the county, §4628. 
 
 Formerly, after a levy and claim, and return of the papers into court by 
 the officer, plaintiff was hindered in the matter of making another levy by 
 the difficulties which stood in the way of his withdrawing his /?. fa. from 
 the court. But now he may do so at any time by application to the clerk, 
 §4629. 
 
 Joining Issue in Claim Gaim Case; §6646. 
 
 (Issue must be tendered within five minutes after announcement of ready by both parties.) 
 
 Kow comes the iplaantiff in fi. fa. and traverses and denies the 
 elaimant's aiRdiavit in the within case, and says tlxat said property 
 therein described is not the property q| claimant, and is subject 
 to said fi. fa., and of this he puts himself upon the country. 
 
 JI. C. Sheffield, 
 Attorney for plaintiff in fi. fa. 
 
AND PRACTICE. 
 
 The above is taken verhatim from 61 Ga. 137, where the Supreme Court 
 declare it to be a due tendering of issue "within the true intent and mean- 
 ing of the 15th rule of court, " (§5646). They also endorse the practice 
 which Judge Sheflaeld there followed for Ma clienit, of writing out the 
 traverse on the claim papers at their return into court, instead of waiting 
 until the case is called. 
 
 No exceptions allowed to bond or aifidavit after issue joined unless 
 taken in writing before, §5646. See also 85 Gia. 687. Claimant refusing to 
 join issue, plaintiff may proceed with his proofs, 94 Ga. 677. 
 
 Oath of Juror in Claim Case; §4623. 
 
 You do solemnly swear to give sucli damages, not less tban ten 
 per cerit., as may seem reiasonable and just, to the plaintiff against 
 the claiman't, in case it shall be sufficiently shown that this claim 
 was miade for delay only. So help you God. 
 
 In claim cases, the burden of proof is on the plaintiff in execution 
 wherever the property at the time of the levy, was not in defendant's pos- 
 session, §4624. And in such event, plaintiff is entitled to the conclusion; 
 although, if the claimant introduces no evidence, he concludes, §5644. 
 
 Claimant canntot show title in third person, 6 Ga. 529, 76 Ga. 833. 
 
 Motion to dismiss levy is proper motion for claimant; not his concern 
 whether fl. fa., good or bad; quashing it on his motion, error, 83 Ga. 270. 
 
 Verdict here for damages for delay, reversed; 97 Ga. 375. 
 
 Claim Affidavit to Stop Executor's Sale; §4630. 
 
 Georgia, Bihh County. 
 
 Personally comes Arthur Dean, who being duly sworn deposes 
 and says that Robert Enoin, eooeeutor of John Jones, late of said 
 county, deoeiased, has advertised to sell, (or, has obtained an order 
 to sell) as the property of his testator, tie following: (describ- 
 ing it). 
 
 Wherefore deponent now. files in the Court of Ordinary thi? his 
 claim affidavit as provided by law, and says that said property is 
 not the property of deceased's ^estate, biit is f)he property of this 
 deponent. Arthur Dean. 
 
 Sworn to and subscribed before me 
 
 this — day of , 189—. 
 
 A copy of the above affidavit must be served on the executor or other 
 trustee previous to the day of sale, §4630. 
 
 ■ Ordinary shall transmit such claim affidavit 'to the next term of fhe Supe- 
 rior court of the county where the land lies, and the right of property 
 shall there be tried, as provided for claims to property levied on by 
 execution; §4631. 
 
 All such claims to personalty the ordinary shall transmit to the Supe- 
 rior court next to be held after such claim is filed in the county where 
 such executor, administrator, guardian or 'trustee resides; §4632. 
 
326 GEORGIA FORMS 
 
 CHAPTER 6. 
 CERTIORARI. 
 
 Petition for Ceetioeaei; §4637. 
 
 Georgia, Bihi County. 
 
 To the Superior Court of said County : 
 
 The petition of William Smith respectfully sliows tihat on the 
 
 day of , 189 — , before J. H. L. Gerdine, Notary Publif 
 
 and ex oificio Justice of tlie Peace for the 564th milltki district, 
 said county, there came on to be tried a, cause wherein Joli^i 
 ■Jones was the plaintiff and petitioner Was defendant, the saine 
 being an action upon open account for the sum of dollars. 
 
 The fudgnwnt in said cause was ladverse to petitioner and he is 
 dissatisfied therewith. Wow therefor© he brings this his petition 
 for certiorari within 'thirty days after dhe final determination of 
 said cause, and here proceeds plainly and distinctly to set forth 
 what occurred on said trial and lihe errors complained of. 
 
 Eirst: (&c.) 
 
 Wherefore, the premises considered, petitioner prays a writ of 
 certiorari, directed to the ^aid J. >H. L. 'CrerdAine, Notary Public 
 and ex off. Justice of the Peace as af otresaid, requiring such Jiist- 
 ice of the Peace to certify and send up all the proceedings in said 
 cause to the Supierior court to be held in and for said county on the 
 tJiird Monday in April, 1891, that the errors alleged to ha-ve been 
 committed may be oonsidered and oorrected. 
 
 This — day of , 189 — . WilUam Smith. 
 
 As to when certiorari is -the remedy and when appeal, see notes on 
 Appeal, ante p. 291. See also notes on page 1186 of Vol. II. of the code. 
 
 Valuable briefs on §§4634 and 4637 will be found under those sections 
 in the code. To reproduce the same here, even in an elaborated and sup- 
 plemented form would save comparatively little labor to the bar and the 
 3iisi prius judges; and the justices of the peace, are not, as such, legally 
 concerned with the method of reviewing their action. 
 
 Under §4635, exception to decision of court of ordinary must be in writ- 
 ing, to be basis for certiorari, 74 Ga. 826. Aliter as to ordinary's decision 
 on Eabms Gorpus and the like, 34 Ga. 91. 
 
 County court judgment reviewable on certiorari, 97 Ga. 457. So is city 
 court judgment 98 Ga. 202; even after motion for new trial made and dis- 
 missed in Supreme Court, if time enough left, 54 Ga. 458. 
 
 Before * * * writ shall issue * * * party * * * shall give bond and * * 
 produce a certificate * * * that costs paid, §4639. But such certificate 
 
AND PRACTICE. C27 
 
 need not accompany petition for ceniorari when presented to judge for 
 sanction, 64 Ga. 599. 
 
 Neel act not applicable to certiorari, 97 Ga. 457. 
 
 Under §4642, as amended by act of 1889, certiorari must be applied for 
 ■wi'bliin thirty days, but §3771 was not affected by that act, so that now, 
 petition filed within three months is in time under §3771, though must be 
 sanctioned in thirty days, 97 Ga. 258. 
 
 In justice's court tim« runs from verdict of jury, not from judgment 
 thereon, 70 Ga. 388. See general notes to §4642. 
 
 No certiorari until final determination of case, 93 Ga. 760; rule of §5526, 
 as to writs of error, not applicable to certiorari Ih. 
 
 Admission of illegal evidence complained of, objections made at trial 
 must be set out, 99 Ga. 613. 
 
 Petitioin not amendable, 77 Ga. 649, 81 Ga. 479. 
 
 Petition for certiorari comes within the statute allowing renewal of cases 
 within six months after dismissal (§3786), where dismissal because of de- 
 fective bond, 80 Ga. 496; or because of defective affidavit, 32 Ga. 435; or no 
 affidavit, 48 Ga. 362. But wihere there is no notice of sanction, there is no 
 application at all for certiorari, 74 Ga. 837. 
 
 Petition sanctioned but never filed, and lost, not esablished as office 
 paper, 58 Ga. 469. 
 
 Affidavit; §1(538. 
 
 Georgia, Bibb County. 
 
 I, WilUmm S'mith, do solemnly swear that the petition for cer- 
 
 . tiorari is not filed in the case for 1Jhe purpose of delay only; and I 
 
 verily believe I have good cause for certiorari, and that the faots 
 
 stated in the foregoing petition, so far as they come within my own 
 
 knowledge, are true, and, so far as derived from the knowledge of 
 
 others, I believe them to be true. 
 
 William Smith. 
 Sworn to and subscribed before me 
 
 this — day of , 189—. 
 
 J. H. L. Gerdine, 
 N. P. and ex-off. J. P. 
 
 Even if affidavit insufficient, certiorari not dismissed after answer, if 
 answer supports petition, 20 Ga. 77. 
 
 Where corporation petitioned for certiorari, its treasurer's affidavit "I 
 verily believe," -etc., good, 67 Ga. 38. 
 
 §4639 provides that, except as afterwards provided, (see pauper affidavit 
 below) the party applying for certiorari shall give bond as follows: 
 
 Bond; §4639. 
 
 Georgia, Bibb County. 
 
 Know all men by these presents : 
 That whereas, William Smith is defendant in a certain suit on 
 account, wherein John- Jones is plaintiff, in the Justice's Coart 
 
328 GEORGIA EOEMS 
 
 for the 564th Militia District, said county, in ■wMcli said cause, 
 
 on the — day of , 189 — , a judgmfent (or verdict, as case may 
 
 be) for the sum of dollars was rendered, against the said 
 
 WillifMn Smith; 
 
 And whereas, the said 'Will'i(Dm Smth is dissajtisfied with the 
 judgment in said cause and deisines to obtain a writ of certiorari j 
 
 Now therefore the undersigned principal, WilUam Smith, and 
 the undersigned security, Hen/ry Thompson, acknowledge them- 
 selves jointly and severally bound t)o the adverse party in said 
 cause, viz., the said John Jones, for the payment of the eventual 
 condemnation money, together with all future costs. 
 
 Witness our hands and seals, this — day of , 189^. 
 
 WilUcDm Smith, [L. S.] 
 Henry Thompson, [L. S.J 
 
 Approved: 
 
 J. H. L. Oerdine, N. P. and ex-off. J. P. 
 
 The party, authorized- to take bond and security may compel the security 
 tendered to justify upon oath, and such justification shall exonerate the 
 party taking the same from any liability, §4640. 
 
 No bond, no writ, 87 Ga. 18. 
 
 Execution of the bond before the justice not required; before notary 
 public sufficient, 70 Ga. 523; but must be approved by justice of the peace, 
 74 Ga. 369. 
 
 Such approval not appearing certiorari dismissed, 74 Ga. 402. 
 
 Bond signed by attorney in fact, power of attorney should be attached, 
 72 Ga. 210. 
 
 The petition for certiorari must also produce a certificate from the officer 
 whose decision or judgment is the subject-matter of complaint, as follows. 
 
 Ceetificate; §4639. 
 
 Georgia, Bibb County. 
 
 I, J. H. L. 'Gerdvn^, the officer whose judg^mient is the subject 
 matter of oomplaint in the foregoing petition for certiorari, do 
 hereby certify that Williaim Smith has paid all the costs accrued 
 on the trial. Witness my hand and official signaiture, this — day 
 of —, 189—. J. H. L. Oerdine, N. P.'and ex-off. J. P. 
 
 As to certificates, the sufficiency of, whose language has been passed on 
 the Supreme Court, see 94 Ga. 660, 76 Ga. 355, 70 Ga. 716. 
 
 Magistrate whose judgment is reversed on certiorari, not compellable to 
 refund costs, 61 Ga. 597; he "earns his costs by rendering the service re- 
 quired of him, and pronouncing the judgment which he deems correct. 
 * * * He does not insure the correctness of his judgment." 76. (Bleck- 
 ly, J.) 
 
A^D FIlACTICE. 3-29 
 
 The costs payable as prerequisite to certiorari from judgment on ille- 
 gality, are only the costs of the illegality, not of original case, 76 Ga. 355. 
 
 Itemized bill, receipted, no substitute for statutory certificate, 72 Ga. 201. 
 
 No "condemnation money" in forcible entry and detainer; hence certifi- 
 cate need not mention bond therefor, 20 Ga. 77, 75 Ga. 847. 
 
 Proper bond in record, silence of certificate as to, not fatal, 67 Ga. 274. 
 
 While certificate must be filed, along with sanctioned petition within the 
 time prescribed, before writ can issue, yet it need not accompany petition 
 when presented for sanction, 64 Ga. 599. 
 
 Justice's certificate more than three months after rendition of judgment, 
 fatally tardy, 64 Ga. 600. 
 
 Pauper Affidavit; §4641. 
 
 Georgia, Bibb County. 
 
 Before me, , of said county, an officer^of said State duly 
 
 autborized by law to administer oaths, personally comes William 
 Smth, wlio on oath says that lie is advised and believes that he has 
 good cause for oertioraring the proceedings in the foregoing peti- 
 tion to the Superior Oou)ft, ftsd that-owing, to 'his povefty he' i^ un- 
 able to pay the costs (or, . "give the security")* required by law. 
 
 William S'lnith. 
 Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 Attorney cannot make pauper affidavit for client, 48 Ga. 351. 
 
 Nor can any agent, 83 Ga. 636, and divers other decision. Aliter as to 
 guardian; he or ward either, miay make the afiidavit, 94 Ga. 209. 
 
 Partnership petitioning for certiorari, affidavit by partner that he is una- 
 ble to pay costs, etc., insuflJcient, 92 Ga. 554. 
 
 Affidavit accompanying bond (§4638) need only say that affiant "verily 
 believes;" but pauper affidavit (§4641) must say that "he is advised, etc.," 
 i. e., it contemplates competent advice as a prerequisite, 55 Ga. 316. 
 
 Sanction of Petition for Certiorari; §4637. 
 
 The within petition for certiorari read and sanctioned, tihi? 
 
 day of , 189 — . Let the writ issue as prayed. 
 
 W. H. Felton, Jr., 
 
 J. S. C. M. C. 
 
 Sanction by judge out of his circuit need not state ground for assuming 
 jurisdiction, 76 Ga. 103. 
 
 Certiorari sanctioned but never filed, not established as office paper, if 
 lost, 58 Ga. 469. 
 
 *Tlie bill introduced by Mr. Whitaker, ol Heard, and approved December 21, 1897, amends 
 
 word."and" and inserting In lieu thereof the word "or," and by adding, after the last line 
 thereof the words " as the case may be." 
 
330 GEORGIA FORMS ' 
 
 Writ of Certioraei; §4637. 
 
 Georgia, Bibb County. 
 
 Office of the Clerk of the Superior Court. 
 
 To J. H. L. Grerdine, Notary PuhUc o/nd ex-aff. Justice of the- 
 Feace in and for the 564th Militia District, said county : WilUmn 
 Smith having heretofore duly presented a petition for the writ of 
 certiorwri, alleging certain errors to have committed upon the trial 
 
 before you, on the — day of , 189 — , of an action upon <m 
 
 open acGOimt for dollars, wherein John Jones was plaintiff" 
 
 and said William Smith defendant, and said petition having been 
 duly filed in my office with 'the sanction of th© judge of this cir- 
 cuit, the Honorable W. H. Pclton-, Jr., indorsed thereon, according 
 to law ; which said petition you will receive herewith ; 
 
 You are hereby required to answer the same, and certify and' 
 send up all the proceedings in said cause to the Superior Court to 
 be held in and for said county on the third Monday in April,. 
 1897. 
 
 Witness the Honorable W. H. Feli<m, Jr., Judge of said court,, 
 
 this — day of , 189—. 
 
 Robert A. Nisbet, Clerk. 
 
 The writ, when returnable, §4642. When and by whom sci'ved, §4643. 
 Petition sanctioned and filed, clerk's failure to issue writ curable by 
 proper order during term, 58 G-a. 166. 
 
 The Ten Days' Notice of Sanction of Certiorari; §4644 
 
 Georgia, Bibb County. 
 
 To John Jones: 
 You are hereby notified of the sanction of la writ of certiorari in 
 the case .between you and myself tried in the Justice's Court for 
 
 ihc 564th Militia District, said county on the — day of , 
 
 189 — . Said writ will be heard at the cour't-house in said coointy at 
 the next term of the Superior Court, to be held on the tMrd Mon- 
 day in April, 1897. This — day of , 189—. 
 
 William Smith. 
 
 Notice here insufficient, 65 Ga. 303, 72 Ga. 208. 
 
 Notice of certiorari "granted" means "sanctioned," and is enough, 67 
 Ga. 516. 
 
 Handing certiorari papers to counsel no substitute tor notice, 86 G&. 659. 
 Service on counsel whose connection with the case ended with the justice's 
 court good, 89 Ga. 800. 
 
 Waiver of the Notice. 
 
 Written notice of the sanction of the writ of certiorari, as 
 prayed in this petition, and of the time and place of hearing, 
 waived. This — day of , 189 — . 
 
 Attorney for Defendant in Certiorari. 
 
AND PEAGTIOE. 331 
 
 Written waiver dispenses witto notice, 46 Ga. 616. Personal letter no- 
 substitute, 93 Ga. 217. Waiver of notice must be in writing, 72 Ga. 210.. 
 Waiver suflScient here, 95 Ga. 31. 
 
 Answer; §4646. 
 
 [The statute (§4648) is imperative that " the answer shall not be written or dictated by either- 
 of the parties, or their attorneys, or aoy other person Interested in the cause.''] 
 
 Geoegia, Bibb County. 
 
 Office of the Notary Public and ex off. Justice of tlie Peace foi- 
 
 th© o&ilfth I>ist., G. M. 
 
 And now oomes J. H. L. ^Qerdiine 'Notary Public und ex-off.. 
 Justice of the Peace, in and for the 56Jfth Militia District, said 
 couniy, and naakes tihis im answer to a certain writ of certiorari 
 heretofore 'delivered tO' him, together with la petition therefor re- 
 garding a cause alleged to have been tried before him on the — 
 
 day of , 189 — , wherein John Jones was plaintiff and Williani.. 
 
 Smith defendant. 
 
 Replying specifically to the allegations in said petition, respond- 
 ent says: 
 
 First: (&c.) 
 
 True copies of all the proceedings in said cause are herewith 
 
 sent up^ Witness my official signature, this — day of , 189 — . 
 
 J. H. L. Crerdine, 
 
 Notary Public and ex-off. Justice of the Peace 564th G. M. D. 
 
 The answer must be filed on the first day of the term to which it is re- 
 turnable, and must "reply specifically to the allegations in the petition," 
 §4646. 
 
 A magistrate's answer should not merely accept statement in petition 
 and certify same as a fair representation of what trahspired, 64 Ga. 576; 
 tut should reply specifically to the allegations in the petition for certio- 
 rori, §4646. 
 
 "Original papers in a justice's court case are not to be sent up in an- 
 swer to a certiorari," 89 Ga. 800. 
 
 Since the act of 1895, §4323, certiorari may be heard in vacation, with- 
 out any order passed in term time. 
 
 If the legislature would provide each judicial circuit of the State with 
 some such official as a "Standing MEister," attaching to such office a reason- 
 able salary, and making it one of the duties of such master to hear argu- 
 ment on all certioraries and report them to the judge of the circuit for his 
 determination, the cash value of the time thus saved would exceed the sum 
 total of the salaries of such masters. 
 
 Exceptions to Answer; §4647.* 
 
 [State the case.] 
 
 And now, before the call of the above stated ease, comes Wil- 
 
 *In giving notice of the exception, the safe praclice wou'd be to serve a copy thereof, to- 
 gether with uotios of filing. 
 
332 GEORGIA 'FOliMS 
 
 liam Simith, and fileg these his exeeiptions to the a'nswer, arid for 
 cause of exoeiption says: 
 
 First: (&e.) 
 
 Wherefore the said Will/mm Smith prays that these his excep- 
 tions be sustained, and that said answer be perfected under order 
 of lihe court. WilUcmi S'mitJi. 
 
 AflBdavit of incompleteness necessary to have magistrate answer more 
 fully; mere motion not enough, 26 Ga. 414. (1858). But exceptions need 
 i;ot now be verified, 72 Ga. 189. "The case in 26 Ga. 414 was decided before 
 the Code went into effect." IMd. Exceptions need not be sworn to nor 
 di.=!posed of at term at which filed, 72 Ga. 189. 
 
 Exception that answer "did not specifically reply to the allegations in 
 the petition" too general, 65 Ga. 260. Answer imperfect should be ex- 
 cepted to before case called in its order for hearing, and thus jxerfested; 
 if unperfected when hearing takes place, exception too late and certiorari 
 dismissed, 64 Ga. 576. All exceptions to the answer must be taken before 
 case called, 40 Ga. 38. If petitiop complain of, admission of testimony and 
 , Slate ground ,of gihjection urged, answer failing, to' disclose ground urged 
 should be excepted to, else such error not considered, 79 Ga. 700. Papers 
 appended to petition (interrogatories here) not identified by magistrate's 
 answer cannot be considered by -Superior court, 77 Ga. 50. Such failure 
 to identify should be excepted to. IMd. 
 
 In deciding certiorari, judge confined to record; receiving oral explana- 
 tion from magistrate error, 55 Ga; 381. 
 
 Where magistrate sent up plaintiff's counsel's memorandum of the evi- 
 dence as his answer, and such answer was excepted to, dismissal was 
 error; judge should have directed him to answer over, 41 Ga. 327. 
 
 Traverse; §4651. 
 
 [Stat» the case ] 
 
 And now comes Willdam Smith, at the return term of the above 
 slated certriorari, and before the hearing thereof, and, being duly 
 svi'om, tiiaverses the truth of the answer in the above stated cause, 
 and specifies the following portions of said answer as being untme 
 in point of fact: 
 
 First: (&c.) 
 
 Wherefore be prays the verdict of a jury upon-the issue as to 
 the facts. William Smith. 
 
 Sworn to and subscribed to before me 
 
 this — day of , 189 — . 
 
 Objection to traverse, or any matter connected therewith, not requiring a 
 jury, may be heard in vacation. See §4323. 
 
AND PRACTICE. 383 
 
 Ohder; §4656. 
 
 Upon hearing the above stated petition for certiorari it i;. 
 orderfed that the same be finally overruled. 
 
 Let the defendant in certiorari, John Jones, have leave to sign 
 up judgment in tihis court 'against the plaintiff in certiorari, Wil- 
 liam Smith, and his security, Henry Thompson, for the sum re- 
 covered in ijhe court below by the said John Jones, to vi^it, dol- 
 lars, together with the costs iu this court. 
 
 This — day of , 189—. W. H. Felton, Jr., 
 
 J. S. C. M. C. 
 
 Judgment. 
 
 Whereupon it is ordered and adjudged that John Jones do re- 
 caver of William Smith, prinicipal,_ and Henry Thompson, security, 
 
 the sum of dollars, together with the costs in the Superior 
 
 Court, to wit, dollars. 
 
 This — day of , 189 — . Fletcher M. Johnson, 
 
 Attorney for John Jones. 
 
 In reviewing by certiorari the verdict of justice court jury, same wide dis- 
 cretion allowed judge of the Superior court as in grant or refusal of new 
 trial, 78 Ga. 354; 76 Ga. 683; 74 Ga. 391; 73 Ga. 739. 
 
 Facts involved, new trial, not final judgment, 97 Ga. 366; 98. Ga. 243. 
 
 The following rule seems to be fairly deducible from §§4652-6 and the 
 notes thereto: When evidence must toe introduced in order to make out 
 the plaifftiffs "ease; or to- estatillsh the defendant's defense ;^ that is,- when 
 there are conclusions' of fact to be ascertained from testimony: the cAse 
 should be remanded for another hearing; if there is no dispute as to the 
 facts, and the case turns purely upon a legal question, the Superior court 
 may render a final judgment. If, by reason of repeated verdicts not sup- 
 ported by the evidence, the judge is satisfied that instructions should te 
 given with a view to ending t)he litigation, he may do so; as, for instance, 
 he may direct that if at the next hearing the evidence is substantially the 
 same as at the last, a verdict should be rendered for the then losing party. 
 
334 GEOEGIA FORMS 
 
 CHAPTER 7. 
 PROCEEDINGS TO OBTAIN DOWER. 
 
 Notice of Intention to Apply fok Dowek; §4699. 
 
 To Robert Erwin, permanent administrator upon the estate of 
 John Jones: 
 
 Take notice that on the — day of , 189 — , I will make ap- 
 
 ;plication to the Judge of the Superior Court of Bibh county, at 
 
 -chambers, for assignment of dower. This — day of , 189 — . 
 
 iSardh Jones. 
 
 The applicant shall give written notice to the representative of such es- 
 tate, or if she he the representative, then to the person or persons inter- 
 ested, ten days, if they reside in this State, or if they reside without the 
 State, two months' notiee in some public gazette of this State, of such in- 
 tended application for such assignment of dower, §4699. 
 
 The application for dower shall not be made until after the expiration of 
 three months from the death of the person to whom said lands and tene- 
 ments belonged, §4698. 
 
 Application foe Dower; §4697. ' 
 
 To the Honorable W. H. Felton, Jr., Judge of- the Superior 
 Court for said county, (or, "To the Superior Court of said 
 county") : 
 The petition of Sarah Jones respectfully shows: 
 First: She is the widow of John Jones, who died more than 
 
 three months since, to wit, on the — day of , 189 — , seized of 
 
 certain lands and tenements situate in said county^ (describing 
 them, stating 'w*hether or not they are in a city, town or village). 
 
 Second: Applicant has given ten days written notice of her in- 
 tention to apply for dower, as required by law, to Robert Erwin, 
 administrator upon the estate of said deceased. 
 
 Wherefore petitioner prays a writ of admeasurement of dower, 
 pursuant to the statute for such cases provided. 
 
 Sarah Jones. 
 
 If the widow applying for dower be also the representative of the estate', 
 substitute instead of the second paragraph of the foregoing form the fol- 
 lowing: 
 
 Second: Petitioner, being the representative of said estate, to 
 ^vit, administratrix thereof, has given ten days written notice of 
 
AKD PRACTICE. 335 
 
 -her intention to make this application, to the only other residents 
 of this Stater besides herself who arC' interested, viz., (naming theili 
 
 .and giving their ages if they be minors). She has also given two 
 months notice in a public gazette of this State, to wit, the Macon 
 Telegraph, of such intended application for assignment of dower. 
 
 Whenever a minor is interested in any litigation pending in any coun 
 and has no guardian, or his interest is adverse to that of his guardian, a 
 .guardian ad litem shall be appointed, who sihall be responsible to such 
 minor as if he were a regularly qualified guardian, §2538. ' 
 
 And so as to proceedings at chambers, §4866. 
 
 As to how minors shall be served, see §4987, and forms cognate, here- 
 inafter. 
 
 If a tract of land is divided by county lines, the entire dower may lai.". 
 ■off in either county; if several tracts lie in different counties, the dowe. 
 must be applied for and laid out in each county, §4692. 
 
 Order Appointing Commtssioners ; §4697. 
 
 The application of Sarah Jon^s, widow of John Joiies, to have 
 •dower assigned to her out of certain lands and teneaments in Bibh 
 -county, . read and considered. Ordered that the following five fit 
 .arid discreet freeholders of said county (naming them), be and they 
 -are hereby appointed commissioners to act upon said application. 
 Let the clerk of this court issue a writ for that purpose, direotir.p, 
 -said freeholders, or a majority of them, to enter upon said lands 
 and tenements, and to admeasure, lay off and assign the dower to 
 which the applicaoit is entitled by law in such lands. 
 
 This — day of , 189—. 
 
 W. H. Felton, Jr., J. S. C. M. C. 
 
 Writ of Admeasurement of Dower; §4697. 
 
 'Georgia, I In the Superior Court of said County, 
 Bibb County, / Term, 189—. 
 
 To (the five commissioners, naming them). Greeting: 
 
 On the — day of , 189 — , by order of the Honorable W. 
 
 Jrl. Felton, Jr., Judge of the Superior Court for said county, grant- 
 ed upon the application of S-arah Jones to have dower assigned to 
 her, you have been appointed as being fit 'and discreet freeholders of 
 ■said county, to,as3ign to 'her Such dower out of certain lands in said 
 •county, to witi (describing them as in lihe application for dower). 
 
 Therefore, by virtue of said order, you, or a miajority of you, are 
 liereby directed to enter upon said lands and tenements, and to ad- 
 measure, lay off as you may think proper, just and equitable, and 
 assign to the said applicant the dower to which she is entitled bv 
 
336 GEORGIA FOEMS 
 
 law in such lands to wit, one-Jtliird part thereof, having regard 
 always to the shape, quantity and valuation of the same. 
 
 And finally, you are required to make return of your proceedings 
 hereunder to 'tihe next term of the Superior court of said county. 
 
 "Witness the Honorable W. S. Feltom, Jr., Judge of said court, 
 
 this — day of , 189—. 
 
 Robert A. Nisbet, Clerk. 
 
 Tbe persons appointed to lay oft dower as aforesaid shall take the follow- 
 ing oath, to be administered by an officer authorized to administer oaths, 
 or before one of their number, he first swearing before the rest: 
 
 Oath of Commissioners; §4700. 
 
 "I do solemnly sweaa- that I ■will dully and impartially execute the 
 laws, to the best of my understanding. So heip me God." 
 
 §4701 provides that the commissioners may employ the county surveyor, 
 or other competent surveyor of an adjoining county, in making the survey 
 and admeasurement of dower, who shall be required to make a careful 
 plat of such survey of dower, which shall be recorded with the return of 
 the commissioners. The commissioners shall make return of their pro- 
 ceeding to the succeeding term of the court after their appointment, 
 §4701. 
 
 Return; §4701. 
 
 Georgia, Bibb County. 
 
 The undersigned, having executed the commission entrusted to 
 them by virtue lof the writ of admeasurem^ent of dower hereto 
 attached, make this their return. 
 
 Having taken tJi© oath required by section 4700 of the Civil 
 Code, we duly proceeded, according to law, and did enter upon 
 the lands described in said writ, and with the aid of George 8. 
 Birch, county surveyor of said county, we did on the — day of 
 
 , 189 — , survey, admeasure, lay off and assign to the applicant 
 
 what "we considered (having due regard for quantity, shape and val- 
 uation), to be one-third of said lands. 
 
 A careful survey, mlade by said surveyor, of tie dower lands 
 thus seit apart, is hereto attached and maide a part of this return. 
 
 W© have spent days in executing the said wr'it. And we 
 
 employed the said surveyori--^^-^ — ^days. 
 
 (Signed by the commissioners or a majority of them). 
 
 Judgment ; §4704. 
 
 The foregoing return of the commissioners appointed to assign 
 dower to Sarah Jones read and considered. Ordered that the 
 
AND PEACTICE. 337 
 
 'same be, and it is hereby oonfirmed and made tlie judgment of this 
 court, and the said Sarah Jones is hereby adjudged and deoki'ed 
 to have an estate for life in the lands set lapart. Let the clerk of 
 this court issue a writ pursuanlt h'erdto, directing the sheriff to pu t 
 the said Sarah Jones in possession of the dower lands so assigned. 
 
 Ordered further, that the representative of -the estate of the de- 
 ceased husband, viz., Robert Erwm, the a,dmvmstrator upon said 
 Estate, do pay, out of the assets therebf , all costs, including two dol- 
 lars per day for each of the commissioners; and dollars for 
 
 the surveyor. Let execution issue accordingly. 
 
 This — day of , 189—. 
 
 W. H. Felton, Jr., J. S. C. M. C. 
 
 Weit op Possession for Dowee Lasds ; §4704. 
 
 Georgia, Bibb County. 
 
 To the Sheriff of said County, and his Lawful Deputies : 
 
 You are hereby required to put S<lrah Jones in immediate and 
 full possession of the following described real estate situate in said 
 county, to wit, (let ithe clerk in filling in the description of the 
 premises, follow the "careful survey made by said surveyor" as in- 
 dicated on the plat attached to and adopted by the return of the 
 commissioners) 
 
 Which said real estate has been by authority of the Judge of the 
 Superior courit for said county, duly set apart and assigned to the 
 said Sarah Jones for life, as her dower in the lands, of which her 
 late husband, John Jams, died seized and possessed. 
 
 You are further required to make return hereof to said court as 
 soon as this writ of possession has been lawfully executed. 
 
 Witness the Honorable W. H. Felton, Jr., Judge of said court, 
 
 this — day of , 189 — . 
 
 Rohert A. Nwbet, Olerk. 
 
 WHERE WIDOW ELECTS 10 TAKE CASH IN LIEU OF DOWEK. 
 When the widow elects to take oabh in lieu of dower, the Commissioners to Astif n Dower 
 are ocnfroi.ted with the duty of estimating the cash value cf a life estate, i. e., the eabh value 
 of the widow's life interest in one-third of her husband's lands. The Carlisle. Mcrtality 
 Table, and also the Annuity Table, wiUte found on p. 26S of this work, and Instructions lor 
 use of the tame in estimating the cash value of a dower interest, or other life estate will be 
 found on p, 274. 
 
338 GEOKGIA FORMS 
 
 CHAPTER 8. 
 GARNISHMENTS. 
 
 Garnishment Affidavit; 4708. 
 
 Geoegia, Bibb County. 
 
 Before me, J. H. L. •Oerdine, an officer of said State authorized 
 by the Code to issue attacliments, personally appeared JdJm Jones, 
 and, on oath, says that William Smith is iadebted to him in the 
 
 sum of dollars and — eents, for which amount suit is 
 
 now pending (or, for which "judgment has been obtained," as the 
 case may be), in the Superioi' Court of said county, and deponent 
 has reason to apprehend the lo^ of the same or some part thereof 
 unless process of garnishment do issue. John Jones. 
 
 y worn to and subscribed to before me 
 
 this — day of , 189—. 
 
 1 J. H. L. Oerdine, N. P. and ex-off. J. P. 
 
 Affidavit ty plaintiff's attorney "according to the best of his knowledge 
 and belief," good, §4706. But language here did not follow statute and 
 was insufficient, 66 Ga. 256. 
 
 Single affidavit and bond covering six cases on six small notes in justice 
 court, void, 61 Ga. 370; separate prooee.Mngs for eaoh case necessary, lb. 
 
 Summons of garnishment may issue in favor of any plaintiff in attach- 
 ment, on request, §4549. 
 
 Garnishment Bond ; §4708. 
 
 Geoegi , Bibb County. 
 
 We, John Jones, principal, and Jamies Brown, security, acknowl- 
 edge ourselves jointly and severally bound unto WiUiami Smith 
 
 in the sum of dollars, subject to the following conditions: 
 
 That whereas, the said John Jones, principal, is seeking the 
 process of garnishment against the said William Smith, and has 
 made affidavit for that purpose stating the amount claimed to be due 
 
 /( inl by said Williotm SmUh to be dollars, for which amount 
 
 suit is now pending, (or, for which "judgment iias been obtained") 
 in the Superior Court of Bibh county j 
 
 Now, should the said John Jones ']>Sij said defendant all costs 
 and damages that he may sustain in consequence of suing out said 
 c'amishment, in tlw event ihat the plaintiff shcill fail to recover 
 
AND PKACTICE. 339 
 
 in said suit, (or* "should it appear that the amount swotu to Ive 
 due on said jiidgn ant was not in fact due',") ox stould it appear 
 that the property or money sought to be garnished vz-as not subject 
 to process of garniihnient, then this bond to be void. Witness 
 
 our hands and seals, this — day of , 189. 
 
 John Jones [L. S.] 
 Jmnes Brown, [L. S.j 
 Approved: 
 J. H. L. Gerdine, N. P. and ex-off. J. P. 
 
 If plaintiff sign Ms firm's name as this surety, bond a nullity, 51 Ga. 
 575; aliter if copartner present and consenting. 16. 
 
 Since married woman connot go security for any one (§2488), a bond 
 whereon slie is security is a bond with no security, and therefore no bond, 
 63 Ga. 790. The bond may be amended by adding other security, 51 Ga. 574. 
 
 Summons of Gaenishment ; §4709. 
 
 [To tie served t<n dijs before court to which it is returnaMci 
 
 Georgia, Bibb County. 
 
 To Walter Henderson. 
 
 Whereas, a suit is pending, (or, "a judgment has been obtained," 
 as the case may be), in the Superior Court of Bibh county, in which 
 John Jones is plaintiff and Willioim Smith defendant, and upon 
 which process of giamishment has been sought by siaid plaintiff, 
 you are required to appear at the regular term of said court to be 
 
 held on the — day of , 189 — , then and there to depose on oatli. 
 
 what you were indebted to the said defendant, or what property, 
 money or effects belonging to Mm you may have had at the time of 
 the service of this suimmons of garnishment; and also what you may 
 have become indebted to him, or what property, money or effects 
 you may have received or got possession 'of belonging to Mm, be- 
 tween the time of the service 'of this summons and the time of mak- 
 ing your return or answer. 
 
 Witness my hand and seal of office this — day of , 189 — . 
 
 J. H. L. Gerdine, N. P. and ex-off. J. P. 
 
 Garnishment sued out pending suit, summonses may issue from time to 
 time before trial without additional bond, §4709. But, after judgment, 
 another bond prerequisite to further summons, 94 Ga. 249. Magistrate 
 isst^ng. additional sumojonsa* need not (have affidavit and bond before 
 him; jqpnstable may serve th|m, and then gO' to Superior court a4d make 
 his return on the papers, 90 Ga. 39. 
 
 *Where the garnisfiment proceedings, instead of being based upon a suit pending, are 
 based upon a judgment, Insert in lieu of the words italicized, the words in quotations in 
 parenthesis. 
 
340 GEOEGIA FOEMS 
 
 Return of Service of Garnishment ; §4709. 
 Georgia, Bibb County. 
 
 On this the — day of , 189, at the hour of , — . M., I 
 
 have served summons of garnishment based upon the within aiii- 
 davit and bond upon Walter Henderson personally. 
 
 Y. A. Menard, Deputy-Sheriff Bibl) County, G«. 
 
 Justices of the peace cannot serve summons, 73 Ga. 120. Service of sum- 
 mons must be personal, 45 Ga. 488. Must be before the term of court to 
 which garnishee is summoned, 97 Ga. 746. Service nine days before term 
 of justice court, no service, 73 Ga. 120. 
 
 Let the officer return the affidavit and bond to the court to which the 
 person summoned as garnishee is required to appear, §4709. 
 
 If the summons be directed to a corporation, e. g., the Southern Railway 
 Company, let the above return. Instead of closing with the words, "upon 
 Walter Henderson personally," close thus: "Upon the Southern Railway 
 Company, by handing the same to G. T. Airey, the agent now in charge of 
 the office or business of said corporation In said county." 
 
 Answer of Garnishee; §§4709, 4711-12, 4727.* , 
 
 Georgia, Bibb County. 
 
 Before mo, , of said county, an oificer duly authorized 
 
 by law to administer oaths, personally oomes Walter Henderson, 
 who, being duly sworn, makes this his ansvi^er to a certain summons 
 of garnishment heretofore served upon him purporting tO; have been 
 based upoo a proceeding in the Superior Court of Bihh county, 
 wherein John Janes was plaintiff and Williwm Sorvith defendant. 
 
 Deponent says that h© owed defendant nothing ^and had no prop- 
 erty, money or effects of his at the time of the service of said sum- 
 mons, and that between that time and the date of this answer, he- 
 has neither owed defendant anything, nor received nor gotten pos- 
 session of any property, money or effects belonging to him. 
 
 Walter Henderson. 
 Sworn to and subscribed to before me this — day of , 189 — . 
 
 The foregoing will suffice where garnishee does owe something, by add- 
 ing at the close, "except," and then proceeding to state what he does owe 
 
 Answer made before return term, good if not excepted to, 92 Ga. 636; 
 and when excepted to, amendable, 63 Ga. 409. In time if filed on first day 
 cf second term after service, 60 Ga. 554; or any time before final judgment 
 against defendant, 68 Ga. 810, 53 Ga. 28. Answer in justice court, §4153. 
 
 At second term, when plaintiff about to take default judgment against 
 garnishee, court properly allowed answer filed, 30 Ga. 924. 
 
 Answer must include whait, §§4711, 4727, and notes. W^here garnishee 
 claims set-off againsit plaintiff, answer must, under §4727, "plainly, fully 
 
 •sAs to garnishee's answer setting up his employee's exemption, and as to issues thereupon, 
 lee notes to "Traverse," p. 345. As to j udgment against garnishee, seep. 342. 
 
AND PRACTICE. 341 
 
 and distinctly set forth" the set-off, 55 Ga. 276; it did not, here. Ih. 
 Judgment subjecting funds whicti answer admits to be due defendant, no 
 protection to garnishee, who, with notice of a claim of oiwnership by a 
 third person, ignored same in -his answer, 99 G-a. 786. He should have set 
 forth "all the facts" (§4727) and let court decide, 89 Ga. 354. 
 
 Where two judgment creditors get judgment against a fund admitted 
 in answer, garnishee, to be safe, should, pay the money into court; but if 
 he pay the judgment which in fact has priority, he is protected from 
 paying twice, 41 Ga. 694. 
 
 Garnishee not surrendering admitted assets, attached for contempt, 
 §§4729, 4552. 
 
 Verification by attorney at law not professing other agency, insuffi- 
 cient, 92 Ga. 639. By agent of corporation "to the best of his knowledge 
 and belief" insuificient, lb. Should point out what facts he knew and 
 what facts he believed, together with the ground for his belief, 76. 
 
 Garnishee discharging himself by answer entitled to have cost of an- 
 swering taxed in 'bill of costs and paid by losing party, §4728, 53 Ga. 28; 
 1. e., when expenses fully proved, 74 Ga. 401. Allowance of $25.00 proper 
 here, 84 Ga. 658. $5.00 proper here, 53 Ga. 28. 
 
 Bond Dissolving Garnishment ; §4718. 
 
 Geoegia, Bibb County. 
 
 Know all men by these presents, thlat we, William Smith, prin- 
 cipal, and Henry. Thompsoiv, security, acknowledge ourgelves joint- 
 ly and severally bound to John Jones in the sum of dollars 
 
 subject to the following conditions: 
 
 Whereas, the said John Jones has sued out process of garnisih- 
 ment against the said William Smith returnable to the Superior 
 Court of Bihh county, based upon a suit pen'ding (or, upon "a judg- 
 ment obtained," as the case may be), in such court, for the sum of 
 ■ doUara; 
 
 IsTow should the said William Smith make unto the said John- 
 Jones full payment of the judg-ment thait shall be rendered on said 
 garnishment, or should the said Henry Thompson do so for him, 
 then this bond to be void. William Smith, 
 
 Henry Thompson, 
 
 Attest: 
 
 J. H. L. Gerdine, N. P. and tx-off. J. P 
 
 Mistake in amount of bond, not limit security's liability, 92 Ga. 671. 
 "Only a statutory bond will dissolve a garnishment," 55 Ga. 67. How- 
 ever, where it does not follow the statute it is actionable, subject to any 
 actual defense, 94 Ga. 673. 
 
 Surety becoming insolvent, plaintiff may sue out another garnishment, 
 39 Ga. 82. The sheriff approves the bond, 40 Ga. 386. Hence, where gar- 
 nishee notified by 'him that garnishment dissolved, and authorized to pay 
 defendant, such garnishee protected. /6. 
 
 Attachment suit void, judgment against dissolving bond, error, 91 Ga. 
 264'. None allowed, until garnishee's answer disposed of, 78 Ga. 116, 88 
 
342 GEOEGIA FORMS 
 
 Ga. 748. Defendant in p,. fa., not dissolving garnishment, not a party 
 thereto, and not heard to complain of flndlng against garnishee, who ac- 
 quiesces, 88 Ga. 240. If court decides that fund was subject, had garnish- 
 irent not been dissolved, then judgment Shall be rendered against de- 
 fendant and his securities, §4719. Answer showing funds not subject, judg- 
 ment against dissolving bond, error, 78 Ga. 116. 
 
 No judgment against dissolving bond until after judgment in main case 
 for plaintiff against defendant alone, 92 Ga. 671. 
 
 Judgment against Gaknishee, Answer Admitting Indebt- 
 edness; §4562. 
 
 E F, gamisheie, having aaaswered admitting tliat lie is indebted 
 $ — (o) to defendant, and ju'dgment in favor of plaintiff, A B, 
 against defendant, C D, for $ — having heretofore been rendered, 
 judgment is hereiby rendered in favor of A B against said E 1' for 
 said sum of $ — . 
 
 (a). Or, "has property or effects, to wit, , in Ins hands belonging." 
 
 Only answer distinctly admitting indebtedness authorizes judgment as 
 above, 45 Ga. 369. Possession of notes for collection, not authorize, 58 Ga. 
 142. Proper practice would be to order such notes delivered up; and such 
 order would be enforceable under §4552 by attachment for contempt. 11). 
 And so of money in garnishee's control, §4729. Collateral securities not 
 garnishable, §4730. Above will suffice for a Default Judgment against 
 garnishee by striking out the words "Answered admitting that he is in- 
 debted $ to defendant," and inserting in lieu thereof the words ""been 
 
 duly served with garnishment summons in this case, and having failed to 
 answer as required by law." 
 
 No judgment against gamisihee until after judgment against defendant, 
 §§4726, 4551, 23 Ga. 186. Joint judgment against them, therefore, error, 
 89 Ga. 108. Garnishee may answer at any time before final judgment 
 against defendant, 68 Ga. 810. But he was too late here, 32 Ga. 115. 
 
 Paying main judgment kills judgment against garnishee, 55 Ga. 6?4. 
 
 Until judgment against fund in hands of garnishee, not too late for de- 
 fendant to attack plaintiff's judgment against him, 88 Ga. 748. 
 
 Garnishee cannot attack plaintiff's judgment vs. defendant until traverse 
 sustained and plaintiff asks judgment vs. garnishee, 80 Ga. 624. 
 
 Judgment Against Bond Dissolving Garnishment; §4718. 
 
 (State the case.) 
 
 The plaintiff John Jones having hereitlofore. ohtained the judg- 
 ment of the court againfet the property (or, "funds") against which 
 garnishment was issu'ed, 
 
 It is considered and adjudged that the plaintiff do recover of the 
 defendant, Williwm Smith, and the surety upon his bond to dis- 
 solve garnishment, to wit, Henry Thompson ^ — dollars, prin- 
 cipal, dollars interest, and costs. 
 
 [For decision hereon, see notes to "Bond Dissolving Garnishment." above,! 
 
AND PEACTICE. 343 
 
 GARNISHMENT OF PERSONS OUT OP THE COUNTY. 
 
 There are two methods for garnishing persons living in a county other 
 than the one where the plaintiff's original suit was brought. According 
 to one of these methods (the older one) the garnishment proceedinKS 
 must be begun in the county where the original suit was brought, §§4715 
 and 4717. The younger method allows them commenced in any county in 
 the State, §4716. In both cases the officer before whom the garnishmeni 
 proceedings are taken out, must be an officer authorized to issue attach- 
 ments; and in both cases, as soon as the affidavit and bond are executed, 
 the said officer must at once make out a certified copy thereof. Said offi- 
 cer, under the older method, issues no summons, but simply hands the cer- 
 tified copy to the plaintiff, who has it delivered in the home county of the 
 prospective garnishee to a like officer there, who then issues summons, 
 returnable to that court in his county which corresponds to the court 
 in which the main suit started. By the younger additional method above 
 referred to, the officer before whom the garnishment proceedings are 
 taken out himself issues garnishment summons, and delivers both the 
 original affidavit and bond and the certified copy to the levying officer, 
 who serves the garnishee and then, making his entry of service on both 
 the original and the copy, returns the copy papers to the court where the 
 plaintiff's suit was brought, and the original papers to the court to which 
 the garnishee is summoned. An illustration may not be superfiuous 
 before leaving the subject. A. B., of Macon, is sued in BibV Superior court 
 by the Exchange Bank of Macon. John Smith, a citizen of Clarksville, 
 Habersham county, owes A. B. money. The Exchange Bank, learning of 
 this, wishes to garnishee John Smith. It may, by the older way, (§§4715 
 and 4717) go before a justice of the peace in Macon, and execute a gar- 
 nishment affidavit and bond. The Macon J. P. will then make out and 
 give to the bank a certified copy of such affidavit and bond, and the bank 
 will send it to a justice of the peace at Clarksville, who, upon receiving it, 
 will issue a garnishment summons and deliver the same, together with 
 the copy affidavit and bond to the constable, who will serve the summons 
 on John Smith, make entry thereof on the certified copy aforesaid ajid turn 
 same over to the clerk of Habersham Superior court. Or, under the 
 younger method, (§4716) the bank may have a Clarksville lawyer to exe- 
 cute for it a garnishment affidavit and bond before the Clarksville J. P. 
 who will at once make out a certified copy thereof and deliver both 
 original and copy to his constable, together with a summons of garnish- 
 ment directed to John Smith. Said constable will then serve the summons 
 on Smith, make entry to that effect on the original affidavit and bond and 
 also on the copy thereof, turn over the original to the clerk of Habersham 
 court and mail the copy to the clerk of Bibb Superior court. 
 
 Such copy papers not so returned, no lawful judgment upon lihe gar- 
 nishment in favor of the plaintiff can be taken, 98 Ga. 516. 
 
 In attachment, to garnishee one residing out of the county, plaintiff oom- 
 memoes in county where suit begian as in the older method just described 
 above. 
 
 DISSOLUTION BY A CLAIMANT. 
 In order that the purposes of a bond like that now presented may be 
 clear at a glance to business men, a word by way of explanation is here 
 prefixed. The Cincinnati Furniture Company in the bond below, is as- 
 sumed to have owed a debt to the Georgia Lumber Company, for which 
 
344 GEORGIA FORMS 
 
 the latter took out attachment proceedings and served garnishment on 
 one of the Macon customers of the said Cincinnati furniture company, viz., 
 the Macon Cabinet Works. It is also assumed that the Macon Cabinet 
 Works had in fact just ordered $1,250 worth of goods from the Cincinnati 
 concern, which the latter had promptly shipped, at the same time drawing 
 a draft and discounting the same, (with the bill of lading attached) at the 
 First National Bank of Cincinnati, the said furniture company's home 
 bank. The state of facts upon which this bond is supposed to be founded 
 is not the product of the writer's imagination. Exactly such a case Is 
 Haas vs. Old National Bank, 91 Ga. 308, which was tried before Judge 
 Macdonnell of the city court of Savannah in 1892, and affirmed by the 
 Supreme court. The principle there laid down is a most valuable one to 
 banks which discount for 'their local customers among the wholesale mer- 
 cLants drafts with bills of lading attached, drawn upon out of town cus- 
 tomers, by such merchants. 
 
 Claimant's Bond to Dissolve Garnishment ; §4 20. 
 
 Georgia, Bibb County. 
 
 Know all men by these presents: 
 
 That we, The First National Bank of Cincinnati, principal, 
 and J. W. Cabaniss, security, acknowledge ourselves jointly and 
 severally Taound to Tlie Georgia Lumber Company in the sum of 
 /?ro thousand five hundred dollars, subject to the following con- 
 ditions: 
 
 Whereas, the said Georgia lAimber Company has sued out pro- 
 cess of garnishment iagainst the Cincinnati Furniture Convpany 
 returnable to the — — term, 189 — , of the Superior Court of Bibb 
 county, based upon an 'attachmient, (or, upon "a saiit" or, upon "a 
 judgment," as the case may be), the amount of the sum claimed 
 upon which is twelve hundred and' fifti/ dollars, which said process 
 of garnishment has been served upon The Macon Cabinet Works, 
 and whereas, there is money (or, "property," as the case may be), 
 in the hands of the said Macon Cabinet Works which is hereby 
 claimed by the principal in this bond; said principal not being a 
 iiarty to the proceeding upon which said garnishment is based; 
 
 Now should the said principal, the said First National Bank of 
 Cincinnati, pay to the plaintiff, the said Georgia Lu^nrber Com- 
 patiy, the sum that may be found due to the said defendant, the 
 said Ciitcinnati Furniture Company, upon the trial of any issue 
 that mf^y be formed upon the answer of the said garnishee, or that 
 ma}' be admitted to be due in said answer, if uutraversed, then 
 this bond to be void. 
 
 Witness our hands and seals this — day of , 189 — . 
 
 The First National Bank of Cincinnati, 
 By its Aitorneys at Law, Hardeman, Davis & Turner, 
 
 J . TF. Cabaniss. 
 
 Approved by 
 
 Robert A. Nisbet, 
 
 Clerk Superior Court Bibb County. 
 
AND PKACTIOE. 345 
 
 Claim remedy cumulative, not exclusive; owner of debt may asseri 
 title otherwise, 89 Ga. 354. 
 
 Filing of tlie claim bond is filing claim, no oath being required, 99 Ga. 354. 
 
 Judgment on claim bond at first term after answer if no traverse, 99 
 Ga. 354. 
 
 After general verdict against claimant on traverse to answer, judgment 
 instanter against ihis bond for amount admitted due, 56 Ga. 393. 
 
 Answer in nature of interpleader filed after claimant gave bond to dis- 
 solve, traverse and issue pursuant to §4721 prerequisite to judgment against 
 said bond, 96 Ga. 532. 
 
 On trial of claimant's traverse to garnishee's answer, issue is between 
 claimant and plaintiff; garnishee no party, and his declaration inadmissi- 
 ble for claimant, 56 Ga. 39'3. 
 
 Garnishee voluntarily answering in defendant's county, neither defend- 
 ant nor claimant can urge non-reside(nce, 56 Ga. 393. 
 
 Traverse ; §4553.* 
 
 [State the cas?,] 
 
 And now ooni'es John Jones, the plaintiff, at tMs term of the 
 court at whidh the answer of Walter Henderson, garnishee, was 
 made, and not being content with the answer of said garnishee, 
 denies the truth of the same. John Jours. 
 
 Traverse sufficient here, 21 Ga. 240. Replevy no obstacle to traverse, 
 94 Ga. 429, 673. No judgment against garnishee unless answer distinctly 
 admit indebtedness, 22 Ga. 52; if it is insufficient to authorize judgment, 
 traver-se It, 45 Ga. 369. Answer of indebted alleging a larger debt by de- 
 fendant to garnishee, construed to mean such debt due; if plaintiff ask 
 judgment and contend that such debt was not so due, he should traverse, 
 53 Ga. 28. 
 
 Garnishment dissolved, traverse of answer setting up exemption un- 
 necessary, 93 Ga. 343. 
 
 Garnishee may set up the exemption in his answer admitting indebted- 
 ness, and pay the laborer at once, regardless of the garnishment, 80 Ga. 763. 
 
 And if no traverse be filed he will be discharged, 67 Ga. 38. But a judg- 
 ment ordering the money paid into court will not preclude defendant from 
 claiming it as exempt, 71 Ga. 748. And he may rule constable oi* magis- 
 trate to whom it is paid, lb, 76 Ga. 98. 
 
 Claim op Exemption by Defendant, f 
 
 (State the case.) 
 
 And now comes William Smith, defendant in above stated ca=fi, 
 and says: that he is and for last past has been employed 
 
 *The bill introduced by Mr. Slaton, of Fulton ; and approved December 21, 1897, provides as 
 •follows : 
 
 I. "When any answer of garnishment is traversed, if the proceedings he in a Justice 
 Court, notice of such traverse shall be given in writing to the garnishee, if such garnishee be 
 accessible, if not, then to his agent or attorney of record, at least 5 days before the trial of 
 such garnishment, and in any other courts at least 10 days before the trial of such garnish- 
 ment." 
 
 II. If tiie garnishee be a non-resident corporation, service of notice of traverse upon any 
 d\ily authorized agent, or the attorney of record, of such corporation, shall be sufficient. 
 
 III. (Makes notice of traverse unnecessary when the gar.i^hee is Inaccessible.) 
 
 IV. (Provides that service of the notice may be perfected by the plaintiff, his agent or at- 
 torney of record, or by the proper officer of the court, either by serving the garnishee, his 
 ■acent or attorney of record, in person, or by leaving a copy of the notice at the most notorious 
 place of abode of such garnishee, his agen t or attorney, or by acknowledgment of -service. 
 
 fSee notes to "Iraverse." 
 
346 GEOKGIA FOEMS 
 
 by tiie garnishee ab'ove named ; and tihat all money owing to him by 
 said employer has been eianied by him as a day laborer, and is by 
 lajw exempt, from the process of garnishment. 
 
 . William Smith. 
 
 Garnisliment dissolved, issue whether fund exeimpt sufficiently raised; 
 here by defendant's claim of exemption, and plaintiff entitled to try- 
 that issue, 93 Ga. 343. 
 
 Dissolving bond not preclude setting up exemption, 81 Ga. 797, and if 
 claim maintained, no judgment on dissolving bond allowable, Ih. 
 
 PERSONS WHOSE WAGES ABE EXEMPT. 
 
 The wages of the following persons are exempt from the process of gar- 
 ■ nishment: Bartender, clerk and boy of all work, 63 Ga. 172. Book- 
 keeper and clerk, 77 Ga. 306. Clerk doing general service in a merchan- 
 dise and grocery store is a laborer, 68 Ga. 658, i. e., if he does manual 
 labor, 73 Ga. 273. Clerk in railroad office, 71 Ga. 748, 80 Ga. 570; e. g.,. 
 railway forwarding clerk, 51 G^. 576; so, shipping clerk in a mill, 46 Ga. 
 466. Engineer of railroad locomotive, 76 Ga. 335. Farm laborer, 71 Ga. 
 863. Painter, 64 Ga. 617. 
 
 PERSONS WHOSE WAGES ARE SUBJECT. 
 
 The wages of the following persons are subject to garnishment: 
 Commercial traveler, 93 Ga. 602; officer of corporation, if salary exceed 
 
 $500.00 a year, §4733, 72 Ga. 740; passenger conductor, 77 Ga. 386; school 
 
 teacher, 74 Ga. 105; superintendent of factory, 73 Ga. 337. 
 
 MISCELLANEOUS. 
 
 Laborer's wages exempt, whether paid by day or job, 99 Ga. 136. 
 
 Debts due to a blacksmith by customers are not exempt, 86 Ga. 573. 
 
 Decree for alimony superior to garnishment exemption, 74 Ga. 106. 
 
 Upon grounds of public policy, a county is not subject to garnishment,. 
 84 Ga. 769; nor are trustees of the deaf and dumb asylum, 85 Ga. 481; nor 
 is a board of education (teacher's salary here garnisheed), 54 Ga. 108; but 
 a sjieriff, having collected money for plaintiff in execution, is gamishable, 
 50 Ga. 108. A receiver is not, §4910. Attorney is, §4731. 
 
 Where attempted transfers were ineffectual and the garnishment caught 
 the money, 84 Ga. 403, 86 Ga. 582. 
 
 What A voluntarily hands to B to be delivered to C, remains A's until 
 delivered or promised by B to C, and is gamishable as A's, 78 Ga. 543. 
 
 Garnishment will not reach a salary constantly overdrawn, 99 Ga. 107. 
 
 Tort-feasor not subject to garnishment by creditor of injured party, 69 
 Ga. 365, until final judgment, 80 Ga. 595. 
 
 A, B's creditor, cannot garnishee debtor of B'b firm, 51 Ga. 113; but, A,, 
 having garilsheed B's firm's bank, the firm, by filing a bond as claimant 
 becomes party and A could by equitable traverse reach B's interest, J6. 
 
 A, of Kansas City, drew on B, of Macon, depositing draft "for credit of" 
 himself in Kansas City Bank; held that when Exchange Bank of Macon 
 collected draft, proceeds were A's and garnishable as such. 87 " Ga, 46. 
 But wfiere A thus discounted draft with bill of lading attached and this 
 according to his custom with his bank was a sale of the consignment to it, 
 when bank at other end collected draft, proceeds were A's bank's, not 
 A's, 89 Ga. 108. 
 
AND PEAOTICE. 347 
 
 The wisdom of exemptioji laws of any kind Is frequently questioned ; but as tbe legislature 
 of this State has placed the gamishment exemption law upon our Statute books, the practical 
 question with merohaDts and the commercial world generally, in dealing with laboring peo- 
 ple, is whether or not any valid and binding contract can be drawn by which a laborer may 
 waive his statutory exemption. The following general waiver in a promissory note has been 
 held void (see 75 Ga. 471): 
 
 " And I hereby contract and expressly waive the exemption of my wages or salary from the 
 process of garnishment under the laws of Georgia, or the exemption of my daily, weekly^ 
 monthly or yearly wages or salary from the operation of the garnishment law, in case this 
 note is not promptly paid at maturity." 
 
 From the remarks of the court in the case cited, it would seem that a specific waiver would 
 be binding if framed substantially as follows : 
 
 WAIVER OF EXEMPTION FROM GARNISHMENT. 
 And as against this debt, or any renewal thereof, I hereby waive all exemption from gar- 
 nishment to which under the laws of Georgia I may be entitled, relatively to the wages which 
 I may earn in the employ of The Southern Bailway Company as a locomotive engineer, between 
 the 17th day of May, 1897, and the 17th day of June, 1897. And I hereby authorize and 
 request The Southern Railway Company to pay to the payee hereof, or his otder, out of said 
 wages aforesaid, the sum of dollars. 
 
 The above is submitted to the general public, and recommended for insertion in promissory 
 notes, when appropriate. It is not offered as absolutely safe, because our Supreme Court has 
 never passed upon the question of such a specific prospective waiver. But it meets the objec- 
 tion to the above general waiver. Moreover, by analogy to the homestead decisions before 
 the Constitution of 1877, the foregoing would seem valid. For, while a general waiver of 
 homestead under the then law was held void (see 59 Ga. 837;, yet a specific waiver as to a 
 specified tract of land, contained in a mortgage on the land, was held bindiog; 56 Ga. 53. 
 
 For a form for a promissory note, see p. 263. 
 
3 18 GEOKGIA FORMS 
 
 CHAPTER 9.* 
 
 OF THE ILLEGALITY OF EXECUTIONS. 
 
 A form for a forthcoming bond will be found hereinafter, under 
 §§5435-8. See index, title "Forthcoming Bonds." 
 
 When an execution shall issue illegally, or shall be proceeding illegally, 
 and shall be levied, defendant may make oath in writing, and state the 
 <;ause of such illegality, and deliver the same to the sheriff or other 
 executing oflScer, as the case may be, together with bond and good secu- 
 rity for the forthcoming of such property, as provided by §§5435-8. 
 
 It shall not be lawful to take a forthcoming bond for real estate, §4614. 
 
 Affidavit of Illegality ; §4736. (a) 
 
 Geoegia, Bibb County. 
 
 Personally comes William Smth, -who on oatih deposes and says 
 that la certain execution issued from the Superior Court of Bihb 
 coimty in favor of John Jones against deponent and lately levied 
 by G. 8. Westcott, sheriff of Bibb county, upon tlie folio-wing 
 property (describing it), did issue illegally, and is proceeding ille- 
 gally, for the following reasons, to wit: 
 
 Deptin^ent has never had his day in court, was never served with 
 any process, or other notice of the pendency of the suit where on 
 said execution is based, nor did 'he waive service, nor did he 
 appear in or defend said suit. 
 
 &c., &c., &c. Willkiii} Smith. 
 
 Sworn to and subscribed to before me (I)) 
 
 Tliis — day of , 189—. 
 
 /S. R. Wiley, 
 Notary Public Bibb County, Ga. 
 
 («). Our statutory illegality corresponds to aiiditu qucrOa of common 
 law: 3 Bl. Com. 405, 406; 2 Ga. 368. It is not exclusive, but cumulative, 
 Ih. AucHta querela has been superseded in modern practice by motion to 
 dismiss levy, whioh is cheaper and more expeditious than illegality, and 
 certainly preferable where the facts are all before the court and undisputed, 
 34 Ga. 428. Such a motion takes precedence over a motion to quash a fi. fa., 
 77 Ga. 389. 
 
 Sheriff may disregard ^an insufficient affidavit, 28 Ga. 613, 11 Ga. 294. Or 
 one which does not set forth clearly and distinctly the grounds of illegal- 
 ity, 99 Ga. 129. And generally, he can never receive an affidavit of illegal- 
 ity to execution until a levy has been ma,de, §4737. 
 
 * n the code o'f 1882, the statute providing for a forthcomiDg bond "where a levy was made 
 and an Illegality filed thereto," was in the chapter on niegalities. But us said statute is 
 located in the code of 1895 (g5135) under the Title " Executions," the form for a lorthcom'ng 
 ■hond will he found hereinafter under that Title. 
 
AND PRACTiCE. 34 1> 
 
 A forthcoming bond is necessary to retention of the property by defend- 
 ant but not bo his defense, 63 G-a. 520; nor is he required to pay costs on fl. 
 fa. before affidavit received, 53 Ga. 43. 
 
 (b). Jurat no part of the affidavit, simply the officer's entry, 93 Ga. 352. 
 May be added by amendment, 76. 
 
 Grounds must be verified positively; best of knowledge and belief not 
 enough, 73 Ga. 247, 80 Ga. 774. That affiant is "advised and believes" that 
 execution is proceeding illegally, good, 71 Ga. 793. 
 
 Affidavit of illegality may be filed by an attorney in fact, or an expcutor, 
 administrator, or other trustee, §4741. Authority need not be in writing, 
 S6 Ga. 760. 
 
 When an affidavit of illegality is made, on account of partial payment 
 made on the execution, the defendant, at the time of making such affidavit, 
 must pay the amount he admits to be due, or the sheriff shall proceed to 
 raise that amount and accept the affidavit for the balance, §5661. 
 
 No second affidavit of illegality shall be received by any sheriff or other 
 officer, for causes which existed and were known, or in the exercise of 
 reasonable diligence might have been known, at the time of filing the first, 
 §5662, 2 Ga. 367, 81 Ga. 199. Ignorance or negligence of Counsel, no ex- 
 cuse, 91 Ga. 143. 
 
 Levy made, and affidavit and bond delivered to officer, he shall suspend 
 further proceedings and return the execution, affidavit and bond, to the 
 next term of the court from which the execution issued, and said court 
 shall determine thereon at the first term thereof, unless the plaintiff, or 
 his attorney, desire to controvert the facts contained in said affidavit, in 
 which case an issue shall be joined, which issue shall be tried by a jury 
 at the same term, unless good cause is shown for a continuance, §4738. 
 
 In justice court illegality must be tried at next term after it has been 
 returned for five days, §4156. 
 
 SUPPICIBNCY OP THE AFFIDAVIT. 
 
 Illlegality construed strictly againit affiant, 73 Ga. 94. Affidavit too gen- 
 eral here, 77 Ga. 89. Mere general statements that pleadings so defective 
 that no legal judgment obtainable, disregarded, 70 Ga. 646. Affidavit mere- 
 ly alleging defendant's non-residenCe in county, too meagre, in not nega- 
 tiving all grounds of jurisdiction, 66 Ga. 254. Illegality to levy on land, 
 attacking constable's return of "no personalty," and alleging that defend- 
 ant "has iierso'ual property," etc., insufficient; should aver that he had such 
 property at time of levy, 65 Ga. 328. Affidavit that execution paid off, 
 should, as against special demurrer, state to whom payment was made, 
 97 Ga. 219. Where railroad's defense is payment of a valid judgment on a 
 Tennessee garnishment, judgment itself should be duly pleaded, 91 Ga. 39. 
 
 AS TO WHAT IS GROUND FOR ILLEGALITY. 
 
 Advertisement of sale, meagemess of description of land in, not ground 
 for illegality, 75 Ga. 230. 
 
 Dormaniiy of the judgment is good ground for illegality, 71 Ga. 293. 
 
 EquitaUe defenses may be set up by illegality, 73 Ga. 796, 77 Ga. 130. 
 
 Judgment holding a contract unconditional, though erroneous, not ' at- 
 tacked by illegality, 87 Ga. 751. Recital 'that no issuable defense filed, con- 
 clusive, 99 Ga. 59. That judgment not authorized by the declaration not 
 ground for illegality, 97 Ga. 219, unless variance material, 68 Ga. 158. Su- 
 perior court judgment on appeal not attacked by illegality on ground that 
 
550 GEORGIA FORMS 
 
 the justice's court was not held at regular court-ground, 88 Ga. 161. Dis- 
 qualification from kinship, of J. P. Who rendered judgment, not good 
 ground, 77 Ga. 46. And generally, if defendant has had his day in court, 
 he cannot go behind the judgment by affidavit of illegality, §4742. 
 
 J iirisdicUon wholly wanting, illegality lies, 91 Ga. 264, 77 Ga. 730. 
 
 Levy excessive, or made upon property other than that pointed out by de- 
 fendant, gives right of action against levying officer, but is not valid ob- 
 jection to the processs, 77 Ga. 84, 46; 57 Ga. 68, 68 Ga. 158. Affidavit of ille- 
 gality by surety conflicting with levying officer's entry of "nulla bona" 
 as to principal, properly overruled, 77 Ga. 126. That a levy on property 
 ■did not state "as whose property" it was seized, no ground of illegality, 
 ■65 Ga. 328. 
 
 Recital of levy in affidavit and forthcoming bond, commits defendant to 
 fact of a levy on the property, and estops him from traversing officer's 
 ■entry of levy thereon, 84 Ga. 117. 
 
 Perjury, illegality grounded on, should follow §5366, 70 Ga. 646. That 
 perjurer indicted not enough. lb. 
 
 Tax assessment for street improvement excessive, may b© met, when 
 levy takes plaee, by illegality, 98 Ga. 167. So, illegal city tax on non-resi- 
 dent itinerant traders, 55 (Ja. 678. Injunction, however, a fuller remedy 
 here, lb. Illegality to tax fl. fa. must be filed In court to whioh it is re- 
 turnable by statute, 89 Ga. 598. 
 
 Affiant absent when illegality case called, proper practice is to dismiss 
 affidavit, not render judgment on merits, 95 Ga, 307. But latter judgment 
 .good if not excepted to. lb. 
 
 Teavkkse; §473». 
 
 [Stste the case.] 
 
 ISTow comes the plaintiff, John Jones, and ■controverts the facts 
 
 •L-ontained in the defendant's laffidavit of illegality, and prays that 
 
 the issue hereby raised be submitted to a jury. 
 
 John Jones. 
 
 Damages for delay, §4739. 
 
AND PRACTICE. 361 
 
 CHAPTER 10. 
 LOST PAPERS, HOW ESTABLISHED. 
 
 Upon the loss of any original petition, answer, declaration, plea, bill of 
 indictment, special presentment, or other oflSce papers, a copy may be es- 
 tablished instanter, on motion, §4743. 
 
 For establishment of lost office papers instanter, in justices' courts, see 
 the general subject of "Establishment of Lost Papers in Justices' Courts" 
 below. 
 
 An instrument sued on is an office paper after the case has gone to trial, 
 §4744. 
 
 Petition to Establish Lost Office Paper; §4743. (a) 
 
 (jeoegia, Bibb County, (b) 
 
 To the Superior court of said county: (c). 
 
 The petition of respectfully shows that a certain 
 
 office paper appertaining to a oeirtain cause heretofone instituted 
 in this court, to wit, a certain (original petition, answer, declara- 
 tion, plea, bill of indictment, special presentment, or other office 
 paper,) has been lost. An exact copy of said lost paper (or, a sub- 
 stantial copy, if an exact copy cannot be had), including all the 
 entries that were thereon, (d) i& hsireto attached. 
 
 Wherefore petitioner prays that this copy of said paper be es- 
 tablished by the court instanter (e). 
 
 Petitioner's A.ttorn©y. 
 
 (o). Certiorari sanctioned and handed to plaintiff is his private prop- 
 erty until filed with the clerk; and if lost cannot be established as an office 
 paper, 58 Ga. 469. 
 
 Counter^affidiavit to mechanic's lien foreclosure handed to sheriff and 
 returned Into clerk's office, all the papers become office papers of the 
 Superior court, and if lost, copies established on motion, 56 Ga. 592. 
 Agreement filed, affecting disposition of case, is office paper, and may be 
 established instanter, 99 Ga. 121. Opposite party present, rule nisi and 
 service certainly unnecessary. 76. 
 
 Criminal bond, when filed in office, becomes office paper, and if lost, copy 
 established instanter and without, notice, 63 Ga. 702. 
 (6). See generally, notes' to §§4743 et seq. 
 
 (c). Bill of exceptions lost in mail, motion to establisih copy must be 
 made at term of Stti>'reme Court to which it was "returnable, 59 Ga. 242. 
 After signed by judge and filed by clerk below. Supreme Court acquires 
 jurisdiction; and application to establish copy must be made here, not to 
 court below, 76. Certificate of clerk of trial court that parts of re<K>rd 
 specified in bill of exceptions lost, not basis for establishing copies in 
 Supreme Court, 99 Ga. 405. 
 
352 GEORGIA FOKMS 
 
 id). Copy declaration properly had all entries that were on original. 
 90 Gta. 582. 
 
 (e). During trial of claim case, loss of ft. fa. discovered, trial suspended 
 and copy established instanter, 88 Ga. 421. Calling copy "alias" immate- 
 rial, n. Notice not absolutely, 3 Ga. 121. Proper, however, in establishi^s 
 copy judgment, 92 Ga. 379. Plaintiff in execution moving to establish cory 
 of pleadings, notice to claimant of property levied on is neither an obstacle 
 nor an aid to the motion, 57 Ga. 249. 
 
 Where' continuance asked, to establish copy paper, reason should te 
 given why matter deferred until case called for trial, 70 Ga. 168. 
 
 OflBce paper recorded, and afterwards lost, record is evidence of contents 
 and stands until corrected, 69 Ga. 295. They do not, however, cease to be 
 records because not recorded, and, if lost, contents may be proved without 
 establishing originals, 50 Ga. 378. That they were not recorded, or that 
 the record cannot be found, is no reason for not establishing the copy, 57 
 Ga. 249. 
 
 Refusal to establish copy amendment to declaration because no entry on 
 bench docket, nor order on minutes allowing amendment, error, 65 Ga. 25. 
 
 Upon certified transcript from Supreme Court, copy established without 
 notice to any one, 57 Ga. 249. 
 
 Generally: Plaintiff asking establishment of lost bail bond, defendant 
 denying there ever was any such bond, case in one for a jury, 20 Ga. 11. 
 
 Order of Court Establishing Lost Office Paper. 
 
 The foregoing petition read and considered. And it satisfacto- 
 rily appearing to the court that the copy thereto attached is a. cor- 
 rect copy of the lost oiEce paper therein referred to, it is ordered 
 that said copy be and the same is hereby established in lieu of the 
 
 lost original. This the — day of , 1S9. 
 
 W. H. Fclton, Jr., J. S. C. M. C. 
 
 Order establishing copy indictment unrevoked, finding of the original 
 not affect status of case, 99 Ga. 194. 
 
 Judge of court whence lost execution issued may, either in term or vaca- 
 tion upon proper application and satisfactory proof, order issuing of alias 
 execution, §§4752, 4755. 
 
 Whenever a parly wishes to Introduce the copy of a deed or other instru- 
 ment, between the parties litigant, in evidence; the following oath to the 
 copy shall be a sufficient foundation for admitting it: 
 
 Oath to Copy Deed; §5673. 
 
 Gkorgia, Bibb County. 
 
 Personally comes John Jones who on, oath says that the fore- 
 going is, in substance, a true aud correct copy of a (deed or other 
 instrument) between the present p.arties litigant, and that he 
 believes the original to be lost or destroyed, and that it is not in 
 his possession, power or custody. John Jones. 
 
 Sworn to and snbscribed to before me 
 
 this — day of , IS 9—. 
 
AND PRACTICE. 363 
 
 Oath to -Copy Grant; 5674. 
 
 Georgia, Bibb Cottnty. 
 
 Personally comes John Jones, who on oath says that the fore- 
 going is a true and correct copy of a certain grant, that the original 
 is not in his power or postsession,, and that he knows not where it is. 
 
 John Jones. 
 Sworn to and subscrihed bef oie me 
 
 this — day of , 189—. 
 
 Petition to Establish Copy of Private Paper; §4745. 
 
 Georgia, Bibb County. 
 
 To tl. Superior Court of said County : 
 John Jones brings this his petition against WilUamv Smith 
 and alleges: 
 
 First : Defendant is a resident of said county. 
 Second : Petitioner is the owner of a paper now lost or destroyed, 
 of which defendant is the maker, a Bubstlantial copy whereof, as 
 near as petitioner can recollect, is hereto attached, duly sworn to, 
 and made part hereof. 
 
 Wherefore petitioner prays that the clerk of this court issue a 
 rule I'lisi in the name of the judge of this court, calling upon de- 
 fendant to show cause, if any he has, why the copy swOim to should 
 not be established in lieu of said lost or destroyed original. 
 
 John Jones. 
 
 In a proceeding to establish lost deed, grantee was incompetent, under 
 §5269(2), to prove Its execution, some of the grantors being dead, 96 Ga. 
 198. Proof of execution by one of several joint makers, insuflacient; due 
 proof by all, necessary, 96 Ga. 198. One not a party to such a proceeding, 
 and not claiming under the deed, may attack correctness of copy, 97 Ga. 
 328. 
 
 Make out a substantial copy of the lost paper sought to be established, 
 and attach the same, duly sworn to as indicated below, to the petition. 
 The following is a sufi&cient oath under the statute: 
 
 Oath to Copy of Lost Paper; §4745. 
 
 Georgia, Bibb County. 
 
 Personally comes John Jones, who on oath says that the fore- 
 going is a copy, in substance, as near as he can recollect, of the paper 
 lost or destroyed. John Jams. 
 
 Sworn to and subscribed to before me 
 
 this list day of April, J 897. 
 
 Copy of lost deed may be established by the Superior Court of the co'unty 
 where the land lies, §3611. 
 
354 GEORGIA FORMS 
 
 Rule Nisi; §4645. 
 
 Georgia, Bibb Coujsty. 
 
 In the Superior Court of said County. 
 To Willimii Smith: 
 
 John Jones having presented to the clerk of said court his peti- 
 tion seeking the establishment of a deed said to be lost or destroyed, 
 wheireof hte alleges that you are the maker, annexing to his petition 
 a sworn copy thereof, a copy of which said copy is hereto attached; 
 
 Therefore, you are hereby called upon to show cause, if any you' 
 have, at the Superior court to be held in and for said county on thiS 
 third Monday in April, 1897, why the copy sworn to should not be 
 established in lieu of said lost or destroyed original. Witness tihe 
 Honorable W. H. Felton, Jr., judge of said court, this the 1st dlay 
 of AprU, 1897. Robert A. Nisbet, Clerk. 
 
 Tlie rule nisi must be served, says §4745, by the sheriff, his deputy, or 
 any constable of this State, twenty days before the sitting of the court to 
 ■which It Is made returnable. If the party cannot be found In this State, 
 men the rule shall be published twice a month for two months before its. 
 nral hearing, §4745. 
 
 Rule Absolute; §§4747-8. 
 
 John Jones ^ ■ Petition to establish private paper. 
 vs. v5i66 Superior Court, 
 
 William Smith.) Ajiril Term, 18ty7. 
 
 The above stated petition coming on regularly to be heard, and a 
 rule nisi having been duly served, as provided by law, and no good 
 ■and sufficient dause being shown why a rule a'bsolute should not be 
 granted, it is ordered, that the copy deed attached to said petition 
 be and the same is hereby establisihed in lieu of the lost or destroyed 
 original. Let the clerk of this count furnish the established copy 
 to petitioner with a certified indorsement thereon of the day and 
 term when this rule absolute was granted, provided all costs of this 
 proceeding be paid. W. H. Felton, Jr., 
 
 J. S. C. M. C. 
 
 ESTABLISHMENT OF LOST PAPERS IN JUSTICES' COURTS. 
 When any paper whatever appertaining to any suit or other proceeding 
 Ml any justice's court, shall be lost, destroyed or mislaid from the hands 
 of the justice, such justice may establish instanter a copy; and if any such 
 jiaper be lost, destroyed or mislaid from the hands of any person other 
 than the justice, any one interested, wishing to use such lost paper, 
 jhall be permitted to establish in lieu of the original a substantial copy, 
 Sy making affidavit of the loss of the original, and that the copy proposed 
 •Js a copy in substance of the lost original, §4753. 
 
AND PRACTICE. 355 
 
 Proceeding to Establish Copy of Peivate Paper i2sr 
 Justice's Court; §4754. ■'■ 
 
 To the Honorable J. H. L. 0<erd)ine, one of the Justices of the 
 Peace for the 564th Militia District, said county: 
 •John Jones, ownter of a certain lost due-bill, which may, accord- 
 ing to law, as he is advised, be sued on and collected in a Justice's 
 count, wishing to establish thte same pursuant to the provisions of 
 §4754 of the CivilCode, respectfully shows that Willmm Smith, 
 the maker thereof, resides in your district, and presents to you, 
 hereto atbachted, a copy in substance of the pap'er lost, 
 
 Wherefore he piraye a rule nisi, calling upon the said William 
 (Smith to show cause, if 'any 'he has, why said copy should not be 
 esflablished in lieu of 'the lost original. John Jones. 
 
 Sworn to and subscribed to before me this — day of , 189—. 
 
 J. E. L. Gerdme, N. P. and ex-off. J. P. 
 
 The statute does not require the above petition, but it is well to attach 
 It to the sworn copy which alone is required to be presented, for it ex- 
 plains the procedure to the magistrate, who may not always be familiar 
 therewith. 
 
 Make out the copy and swear to it as follows: 
 
 Affidavit Verifying Copy Paper; 4754. 
 
 Georgia, Bibb County. 
 
 Before nie, J. ILL. Gerdine, of said county, an officer of said 
 State duly anthoriz'sd to administer oaths, jirisonally comes John 
 Jones, who on oath says that the foregoing is a true copy, in sub- 
 stance, as nearly as he can recollect, of a certain paper, now lost, 
 of which he, deprrent, was the owner, and William Smith iJie 
 maker. John Jones. 
 
 Sworn to and subscribed before me this the — day of , 189 — . 
 
 •/. H. L. Gerdin.e, N. I' and ew ojf J. P. 
 
 EuLE Nisi; §4754. 
 Georgia, Bibb County, 5fl4.th Dist. G. M. 
 
 To Williamv Smith, of said county : 
 John Jones having presented to the undersigned, one of the 
 Justices of the Peace of the 56Ifth Militia District, said county, 
 a sworn copy of a lost due-hill whereof you appear to be 
 the maker, for the purposfe of establishing the same, a copy whereof 
 is hereto lattadhed, you are hereby called upon to show cause, if 
 any you have, before the Justice's Court for said district, at Masonic 
 Temple, Mulberry Sttxet, in the city of Macon, on the first Sat- 
 
356 GEOEQIA FORMS 
 
 urday in August next, why said oopy should not be established in 
 lien of the lo^ original. 
 
 "Witness my official signature this — day of , 189 — . 
 
 J. H. h. iQerdvne, N. P. and ex-off. J. P., 
 
 56Jfth Q. M. D. 
 
 EuLE Absolute; §4754. 
 
 John Jones "j Proceeding to establish copy of due bill, 
 
 vs. > In Justice's Court, 
 
 William Smith. ) 564.th Dist., G. M. 
 
 This case coming on to be heard, and it appearing that a. rule 
 nisi has been duly served as required by law, and no sufficient 
 cause being shown against establishing the sworn copy due-bill, it is 
 hereby established in lieu of the lost original. This — day of ■ — , 
 189—. ' 
 
 (Sigued by the J. P.) 
 
 The rule shall be served upon the party personally. If to be found, ten 
 days before the court to which he is called upon to show cause, by any con- 
 stable of the State; and if the party is not to be found, then the rule may 
 be published in a public gazette for one month before the final hearing of 
 the rule, and if no sufficient cause be shown, the justice shall give judg- 
 ment establishing the copy in lieu of the original, and the copy so estab- 
 lished shall be certified to by the justice and shall have all the force and 
 effect of the original, §4754. 
 
 Certificate; §4754. 
 
 Georgia, Bibb County. 
 
 I certify that this paper was this day established in my court, 
 as a true copy of lost original, pursuant to section 4754 of the Civil 
 
 Code. This — day of , 189—. 
 
 ./. H. L. Gerdine, IST. P. and ex-off. J. P., 
 
 56Ii-th District, G. M. 
 
 Petition for Summary Establishment of Lost 
 Paper; §4757. 
 
 Georgia, Bibb County. 
 
 To the Honorable G. M. Wiley, Ordinlary of said County: 
 
 John Jones brings this his petition against Williwiv Smitli and 
 nllpges : 
 
 First : Defendant is a resident of said county. 
 
 ■Second: Petitioner is the ownter (or, "the agent of the owner," 
 or, "the legal representative of the owner," as th© case may bo) of 
 II certain evidence of indebtedness, to wit, a bond ("bill," "note,'' 
 "draft," "check," or other evidence of debt, as the case may be), 
 
A'NT) PKACTICE. 357 
 
 "vvhereof defendant is malcer, a' substanifcial eo^j of whic'h is hereto 
 attaclied- and made part of this petition. 
 
 Third: Said evidence of indebtedness aforesaid has been lost or 
 destroyed in the following manner, to wit : 
 
 The swme was kept among other papers hy petitioner m his 
 office desk at his place of business, No. — Third Street, in the 
 
 city of Macon, up to the — day of , 189 — , upon which day 
 
 the hiildinf/ referred to hy nmu'ber as aforesaid, was destroyed ly 
 fire, together with all that was therein, meluding said desk and 
 contents. 
 
 Fourth : Petitioner has miade diligent search for said paper, but 
 has been unable to find it, for the reasons apparent; above. 
 
 Wherefore he prays that the copy hereto attached be established 
 in lieu of said lost original. John Jones. 
 
 Sworn to and subecribed to before me 
 
 this — day of , 189 — . 
 
 Ro'bert Hunter, 
 
 Notary Public Bihh County, Ga. 
 
 This method is greatly to he preferred for the establishing of a note, 
 draft, check, or the like, where no resistance is expected. It is much 
 more expeditious than the proceeding for the same purpose in the Superior 
 rourt, unless resisted, in which event an appeal would lie to the Superior 
 court. 
 
 A mortgage is not such an "evidence of indebtedness" as is contem- 
 plated in §4757: 66 Ga. 322. 
 
 A lost instrument may be sued on; and if plea of noii est factum filed, 
 the same may be met by proof that th© lost note was genuine, and that the 
 copy attached to the declaration is correct, §4749. 
 
 Citation' or Notice; §4757. 
 
 Georgia, Bibb County. 
 
 To Williani Smith, of said county: 
 John Jones having filed a petition praying the establishment of 
 a certain evidence of indebtedness to wit, a 'Certain bond (or, what- 
 ever it is), said to be lost or destroyed, whereof he alleges that you 
 are the maker, annexing to his petition a sworn copy thereof, a, copy 
 of which said copy is hereto attached. 
 
 Therefore, you are hereby required to appear before me at a 
 
 day not more than ten days distant, to wit, on the — day of , 
 
 189 — , and show cause, if any you have and can show, why said 
 copy should not be 'established in lieu of said lost original. 
 This — day of , 189—. G. M. Wiley, Ordinary. 
 
358 GEORGIA FORMS 
 
 This citation or notice must be served personally by an officer, either 
 sheriff or bailiff, or person specially appointed by said ordinary for the 
 purpose, at least five days before the hearing ,§4757. 
 
 Order; §4757. 
 
 The ^Yit■lIin petition of John Jones praying tlie establishment of 
 a copy of a lost evidence of indebtedness, to wit, a certain bond, 
 coming on to be heard, and, it appearing that William Smith, the 
 alleged debtor or maker, was duly cited to 'appear, as required by 
 law, and no successful defense being made, it is ordered that the 
 copy so prayed to be established, be, and the same is hereby estab- 
 lished, in lieu of the lost original. 
 
 This — day of , 189 — . G. M. Wiley, Ordinary. 
 
 Said petition, notice and order, shall be entered in a book of record 
 specially prepared for the purpose, §4757. 
 As to defenses, see §4757. 
 Either party may appeal to the Superior court, §4757. 
 
AND PKACTICE. 359 
 
 CHAPTER 11. 
 
 r'KOCEEDTNGS TOE THE ABATEMENT OE NUISANCES. 
 
 Any nuisance which tends to the immediate annoyance of the citizens in 
 general, is manifestly injurious to the public health and safety, or tends 
 greatly to corrupt the manners and morals of the people, toay be abated 
 and suppressed by the order of any two or more justices of the peace of 
 the county, founded upon the opinion of twelve freeholders of the same 
 county, who shall be summoned, sworn, and impaneled, for the purpose; 
 which order shall be directed to and served by the sheriff of the county, 
 or his deputy, 54760. 
 
 Application for Abatement of Nuisance; §4760. 
 
 Georgia, Bibb County. 
 
 To James A. Thomas, Jr., and G. T. McElroy, Justices of the 
 Peace for said county : 
 
 The application of John Jones respectfully shows that 'he is a 
 citizen of the 1085ih dist., G. M., said county, and that he has re- 
 sided within loo yards of what is kn'owu as the "Old Laboratory 
 
 luilding," for years last pasit; and that William Smith ha? 
 
 laitely set up and established a guiano factory in said building and 
 is now operating the sarnie therein. Petitioner shows that said 
 factory is of great immediate annoyance to the citizens in general, 
 'and to himself and family in particular, and is manifestly inju- 
 rious to the public h'ealth and safety, 'and has damageid and is dam- 
 aging to the health and safeity of both himself and family. 
 
 Wherefore petitioner prays that said nuisance may be abated and 
 suppressed. 
 
 This — day of , 189 — . John, Jones. 
 
 For notes see end of chapter. 
 
 Summons; §4760. 
 
 Georgia, Bibb OoTinty. 
 
 To William Smith: 
 You axe hereiby required to appear at the court ground for said 
 district, nea>r where the contimmtion of Washington Ave. crosses 
 
 the Vineville branch, on the — day 'of , 189 — , at three 
 
 o''clock, P. M., to answer a complaint by John Jones that you are 
 
360 GEOKGIA FOKMS 
 
 maintaining a miisance, to Avit, a guano factory, at the "Old Lab- 
 ratory hulldmg," in said county. 
 
 Witness our official signatures this — day of , 189 — . 
 
 James A. Thomas, Jr., 
 
 N. P. and ex-of. J . P. 
 a. I. McElroy, J. P. 
 
 Precept ; §4760. 
 
 Georgia, Bibb County. 
 
 To 6r. ;S. Westcott, Sheriff of said County, or his deputy: 
 You axe hereby required to summion the following twelve free- 
 holders of said county (naming them) to 'appear at the court ground 
 of th'e 1085th district, G. M., neur where tJve continuation of 
 Washington <wemie crosses the Vineville branch, to try a certain 
 complaint of nuisance by John Jones against William Smith, 
 there pending. Witness our official signatures this — day of 
 
 , 189 — . James A. Thomas, 
 
 N. P. and ex-of. J. P. 
 C. I. McElroy, J. P. 
 
 Pof notes see end of chapter. 
 
 Proceeding to Abate Mill-dam, or the like; §4764.* 
 
 Georgia, Bibb County. 
 
 Before me, C. M. Wiley, Ordinary of said county, personally 
 appeared A B and C D, who, being duly sworn, say that they are 
 freeholders of said county, and that a certain mill^d'am owned by 
 
 E F,and in the possession of G. H, situated at in the vicinity 
 
 of their homes, is a nuisance, and that the health of the .neighbor- 
 hood, according to their opinion and belief, is materially injured 
 by such 'mill-dmn. And deponents make this affidavit that a jury 
 may be summoned to adjudge the case of nuisance complained 
 of, as provided by law. A B. 
 
 CD. 
 Sworn to and subscribed to before me 
 
 tlhis — day of , 189—. 
 
 C. M. Wiley, Ordinary. 
 
 The oath to be administered to a jury in justices' court is laid down In 
 §4144. 
 The verdict should say whether the matter complained of Is or is not a 
 
 "lielccaiUTnl tl isi€titi(n l<reiE cbsigteWe 1o the Tode. The dashes above and lelow 
 it \»i.l jiicii d theiftderrtal i's mcreTy an Jnkriolatkn, aod that It should not dam the 
 mair (uricnttf ihcuglt, to T?it, lie Pioiecd'rg Itfcre JtsiciBcf the Feaee. 
 
AND PRACTICE. 361 
 
 nuisance as alleged. If It say the former, the following (substantially) 
 should be the 
 
 Judgment of Justices ot the Peace as to Nuisances. 
 
 The jury in this case having found that the factory complained 
 of is a imisanee as alleged, it is ordered that the same be abated 
 and suppressed, and that defendant pay the' cost of this proceeding, 
 
 to wit: the sum of dollars. This — day of — , 189 — . 
 
 (Signed by the two justices). 
 
 Order to Abate Nuisance. 
 
 Georgia, Bihb Co'unty. 
 
 To G. /S'. WestcMt, Sheriff of said County, or his Deputy: 
 
 Whereas, John Jones lias made complaint before us that a eer- 
 iain guwno fwctory is being maintained by William S'mith 
 near the "Old haboratory buildmg," in the 1085th district, G. M., 
 said county, and that the same is a nuisance to the public in general 
 and to complainant in particular, and whereas a jury duly made up 
 mid sworn has so found. 
 
 Therefore you are hereby commanded to aba;te and suppress 
 said nuisance forthwith, and to make of the goods and chattels, 
 
 lands and tenements of the said WilUa/m S-mith the sum of 
 
 dollars for Costs of suit. And yon will make return of your act- 
 ings and doings herein to one of the undersigned. 
 
 Witness our luands and official signatures, this — day of , 
 
 189 — . (Signed by the two Justices). 
 
 Aiatement takes place of indictment, 42 Ga. 638. And right of, prevents 
 resort to equity, unless facts peculiar, 83 Ga. 451; 59 Ga. 790; 53 Ga. 380; 
 51 Ga. 523. Abatement by Justices of the Peace, §4760. By cities, §4762. 
 
 By County courts, 38 Ga. 181. Nuisances tending to annoy the communi- 
 ty, injurious to health, or corrupting public morals, indictable after notice 
 to abate, and punishable as a misdemeanor,Penal Code, §641. 
 
 Certiorari lies from decision of mayor and council, 70 Ga. 191. 
 
 Cities, Justice of Peace no jurisdiction to abate in, 40 Ga. 87. City abat- 
 ing, not liable for damages unless acting maliciously, 67 Ga. 190. Under 
 charter may sometimes abate summarily without notice, 86 Ga. 756. 
 Wooden building in fire limits, abated by, when, 45 Ga. 152. Railroads in, 
 not abated as nuisances, when tracks laid by consent, 42 Ga. 631. May 
 abate guano warehouse, but may be estopped by failing to object and per- 
 mitting heavy outlay in erection, 72 Ga. 803. Cannot declare that a 
 nuisance which is not so in fact, 72 Ga. 209; 79 Ga. 807; 95 Ga. 325. Ger- 
 iiorari from decision of, 70 Ga. 191. May have special powers in addition 
 to those in Code, 70 Ga. 191. Not liable for destroying a nuisance danger- 
 ous to health, 95 Ga. 324; 90 Ga. 390. Not liable for acts of board of health 
 In abating nuisance, 95 Ga, 129; 90 Ga. 390. , 
 
 Notice generally necessary, §4763. Even by cities, 67 Ga. 192. But 
 
362 GEOEGIA FORMS 
 
 may sometimes abate summarily under charter, 86 Ga. 756; 95 Ga. 325. n 
 80 Ga. 390. Though city acts at its peril if the alleged nuisance was not 
 such in fact, and its destruction not necessary to public health and safety^ 
 95 Ga. 325. 
 
 Nuisances, private, tplmt are not. Jail in a city, 77 Ga. 336. Railroads; 
 authorized to be laid on streets, 50 Ga. 451; 42 Ga. 631. Barroom not neces- 
 sarily so, 92 Ga. 442. Nor is an electric power-house, 92 Ga. 209. 
 
 Purchaser may abate nuisance injuriously affecting property at time ot 
 purchase, 7 Ga. 296. Purchaser from person creating nuisance must have- 
 notice before suit for damages or proceedings to abate 96 Ga. 450; 7 Ga.. 
 297. Purchaser must abate nuisances existing on the property at the time 
 of the sale, 93 Ga. 565. 
 
 The following have, under the facts,, been held to be private nuisances:: 
 
 Obstruction in private way, 55 Ga, 310. Or in a neighboorhood road, 61 
 Ga. 156.* Stagnant mill pond, 73 Ga. 484; 79 Ga. 807. Large quantities of 
 rotting grain, 90 Ga. 390. Blacksmith shop, 65 Ga. 43. Encroachment on 
 a street, 80 Ga. 796; 86 Ga. 756. Cellar steps on street, 72 Ga. 209. Livery- 
 stable, 68 Ga. 669. Privies on an alley, 64 Ga. 423. Trash and filth thrown 
 on an adjoining roof, 71 Ga. 563. Water backing on land, 78 Ga. 747, 641. 
 Private building may be when, 67 Ga. 190. Manhole in sewer, 91 Ga. 210.. 
 
 *For a petition to the Ordiaary uader §679 to re nove obstruotioi from priv.ite way, B3e p. 
 20, hereinbefore. It 1< believed that the notes to that petition will be found pertinent and 
 helpful In this connection, especially In regard lo the Ordinary's jurisdic'.ion concurrent with> 
 thai of Magistrates. 
 
AND PRACTICE. 363: 
 
 CHAPTER 12. 
 
 PROCEEDIJSTGS AGAINST OEEICERS OF COURT. 
 
 Proceedikg Against Sheriff; §4770. 
 
 Greargia, Bihb County. 
 
 To th'e Honorable W. H. Felton, Jr., Judge of the Superior 
 Court of said County : 
 
 John Jones brings tShis liis petition against 'G^. 8. Westcott, 
 Sheriff of said oounty, and alleges : 
 
 1. On the — day of , 189 — , la certain fi. fa. for dol- 
 lars lately issued from the Superior ciourt of said ciounty in favor 
 of petitioner against WiUiami 8>niith, was plateed in the hands ot 
 said defendant sheriff, and has ever since, continuously, been in 
 his hands. 
 
 2. Petitioner has upon more than one. occasion pointed out to 
 said defendant slveriff property of the defendunt in said fi,. fa. 
 upon which to levy the same. 
 
 3. Said defendant sheriff has never yet made the money upon 
 said' fi. f-a., nor any part of said money. 
 
 Wherefore petitioner prays a rule nisi directed to the said de- 
 fendant requiring him to show cause why he should not pay peti- 
 tioner the money due on said fi. fa., or why, in default thereof, he 
 should not be attached for a contempt. 
 
 John Jones. 
 
 For notes see end of chapter. 
 
 Rule Nisi; §4774. 
 
 The foregoing petition against G. 8. .Westeott, sheriff of Biih 
 
 county, read and considered. Ordered that he show cause as 
 
 prayed before the Superior Court of said county at the next lerm 
 
 thereiof (or, at the present term, on the — day of , 189 — ,). 
 
 Let a Copy of said petition and of _thas order be served upon said 
 
 sheriff forthwith. This — day of , 189—. 
 
 W. H. Felton., Jr., J. S. C. M. C. 
 
 The oflBcer shall fully answer under oath, and if the answer Is not de- 
 nied, the rule shall he discharged, or made absolute, according as the court 
 may deem the answer sufRcient or not. The movant, however, may tra- 
 verse the truth of such answer, in which case an issue shall be made up 
 and tried by a jury at the same term. Upon the trial, the court shall dis- 
 charge the rule, or make the same absolute, according as the verdict of 
 the jury may l)^ for or against the afllcer, §477-5. 
 
364 G-EOKGIA FORMS 
 
 EuLE Absolute; §4775. 
 
 [9',n/te thicase.] 
 
 The defendant in the above stated case having been duly served 
 with a rule nisi, and having failed to show cause as required, or- 
 dered tthat the said rule be made absolute and that he pay to the 
 plaintiff instainter the amount due on said ii. fa., to wit, — dollars, 
 and that on failure to do S'O he be subject to execution or attaoh- 
 ment, as provided in §4778 of the Civil Code. This — day of 
 
 , 189—. 
 
 W. H. FtMon, Jr., J. S. C. M. C. 
 For notes see end of chapter. 
 If any sheriff, coroner, justice of the peace, constable, clerk of the Supe- 
 rior court, or attorney at law, shall fail, upon application, to pay over any 
 money which he may have in his hands, collected by virtue of his oflSce, 
 thp party entitled thereto, or his attorney, may serve said officer with a 
 written demand for the same, and for neglect or refusal, the said officer 
 shall pay twenty per cent, per annum upon the sum he has in his hands, 
 from the date of such demand, unless good cause be shown to the contrary, 
 §4771. 
 
 Demand; §4771. 
 
 Georgia, Bi66 County. 
 
 To G. S. Westcott, Sheriff of said County: 
 
 I hereby m^ate demand upon you for the money collected by you 
 
 upon a certain fi. fa in my favor against WilUwm 8mlth, for 
 
 dollars principal, dollars interest, and — dollars costs, issued 
 
 from the term, 189 — , of the Superior Court of said county. 
 
 This — day of , 189 — . John Jones. 
 
 Affidavit of Service; 4772. 
 Georgia, Bibb County. 
 
 Personally comes JoJioi Jones, who, being duly sworn, deposes 
 
 and says that on the — day of , 189—, he did personally 
 
 serve G. S. Wcstcott, sheriff of said county, with a written de- 
 mand of which the foregoing is a copy. John Jones. 
 Sworn to and subscribed before nie 
 
 this — day of , 189 — . 
 
 The forms ante relative to proceedings against the sheriff for failure to 
 levy, will suggest the proper procedure where it is desired to rule him for 
 not paying over money, and the like. 
 
 Where money is in the hands of an officer, he may pay it over to the 
 plaintiff by whose process it was raised, unless other claimants deposit 
 their lien with him. Notice to retain unaccompanied by a lien is insuffi- 
 cient. Money raised by legal process not being subject to levy and sale, 
 the court in making distribution proceeds upon equitable principles. All 
 parties intervening shall, by appropriate pleading, set forth the ground of 
 
AND PEACTICE. 365 
 
 their claim to the fund. All persons interested, who are notified in writing 
 by the sheriff or movant, of the pendency of the rule, will be bound by 
 the judgment of distribution, §4776. 
 
 Answer of officer must be full and definite, 32 Ga. 548. Must set up suffi- 
 cient legal defense, otherwise rule made absolute, §4775. If evasive, 
 51 Ga. 475, or indefinite, 32 Ga. 548, rule made absolute. 
 
 Damage: Movant's debt is prima facie measure of damage, 7 Ga. 448; 17 
 Ga. 624, 521; 60 Ga. 334. Must exist to sustain rule, 18 Ga. 469. Officer 
 may show payments to lessen, 57 Ga. 161; 60 Ga. 334; 22 Ga. 307. 
 
 Discretion, officer entitled to where conflicting liens, 76 Ga. 792. And 
 costs taxable against prevailing lien, 79 Ga. 394. 
 
 Issues considered on hearing. That deed was to defraud creditors, 54 
 Ga. 557. That judgment was paid off, 57 Ga. 161; 49 Ga. 545. 
 
 Money Rule is a suit, 77 Ga. 552. Of an equitable nature, 75 Ga. 
 63. Similar to a bill of interpleader, 76 Ga. 792. Must set out facts 
 entitling movant to the relief prayed for, 77 Ga. 552; 65 Ga. 493; 80 Ga. 
 218; 75 Ga. 63; 2 Ga. 169; 49 Ga. 609; 86 Ga. 662. If there is no traverse 
 there is no issue, and no testimony is admissible, 62 Ga. 174. Ordinarily, 
 sheriff should be first required to make a return of what he has done and 
 upon default appearing, then rule, to show cause why he should not be 
 attached for contempt issues. But rule nisi may be so framed as to notify 
 him that attachment will be moved if default appears in his answer, 18 
 Ga. 361. 
 
 Notice to hold up must be accompanied by the lien, §§4776, 2741, 2815(3); 
 53 Ga. 79; 53 Ga. 69; 72 Ga. 767. Though sometimes the holder of unf ore- 
 closed deed, 76 Ga. 792; 72 Ga. 469; 97 Ga. 402; or unforeclOBed lien, may 
 be entitled to have it held up, 59 Ga. 653; 72 Ga. 469; §2816(6, 7). Un- 
 foreclosed laborer's lien insufficient to hold up, 68 Ga. 269; 72 Ga. 767. 
 
 Officer liable for failure to collect and pay over 9 Ga. 413; 37 Ga. 604. 
 And for act of his deputy, 1 Ga. 584; 3 Ga. 1; 10 Ga. 158. For failing to 
 levy on property subject and pointed out, 77 Ga. 83; 56 Ga. 634; 64 Ga. 749. 
 For accepting insufficient affidavit of illegality, 57 Ga. 161; 83 Ga. 761. 
 For failing to levy, advertise and make return in time, law presumes 
 plaintiff damaged for want of due diligence and burdea on officer to show 
 plaintiff not damaged, 80 Ga. 222; 37 Ga. 604. 
 
 Officer cannot take advantage of defects in process raising the fund, 73 
 Ga. 238. Or of his own neglect, 72 Ga. 258. Or that execution does not 
 follow judgmert, 76 Ga. 377; 70 Ga. 430. Or attack judgment for fraud, 
 56 Ga. 613. Officer liable fcr negligent escape, 1 Ga. 544. For failure 
 to levy, 13 Ga. 389. Fcr any neglect of duty damaging the movant, 1 Ga. 
 584; 8 Ga. 153; 65 Ga. 268; 80 Ga. 222; 83 Ga. 761; 17 Ga. 624. 
 
 Parties. Sheriff a necessary party in bill of exceptions, 63 Ga. 433; 64 
 Ga. 435. But see §5562. And so are all interested in sustaining ths 
 judgment, 70 Ga. 188, 725. Any person interested in the fund may inter- 
 vene, 97 Ga. 782. 
 
■366 GEOEGIA FORMS 
 
 CHAPTER 13. 
 OF PARTITION. 
 
 Equity has jurisdiction in cases of partition, whenever the remedy at 
 Jaw is insuflScient, or peculiar circumstances render the proceeding in 
 ■equity more suitable and just, §4783. The decree passes title without the 
 ■execution of any conveyances by the parties, §4784. If it appear that the 
 present or prospective interest of each tenant may not be protected, par- 
 tition may be postponed or denied, §4785. 
 
 Where two or more persons are common owners of lands and no nro- 
 Tision is made by will or otherwise, as to how such lands are to be divided, 
 ■any one of such common owners may petition the Superior court of the 
 ■county in which such lands lie. for a writ of partition, setting forth plainly 
 and distinctly the facts and circumstances of the case, describing the 
 premises to be partitioned and defining the share and interest of each of 
 •the parties therein, §4786. 
 
 Petition for Partition of Realty ; §4786. 
 
 To the Superior Court of said County: 
 John Jones brings tihis Ms petition for partition, and alleges: 
 
 1. Thomas Jones lately died intestate, leaving as his only heirs 
 ^nd distributees six children, to wit, your petitioner and the fol- 
 lowing five other persons (naming them). 
 
 2. All said heirs are of full age except (naming the minors and 
 giving their ages). 
 
 3. Said intestate was, at the time of his death, the owner of a cer- 
 tain traot of land situate in eaid' county, described as follows, (de- 
 scribing it). 
 
 4. Petitioner has given to the other parties coneemed twenty 
 days notice of his intention to make tihis application, as required 
 by law. 
 
 Wherefore, the premises considered, petitioner prays that said 
 land be partitioned among said heirs according to law. 
 
 John Jones, Petitioner. 
 See notes at end of chapter. 
 
 Notice; §4788. 
 
 Take notice that at the Superior Court of said county to be 
 holden on the iUrd Monday m April, 189 — , I will apply for 
 partition of the following land whtereof the late Thomas Jones 
 died, seized arid possessed, viz., (describing it). 
 
 This April. 1st, 189—. John Jones. 
 
AND PKACTIOE. 367 
 
 If any of the parties be a minor, a lunatic, or a cestui que trust, notice 
 may tie served on the guardian of such minor or lunatic, or on the trustee 
 •of such cestui que trust, and if any of the parties reside without the limits 
 •of this State, the court may order service by publication, as in its judgment 
 is right in each case, §4788. 
 
 OfiDEE; §4789. 
 
 [State the case.] 
 
 The aboA'-e stated petition for partition coming on regularly to 
 be beard, and due prio'of being made that the notice required by law 
 has been given, and it appearing upon an examination of petition- 
 er's title and share of the premises, that all th'e six parties con- 
 <'erned are tenants in common of said premises, and that each of 
 them owns a one-sixth inter'est therein, it is ordered that the fol- 
 lowing named five freeholders of said county (naming them), be, 
 .and they are hereby appointed to partition said lands. Let the 
 clerk issue to them a writ of pai'tition accordingly. 
 
 This — day of , 189—. 
 
 W. H. Felion, Jr., J. S. 0. M. 0. 
 
 See notes at end of chapter. 
 
 Wbit of Partition; §4789. 
 
 Georgia, BM County. 
 
 Office of the Clerk of the Superior Court. 
 
 To the following named five freeholders of said county, to wit, 
 (naming them) : 
 
 "Whereas, John' Jones hath filed his petition in this court, pray- 
 ing partition of the following land situate in said county (describ- 
 ing it), upon which said petition an order was passed at the 
 
 term, 189 — , of said court declaring that the following named six 
 persons (naming them), are tenants in common of said land, having 
 «ach of them a one-sixth interrat therein, which said order nomi- 
 nated you as piartitioners to divide said land, and directed that a writ 
 issue accordingly; 
 
 Now therefore, yon, or a majority of you, are hereby required, 
 after taking the oath prescribed by §4790 of the Civil Code, and 
 after giving notice as therein required, to proceed to make a just 
 and equal partition and division of said land, either in entire traets 
 or parcels, as you shall judge to be in proportion to the shares afore- 
 said, and most beneficial to the several common owners, according 
 to the best of your skill, ability and knowledge. 
 
 And jou are further required to return^ this writ into the court. 
 
368 GEORGIA FOEMS 
 
 "vvith youT actings and doings 'hereon, under your hands and seals, 
 Avithin three anontlhs after the date hereof. > 
 
 Witness the Honorable W. H. Felton, t/r.,Judge of said court, 
 
 this — day of , 189—. 
 
 Robert A. Nisbet, Clerk. 
 
 See notes at end of chapter. 
 
 Oath; §4790. 
 
 Georgia, Bibb County. 
 
 We do solemnly swear duly land impartially to execute the within 
 writ. (Signed by the parti ti oners.) 
 
 Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 To be taken before any- officer authorized by law to administer oaths. 
 
 The partitioners shall have power to select a surveyor to aid them in 
 the discharge of their duties, §4790. 
 
 They must give to all parties, if possible, at least eight days' notics, 
 §4790. 
 
 Notice; §4790. 
 
 Georgia, Bibb County. 
 
 To John Jones, &c., (naming the parties): 
 You are hereby notified that by virtue of a writ of partition 
 issued from the Superior Court of said county, to us directed, we 
 
 will, on the — day of , 189 — , proceied to make partition and 
 
 division of the following land, wherein you are interested, situate 
 
 in said county (describe tihe land). This — day of , 189 — . 
 
 (Signed by the partitioners, or a majority of them). 
 
 Return ; §4790. 
 
 Georgia, Bibb County. 
 
 Ky Adrtue of the foregoing (or, "within") writ, we, the under- 
 signed partitioners, after giving the notice and taking the oath, 
 
 obediently lihereto, did on the — day of , 189 — , divide said 
 
 land into six equal portions, and did apportion the same as follows: 
 
 I'o Juliii Jones we allotted the following poi'tion of said land, 
 to wit, (describing it), (and so on with either five). 
 
 We selected a surveA^or, Georfje S. Birch, to assist us in the dis- 
 cliarge of our duties, and said surveyor did prepare plats of the sev- 
 eral parcels, making each plat with 'the name of the person to 
 'vvhom we allotted the tract thereon designated. 
 
 The time spent by us iii executing this writ wfs tiro days; and 
 
AND PEACTICE. 369 
 
 said snryeyor was engaged three days in connection witli this mat- 
 ter. Witness our hands and seals, tlhis — day of , 189 — . 
 
 (Signed by tlie partitioners.) 
 
 Judgment; §4792. 
 
 Ordered that the foregoing rdtum of partitioners be and the 
 siune is hereby miade the judgment of 'tihis court. Let writs of poa- 
 session be issued by. the clerk in favor of the several parties for the 
 land assigned to them respectively. 
 
 Ordered further that to each of the partitioners whose names 
 
 are signed to the return, dollars be paid as compensation, nad 
 
 that the surveyor be paid dollars. Let said costs be borne by 
 
 <3,U the parties concerned equally. 
 
 This — day ef , 189—. 
 
 W. H. Felton, Jr., J. S. 0. M. 0. 
 
 Writ of Possessiojst; §4792. 
 
 John Jones "| Petition for Partition, 
 
 vs. > Bibb Superior Court, 
 Heirs of Thomas Jones.) Term, 189 — . 
 
 To G. '/S. Westoott, Sheriff of said County: 
 
 Whereas, judgment has 'been rendered in the above stated cause, 
 awarding to John Jones the following tract or parcel of land (de- 
 scribing it), and directing that a writ of possession be issued in his 
 favor therefor; 
 
 Therefore you are herefby required to proceed forthwith to put 
 the said John. J<mles in full and complete possession of said land, 
 and yoTi will mate of the goods and chattels, lands and tenements 
 
 •of said John Jones dollars cost, (one-sixth of the cost of the 
 
 proceeding). 
 
 And you will make return of this writ, with your actings and 
 doings entered theireon, to the next term of ^this court. Hereof 
 fail not. 
 
 Witness the Honoraible W. H. Felton, Jr., Judge of said court, 
 
 this — day of , 189 — . 
 
 Robert A. Tsfisbet, Clerk. 
 
 Agreement, partition 'by, acquiesced in, binding, 81 Ga. 701; 39 Ga. 559; 
 3 Ga. 82; 93 Ga. 819; 78 Ga. 459. 
 
 Division in hind should be made, 56 Ga. 649; 70 Ga. 414. And sale rec- 
 ommended by partitioners successfully caveiated on proof tbat division 
 can be made, 43 Ga. 386; 70 Ga. 414; 72 Ga. 792. 
 
370 GEORGIA FORMS 
 
 Equity has concurrent jurisdiction, 17 Ga. 123; 79 Ga. 164; 81 Ga. 314. 
 And will decree partition and accounting, 50 Ga. 192; 56 Ga. 649; 37 Ga. 1. 
 
 Minors bound by decree, 64 Ga. 78. If properly represented by guardian 
 ad Utem, 78 Ga. 607; 79 Ga. 166; 64 Ga. 78. 
 
 Parties, all joint owners must be, 33 Ga. 107, and non residents must be 
 served, if necessary, by publication, 8 Ga. 83 ; 78 Ga. 352. 
 
 Temporary, decreed until youngest tenant reaches majority, 95 Ga. 766. 
 
 Title, applicant must have legal, though petition need not set out the 
 complete chain, 14 Ga. 521. Holder of security deed generally not entitledi 
 to partition, 84 Ga. 583. Bond for titles, holder of cannot institute par- 
 tition proceedings to cause absolute sale of the property, 93 Ga. 586. 
 
AND PRACTICE. 371 
 
 CHAPPER 14. 
 
 POSSESSORY WARRANTS.* 
 
 Affidavit; §4799. 
 
 Georgia, Bihh Oounty. 
 
 Before me, J<JDims A. Thomus, Justtice of tlie Peace in and for 
 said county, comes John Jones, who makes this his complaint, and 
 on oath says that there is in said county cei'tain personal property, 
 to wit, a certoAii double case gold watch, of the value of ninety 
 dollars, and that the same has been taken, or carried away, by 
 fraud and violence, from deponent's possession by WilUam Smitli, 
 in whose possession the said personal property now is, and that 
 deponent does in good faith claim a title to or interest in (or, "the 
 possession of") said personal property. 
 
 John Jones. 
 Sworn to and subscribed to before me 
 
 this — day of , 189 — . 
 
 James A.. Thomas, J. P. 
 
 Sole question — ^how was the possession obtained? See §4802 and notes. 
 One cheated In a horse-trade cannot recover (his horse by possessory war- 
 rant, 65 Ga. 697; even though he offer to swap back, 65 Ga. 612. Trover 
 is his remedy, 65 Ga. 697. Aliter where the physical possession of the 
 horse was obtained by a fraudulent trick, 50 Ga. 562. Lies at instance of 
 tenant for property violently or fraudulently seized by landlord, though 
 title in latter, 68 Ga. 428. 
 
 The other form Is as follows: 
 
 •The causes which led the legislature of 1821 to create this summary remedy, now so famil - 
 iarly known as Possessory Warrant, do not appear from the act as it stands in the code, but 
 they are still Interesting as matter of history, and helplul toward a correct interpretation of 
 the statute. The preamble of the act read: "Whereas, a practice hath been followed by 
 som e persons having, or laying claims to negroes (ind other personal property, to take or convey 
 away the same, by violence, seduction or otber means, or to harbor or otherwise take, or 
 cause the same to be taken, out of the possession of the adverse claimant, without due course 
 of law and oftentimes to remove the same out of the State, to the great injury of the true 
 owner ; and, whereas, manifest Injustice and many serious mi-schiefs may arise from such a 
 practice, which is productive of frauds, violence, quarrels and bloodshed. " Aoti of 1820-1, p. 
 60. Promissory notes, stock certificates, title d-'Ods and the like, are recoverable as ' ' personal 
 property " under this same statute, 18 Ga., 238. The statute, S4799, seems to contemplate two 
 distinct classes of cases. (1) Where the property " has been taken *'■"■' by fraud, violence '•** 
 orcther means from the possession of" plaintiff; (2) Where, having been recently in the 
 quiet, peaceable and legally acquired possession of " plaintiff, it " has disappeared with'int 
 his 'Hsent," and he believes defendant has it. A separate form for each of the two cases is 
 presented in the text. The statute as a whole, as developed in practice by judicial construc- 
 tion, covers every possession acquired without plaintiff's consent, or without authority of law, 
 is Ga., 34, 30 Ga , 207. But it does not cover possession acquired by purchase at judicial sale, 
 on ground that the levy was a trespass, 51 Ga., 501 . Nor does possessory warrant lie against a 
 sheriff, to recover property levied on, 36 Ga.j 93. Nor against City Marshal who, by authority 
 of municipal ordinance, impounded stray horse, 70 Ga., 628, etc , etc. 
 
••^72 GEORGIA FORMS 
 
 Affidavit; §4799. (ci) 
 
 Georgia, Bibb County. (6) 
 
 Before me, James A. Thomas, Justice ocf tlie Peace in and for' 
 said county, comes John Jones, •wiho makes this his complaint, and 
 on oath says 1ihat there is in said county certain personal property, 
 to wit, a certain double-rase gold lowtch, of the value of ninety dol- 
 lars, and that the samie, having been recently (c) in the quiet, 
 peaceable and legally acquired possession of deponent, has disap- 
 peared without his consent, (d) and, as he believes, has been re- 
 ceiv^ed and taken possession of by Willim Smith (e), under some 
 pretended claim, and without lawful warrant or authority (/) and 
 that deponent does in goiod farth claim a title to or interest in (or, 
 "the possession of") said personal property. 
 
 John Jones, (g) 
 Sworn 'to and subscribed to before me 
 
 this — day of , 189 — . 
 
 Jame.s A. Thomas, J. P. 
 
 (a). Sole question — how was possession obtained? See §4802 and notes. 
 
 (6). Affidavit is to be sworn out before officer of county where property 
 is §4799, regardless of defendant's residence, 67 Ga. 616. But allegation 
 that defendant is "of" the county and has the property, is enough to show 
 jurisdicticm, 63 Ga. 331. In 34 Ga. 222, a possessory warrant Issued in Wil- 
 kinson county upon affidavit mad© In Bibb county was upheld by anal- 
 ogizing it to forcible entry proceedings, tout the later decisions tend other- 
 wise, as just indicated. 
 
 (c). No lapse of time bars, where defendant fails to shown four years' 
 possession, 46 Ga. 616. Here horse was lost six years prior to suing out 
 warrant, Ih. See also, 81 Ga. 738, 22 Ga. 319. 
 
 (d). Affidavit failing to state that the property of plaintiff "disappeared 
 without his consent," warrant void, 81 Ga. 714. See in this connection, the 
 Mcintosh county canary bird case, where A's bird flew to B's house, and 
 A brought possessory warrant and recovered it, 69 Ga. 447. 
 
 (e). Plaintiff's agent's possession is plaintiff's possession, 67 Ga. 24. 
 Croppers in joint possession of property, division prerequisite to possessory 
 warrant by one against the other to recover any part thereof, 40 Ga. 328, 
 77 Ga. 537. 
 
 (f). Where A bought cotton of B, (a farmer), and left it with B "until 
 called for," and B refused to deliver it When called for, possessory warrant 
 lay, 34 Ga. 222. But where B was a cotton factor, and had a claim for ad- 
 vances and expenses, possessory warrant did not lie until tender of such 
 advances and expenses, 34 Ga. 382. The case in 34 Ga. 222 "went to the 
 utmost limit" of constructive possession, in its holding that B's possession 
 there was A's possession, 36 Ga. 628. Tihis 36 Ga. 628 ruled that where B 
 "agreed to seed said bale of cotton to Cuthbert to the stable-yard of" a 
 named person, B's possession was not constructively A's, but his own. sitill. 
 
 Possession of the note here was lawful; trover was the remedy, 77 Ga. 
 684. 
 
AND PEACTICE. 373 
 
 Although delivery to carrier is delivery to consignoe, still, a bill of lad- 
 ing being assignaible, railroad's refusal to deliver except on presentation 
 thereof, proper, and possessory warrant against It at consignee's instance, 
 not lie, 63 Ga. 745. 
 
 (.g). Plaintiff a corporation, affidavit by officer should negative consent 
 or corporation, (not consent of the officer), and should allege that corpo- 
 ration does in good faith, etc., 64 Ga. 514. 
 
 One of twO' joint owners of cotton delivering it to a third person, other 
 cannot recover it -by possessory warrant in his own name alone, 84 Ga. 
 478. Affidavit describing affiant as a member of a named firm, the firm is 
 not therefore a party, but affiant individually, if possession violated be 
 his own, 58 Ga. 233. Error to dismiss proceeding. J6. 
 
 Generally, partners are mutually entitled to possession of firm property; 
 but if, under their contract, to cajry out its purposes one partner must have 
 exclusive possession, possessory warrant will lie for interference there- 
 with by copartner, 68 Ga. 428. 
 
 Proof of previous peaceable possession makes prima facie case; and casts 
 burden on defendant tO' show consent of plaintiff, or legal right, 15 Ga. 25. 
 
 Such affidavit being made, it shall be the duty of the judicial officer to 
 issue, as follows, a 
 
 Possessory Warrant; §4799. 
 
 Georgia, Bihi Oonuity. 
 
 To the Sheriff, his Deputy or any LaTvful Constable of said 
 Ooimty : 
 
 John Jones having this day m'ade oath before the undersigned 
 judicial officer that he does in good faith claim a title to or interest 
 in,. (or, "the possession of") certain personal property, to wit, a 
 certain doiihk oase gold watch, alleged to be in said county, and 
 in be' unlawfully in possession of Willkitni 8'rmth. 
 
 You arc hereby oomxaanded to apprehend and arrest the body 
 of the said Williatm S'rniih and to seize the said personal property 
 above described, if to be found in this -county, and to carry the said 
 defendant and said property, together with this warrant, before the 
 undersigned, or any other judge or justice of said county. 
 
 Witness my official signature 'this — day of , 189 — . 
 
 James A. Thomas. J. P. 
 
 Officer's Entry on Warrant. 
 
 Georgia, Bihh County. 
 
 I have executed the witJhin warrant by arresting the body of the 
 defendant WilUam Smith and have him before the court. I 
 have also seized the property described in said imrrani and have 
 the same now iefore the court. [If such is the case, substitute for 
 
374 GEOR&IA FORMS 
 
 t]ie -words in italics, "After diligent seareh, I have failed to find in 
 said county tte prioperty described in the within wamaoit."] 
 This — day of , 189 — . R. F. McCotoen, Constable. 
 
 Seizure by sheriff under possessory warnamt is good defense by carrier 
 when sued for property sihlpped, 48 Ga. 432. 
 
 Wlien the day set apart for the trial arrives, the judge or justice shall 
 hear evidence as to the question of possession, without investigating the 
 title to the property, and shall deliver it to the party from whose posses- 
 sion the same was violently or fraudulently taken or enticed away, or from 
 whom the same absconded, or in whose peaceable and lawful possession 
 It last was, §4802. 
 
 Judgment; §4802. 
 
 [State the ca'e.] 
 
 The day set apairt for the trial of this cause having arrived, after 
 hearing the evidenioe, it is ordered, that the property be delivered 
 to the plainMff («) upon his giving bond "with good security, as 
 provided by law, or, upon his failure to give such bondj then to the 
 defendant (b) upon hisi giving like btond and security. Let tlie 
 defewdunt pay the cost of the proceeding. 
 
 Witness my official signature this — day of , 189 — . 
 
 James A. Thomas, J. P. 
 
 (a). Dismissal of warrant is analagous to non-suit, and not res adjudioata 
 relatively to a second warrant about same matter, 31 Ga. 122. But after 
 hearing evidence, magistrate is required by the statute to render judgment 
 and "cause the proi)erty to be delivered to the party," etc. lb. 
 
 Order should never require one party to deliver to the other, but to the 
 officer, to be by him delivered to the party entitled, 58 Ga. 235. 
 
 (6). Judgment for defendant in search warrant no bar to possessory 
 warrant, 63 Ga. 331. Judgment for defendant, no bond required, 80 Ga. 583. 
 
 Judgment on a former warrant between same parties, covering same 
 property, awarding possesssion to plaintiff. Is relevant to prove posses- 
 sion legally acquired, 30 Ga. 207. 
 
 Bond; §4802. 
 
 Georgia, Biii County. 
 
 We, John Jones, (a) principal, 'and, Henry Thompson, security, 
 acknowledge ourselves jointly and severally bound to Willicmi 
 Smith in the sum of 180 dollars, subject to the following condi- 
 tions: 
 
 Whereas, John JonesdlA on the — day of , 189 — sue out 
 
 a possessory warrant against 'William Smith for the recovery of a 
 certain dMible ease gold watch, of the value of ninety dollars. 
 
AND PEACTIOE. 375 
 
 and upon trial of said cause on the — day of , 189 — , before 
 
 James A. Thomas, a Justice of the Pwxie of said county, said 
 county, said cause was decided in f a:v!or of tlie said John Jones. 
 
 Now therefore, should the said John Jones cause the said prop- 
 erty to be produced and forthcoming to answer any judgment, exe- 
 cution or decree that may be had, issued or made upon such suit or 
 action 'as the said WiJMam Smiih maj commence or prosecute 
 within the next four years touching said pereonal pi'operty, then 
 this bond to be void. 
 
 Witness our hands and seaJs, this — day of , 189 — . 
 
 John Jones -[L. S.], 
 
 Henry Thompson [L. S.J, 
 Approved: 
 
 James A. Thomas, J. P. 
 
 (a) The second proviso of §4802, might at first glance seem to require a 
 ■different sort of bond from the above, since it provides that, plaintiff 
 failing or refusing to give bond as above, the judge or justice may, in his 
 discretion, deliver over the property to the opposite party (William Smith 
 In the case here supposed) upon his giving like bond, §4802. It is believed 
 that no judicial oflacer In this State will find any difficulty in preparing 
 such a bond, having the foregoing bond as a guide. It will be only 
 necessary to substitute William Smith wherever Joihn Jones' nam© occurs 
 in the bond, except of course in one place, viz., where the fact is recited 
 that John Jones sued out the warrant. 
 
 Where judgment for defendant, no bond required, 80 Ga. 583. 
 Pailure to require bond will work reversal of the judgment, 67 Ga. 24. 
 Magistrate not fixing bond, Superior Court may on certiorari, 84 Ga. 665. 
 
 Commitment ; §4805. 
 
 •Georgia, Bibb County. 
 
 To the Jailer of said County: 
 
 It appearing, upon the return of a certain possessory warrant sued 
 out by John Jones against Willicum Smith to obtain possession of 
 a double-case gold watch, that the officer cammat 'find in suid 
 •eou^vty the property described im said warrant, (or, "has been una- 
 bld to seize the property described in said warrant," as the case may 
 be) and that the same is in the po^ession, power, custody or control- 
 of {a) the defendant, and that said defendant doth neitiher produce 
 said property nor cause tibe same to be forthcoming to be dealt with 
 as the law directs, 
 
 Therefore, the said defendant, William Smith, is hereby com- 
 mitted to the common jail of said county, there to remain in safe 
 
376 GEORGIA FORMS 
 
 and close custody, "witliouit bail or mainprise until suck property 
 shall be pa'oduced or fortkooaning, to be disposd of as aforesaid. 
 
 Witness my official signature, this — day of , 189 — . 
 
 James A. Thmnas, J. P. 
 
 (o) Insert, if facts are that way, "^ome agent or friend of," or, "some 
 one acting for or entrusted with said property for." 
 
 Notice of Certiorari; §4803. 
 
 [State the case.] 
 
 To John Jones, his agent, or attorney at law: 
 Take notice that I intend to certiorari tbe decision of the court 
 
 in the above stated cause. Tbis — day of , 189 — . 
 
 William) Smith. 
 
AND PRACTICE. 37 T 
 
 CHAPTER 15. 
 
 TEESPASSERS ON LAISTD .AND TENANTS 
 HOLDING OVER. 
 
 ArpiDAViT TO Eject Intruder; §4808. 
 
 Georgia, Bibb Coimty. 
 
 Before, me, 'fif. R. Wiley, an oificer of said State, authorized bj 
 law to administer oaths, comes John Jones in person (the affidavit 
 may be mad© by an agent, wheai desired), who on oath says that luf 
 does in good faith claims the right of possession (b) to certain real 
 estate in said county, (describing it) (o), and that tbe same is in the 
 hands of another person, viz., William Smith, who does not in good 
 faith claim a right to the possession of said property, and yet re- 
 fuses to abandon the same. John Jonts. 
 Sworn to and subscribed to before me 
 
 tMs — day of , 189—. 
 
 8. R. Wiley, 
 Notary PubHc Bibb County, Ga. 
 
 (a) Attorney at Law cannot make the affidavit wittiout special appoint- 
 ment for that purpose, 41 Ga. 681. 
 
 (6) Purchaser at prwate sale, from executor, having paid part purchase? 
 money and holding bond for titles, although having no title, had "right 
 of possession" against bidder at previous public sale who had not com- 
 plied with bid, etc., 78 Ga. 304. 
 
 (c) As to definiteness of description, 57 Ga. 16; 60 Ga. 523. 
 
 Gmerally: Party formally surrendering bond by writing, and then re- 
 entering, intruder, 69 Ga. 746. Landlord having reserved title to crops as. 
 security, and tenant having died, is not intruder because he entered, 
 before expiration of rent contract, to finish cultivating crops, 83 Ga. 173; 
 nor, if he enters with consent of tenant's widow, can tenant's adminis- 
 trator evict him as intruder, lb. Vendor of land refusing to yield posses- 
 sion, not reached by this proceeding, 94 Ga. 278. 
 
 Sheriff must, under §4808, exhibit above affidavit to defendant, at 
 earliest practicable day, and turn him out, unless he tenders a 
 
 CoTJNTEE Affidavit ; §4808. 
 Georgia, Bibb County. 
 
 Before me, G-. S. Westoott, sheriff of said county, personally 
 comes Williaim Smith, wlio on oatH says iha-t lie does in good faith 
 claim a legal right to the possession (a) of the real property de- 
 
378 GEORGIA FORMS 
 
 -scriibed in the affidavit of Jdlvn Jones this day exhibited to depo- 
 nent by said sheriff. William Smith. 
 Sworn to and subscribed to before me 
 
 this — day of , 189—. 
 
 a. S. Westcott, 
 Sheriff Bibb Connty. 
 
 (a.) Counter-affidavit claiming "the hona fide legal right to the posses- 
 sion" held sufficient, 46 Ga. 223; also, counter-affidavit claiming "legal 
 title" to possession, held sufficient, 73 Ga. 261. Legality of possession 
 •depends on legality of original entry, 21 Ga. 368. As to what constitutes 
 a claim in good faith to the legal right of possession, 43 Ga. 478; 46 Ga. 
 -479. Hushand proceeded against may tender counter-affidavit that his 
 possession is as agent for wife, 73 Ga. 126. 
 
 Generally: Counter-affidavit cannot be received and issue made after 
 intruder put out, 41 Ga. 105, 681. Counter-affidavit insufficient, second 
 affidavit not allowed, 38 Ga. 29. See also, 46 Ga. 223; 36 Ga. 477. 
 
 The above counter-affidavit stops the proceedings, and sheriff must 
 jeturn both affidavits to the clerk of the Superior court of the county in 
 Tvhich the land lies, to be tried by a jury, §4810. 
 
 Assume that this is the 
 
 Verdict. 
 
 We, the jury, find in favor of the plaintiff, John Jones. 
 
 Martin Luther, Foreman. 
 Then comes the 
 
 Judgment. 
 
 Whereupon it is considered ordered land adjudged by the court 
 that John Jones, the plaintiff, do recover of William Smith, tihe 
 <lefendant, the possession of the real estate in dispute (describing it 
 as described in the affidavit). 
 
 Ordered further 'that plaintiff do recover of said defendant the 
 
 sum of dollars costs. Let a vmt of possession and of fieri 
 
 facias for the costs be istsneid by the clerk accordingly. 
 
 Attorney for John Jones. 
 Writ of Possession; §4811. 
 ■Geoegia, Bibb County. 
 
 To the Sheriff of said County: 
 Whereias judgment has been lately rendered in this court in favor 
 of Jdhn Jones as plaintiff, against WilUmn Smith, defendant, 
 Tj.pon an issue between said parties as to the right of possession to 
 certain land situate in said county (describing it 'as described in 
 the judgment), 
 
AND PRACTICE. 379 
 
 Now, therefore, you are hereby commanded to proceed forth- 
 ■with to put the said J61vn Jorves in full and quiet possession of 
 said real property 'aforesaid, anld to make return hereof to the next 
 term of this court. 
 
 You arfe further commanded that of the goods and chattels. 
 lands and tenements of the said William Smith you cause to be 
 
 made the sum of dollars costs. And have you the said sums 
 
 ■of money before this court at the next term hereof. And hare 
 _you then and there this writ. 
 
 Witness the Honorable W. H. Felton, Jr., Judge of said court, 
 
 this — day of ,189—. 
 
 Robert A. Nisiet, Clerk. 
 
 This is the proper writ for the clerk of the Superior court to issue and 
 •deliTer to the sheriff, where jury find for the plaintiff, and judgment is 
 thereupon entered up as above. 
 
 Affidavit to Evict Tenant; §4813. 
 
 <jrEOEGIA, Bibb COUNTY. 
 
 Before me, James A. Thomas, a Justice of the Peace in and for 
 ■said county (a), (or, "W. H. Felton, Jr., Judge of the Superior 
 Court for said county," the former being the officer before whom 
 such proceedings are usually begun), pereonally appeared John 
 ■Jones, who on oatih says that Wilham Smith did on the — day of 
 , 189 — , rent (6) from deponent the following real estate situ- 
 ate in said county, whereof deponent is owner to wit: (describing 
 it), (c) 
 
 Select on? of ihe three following paragraphs, as the facts of the particular case may require. 
 
 1. Said Willicbm Smith rented said real estate for a period of 
 ■ months, ending on the — day of , 189 — , but he con- 
 tinues to hold possession thereof over and beyond the term for' 
 ■which the same was rented (or, "leased") to Mm. 
 
 2. Said WilUam Smith rentdd said real estate under a contract 
 ■W'hereby the rent was to be payable immvthly, but he has failed to 
 pay the rent when the same became due. And that the rent now 
 due and unpaid is dollars, (d) 
 
 3. Said lands are held by said William Smith 'as tenant at will 
 (or, 'Sufferance") of deponent. 
 
 ••(HaTing selected one of the above three paragraphs, proceed to the put which now follows.) 
 
 Subsequently to the foregoing, 'this deponent, desiring posses- 
 sion of said rml estate, did personally demand the possession thereof 
 from the said William Smith, and the said tenant did refuse (or, 
 "omit") to deliver possession when so demanded. 
 
380 GEORGIA FORMS 
 
 Wherefore deponent mates this affidavit for the purpose of hav- 
 ing said tenant evicted, as provided by law. 
 
 John Jones. 
 Sworn to 'and subscribed to before me 
 
 this — day of , 189 — . 
 
 Jwriics A. Thomas, J. P. 
 
 (a) Justice of peace may administer oatli and issue warrant against 
 tenant liolding over in another county, 66 Ga. 59. 
 
 (6) Where one entered under contract of purchaser and failed to pay 
 could not be evicted as tenant at sufferance, 48 &a. 60. 
 
 Woman dying and leaving husband in possession of her land, who 
 claimed title as her heir at law, her administrator could not employ sum- 
 mary remedy of landlord to evict, 62 Ga. 412. Summary remedy to evict 
 tenant exists whenever relation of landlord and tenant exists and tenant 
 fails to pay rent, etc., 70 Ga. 289. One who acauired possession of land 
 from agent, under agreement to purchase which is not ratified by owner, 
 is tenant at sufferance, and may be evicted after possession demanded, 71 
 Ga. 68. 
 
 Grantee, under deed to secure debt from landlord, executed during- 
 tenant's term, may evict tenant holding over, etc., 82 Ga. 226. 
 
 Tenant for life, here, rented land for his life, to another, rent payable 
 annually; relation was that of landlord and tenant, not vendor and 
 vendee, 90 Ga. 402. 
 
 Where land sold, to be paid for by installments, and If first installment 
 not paid grantee liable to grantor for rent, bill In equity the most com- 
 plete remedy against grantee failing to pay, 75 Ga. 687; see 14 Ga. 131. 
 
 Where relation of landlord and tenant denied, defendant setting up in- 
 dependent title, inability to give bond, and afilant's insolvency, proceedings 
 enjoined. 78 Ga. 197; see 42 Ga. 179; 63 Ga. 289; 71 Ga. 557; 70 Ga. 284; 
 44 Ga. 153. 
 
 (c) A sufiScient description of premises (though meager,) 57 Ga. 16; see- 
 60 Ga. 523. 
 
 (d) Not necessary to specify amount due and unpaid, 84 Ga. 561. 
 Gcricrally: Affidavit by'chairman of board of trustees of church sufficient,. 
 42 Ga. 571; so affidavit by administrator of deceased landlord, 38 Ga. 652, 
 
 Affidavit here held good, affidavit set out in full, 75 Ga. 880. 
 
 As to recovery of damages for wrongful eviction, 72 Ga. 282; S"? Ga. 
 606; tenant unable to give bond and arrest proceedings, if wrongfully" 
 evicted, may recover damages, 71 Ga. 744. Landlord evicting tenant by 
 force, tenant, although holding over, etc., may recover for trespass, 95- 
 Ga. 390. 
 
 When the affidavit provided for in §4813 shall be made, the officer before 
 whom it was made shall issue the following 
 
 Warrant to Evict Tenant; §4814. 
 Georgia, Bibh County. . 
 
 To the Sheriff, his Deputy, or any Lawful Constable of said 
 
 County : 
 John Jones, as landlord, having made affidavit pursuant tO' 
 §4813 of the Civil Code, to evict Williwm Smith, Ms tenant, from 
 certain real estate in said county described as follows (follow de- 
 
AND PRACTICE. 381 
 
 seription in affidavit), averring that he did demand possession there- 
 of find that ihe said tenant did refuse (or, "omit") to deiivex pos- 
 session wihen so demanded, 
 
 'Now, therefore, you are hereby commande'd and required to de- 
 liver to the said John Jones full and quiet possession of the lands 
 and tenements aforesaid, removing said 'tenant, with his property 
 found thereon, away from the premises. 
 
 Witness my official signature this — day of , 189 — . 
 
 James A. Thomas, J. P. 
 
 CouNTEE Affidavit; §4815. 
 Georgia, Bihh County. 
 
 Personally comes WilUmn Smith, who on oath declares with 
 reference to the eviction affidavit of John Jones, this day exhibited 
 to him, that his term of rent has not expired, and that he is not hold- 
 ing possession over and beyond his term {a) (or, "that the rent 
 claimed is not due, (V) 'or, "that he does not hold the premises from 
 the said John Jones nor from 'any one under whom said Jdhn Jones 
 claims, eithea- as alleged in said 'affidavit or otherwise.") (c) 
 
 (a) Landlord's consent good defense to holding over and beyond term, 
 87 Ga. 470. 
 
 (6) Denial that rent due insufficient where landlord's affidavit alleged 
 tenant at sufferance refused possession on demand, 82 Ga. 193. 
 
 (c) Denial of tenancy necessitates proof of lease by plaintiff, 19 Ga. 
 524. 
 
 Generally: Set-ofO not allowed as defense, 23 Ga. 43. As to tenant arrest- 
 ing proceedings by invoking court of equity, 44 Ga. 153; 42 Ga. 179; 63 
 <Ja. 289; 71 Ga. 557; 70 Ga. 284. 
 
 Counter-affidavit not amendable when, 82 6a. 194. This case contains a 
 ■discussion of the amendability of affidavits and counter-affidavits in sum- 
 mary proceedings, and cites many authorities. But it was decided in 1888, 
 and its whole doctrine seems to have been swept away by the Act of 1889, 
 §5122, making all such affidavits amendable. 
 
 Bond; §4815. 
 
 We, William 'Smith, principal, and Henry Thompson, security, 
 acknowledge ourselves join'tly and severally bound to John Jones 
 subject 'to the following conditioins: 
 
 Whereas, John Jones has ^raade affidavit pursuant to §4813 of 
 Civil Code to evict said William Smith from certain real estate in 
 said county described ^as follows: (follow description in warrant)^. 
 a,nd said William Smith, has filed his counter^affidavit in terms 'of 
 the law, 
 
 Now should the 'said William Smith pay to the said John Jones 
 such sum, with costs, as m'ay be recovered against him on the trial 
 of tjhe case, then this bond to be void. 
 
 Witness our hands and seals this — day of , 189ft. 
 
 William Smith [L. S.], 
 Henry Thompson [L. S.], 
 
382 GEOHGIA FORMS 
 
 Tenant, to resist proceeding must give bond and security, 63 Ga. 289; 
 42 Ga. 179; see also 70 Ga. 284. Unable to give bond may sue for 
 damages for wrongful removal, 71 Ga. 744. Ofllcer not held liable for re- 
 fusing bond, unless shown that bond good and surety solvent, 67 Ga. 319. 
 Where officer was justified in refusing bond as insufficient, 80 Ga. 642. 
 
 Judgment rendered as an appeal against principal and security, 77 Ga. 
 579; 59 Ga. 204. 
 
 Counter-affidavit dismissed and warrant executed; no breach of bond,. 
 86 Ga. 28. 
 
 Verdict. 
 
 We, tlie jury, find for John Jones, the plaintiff, ag'ainst Wil- 
 liam Smith, the defendant, the possessian of the premises, together 
 
 with the sum of dollars, rent, and costs, dollars. 
 
 Martin; Luther, Foreman. 
 
 Judgment. 
 
 Whereupon it is considered ordered and adjudged by the court 
 that the possession of 'the premises in dispute, to wit, (describing 
 them), be awarded to John) Jones, the plaintiff, 'and that the clerk 
 of this court do issue a writ of possessiooi 'axxjordingly. Ordered 
 further that plaintiff do recover of defendant dollars, princi- 
 pal, and — — dollars costs. This — day of , 189 — . 
 
 Hope Polhill, 
 Plaintiff's Attorney. 
 
 Wret of Possession; §4817. 
 Georgia, Bibb County. 
 
 To the Sheriff of said County: 
 
 Whereas, an issue was la;tely tried in this court between John 
 Jones, plaintiff, and WilUam Smith, defenldant, upon an issuiJ- 
 made by affidavit of plaintiff pursuant to- §4818 of the Civil Code, 
 to evict defendant from certain premises- situate in said county, 
 described as follows: (describe them as in the judgment); 
 
 Whereto defendant filed his eiounter-affidavit, and 
 
 Whereas said issue was determined 'against said William Smith ; 
 
 ISTow, therefore, you 'are hereby commanded to place 'the said 
 John Jones in full possession of said premises; and further, of the- 
 goods and 'chattels, lau'ds and tenements 'of the said William, Smith- 
 to make the sum of dollars, principal, with interest thereon 
 
 from the — day of , 189 — , and dollars costs. 
 
 And you will make return hereof at the next term of this couit. 
 
 Witness the Honorable W. H. Felton, Jr., Judge of said court,. 
 
 this — day of , 189-^. 
 
 Robert A. Nishet, Clerk. 
 
AND PEACTICE. 38S 
 
 Affidavit to "Obtain Distress Warrant ; §4818. 
 
 Georgia, Bibb County. 
 
 Personally appeared 'before tihe imderaigiied Justice of the peace- 
 for said county (a) John Jones, (or, "J. L. Anderson, attorney at 
 law for John Jones," or, "Henry Home, agent for John Jones," 
 as the case may be), wlio on oa'tt says that William Smith, of said 
 county (b), (or, "who has property in said county," as the case 
 may be), is indebted in the sum of ninety dollars, (c) as tenant, 
 (d) to the said John Jones, for the rent of the premises known as- 
 No. — Second street, in the city of Macon, (e), and that said 
 rent is noto due, (f), (or, "said tenant is seeking to remove his goods- 
 from the premises," as the case m,ay be). 
 
 (Signed by the person making the affidavit). 
 
 Sworn to and subscribed before me this — day of , 189 — . 
 
 James A. Thomas, J. P. 
 
 (a) Plaintiff's son, a justice of peace, could issue warrant — act 'being, 
 ministerial, 55 Ga. 607. County court judge can issue distress warrant 
 for rent, 60 Ga. 623; 61 Ga. 12-14; 50 Ga. 123; but not judge of Sunerior 
 court, 42 Ga. 173. Any justice of the peace of the county may issue dis- 
 tress warrant, 83 Ga. 403; 82 Ga. 745. 
 
 (6) Allegation that debtor resides in county, amended by alleging that 
 he has property in the county, 82 Ga. 409. Failure to allege that tenant 
 resides in county or has property therein, fatal, 88 Ga. 207. Tenant havings 
 left State, warrant issued in county where rented land lay, 75 Ga. 706. 
 
 (c) If rent payable in cotton, etc., affidavit should state value, 52 Ga. 
 210; 56 Ga. 312; 57 Ga. 94; see also 39 Ga. 14; 52 Ga. 208; statement of 
 
 amount of cotton due, and of supposed value, sufficient, 65 Ga. 700. Affi- 
 davit that tenant justly indebted equivalent to statement that rent due^ 
 68 Ga. 828; 40 Ga. 511. If affidavit states rent due. need not state time 
 when due, nor terms of contract, 56 Ga. 11; 63 Ga. 285. Attorney should 
 swear positively to amount due, 66 Ga. 176. 
 
 (d) The relation of landlord and tenant must exist, 46 Ga. 394; 44 Ga, 
 247; 54 Ga. 296-8. That relation exists, when, §3115. Tenant subletting is: 
 landlord of subtenant, 46 Ga. 427; see 38 Ga. 262; 41 Ga. 594. Assignee of 
 right to let farm could distrain for rent, 56 Ga. 44C. Assignee of rent note- 
 and lien must set forth in affidavit the contract of rent and assignment, 63 
 Ga. 282. Under terms of assignment here, landlord still had right to dis- 
 train, 61 Ga. 103. Relation of landlord and tenant existed where one 
 railroad permissively used and occupied another's terminal facilities, 94 
 Ga. 422. 
 
 Motion to dismiss counter-affidavit takes precedence of motion to dis- 
 miss warrant, 66 Ga. 174 Returnable to next term justice court, sufficient, 
 without specifying day, 65 Ga. 739. Distress warrant levied on home- 
 stead, under affidavit that not exempt, not arrested by counter-affidavit 
 under §2850; must file affidavit under §4814, and give bond, or claim, 75^ 
 Ga. 678. Returned to wrong county, may be transferred, 83 Ga. 304. 
 
 As to holder of rent note, not landlord, distraining for rent not due^ 
 46 Ga. 394. 
 
381 GEORGIA FORMS 
 
 (,e) AfiSdavit for rent due need not specify premises out of which rent 
 arises, i. 6., failure to do so not vital, 40 Ga. 511. 
 
 (f) Affidavit stating tenant justly indebted so much, equivalent to state- 
 ment that rent due, 68 Ga. 828; 40 Ga. 511. As to allegation that rent due, 
 see also note (c) abq:ve. 
 
 Generally: Married woman, in distraining for rent of her separate es- 
 tate, need not join husband or next friend, 46 Ga. 415. One administrator 
 jnay make affidavit for both, where there are two, 40 Ga. 511. 
 
 Demand for payment not necessary, and need not be alleged, except 
 wher« special lien sought, 57 Ga. 31, 32; 55 Ga. 655; 65 Ga. 739; 75 Ga. 140; 
 83 Ga. 403; 79 Ga. 394. And not where special Hen sought if tenant has 
 left State, 75 Ga. 706. Affidavit here sufficient, 77 Ga. 79. Attorneys' fees 
 in rent note not collected by distress warrant, 84 Ga. 52. 
 
 Distress Warrant; §4818. 
 ■Georgia, Bibh County. 
 
 To any Lawful Constable of said County: 
 You are iliereby commanded tha,t of any of the goods and chat- 
 tels, lands and tenements belonging to Willva/m ■Smith, you cause 
 to be made the sum of ninety dollars, which said sum John Jon".s 
 ■did lately recover against the said WiUiam 'Smith in the oo.urt of 
 the Justice of tihe Peace for the 564th district, G. M., said county, 
 by affidavit for rent, and you will likewise make the costs of this 
 proceeding. And have you the said sums of money, together with 
 this warrant before said court as sio'on as said money can be lawfully 
 
 made. "Witness my official signature this day of — , 189 — . 
 
 Jwmes A. Thomas, J. P. 
 
 Warrant need not set out reasons why rent due, 95 Ga. 801. 
 Part payment to officer discharges defendant, pro tmito, 72 Ga. 705. 
 
 Counter- Affidavit ; §4819. 
 Georgia, Bihh County. 
 
 Before the undersigned Justice of the Peace for said county, 
 personally appeared William Smith, defendant in a certain distress 
 warrant for mimety dollars lately issued by said judicial officer in 
 favor of John Jones, and on oath says that the sum distrained for 
 is not due (a). 
 
 Williamv Smith. 
 
 Sworn to and subscribed before me this — day of , 189 — . 
 
 James A. Thomas, J. P. 
 
 (a) That rent not due sufficient, unless landlord's affidavit states that 
 tenant seeking to remove goods, 67 Ga. 41, 42. Landlord's affidavit alleg- 
 ing certain rent due, counter-affidavit stating that sum distrained for not 
 due, is good, 68 Ga. 178. Amount admitted due need not be paid in, 72 
 
AND PKAOTIOE. 385 
 
 Ga. 705. Counter-affidavit that part of rent distrained for not due, not 
 demurrable, 68 Ga. 828. Only affidavit receivable is, "that the sum, or 
 some part thereof, distrained for is not due," 15 Ga. 113; 28 Ga. 345. 
 
 Geiierally: As to requisites of counter-affidavit, v^here distress warrant 
 for rent not due, 42 Ga. 172. Distress warrant is final process, and Supe- 
 rior court only has jurisdiction when counter-affidavit made, 34 Ga. 180- 
 181. Where counter-affidavit and bond given process is mesne, 68 Ga. 725; 
 69 Ga. 737. Proceeding tten amounts to action for rent, 66 Ga. 729; 69 
 Ga. 737. 
 
 Counter-affidavit dismissed, case it out of court, 67 Ga. 41; 68 Ga. 178; 
 see also 61 Ga. 199; 63 Ga. 519. Counter-affidavit being filed plaintiff must 
 prove his claim, 37 Ga. 63. Counter-affidavit by tenant who could recoup 
 damages alleged to have been received, as against rent claimed, 48 Ga. 
 172; 49 Ga. 273. Damages recouped for breach of rent contract against 
 distress warrant, though not set out in counter-affidavit, 86 Ga. 725. No 
 set-off of debt not connected with rent contract, 86 Ga. 725. Damages 
 claimed by tenant for want of repairs by landlord, 55 Ga. 180. Damages 
 from tort by "people of plaintiff" not recouped, 61 Ga. 13. And tenant 
 may recoup without disputing rent by affidavit and security, 56 Ga. 188. 
 
 Bond; §4819 
 
 Geoegia, BM County. 
 
 We, WilUajm S'mith, principal, and Henry Tlmmpson, security, 
 acknowledge ourselves jointly and severally bound to John Jones 
 in tlie sum of 180 dollars, subject to the following oonditions: 
 
 Whereas, the said John Janes has sued out against the said Wil- 
 liaM Smith, before Jwmes A. Thomas, the Justice of the Peace 
 for the 564th G. M. District, siaid oounty, a distress warrant for 
 ninety dollars, which has been duly levied uponcertain property of 
 defendant, to wit, d certd/vn stock of goods now in the store situ- 
 ated upon the premises hnown us No. — Second street, in the 
 city of Macon, 
 
 -\nd whereas the said WilUam Smith has made oath, according 
 to law, that the sum distrained for is not due; 
 
 Now should the said Williaim Smith pay 'the eventual condem- 
 nation money, and all costs, then this bond to be void. 
 
 Witness our hands and seals this — day of , 189 — . 
 
 Williamv Smith [L. S.J, 
 Henry Thompson [L. S.J. 
 
 Forthcoming bond vacated by replevy bond, 84 Ga. 52. Defendants 
 attorney forbearing to urge unavailable defense is no wrong to surety, 
 84 Ga. 52. Judgment here signed up against defendant and sureties for 
 eventual condemnation money, 40 Ga. 26. Sureties not bound by judg- 
 ment'without interveiltion of jury, 76' Ga. 745. 
 
386 GEORGIA FOEMS 
 
 Affidavit of Foecible Entry ; §4823. 
 Georgia, Bibb County. 
 
 Before me, James A. Thomas, Justice of the Peace for tlie SSIfth 
 District, G. M., said county (a), personally appeared John Jones, 
 
 who on oath says that on the — day of , 18,9 — , William 
 
 Smiih did forcibly (6) enter into certain lands and tenements sit- 
 uae in said district, belonging to deponent, described as follows: 
 
 , and did eject him therefrom and doth now forcibly detain 
 
 said lands and tenements. John Jones. 
 
 Sworn to and subscribed to before me this — day of , 189 — . 
 
 James A. Thomas, J. P. 
 
 (a) May be sworn to before one justice of peace of this State as well 
 as another, 15 Ga. 303. 
 
 (6) As to evidence of force, 54 Ga. 516; 43 Ga. 433; 46 Ga. 631; 41 Ga.l96; 
 68 Ga. 289. Private force, 61 Ga. 496. 
 
 Generally: Not intended to test title or prevent trespass, 66 Ga. 215. 
 Facts here did not constitute forcible entry and detainer, 95 Ga. 516. 
 
 Manner, means or nature of force used, need not be set out, 86 Ga. 271. 
 
 Summons. 
 
 1" To William Smith: 
 
 You are hereby required to appear at the justice's court for the- 
 564th Dist., G. M., corner of Mulberry and Third streets, Macon, 
 
 at o'clock A. M., on tilie day of , 189 — , 
 
 then and theo-e to defend the charge of forcible entry and detainer 
 alleged in the affidavit of JohnJones, a copy whereof is hereto 
 
 alttached. Witness my official signature, this , 189 — . 
 
 James A. Thomas, J. P. 
 
 Oath of Jury; §4827. 
 
 You shall well and truly inquire whether Willimn Smith has 
 made any forcible entry into the lands or tenements of Johm Jones, 
 and him ejected therefrom, or forcibly detained the lands or tene- 
 ments of the said John Jones, and a true verdict give according to 
 the facts as they may appear to you in evidence. So help you God. 
 
 Verdict. 
 
 "We, the jury, find the possession of the lands and tenements in 
 dispute in favor of the plaintiff, John Jones, and that William 
 Smith has made a forcible entry and detainer of the same. 
 
 Judgment. 
 
 Whereupon, it is considered, ordered and adjudged that posses- 
 sion of the lands and tenements described in the original affidavit 
 
AND PRA-OTIOE. 387 
 
 of the plaintiff, John Jones, be .'and" the sir.me is hereby awarded to 
 said plain'tiff. Let a writ of possession issue accordingly, and also 
 
 a fieri facias for the costs. . This — day, of , 189 — . 
 
 '- - James A. Thermos, J. P. 
 
 Writ of" Pgssessio'nT §4828. 
 
 Georgia, Bibb Cou^jty. 
 
 To G. 8. Westmtt, Sheriff of said Oourity: 
 
 "Wliereas, judgment has been lately duly rendered in the court 
 of the Justice of the Peace foT^theaff^* district, G. M., in favor of 
 the plaintiff, upon an issue formed upon a complaint of forcible 
 entry and distainei- made by John Jones .a.gaiiistWillimn Smith. 
 concerning certain lands situate in said county described as fol- 
 low.^: (describing them as in the original affidavit), which said 
 judgment directed the ssuing of a writ of ' possession and a fi&ri 
 facias for the costs; 
 
 JSTow therefore you are commanded to proceed forthwith to put 
 the said John Jones in full, complete and peaceable possession of 
 said premises again; to make of the goods and cfbatbels, lands and 
 
 teiieinents of the defendant, William Smdth, dollars for costs 
 
 of this proceeding; and to make return of this writ, together with 
 your actings and doings thereon, to this court, on the' — day of 
 , ISO—. 
 
 "Witness my official signature l^his — day of , 18 — . 
 
 James A. Thomas, J. P. 
 
 Return of Sheriff. 
 Georgia, Bibb County. 
 
 I have executed the within writ this — day of , 189 — , by 
 
 putting John Jones in full, complete and peaceable possession of 
 the i>rfmises described therein; and have also collected of the de- 
 fendant, Williain •S'mith, — — dollars for costs, and have the same 
 
 now before the court. This — day of 189 — . 
 
 O. S. W€st4}oU, Sheriff. 
 
388 GEORGIA FORMS 
 
 THIRD TITLE. 
 
 OF ACTIONS 
 
 CHAPTER 1. 
 THE PETITIOJS^ 
 
 The following letter to ihe author oC this book, received during the summer of 1897, fronii 
 Hon. J. M. Neel, of the Canerfaville Bar, by whose name the Pleading Act of 18!t3 is familiarly- 
 known, is entirelyself-explanatory: 
 
 MR. NEEL ON THE " NEEL ACT." 
 
 My Dear Sir — In compliance with your request of recent date, I give you 
 herein a brief review of the origin and purpose of the Pleading Act of 1893, 
 together with isome comments on the interpretation and meaning thereof, 
 from the standpoint of one who took a part in its introduction and passage, 
 through the legislature. 
 
 THE DISCUSSIOX AT THE BAR- ASSOCIATION MEETING. 
 
 As the author of the bill, I make no pretension to originality in its con- 
 ception. From the reading of Professor, Pomeroy's work on "Code Reme- 
 dies and Remedial Procedure" some years before, I had learned that there 
 existed in some of the code States a system of pleading by which every liti- 
 gant was requirred to paragraph his pleading, and his adversary to specifi- 
 cally admit or deny each such paragraph. During a session of the Georgia 
 Bar Association, held in Atlanta in the summer of 1886, I heard a very 
 able discus'sion of this subject following quite an interesting report made by 
 the Committee on Delays in the Administration of Justice. Among other 
 notable men who took part in that discussion was our distinguished Judge 
 Bleckley. His remarks made a deep impression upon me at the time, and 
 when I was elected to the legislature, in 1892, I determined to try to do 
 something, if possible, to reform our system of pleading. 
 
 THE OLD LAW AND THE EVIL. 
 
 This law was aimed at certain evils which then existed and had grown 
 up under our prior system of pleading. Most of these arose from the abuse 
 of the plea of general issue. This plea was the almost universal resort of 
 defendants who had no meritorious defense. Even in suits upon uncon- 
 ditional contracts in writing, unscrupulous litigants would swear to 'pleas, 
 of general issue to obtain delay. In those counties where court dockets 
 were crowded, a plaintiff could be delayed for years by a defendant who 
 had not the slightest merit in his defense. Often has it come under my ob- 
 servation that after years of delay caused in this manner, such defendants, 
 being at last forced to trial, would withdraw the plea, having no evidence 
 whatever to- support it. The act under review, by requiring specific ad- 
 missions or denials of each paragraph in plaintiff's petition, renders this 
 vicious practice more difficult, if not impossible, 
 
AlsD PRACTICE. 389 
 
 -Anotlier evil which this act was intended to diminish, or, if possible, 
 remove, was this: Shrewd lawyers representing defendants fighting mainly 
 for delay had adopted the prajctice of filing the plea of general issue only, 
 iolding in reserve one or more special defenses, to he filed from time to 
 time as the exigencies of their clients might require. As long delay as 
 possible would first be secured under the plea of general issue in the manner 
 above stated, and when finally ruled to trial by the court, one of the special 
 defenses held in reserve would, for the first time, be filed and brought to 
 the- notice of the opposite party, who, being thus surprised at the unex- 
 pected plea, would himself be forced to continue the case to procure ather ' 
 testimony to meet it. This method would be pursued and repeated as often 
 as the defendant was able to present new defenses not included in his 
 former pleas. Another aspect of this evil was its unfairness in that it was 
 a fight thrust on the plaintiff from ambush in those cases where he chose 
 to go on with the trial rather than suffer further continuance of the case. 
 The act under review, if enforced according to its plain meaning and intent, 
 tends to bring out in the beginning of the litigation a full and fair disclos- 
 ure of all the issues involved in the case. 
 
 I will mention but one other evil intended to be lessened or corrected by 
 the act, and that also a.ssumed its 'worst, form in practice under the plea of 
 general issue. Being in effect a short general denial of every material alle- 
 gation in plaintiff's petition, it put upon plaintiff the burden of producing 
 proof to establish every such allegation, and often considerable expense 
 had to be incurred for that purpose. After much time had been consumed 
 ty the court in hearing such proof, the defendant would then contest only 
 one or two of all the plaintiff's allegations, and the whole case would be 
 decided upon the one or two issues thus contested. The practice was to 
 admit nothing and put the plaintiff to all the trouble and expense possible 
 in making his proofs even of those matters which the defendant knew to 
 be true and against which he did not intend to offer contrary evidence. 
 This was both a false and expensive system of pleading. It was. false be- 
 cause it put the defendant in the attitude of denying that which lie knew to 
 be true. It was expensive to the plaintiff in that it required him to procure 
 proof to establish a fact not to be contested. It was expensive to the pub- 
 lie because useless time was consumed on the trial in hearing evidence on 
 matters not bona fide in issue. 
 
 THE EEMEDY. 
 
 The pleading act of 1893 was intended to eliminate from the trial every 
 uncontested fact by requiring the parties to show by their pleadings what 
 iaots are admitted and What facts are denied, leaving the jury to pass only 
 on the contested facts. 
 
 It first occurred to me that the desired reform might be accomplished by 
 ■allowing either party in a suit to append to his pleadings such brief state- 
 ment of facts as he desired his adversary to admit or deny, each such state- 
 ment to be separately numbered, and at the foot thereof write his demand 
 on his adversary for a separate and distinct admission or denial of each 
 such statement of fact. After conference with some of my friends on the 
 Judiciary Committee, I found less encouragement for a bill modeled on 
 such a plan, than for the system of pleading adopted in some of the code 
 Siates. I then examined carefully the codes of California, New York and 
 other States,;and obtained therefrom the frame-work for the bill as it after- 
 
390 GEOEGIA FORMS 
 
 wards passed. Bacon, Fleming and other able lawyers on the Judiciary 
 Committee gave material aid in getting the bill in final shape and in se- 
 curing its passage through the legislature. It was my original purpose to 
 allow the defendant, in all cases where his plea contained new matter, 
 either by confession and avoidance or by cross-action, to require a replica- 
 tion from the plaintiff and demand admission or denial from him of each 
 paragraph containing such new matter. I found, however, that opposition 
 to the bill would be stronger if the innovation were carried too far, and 
 therefore did not incorporate the last named feature in the bill. I still 
 think, however, that in all fairness to defendants, such a provision should 
 be added to the law.* 
 
 AS TO PARAGRAPHING. 
 
 As to the application of this law in practice, I find that some lawyers 
 make the paragraphs very lengthy, embodying several independent state- 
 ments of fact in a single paragraph. This is contrary to the intent and 
 purpose of the statute. One main substantive statement of fact is all that 
 should be put in a paragraph. If more than one such statement is inserted, 
 the bpposite party may deny all, whereas if each statement had been made 
 in separate paragraphs, he would have admitted one and denied the other. 
 By a substantive statement of fact, I do not niean minor facts of a mere 
 evidentiary character. Good pleading, under this system, as well as under 
 our former system, requires that the mere detail of minor facts which are 
 auxiliary to and corroborative of the main substantive facts shall not be 
 stated in the pleadings. All such minor-facts are to be brought out in the 
 evidence, biit^must not encumber the record. 
 
 THE JOHN DDE FORMS. 
 
 The spirit of the act is against the use of fiction in pleading. The pleader 
 ought to say what he- means, and mean what he says. Surely the law has 
 reached a stage in its development when we can afford to lay aside the fic- 
 titious forms of antiquity, which have outlived the necessities that gave 
 them birth, and which are no longer necessary to the attainment of justice. 
 
 From a recent decision of our Supreme Court, and from section 4972 of 
 our new code, it appears that the fictitious form of pleading in ejectment 
 is to be retained in our law. Until the appearance of this decision and the 
 new code, I had believed that the effect of the Pleading Act was to require 
 plaintiff to state only real averments intended to be proven, and to require 
 defendant to admit or deny only such real averments. I could see no place 
 fpr.jactitious formulas in such a system. I ha.ve not seen the full opinion 
 of t^e court in the decision referred to above, and therefore do not know 
 upon what reason it is based. Ac.cepting the codiflcatioa and decision as 
 settling the law that this one fietitioUs form of action ;still remains, I cau- 
 not help thinking that it is out of harmony with our general system. Pro- 
 fessor Pomeroy, in writing of this form of .action, says: "In ejectment 
 there can be no pretence-that any attempt was made to allege the actual 
 
 ' '■ Upon the same line are the comments of the State Bar Association's Committee on Judicial 
 AdmiDistration and Remedial Procedure, Judge R. T. Dorsey, of Atlanta, Chairman, submit- 
 ted at the last annual meeting of the Assbciation, in July, 1897; (See 14 Ga. Bar Ass'n Rep., 
 p. 278): 
 
 " Upon the part of the plaiiitiff a dnty of full statement of his case is had ; but no duty 
 rests to admit or discover any fact against himself. His riglit to amend at any stage, however 
 late, is preserved unimpaired, no matter how material his amendment. The defendant must 
 discover, so far as he knows, by way of admission of uncontested allegations in the petition, 
 and must (under §5057), plead all known defenses at once, at peril of losing those not then in- 
 sisted upon." " No reply is required by aplaiutifTto the affirmative averments of the defend- 
 ant's answer ? " And again ; " The right of the plaintiff to amend by alleging material facts, 
 known when the petition was filed, should not be allowed after the return term, except on 
 the terms on which a defendant is allowed to amend his answer." 
 
ANU PRACTICE. 39 1 
 
 facts constituting the cause of action, the declaration and accompanying 
 proceedings were a mass of fictions which had become ridiculous, what- 
 ever may have been their original usefulness, and the answer was the gen- 
 eral issue; the record thus threw no light upon the real issues to be tried 
 by the jury." (See Pomeroy's Code Remedies, 3d Edition, Sec. 510.) 
 
 Unless some necessity for the retention of this fiction in our law can be 
 shown, it is to be hoped that the legislature will soon eliminate it and give 
 us a perfectly consistent and harmonious system of pleading by which liti- 
 gants are invited to use truth alone as a weapon of justice. 
 
 Sincerely yours, J. M. NEBL. 
 
 Complaint on Note by First Indorsee, (a) 
 
 Geoeuia, Bibb County. 
 
 To The City Court of Macon : 
 
 TJi£ Exclumge BmnJc of Macon (h) brimgs this its petitiou 
 against Jolm John and William Smiih as partners doing hnsi- 
 mss under the firm nwnve of Jones & Smith as makers, and Jame.'i 
 Brown arnd, Henry Thompson, as partners, under the firm 
 name of Brovm •& Thompson, as md'orseirs, all of said sitate and 
 county, and alleges thlat 'detfemdamte are indebteid to petitdoner in 
 the sum of dollars, for th'at 
 
 First. SaM Jones d Smith did, on tte 3d day of Octoher, 1893, 
 execute and deliver (cj to said Brown & Thompson their promis- 
 sory note, -wOieireby they tbe said Jones & Smith promised to pay to 
 the order of Brown & Thompson the sum of two Imndred dollars, 
 sixty 'days after the date thereof, fd) A copy'of daid note is hereto 
 attached. 
 
 Second. That the said Brovm & Thompson thereafter iadorscd 
 (ej the note to the plaintiff. 
 
 Third. That ^aid def emdanits liave not paid the same nor any 
 part thereof. 
 
 "Wherefore petitioner prays (f) tih'at process may issue requiring 
 said detfen'damts to be and appear at the next term of this Court to 
 answer this complaint. A. B., 
 
 Petitioner's Attorney. 
 
 («) In 95 Ga. 1, a demurrer to a first indorser's declaration upon a note 
 as not being "in ordierly and dlisitliniOt 'paragraphs," ajs required by the 
 Pleading Act of 1893, was overruled, Lumpkin, J., holding that the petition 
 "complied substantially" with said Act; the substance only of the petition 
 being set for'th in the voilume citeid, 'a copy fhereof was procured froim the 
 Supreme Oourt 'Reporiter ais am lalid in preiparing the foregoing form. A 
 suggestlion tn th'e opinion as to what ""would 'have been probably the bet- 
 ter practice" has ibeen oomstru'ed, in. the light of decisions from the Code 
 
392 GEORGIA FORMS 
 
 states, 'to reoommenJd a 'separate paTa'grajpih for thfe avermenit 'as to non- 
 payment. Am 'eUallDWate ip^aper on pto-ajgraphing 'umder "tare ■Cod'e" will be 
 founid in Volliim'e V. O'f fhe EJn'oyioTopedia of Pleiadinig 'and Ppactdce, In the 
 Aptidlie on '^Counrt©, PanagrajpTis and. Separate Statements." 
 
 (6) Allegiation of Jinoorporation unneces'sary, 'Vh'ere plaintiff's naime 'Im- 
 plies a finlancial 'OTiganizatiom ulsixaiHy 'the subject of 'indorporatl'Oin, 78 
 Ga. 40. 
 
 (c) A conisldenaitlion n'edd not 'he rpleaded, 'bieiinfg presuim'eid, as to the 
 negotiable promissory notes, by intendment of law, Bncye. PI. and Pr., 
 Vol. IV., p. 928. 
 
 They import prima fade, 'a oomisli'd'ePatlan ; words "vialue reoe'lved" not 
 necessary, 53 'GHa. 217. 
 
 (d) A series eft notes imay "be 'declared on in one paralgpaiplh, 8 S. B. R. 
 639; 30 S. E. R. 612 OSoufh Candllinia) ; b.ut if the notes ibear n'o particnaar 
 relaJtion to 'eaioh mother, ^eiadh reqiulres a. sepairaite 'OO'Umt, DaW'Son vs. Liadl, 
 1 Arizona, 400. (Pac. Rep.) 
 
 (e) 'Superfluous to 'Stialte Vaiat 'it 'was imdoirteeid in n-ritiiifi; "Inidbrse" 
 means "to write upon the hack of any Inistruimenit or 'paper:" Andeflson's 
 Dictionary of Law. And 'again, aothing to contrary appearing, the in- 
 d'Orsem'ent 'is presumed ifio Ihave ibeen miade ibefore matunity, 79 G-a. 545; 
 furtfliermiore, from tlhe inldor'see's- piosisesision of itlhe paper a presumipltion 
 arises that tie acquired it for value before maturity, 60 Ga. 90. Apropos 
 of devoting a separate i^araigralph to'pleladlng the ^inaorsememt: Th'e con- 
 tract of indorsement is a disitinct co-nltraet from that of the 'malcer; thus, 
 if verdict be for iplaintiff as agiinsit tlh.© inid'or^sierB, but for itilie O'Dher defend- 
 ants, ipttaintiff may move ifor n'dw trial iwi'thout serving 'hlis miction on the 
 indorsers, 94 Ga. 718. The indorseiment need 'only be pleaded to shiow 
 legal title in plaintiff; (see §§4939 and 3077); an averment that plaintiff 
 owns the note and is intitted to receive the money due thereon presents no issu- 
 able fact and will be treated as surplusage, Boone, Code Pleading, Vol. II., 
 p. 51. 
 
 (f) Prayer for judgment unnecessary, 11 S. B. R. 265. (N. C.) 
 
 Complaint toe Real Estate Brcjker's Commission. 
 
 Georgia, Fulton County. 
 
 To The City Couet of Atlanta : 
 
 The petition of Barrett d BrMley, <i firm composed of V. M. 
 Barrett and John F. Brmlky, shows the fo'Uowing facts: 
 
 First. At the time of the contract hereinafter set forth, peti- 
 tioners were reial esta:te agenits en'gaged m 'the business of negoti- 
 a:ting land effeetdrng sales of real estate, with un office in tlve city of 
 Atlanta; said county. 
 
 Second. In July, 1892, one John H. Harwell put into peti- 
 tioners' hands 'to sell for him a loit in said city, situated (describing 
 situation). 
 
 Third. Petitioners tried to sell Said real estate to James L. 
 Might, now of said county, for $Jiy500,00, 'the game being the sum 
 
AND PRACTICE. 393 
 
 thcif were instructed to sell it for by said Harwell; said Hight 
 agreed bo pay $4,000.00 for the land, and conHtituted and appoiat- 
 eid petitioners Ms agents to buy tbe same from said Harwell for 
 $.'1,000.00, if peititionei's could make tlhe trade. 
 
 FoTirtli. Petitioners induceid said Harwell to agree to sell said 
 land to said Hight for $4,000.00, and slaid Harwell instructed your 
 petitioners to 'dose said trade. 
 
 Fifth. Said Hight failed land refused to pay the purdhiase 
 mjoney asnd take tihe land and carry ont the said agreement. 
 
 Sixth. Petitioiners v>ere to be paid for their services in effecting 
 said sale out of the puT'chase m'oney of the said lot; there was no 
 stipulation between the pai'ties as to what the 'commisisioais of the 
 petitioners sih'ould be, but it was !an miiversiai custom among real es- 
 tate agents in said city to clharige a reasonable commissdon for their 
 services, amounting to five per cent, on the first tico thousand dol- 
 lars for wlhidh a piece of property sold, and two <i/nd' on-e-lMlf per 
 cent, onihenesit' two thWtsa^mi' dollars O'Veir and above the first twn 
 ■thuusund dollars; and this onstom was well known to said Hight, 
 and he employed said petiti'Dners to buy said lot for him with the 
 implied agreement that tlveif sho'uld receive a reasonable revpiard for 
 lh<ir services; and petitioners say that one hxmdred and fifty doj- 
 lare is bh© reasonable "walue of said services. 
 
 Seventh. Petitioners show that said sum of one hundred and 
 fifty dollars became and was due bo them by said Hight when the 
 said tnade was closed ; and that by the failure of said Hight to com- 
 ply with said conitraiet land agTeement to take saiid land and pay the 
 ]iurchase money, he has injured thorn in the sum of one hundred 
 ■and fifty dollars. 
 
 Wherefore- petitioners prlay th^t process may issue, requiring 
 said James L. Hight to be and appear at the next term of this 
 •court, to answer this complaint. 
 
 E. M. d a. F. Mitchell, 
 Petitioners' Attorneys. 
 
 iNote.— The faregoimg form approved Novemlber 12, 1894, as ibeing "prop- 
 ■erly framed in accopdianioe TViitlli the tevmis cut" the Pleaiding Act of 1893- 
 34 Ga. 792. 
 
 This, 'case "being repoi'ted in tlie opinion, and ithe snihstanice lonily of the 
 pMntiff's peitlti'O'n 'being 'there set 'Out, fh© ai>ov© copy of itthe 'petition ■wfas 
 procured from the 'Supreme Ooiurt Reporter. 
 
394 GEORGIA FORMS 
 
 CompijAint for Breach of Warranty, 
 
 State of Geoeoia, Bibb County. 
 
 To The Superior Court of said CoUiNty : 
 
 John Jones buiiigs 'tim his pe'tiition .against fa) William Smithy 
 of said county, (hj and -alleges: 
 
 First. Tliat 'on itibe 15th day of June, 1895, the said Williaiit 
 Snvith executed to petitioner a 'wiarranty deed to a certain tract of 
 land described as follows, [here describe tihe land] for the sum of 
 two thousand five hundred dollars paid by petitioner to the said 
 Willmm Smith. A copy of said deed is hereto attached, marked 
 Exhibit A. (c) 
 
 Sedond. That patitioneir afterwards lawfully entered upon the 
 said preonises and became sieized tihereof accordingly. 
 
 Third. Defendant has not warranted and defended said prem- 
 ises; but, on the contrary, on the 15tli day of July, 1896, ono 
 J<Dmes Brown, who, at the time of making said deed, had, and 
 ever since until said last mentioned day, contiaued to have, lawful 
 right to (d) said premises by an eldeir and bettei* title, lawfully 
 (d) entered the premises and ousted the petitioner thereof, and still 
 
 lawfully (dj holds 'him out of the same, to his damage 
 
 fej dollars. 
 
 Wherefore petitioner prays that pno'cess may issue requiring de- 
 fendant to be and appear at the next term otf this Court, to answer 
 this complaint. A. B., 
 
 Petitioner's Attorney. 
 
 (o) All .the Coidiee in the Stoteis wthere the Reformed Procedure fllbtaiiis 
 require either in the title of the cause or at the outset of the petition before 
 touching upoin tIhe merite, a statement of the names 'of aill the ipantliee 
 plaintiff and dofen'dlant. iBncyc. of TM. and Prac, Vol. IV., p. 588. 
 
 (6) ■DemuTT'er properly sustlalneid heeause of omliselion to allege thiat de- 
 fendant was a resident of county in which suit was brought, 93 Ga. 724. 
 
 ((?) 'Ajccoirdiing to Mr. Boone (Ood'e Pleladinig, Vol.. II., p. 462), a brief 
 desoriptiTe aaiusion to tIhe warranty clause in the deed is sufficient, but 
 under our larw (Code Section 4963) "Ooipies lof * * * -wiritingB shooild be 
 ineorpopated 'in or aitacihed to the petition in all .cases in ■wlhich they con- 
 stitute the dauise of aotion, or relief prayed [for must be based therieon." 
 
 id) Essentials for a prima facie case of eviction, under title paramount 
 indicated, 59 GHa. 124; 75 Oa. 305. iEJvloti'on unidfer judgment In ejectment 
 is a breadh vt wamanity, 5 GJu 296; (but 'tihe eviction need not ibe actuiaa; 
 it is sufficiently islhown, by pnoiol of final judglment In the ejectment suit, 
 47 Ga. 250; or Iby flnlall jradigment in a claim case, 33 Ga. 45; or in a case 
 of ladmeasurement ot dower out of the land, 4 Ga. 593. So, when pur- 
 chaser, finding ;a third person in polssesBion sues him and notifies w'ar- 
 
AND PRACTICE. 395- 
 
 raiutJor, judgment (in suoli case is prima facie ©vid'ence of a breacli of war- 
 ranty, 25 G-a. 566. But if pllalntift rely on a verdli'ct ia ejectmenit aig^ainst 
 him'self, he must 'SlliiOiw niotioe to liiis ■wtora.ntor to defend, 93 Ga. 28; 5^ 
 G-a, 126. Such notice shtown, warfantOT lifelble, 32 Ga. 13. Claim filed toy 
 vendee, >am.d notice to warrantlor of itb 'pemdenicy, judgment h'ound him.. 
 61 Ga. 395. Veude© surreriderinig possession to adverse claimant TViithout 
 a donteSt does so at hiB peril, 54 'Ga. 83; he Tvas liglht here, becauste the- 
 outsitanding jiudgmont lien aigainat tlhe land Was Buperior to Ms title, n. 
 He miust show thiait tlhe toultsitajnding titae wais pEuraimo'U'nt, 93 Ga. 28. Ac- 
 tion lies on wiarranty, tlioiuigh olbject of de^d was to secure debt, 94 Ga.. 
 251. Warranty deed and deeid With (power of 'sal© tlo secure delbt executed 
 to differenlt persons siamie day, angueis fTlaud; evliction of one dllaiming under- 
 former instrument not shown by proof of sale under power in latter, 88 
 Ga. 520. Grantee in quit claim deed cannot maintain action for eviction 
 under title paramount, 88 Ga. 675. Covenants by implication exhaustively 
 discussed, lb. From the foregoing case, and 55 Ga. 289, Code section 3613 is- 
 taken: "In a siale of land tlhfere is no implHeid warramty of title." As to 
 burden -of proof in suits for breach of warranty, see section 3617, codified 
 from 4 Ga. 606, and 76 Ga. 793. See Generally as to Covenants and War- 
 ranty, §§3612-3617. 
 
 (e) Ii\)r the Measure of Damages generally, in an action for breach of' 
 warranty of title to land, see §3804. 
 
 The forms which now follow will, it is hoped, be of some assistance to the 
 Bar, though limitation of time and space have made it impracticable to 
 annotate them. 
 
 PETfTION FOR RECOVERY OF ReAL EsTATE. 
 
 Georgia, Bibb 'County. — To the Superior Court of said County: 
 The petition of A. B. showeth : 
 
 1. That C. D., of said county, is in possession of a certain tract 
 of land in said county (here describe the land). 
 
 2. Petitioner claim's title to said land, being seized thereof in 
 fee. 
 
 3. The said C. D. has received the profits from said land since' 
 the day of ,- 18 — , of the yearly value of — dol- 
 lar?. 
 
 4. Defendant refuses to deliver said land to your petitioner, or 
 to pay hira the prtofitts thereof. 
 
 Wherefore petitioner prays th'at process may issue requiring the 
 said C. D. to be and appear at the next term of this court to an- 
 swer this complaint. 
 
 (Annex to the declaration an abstract of the title relied o% 
 §§5002, 4963). 
 
396 GEORGIA EORMS 
 
 Petition for Recovery of Personalty. 
 
 Georgia, Bibb County. 
 To the City OoTirt of Maoon : 
 The petiiitioii 'of A. B. sboweth : 
 
 1. C. D. of said county is in possession of centain personalty 
 (here describe the propeirty). 
 
 2. Slaid personalty is the property of your petitioner. 
 
 3. The value thereof is dollars. 
 
 4. The said C. D. refuses to deliver the said personalty to your 
 petitioner or to pay him the profits thereof. 
 
 Wherefore peititioner prays that process may issue requiring 
 the said C. D. to be and appear at the next term of said oourt to 
 answer this complaint. 
 
 Complaint upon Fire Insurance Policy. 
 
 Georgia, Bibb County. 
 To the Oity Oourit of Macon: 
 
 A. B. brings this 'his petition against the H<t/rtford Fire Insur- 
 ance G(mvpany,'aiid alleges: 
 
 1. The defendant insurance company h!as its principal office 
 (or, "has an agency or place of doing business," or, "at the time thi:^ 
 cause of action occurred had an agency or place of doing business") 
 in said county. 
 
 2. At the times hereinafter mentioned, plaintiff was the owner 
 of a certain liouse (describing its location). 
 
 3. Cm the day of — ; , 189 — , in consideration of the 
 
 payment by plaintift" of the premium of dollars, defendant 
 
 •did make its poli'cy of insurance in writing, a copy of which is 
 hereto attached and made a part of this petition. 
 
 4. On the 'day of , 189 — , said house was totally 
 
 destroyed by fire. 
 
 5. Petitioner's loss was dollars. 
 
 6. On the day of , 189 — , petitioner furnished de- 
 fendant with proiOif of his said loss, 'and otherwise performed all the 
 •conditions imposed upon Mm by said policy. 
 
 7. Defendant has not paid said loss nor any part thereof. 
 "Whetrefore (prayer for process and for judgment). 
 (Attach copy of the policy). 
 
 It is not necessary to attach a oopy of what may be written or printed 
 -upon the policy, except w'hat appears upon the face or in the body of 'the 
 jjollcy, §4963. 
 
AND PEACTICE. 397 
 
 COMPLAIKT UPON LlFB INSURANCE PoLICY. 
 
 1. (Allegation of veiiue as in suit on fire policy above). 
 
 2. On t'tie day of , 189 — , the said defeai'dant, in con- 
 
 eration of the semi-armual payment to it, by one A. B., of 
 
 dollars, made its policy, 'a copy of wihicb is hereto attached and, 
 made parit of this petition, and thereby insured the life of said A. 
 B. in the sum of dollars. 
 
 3. On the day of , 189 — , at — , tlie said 
 
 A. B. died. 
 
 1. Said A. B. died tes,tate. 
 
 5. His "will "was on the day of duly proved and ad- 
 mitted to record in the court of ordinary for the county of , 
 
 and letbei-s testamentary were duly issued to petitioner as sole exec- 
 utor. 
 
 6. On the — day of , 189 — , petitioner furnished delend- 
 
 ant witii proof of the 'death of said A. B., and said A. B. and peti- 
 tioner each duly performed all the conditions of said policy on their 
 part. 
 
 Y. Defendant has not paid the same, and said sum is now due by 
 it thereon to your petitioner as executor aforesaid. 
 Wherefore (prayer for process and for judgment. 
 (Attach copy of the policy). 
 See §4963 above quoted. 
 
 Complaint on Account. 
 Georgia, Bibb County. 
 
 To the City Court of Macon : 
 The petition of A. B. showeth: 
 
 1. That C. D. of said county is indebted to liim dollars, 
 
 upon an account, a copy of which is hereto attached and made part 
 hereof. 
 
 2. That the said C. D. has not paid the said sum nor any purl 
 thereof. 
 
 "Wherefore petitioner pnays that process may issue requiring the 
 said C'. D. to appear at the next term of this Court, to answer tiiis 
 complaint. 
 
 Complaint for Words. 
 
 Georgia, Bibb County. 
 To the City Court of Macon : 
 
 The petition of A. B. sho'Weth : 
 
 1. That C. D., of said county, has injured and damaged yom- pe- 
 titioner in the sum of dollars, as follows: 
 
S98 GEORGIA EOEMS 
 
 2. Tlie said G. D. did maliciously say of ajid conicerning your 
 
 petitioner, on tlie ■ day of , 189- — , the following false 
 
 and defamatory pords, to wit: (here give tlhte words). 
 
 Wberefore, your petitioneir parlays procefes may issue requiring 
 the said C. D. to be and appear at the next term 'of this Court, to 
 answer petitioner's c'ompliainit. 
 
 Widow's Complaint for HoarrcrDE ob" Husband; §3828. 
 
 <JrEORGIA, Bibb CoUNTY. 
 
 To the City Court of Macon: 
 
 1. (Allegation fixing venue). 
 
 2. At the date of the death of A. B., hereinafter named, peti- 
 tioner was the wife of said A. B. 
 
 3. On the day of , 189 — , the defendant, in eonsid- 
 
 •eration of dollars, receired the said A B, then living, as a 
 
 passenger on said railroad from Brunswiclc to Atlanta, and w'hile 
 
 said A B was on the cars on his said journey, at , in said 
 
 ■county, the car in which t)he said A B was riding, was, by the neg- 
 ligence of defendant and its serv'ants, thrtown from the track, and 
 -■said A B was, without fault on his part, thereby killed. 
 
 4. At the time of his death, said A B was a bookkeeper aiid was 
 earning one hundred dollars per month. 
 
 5. At the time of his deatli, said A B was thirty-five yeare of 
 Age, and had a reasonable expectancy of thirty-one years of lite. 
 
 6. The full value of the life of said deceased was dollars. 
 
 Wherefore (prayer for process and for judgment). 
 
 Mother's Complaint for Homicide of Son; §3828. 
 
 (For a complaint under §3828 by a mother for homicide of her child, insert the word mother 
 in lieu of the word wife in paragraph 2 of the above petition, and add at the end of the peti- 
 tion a seventh and an eighth paragraph, as follows:) 
 
 7. Said A B left no wife or child. 
 
 8. Petitioner was entirely dependent upon said deceased for a 
 support, and he contributed substantially to her support. • 
 
A'NT) PRACTICE. 399 
 
 CHAPTER 2. 
 PROCESS AND SERVICE. 
 
 Peocess; §4974. 
 
 Georgia, Bibb County. 
 
 To the Sheriff of said County, or his deputy : 
 
 The defendant, WiUia>m /S'OMth, is hereby required to appear at 
 the Superior Court of said coiunty on the first Monday in November 
 next, to answer the peltition to which this process is annexed. In 
 default whereof the said Court will proceed as to justice sha;ll apper- 
 tain. 'Witness the Honorable W. H. Felton, Jr., Judge of said 
 Court-, this 12t/h day of October, 1897. 
 
 Robert A. Nisbet, Clerk, 
 or 
 Bmj. J. HoU, JJep'y Clerk. 
 
 Process is not "annexed" to the .petition, as law requires where loosely 
 put within its folds, should be fastened to- it, 31 Ga. 503. 
 
 Unsigned copy process, ordered sighed 20 G-a. 581. Decision as to want 
 oE original process inapplicable to a defect in the copy, 20 Ga. 581. 
 
 Court may amend process, or extend time for service, 87 Ga. 732, 86 Ga. 
 74, 75 Ga. 166. But clerk cannot, without order, substitute for original 
 process a second returnable to another term, 86 Ga. 314. Entire absence 
 of process not amendable, 87 Ga. 733, citing cases. 
 
 Where Superior Court by law met in April, but copy process dated De- 
 cember 28, required appearance on second Monday in "December next," 
 error manifestly clerical, and illegality not lie, 75 Ga. 790. 
 
 One ag'ainst whom, petitioner does not pray process is not party defend- 
 ant, and clerk has no authority tO' annex proicess requiring Ms appearance, 
 99 Ga. 159. 
 
 Acknowledgement of service is not a waiver of process, 85 Ga. 229, nor 
 a waiver of prayer for process, 99 Ga. 159. 
 
 Clerical misitake as to defendant's name in main caption of process, not 
 fatal, 68 Ga. 828. 
 
 Process and service therof is esential, 17 Ga. 67, 20 Ga. 225, 22 Ga. 
 361, 26 Ga. 140, 31 Ga. 503, 52 Ga. 22, 78 Ga. 790. As to waiving process, 
 see 16 Ga. 194. 
 
 Though process not signed by clerk invalid, 33 Ga. 190, too late to object 
 after verdict, 58 Ga. 304. 
 
 Deputy-clerk may sign process, 11 Ga. 178. 
 
 Upon every petition, clerk shall endorse date of filing, which shall be 
 considBEed the time of tlie- commencement of the suit, §4973; pravided, such 
 filing be followed by proper service, 65 Ga. 633. 
 
 Order for Service by Publication; §4978. 
 It appearing that Williwm Smith, defendant in the foregoing 
 petition, resides out of the State, and that it is necessary to perfect 
 
400 GEORGIA FORMS 
 
 service upon him by publication, it is oi'dered that service be per- 
 fected by publication in the paper in which sheriff's advertisements 
 are prinlted, t\vice a month for two months. This the — day of 
 
 ■ , 189—. 
 
 W. H. Fclton, Jr., 
 
 J. S. C. M. G. 
 Where defeadant's residence known, plaintiff sliall, thirty days before 
 next term, file a marked copy of the newspaper with the clerk, who shall 
 forward it to defendant, §4979. 
 
 Sheriff's Retuux of Service; §4985. 
 
 Georgia, Bibb County. 
 
 I have this day served a copy of the within petition and process 
 upon William Smith peireonally (or, "by leaving said copy at his 
 residence"). This iTth day of Octoher, 1897. 
 
 G. 8. We.st€0tt, Sherift. 
 
 Process served prior to, but too late for appearance term, good for next 
 succeeding term, act of 1885, §4992. But sheriff no authority whatever to 
 serve process afitfr appearance term, 86 Ga. 317. 
 
 Return day, twenty days before court, §4984. 
 
 Defendant to be served at least fifteen days before court, §4985. 
 
 Service may be acknowledged or process waived, by writing signed by 
 defendant, or some one authorized by him. See §4983, and notes. 
 
 As to traverse of sheriff's entry, see §4988, and notes. 
 
 Sunday no.t counted as one of the five days allowed sheriff for serving 
 writs, 23 Ga. 49. 
 
 Return day not counted, 33 Ga. 146. Where court met November 11th, 
 October 22 was return day, and the five days expired October 27, but as that 
 was Sunday, October 28 was sheriff's last day, lb. 
 
 But later these cases were criticized, and it was held that service on Mon- 
 day, the ]4th day before court, irregular, and case dismissed on motion for 
 want of service, 57 Ga. 244. 
 
 But if no such motion, judgment valid, 67 Ga. 572. 
 
 Return of Service on Mixoit; §I9,S7. 
 Georgia, Bibb County. 
 
 I have this, day served a co]jy of the within proceedings upon 
 (a) Fmiini Jours, a minor, l)y deliverino- ^aid copy to said iii^ior 
 
 personally. This day of , 189—. 
 
 (S. S. Wr.sUvif, Sheriff. 
 (a) The above form as it stands, is applicable to service on all minors 
 whether over or under 14 years of age, except that where a minor unde; 
 K has a statutory or testamentary guardian; or trustee, repi-esenting his 
 interest, service on such guardian or trustee' binds .the minor In suoh 
 cases^ insert after the word "upon" the words "A. B.. guardian of" or 
 A. B., trustee of," and so forth. 
 
ANDJPEAOTIOE. 401 
 
 Ordbe Appointing Guardian Ad Litem; §4987. 
 
 It appearing that F^anrnf Jones^ a minor, has been personally 
 served with a copy of the above stated proceedings, it is ordered 
 that Jmnes Jcnes be, and he is hereby, appointed to act as guar- 
 dian ad litem for said minor in this cause. This the — day of 
 
 , 189—. 
 
 W. H. Felton, Jr., 
 J. S. 0. M. C. 
 Acceptance by Guardian Ad Litem; §4987. 
 
 I, J<i/ines Jones, hereby agree to serve as guardian ad litem for 
 
 Fanny Jones, pursuant to the foregoing appointment. This — 
 
 day of , 189—. 
 
 Jaimes Jones. 
 
 The steps indicated by the above three forms having been taken, "then 
 said minor shall be considered a party to said proceeding," §4987. 
 
402 GEORGIA K)RMS 
 
 CHAPTER 3. 
 DEFENSES. 
 
 General Denial; §5051. 
 
 And now comes defendant, Willid'iii timifli, and denie« eaeli 
 and eivery allegation ' in eacli and every paragraph of plaintiff's 
 petition. 
 
 As to the "General Denial," see the work cited by Mr. Neel in his letter 
 beg'inning on p. 383, viz.: "Pomeroy's Code Remedies," §610. 
 Verified petition requires verified plea, act 1895, §5055. 
 
 Before the act of 1897, §5057 was as foilows (The part stricken by the act oJ 1897 is put in 
 italics;: " The defendant, after the lime allowed for answer has expired, shall not in any 
 case by amendment set up any new facts oi defense of which notice was not given by ihe 
 original plea or answer, unless at the time of tiling such amended plea or answer, containing 
 the new matter, he shall attach an allidavit that at the time of filing the original plea or an- 
 swer he did not have notice or knowledge of ihe new facte or defense set out in ihe amended plea or 
 answer. 
 
 The act of 1897 struck out the italicized words and substituted, in lieu thereof, the following: 
 '! Omit the facts or defense set out in the amended plea or answer for the purpose of delay, 
 and that the amendment is not now ottered for delay, or unless in the discretion of the Court 
 the circumstances of the case or substantial justice between tlie parties require such amen l- 
 ment be allowed without attaching such affidavit." 
 
 Answer to be filed at first term, §5052. 
 
 Act of 1893, §5051, abolishes "general issue" and requires defendant to 
 "distinctly answer each paragraph of plaintiff's petition." But the last 
 part of said §5051, the act of 1895, enacts that "he (defendant) may in a 
 sinylc iiurarjixipli deny any or all of the allegatioins" of the petition, §5051. 
 
 Call of appearance docket at first term, to hear demurrers to petitions 
 and pleas, §5054. " 
 
 Where default judgment rendered in "damage suit," plaintiff must still 
 prove amount of his damages, and defendant may contest the amount, 
 §5073. 
 
 On call of appearance docket, cases In which no defense has been filed 
 shall be marked "in default," §5069. Such default opened by payment of 
 costs any time within thirty days, §5070. Opening default at trial term, 
 discretionary with judge, §5072. 
 
 Specific Answer; §o0-51.* 
 
 And now comes defendant, W'illiuin Sinifli^ ;iiid for an-wt-r lo 
 plaintiff's petition says: 
 
 1. He admits (or, denies) tlie first panigrapli. 
 
 2. He admits (or denies) the secoild ])ai'aoTapli, 
 Etc., etc ., etc. 
 
 Plea of vuii est factiiiii must be sworn to, §5066. 
 
 Under the judiciary act of 1799, §5058, all dilatory pleas must be sworn 
 to and must be filed at the first term. 
 
 A plea of non- joinder is dilatory, 27 Ga. 113; so misjoinder, 70 Ga". 578. 
 
 Dilatory pleas tend to delay or put off the suit [or the plaintiff's eventual 
 remedy] by questioning the propriety ot the remedy rather than by deny- 
 ing the injury. 3 Bl. Com. 301-3; 4 C(J. 332. "They are to the jiirisdictinn 
 of the court, alleging that it oug'ht not to hold plea of the matter; to the 
 ilimhility of the plaintiff, as being an infant, a feme-covert, that Tie has a 
 committee, etc.; or in (ihatememt of the writ, or declaration, for some detect, 
 '■■See Pomeroy's Code Remedies, §614; Boone on Code Ph ding, Vo'. II., p. 'Jl. 
 
AND. PEACTICE. 40:1 
 
 as, misnomer, that the plaintiff is dead, etc." — Anderson's Law Dictionary, 
 p. 778. 
 
 The proportions to which this boolt has alreaidy swelled preclude any at- 
 tempt tO' deal with Special Pleas in a manner calculated to assist the schol- 
 arly lawyer in briefing a case of importance. But a number of forms for 
 suoh pleas are now her^ subjoined, without comment or annotation, as indi- 
 cating the style of such-defenses under the new system of pleading. Their 
 bi'evity will, in so'me instances, be startling to the learned pleader of the 
 old sohool; but they are taken from the same sources to whicih Mr. Neel 
 went for his Pleading Act (the systems of New York and California), and 
 have been revised carefully by a Georgia lawyer of experience and emi- 
 nence. The preliminary words "Defendant answering says" are omitted 
 after the first plea for the sake of brevity. 
 
 ST .i TUT A OF FRAUDS; §2093(2) 
 
 Defendant answering says: 
 
 1. The promise alleged in plaintiff's petition was a promise to answer for the debt default or 
 miscarriage of A.. B. therein named. 
 
 2 Said promise was not evidenced by any writing signed by defendant or by any one by 
 him lawfully authorized. 
 
 STATUTE OP FBiS.UDS ; §2693(4) 
 
 Defendant did not, either by himself, or by any person by him lawfully authorized, ever 
 make or sign any contract or agreement in writing for the sale of the premises described, as 
 is alleged in plaintiff's petition. 
 
 STATUTE OF FRAUDS ; §2693(7) 
 
 1. No note or memorandum in writing, expressing the consideratioa, was ever made of any 
 such contract as is alleged in plaintiff's petition, nor any contract whatever. 
 
 2. Defendant did not receive any of the goods, wares or merchandise mentioned in said 
 petition. 
 
 3. Nor did he pay any part of the purchase money. 
 
 RELEASE OF SURETY; §2971. 
 
 1. On the day of 189 at plaintilf, A. B. in considera- 
 tion of then and there paid by C. D,,tbis defendant's principal, agreed with said 
 
 C. D. to extend the time of payment of the note sued on days. • 
 
 "2. Defendant had no knowledge of the said extensiun, and did not then, nor has he since, 
 assented thereto. 
 
 INFANCY; §36(7. 
 
 At the time of matting the note sued on, defendant was under the age of twenty-one years. 
 
 DURESS; g3670. 
 
 1. The promissory note sued on -was extortsd from defendant by threats of bodily harm, (or "dui- 
 ing imprisonmenti brought about by plaintiff f.jr that pu'-pose"J and was executed by him 
 under fear of the sarne (or fro:n f 'ar while in prison) (in e'ther case state particulars.) 
 
 2. Said note was executed by defendant without any consideration therefor. 
 
 PAY'MENT; §3717. 
 
 On the day of 189...-..., at defendant paid to plaintiff, 
 
 the money (or (t of the money) alleged in plaintiff's petition to be due. 
 
 TEVDER; §3728. 
 
 1. Defendant agreed to pay to plaintiff ,'. dollars only (or, the goods, or services 
 
 • mentioned in plaintiff's petition were reasonably worth no more than dnllars ) 
 
 2. On the day of at before the commence- 
 ment of this action, defendant tendered to plaintiff dollars in- lawful currency of 
 
 the United Stales, tc-wit , in gold and sliver coin of the United States, in payment of said 
 sum. 
 
 3 Defendant has always been and is still ready and willing to pay the same to plain- 
 tiff, and now pays the same into court. 
 
 ACCORD AND SATISFACTION; 23782. 
 
 1. On the day of 189 at de- 
 fendant delivered to plaintiff, A. B., the promissory note of E. F. 
 
 2. Plaiiltiff accepted the same in full satisfaction and discharge of the claim (or de- 
 mand) set up in his petition. 
 
 STATUTE OF LIMITATIONS; §§376.5-8. 
 
 The cause of action set forth in plaintiff's petition did not accrue within years before 
 
 the filing of said petition. 
 
 (A judgment becomes dormant in 7 years »hen no execution issues and is placed upon tie 
 execui ion docket, or when seven years expires from th e record upon the execution docket ■ ■ I 
 the court from which the same issued, of the last entry made by an officer authorized to cm.- 
 
404 GEORGIA FORMS 
 
 cute and return the same. A dormant execution may be revived by seire facias, or be sued on 
 in three years, in common parlance, a judgment is "out of date" after ten years. See §3760. 
 
 An instrument under seal is a note, b<nd or other instiument which recites in the body 
 of it that it is utder seal (such recital usually being ""Wilnessmy band and seal"), and which 
 has no "L. S.", or tlie equivalent thereof, printed or otherwise, after tie signature of the 
 signer See §3766 ard roles thereto. Such an instiument is barred only after 20 years. 
 
 A promissory note, bill of exchange, or other simple contract in writing "goes out of date" 
 after six years, §3767. An open account or any claim for the breach of any contract not 
 signed by the party sought to be changed, or any claim based upon any implied undertaking 
 or assumpsit, is barred after four years from the time the right to sue thereon accrues. §3768) 
 
 TO THE JURISDICTION ; §6082. 
 
 Defendant was not at the cononiencement of this action, and is not now, a resident of said 
 county, but was then and is now a resident of the county of l^lton, said State. 
 
 TO THE JURISDICTION ; §5082. 
 
 The cause of action alleged in plaintlfE*s petition if any accrued to plaintiff at aU, accrued 
 
 to him out of the juriEdiction of this court, to-wit, in the county of and not in said 
 
 county of Bibb. ^ 
 
 SET-OFF; §§5034.5088. 
 
 Plaintilf is Indebted to defendant dollars upon anopenacamnt, acopy whereof is hereto 
 
 attached. 
 
 (If the set-oft is greater than plaintiff' claim, add a prayer for judgment against plaintiff 
 for the amount of the excess ) 
 
 USURY ; §5090. 
 
 As to the sum of ... dollars, parcel of said sum of dollars in plaintiff's petition de- 
 manded, defendant admits that he owes tlie said sum of dollars to plaintiff, but as to the 
 
 sum of dollars, the residue of said sum of dollars, he says that the said promissory 
 
 note in plaintiff's petition mentioned was made and delivered by him to plaintiff on the ... day 
 
 of , 189..., for Ine loan of the sum of dollars, and no more, payable on the day 
 
 of and that said sum of ... dollars was included in said note as interest on said sum of 
 
 dollars for said period of years, at the rate of ... per cent, per annum. 
 
 FAILURE UF CONSIDBR4.TION;.§5091. 
 
 1. The note mentioned In plaintiff's petition was given by defendant solely for, and 'on 
 
 account of, certain goode, to wit, , sold and delivered to defendant by plaintiff, and 
 
 without any other consideration therefor. 
 
 2. Said goods were purchased by defendant, as plaintiff' then well knew, for the purpose of 
 and plaintiff, asp art of the contract of sale and consideration of said note, warranted 
 
 "and represented that said goods we e fit, proper and reasonably suitable for such purpose. 
 
 3. Peferdant acce'pted and purchased said goods for the purpose of trusting in sajd 
 
 representations and wananly of plaintiff, as plaintiff well knew. 
 
 4. Said goods were not fit or proper for said purpose, the same being (here state why, i. e„ 
 slate thenature of the defect, as nearly as may be), and the said goods have always been, and 
 aie altogether useless to defendant. 
 
 5 As soon as defendant learned the character of said goods, he notified plaintiff thereof, and 
 ofieredto return tt em, which he is still ready and willing to do. 
 
 KON EST PACTUM; §5092. 
 
 This defendant denies that he made the promissory note mentioned in plaintiff's petition. 
 
 RES ADJUDICATA; §§5094,3741. 
 
 On the day cf 189..., at In an action in the court, between plaintiff, 
 
 A B and defer.dart, C D. for the same cause of action as that alleged in plaintiff's petition, 
 judgment was duly rendered (describe the judgment). 
 
 LIS PENDENS; §§3094, 3737. 
 
 1, There was, at the time plaintiff 's petition was filed, and still is, another action pending 
 
 in the court, between the s^me parties, and for the same cause of action as that alleged ^ 
 
 in said petition. 
 
 MISNOMEtt ; §§5099, 5102. 
 
 The true name of plaintiff is and ever has been , and not in which name he 
 
 sues. 
 
 NON-JOINDER; §5103. 
 
 1. Tne goods sued for were sold bv plain ';iff, John Jones, and one Wi llam Smith, as partners , 
 under the firm name and style of Jones & Smith. 
 
 2. Said William Smith is still living. 
 
 MISJOINDER. See §.5104. 
 
 A. B. is improperly joined as a plaintiff, for that he has no interest in the subject-matter in 
 controversy. 
 
 NUL TIEL CORPORATION. 
 
 1. There was not at the commencement of this action, nor is there now any such corporation 
 as the Puljlishing Company, named as plaintiff in the petition. 
 
 2. Plaintiff was not ade/ffcfo corporation, nor did the persons claiming to compose the 
 alleged corporation, at the commencement of this action, nor at any of the time-; mentioned 
 in the plaintiff's petition, claim in good faith to be a corporation. 
 
AND PRACTICE. 405 
 
 CHAPTER 4. 
 EVIDENCE. 
 
 I- Affidavit Peeliminaey to Notice to Produce ; §5253. 
 
 (State the case.) 
 
 Georgia, Bibb County. 
 
 Personally comes John Jones, pknintiff in the above staited 
 cause, wh'O on oath says that he has reason to believe that the hooks, 
 production of which is required in the accompanying notice, <ire 
 in existence, that they 'are in the possession, power or control of 
 'WillAmn Rmith, and that they are material to the issue. 
 
 JoJm Jones. 
 
 Sworn to and subscribed before me, this — day of , 189 — . 
 
 Tlie party giving the notice, or his agent, must make oath, or his attor- 
 ney state in his place, etc., §5253. 
 
 This oath not appearing, held, court properly refused to compel produc- 
 tion of paper, 81 Gra. 531. 
 
 Notice to Peoduce; §5249. (a) 
 
 [State the case.] 
 
 To WilUmn Smvith, defendant in the above stated cause: 
 You are hereby required to produce before the court above 
 
 named (h) on the — day of , 189 — , th'e following (c): 
 
 John Jones. 
 
 (o). Notice here too vague and general, 85 Ga. 431, 79 G-a. 685. 
 
 The proper practice is to make out two copies of the notice, have one 
 served, and' produce the other in courfwith an official entry, or an affidavit, 
 as to service, entered thereon. The words of the statute are "upon notice 
 and proof thereof." 
 
 (6). In Superior Court, ten days' notice required, in justices' courts, five 
 §5249. 
 
 (c) "Books," "writings," or other documfents, §5248. 
 
 Consequence of disobedience of notice is, to a plaintiff, non-suit; to a de- 
 fendant, default judgment, §5250. But this section oontemplates a peremp- 
 tory order of court, and "failure to comply with sucih order," '79 Ga. 682. 
 As matter of practice, the notice is principally significant as laying the 
 foundation for secondary evidence, 64 Ga. 441, 53 Ga. 685. Court may per- 
 emptorily compel production of a hook then actually in the court-room, 
 55 Ga. 225, 71 Ga. 707. 
 
 Affidavit denying possession exculpates party served with notice, §5678. 
 
 Contents of letters tO' non-resident plaintiff not provable, defendant not 
 having served plaintiff's local attorney with notice to produce, 99 Ga. 256. 
 
406 GEORGIA FORMS 
 
 SuBPCBNA Duces Tecum; §5255. (a) 
 
 Georgia, Bibb County. 
 
 You are kereby required to appear before the ciiij court of 
 
 iMcon for said county, on the — day of , 189 — , 'and to bring 
 
 ■v\ith you into court the following described (book, deed, writing 
 or other document) (6).' 
 
 It being necessary to use the same as teistimony in a cause thei'e 
 pending, wherein JoIni Jones is plaintiff and AYUikvm i^miili is 
 defendant. Hereof fail not, under penalty of $300. (c) Witness 
 the. Honnrahh: John P Ross, Judge of s'aid court, this — day or 
 
 , 189—. 
 
 Robert H. Smith, Clerk. . 
 
 (fl). Tihis subpcBna is for "one not a party to the cause," §5255. It cannot 
 issue to one of the parties, 87 Ga. 366. 
 
 (6) This subpoena cannot be used 'as a drag-net, 87 Ga. 359. It must de- 
 scribe specific contents somewhat, 76. 
 
 (p). §5256. 
 
 SuBPCB^fA; §5260. 
 Georgia, Bibb CouNTf . 
 
 .To Henri/ Thompson, Greeting: 
 Tou are hereby commanded, that laying all other business 
 aside, you be and appear at the Superior Court in and for tlie 
 county aforesaid, oil the day of , 1^9 — , at — o'clock, 
 
 — M., then ■and there to be sworn as a witness for the plainliff 
 (or, "defendant," as case may be) in the case of John Jones against 
 WiUiani 'Smith; there pending. 
 
 Fail not, under the penalty of three hundred dollars. 
 
 Witness the Hon. W. H. Felton, Jr., judge of said court, this 
 
 — day of -, 189—. 
 
 RoUrt A. Nishet, Clerk. 
 
 Form for Interrogatories Suggested; §5299. 
 
 John Jones ) ^ ^.^. ,. -r • ,• 
 
 ( Jr^etition lor injunction, etc. 
 
 William Smith, j ^*^^ Superior Court, April Term, 189-. 
 
 Original interrog'atorieis to be propounded to Henry Thompson, 
 of the county of Jefferson, State 'of Akibuma, a material witness 
 for plaintiff. 
 
 First: Po you know the parties to this casle? 
 
 Second: "Where ha.Ye you resided since the day of , 
 
 189—? 
 
 Third: Etc., etc., etc. 
 
 A. B., Plaintiff's Attorney 
 Who may be examined by interrogatories, §5297. 
 
 Interrogatories may be sued out for a non-resident; or one too sick or 
 too old to attend court; or one whose time is needed by the public; e. g., 
 
AND PKAOTICE. 407 
 
 postmasters, physicians, scliool-teachers, or one about to depart from 
 county; or for a female; or for the only witness to a material point, §5297. 
 
 Statement of venue in caption cures omission of certificate to state it, 
 70 Ga. 575. 
 
 One of the duties imposed by law upon clerks of the Superior Court is 
 ^'to keep always on hand and ready for use, blanks with printed instruc- 
 tions for taking interrogatories," §4360(5). 
 
 Ground on which commission- asked should appear, 4 Ga. 360. 
 
 Notice; §5299. 
 
 [Stale the oas=,] 
 
 To A\'illiam Smith: 
 
 Xolice is lierefcy given that T hiave this day iiled certain interrog- 
 atories for Henri/ Thompson in the office of the Clerk of the Siipo-- 
 rior Court of Bihh coiimty, for the pnriDiosc of obtaining, at the ex- 
 piration of ten days 'a commissioTi for the examinaition of said wit- 
 ness. A copy of said inteirrogiatories is hereto attached. This 
 
 day of , 189—. 
 
 John Jones. 
 
 Proceeding not invalid because notice served after the filing of the in- 
 terrogatories, 77 Ga. 719. 
 
 Notice must specify name of witness, §5664. 
 
 Copy of interrogatories must be served on opposite party or tois attor- 
 ney, with notice of time of filing. They must remain on file ten days, dur- 
 ing- which time crosB-interrogatories may be filed, §5299. At expiration of 
 ten days a commission shall issue, 76. Notice at court-house door for ten 
 days sufficient v/hen service cannot be had, §5300. 
 
 Commission; §5663. 
 
 Georgia, County. 
 
 By His Honor , judge of tlie™ Court, for the comity 
 
 . aforeisaiid: 
 
 To and , Esqiiurs, (fiT'^tiwi: 
 
 Whereas, there is a certain niaitter 'of oontrof^'^rsy now depending 
 in 'the Court for said coiui'ty, between — ^and — ; and where- 
 as, is a materiial wiitmess in said suit, and cannot attend our s'aid 
 
 Court in person, witihoiit manifeBt inconvemience: 
 
 Now, kniow ye, that we, reposing special trust 'and confidence in 
 your prudeuee and fidelity, have appointed you; and you, or any 
 two of you, are hewby authorized and required to cause the said 
 
 personally to come before you, and after being 'duly sworn, to 
 
 Cixamine concerning the said suit, agree:ably to the interrogato- 
 ries hereunto annexed; and the answers to the same being plainly 
 and distin'ctly written, you are to send the same, closed up under 
 
408 GEORGIA FORMS 
 
 your hand and sea:ls, to 'out said Court, to be held O'li the day 
 
 in next, togetiher mth this -writ. 
 
 Witness, the H'onoraible , on© of thie judges of said Court, 
 
 this day of . 
 
 Appointment of commissioners, §5302. Who may act, §5303, and notes. 
 They may employ clerk, 64 Ga. 780. How interrogatories should be exe- 
 cuted, §5304, and notes. No party, or his counsel, or his agent, should be 
 present, 76. Compelling witness to answer, §5305. Female witness not re- 
 quired to leave home, §5306. 
 
 Acknowledgment and Waiver; §5313. 
 
 Notice of the filing of the withdn interpogatories acknowledged. 
 Copy and conrmiissi'on waived. 
 
 J. J. Bowden, 
 Attorney for William Smith. 
 
 Where a party to a suit in any court of this state sh'aH dn writing waive 
 commission, such agreement operates' in lieu of commission; §5313. 
 
 (Commllssdo.n is usually waived where tiie interrogatories are tO' be exe- 
 cuted within this state.) 
 
 We agree that and shiall act as commissioners to exe- 
 cute these interrogiaitories. 
 
 Plainiiff's Attorney. , 
 Defendant's Attorney. 
 
 COMMISSIONEES' ReTUKN OF INTERROGATORIES j §5313. 
 
 GeoegiA, Bibb County. 
 
 By virtue of an agreeonent between the parties (or counsel) (a) 
 
 in thfe case of vs. , pending in the Court of ■ 
 
 county or district (as the caee ma.y be), the undetrsigned, acting as. 
 commissioners, h'aVe claused A. B., a witness in said case, to come 
 befor'e us, who being duly sworn true answers to make to the an- 
 nexed intetrfO'giatories, deposes and answers as follows: 
 
 To first iaterrogatoiry, he ansrwers, etc. " 
 
 To seoond-dniterrogiatory, he 'answeirs, eltc. 
 
 To first cross-interrogiatory, he answers, etc. 
 
 To second cross-interrogatory, he aniswers, etc. 
 
 Answered, subscribed and sworn to before us, this day of 
 
 , 189—. 
 
 E. -F., Commissioner. (Seal.) 
 
 (7. H., Commissioner. (Seal.) 
 J . E., Witness. ■ 
 
 (a). Or, "By virtu© of a comml'seion duly issued." 
 
ANT) PllACTICE. 409- 
 
 Interrogatories taken by agreement, objections fhat commissioner did not 
 sign officially, nor with seal, and that place of execution did not appear,, 
 overruled, 49 Ga. 31; provisions of statute do not control when commis- 
 sion waived, 76. See also, 60 Ga. 329. 
 
 Place of execution sihould appear, 52 Ga. 126, 53 Ga. 162, 71 Ga. 632; But 
 if reasonable ascertainable from papers sufficient, 78 Ga. 222, 79 Ga. 810,. 
 e. g., Georgia, Harris county, 73 Ga. 386. 
 
 Attorney's clerk diequalified, 5 Ga. 335; so is law student In his office,. 
 5 Ga. 424; so is his son, 19 Ga. 404. 
 
 If witness answers from memorandum, it shall be returned along with 
 his answers and commission, and the fact certified by the commissioners, 
 §5307. 
 
 The examination having been completed, and duly signed, the interroga- 
 tories, answers, and commission should then be sealed up in an envelope 
 with the names of the commissioners written across the seal and directed 
 to the officer of the court whence the commission issued. The package can 
 be sent by mail or express, or intrusted to the party, or some private 
 hand, §5308. 
 
 Certificate; §5308. 
 
 (To be entered on the package by the postmaster or express a^eat receiving it from tho- 
 commi-sioner.) 
 
 I certify tikat I recedved thds package from A. B., oiiie of the oom- 
 missionfeTS. 
 
 Though commission waived and interrogatories taken by single commis- 
 sioner, nevertheless, certificate of due transmission, as provided by §5308,. 
 necessary, 98 Ga. 275; registered letter no substitute for statutO'ry method, 
 lb. 
 
 Certificate ; §5308. 
 
 (To be entered on the pacljage by the postmaster or express agent delivering it to the court.) 
 
 I ceirtif y that this package vras rieoedved by due course of mail (or 
 express). 
 
 Receipt of Clerk oe J. P.; §5310. 
 
 (To be entered on the paolcage when received, either in term or vacation.) 
 
 Received the within package, this — day of , 189 — , from 
 
 /. H. Eer% Postmaster, [or, ''from Charles Grorfkld, maAl car- 
 rier," (a), or "from Henry Wilson, Express Ageni" at Macon.] 
 
 ■Robert A. Nisiet, Clerk. 
 
 (a). Delivery by carrier good, 78 Ga. 749. 
 
 Nunc pro tunc entry of this receipt, 61 Ga. 120. 
 
 Interrogatories lost after execution and return, copy establlsihed instanter,. 
 74 Ga. 664. 
 
 As to re-execution, §5666. 
 
 No exception to interrogatory as leading, unless filed before commis- 
 sion issues, §5668. 
 
 As to what are leading questions, see notes to §§5668, 5299. 
 
410 GEORGIA FORMS 
 
 Court Commissionkr's Return of Depositions ; §5317. 
 
 A. B. 
 
 vs. 
 CD. 
 
 In the C'O'Urt of county, Georgia. 
 
 Depositions of and , witness (or mtnesses) for the 
 
 l^laintiff (or defendant), in the above casie, tahen upon notice, begin- 
 ning on the day of , 189 — , at , initlhe presence of 
 
 the plaintiff ((aaid defendamt, either 'Or ttofti, in person or by attor- 
 ney, as the case may be) ; 
 
 The said witness or witnesses, being first duly swo'm, deposed as 
 follows : (here stating each question, both direct an'd cross, with the 
 answer as delivei'ed by the witness immediately after it, and oon- 
 eluding as follows:) 
 
 ''The foregoing depositions wai-e taken before me, as stated in 
 the caption, and the answers reduced to writing by me, or by the 
 TOtness in my presence, and I seirbify that I am not intercBted in the 
 •cause," nor of kin or counsel to either of the parties,'' 
 
 (Signed by the commissioner). 
 
 The abav© proceeding is allowable in counties of twenty thousand inihab- 
 itants, or upwards, §5315. For the general law of procedure under it, see 
 ^§5315— 5322. 
 
AND PRACTICE. 411 
 
 CHAPTER 5.* 
 VERDICT AND JUDGMENT. 
 
 FOEM OF AN OkDINAEY MoNEY VeRDICT. 
 
 "\Ye, the jury, find for the plaintiff, John Jones, against the de- 
 fendant, WilUa)iti 8'inith, dollars, principal, with interest 
 
 thereon from the day of , 189 — , at eight per cent, per 
 
 annum. 
 
 This the daTy of , 189—. 
 
 ^Y alter Henderson, Foreman. 
 
 Concealment of former verdict, when not essential, 97 Ga. 408. 
 
 Verdict in civil ease may be received in absence of defendant and liia 
 counsel, 58 G-a. 479. 
 
 Receiving verdict on Sunday, proper, 84 Ga. 160. "Sun-time" is the 
 legal standard of time, IJ). And a day is from midnight to midnight, lb. 
 
 Informal verdicts may be amended, but the court has no power to supply 
 substantial omissions, 17 Ga. 361. Error to reassemble jury four 'days 
 after verdict and allow them to amend it, 8 Ga. 201. 
 
 Verdict no bar to another suit until judgment rendered upon it, 97 Ga. 
 797; the final verdict for total divorce (see 86 Ga. 591) is sui generis. Ih. 
 
 The verdict must cover the issues made by the pleadings, and must be 
 for the plaintiff or defendant, §5329. As to when it does cover the issues 
 and when not, see notes to the section cited. 
 
 If there are several pleas filed by defendant, a verdict for him must show 
 upon which of the pleas it is rendered, §5330. 
 
 Rule as to when court should direct a verdict, see §5331, codiiied from 
 75 Ga. 715. Under §5331 is a long array of decisions on directing verdicts. 
 
 Judgment. 
 
 Whereiupon, it is considered, ordered and adjudged by the 
 cO'Ui't, that the plaintiff, Joh'ii Jones, do recotver of the defemdant, 
 
 William f^mdfh, dollars, principal, and dollars 
 
 interest, 'together with future interest upon said principal at the 
 
 rate of eight per cent, per -annum, and dollars, costs of 
 
 court. 
 
 This the day of , 189—. 
 
 Charles L. Bass, 
 Attorney for John Jones. 
 The party in whose favor a verdict is rendered, or his attorney, shall be 
 allowed to enter and sign up judgment thereon at any time within four 
 days after the adjonmrment of the court at which such verdict was ren- 
 dered, for the amount thereof and all costs recoverable thereon, and no 
 execution shall issiie on any verdict until such judgment shall be entered 
 up and signed by the party or his attorney ; §5339. 
 
 *If the author's friendR, or that eminently jmt but essentially kindly judge, the public, could 
 know of the various difficulties which have been encountered In dpciding what subjects to 
 deal with but slightly and what to treat at length, the verdict and judgment rendered upon 
 the chapter on Verdict and .Judgment would vindicate the brevity thereof. Something that 
 ought to go in the book had to be left out. And so, it was decided to curtail this chapter, in 
 aid of the many others which were sure to be used more frequently, and by a greater number 
 of people. For various forms of verdict, and of judgment, consult those subjects in the index. 
 
412 GEORGIA EOEMS 
 
 CHAPTER 6. 
 OF EXECUTIONS, LEVY, AND SALE. 
 
 Ordinary Execution. 
 State op Georgia, Bibb County. 
 
 To all and singular the sheriffs of said State, and tbedr lawful 
 deputies: Greeting: (a) «- 
 
 We command you. That of the goods and chattels, lands and 
 tenements (&), of William Smith (c) you cause to be made the 
 sum of • — ■ — dollars, — cents, principal, and the further sum of 
 
 dollars, — cents, interest, up to the — day of , 18 — . 
 
 A.n!d also the further sum of • dollaro, ■ — cents for cost (d), 
 
 with interest on the principal sum, from the day of , 18 — , 
 
 which John Jones (e) lately (/) in our superior court for said 
 county recovered against William, Smiih for principal, interest and 
 cost; and that you have the said several sums before the next term 
 of said court after the miooaey can be lawfully made (g), to render 
 to the said John Jones for principal, interest and cost aforesaid; 
 and have you then and there this Writ. 
 
 Witni^s the Honorable W. H. Felton, Jr. (h), Judge of said 
 
 court, this — day of (i), 18 — . 
 
 Robert A. Nishet, Clerk (j). 
 
 (a) Code prescribes how fl. fa. sliall be directed, §5413. "Lawful depu- 
 ties" not included in direction, defect amendable, 69 Ga. 533. Where 
 sheriff a party, execution should be directed "To the coroner of said 
 county, and to all and singular the sheriffs of said State, except the siheritt 
 of said county," §5414. Sheriff must keep execution docket, §4380(4). Law 
 intends entries thereon to be constructive notice to the world, 96 Ga. 277. 
 The usee in an execution cannot, as sheriff, levy; deed as sheriff void, 
 whether 'his interest in execution gone at time of levy or not, 79 Ga. 55. 
 However, Bieriff competent to levy cost execution, though interested 
 therein, 86 Ga. 127. Levy of distress warrant by agent, who swore it out 
 for plaintiff, and was afterwards made si>ecial bailiff, void, 52 Ga. 342. 
 Sheriff party defendant, levy by him on co-defendant's land dismissed on 
 motion, 60 Ga. 489. Defec'ts patent, motion to dismiss preferred by the 
 law to an affidavit of illegality, a motion to dismias being "more cheap 
 and expeditious," 34 Ga. 428. Reason ceasing, law ceases, and successor 
 of a slieriffl who is defendant in fl. fa. may levy that fl. fa., 67 Ga. 447. 
 
 (6) Where execution based on foreclosure proceedings properly only 
 against personalty, inserting "lands and tenements" therein not fatal, 82 
 Ga. 105. 
 
 (c) If the execution be against an administrator, substitute for 
 "WilUam Smith," these words: "of the estate of WilUam Smith, deceased, 
 in the hands of James Brown, aaministratoT, to be administered," see 61 
 
AiSTD PEACTICE. 413 
 
 da. 602. Defendant dying after judgment, execution may ignore death, 
 S5034. That name of one defendant in fl. fa. erased, immaterial where 
 judgment itself is in evidence, 60 Ga. 407. Execution against W. M., Jr., 
 issued upon judgment against W. M., illegal wliere both of them resided 
 in the county, 57 Ga. 68. Judigmenit against partnership, execution against 
 it, but also against individuals composing it, fatally variant, 68 Ga. 27. 
 But where judgment against both, execution against both proper, 94 G^. 
 529, 82 Ga. 736. Mia4;erial variance makes /?. fa. inadmissible in evidence 
 In claim case, 52 Ga. 585, 68 Ga. 207. And it can be quashed on motion, 
 59 Ga. 565. Formerly, if fl. fa. amended, levy fel'l, 57 Ga. 191; a g., judg- 
 ment against "Water Lot Company of the city of Columbus," fi. fa. against 
 "Water Doit Company," 58 Ga. 280. Otherwise now, §5114. Variance im- 
 material here, 19 Ga. 579, 60 Ga. 539, 77 Ga. 129. When fatal, 73 Ga. 104. 
 If variant, illegal, 65 Ga. 366. Omission to describe defendants as maker 
 and indorser, amendable, 63 Ga. 417. Judgment joint, execution issued 
 against all co-defendants for whole debt; contribution left to them, 83 Ga. 
 358. Mistake in given names of defendants amendable on motion, 63 Ga. 
 563. Variance no defence by constable to rule, 76 Ga. 377; e. g., variance 
 as to initials, 70 Ga. 430; especially when the right defendant acknowl- 
 edged the debt, lb. 
 
 (d) Variance as to interest and cost may be amended. Variance 
 of a few cents interest, immateTial, 68 Ga. 831. Clerk may tax ooists, includ- 
 ing witnesses' and jurors' fees, and issue one execution therefor, 86 Ga. 
 128. It is his duty to indorse on execution, when issued, the date and 
 amount of the judgment, the items of th« bill of costs (written in words), 
 and the amount of each item distinctly stated in figures, and only such 
 costs can be demanded, §5394. However, failure to do so no ground for 
 illegality, 57 Ga. 68. 
 
 (e) Judgment favor "R. P.- H. and his wife, for the use of L/ouisa P. H.," 
 execution favor R. P. H. and Louisa P. H., fatally variaiit, 65 Ga. 368. 
 
 if) Term when judgment rendered not essential recital in fi. fa., "lately" 
 is enough, 75 Ga. 215. If clerk does his duty, date of judgment will 
 appear endorsed on back ot fi. fa., §5394. 
 
 (g) §5416, making executions returnable to the "next term,'' means the 
 next term after the money can be lawfully made, 68 Ga. 346. As cognate 
 hereto see also 80 Ga. 99. 
 
 (ft) Fi. fa. from judgment rendered by judge pro hoc in case where reg- 
 ular judge disctualified, bearing test in name of regular judge, valid, 75 
 Ga. 215. *rhe Issuing of a fi. fa. is merely a ministerial act, lb. 
 
 (i) J. P.'s judgment July 26, execution Issuing July 30, irregular, but 
 not void, 83 Ga. 563. 
 
 (;■) Consult index, title "Clerks." Officer issuing not officially designated, 
 execution is not legal process, 79 Ga. 550. Tax f,. fa. Issued by tax col- 
 lector after he goes out of office, not a legal process, 92 Ga. 367. Mistakes 
 made by clerk in issuing execution, how curable without order or court, 
 15115. Execution quashed as not conforming to judgment, clerk may 
 Issue proper one; calliikg it alias, immaterial, 89 Ga. 101. Alias fi. fa., 
 notice to defendant of proceeding to "issue, not necessary, 62 Ga. 370. 
 Clerk or J. P. may issue, 75 Ga. 217. 
 
 General Note.— Since Act of 1891, §5114, amending execution will not 
 cause levy to fall, 91 Ga. 142. It is only void process that is no protection 
 to officer; process regular on face protects him, 37 Ga. 639. So here, J. P.'s 
 judgment blank as to names of parties not void; execution regular, 94 
 Ga. 460. Trover judgment on replevy bond valid on face, execution duly 
 
414 GEORGIA FORMS 
 
 issued protects sheriff, even though uame of surety on such bond forged, 
 93 Ga. 579. "Executions against A, administrator Oj. B, with no direction 
 to levy of the goods, etc., of B, are against A personally, and not against 
 estate of B," 61 Ga. 602. Presum-ed that execution follows the judgment,. 
 59 Ga.. 707; and if execution is against an administrator personally, it 
 canncit be levied upon the intestate's property, 61 Ga. 605. And iniUa bona 
 return on such an execution is no proof of devastavit, 84 Ga. 595. 
 
 GencniJly. — Sheriff holding several fi. fas. of different plaintiffs against 
 same defendant, not excused, by claim filed to one, from levying the 
 other fl. fas., 30 Ga. 878. Partner controls execution against copartner 
 for reimburseiment, 84 Ga. 134. Surety paying may control, though no 
 entry, 72 Ga. 160. Unsigned receipt on fl. fa. not of itself evidence of pay- 
 ment of it, 89 Ga. 440. Settlement in writing, writing must be pro- 
 duced, 62 Ga. 161. Sheriff's entry o'f settlemenit unauthorized, vacated on 
 his petitioil, 70 Ga. 12. 
 
 Levy on Pe'rso.val Property. 
 Georgia, BiOb County. 
 
 Levied (a) the -vvitiliin fi. fit. upon (h) the following per.ional 
 property, to ^wit: (describe the property) (c), said property being in 
 
 possession of (d), and being levied on as the property of 
 
 WillicNii Smith, defendant in fi. fa. Property pointed out by 
 defendant, (e) 
 
 This — day of January, 1896. 
 
 G. S. Westcott, Sheriff. 
 
 (a) Recital f seizure imports, prima facie, legal seizure, 90 Ga. 188. To 
 authorize a sale of personal property, there must be an actual or con- 
 structive seizure §5452. Seizure sufficient iere, though not actual, 95 Ga.. 
 61. Seizure and taking into control essential to a levy on personalty, 29 Ga. 
 710. Levy on a stock of cattle "as they now run" is no seizure, 14 Ga. 528. 
 "What then is the essence of a levy? It Is the sheriff's getting power over 
 the property," 19 Ga. 151. 
 
 (h) Title to a cropper's crop remains in landlord until he is paid, §3129. 
 Generally, unmatured croip in field not leviable, as personalty, 65 Ga. 339, 
 but it is an interest in the land, 6 Ga. 455, and goes with a sale of tho 
 land (see §5425 and notes), and sheriff's notice of "rent reserved'" not 
 affect, 65 Gu. 15. May be rn'ortgaged and yet not subject to levy, 65 Ga. 
 340. So, undivided interest in the partnership, promissory notes, future 
 interest etc., Ih. An interest in partnership assets is not subject to levy; 
 can be reached only by garnishment, §2661 and notes. Unmatured grow- 
 ing crop subject only where debtor absconds, or removes from the county 
 or State, §5425. And a levy thereon should recite grounds therefor, 72 
 Ga. 35. Future interest in porsonalty not subject, to father's deb', when, 
 62 Ga. 16. Future interest in personalty not subject to levy, §5452. Nor 
 are choses in action, unless by special statute, §5353. Debtor's interest in 
 perscfnalty partly paid for by him, and retaken by seller, not subject to 
 levy, 96 Ga." 86. Personalty in which defendant in fl. fa. has an Interest, 
 but no legal title, is subject to levy upon vendor's filing quit claim con- 
 veyance in clerk's office and having same recorded, §5432 and notes. An- 
 nuities, stock In banks, etc., subject to levy, 19 Ga. 151. Stock, how levied 
 
AAD PRACTICE. 415 
 
 on and sold, §§5430, 5431. Undivided interest in personalty is subject to 
 levy, 2 Ga. 73. So, realty, 37 Ga. 12. 
 
 (c) Croip, "All on the Ball place,'' sufficient description here, 65 Ga. 644; 
 see also 65 Ga. 339. Descripition in levy on saw mill, engine, etc., suffi- 
 cient here, 82 Ga. 592. Where levy referred to invoic^of goods attached, 
 and at trial no invoice was attached, could show by parol that same 
 invoice was attached to that levy as to another levy made on same stock 
 of goods same day, latter levy being before the court/ 66 Ga. 575. Descrip- 
 tion of lumber on vessel, when sufficient, 70 Ga. 569. 
 
 (d) Sheriff's levy sihould state who is in possession of the property, and 
 therefore his entry is evidence on that point, 65 Ga. 201; entry does not neg- 
 ative possession of defendant In attachment by stating that the property was 
 seized at a specified railroad d'epot, 94 Ga. 260. 
 
 To cause a levy upon property known to be not subject is a misde- 
 meanor, §5422. 'Measure of damages for tortious levy on personalty, 92 
 Ga. 530. Levy on property in hands of third persons, not necessarily 
 illegal, 69 Ga. 192; but is a trespass if property not in fact defendant's, 
 12 Ga. 613. And sheriff liable to suit for levying attachment on goods of 
 third person in hands of common carrier, 60 Ga. 516. Levy on property in 
 possession of defendant, with notice that her children are the owners, 
 wrongful, 94 Ga. 623. See also 92 Ga. 529. Trespass to levy /?. fa. r.s. A on 
 B's property not in A's hands, 80 Ga-. 508. 
 
 (e) If defendant point out property in his possessTon, sheriff bound to 
 take and sell that first, if enough, §5423. Whether or not it is enough to 
 satisfy the /?. fa., is for sheriff's discretion, 73 Ga. 127. Plaintiff's point- 
 ing out property is indemnity to sheriff; he should object to sufficiency 
 of indemnity, or else levy, or else must assume burden of proving plaintiff's 
 orders unreasonable, 29 Ga. 706. Defendant not pointing anything out, 
 his -property in third person's possession may be levied on, 14 Ga. 79. 
 
 General Notte. — Levy on sufficient personalty unexplained, fi. fa. presumed 
 satisfied, 64 Ga. 480; alitcr, if defendant retained or resumed possession of 
 the property, 13 Ga. 187. Levy on perso^nalty throws on plaintiff burden of 
 showing it insufficient, or that proceeds applied to prior levies, or that 
 without his or sheriff's fault it was otherwise unproductive, 6 Ga. 395, 
 8 Ga. 327. But land and personalty both levied on, and land sold first, 
 sale passed good title,. 10 Ga. 149. Levy on personalty not per se extinguish- 
 ment, but only satisfaction sub rfiodo. 8 Ga. 327. Levy on realty undis- 
 posed of is not, like on personalty, jtrima facie evidence of satisfaction 
 of /f. fa., 68 Ga. 493. 
 
 Entry of " No Personalty." 
 Georgia, Bihh County. 
 
 Diligent search made .and no personal property of defendant to 
 be found on whioli to levy within fi.. fa. 
 This — day of January, 18 — . 
 
 G. S. Westcott, Sheriff. 
 
 :ffote. — A separate and independent entry of "no personalty," not essential; 
 "sufficient if the levy itself (on tlie land) recited the fact," 3 Ga. 225. Con- 
 stable cannot levy on land without first making entry of "no personalty" 
 on the fl. fa., unless defendant himself points out the land, §5429. Sheriff's 
 
416 GEOKGIA FOEMS 
 
 ■deed under justice court fi. fa. void, if no entry of "no personalty," 71 Ga. 
 526. But Bucii entry may be made nunc pro tunc upon proi>er proof, 55 Ga. 
 145, by oflacer who made the levy, 3 Ga. 222. Requirement of suoh entry 
 is for benefit of defendant, 24 Ga. 434. One such entry authorized levy on 
 realty, 68 Ga. 738.* Reason of law requiring such entry by constable is 
 that they cannot sell land at all, 65 Ga. 66. Reason and spirit of the law 
 relative to this subject discussed, 3 Ga. 224; protects land until other 
 property exhausted. It). 
 
 Levy on Land, (a) 
 Geokgia Bibb County. (6). 
 
 Levied tlie withm 'fi,. fa. upon (c) the f olloAving real estate, situ- 
 ■ate in said county (<i), to wit: (describe the land (e); said property 
 
 being in possession of (f ), 'and being levied on as tlie property 
 
 (jf) of William S<mith, defendant in fi. fa. (g). Property pointed 
 -out by defendant (h). Written notice given as required by lav? to 
 ■defendant (i). , 
 
 This — day of January, 18 — (;'). 
 
 <G. S. Westcott, Sherife (fc). 
 
 (a) Levying officer shall always enter levy on process by virtue of which 
 levy made, §5421. "All parts of the entry which it is his (the slierifC's) 
 ■duty to make are testimony of themselves -when it is proved that he made 
 the entry," 65 Ga. 206. The levy on land is tlie entry signed by the 
 proper officer, 53 Ga. 456; that entry is the seizure, 50 Ga. 423; the only 
 seizure of land there is in tliis iState, 47 Ga. 278. Entry on the land 
 unnecessary, 56 Ga. 462. §4380(4), requiring slierifE to keep execution 
 ■docket and entries thereon, is intended to give constructive notice of levy 
 to the world, 96 Ga. 277. 
 
 (6) Levy headed "Georgia, Mitchell county," "those words are part of 
 the levy itself," and land referred to "must lay in that county," 59 Ga. 850. 
 
 (c) Execution against principal and surety may seize property of either, 
 ■57 Ga. 68. Life estate is subject to levy, 54 Ga. 196, 92 Ga 297; but not for 
 ■debt of remainderman, 96 Ga. 423. Possession as dowager or as co-dis- 
 tributee is a leviable interest in land, 6 Ga. 452. Reversionary interest 
 in land subject to levy during life estate, 54 Ga. 602. But remaindermian's 
 ■one-fifth interest in an unadministered estate not reached by levy on 
 
 one-fifth interest in a particular lot, 48 Ga. 596. So, legacy not subject 
 ■ to levy until executor assents, or at least until claims superior to legacy 
 paid, 20 Ga. 100. Nor is realty pending a homestead estate therein, 61 
 •Ga. 354; §2837 and notes. Deed to church conditioned on use, land used, 
 'but afterwards abandoned, title not revert in grantor until entry or suit, 
 ■and land not subject to levy as his, 56 Ga. 461. Water lots (dam and 
 "water power) levied on, claim and judgment not bar levy on bottom of 
 stream, 62 Ga. 455, 67 Ga. 648. Land held under bond for title and partly 
 paid for, vendee's interest is subject to levy upon vendee's filing quit 
 ■claim conveyance in clerk's office and having same recorded, and so in 
 other oases where defendant has an interest in land, but no legal title 
 thereto, §5432 and notes. See 84 Ga. 177, 75 Ga. 457, 85 Ga. 474. 
 
 (d) Sheriff's deed to land lying out of his county void, 23 Ga. 132, §5428. 
 
AND PRACTICE. 417 
 
 It follows that he cannot make the levy, 58 Ga. 520. Entry showing that 
 land in Macon county levied on hy sheriff of Houston, void on its face, 
 
 69 Ga. 684. If Macon county then had no sheriff, fact could have heen 
 added by amendment to levy, lb. Land divided by county line, sheriff 
 of county of defendant's residence can sell whole tract, 58 Ga. 520. Parol 
 proof in aid of levy, that land lay in the county, admissible, when, 94 
 G-a. 692. 
 
 (e) Entry sball plainly describe property levied on, and amount of 
 defendant's interest therein, §5421. Descripition should be such as "to 
 enable the purchaser to know what he is buying and to enable the officer 
 to put the buyer in possession," 53 Ga. 142. Levy on realty too vague 
 here, 94 Ga. 640, 73 Ga. 141. Good here, 96 Ga. 360, 94 Ga. 51, 66 Ga. 753. 
 Etescription oif premises, though loose here, followed description in decree 
 and was good, 86 Ga. 500. Description otherwise definite, omission to 
 Jiet out number of ffeet of frontage on street not vital," 87 Ga. 743: Levy 
 on "one-fourth of lot No. 931 in the 12th District and 1st section of Lump- 
 kin county, (Jeorgia," sufficient, 86 Ga. 379. "On 422 acres of land as the 
 property of H. P. S.," insufficient, 89 Ga. 1. On "the west hailf ol city lot 
 No. 79, on the comer of iBroad street, in the city of Albamy, Ga.," suffi- 
 cient, 90 Ga. 287. On "a lot iii the eastern part of Amerious," wholly 
 insufficient, 50 Ga. 423. On "one house and lot in Georgetown, known 
 as the Oatis place," good, 59 Ga. 711. Questions as to, the sufficiency of 
 the description are for the jury, 12 Ga. 441. On "lots of land Nos. 308, 
 309, 310, 332," without further description as to their locality, the county 
 and district not being stated^'nor who in possession, void for uncerta.inty, 
 
 70 Ga. 757. On ."one house'and one-half of lot No. 12 in the town of 
 Wrightsville, adjoining T. W. Kent and streets," good, 64 Ga. 677. On 
 "nine hundred acres of land in and in the vicinity of Union Point," very 
 vague, 65 Ga. 205. Levy describing part of lot Of land not only by number ' 
 and district, butj by metes and bounds, and adjacent land owners, good, 
 though district and lot numbers incorrectly stated, 78 Ga. 540. But 
 where lot 287 was Intended to be 'levied on, and entry calls the lot 268 by 
 mistake, there has been in fact no levy made on the right lot, 50 Ga. 544. 
 Levy stating the county, the district number, the number of the lots, and 
 the number of acres, good, 68 Ga. 158. Defendant's interest and the 
 county, and, also, the_ district and lot numbers stated, levy on "all that 
 portion of said lots lying and being south" of a described road, good, 
 82 Ga. 239. Levy capable of being made certain by reference to a recorded 
 deed to which it refers, good, 27 Ga. 200. Or even by unrecorded private 
 plat referred to, 93 Ga. 22. Description only by number of acres lying 
 north and east of a stated lot, subject to dower, etc., is equivalent to direct 
 reference to the proceedings assigning dower, and is good, 81 Ga. 255. An 
 interest in land cannot be sold without specifying what that interest is, 
 10 Ga. 77. To levy upon land "as the property" of defendant, means that 
 the entire estate is levied on, and so those words sufficiently set out 
 defendant's interest, 65 Ga. 166. Levy of execution against a mother, 
 upon property in which her children also have an interest, should specify 
 her interest, 51 Ga. 433. For sheriff to pool similar levies upon same 
 property against same defendant, proper, 62 G-a. 555. But where fi. fa. 
 against A levied on his life estate, another against B on his undivided 
 half oif the remainder, another against C on his undivided half of ithe 
 remainder, sheriff could not pool all three fl. fas. in one single sale for a 
 given sum, because interest sold uncertain, 62 Ga. 555. Undivided - half 
 
418 GEOEGIA FOKMS 
 
 of lot may be sold under levy on whole, 59 Ga. 415. Less may be sold 
 than Is levied on, 20 Ga. 591; but not more, 62 Ga. 551. Levy on life 
 interest in 600 aeres of a given tract, insufficient here, 62 Ga. 447. Levy 
 upon a "certain and all of the interest" of J. W. in a lot of land, void for 
 uncfertainty, 84 Ga. 116; see also 10 Ga. 74. 
 
 if) "It is the duty of the sterifE to state in his entry of levy who is in 
 possession of the property," 65 Ga. 201. Where execution against admin- 
 istrator, entry that land levied on as intestate's in administrator's hands 
 to be administered, does not import possession by administrator, 90 Ga. 
 113. See also note id) *o form 'for levy on personalty, ante. 
 
 ig) Words "as the property" mean that entire es'tate is levied on, 65 
 Oa. 166. Execution against two dlgji^dants, levy on property should 
 specify <to which defendant it belongs, 53 Ga. 189, 68 Ga. 495. Omission 
 to state whose property seized, no ground for illegality, 65 Ga. 328. 
 
 (ft) SemWe, that when property is pointed out at \11, good practice to 
 make it an "invariable custom to say in * * levy * * by whom," 30 Ga. 378. 
 
 (i) Add the words "and to the tenant in possession" where a tenant 
 is in poissession. When land is levied on, "Written notice * * must be 
 given to the tenant in possession, and to the defendant, if not in posses- 
 sion," §5428. "Within five days after levy," §5426. And sheriff after sale 
 is to put purchaser in possession, upon application, §5468. "Therefore of 
 prime importance that this entry should be complete," 53 Ga. 142. Levy 
 and sale without notice will not defeat rights accruing undei §5355, from 
 four years' possession, 51 Ga. 372. Relatively to tenant thus entitled to no- 
 tice of levy, there is no legal levy until notice, 54 Ga. 591. Land occupied by 
 vendee holding bond for title, notice both to defendant and holder of his 
 notes necessary to sale of whole title, 53 Ga. 56, §5434, 92 Ga. 796, 720. 
 Notice to holder of bond for titles excused by death and rescission, 84 Ga. 
 177. No such jiotice required as to leyy of aittaclunent, 58 Ga. 290. But 
 the statute is directory only, and failure to give notice does not ipso facto 
 void levy, 66 Ga. 62; nor affect title of bona fide purrihaser, 37 Ga. 251. 
 
 ij) Levy ion land in 1869 had not become too stale to be enforced in 1875, 
 55 Ga. 11. Levy not stale after a year, 77 Ga. 528. 
 
 (fc) Illiterate officer may procure another to write out levy for him, 66 
 Ga. 62. Signature by cross mark gOiJjj; if properly Identified, 78 Ga. 297. 
 Signature to levy accidentally omitted may be added, 53 Ga. 138, 50 Ga. 
 210. Levy unsigned, /?. fa. inadmissible, 53 Ga. 454. Nor does recital 
 in sheriff's deed that he had made such levy alter the case, Tb. De facto 
 constable, levy by, not void, 67 Ga. 725. Levy without legal authority to 
 do so is no levy, and sale under it no sale, 60 Ga. 466. 
 
 General Note. — Title at sheriff's sale should show good levy, 69 Ga. 684. 
 Levy on land by constable bad without P'revious entry of "no personalty." 
 See also Form for No Personalty Entry, p. 415. Sheriff owes duties to 
 defendant as well as to plaintiff; cannot cut defendant's building in twain 
 by levy, 52 Ga. 164. Only officef who made levy, can amend levy, 69 Ga. 
 777. Claim filed, levy amended to show authority of levying officer, 69 
 Ga. 684. Constable may amend levy on sale-day without order, 68 Ga. 
 73. Levying officer may amend his entries, §5116. And, by order of court, 
 may make the entry mine pro tunc -where he failed to make it at all at the 
 time, §5117. Alterations and changes in a levy will iprima facie) be pre- 
 sumed* made at time of original entry; i. «., presumed in favor of integ- 
 rity of official return, 96 Ga. 360. Claim filed to levy does not preclude 
 immediate levy on other property, 8 Ga. 327; i. e., before papers have 
 
AND PKACTICE. 419 
 
 been returaed into court, 66 Ga. 727. But onee returned, leave of court 
 necessary to withdraw /s. fa., and granting leave discretionary, 19 Ga. 
 161 (1855). However, by Act of 1887, §4629, fi. fa. may be withdrawn on 
 j.pplication to clerk. (See, in this connection. Rule of Court, §5649. Law 
 prior to 1887 applied where land in one county levied on and claimed and 
 plaintiff desired to levy on land in another county, 54 Ga. 587. With- 
 drawn without leave of court, second levy illegal, 65 Ga. 256 (1880). 
 Even though first void, 76. Dismisisal of levy pending issue, and re-levy, 
 allowable, 65 Ga. 627, 69 Ga. 684. Re-levy, pending illegality under 
 firsit levy, illegal, 84 Ga. 117. Suit on forthcoming bond not prevent 
 re-levy on same property. If re-taken, 85 Ga. 550. Intimation in 9°Ga. 
 42, that forfeiting bond discharges judgment lien on the property, disap- 
 proved; 16. Plaintiff buying defendant's land at sheriff's sale, and refus- 
 ing to comply with bid, cannot re-levy until he accounts for sucii bid, 
 20 Ga. 401. "Excessive levies ^are trespass, in law," 42 Ga. 255. Excessive 
 levy and duty to sell land discreetly in paircels, considered, 72 Ga. 638; 
 discretion, 73 Ga. 127, 77 Ga. 83. On life estate, test of; 81 Ga. 247. On 100 
 acres worth $1,200 for $3.60, void" 81 Ga. 40. On two houses on same lac 
 worth several thousand dollars, for $100, void, 25 Ga. 103. On two city lots 
 for less amount than value of one, void, 75 Ga. 169. Excessive levy no 
 ground for illegality, 68 Ga. 158, 77 G^. 46, 83. May be waived by defend- 
 ant's assent to postponement of sale, 60 Ga. 260. Excessiveness, when 
 waived by owner, 86 Ga. 166. 
 
 Notice of Levy on Land. 
 
 (To be served on defendant, anrt also on tenant in po.-session, if any, within five fays alte 
 the levy. §§5126,0428) 
 
 Georgia, Bibb County. 
 
 To . 
 
 You are teaieby notified that cm the — day of , 18 — , a 
 
 fi. fa. issued from tlie superior court of said county in favor of 
 John Jmies against Willmm 8mih -was levied by the undersigned 
 upon the following land, situate in said county, to wit: (describe 
 the land as in the levy) ; and that the same will be advertised to be 
 sold on the first Tuesday in February next. 
 
 This — day of Jmiuury, 1897. 
 
 a. S. Westcott, Sheriff. 
 
 Sheriff cannot accept an affidavit of illegality based on his own neglect 
 to give notice of levy, 72 Ga. 258. See also note (i) to the form for levy 
 on land (above). 
 
 Entry of Nulla Bona. 
 
 Georgia, Bibb County. 
 
 Diligent search made, 'and no property of defendant found upon 
 which to levy the within f,. fa. 
 
 This — day 'of , 18—. 
 
 a. 8. Westcott, Sheriff. 
 
420 GEOEGIA FORMS 
 
 Nulla bona entry as to "defendaat" on /?. fa. against an administrator, 
 referred to administrator as such, not as individual, and was good, 90 Ga. 
 756. 'Nulla bona return on execution against administrator, authorizes 
 immediate suit on his bond, §3501. On execution agiainst him and hi^ 
 bondsmen, nulla bona return as to him is prerequisite to levy on their 
 property, §3504. 
 
 To traverse of entry of nulla bona, oflBcer who made it is not a necessary 
 party, 81 Ga. 162. 
 
 Generally, such return necessary by way of exhausting legal remedies, 
 before equitable assets can be reached, 59 Ga. 706. Prerequisite to collec- 
 tion of costs out of plaintiff in ft. fa., §5395. 
 
 ' Levy and Sale Where Defendant has not Legal Title. 
 Where a contract to purchase, or bond for title, has been made, or the 
 purchase money has been partly paid; or, where a deed to secure debt 
 has been executed, and the purcliase money or secured debt has been 
 reduced to judgment, a quit-claim deed to the property, real or personal, 
 may be filed in the clerk's office and recorded; and thereupon the same 
 may be levied on and sold as other property of defendant, and the pro- 
 ceeds applied to said judgment. Or, if there be conflicting claims, then 
 the same shall be applied as determined in proceedings had for that pur- 
 pose, §5432. Any general judgment creditor may pay the debt, and there- 
 upon a conveyance to defendant shall be made by the holder of the title, 
 and when it is filed and recorded, the property may be levied on and sold 
 as property of defendant. The proceeds shall go, first, to pay liens 
 superior to the claims taken up by plaintiff In fi. fa.; next, to reimburse 
 plaintiff. The balance shall go to the execution under which the property 
 is sold, and to other liens, according to priority, §5433. In all sucih cases, 
 notice of the levy and time of sale shall be given by the levying officer 
 to the holder of the title, if known, and also to defendant in fi. fa., and in 
 case of death, to their legal representatives. Depositing a letter in tbe 
 post-office, properly addressed and stempod, shall be deemed sufficient 
 notice under this section, §5434. 
 
 Forthcoming Bond, (a) 
 
 (To accompany affidavit oE illegality by de endant iu fl. fa. §§5435-8.) 
 
 Georgia, Bibb County. 
 
 Know all men by these presents, That we, William Smitli, prin- 
 cipal, and Jrnnes Brown, security, acknowledge ourselves jointly 
 and severally bound unto (&) G. S. Westcott, sheriff of said county, 
 in the sum of dollars, subject to the following conditions: 
 
 Whereas, the said G. S. Westcott, sheriff as aforesaid, has lately 
 levied an execution issued from the superior court of said county, 
 in favor of John Jones against William Smith upon certain per- 
 sonal property (c), to wit: (describe the property), as tbe property 
 of the said William Smith, to which said elsecution and levy the 
 above named principal has filed his affidavit of illegality, as pro- 
 vided by law; 
 
AND PRACTICE. 421 
 
 Now, if the said Williafm Smith, principal, shall deliver said 
 property so levied upon at the tim© land place of sale (d), in the 
 event that said illegality shall be dismissed by the court, or with- 
 drawn, or if the said James Brown shall do so for him, then this 
 obligation to be void, else of full force and effect. 
 
 Witness our hands and seals this — day of , 18 — . 
 
 William Smith [l. s.J (e) 
 * James Brown [l. s.] 
 
 Attested by: 
 
 (o) Forthcoming Vond unnecessary unless defendant "desires to take 
 or keep possession of " the property, §5435, 53 G-a. 43, 63 Ga. 520. Affidavit 
 of illegality interposed to execution, levying officer may take forthcoming 
 bond when offered him, but he is not bound to do so, as he is in claim 
 case, 77 Ga. 654. In former case, taking the bond is no defense to rule 
 against levying officer tar not making the money (citing §5437), "Why 
 such a difference is mad© * * somewhat difficult to understand, but ita 
 lex scripta est," lb. 
 
 (6) By mistake, forthcoming bond was miade payable to James B., 
 instead* of Wm. B. S. Held that Wm. B. S. might sue at law on the bond 
 and show the mistake, 26 Ga. 228. 
 
 (c) It shall not be lawful to require or take a forthcoming bond for 
 real estate, §4614. 
 
 (d) Obligor in forthcoming bond is bound to take notice of time and 
 place of sale, and have the property there, 6 Ga. 260, 29 Ga. 110; and 
 advertisement is sufficient notification, 29 Ga. 429. Bond forfeited by 
 failure so to do, tender oif the property after sale day, bad, 9 Ga. 42. Ani- 
 mal replevied escaping, obligor in forthcoming bond not discharged, 17 
 Ga. 75. 
 
 (e) Declaration upon forthcoming bond averring that it was executed 
 by defendant's agent, not demurrable because no statute existed author- 
 izing agent to execute such bond; written authority might appear by proof, 
 9 Ga. 209. 
 
 Generally. — Where forthcoming bond sued on, in reciting fl. fa. varied 
 from it, identity for jury; even court may settle question where plainly 
 clerical mistake, 29 Ga. 427. 
 
 Bond to Stay Execution; §§5439-41. 
 
 ") Complaint on Note. 
 John Jones \ Bibb Superior Court, November Term, 1896.' 
 
 vs. J- Verdict and Judgment for Plaintiff for $ , 
 
 William Smith'. \ -r—. , Interest, $ , Attorney's Fees 
 
 J and Costs. 
 
 Now comes defendant in above stated case, within the time re- 
 quired by law, and demands a stay of execution according to the 
 statute in such cases made and provided, and brings James Brown 
 and tenders him as surety; 
 
422 GEORGIA FORMS 
 
 And thereupon, the said William Smith, principal, and tlie said 
 Jwmes Brown surety, acknowledge themselves jointly and sever- 
 ally bound unto the said plaintiff, John, Jones, for the payment of 
 said judgment aforesaid. 
 
 Witness our hands and seals this the day of ■ , 18^-. 
 
 Williwm Smith, [l. s.] 
 James Brown, [l. s.] 
 Approved : 
 
 Robert A. Nishet, 
 
 Clerh Superior Court Bibb County. 
 
 Stay-bond binds property of the sureties from dite of it-- e.'iiecatiou, o7 'Ta 
 378, ()1 Ga. 257. 
 
 ADVERTISEiMBISTT OF SHERIFr's SaLE. (a) 
 
 Georgia, Bibb County. 
 
 Will he sold, on the first Tuesday (6) in February next, al^publio 
 outcry at the oourt-'house (c) in said county, within the legal hours 
 of sale {d), to the highest bidder for oash, certain property, of which 
 the following is a full and complete description: ("Give a full 
 and complete description of the property." §5457.) (e) 
 
 Said property levied on as the property of William, Smith, to 
 satisfy an execution issued from the superior court of said county 
 in favor of John Jones against said William Smith; said property 
 being in possession of William Smith, (f) 
 
 This — day of January, 18 — . 
 
 G. -S. Westcott, Sheriff. 
 
 (a) iSheriff's sales must be advertised once a week for four weeks, 
 §§5457-8. Once in. each, calendar week suflacient witlout reference to num- 
 ber of days wiicli may elapse between date of first insertion and the day 
 of th« sale. Bird vs. Burgsteiner, decided March 8, 1897. To change his 
 advertisement from one paper to anckher, sheriff must give notice of such 
 intention in former, §5460. Generally, sheriff may refuse to advertise 
 unless cost to cover isam© advanced; ibut if plaintiff, or his agent or 
 attorney, file pauper affidavit of inability to pay such cost, sheriff must 
 proceed to advertise, §5459. If a bidder refuse to comply with his bid, 
 sheriff may .sue him for full amount, or resell and hold him for difference, 
 §5466. Crowd dispersed, should re-advertise and re-sell as soon as prac- 
 ticable, 56 Ga. 443. Re-sale same day within legal hours, valid, 59 Ga. 
 649. Purcliaser depends on judgment levy and deed, 75 Ga. 169, 65 Ga. 
 15. He cannot decline to comply with bid for defect in title unless fraud, 
 64 Ga. 503. Sheriff is forbidden to purchase at his own sale either directly 
 or indirectly, §4383 and notes. Sheriff must, like clerk of superior court, 
 keep a file of all newspapers in which ihis official advertisements appear, 
 
AND PKAO-TTO;. 42? 
 
 §4380(3). Advertisement on Sunday, no title passed, 72 Ga. 290. Newspa- 
 per, not slip, is best evidence of advertisement, 67 G-a. 675; if not obtain- 
 able by ordinary diligence, copy taken from files in publisher's oflSce, veri- 
 fied by oatb of publisher, admissible, 6 Ga. 530; but such diligence must 
 appear, 54 G>a. 583. 
 
 (6) Sale may co'ntinue from day to day until completed. If notice of 
 such intended continuance given in advertisement, §5456. 
 
 (c) Corri, lumber, timber, bricks, machinery, etc., difflcult and expen- 
 sive to transport, need not be carried to place of sale to be sold, provided 
 that place where located be described in advertisement as well as proiperty 
 itself, §5455. However, sheriff responsible for keeping it, 86 Ga. 662. 
 Court-house burned, sale in grove near by, legal, 65 Ga. 165. Property not 
 at place oif sale, no seizure, no title, 81 Ga. 340. 
 
 (d) Legal hours of sal© are between 10 a.m. and 4 p.m., §5455. This 
 contemplates "sun time," which is the legal standard of time, 84 Ga. 160. 
 
 (e) Description in advertisement not fatally uncertain here, 69 Ga. 507. 
 If insufficient, sale not arrested, officer responsible, 75 Ga. 230. Errors in 
 advertisement as to quantity, caveat emptor, 69 G-a. 518. Growing crop on 
 land levied on should be mentioned in advertisement, 75 G-a. 233. 
 
 (f) Aidvertisement should say wOao is in possession of the property, 
 §5457, 65 Ga. 205. 
 
 General Note.— Sale by sheriff set aside on his petition where he sold 
 contrary to instructions, 95 Ga. 287. Sale illegal, no re-sale until first set 
 aside, 63 Ga. 477. ]!>efendant bringing property to place of sale, and seeing 
 it sold without objection, estopped from attacking validity of sale, 83 Ga. 
 164, citing 78 Ga. ^4. 
 
 Sheriff's Deed. («) 
 
 State of Georgia, Bibb County. 
 
 TMs Indenture, Made this the day of , Eighteen Hun- 
 dred and Ninety — , between G^. 8. Westcott, sheriff of said county, 
 of the first part, and Jaines Brown, of Bibb county, of the second 
 part: 
 
 Witnesseth, That -whereas, said sheriff did, on the — day of 
 January, 1897, under and by virtue of a fi. fa. issued from the 
 
 superior court of the county of in favor of John Jone-^ 
 
 against Williwni Smith, levy upon certain land situate in said 
 county of Bihh, hereinafter more fully described, as the property 
 of said William Smith; 
 
 'And vs/^hereas, Said sheriff did afterwards, to wit, on the first 
 
 Tuesday in , 18 — , expose to sale the property so levied om, at 
 
 the court-house in said county of Bihh, between the legal hours of 
 sale, after having advertised the same in the Macon Telegraph 
 newspaper according to law; 
 
 And whereas, The said James Brown, having been the highest 
 bidder for the same, the said land- was knocked off to him as the 
 purchaser at the sum hereafter named; 
 
424 GEORGIA FOEMS 
 
 Now, therefore, The said G. S. Westcott, sheriff as aforesaid, ia 
 
 consideration of the premises, and of the sum of dollars, to 
 
 hkn in hand paid, at and before the signing and delivery of these 
 .presents, the receipt -wh'ereof is hereby acknowledged, has granted, 
 bargained, sold and conveyed, and by these presents doe^ grant, 
 bargain, sell and convey unto the said James Brown, his heirs and 
 assigns, the aforesaid land, more fully described as follows, to wit : 
 (here describe the land). 
 
 To have and to hold the said land to the said James Brown, his 
 heirs and assigns, in as full and ample a manner as the said William 
 Smith might have done. 
 
 In testimony whereof, the said G. 8. Westcott, sheriff as afore- 
 said, has hereto set his hand and seal and delivered these presents, 
 the day and year first above written. 
 
 0. S. Westcott, Sheriff [l. s.J 
 Signed sealed and delivered 
 in presence of 
 
 JoJm Gray. 
 
 8. R. Wiley, . , . 
 Notary Public Bibb County, Ga. 
 
 (a) Sheriff must keep record of sales, "describing accurately" the prop- 
 erty, the process, date of levy, and sate, purchaser, and price, §4380(5). 
 And such entry is not traversable by third persons, 81 Ga. 254. Prima 
 facie case for plaintiff in ejectment is made wlier.e purchaser at sheriff's- 
 sale shows his deed and execution,- and title in defendant or possession 
 since judgment, 10 Ga. 74. Sheriff's deed alone ^ is not enough, 68 Ga. 
 738. A good levy must appear, 69 Ga. 684. Sheriff m^ust put purchaser in 
 possession Upon applieatiO'n, but can only put out defendant and privies, 
 §5468. Cannot put out defendant's widow claiming dower, nor lessees in 
 certain cases, §5470. Application to be put in possession not made until 
 next term of court, or until sheriff gone out of office, order of court 
 necessary, §5469. 
 
 Sale of Perishable Property ; Notice of Intention to 
 Apply for; §§5464, 4607. 
 
 (Copy of which should be attached to petition as an exhibit, and two copies of which should 
 be handed to sheritf, one to be served on defendant, tbe other to be returned by him into- 
 court, with entry of service thereon.) 
 
 Georgia, Bibb County. 
 
 To Willimn Smith:. 
 You are hereby notified that on the 3d day of February next, at 
 the hour of ten o'clock ft.m., at the court-house in said county, I 
 will apply to the Honorable W.,,ff. Felipn, Jr., Judge of th'e Supe- 
 rior OoTxrt for said county, for an order, as conteniplated by §§5463 
 
AND PEAOTIOE. 425 
 
 and 5464 of tlie Civil Code, for the sale of the following personaltyr 
 to "wit: (insert description of property sought to be sold) ; said prop- 
 erty having been lately levied on by virtue of legal process issued 
 in my favor agiainst you. 
 
 John Jones. 
 
 FOEM FOR ReTUKN ON NOTICE. 
 
 Georgia, Bibh (Jounty. 
 
 Served William, Smith personally vrath a copy of mthin notice,. 
 
 this — day of , 18 — . 
 
 G. S. Westcott, Sherife. 
 
 Hand to sheriff two copies of the notice, with instructions to serve one 
 and return the other with entry of service entered thereon. 
 
 Application for Sale of Perishable Property; §§5463-4. 
 
 Georgia, Bibb County. 
 
 To the Hon. W. H. Felton., Jr., Judge of Superior Court of mid 
 
 County : {a) 
 
 John t/ojtes, plaintiff in fi. fa. (h), brings this his petition for 
 sale of perisihable personalty levied on as the property of Williamt 
 Smith, defendant in fi. fa. (b), and alleges: 
 
 First: By virtue of a fi. fa. in favor of petitioner against said 
 
 defendant, issued from the term', 1896, of the Superior Court 
 
 of said county, the following personal property, to wit: (insert de- 
 scription of property), was on the — day of , 1896, levied on 
 
 by G. S. Wtstoatt, sheriff of said county. 
 
 Second: The said defendant fails to replevy said property, and 
 the same remains in the 'hands of the levying officer iaf oresaid. 
 
 Third: Said personal property is of a perishable nature (or, 
 "liable to deteriorate in value from, keeping," or, "of sutfh nature 
 that there is expense attending the keeping of the same," as the 
 ease may be). 
 
 Fourth: (c) Said defendant was on the 1st day of February, 
 18 — , (d), personally served with a written notice of petitioner's 
 intention to make this application, a copy of vsrhioh said notice is 
 attached to this petition, and marked Exhibit "A." (e) 
 
 "Wierefore, The premises considered, petitioner prays an order 
 for sale of said personal property, after ten (f) days advertisement,. 
 as contemplated by §§5463 and 5464 of the Civil Code. 
 
 A B, 
 Petitioner's Attorney. 
 
426 GEORGIA FOEMS 
 
 (ft) Where the /J. fa. issued frota the superior court, judge of superior 
 court absent from county, application must be "To the ordinary of said ' 
 county," 95 Ga. 50. Judge of Stone Mountain Circuit had no authority 
 over levy in Fulton county, ibecause judge of Atlanta Oircuit absent, /6. 
 Where the fi. fa. issued from justice court, application must be to J. P., 
 §5463. 
 
 (6) Or" attachment," or other process as the case may be, §5463. 
 
 (c) If in lieu of paragraph fourth, it be alleged that notice impracticable, 
 or case an urgent one, sale may be made without notice, §5464. 
 
 id) Two days' notice requisite, §5464. Suppose notice served on first 
 of month, application can be made on the thirteenth; this reckoning counts 
 only first or last day, as required by §4, sub-section 8. 
 
 de) Attach to the petition a copy of the "Form for Notice to be Served 
 on Defendant," for which see below. 
 
 (f) Live stock, fruit, etc., may be sold after three days' advertisement, 
 §5464. So that if notice was served on Monday, -"three day order" could 
 be taken Wednes'day, advertisement posted same day, and sale had on 
 Saturday. 
 
 Order; §6463. 
 
 The foregoing petitioii of John Jones for sale of perishable per- 
 sonalty levied on as the property- of William Smith, read and con- 
 sidered, and the facts therein stated haAdng been made plainly to 
 appear to me, (a) 
 
 It is ordered, That said property be sold, after ten days' advei-- 
 tisement, according to law, and that the money arising from such 
 sale be held by the officer making the same subject to the order of 
 
 the court. 
 
 This Sd day of February, 1896. ' 
 
 W. H. 'Felton, Jr., 
 Judge Superior Court Bibh County. 
 
 (ft) Omission in J. P.'s order of sale to recite facts authorizing sale 
 "would amount only to an irregularity," 72 Ga. 664; e. g., omission to 
 recite notice given, Zb. But a superior court sale attacked on ground that 
 two days' notice not given was declared void because such notice did not 
 afiirmatively appear, 95 Ga. 50. Notice not given, not essential to validity 
 of sale that order of J. P. should reoite why not, 96 Ga. 763; pleadings loose 
 in justice courts, J6. 
 
 Advertisement for Sale of Perishable Property, (a) 
 Geogia, Bibb County. 
 
 "Will be sold, on the ISth day of February, (b), 18 — , at the 
 court-house (c) of said county, -within the legal hours of sale, to the 
 highest bidder for cash, the following personal property, to wit: 
 (Describe the property.) 
 
 Said property is levied on as the property of Willimn Smith, to 
 satisfy an ewecution issued from the superior court of said county 
 
AND PKACTICE. 427 
 
 in- favor of John Jones against said Williami 8mith, and is sold 
 by virtue of an order granted by tbe Honorable W. H. Felton, Jr., 
 Judge of the Superior Court for said county, on the 3d day of 
 February, 18 — . 
 
 Tbis the 3d day of February, 18 — . 
 
 G. S. Westcott, Sheriff. 
 
 (a) Make three oapies of this advertisement and post at two public 
 places other than the court-house, and the third at the oourt-house; put 
 the third, in case of justice court sales, ait the court-house door o* the 
 district in which the levy is made, §5464. 
 
 (6) The "levy shall be advertised * * * at least ten days before the day 
 of sale," §5464. "Only the first or last day shall be counted," §4(8). 
 
 (c) In case of justice court sal-es, insert the words, "door of the 58Jitl\ 
 District G. M.," 'between "Gourt-Uous/B" and "of," §5464. Also, where the 
 justice court is in a city of over 5,000 inhabitants, give the address, since 
 the J. P. and the N. P., Ex-Offioio J. P., may have offices at different places. 
 
428 GEOKGIA FORMS 
 
 CHAPTER 7. 
 NEW TRIALS. 
 
 Motion foe a New Teial.* 
 
 John Jones 1 Complaint in Bibb Superior Court. 
 vs. \ AprilTevm, l^^l . 
 
 William Smith. ) Verdict for Plaintiff November Term, 1897. 
 
 And ntow comes detfieaidiaiiit, at the term at wMclli tlie trial was 
 had, and "within thirty days from tihe trial, (a) and makes this ap- 
 plication for a new trial, upon the following grounds, to wit: 
 
 1. Because the verdict is contrary to law. 
 
 2. Bee'auiS'e the verdict is conteairy to tih© evidence and to the 
 principles of justice and equity. 
 
 3. Beeiause the following material evidence was illegally admit- 
 ted to tIhe jury over objection of this applicant, viz: 
 
 (Set out the evidence claimeld to have been illegally udmitted.) 
 
 Movant objected to the admission of said eviden'ce at the time 
 the same was offered, and then and there did urge the following 
 grounds of objection to the same: 
 
 In going over the manuscript of this chapter with the writer, Judge Bleckley conflrms 
 him in the propriety of reminding lawyers (hat every ground based upon illegal admission of 
 evidence ought to contain some unmislakahle affirmation (substantially such as that with 
 which the third ground hereof concludes^ that the movant objected to the evidence at 
 the time it was offered, and that he then and there brought to the consideration of the 
 Judge the very reasons set forth in his motion, against the admissibility of the testi- 
 mony. True, we all know that the Supreme Court nas frequently held this to be the law, 
 but if the foregoing suggestion shall save any plaintifif in error from inadvertently invoking a 
 repetition of such ruling, it will not have been made in vain , 
 
 Which objections the court overruled. 
 
 4. Biecause during the trial tihis applicant moved the Count to 
 rule out the following material evidence introduced by the ad- 
 verse party (setting it out), and-then and there did urge tihe follow- 
 ing grounds of objection to tihe siaid evidence, viz.: 
 
 Which objections the Coiurt overruled and allowed tbe evidence 
 to remain before the jury. 
 
 5. Because the following, material evidence offered by this 
 applicant Was illegally witihbeld from the jury, against his de- 
 mand: (Set out the evidence claimed, to have been illegally with- 
 held). 
 
 6. Because tihe Court erred in charging the jury as follows: 
 (Here set out the language claimed to cO'nstitute error). 
 
 '■'As mere matter of practice, the plan followed here, of alleging the grounds in the order in 
 which the Code deals with them, and alleging all grounds based upon the same class of error 
 before proceeding to the next class, would seem to commend itself. 
 
AND PEAOTIOE. . 429 
 
 Being careful not to embrace in the same complaint legal or correct mat- 
 ter with illegal or erroneous matter. 
 
 (Finish witli grounds based on errors iu charging before taking up the class of errors con' 
 templatedln the nextiiround of the motion.) 
 
 7. Because the Court erred in refusing tlhe following request 
 to ch'arge, tlie same liaTing been submitted in writing before the 
 jury retired to ctosider of their verdict: 
 
 (Set out a oopy of the request to oharge.) 
 
 A request to charge may be -properly refused unless it is all correct and. 
 without admixture with illegal or inapplicable matter. "It must be all 
 good law and applicable to tihe facta" 
 
 (Exbaust in like manner aU grounds based on refusing to charge as requested.) 
 
 8. Because since the reri'dition of said verdict certain material 
 evidence, not merely cumulative in its character, but relating to 
 new and material facts, has been dijsicovered by this applicant, said 
 evidence being in substance as follows: 
 
 (Here set forth the newly discovered evidence). 
 
 When a motion is made on the ground of newly discoveied evidence the following atBdavit 
 must be made by the movant and each of his counsel : 
 
 Affidavit as to NEWiiY Discovered Evidence ; §5481. 
 
 [State the case.] 
 Georgia, Bibb County. 
 
 Personally appeared William Smith, the applicant for new trial, and A. B. and C. D., his 
 counsel, each of whom being first duly sworn , deposes and says that he did not know of the 
 evidence set out in the 8th ground of the motion herewith filed before the trial, and farthf r 
 says that the same could iiot have been discovered by the exercise of ordinary diligence [or, 
 that they exercised ordinary diligence before the trial and did not discover the same]. 
 [Signed by William Smith, by A. B., and by C. D.] 
 
 Sworn to and subscribed before me, this day of , 189-. 
 
 If the newly discovered evidence is that of witnesses, affidavits as to their residence, asso- 
 ciates, means of knowledge, character and credibility must be added. §5481. 
 
 9. -Because during the progress of the trial the presiding judge 
 erred in that he did intimate to the jury his opinion as tO' what 
 had not (or "had,"' as the case may be) been proved, as follows, to 
 wit:" 
 
 During the trial the Oourtt siaid to a witness on the sitand, one 
 
 John Cass, "How do^ you remember dates so well? You liave a 
 
 talent, a gift that way;" and when another witness, /Sfa>m Webb, was 
 
 introduced,the Court siaid: "The witness has not got the memory 
 
 that John Cuss iiSiS. .jyojouhr^iow John Cass f He 'has a better 
 
 reoollection thSan you. Which is the older man, you or he?" And 
 
 ajgain, when John Cuss was recalled, the Court said to him: "You 
 
 have established a reputation for a good reooUeotion, but you cannon 
 
 tell 'the price of whelat that year; you ought to keep the reputation 
 
 up." 
 
 Tlie foregioilng is 'taken verbatim from 90 Ga. 588-9, where the same was 
 held to 'be error. It is tihte privilege and duty of the juidige to propound 
 qu^tioDS to a reluctant witness in oi^der to elicit tihe truth, 75 G<a. 181. 
 But he shiould nfever induJige in itemarks to witnesises or in comments upon 
 
430 GEOKGIA FORMS 
 
 their teistianouy, wlidcli may either maginiify or dimiinisli its effect upon the 
 jury as to creidlihility or vlalue, 90 'Ga. 589. 
 
 10. Because during tJbe progress 'of the trial the presiding judge 
 erred in that he did intimate to the jury his opinion as to what had_ 
 (or "had not," as the case may be) been proved, in the following 
 portion of his charge to the jury: 
 
 (Here set out the p'assages claimed t)o be earor.) 
 
 Wherefore movant prays that these his grounids of new trial be 
 inquired of by the Cour't, amd that a new trial be gramted him. 
 
 Defendant's Attorney. 
 Ordee Appeoving the Motion foe New Trial. 
 
 The recitals of fact contained in the foregoing motion for new 
 
 trial are hereby approved as true. This the day of , 
 
 189—. 
 
 W. H. Felton, Jr., 
 J. S. C. M. C. 
 
 EuLE Nisi. 
 
 (To be entered on the motion ) 
 
 The foregoing motion for new trial read and considered. Or- 
 dered that the plaintiff show cause before me (a) on the day 
 
 of , 189 — , (6) at the court-house in Bibb county, why the 
 
 same should not be granted. Let the brief of evidence be pi'esent- 
 ed for approval, on or before the date aforesaid or in default 
 thereof the motion Avill be diB.missed. (c) 
 
 Ordered further that plaintiff be served with a copy of said mo- 
 tion and of this order days before the date for the hearin>r 
 
 fixed above. This the day of , 189 — . 
 
 W. H. Felton, Jr., 
 J. S. C. M. C. 
 
 (a) A judge Who did not try the case may decide the motion, §5486. 
 
 ('6) As to 'hearing in vacation, ^5485. 
 
 (c) Brief not presented in time, motion dismissed, §5485. 
 
 AccNOWLEDGMENT OF Seevice ; §5475. 
 
 Service of the within motion for new trial and rule nisi ac- 
 knowledged and copy waived. This the — day of , 189 — . 
 
 CD., 
 Attorney for Plaintiff. 
 
AND PRACTICE. 431 
 
 Approval of the Brief by the Judge. 
 
 This brief is hereby approved as a true and eo'rrect brief of tho 
 evidence adduced upon the trial of the case of John JmuiS vs. 
 William Smith, therem referred to. Let the same be filed as part 
 
 of the reciord. This the day of , 189 — . 
 
 W. H. Felton, Jr., 
 J. S. C. M. C. 
 Agreement of Counsel as to the Brief of Evidence. 
 
 We agree that the within brief is a tnie and correct brief of tlio 
 evidence adduced upon the trial of the case of John Jones vs. Wil- 
 liam Smith, therein referred to. This the day of ■., 
 
 189—. C. J)., 
 
 Attorney for John Jones. 
 A. B.,, 
 Attorney for WilUmn Smith. 
 
 Order Overruling the Motion for New Trial. 
 
 This motion for new trial coming on regularly to be heard, after 
 argument had, a new trial is hereby denied (or, "granted"). This 
 
 the day of , 189—. 
 
 W. E. Felton, Jr., 
 J. S. C. M. C. 
 
432 GEOKGIA FOKMS 
 
 CHAPTER 8. 
 CARRYING THE CASE TO THE SUPREME COURT. 
 
 Exceptions Pendente Lite; §5541. 
 
 (State the case.) 
 
 A denrarrer to tlie original petition in tlie above stated cause 
 coining on to be heard at tbis tbe April term, 1897, tbe court O'vea-- 
 ruted the demurrer; to which ruling defendant hereby excepts, 
 and assigns the same as error, and prays that these his exceptions 
 be certified by the court, and entered 'on the minutee. This the 
 day of , 1897. 
 
 Defendant's Attorney. 
 ' Ceetificate; §5541. 
 
 I hereby certify that the foregoing bill of exceptions is true. 
 Let the same, together with this certificate, be entered un the 
 
 minutes. This the day of , 1897. 
 
 W. H. Felton, Jr., 
 
 J. S. C. M. C. 
 
 When a party who has duly entered exceptions pendente lite, as above, Is ready to take the 
 <!ase to the Supreme Court, Le may, in drawing his bill of exceptions, desire to begin it by 
 assigning error upon the rulings to which he excepted pendente lite (he is not compelled so 
 ■to begin it, but he may) ; and in such case he may properly begin as follows : 
 
 Be it remembered that at the April term, 1897, of the tSup^i- 
 rior court of Bibb county, his honor, W. H. Felton, Jr., judge of 
 the Superior courts of the Macon circuit presiding, there came on 
 to be heard in the case of John Jones against William Smith, the 
 same being an aotion of complaint, a demurrer to the original peti- 
 tion, Av^hich demurrer the court overruled, and defendant, excepted 
 pendente lite, his exceptions being duly certified and entered of 
 record; and defendant hereby assigns error upon the judgment 
 overruling the said demurrer. 
 
 Where Bill of Excftptions begins wltih assigning error upon pendente lite 
 rulings, tie first paragraph of the formi next succeeding may be as follows: 
 
 "Subsequently, at the J^ovemUr term, 1897, of said court, the judge afore- 
 said then and tbere presiding, said case came on to be tried." 
 
 The above plan is not always followed, in practice. It is, however, 
 offered for the reasons stated in the parenthesis on p. 434. 
 
 Having disposed of exceptions pendente lite, We now come to consiKier 
 what is, it is hoped, a fairly typical Bill of Exceptions. 
 
AND PKAOTICE. 433 
 
 Bill of Exceptions; §5530. 
 
 Be it remembered tihat at the November term, 1897 of the 8p- 
 perior Court of Bibb county, his Honor, W. H. Fetton, Jr., judge 
 of the Superior Courts of the Macon circuit, presiding, there came 
 on to he tried the case of John Jones against WiUkom Smith, the 
 same being an action of oomplmnt. 
 
 The said William Smith defendant in said case mO'ved to dis- 
 miss the original petition of pliaintiff in said ease for want of ser- 
 vice, "which motion the court overruled, to which ruling said de- 
 fendant excepted and now assigns the same as error. 
 
 Defendant then moved orally to dismiss plaintiff's declaration 
 upon the ground that the same failed to set out any cause of action, 
 vdiich motion the coiunt overruled, to which ruling defendant ex- 
 cepted and now assigns the same 'as error. 
 
 The plaintiff then offered an amendment to his original petition, 
 which Was allowed by the court over the objection of defendant, 
 to whidh ruling, allowing said am'endmenit, the defendant excepted 
 and now assigns tbe same as error. 
 
 The case then proceeded to trial before a jury, and when the 
 evidence was all in, and both sides had announced closed, said 
 William Smith moved the court to grant a non-suit, which motion 
 the court overruled, to which ruling the said defendant excepted 
 and now assigns the same as error. 
 
 A verdict was rendered in said cause against defendant therein 
 for the sum of dollars. 
 
 Defendant then made a motion in arrest of said judgment, which 
 motion the court overruled, to which ruling the said defendanr, 
 excepted and now assigns the same as error. 
 
 Up to this point we have dealt with matters which are not ground for new trial. We now 
 come to the assignment of error for the purpose of reviewing a judgment upon a motion for 
 new trial. As to what is ground for new trial, and what for direct exception, see the " test ' ' 
 laid down by Judge Bleckley on p. 435. 
 
 During the same term defendant made a motion for a new trial 
 
 which was heard by the judge aforesaid, who, on the day of 
 
 , 189 — , passed an order denying said motion, to which said 
 
 order 'the said defendant excepted and now assigns the same as error. 
 
 Defendant specifies as material to a clear understanding of the 
 errors complained of, the following parts of the record: 
 
 The original petition, together with the sheriff's entry of service 
 
 thereon and the amendment to said petition allowed on tlie 
 
 day of , 189—. 
 
 The motion to dismiss the original petition for want of service. 
 
434 GEOEGIA FORMS 
 
 Tihe def eoKjant's answer. 
 
 (In this case the charge need n'ot be called for. The other 
 ■party, or the Supreme Court may call for it, if desired. 
 
 The judgment. 
 
 The motion in arrest of judgment. 
 
 The motion for new trial. 
 
 The brief of evidence. 
 
 And nt)w comes the said Williwm Smith, within thirty days 
 from the adjournment of tlie court (a) and presents this bill o.F 
 exceptions, and prays that the same may be signed and certified 
 that the errors complained of may be reviewed and corrected. 
 I . A. B. 
 
 - ■ Attorney for William Smith. 
 
 Post Office address, Macon, Ga. 
 
 (o.) If the judgment excepted to was rendered at chambers, substitute In 
 lieu of the Italicized words the words "date of said order over-ruling said 
 motion for a new triaJl." If the court (whetiherlheld in city or town) continue 
 in session longer than thirty days and has not adjourned wihen the bill of 
 exceptions is tendered, substitute in lieu of thte words "within thirty days 
 from the adjournment of the court" the words "within sixty days from tihe 
 date of the order over-ruling said motion for a new trial." If the session 
 has been longer than thirty days and the court has adjourned, add, after 
 the italicized words "adjournment of-the court," the following words: "and 
 within sixty days firom tihe date of th<e order over-ruling said motion for a 
 new trial." 
 
 "past bills" of exckption 
 In what are called "fast bills" of exceptions, strike out "thirty" and insert 
 "twenty," and also, in lieu of the italicized words, "adjournment of the 
 court" insert the words "date of said order granting (or, refusing, as the 
 case may be) said application for injunction; or, alimony; or, discharge in 
 hail trover; or, dioharge in contempt; or, mandamus; or, attachment against 
 said debtor, etc. See §5540. 
 
 CRIMINAL CASES. 
 
 In criminal cases, strike out "thirty" and insert "twenty," and also in lieu 
 of the italicized words "adjournipent of the court" insert tihe words "date of 
 said order refusing said application for a new trial." 
 
 (This form, with the notes, presents both a Bill of Exceptions to review 
 a judgment upon a motion for a new trial, and also one to rfevlew a 
 judgment otiher than upon a motion for a new trial; and also a "Fast 
 Bill," including the bill of excepti<Jns for criminal cases. A Bill of Excep- 
 tions pendente lite appears on p. 432, and also a form of Assignment of 
 Error in a Bill of Exceptions upon pendente lite rulings. The 
 Pendente Lite Bill is thus presented before the Main Bill because its chron- 
 ological place is its logical place. For the same reason it would -seem proper 
 tliat 'said Assignment of Error thereon should be the first thing in the reg- 
 ular Bill of Exceptions. To that end, a substitute for the first paragraph 
 of the above Bill of Exceptions is suggested on p. 432, to be used where 
 
AND PRACTICE. 435 
 
 pl^intilf in error deaires to begin, ty assigning error upon rulings to which 
 he ^ly excepted pendente lite.) 
 
 In an Informal conversation with Judge Bleckley during the summer of 
 1897, ^he wiiter remarked, upo?i the frequency with wlhich the Supreme 
 Court i^ called upon to announce that over-ruling a demurrer is not ground 
 for new trial; and then asked the ex-Chief Justice to give, for tlie benefit 
 of the bay, a rule as to what is ground for new trial, and what for a direct 
 bill of exceptions. Said he: 
 
 "The test is this: When another trial is wanted by the party ,^ and the 
 sustaining of his exception would logically and legally result in granting 
 it, the matter of the exception should be incorporated in the motion, but 
 where the ob]>ct of the mova;nt is to defeat the action, or tihe defense, with- 
 out a trial, the matter of the exception is proper for a bill of exceptions, 
 and not for incorporation in a motion for new trial." 
 
 Judge's Cektificate to Bill of Exceptions; §5632. 
 
 (This certificate shall be the writ of error ; g5533 ) 
 
 I do certify that the foregoing till of excieptions is true, and 
 contains (or specifies, as tbe case may be,) all of the evidence, and 
 specifies all of the record miateriai to a clear understanding of the 
 
 errors complained of; and the clerk of the court of 
 
 county is hereby ordered fe) make out a complete copy of such part? 
 of the record in siaid case as are in this bill of execptions specified, 
 and certify the same as such, and cause the same to be transmitted 
 
 to the '■ — ' term of the Supreme Qtj'Urt, that the errors alleged 
 
 to have been committed may be considered and corrected. 
 
 [If the judge is absent from home, or 'by other casualty fails to certify 
 the bill aC exceptions witlhin the time specified by law (and witTiout fault 
 of tlie party tendering), ihe may still sign and certify as soon as possi- 
 ble. §5562. If he determines that the bill of exceptions is not true, , or 
 does not contain all the necessary factlS', 'he shall return the same, within 
 ten days, to the pa;rty, or 'his attorney, with his objections to the same in 
 writing; and if thes'e otojectioiis are met and removed he may then certify, 
 expressing in Ms certificate the cause of th© delay. §5545.] 
 
 Within fifteen days from the date of the certificatfe of the judge, the bill 
 of exceptions must be filed in the office of the clerk where the case was 
 tried. ^5554. 
 
 Acknowledgment of Sekvice. 
 
 Due and legal service of the vsdtMn Bill of Exceptions acknowl- 
 edged; copy and all other and further notice and service waived. 
 This day of, , 1897. 
 
 Attorney for John Jones. 
 
 Post O'ffice, address: Macon, Ga. 
 
 IWittin ten days after the bill of exceptions is signed and certified, a 
 copy thereof shall be served upon the opposite party or his attorney, with 
 
436 GEOEGIA FOKMS 
 
 a return of sudh service (or acknowledgment of service) indorsed upon or 
 annexed to suoh bill of exceptions. §5547(1).] 
 
 SUPEESEDEAS BoND ; §5552. (1) 
 [State tlie case.] 
 
 Geoegia, Bibb County. 
 
 Know all Men by tlieee Presents: 
 That, wliereias a bill of excepti'ons tas been duly filed by W il- 
 llain Smith, as plaintiff in error in the above stated case; 
 
 jSTo^w, tberefore tlie ,6aid William Smith, as principal, and the 
 nuderaigned, Henry Thompson as surety, acknowledge themselves^ 
 jointly and severally bound unto the opposite party in said cause, 
 John Jones, for the payment of the eventual condettnniation money 
 and all subsequent costs. 
 
 In witness whereof they have hereunto set their hands and af- 
 fixed their seals, this — day of , 189 — . 
 
 Williani Smith, [L. S.J 
 Henry Thompson, [L. S.j 
 
 Attested and approved by me this — day of , 189 — . 
 
 Robert A. Nishct, 
 Clerk Superior Court Bihh County. 
 
 PAUPER AFFIDAVIT IN LIEU OF SUPERSEDEAS BOND; §5552(3). 
 
 Georgia, Bihl) County. 
 Personally comes William Smith, plaintiff in error in a bill of exceptions 
 
 ■ (filed: d'tt the ateove stated case, and on oatti says tiat he is unable, from, his 
 •poverty, t-opay the costs or give the security for the eventual condemna- 
 
 ■ tion money, and that his counsel ihas advised ihim that he has good cause 
 for a writ of error. Willia/m Smith. 
 
 Sworn to and subscribed before me, this day of . 189 — . 
 
 Affidavit in Fobma Pauperis; §5553. 
 
 I state the case.] 
 
 Georgia, Bibb Cou^jty. 
 
 Personally comes Williani Smith, plaintiff in eiTor in a bill of 
 exceptiong filed in the above sitated case, and on oath says that he 
 is, because of his poverty, unable to pay the costs in said case 
 
 William Smith. 
 , S^\■or^. to and subscribed before me, this — day of , iS!) — . 
 
 This, affidavit is for the purpose of carrying the case to the 'Supreme 
 Court without payment of. costs. If It does not conform to the statute, 
 counsel for plaintiff in error Is liable for the costs in the Supreme Court, 
 69 Ga. 661. ... 
 
AND PEAOTIOE. 437 
 
 (The pauper oath, to be effectual, must assert that the plaintiff in error 
 Is, because of his poverty, unable to pay the costs, and must not add con- 
 junctively that ihe is unable to do anything else. See §§5613, 5553.) 
 
 Within ten days of the filing of the bill of exceptions, the clerk must 
 make out a copy of sucih bill of exceptiO'ns, tO'getlher with a transcript of 
 the record, and transmit tih© somie duly certified to the clerk of thte Supreme 
 •Court as required in the judge's certificate. §5554. 
 
 Clerk's Certificate to Transcript op Eecord; 5607. 
 
 ■Clerk's Office, Superior Court ot Bibb Co'uuty. 
 
 Macon, Ga.,. — day of , 1897. 
 
 I heTehj certify that the foregoing twenty pages contain a true, 
 and complete transcript of such parts of tih© record in the case of 
 John Jones against WilUam Smith as are in the bill of exceptioins 
 specified. 
 
 "Witness my sigiiature and the seal of said court hereto affixed, 
 tliis 'the day and year above written. 
 
 Robert A. •'Nisbet, Clerk. 
 [Seal of the Court.] 
 (It frequently occurs in the Supreme Court tlhat it is useful for the 
 ■clerk's certificate to show when the court below adjourned.) 
 
 (Every transcript shall be plainly and legibly written or printed on white 
 paper, so as to be read without more tlhan ordinary strain or effort. If 
 written witlh pen or typewriter, the same must be done omly on one side of 
 each siheet. §5609. 
 
 The various parts of the transcript shall be arranged in the order of 
 time, — that is, the firgt docu'ment filed shall be foremost in the transcript, 
 and so on; masters copied from the minutes', such as verdicts, o^rdere, judg- 
 ments, etc., being also placfed in due order according to dates. §5610. 
 
 Clerk's Certifcate upon Original Bill of Exceptions; §5607. 
 Clerk's Office, Superior Court of Bibb County. 
 
 MfUMi, G-a., — day of , 1897. 
 
 I hereby certify tliat the foregoing is the true original bill of 
 ■except-icns, filed in this ofiice, in the case of John Jones against 
 'W'Ullomi Smith therein referred to; and that a copy thereof has 
 been made and is now of file in this office. 
 
 Witness my signature and the seal of said Court hereto affixed, 
 tliis the day and year above written. 
 
 Robert A. Nisbet, Clerk. 
 
 [Seal of the Court.] 
 
FORMS BASED ON 
 
 THE CRIMINAL CODE, 
 
 It was Dot part of the original plan of this work to deal with the Criminal Code at all, but 
 after the passage of the resolution supplying the book to the public officers to whom the 
 Code is furnished, good faith with the State seemed to require that some etEort should he 
 made toward facilitating the work of her three ihousand Justices of the Peace, in those matters 
 wherein they are called upon, almosUdaily, to administer laws governing personal liberty. 
 
 In addition to subjects of the kind referred to, Habeas Corpus Proceedings hare also been 
 included. 
 
 A form for an affidavit to obtain a warrant for the arrest of an offender 
 against the penal laws will be found in §884 of the Penal Code. It only re- 
 mainB to add that whan tihe -offense oliarged is larceny, the ownersihip of 
 the property alleged to have been stolen should be stated. §883. 
 
 A form for a criminal warraait is set fortlh in §885, and a form for a com- 
 mitment in §886. 
 
 APPEARANCE BOND FOR CRIMINAL CASE; §922, P. C. 
 (Capital offenses are only bailable before a judge of the Superior Court.) 
 Georgia, Bibb County. 
 Know all men by these presents: 
 
 That we, A. B., principal, and C. D., security, acknowledge ourselves 
 jointly and severally bound to his Excellency, W. Y. Atlcinso-n, Governor of 
 
 Georgia, and liis successors in office; in the sum of dollars, subject 
 
 to the following conditions: Wlhereas a 'warrant for the offense of 
 
 has been issued against the said A. B. by J. A. Thomas, justice of the peace 
 in and for said county, ui>on the affidavit of C. D., 
 Now should the said A. B. appear before the next superior court for said 
 
 county, to be held on the — Monday in , 189 — , and from term to term 
 
 thereafter, to answer to such charge as may be preferred touching the 
 premises, and not depart thence without leave of the court, then this 
 bend to be void. 
 
 Witness our hands and seals this the • day of , 189 — . 
 
 A. B. 
 C. D. 
 
 A justice who commits a'prlsoner to jail, or binds him for his appearance 
 at the superior or city court, tO' answer a criminal offense, shall make out 
 a bill of costs which may have accrued In the court below, and send it up 
 with the other papers in the case. §925 P. C. The same section makes it 
 the duty of the clerk of the superior court to tax the same along with the 
 other costs in the case, and further makes it the duty of the sheriff of the 
 county to collect the costs due the justice and constable, with the other 
 costs in the case, and pay them over to the officer entitled thereto. 
 
 If the accused should be discharged for want of sufficient cause of com- 
 mitment, the justice may, in his discretion, direct the costs to be paid by 
 the prosecutor. §925 P. C. The justice, in exercising such discretion, is 
 not liable for errors of judgment, though he must not act malic'iously or 
 corruptly. 56 Ga. 677. 
 
AND PRACTICE. 439 
 
 JUDGMENT DISCHARGING DEFENDANT IN CRIMINAL, WARRANT, 
 AND TAXING COSTS AGAINST PROSECUTOR; §925 P. C. 
 
 Georgia, Bihb County. 
 
 C. D. having been arrested on a wiarrant for Hie offense of , and 
 
 brought before me, after hearing evidence, it is ordered that he be dis- 
 charged for want of sufiBcient cause oif commitment. 
 
 Ordered further that the prosecutor, A. B., do pay the costs, to wit: 
 
 dollars and cents. 
 
 Witness my hand and official seal, this day of , 18 — . 
 
 J. A. THOMAS, J. P. 
 
 PETITION FOR HABEAS CORPUS; §1211 PENAL CODE. 
 
 Georgia, Biib County. 
 
 To the Honoinable W. H. Felton, Jr., Judge of the Superior Courts of the 
 
 Maoon Circuit: 
 
 The petition of A. B. respectfully shows: 
 
 (1). That C. D. is restrained of his liberty (or "is kept illegally from the 
 custody of petitioner.") 
 
 (2). The person restraining the liberty of the said C. D. is E. F.; the 
 mode of restraint is (give the details); and the place of detention is at 
 (sitate It as nearly as practicable) in the county of Bi66. 
 
 (3). The cause or pretense of said restraint is as follows (if the restraint 
 be under pretext of legal process, a copy of the process, if within the power 
 of the applicant, must be annexed to the petition) . 
 
 (4.) Petitioner says that the said restraint of the sold C. D. by the said 
 E. F. is illegal (distinctly averring wherein the illegality consists, or giving 
 other reason wihy the writ of habeas carpus is sought.) 
 
 Wherefore, petitioner prays that Your Honor grant the writ of habeas 
 carpus requiring the said B. F. to bring thte said C. D. before you, at a time 
 and place to be specified In the writ, for the purpose of an examination 
 into the cause of the detention. A. B. 
 Georgia, Bibb County. 
 
 Personally cojnes A. B., who being duily sworn, deptoses and says that the 
 allegations contained in the ft>regpiing petition for habeas corpus are true. 
 
 Sworn to and subscribed before me, this day of , 189 — . 
 
 WRIT OF HABEAS CORPUS; §1214, P. C. 
 
 State op Georgi.a., I tq a g . 
 
 County. |i * " 
 
 Tou are hereby comimanded to produce the body of 0. D., alleged to be 
 illegally detained by you, together with the cause of the detention, before 
 
 me, on the day of , at , then and there to be disposed of 
 
 as the law directs. 
 
 Given under my hand and official signature, this the day of 
 
 (Signed by the Judge.) 
 
 RETURN OF SERVICE; §1216, P. C. 
 
 Georgia, Btbl) County. 
 
 I have this day served the within writ of habeas corpus upon E. F. by de- 
 livering a copy thereof to him personally [Or, "by leaving a copy theretof at 
 
440 GEOKGIA FORMS 
 
 tlhe same being tie place in wlidcli C. D. is alleged to be dertained; 
 
 personal service could not be effected."] 
 
 This day of . 189—. 
 
 L. B. EERBINGTON, Deputy Sheriff. 
 
 The writ may be served by an officer or by amy private citizen. In the 
 former case, the above stated entry of service need only be offloially signed 
 by tih'e officer; bu)t vrtiiere a private citizen serves the writ (he ahould make 
 affidavit to the above entry of service before some officer authorized to ad- 
 minister oatihs, thus: 
 
 AFFIDAVIT TO SERVICE BY UNOFFICIAL PERSON; §1216 P. 0. 
 
 Georgia, BiM Co^lnty. 
 
 PersonaHy comes G. H., who, on oatJi, says that the statements conltained 
 in the foregoing entry are true. G. H. 
 
 Sworn to and subscribed before me, this the day of , 189 — . 
 
 AFFIDAVIT FOR SEIZURE OF PERSON DETAINED; §1217, P. 0. 
 
 Georgia, Bihh County. 
 
 Personally comes A. B., wlho, being duly sworn, xieposes and says that 'he 
 has reasion to apprehend that E. P. will remove C. D. beyond the limits of 
 the county of BiJ}l) or conceal him from the officers of the law. A. B. 
 
 PRECEPT TO ARREST PERSON DETAINED; §1217, P. C. 
 
 Georgia, Biljh County. 
 
 To the Sheriff,- Deputy Sheriff, Coroner, or any lawful Constable of said 
 
 A. B. having flled along with the petition upon wlhioh the accompanying 
 writ of halxeas corpus issued, his affidavit that he has reason to apprehemd 
 that E. F. will remove C. D. beyond the limits of the county, or conceal 
 him froim the officers of the law, you are hereby required to search for and 
 arrest the body of the said C. D. aind bring him before me. Herein fail not. 
 
 Witness my official signature this day of , 189 — . 
 
 W. H. FELTON, Jr., J. S. C. M. C. 
 
 ANSWER TO WRIT OF HABEAS CORPUS; §1218, P. 0. 
 
 A. B. vs. E. F. — Petition for ihalbeas corpus before his Honor, W. H. Felton, 
 
 Jr., Judge of the Superior Courts of the Macon Circuit. 
 
 And now comes E. F., and admits the custody or detention of C. D., and 
 herewith produces the iody of the eaSd C. D . 
 
 Respondent denies that the said C. D. is restrained cf his liberty' (of kept 
 illegally from the custody of A. B.), but alleges on tbe contrary that he, 
 respondent, is legally entitled to the custody of the said C. D. for the fol- 
 lowing reasons, to wit: (stating reasons). 
 Georgia, Bitib County. 
 
 Personally comes E. F., who, on oath, says that the allegations contained 
 in the foregoing return are true. 
 
 Sworn to and subscribed hefore me, this day of , 189 — . 
 
 JUDGMENT. 
 [State the case.]' 
 The above stated cause coming on regularly to be heard, after due and 
 legal notice to all parties concerned, upon hearing the evidence 
 
AND PKACTICE. 441 
 
 It is o'on'sldered and adjudged that the custody of the said C. D. be and 
 the same is hereby awarded to A. B. 
 
 Ordered further <that' E. F. pay the costs of tJiis ppoceeding. 
 
 Ordered further that these proceedings be returned to the clerk of the 
 superior court of Bibl) county, and that the same be 'by him recorded. 
 
 This day of , 189—. 
 
 W. H. FELTON, Jr., J. S. C. M. C. 
 
 AFFIDAVIT FOR WARRANT FOR GOOD BEHAVIOR; §1235, P. C. 
 
 Georgia, Bibl) County. 
 
 Before me, a judicial officer authorized to 'hold a court of inquiry in and 
 for said oounity, personally appeared A. B., who, on oath, says ttiat the con- 
 duct of a certain person in said oounty, to wit: C. D., is such as to justify 
 the belief that the safety (or, "'the peace" or "the property")- of E. F. of 
 said county, is in danger of being injured or disturbed thereby. 
 
 Sworn to and subscribed before me, tlhis day of , 189 — . 
 
 J. A. THOMAS, J. P. 
 , WARRANT FOR GOOD BEHAVIOR; §1235, P. C. 
 Georgia, BiW County. 
 To any Sheriff , Deputy Sheriff, Coroner, Constable, or Marshal of said 
 
 State — Greeting : 
 
 A. B. having m^de affidavit bi^fore me, pursuant to the provisions of 
 ^1235 of t!he Penal Code, alleging that the conduct of C. D. is such as to 
 Justify the belief that the safety (or, "the peace"; or, "property") of E. P., 
 ■of said county, is in danger -of being injured or disturbed. 
 
 Now therefore, you are hereby commanded to arrest the body of the 
 •said C. D., and bring him before me, or some other judicial officer of this 
 State, to be dealt with as the law directs. Herein fail not. 
 
 Witness my official signature this day of , 189 — . 
 
 J. A. THOMAS, J. P. 
 
 BOND FOR GOOD BEHAVIOR; §1235, P. C. 
 
 ■Georgia, Biib County. 
 
 Know all men by these presents, thai we, C. D., principal, and G. H., 
 surety, are jointly and severally bound unto his Excellency, W. 7. AtMn- 
 
 son. Governor of Georgia, and his successors in office, in the sum' of 
 
 dollars, for the good be(havior of the said C. D. toward E. F. until the expir- 
 ation of the next term of the superior court of said county. 
 
 Witness our hands and seals, this ■ ■ day of , 189 — . 
 
 C. D. (L. S.) 
 G. H. (L. S.). 
 
 AFFIDAVIT TO OBTAIN PEACE WARRANT; §1238, P. C. 
 
 ■Georgia, Bibb County. 
 
 Before me, a judicial officer authorized tb hold a court of inquiry in and 
 for said cbunty, personally appeared A. B., who, on oath, says, that he is 
 in fear of bodily hai-m to himself (or, "his family,") (or, "in fear of violent 
 injury to his property"), from C. D., of (or, "now in") said county. A. B. 
 
 Sworn to and subscribed before me this day of , 189 — . 
 
 J. A. THOMAS, J. P. 
 
442 GEORGIA FOEMS 
 
 PEACE WARRANT; §1238, P. C. 
 
 Georgia, Bj,bb Coumty. 
 
 To any Sheriff, Deputy Sheriff, Coroner, Constable or Marsiial of said 
 State — Greeting : 
 
 A. Behaving made affidavit before me, pursuant to the provisions of 
 §1238 of tihe Penal Code, thait he is in fear of bodily harm to Mmself (or,- 
 "Ms family"), (or, "in fear of violent injury to his property"), froifi one- 
 C. D., of (or, "now in") said county. 
 
 Now, therefore, you aire hereby commanded to arrest the body of the said; 
 C. D., and bring Kirn before me, or sioane other judicial officer of this StaAe, 
 to bfe dealt with as the law directs. Herein fail not. 
 
 Witness my official signature this day of. ^. 189 — . 
 
 J. A. THOMAS, J. P. 
 
 JUDGMENT; §1238, P. C. 
 
 The State vs. C. D. — Peace Warrant, issiued upon affidavit of A. B. 
 
 Upon the return of the above stated warrant, the court being satisfied, 
 upon, hearing the evidence of both parties, that proibable cause for fear of 
 harm exists as alleged In t(he affidavit of A. B., 
 
 It is ordered that C. D. be, and 'he is- (hereby, required to give bond, with, 
 good security, in the sum of $ , to keep the peace as against the per- 
 son, family and property of A. B.; and that, upon failure to give such, 
 bond, he be committed to jail. 
 
 This • day of , 189—. 
 
 J. A. THOMAS, J. P. 
 
 Whether the judgment should lurther provide for payment" of costs, seems ! to be a. 
 doubtful question. It seems to turn on "Whether tlie proceeding is a "criminal" one- 
 ^1110, P. C.), and -whether the hearing by the Justice of the Peace is a " final trial" (§13, P. C.) 
 The author's opinion, in which Judge Bleckley authorizes the statement that he concurs, is^ 
 that the judgment may lawfully tax the accused with the costs when the bond is required, 
 of him, and may tax them against the accuser when the accused is discharged. 
 
 BOND TO KEEP THE PEACE; §1238, P. C. 
 
 Georgia, BihT) County. 
 
 Know all by these presents: 
 
 Ttiat, we, C D., principal, and E. F., surety, acknowledge ourselves 
 jointly and severally bound unto his Excellency, W. 7. Athinson, Governor 
 of Georg'ia, and liis successors in office, in the sum of $ , upon condi- 
 tion that if the said C. D. sliall keep the peace as against the person, faanily, 
 and property of A. B. then this bond 'to be void. 
 
 Witness our liands and seals this day of . 189 — . 
 
 C. D. (D. S.) 
 E. F. (L. S.) 
 
 COMMITMENT; § 1238, P. C. 
 
 Georgia, Bihb County. 
 
 C. D., having been arrested on a peace warrant and brougiht before me, 
 and ^having been duly required, pursuant to the provisions of §1238 of the 
 
 Penal Code, to give bond witih good security in the sum of $ , to keep 
 
 the peace as against the person, family and property of A. B., and having 
 failed to give said bond, the said C. D. is hereby committed to tihe common 
 jail of said county, and the jailer of said county is required to receive and 
 safely keep him until disctoarged according to law. 
 
 This day of , 189—. 
 
 J. A. THOMAS, J. P. 
 
AND PKAOTIOE. 44a 
 
 AFFIDAVIT TO OBTAIN SEARCH WARRANT; §1243, P. C. 
 
 Georgia, BWh County. 
 
 Persioinally come A. B., who, on oath says that certain personal projwrty, 
 
 to wit: has recently been taken from his possession by criminal 
 
 means, and carried away, and that he verily believes, and has probable 
 cause to believe that the said property is no^sr concealed in a dwelling (or, 
 
 office; or, store; &c.) occupied by C. D., located at , in the county of 
 
 Bihb, said State. 
 
 Sworn to and subscribed before me, this day of , 189 — . 
 
 J. A. TBOMAS, J. P. 
 SEARCH "WARRANT; §1243, P. C. 
 
 Georgia, Biib County. 
 Tji anyL-SherlfE. Denuty Sheriff. Coroner. Constable, or Marsihal nf aaiA 
 
 In a case not yet reported, Levar vs. the State, October term, 1897, the Supreme Court has 
 held that It is not lawful to collect costs in a peace-warrant case until after the same shall 
 have been returned to and passed upon, by the Superior Court. 
 
 ^i.^,e,.ra,uu vYiiii d onci,ara- uiiua ttw nas Deen aenverea or a Dastard ohild, as 
 the case may be), which ohild it is probable will become chargeable to the 
 county aforesaid, and that C. 0. is the father of said child. A. B. 
 
 Sworn to and subscribed beifore me this day of , 189 — . 
 
 C. C. BALKCOM, J. P. 
 WARRANT; §1249, P. C. 
 
 Georgia, Bibb County. 
 
 To the Sheriff or any Cons.table of said County: 
 
 A. B., of said coimty, having made oath before me that she is pregnant 
 with a bastard child (or has been delivered of a bastard cihild, as the case 
 may be), which child it is probable will become chargeable to said county, 
 and that C. D. is the father of said child: 
 
 You are hereby commanded to arrest the body of the said C. D. and 
 bring him before me, to be dealt with as the law directs. 
 
 Given under my hand and seall this day of , 189 — . 
 
 C. C. BALKCOM, J. P. 
 
 JUDGMENT REQUIRING BOND OF BASTARD CHILD'S FATHER; 
 
 §1250, P. C. 
 Georgia, Bibb County. 
 
 C. D. having been arrested and brought before me upon a wairant, pur- 
 suant to §§ 1248 and 1249 of the Penal Code, issued at the instance of A. B.,. 
 the mother of a certain bastard child, which warrant chajges said C. D. 
 with being tlhe. father of said child,, after hearing evidenice, it is ordeire<i 
 
444 GEORGIA FORMS 
 
 that tlie said C. D. give security for tihe maintenance and education of 
 said (iliild until it arrives at the age of fourbeen years, [and (where 
 tlie cliild is unborn), "for tie expense of lying-iu with suclh ehild 
 boarding, nursing and maintenance while the mother is confined."] 
 
 0. 0. BALKOOM, J. P. 
 
 BOND FOR MAINTENANCE AND EDUCATION OF BASTARD CHILD; 
 
 §1250, P. C. 
 Georgia, Bibb County. 
 
 Know all men by t)hes© presents: 
 
 That we, C. D., principal, and E. F., siecurity, acknowledge ourselves 
 jointly and severally bound to C. M. Wiley, ordinary of siaid county, and 
 his successors in office, in the sum of seven hundred and fifty dollars, sub- 
 ject to the following conditions: 
 
 Whereas A. B. has made affidavit before G. 0. Balkcom, justice of the 
 peace for said county, charging said C. D. with being the fatJier of 
 
 her bastard cihild now of the age of (or, "yet unborn," as the case 'may 
 
 be), upon the hearing whereof the said justice required said C. D. to give 
 security for the maintenance of said child, pursuant to §1250 of the Penal 
 Code: 
 
 Now, should the said C. D. duly provide for the maintenance and educa- 
 tion of said child until it arrives ait the age of fourteen, years [and (where 
 the child is yet unborn) "also the expense of lying-in with suoh child, 
 boarding, nursing and maintenance, while the mother is confined by reason 
 thereof"], then this bond to be void. 
 
 Witness our hands and seals this day of , 189 — . 
 
 Attested and approved: C. D. (L. S.) 
 
 C. G. BALKOOM, J. P. B. P. (L. S.) 
 
 JUDGMENT REQUIRING BOND FOR APPEARANCE; §1250, P. C. 
 Georgia, Bibb County. 
 
 C. D. having failed to give the security required in the foregoing order, 
 it is ordered that he give bond and security in the sum of $ , to ap- 
 pear before the next superior court of said county to answer such com- 
 plaint as may be then and there alleged against him touching the premises. 
 
 This day of '■ , 189—. 
 
 0. 0. BALKOOM, J. P. 
 BOND FOR APPEARANCE; §1250, P. C. 
 Georgia, Bibb County. 
 
 We, C. D., principal, and E. P., security, acknowledge ourselves jointly 
 and severally bound to his Excellency, W. T. AtMnson, Governor of Geor- 
 gia, and his succeHsprs in office, in th© sum of dollars, subject to the 
 
 following conditions: 
 
 Whereas, A. B. has heretofore, made, before G. 0. Balhcom, J. P. 
 an affidavit charging C. D. with being the faither of her bastard child, upon 
 the hearing whereof the said C. D. was required to give bond, pursuant to 
 §1250 of the Penal Code, Which he has failed to do: 
 
 Now, shouild the said C. D. appear before the next superior court of said 
 
 county, to be held on the Monday in , 189 — , and from term to 
 
 term thereafter, to answer such complaint as may be then and there aJl- 
 leged against him. touching the premises, and not depart thence with- 
 out leave of the court, then this bond to be void. 
 
 Witness our hands and seals this day of , 189 — . 
 
 C. D. (L. S.) 
 B. F. (L. S.) 
 
INDEX. 
 
 The references are to tlie pages. The tiook is not sectioned. 
 This is an index of forms. All items herein intended to refer to matter 
 other than forms show such intention on their face. 
 
 ABANDONMENT. 
 
 Divorce, petition for 95 
 
 ABATEMENT OF ACTIONS. See 
 Pleas. 
 
 ABATEMENT OF NUISANCES. 
 
 Petition to magistrates 369 
 
 Summons 359 
 
 Order abating 361 
 
 Mill-dam, affidavit to abate 360 
 
 ACCEPT ANCE. 
 
 Draft intended for 263 
 
 Notice of protest 264 
 
 Certificate of protest 265 
 
 ACCORD AND SATISFACTION. 
 
 Plea of ;., 403 
 
 ACCOUNT. 
 
 Complaint on, in justice's court. . . . 279 
 
 in superior court. . . 397 
 
 ' ounter-affidavit to 282 
 
 Bank, among a decedent's debts . . 231 
 
 ACCUSED. See Criminvl Warrant 
 ACKNOWLEDGMENT. 
 
 Clause of, for deeds 254-6 
 
 for mortgages 142 
 
 Of service, see Petitions, Certiorari, 
 Interrogatories, ^c, ^c. 
 
 ACTIONS. See Attachment. Com- 
 plaint. Petition. 
 
 Breach of contract, suit fur 280 
 
 by emplo\-er. . . . 198 
 
 Child, homicide of, complaint for. . . 398 
 
 Divorce petition , . 88 
 
 Justice court actions. ." 275 
 
 Limitations of, law as to 403 
 
 Petitions, common forms of 391 
 
 ADMINISTRATION OF ASSETS. 
 
 Creditor's bill 140 
 
 .ADMINISTRATION OF ESTATES. 
 See also Administrator, below. 
 
 Appraisers, order appointing 227 
 
 warrant. ,. 227 
 
 return 229 
 
 Caveat to application for 224 
 
 Debts, order of payment of 230 
 
 Distributees' nomination of adm'r. . 225 
 
 -Distribution in kind, petition for. . . 245 
 
 Distribution — rules of inheritance. . 216 
 
 Expenses of, rank of, tabulated .... 230 
 
 Inventory of estate 227 
 
 Payment of debts, order stated .... 230 
 
 Permanent letters 224 
 
 Temporary letters 219 
 
 Tear's support, application for .... 240 
 
 ADMINISTRATOR. See also Adminis- 
 tration of Estates, above. 
 
 Additional security, petition for . . . 225 
 
 Advertisement of perishables 235 
 
 Advertisement of sale of land 237 
 
 Agent, power of attorney to • 239 
 
 Annual returns 229 
 
 Application for temporary letters . . 218 
 
 for permanent letters. . 220 
 
 Appointment, rules governing .... 221 
 
 Appraisement warrant 227 
 
 Attorney, power of, by 239 
 
 Bond., 223 
 
 Bond, petition to strengthen 225 
 
 Bond for title, proceedings on 232 
 
 Choice of, (written), by distributees. 225 
 
 , Claim affidavit to stop sale by .... 325 
 
 Commissions, law governing 247 
 
 Creditors, notice to 23b 
 
 Deed, pursuant to bond for title .... 233 
 
 Debtors and creditors, notice to ... . 230 
 
 Debts, bad. petition by to sell 235 
 
 Defaulting, proceedings against. . . . 225 
 
 Dismission, petition for , . 250 
 
 Execute title, petition to require.. . . 232 
 Executors, same laws govern. 
 
 Code §3316. 
 
 Extra compensation, law as to..., 247 
 
 Funds idle, petition to invest . . . 231 
 Garnishm't vs. adm'r, affidavit for, 
 
 Code §4735. 
 
 Insolvent papers, petition to sell. . . 2.S5 
 
 order 236 
 
 advertisement . . . 236 
 
 Interest charged against, rule 248 
 
 Inyentory of estate by adm'r ,..,.. 227 
 
 Investment in lands, petition for. . . 231 
 Judgment against, de bonis iesiatoris. 248 
 
 Judgment against, de bonis propriis. 249 
 Judgment against, quando acciderint. 249 
 
 Land, petition to^ell 236 
 
 advertisement of petition.. . . 237 
 
 order granting leave 237 
 
 advertisement of sale 237 
 
 deed ; . . . 238 
 
446 
 
 INDEX. 
 
 ADMINISTRATOR (Continued). 
 
 Letters dismissory 251 
 
 Letters permanent 224 
 
 Letters temporary 219 
 
 Nomination of, by distributees , , 225 
 
 Notice to debtors and creditors .... 230 
 
 Oatb 223 
 
 Partition, petition for 245 
 
 Peiisbables, petition to sell 234 
 
 advertisement 235 
 
 Pleas, Ne ungues. 249 
 
 No assets 250 
 
 Plene adr^imstravii 250 
 
 Plene adminisiravii praeier . . 250 
 
 Power of attorney by 239 
 
 Priority of debts, law fixing 230 
 
 Bemoval, petition for 225 
 
 order removing 226 
 
 Besignation, petition tendering . . . 252 
 
 order allowing 253 
 
 Returns, annual , 229 
 
 Rules for appointing 221 
 
 Sale of bad debts, petition for 235 
 
 advertisement . . . 236 
 
 Sale of land, petition for 236 
 
 powerof attorney for. . 239 
 
 Sale of perishables, petition for .... 234 
 
 Sale of insolvent papers, pet'n for. . 235 
 
 Sale, claim affidavit to stop 325 
 
 Selection (written) by distributees. . 225 
 
 Settlement, petition citing to 247 
 
 judgment 248 
 
 Strengthen bond, petition to 225 
 
 order 226 
 
 Support (year's), application for. . 240 
 
 Temporary, petition for app'tm't. . . 218 
 
 order appointing 218 
 
 letters 219 
 
 bond 223 
 
 Title, petition to require to make. . . 2S2 
 
 notice 233 
 
 order 233 
 
 Year's support, application for .... 240 
 
 ADMISSION TO THE BAR. 
 
 Application for 287 
 
 Certificate to application . . . ; 287 
 
 Certificate to course of study 287 
 
 Oath of attorney 288 
 
 License 288 
 
 Slaton act of 1897 288 
 
 ADOPTION. 
 
 Of child, petition for 105 
 
 Of adult, proceeding for 105 
 
 ADULT. 
 
 Indenture of apprenticeship 127 
 
 Proceeding to adopt 106 
 
 ADULTERY. 
 
 Divorce petition for 88 
 
 ADVERTISEMENT. See Execution 
 , and Service byPublicaiion. 
 
 Of sale under power in deed 154 
 
 AFFIDAVIT. 
 
 Attachment, to obtain 300 
 
 Bail, to obtain 317 
 
 Forcible-entry and detainer 386 
 
 Foreclosing chattel mortgage ,. 155 
 
 ' Forclosing lien on personalty 172 
 
 Of tak«r up of estray 24 
 
 of ownership 26 
 
 Pauper's, see Appeals, Certiorari, 
 
 Claims, &c. 
 Unsecured creditor's attack'g raort'e. 161 
 
 AGENCY. 
 
 Power of attorney 196 
 
 Power of attorney, by adm'r 239 
 
 ALIENS. 
 Naturalization proceedings 29-32 
 
 ALIMONY. 
 
 Petition for 89 
 
 Verdict 97 
 
 Judgment 97, 99 
 
 AMENDMENT. 
 
 Of charter, petition for. . . , 34 
 
 certificate 34 
 
 ANNUITY TABLE. 
 
 Form for jury charge as to use of . . 267 
 The table itself. 268 
 
 ANNULMENT OF MARRIAGE. 
 
 Equitable petition for (bigamy). . . . 102 
 Equitable petition for (non-age)... 103 
 
 ANSWER. 
 
 Defendant's, to plaintiff's petition.. , 402 
 Magistrate's, to certiorari 331 
 
 APPEAL. 
 
 Affidavit in forma pav/peria 290 
 
 Appeal and bond 289 
 
 Bond,of appellant 289 
 
 APPEARANCE BOND. 
 
 Criminal 438 
 
 APPRAISEMENT OF JESTATES. 
 
 Decedent's estate, warrant for 227 
 
 Administrator's inventory 227 
 
 Return of appraisers 229 
 
 APPRENTICESHIP. 
 
 Adult, indentures by 127 
 
 Minor, application to bind out,... 128 
 
 indenture by ordinary 129 
 
 indenture by -parent 130 
 
 Orphan, proceedings to bind out. . 130 
 
 ARBITRATION AND AWARD. 
 
 Submission , 294 
 
 Arbitrators' oath 296 
 
 A ward 297 
 
 Exceptions 298 
 
INDEX. 
 
 447 
 
 ARREST. 
 
 Criminal Warrant, §885, P. C. 
 ARTIOLES OP PARTNERSHIP. 
 
 Partnership contract 131 
 
 ASSETS. 
 
 Administration of, creditor's bill . . 140 
 ASSIGNMENT. 
 
 Deed of, for benefit of creditors. ... 134 
 ASSIGNMENT OF DOWER. 
 
 Proceedings for 334 
 
 ASSIGNMENT OF ERROR. 
 
 Bill of exceptions 433 
 
 ASSOCIATIONS. See Corporations. 
 
 ATTACHMENT. See Claims, Garnish- 
 ment. 
 
 AfSdavit to obtain 300 
 
 Bond to obtain 303 
 
 Affidavit attacking bond to obtain . . 305 
 
 Bond of defendant to replevy 315 
 
 Declaration in attachment 312 
 
 Fraudulent debtor, petition against. 310 
 
 Notice to defendant 314 
 
 Purchase money, affidavit to obtain. 308 
 
 garnishment .... 309 
 
 Traverse of plaintiflF's affidavit .... 315 
 
 Writ of attachment 306 
 
 ATTESTATION CLAUSE. 
 
 Of deeds 254-6 
 
 Of mortgages 142 
 
 Of wills 204 
 
 ATTORNEY. 
 
 Power of, to execute mortgage .... 147 
 
 to sell land 196 
 
 to sell slocks 196 
 
 by administrator 239 
 
 Lien, claim of, on realty 169 
 
 ATTORNEYS AT LAW. 
 
 Application for admission 287 
 
 Application admission Supreme Ct. 288 
 
 AWARD. 
 
 Of arbitrators 297 
 
 Order to enter on minutes 298 
 
 Exceptions 298 
 
 BAD DEBTS. 
 
 Administrator's petition to sell .... 235 
 
 Advertisement of sale 236 
 
 BAIL. See Trover. 
 
 _ Affidavit to obtain 317 
 
 ' Bond of defendant 318 
 
 Petition, by imprisoned defendant . 319 
 
 Recognizance 320 
 
 3ANKS. See Notice, Protest, ic 
 
 Charter 39 
 
 Incorporation, proceedings for ... . 37 
 
 BANK CHECK. 
 
 Ordinary check 263 
 
 BAR. 
 
 Application for admission 287 
 
 Application admission Supreme Ct. 288 
 
 BARRED. 
 
 When notes, &c., are, law as to. . .403-4 
 BASTARD. 
 
 Petition by parent to legitimate 104 
 
 BIGAMY. 
 
 Petition to annul marriage for .... 102 
 
 BILL OF EXCEPTIONS. 
 
 Direct and to refusal of new trial. . 4?3 
 
 BILL OF EXCHANGE. 
 
 Ordinary bill of exchange 263 
 
 Notice of protest 264 
 
 Certificate of protest 265 
 
 BILL OF LADING. 
 R.R. B/L. (annotated) 66 
 
 BILL OF SALE. 
 
 Conditional 167 
 
 CIn the conditional bill on p. 167, in the 
 clause" the vendor shall in no event 
 be entitled, &c.,'' the word "vendor" 
 should be " vtndee.") 
 
 To secure debt 164, 260 
 
 To personalty (general) 259 
 
 BINDING OUT. 
 
 Adult, indenture by . 127 
 
 Minor^ petition to bind out 128 
 
 Indenture of minor, by qrdinary. . . 129 
 
 BLOW POST. 
 Law of, declaration based on 51 
 
 BOND. 
 
 Administrator's bond 223 
 
 Administrator's, order to strengthen 226 
 
 Appeal bond 289 
 
 Appearance bond (criminal) 438 
 
 Appearance bond (bastardy case) . . 444 
 
 Attachment bond 303 
 
 Bail bond 318 
 
 Contractor's bridge bond 15 
 
 Certiorari bond 327 
 
 Claim bond 321 
 
 Claim bond to dissolve garnishm't. . 344 
 Creditor's, whoattaeks mortgage . , 162 
 
 Distress warrant, defendant's 385 
 
 Estray bond 26 
 
 Executor, petition to require of . . . . 215 
 
 For good behavior 441 
 
 Forthcoming, in claim case 322 
 
 in illegality 420 
 
 in possessory war'nt . 374 
 
 Garnishment, bond to obtain 338 
 
 to dissolve 341 
 
448 
 
 INDEX. 
 
 BOND (Continued). 
 
 Guardian's bond 
 
 Keplevy, in attachment 
 
 Keplevy, in illegality to mortgage. . 
 
 . Replevy, in lien foreclosure ;. 
 
 Supersedeas bond of pl'ff in error. . 
 
 Tenant's bond in proceed'g to evict. 
 
 in distress vfarrant , . 
 
 To keep the peace 
 
 To maintain bastard 
 
 To stay execution 
 
 BOND FOR TITLE. 
 
 Adm'r, pet'n to require to execute. , 
 Bond for title by a vendor 
 
 BOOKS AND PAPERS. 
 
 Notice to produce 
 
 BREACH OF CONTR"ACT. 
 
 Suit for, in justices' courts 
 
 Of employment, law as to 
 
 BREACH OF WARRANTY. 
 
 Petition for damages for 
 
 BRIDGES, FERRIES, ETC. 
 
 Bond of contractor 
 
 Complaint against bridge owner. 
 
 BUSINESS FAILURES. 
 
 Assignment, deed of 
 
 Creditor's bill 
 
 112 
 315 
 160 
 179 
 436 
 381 
 385 
 442 
 444 
 421 
 
 232 
 166 
 
 405 
 
 280 
 198 
 
 394 
 
 15 
 16 
 
 134 
 140 
 
 CANAL COMPANIES. 
 
 Charter 
 
 CAR COUPLER. 
 Complaint by, for injuries 
 
 CARLISLE MORTALITY TABLE. 
 
 Instructions for using (Lumpkin, J.) 
 The table itself 
 
 CARRIERS. See Railroads. 
 CATTLE-GUARD. 
 
 Notice to R. 11. to build 
 
 40 
 
 74 
 
 267 
 268 
 
 CAVEAT. 
 
 To application for administration 
 To will 
 
 CERTIFICATE. 
 
 To bill of exceptions, by judge 
 
 by clerk 
 
 To notarial character by elk. supr. ct. 
 by Sec. ol State 
 
 CERTIORARI. 
 
 56 
 
 224 
 213 
 
 435 
 437 
 258 
 258 
 
 Petition for 
 
 Affidavit to petition 
 
 Bond 
 
 Certificate as to payment of costs 
 
 Sanction : 
 
 Writ 
 
 326 
 327 
 327 
 328 
 329 
 330 
 
 CERTIORARI (Continued). 
 
 Notice of sanction , 330' 
 
 Waiver of notice of sanction 330 
 
 Answer of magistrate to 331 
 
 Exceptions to answer 331 
 
 Traverse of answer 832 
 
 Order disposing of petition 333 
 
 Judgment entered up thereon .... 33& 
 
 CHANGE OF NAME. 
 
 Proceeding to change (one's own) 104 
 Proceeding to change (one's child's) 104 
 
 CHARGES TO JURY. 
 
 On Lite Tables, by Justice Lumpkin 26T 
 
 CHARTER. 
 
 Bank m 
 
 Business corporation of ordinary 
 
 kind 85 
 
 Canal company 40- 
 
 Church 8& 
 
 Express company 41 
 
 Granted by superior court 85 
 
 Insurance company 42: 
 
 Mercantile company 85 
 
 Navigation company 45- 
 
 Railroad 48 
 
 CHATTEL MORTGAGE. See Mortgage. 
 
 Affidavit of illegality to 159- 
 
 Chattel mortgage fi. fa 1.58- 
 
 CHECK. 
 
 Ordinary bank check 263- 
 
 Difference from draft stated 263 
 
 CHILD. 
 
 Adoption, petition for 105- 
 
 order 105- 
 
 Bastard, petition to legitimate 104 
 
 order legitimating 104 
 
 Indenture by parent apprenticing. . 130 
 
 Name, petition to change 104 
 
 CHOSE IN ACTION. 
 
 Definition of 261 
 
 CHURCH. 
 
 Charter 86 
 
 Incorporation, petition for 86 
 
 CITIZENSHIP. 
 
 Naturalization proceedings 29 
 
 CLAIMS. 
 
 Affidavit of claimant 321 
 
 Claim bond ' ' 321 
 
 Doubtful, adm'r's petition to sell .... 235 
 
 Executor's sale, affidavit to stop . . . 325 
 
 Forthcoming bond [ 322 
 
 Joinder of issue in claim case 324 
 
 Of lien on realty, by mechanic 169 
 
 Oathof juror in claim case 325 
 
 Pauper affidavit ' 324 
 
 CODE PLEADING. See PeiiUoii. 
 
INDEX. 
 
 449 
 
 COMMERCIAL NOTARIES PUBLIC. 
 
 Notice of protest 264 
 
 Certificate of protest 266 
 
 COMMISSION. 
 
 To talse interrogatories 407 
 
 To talc« deposit'ns in cities of 20,000 410 
 
 COMMISSION OF LUNACY. 
 
 Proceeding as to 124 
 
 COMMISSIONS. 
 
 Of administrators, law concerning. 
 Real estate broiler's suit for 
 
 247 
 392 
 
 COMMITMENT. 
 
 Of accused, see Penal Code, §886. 
 
 COMMON CARRIERS. See Rail- 
 roads. 
 
 COMMON DISASTER. 
 
 Death in, law as to who inherits. . 217 
 
 COMPANY. See Corporations. 
 
 COMPENSATION. See Administra- 
 tors, Arbitration and Award 
 Guardians, &c., &o. 
 
 COMPLAINT. Q&Q Railroads. 
 
 On account (Sup'r Ct.) 397 
 
 (Justice Ct.) , . 279 
 
 Por breach of warranty 394 
 
 For commiss'ns of real estate broker 392 
 
 On fire insurance policy 396 
 
 For land ... 395 
 
 On life insurance policy 397 
 
 By mother for homicide of son 398 
 
 On note 391. 
 
 For personal property 396 
 
 By widow, for homicide of husband. 398 
 For words 397 
 
 CONDITIONAL SALE. 
 
 Bill of 167 
 
 (In the conditional bill on p. 167, in the 
 clause '* the vendor shall in no event 
 be entitled, &c.," the word "vendor" 
 should be "vendee.") 
 
 CONDONATION. 
 
 Divorce answer, setting up 99 
 
 CONFINEMENT. 
 
 Bond for expense of, by bastard's 
 
 father. 444 
 
 CONNECTING ROADS. 
 
 Declaration against last carrier .... 70 
 CONSIDERATION. 
 
 Plea of failure of 404 
 
 CONSIGNEE. See Bill of Lading, 
 Railroads. 
 
 CONSTABLES. 
 
 Duties of, see Code §4099. 
 Fee-bill of, see Code §5404. 
 
 CONSTABLES (Continued), 
 
 Levy on land, entry of no per'lty . . 415 
 
 the entry of levy .... 416 
 
 Rules against 363 
 
 CONSTABLES' SALES. 
 
 Advertisement (by sheriflf, which 
 constables must of course alter as 
 to time and place, to conform to 
 Code,§4166) 422 
 
 Advertisem'nt of (perishable prop'ty 426 
 
 CONSTITUTIONAL HOME- 
 STEADS. See Homestead and 
 Exemption. 
 
 CONSULS AND VICE-CONSULS. 
 
 Clause for attestation of deeds by . 256 
 
 CONTRACTOR. 
 
 (llaim of lien on real estate 169 
 
 Foreclosure of lien on real estate, . . 171 
 
 CONTRACT. 
 
 Actions on when barred 404 
 
 Breach of, suit for (justice court) . 280 
 
 Morals of the law of title by 260 
 
 Sale, reserving title 167 
 
 Unconditional, written, judgment by 
 Ct. on, see Code, §5670. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 Law of, discussed 54, 79 
 
 CONVERSION. 
 
 Complaintin Trover (justices c'ts) . . 280 
 (superior courts) 396 
 
 CONVEYANCE OF TITLE. 
 
 Bill of sale to personalty 259 
 
 Bill of sale to secure debt 164, 260 
 
 Conditional bill of sale to personalty 167 
 
 (In the conditional bill on p. 167, in the 
 clause " the vendor shall in no event 
 be entitled, &c.," the word " vendoi " 
 should be " vendee ") 
 
 Deed to secure debt 164 
 
 Quit claim deed to land 254 
 
 Warranty deed to land 254 
 
 COPY". 
 
 Deed, oath to 352 
 
 Grant, oath to 353 
 
 Of lost paper, petition to establish , . 351 
 
 CORPORATE STOCK. 
 
 Power of attorney to sell 196 
 
 CORPORATIONS. 
 
 Bank, proceeding to incorporate. . 37 
 
 Canal oo,, proceeding to incorporate 40 
 
 Charters, amendment of, pet'n for. . 34 
 
 " certificate of. 34 
 
 Charter, renewal certificate 33 
 
 Church, proceedings to incorporate. 86 
 
 Express co., proceeding to incorp. . 41 
 
 Garnishment, return of service on , . 340 
 
 Insurance oo., proceeding to incorp. 42 
 
450 
 
 INDEX. 
 
 C0RP0RA.T10NS (Continued). 
 
 Name, petition to change 35 
 
 Navigation oo., proceeding to incorp. 44 
 E. E , proceeding to incorjporate. . 47 
 Superior court, petition to incorpo- 
 rate mercantile company 84 
 
 Telegraph co., proceeding to incorp. 83 
 
 CORPUS OF ESTATE. 
 
 Petition to encroach on, by guardian 119 
 COSTS. See Constables, ^c. 
 
 J. P's. certificate as to (in certiorari) 328 
 COUNTER-CLA.I!Vr. 
 
 Plea of set off 404 
 
 COUNTS AND PARAGRAPHS. 
 
 Mr. N eel on " Neel Act." 388 
 
 Petitions illustrating Code Pl'ding. 391-8 
 
 COUPLING OARS. 
 
 Injury to employee, complaint for. 74 
 
 COURT. See Judgment, Justices. 
 
 ■Charter by Superior 85 
 
 Judgment by on uncondit'l written 
 
 contract. See Code ^5670. 
 Ordinary's. See Administrators, 
 
 Guardians, Road Laws, Wills, &c. 
 Supreme, carrying case to 432 
 
 COURT COMMISSIONER. 
 
 Return by, of depositions 410 
 
 COVENANT OF WARRANTY. 
 
 Petition for breach of 394 
 
 CREDITOR. 
 
 Attachm't by vs. fraudulent debtor. 310 
 Bill of sale to, to secure debt. . .164, 260 
 
 Bond for title back 166 
 
 Concealed property, attachment for 310 
 
 Deed to, to secure debt 164 
 
 Bond for title back 169 
 
 Unsecured, aflSdavit by, attacking 
 mortgage 161 
 
 CREDITORS' BILL. 
 
 Against insolvent trader 140 
 
 CRIMINAL CONVERSATION. 
 
 Divorce petition fur 88 
 
 CRIMINAL WARRANT. 
 
 See Penal Code, §885. 
 
 Order discharging defendant 439 
 
 CROP. 
 
 Foreclosure on, for supplies 176 
 
 •Counter-affidavit 178 
 
 Eeplevy bond 179 
 
 Power of attorney to mortgage 147 
 
 CROSSINGS. 
 
 Notice to R. E. to build 56 
 
 Petition for injury at 49 
 
 CRUEL TREATMENT. 
 
 Divorce, petition for 96 
 
 DAM. 
 
 Mill-dam, affidavit to abate 360 
 
 DAMAGES. 
 
 Breach of contract, suit for 280 
 
 Employee discharged, law as to. ._. . 198 
 Independent contractor, liability^ 
 
 discussed '6-' 
 
 Public road, land owner's complaint. 5 
 Private ways, proceeding to clear., . 20 
 Respondeat superior, doctrine of . . , 76 
 Suits vs. E. K. for, see Railroads. 
 Warranty, breach of, suit for 394 
 
 DEATH. 
 
 In common disaster, law of inher- 
 itance 217 
 
 DEBENTURES. 
 
 Power of attorney to sell 196 
 
 DEBT. 
 
 Deed to secure 1 64 
 
 Bond for title back 166 
 
 Order of payment in estates 230 
 
 DEBTOR. 
 Imprisoned under bail process, peti- 
 t.on for release 319 
 
 DEBTOR AND CREDITOR. 
 
 Assignment, deed of 134 
 
 Attachment vs. fraudulent debtor . . 310 
 
 Creditors' Bill 140 
 
 Decedent, time to pay debts of . 230, 232 
 
 order ot payment 230 
 
 Homestead, petition for 180 
 
 Mortgages 142-8 
 
 Mortgage, foreclosure on realty .... 148 
 
 personalty . 1-55 
 
 Sale, to secure debt 164 
 
 DECEDENT'S ESTATE. 
 
 See Adminisiraiion. 
 
 DECLARATION. See Petition. 
 
 DECREE. 
 
 Divorce partial 97 
 
 total 98 
 
 DEED. 
 
 Acknowledgment clause for 256 
 
 Administrator's 233 
 
 Administrator's, to land 238 
 
 Attestation clause (old one) .... 254 
 " " (new one sug- 
 gested 256 
 
 Assignment deed 184 
 
 Conveying personalty 2o9 
 
 Land, to 254 
 
 Lost, petition to establish copy .... 353 
 
 Oath to copy of 352 
 
 Papers conveying present interest , . 205 
 
INDEX. 
 
 451 
 
 DEED (Continued). 
 
 Personalty, to 
 
 Probate of 2 
 
 Quit-claim deed 
 
 Record entry, law as to 
 
 Securing debt 
 
 Sheriff's 
 
 Warranty deed 
 
 259 
 64-5 
 258 
 254 
 lfi4 
 423 
 254 
 04-5 
 
 439 
 
 282 
 402 
 402 
 403 
 
 64 
 364 
 
 432 
 
 410 
 406 
 
 95 
 
 216 
 
 386 
 
 203 
 
 402 
 
 282 
 
 4,79 
 
 439 
 
 251 
 123 
 
 DISSOLUTION OF PARTNERSHIP. 
 Notice of 1 ,qs 
 
 DISTRESS WARRANT. 
 
 Affidavit to obtain 
 
 warrant '' 
 
 counter-affidavit 
 
 bond 
 
 383 
 384 
 384 
 385 
 
 "Will and — examplesdistinguishing'i 
 DEFAULT. 
 
 Law as to judgment by, see Code 
 §§5071, 5077-8. 
 
 Judgment without jury on uncondi- 
 tional written contract, form of, 
 see Code §5670. 
 
 DEFENDANT. 
 
 In criminal warrant, order discharg- 
 ing 
 
 DISTRIBUTION OF ESTATES. 
 
 See Administrators. 
 DIVISIOJT OF ESTATES. 
 
 See Administration, Partition. 
 
 DIVORCE PETITIONS. 
 
 Adultery 
 
 Marriage within prohibited degrees. 
 Mental incapacity at marriage 
 Impotency 
 
 88 
 94 
 95 
 95 
 
 DEFENSES. 
 
 Fraud 
 
 95 
 
 In superior court, general denial . . 
 specific answer , 
 special pleas , . . . 
 
 Pregnancy at time of marriage . .. . 
 Desertion 
 
 95 
 95 
 
 Conviction of felony 
 
 Cruel treatment .... 
 
 96 
 96 
 
 Habitual intoxication . 
 
 96 
 
 DELIVERY. 
 
 Wrong, by carrier, complaint for. . 
 DEMAND. 
 
 On officers for money collected . . . . 
 DEMURRER. 
 
 Call of docket to hear, Code §5045. 
 
 DIVORCE FORMS OTHER THAN 
 ORIGINAL PETITIONS. 
 
 Alimony, petition for 
 
 Answer and cross petition. ...... ' 
 
 Application for removal of disabiities 
 
 Verdict for partial divorce 
 
 Judgment .... 
 
 88 
 99 
 100 
 97 
 97 
 
 Exceptions pendente lite, as to 
 
 Verdict for total divorce ][ 
 
 Judgment . . 
 
 97 
 98 
 
 DEPOSITIONS. 
 
 Court Commisioner's return of 
 
 Interrogatories 
 
 DESERTION. 
 
 Divorce petition for 
 
 DESCENT. 
 
 Rules of ■ 
 
 DOCUMENTARY EVIDENCE. 
 
 Notarial acts, certificate of 
 
 Notice to produce papers 
 
 Subpoena duces tecum '..'.'..'. 
 
 DOGS. 
 
 Suit for damage to stock by 
 
 DOUBTFUL CLAIMS. 
 
 Administrator's petition to sell 
 
 advertisement of sale 
 
 DOWER. 
 
 Cash value, rule for measuring 
 Application for 
 
 265 
 405 
 406 
 
 280 
 
 DETAINER. 
 
 Forcibly entry and, proceedings. . . . 
 DEVISES AND LEGACIES. 
 
 Clauses for in will 
 
 DILATORY PLEA. 
 
 235 
 236 
 
 274 
 334 
 
 Definition of 
 
 In Justices' courts, law as to 
 
 DILIGENCE AND NEGLIGENCE. 
 
 Doctrine of, in suits for damages, 
 discussed 6 
 
 Writ to admeasure \ 
 
 Return of commissioners [ 
 
 Judgment confirming return 
 Writ of possession 
 
 335 
 336 
 337 
 337 
 
 DRAFT. 
 
 Ordinary draft 
 
 263 
 
 DISCHARGE. 
 
 Judgment of, In criminal case 
 
 DISMISSORY LETTERS. 
 
 Administrator's 
 
 Guardian's 
 
 DRUNKARD. ► 
 
 Clause in will appointing trustee for. 
 Petition for divorce against ' 
 
 DURESS. 
 
 Plea of 
 
 203 
 96 
 
 403 
 
452 
 
 INDEX. 
 
 EJECTING INTRUDERS. 
 
 Affidavit 377 
 
 Counter-affidavit 377 
 
 Verdict 378 
 
 Judgment 378 
 
 Writ of possession 378 
 
 EJECTMENT. 
 
 Complaint for land 395 
 
 EMPLOYEE. 
 
 Discharged wrongfully, rights of . . 198 
 Suit by, vs. R. K., for injury 74 
 
 ENDORSER. 
 
 Complaint on note against 391 
 
 ENTRY AND DETAINER. 
 Forcible, proceedings as to 386 
 
 EQUITABLE PETITION. 
 
 To annul marriage 102-3 
 
 To forclose mortgage 152 
 
 ERROR. 
 "Writ of 
 
 435 
 
 ESTABLISHING LOST PAPER. 
 
 Proceeding for, in superior court . . 351 
 in justices' courts . . 355 
 before ordinary . . . 356 
 
 ESTATE FOR LIFE. 
 
 Cash value of, data to measure. 
 ESTATES. See Administration. 
 
 .. 274 
 
 ESTRAYS. 
 
 Description and appraisement 24 
 
 Affidavit of taker-up : 24 
 
 Advertisement of appraisement. ... 25 
 
 Advertisement of sale ^5 
 
 Affidavit of ownership 26 
 
 Bond 27 
 
 EVICTING TENANT. 
 
 Affidavit 379 
 
 "Warrant . . . .' 380 
 
 Counter affidavit 381 
 
 Bond 381 
 
 Verdict 382 
 
 Judgment 382 
 
 Writ of possession 382 
 
 EVIDENCE. 
 
 Copy deed, oath to, to admit 352 
 
 Copy grant 353 
 
 Interrogatories 406 
 
 Newly discovered, affidavit to 429 
 
 Notice to produce papers .405 
 
 Ordinary subpoena 406 
 
 Subpoena duces tecum '. ; . 406 
 
 Notarial acts, certificate of 205 
 
 EXCEPTIONS. 
 
 Fast bill, of 434 
 
 Ordinary bill, of 433 
 
 Pendente U,te 432 
 
 To answer to certiorari 331 
 
 To award 298 
 
 EXCHANGE. 
 Bill of 
 
 263 
 
 EXECUTOR. See Administrator. 
 
 Bond, petition to require 215 
 
 rule nisi 215 
 
 rule absolute 215 
 
 Garnishment vs., affidavit for, see 
 Code ? 4735. 
 
 Letters testamentary 214 
 
 Oath 214 
 
 Sale, claim affidavit to stop 325 
 
 Will, clause in appointing 204 
 
 EXECUTION. See Sheriff's Sales. 
 
 Chattel mortgage fi.fa 157 
 
 Illegality, affidavit of 348 
 
 traverse 349 
 
 Justice court execution 284 
 
 Levy, entry of " nulla bona " ■. 419 
 
 entry of " no personalty '' . . 415 
 
 Levy on personalty, entry of 414' 
 
 on land, entry of 416 
 
 Lien foreclosure execution 177 
 
 Mortgage fifa vs. land 153 
 
 Road Com'rs vs. Road hand 11 
 
 Superior court execution 412 
 
 EXEMPTION FROM GARNISH- 
 MENT. 
 
 Waiver at, in promissory note .... 347 
 
 EXEMPTION FROM LEVY AND 
 SALE. See Homestead and Ex- 
 emption. 
 
 EXPRESS COMPANIES. 
 
 Charter 41 
 
 Incorporation, petition for 41 
 
 FACTORIES. 
 Petition to foreclose lien on 171 
 
 FACTORS. See Liens, Mortgages. 
 
 FAILURE OF CONSIDERATION. 
 
 Plea of. : 404 
 
 FAMILY. 
 
 Homestead, pet'n for, by head of . . . 180 
 Year's support, petition for 240 
 
 FARM CROSSINGS. 
 
 Notice to R. R. to build ..;...,■... -bO 
 "FAST BILL" ' - . ^ 
 
 Of exceptions. . . .• .,,...,. 434 
 
INDEX. 
 
 453 
 
 FEES. 
 
 For fee-bills for oflSeers, consult the 
 
 code. 
 Pees, attorney's claim of, lien for..l69-170 
 
 FELDER ACT. 
 Substance of set forth 168 
 
 FELLOW-SERVANT. 
 
 Declaration against railroad 74 
 
 FENCES. See also Impounding. 
 
 Pence and " no fence " 27 
 
 Impounding stock 27-8 
 
 FIERI FACIAS. S&fl\Execution. 
 
 FIRE INSURANCE. 
 
 Complaint upon policy of 396 
 
 FIRM. 
 
 Articles of partnership '"131 
 
 Notice of dissolution ^133 
 
 FORCIBLE ENTRY AND DETAINER. 
 
 Affidavit . . ^ 886 
 
 Summons 386 
 
 Oath of jury WW 386 
 
 Verdict .- 386 
 
 Judgment 386 
 
 Writ of Possession 387 
 
 Return of sheriff 387 
 
 FORECLOSURE OP LIENS. 
 
 Personalty, affidavit for 172 
 
 execution 177 
 
 counter affidavit 178 
 
 replevy bond 179 
 
 Realty, petition for 171 
 
 FORECLOSURE OP MORTGAGES. 
 See Mortgages. 
 
 FORMA PAUPERIS. 
 
 Affidavit in appeal 290 
 
 Affidavit in certiorari 329 
 
 Affidavit in claim cases 324 
 
 Affidavit by plaintiff in error 436 
 
 FORMER JUDGMENT. 
 
 Pleaof 404 
 
 FORMER SUIT PENDING. 
 
 Pleaof. 404 
 
 FORMS. 
 
 (This Is an index of forms. Items herein 
 intended to refer to matter other than 
 forms, show such intention on their 
 face.) 
 
 FORTHCOMING BOND. 
 
 In claim case 322 
 
 In illegality 420 
 
 FRAUD. 
 
 Law as to stated 260 
 
 FRAUDS, STATUTE OF. 
 Plea of. 404 
 
 FRAUDULENT DEBTOR. 
 
 Attachment against 310 
 
 FRAUDULENT PURCHASES. 
 
 Law governing stated 260 
 
 FREldHT. 
 
 Bill of lading 66 
 
 Declaration vs. last carrier 70 
 
 Declaration for misdelivery 64 
 
 Stoppage in transitu, law stated . . . 261 
 
 FULL VALUE OF LIFE. 
 
 Life tables 268 
 
 FUNDS. 
 
 Trustee, petition to invest 231 
 
 FUNERAL EXPENSES. 
 
 Bank among decedent's debts stated. 230 
 
 GARNISHMENT. 
 
 Affidavit to obtain 338 
 
 vs. adm'r. Code §4735 
 vs. exec'r, Code §4735 
 
 Bond to obtain 338 
 
 Summons 339 
 
 purch. money attachm't... 309 
 
 Return of service 340 
 
 out of county .... 343 
 
 Answer of garnishee . . ., 340 
 
 Bond to dissolve 341 
 
 by claimant 344 
 
 Judgment vs. garnishee 342 
 
 Judgment vs. bond to dissolve .... 342 
 
 Traverse of answer 345 
 
 Exemption, claim of, by defendant. 345 
 waiver .of 347 
 
 GENERAL ISSUE. 
 
 Answer making general denial .... 402 
 
 GOOD BEHAVIOUR. 
 
 Affidavit to obtain warrant for 411 
 
 Warrant for 441 
 
 Bond for 441 
 
 GOODS BOUGHT. 
 
 Rejected, rights of seller stated .... 261 
 GRANT. 
 
 Copy, oath to 353 
 
 GUARDIAN. 
 
 Annual return 116 
 
 Appointm't, pet'n (minor under 14) . 109 
 
 order appointing 110 
 
 Oath of every guardian Ill 
 
 Appointment, pet'n (minor over 14) 107 
 Minor's pet'n selecting hisguardian. 108 
 Minor's pet'n to remove guardiaii. . 108 
 
 Bond 112 
 
 Commission of lunacy 125 
 
 Corpus, petition to encroach on. . . . 119 
 
454 
 
 INDEX. 
 
 Dismission, petition for 122 
 
 letters dismissory 123 
 
 EncToacli on corpus, petition to. . . . 119 
 
 Pinal receipt by ward 121 
 
 Land, pet'n to sell for reinvestment. 117 
 
 Letters of dismission 12S 
 
 Letters of guardianship ] 14 
 
 Lunatics, petition for guardian for. . 124 
 commission (writ) of luna9y 125 
 
 return of jury 126 
 
 Beinvestment, petition to sell for , . 117 
 adv't preliminary . . 118 
 
 order to sell 118 
 
 Resignation, petition for 121 
 
 order accepting 122 
 
 Keturn, annual 116 
 
 Sale for re-investment, petition .... 117 
 Settlements, law concerning. . . .120-123 
 Surety's petition to be relieved .... 114 
 
 order relieving 115 
 
 Writ of lunacy 125 
 
 HABEAS CORPUS. 
 
 Proceedings as to 439 
 
 HABITUAL INTOXICATION. 
 
 Divorce petiticm for 96 
 
 HEALTH. See Abatement of Nuisances. 
 
 HEIRS AT LAW. 
 
 Distribution in kind, petition for, . . 245 
 
 Notice to, in probate of will 212 
 
 Rules of inheritance 216 
 
 HIGHWAY. See Roads, Crossings, 
 Blow Post. 
 
 HOLDERS OF NEGOTIABLE PA- 
 PERS. 
 
 Rights of discussed 262 
 
 HOLIDAYS. 
 
 Banking laws as to 265 
 
 HOMESTEAD AND EXEMPTION. 
 
 Constitutional, petition for 180 
 
 Schedule of realty 182 
 
 Schedule of personalty 182 
 
 List of creditors 183 
 
 Order to surveyor 183 
 
 Notice to creditors 184 
 
 Return of surveyor 186 
 
 Order of approval 186 
 
 Order appointing appraisers 187 
 
 Return of appraisers 187 
 
 Levy, affidavit to subject to 189 
 
 Counter affidavit 191 
 
 Sale for re-investment, petition. . . . 188 
 Statutory, schedule of property. ... 193 
 
 HOMICIDE.' 
 
 Complaint for 398 
 
 Law governing recovery for 266 
 
 HOUSEHOLD FURNITURE. 
 
 Homestead on, schedule 193 
 
 HUMAN LIFE. 
 
 Measure of value of 268 
 
 HUSBAND AND WIFE. 
 
 Generally 87-103 
 
 See also Divorce, Alimony, Jfc, 
 
 IDIOTS. 
 
 Writ of lunacy 125 
 
 ILLEGALITY OF EXECUTION. 
 
 Affidavit of 348 
 
 Traverse 349 
 
 Forthcoming bond 420 
 
 Affidavit of, to chattel mortgage, fi.fa. 159 
 
 ILLEGITIMATE CHILD. , 
 
 Proceedings to legitimate 104 
 
 by mother vs. father. . . 443 
 
 IMPOUNDING CATTLE.- 
 
 Impounding summons 27 
 
 IMPRISONMENT. 
 
 Under bail process, see Bail. 
 
 INCORPORATION PROCEEDINGS. 
 See Corporations. 
 
 INDENTURES OF APPRENTICE- 
 SHIP. 
 
 By adult 127 
 
 By ordinary, binding minor 129 
 
 By parent, binding child 130 
 
 INDEPENDENT CONTRACTOR. 
 
 Liability of, discussed 76 
 
 INDIGENT ORPHANS. 
 
 Indenture by ordinary apprenticing 130 
 INDORSEE. 
 
 Complaint on note by 391 
 
 INFANCY. 
 
 Plea of 403 
 
 INFANTS. See also Apprentices. 
 
 Adoption of, petition for 105 
 
 Bastard, petition to legitimate 104 
 
 Proceeding by mother of bastard vs. 
 father 443 
 
 INHERITANCE. 
 
 Rules of, stated 216-217 
 
 INJURIES. See Railroads. 
 INQUISITIONS OF LUNACY. 
 
 Proceedings as to 124-6 
 
 INSOLVENT PAPERS. 
 
 Administrator's petition to sell .... 235 
 
INDEX. 
 
 455 
 
 INSOLVENT TRADER. 
 
 Creditor's bill 140 
 
 Purchases by, law governing, stated 260 
 
 INSTRUMEJ^T UNDER SEAL. 
 
 Barred after 20 years 404 
 
 Definition of 404 
 
 INSURANCE COMPANIES. 
 
 Charter 43 
 
 Incorporation, petition for 42 
 
 Complaint on flre policy 396 
 
 on life policy. 397 
 
 INTEREST IN PRAESENTI. 
 
 Instruments conveying 204-5 
 
 INTEREST AND USURY. 
 
 General information as to 195 
 
 Plea of usury 404 
 
 INTERROGATORIES. 
 
 Caption of, &c 406 
 
 Notice of filing 407 
 
 Waiver of notice and copy 408 
 
 Commission 407 
 
 Return of, by commissioners 408 
 
 Certificates of transmission 409 
 
 INTOXICATION. 
 Habitual, petition for divorce for . . 96 
 
 INTRUDER UPON LAND. 
 
 Affidavit to eject 377 
 
 Counter-affidavit 377 
 
 Verdict 378 
 
 Judgment 378 
 
 Writ of possession 378 
 
 INVENTORY. 
 
 Administrator's 227 
 
 To assignment, law as to 137 
 
 INVESTMENT. 
 
 Administrator's pet'n to buy land. . 231 
 Guardian's petition tore-invest.... 117 
 
 ISSUABLE DEFENSE. 
 
 Judgment where none, Code § 5670. 
 
 JOURNEYMAN MECHANIC. 
 
 Garnishment exemption, claim set- 
 ting up 345 
 
 Garnishment exemption, contract 
 waiving 347 
 
 JUDGMENT. 
 
 In divorce case 97-8 
 
 In forcible entry and detainer .... 386 
 
 In proceeding vs. intruder 388 
 
 In road case (damages claimed] .... 7 
 
 On ordinary money verdict 411 
 
 Becomes dormant after 7 years .... 404 
 Barred after 10 years 404 
 
 JUDICIAL SALE. %&% sX&o Sheriff's 
 Sales. 
 
 Adm'r's (perishables), petition for. . 234 
 
 (bad debts) pet'n for 235 
 
 (land), petition for 236 
 
 Guardian's (for re-investm't) petition.. 119 
 
 (to encroach on corpus) pet'n. 119 
 
 JURISDICTION. 
 
 Plea to 404 
 
 JURY CHARGE. 
 
 On life table, by Justice Lumpkin. . 267 
 JURY AND JURORS. 
 
 Claim case, oath in 325 
 
 Forcible entry and detainer, oath in. 386 
 Judgment without, see Code 5670. 
 
 Justice's court, oath in 286 
 
 Public roads, damage claim, oath in. 6 
 Jury summons (Justice's court) .... '285 
 
 JUSTICES AND JUSTICE'S COURT. 
 
 Abating nuisance, proceedings for. . 359 
 
 Account, suit on (copy attached) . . 279 
 
 counter affidavit to 282 
 
 Affidavit (pauper's), to appeal .... 290 
 
 Appeal and bond 289 
 
 Pauper oath 290 
 
 Appeal to jury 286 
 
 to Superior court 285 
 
 Argument, order of 283 
 
 Attachment affidavit 300 
 
 bond 303 
 
 affidavit attacking .... 305 
 
 writ 306 
 
 traverse 315 
 
 replevy bond 315 
 
 Backing fi. fa, see Code §4160. 
 
 Bail trover affidavit 317 
 
 bond of defendant 3l8 
 
 petition for release 319 
 
 Bastardy proceedings 443-4 
 
 Bond of appellant 289 
 
 Bond forthcoming (claim case) .... 321 
 
 (illegality) 420 
 
 Bond (replevy) in attachment .... 315 
 
 Breach of contract suit, copy in ... . 280 
 
 Cattle, injury to, suit for 280 
 
 bond 227 
 
 certificate as to costs .... 328 
 
 writ 330 
 
 answer 331 
 
 Certiorari answer 331 
 
 Claim affidavit 321 
 
 bond 321 
 
 forthcoming bond. . " 321 
 
 juror's oath 325 
 
 Constable's return of service 281 
 
 Constable?, rules against, see Officers 
 
 of Court. 
 
 Contract, breach of, copy in suit . , . 280- 
 
 Copy attached in suit on note 278 
 
 Copy attached in suit on account . . 279 
 
 in breach of contract. . 280- 
 
 Counter affidavit to account 282 
 
 Cow shooting, suit for 280 
 
 Damages, breach of contract, suit for 280. 
 
456 
 
 INDEX. 
 
 JUSTICES AND JUSTICE'S COURT 
 [Continued). 
 
 Damages to personalty, suit for ... . 280 
 
 In trover 280 
 
 I n damages 280 
 
 Damages to stock summons to R.R. 57 
 Defenses, law concerning, stated.. . . 282 
 
 Detainer, forcible entry, and 386 
 
 Distress warrant 383-5 
 
 Dog, injury by, to stock, suit for . . 280 
 
 Ejecting intruder, affidavit 377 
 
 Entry and detainer, forcible 38fi 
 
 Evicting tenant, proceedings for. . . 379 
 
 Execution 284 
 
 Fi.fa 248 
 
 Poroibly entry and detainer, see 386. 
 Eorthcoming bond (claim case) .... 321 
 
 (in illegality) 420 
 
 Garnishment affidavit 338 
 
 bond 338 
 
 summons 339 
 
 return of service .... 340 
 
 answer 340 
 
 bond to dissolve 341 
 
 Garnishment exemption, contract 
 
 waiving 347 
 
 Garnishment summons, &c., in pur- 
 chase money attachment 309 
 
 Illegality, affidavit of 348 
 
 Intruders, proceedings to eject .... 377 
 Interrogatories, see that subject .... 
 
 Judgment by a magistrate 283 
 
 Jury, appeal to, see 285. 
 
 Jury, oath of ' 286 
 
 Jury summons 285 
 
 Land, intruders, proceedings to eject 377 
 
 Leading questions, see 283. 
 
 Live stock hurt, summons to K. K. . 57 
 
 Live stock, injury to, suit for 280 
 
 Lostpapers,proceedings to establish354-6 
 Note sued, copy to be attached .... 278 
 Nuisances, proceedings to abate .... 3£6 
 
 Oath of jury 289 
 
 Office papers, lost, how established. 354 
 Order of argument, see 283. 
 
 Pauper, affidavit to appeal 290 
 
 Personalty, suit for damages to ... . 280 
 
 Pleas, law concerning, stated 282 
 
 Possessory warrant 373 
 
 Purchase money attachm't affidavit. 308 
 
 Questions, leading, law as to 283 
 
 K. E., summons for damage to stock. 57 
 
 Kent, distress for 383-5 
 
 Eeplevy bond in attachment 315 
 
 in illegality 160 
 
 in lien foreclosure . . 179 
 
 Keturn of service of summons 281 
 
 Eules against officers, see Officers of 
 
 Court. 
 Sales, see Executions. 
 
 Service, constable's return of 281 
 
 Shooting cow, suit for 280 
 
 Stock summons to K. E 57 
 
 Subpoena 282 
 
 Suit, summons in 275 
 
 Suit on account, copy to he attached. 279 
 Suit on note, copy to be attached. . 278 
 
 JUSTICES AND JUSTICE'S COUBT 
 (Centinued). 
 
 Suit in trover, copy to be attached . . 280 
 
 Summons to defendant 275 
 
 Summons to juror 285 
 
 Summons of garnishment (in pur- 
 chase money attachment) 309 
 
 Superior court, appeal to 285 
 
 Tenant, distress for rent 383-5 
 
 Tenant, proceedinge to evict 379 
 
 Traverse of attachment 315 
 
 Traverse of illegality 349 
 
 Trespassers on land, proceedings 
 
 against ; 377 
 
 Trial, suggestions as to 283 
 
 Trover suit ;'. 280 
 
 Trover, bail affidavit 317 
 
 Verdict of jury 286 
 
 "Warrant, distress for rent 383-5 
 
 Warrant, possessory 373 
 
 Witness, subpoena ; 282 
 
 KIND. 
 
 Distribution in, see Administration. 
 
 LABORER. 
 
 Claim of lien on real estate 169 
 
 Poreclosure of lien on realty 171 
 
 Eo'recloEure of lien on personalty . . 172 
 Garnishment, claim setting up ex- 
 emption 345 
 
 clause for note waiv- 
 ing exemption .... 347 
 
 LAND. 
 
 Administrator's deed to 233, 238 
 
 Adm'rs' petition to invest in 231 
 
 Complaint for 395 
 
 Deed to 254 
 
 Intruders, proceedings to eject .... 377 
 
 Levy on, sherift's entry ot 416 
 
 notice thereof 419 
 
 Partition, petition for 366 
 
 Power of att'y by adm'r to sell .... 239 
 
 Processioning proceedings 199 
 
 Tenant holding over, proceeding to 
 
 evict 379 
 
 Trust funds, petition to invest in . . . 231 
 
 LANDLORD AND TENANT. See 
 Tenant. 
 
 Crop lien foreclosure 176 
 
 LAND LINES. 
 
 Fences, as 27 
 
 Impounding stock 27-8 
 
 See also Impounding. 
 
 Processioning, application for 199 
 
 notice ■. . 200 
 
 return of processioners . 201 
 surveyor's certificate to 
 plat 201 
 
 LANDLORD'S LIEN FOR SUP- 
 PLIES. 
 
 Affidavit to foreclose 176 
 
 Execution 177 
 
INDEX. 
 
 457 
 
 LANDLORD'S LIEN FOR SUP- 
 
 
 LOST PAPERS. 
 
 
 PLIES (Continued). 
 
 
 Proceeding to establish 351-8 
 
 Counter-affidavit . 
 
 178 
 179 
 
 LUMPKIN ON LIFE TABLES. 
 
 
 Replevy bond 
 
 
 LAW OF THE LIFE TABLES. 
 
 
 Forms of charges to jury as to use of. 
 
 267 
 
 Form for jury- charge as to use of. . 
 
 267 
 
 LUNACY. 
 
 
 The mortality table 
 
 268 
 
 Writof 
 
 125 
 
 The annuity table 
 
 268 
 
 MAKER AND INDORSER. 
 
 
 LAWYERS. 
 
 
 
 
 
 
 Declaration against 
 
 391 
 
 Admission to the bar, petition 
 
 287 
 
 MARRIAGE. See Divorce. 
 
 
 LEAVE TO SELL. 
 
 
 
 
 
 
 License to marry 
 
 87 
 
 Perishables, petition of adm'r for . . 
 
 n4 
 
 
 
 Insolver papers, " " " , . 
 
 235 
 
 MARSHALLING ASSETS. 
 
 
 Land, petition of administrator for. , 
 
 236 
 
 Creditor's bill 
 
 140 
 
 LEGACY. 
 
 
 MASTER AND SERVANT. See 
 
 
 Clause of, in will 
 
 203 
 
 Employee. 
 MATERIAL MAN. 
 
 
 LEGITIMATION OF CHILDREN. 
 
 
 Petition 
 
 104 
 
 Foreclosure of lien on realty 
 
 171 
 
 Order 
 
 104 
 
 MECHANIC. 
 
 
 LETTERS OF ADMINISTRATION 
 
 
 Claim of lien on real estate, ..'..... 
 
 169 
 
 Permanent 
 
 220 
 
 Foreclosure of lien on real estate . . 
 
 169 
 
 Temporary 
 
 219 
 
 MERCANTILE COMPANY. 
 
 
 LETTERS OF GUARDIANSHIP. 
 
 
 Incorporation, petition for 
 
 84 
 
 Letters of guardianiship 
 
 114 
 
 Charter 
 
 85 
 
 LETTERS DISMISSORY. 
 
 MERCHANT. 
 
 
 Administrator's 
 
 Guardian's 
 
 250 
 123 
 
 Wrongful discharge of cl'k, liability 
 MILL-DAM. 
 
 198 
 
 LETTERS TESTAMENTARY. 
 
 
 
 
 Testamentary 
 
 214 
 
 .Affidavit to abate as a nuisance .... 
 
 360 
 
 LEVY. See Execution. 
 
 
 MINOR. 
 
 
 LICENSE. 
 
 
 Indenture apprenticing 
 
 Service on, return of 
 
 129 
 400 
 
 To marry 
 
 87 
 
 MIS-JOINDER. 
 
 
 LIEN. See Foreclosure. 
 
 
 
 
 
 
 Plea of 
 
 404 
 
 LIFE ESTATE. 
 
 
 MISNOMER. 
 
 
 Cash value, how measured 
 
 274 
 
 Plea of 
 
 404 
 
 LIFE INSURANCE, 
 
 
 MONEY RULE. See Officers of Court 
 
 
 Complaint for 
 
 397 
 
 MORTALITY TABLE. 
 
 
 LIFE TABLES. 
 
 
 Form for jury charge as to use of . , 
 
 267 
 
 Form for jury" charge, as to use of. . 
 
 267 
 
 The Carlisle table 
 
 268 
 
 The Carlisle Mortality Table 
 
 268 
 
 MORTGAGE. 
 
 
 
 268 
 
 
 
 LIMITATION OF ACTION. 
 
 
 Attorney, power of, to execute .... 
 Chattel mortgage 
 
 147 
 142 
 
 Law governing, stated 
 
 403 
 
 Chattel, affidavit to foreclose 
 
 155 
 
 LIS PENDENS. 
 
 
 fifa 157-8 
 
 affidavit of illegality 159 
 
 Plea of 
 
 404 
 
 replevy bond 
 
 160 
 
 
 
 pauper affidavit 
 
 161 
 
 LIVE STOCK. 
 
 
 Creditor's affidavit attacking 
 
 161 
 
 Cattle-guard, notice to R.R. to build 
 
 56 
 
 bond to accompany 
 
 162 
 
 Estrays 
 
 24 
 
 Crop, power of attorney to execute 
 
 
 Impounding 
 
 27 
 
 mortgage on 
 
 14/ 
 
 Injury, notice of, to railroad 
 
 57 
 
 Equitable petition to foreclose .... 
 
 152 
 
 Quick sale of, petition for 
 
 425 
 
 judgment thereon 
 
 lb. 
 
458 
 
 INDEX. 
 
 MORTGAGE (.Continued). 
 
 Execution against realty 153 
 
 Pairness, creditor's affidavit attack- 
 ing 161 
 
 Fi fa. against realty 163 
 
 Filing, clerk's entry of 145 
 
 Poreclosure on really, petition for. . 148 
 
 on personalty 155 
 
 Land, on 142 
 
 Ordinary mortgage deed 142 
 
 Power of sale clause 146 
 
 Personalty, affidavit to foreclose. . . . 155 
 
 Power ot attorney to execute. ..... 147 
 
 Power of sale clause 146 
 
 Power of sale, foreclosure under .... 154 
 
 Probate for record, affidavit of .... 145 
 
 Bealty, petition to foreclose 148 
 
 Record, affidavit probating for .... 145 
 
 clerk's entry of 145 
 
 Sale, advertisement under power of. 154 
 
 Sale, clause authorizing 146 
 
 Validity of, creditor's affidavit at- 
 tacking 161 
 
 MORTUARY TABLES. See Life 
 Tables. 
 
 MOTHER, 
 
 Complaint by, for homicide of child. 398 
 Of bastard, proc'd'g vs. lather 443 
 
 MOTION FOR NEW TRIAL. 
 
 The motion itself 428 
 
 Order approving it 430 
 
 Rule nisi , 430 
 
 Order overruling 431 
 
 MUTUAL WILL. 
 
 Instrument, held good as 207 
 
 NAME. 
 
 Petition to change, by individual . . 104 
 by corporation . 35 
 
 NATURALIZATION. 
 
 Declaration of intention . . .■ 29 
 
 Oath of allegiance 30 
 
 Petition for naturalization 31 
 
 Order admitting to citizenship , . . . 31 
 
 NAVIGATION COMPANIES. 
 
 Charter 45 
 
 NE UNQUES EXECUTOR. 
 
 Plea of 249 
 
 NEEL. 
 
 Letter of, on "Neel Act," 388-391 
 
 NEGOTIABLE INSTRUMENTS. 
 
 General principles of, discussed .... 262 
 
 Bill of exchange 263 
 
 Ordinary bank check 263 
 
 Promissory note 263 
 
 Notice of protest 264 
 
 Certificate of protest 265 
 
 NEW TRIAL. 
 
 Motion for 428: 
 
 Order denying 431 
 
 NEWLY DISCOVERED EVIDENCE. 
 Affidavit as to 429- 
 
 NON EST FACTUM. 
 Plea of 404^ 
 
 NON- AGE. 
 
 Petition to annul marriage for .... 103. 
 
 NON-JOINDER. 
 Plea of 404 
 
 NOTARY PUBLIC. 
 
 Certificate of official character of. . 258- 
 
 Notice of protest 264- 
 
 Certificate of protest 266- 
 
 NOTE. 
 
 Clause waivinggarnishm't exempt'n. 347 
 
 Complaint on 391 
 
 Promissory note 263- 
 
 Notice of protest 264 
 
 NOTICE. 
 
 Of filing interrogatories 407 
 
 Of levy on land 419- 
 
 To produce papers 405- 
 
 Of sanction of certiorari 330- 
 
 NOTICE OF PROTEST. 
 
 By commercial notary 264 
 
 NUISANCES. 
 
 Abatement, petition for 359 
 
 NUL TIEL CORPORATION. 
 
 Plea of 40t 
 
 NULLA BONA. 
 
 Entry of, on exeeution 419- 
 
 OBSTRUCTING PUBLIC ROAD, 
 Notice to offender 13- 
 
 OBSTRUCTING PRIVATE WAY. 
 Petition to remove 20- 
 
 OATH. See Jury. 
 
 Of eommis'rs to lay out way 19- 
 
 To copy grant 353 
 
 OFFICE PAPERS LOST. See Lost 
 Papers. 
 
 OFFICERS OF COURT. 
 
 Rule against 363. 
 
 Demand for money 364 
 
 OPEN ACCOUNT. See Account. 
 
INDEX. 
 
 459 
 
 ORDINARY. See Administrator, 
 Guardian, Road Law, ^c. 
 
 Pees of, see Code §§681, 4269. 
 
 Lost papers, petition to establish . . 366 
 
 Mill-dam, affidavit to abate 360 
 
 ORPHAN. 
 
 Indenture, by ordinary apprent'ng. 130 
 OUT OF DATE. 
 
 "When notes, &c , are, law as to. . 403-4 
 
 PAPER. 
 
 Notice to produce , 405 
 
 Private, petition to establish 353 
 
 PARAGRAPHING. 
 
 Petitions 388 
 
 PARENT AND CHILD. 
 
 Proceeding against father of bastard 443 
 
 Petition to legitimate bastard 104 
 
 Proceeding to change child's name. 104 
 
 PARTIAL DIVORCE. See Divorce. 
 
 PARTITION. 
 
 Realty, proceedings for 366 
 
 "Writ of possession 369 
 
 PARTNERSHIP. 
 
 Articles of ; 131 
 
 Notice of dissolution 133 
 
 PASSENGERS' DECLARATIONS. 
 
 Por expulsion from train 58 
 
 Por injury in alighting 60 
 
 Por assault by conductor 63 
 
 Por derailment of train 72 
 
 PAUPER AFFIDAVIT. See Forma 
 Pauperis. 
 
 PAYMENT. 
 
 Plea of 403 
 
 PEACE WARRANT. 
 
 Affidavit to obtain 441 
 
 Warrant 442 
 
 Judgment 442 
 
 Bond to keep the peace 442 
 
 Commitment 442 
 
 PENDENCY OF FORMER SUIT. 
 Plea of 404 
 
 PENDENTE LITE EXCEPTIONS. 
 
 Formal entry of . 432 
 
 Assignment of Error on 432 
 
 PERISHABLE PROPERTY. 
 
 Adm'r, petition by, to sell 234 
 
 Proceedings for sale of 424 
 
 PERMANENT ADMINISTRATION. 
 
 Application for .- 220 
 
 letters 224 
 
 PERSONAL INJURIES. See 
 Railroads. 
 
 PERSONALTY. See Bail, For closure 
 of lAens, Mortgages, etc. 
 
 Bill of sale to secure debt 164, 260 
 
 Conditional bill of sale 167 
 
 (In the conditional bill on p. 167, in the 
 clause '* the vendor shall in no event 
 be entitled, &c.," the word " vendor " 
 should be " vendee.") 
 
 Deed or bill of sale to 259 
 
 Entry of " no personalty " 415 
 
 of levy 414 
 
 Trover (see also Bail) 280 
 
 PLEADING. 
 
 Act of 1893 388 
 
 Petitions under 388 
 
 PLEAS. 
 
 Accord and satisfaction 403 
 
 Duress '. . . 403 
 
 Failure of consideration 404 
 
 Infancy 403 
 
 Jurisdiction (denying) 404 
 
 Lis Pendens 404 
 
 Misjoinder 404 
 
 Misnomer 404 
 
 N on est factum 404 
 
 Non-joinder 404 
 
 Nul Tiel Corporation 404 
 
 Payment 403 
 
 Res Adjudicata 404 
 
 Set-off 404 
 
 Statute of Frauds 403 
 
 Statute of Limitations 403 
 
 Surety's release 403 
 
 Tender 403 
 
 Usury 404 
 
 PLEAS BY ADMINISTRATORS. 
 
 Ne ungues , 249 
 
 N assets 250 
 
 Flene administravit 250 
 
 Plene administravit praeter 250 
 
 POLICY OP INSURANCE. 
 
 Life, complaint on 397 
 
 Fire, complaint on '. . . 396 
 
 PONY HOMESTEAD. 
 Schedule of property 193 
 
 POSSESSION. See Writ of Possession. 
 
 POSSESSORY WARRANT. 
 
 Affidavit for 371 
 
 Warrant 373 
 
 Judgment 374 
 
 Bond 374 
 
 Commitment 375 
 
 Notice of certiorari 376 
 
 POWER OF ATTORNEY. 
 
 To mortgage crop 147 
 
 To sell real estate 196 
 
 To transfer stocks, etc 196 
 
 Administrator's, to sell land 239 
 
460 
 
 INDEX. 
 
 POWER OF SALE. 
 
 
 PUBLIC ROADS (Continued). 
 
 
 Bill of sale to secure debt, with.. 164 
 
 -260 
 
 Application parcelling off road .... 
 
 9 
 
 Deed to secure debt, containing .... 
 
 164 
 
 Summons for road duty 
 
 10 
 
 PRESENT INTEREST. 
 
 
 Proceedings against defaulters 10-12 
 
 Notice to negligent overseer 13 
 
 Instruments conveying 204-5 
 
 Notice to remove obstruction 
 
 13 
 
 PRINCIPAL AND AGENT. 
 
 196 
 
 General presentment against road 
 commissioners 
 
 14 
 
 Power of attorney 
 
 Grand jury summons to road com- 
 
 
 PRIORITY. 
 
 
 missioner 
 
 14 
 
 
 
 Of debts of decedents, rules of 
 
 230 
 
 PUBLICATION. ■ 
 
 
 PRIVATE CORPORATIONS. See 
 
 
 Order for service by 
 
 899 
 
 Corporations. 
 
 
 PURCHASE. 
 
 
 PRIVATE PAPER. 
 
 
 Contract reserving title 
 
 167 
 
 Petition to establish .... 
 
 ?.h?, 
 
 (In the conditional bill on p. 167, in the 
 clause "the vendor shall in no event 
 be entitled, &c.," the word "vendor" 
 should be "vendee.") 
 
 
 PRIVATE WAY. 
 
 
 
 Petition to establish 
 
 18 
 
 By insolvent, law governing, stated. 
 
 260 
 
 PROBATE. 
 
 
 Over $50 (Statute of Frauds) 
 
 260 
 
 
 Repudiated, rights of seller, stated, . 
 
 261 
 
 Of mortgage, afladavit for 
 
 145 
 
 PURCHASE MONEY. 
 
 
 PROCEEDINGS AGAINST OFFI- 
 
 
 Attachment affidavit for 
 
 308 
 
 CERS OF COURT. See 363 ei 
 
 
 Garnishment summons on 
 
 309 
 
 
 
 QUICK SALE. 
 
 
 PROCESS. 
 
 
 Of live stock, etc., proceedings for. 424-7 
 
 To accompany petition 
 
 399 
 
 RAILROAD. 
 
 
 PROCESSIONING. 
 
 
 Bill of lading 
 
 66 
 
 A pplication for 
 
 199 
 
 Blow-post law, declaration based on. 
 
 51 
 
 Return of prooessioners 
 
 201 
 
 Cattle-guard, notice to build 
 
 66 
 
 48 
 
 PRODUCTION OP PAPERS. 
 
 Connecting Rds, declaration vs. last. 
 
 70 
 
 Notice requiring 
 
 400 
 
 Crossing, injury at, declaration for. . 
 
 49 
 
 
 Crossing, notice to R. R. to build . . 
 
 56 
 
 PRODUCTION OF WILL. 
 
 
 Freight, declaration for misdeliv'ng 
 
 64 
 
 
 
 . vs. last carrier. 
 
 '/(• 
 
 Petition to compel , 
 
 208 
 
 Incorporation of, petition for 
 
 47 
 
 PROMISSORY NOTE. 
 
 
 Injury at crossing, declaration for. . 
 Lieu on, petition to foreclose 
 
 40 
 171 
 
 Clause waiving garnishm't exempt'n 
 
 347 
 
 Summons for injury to stock 
 
 57 
 
 Negotiable instruments, law of, dis- 
 
 262 
 
 RAILROADS, DECLARATIONS 
 
 
 Ordinary note 
 
 263 
 
 AGAINST. 
 
 
 Notice of protest .... 
 
 264 
 
 Injury on crossing 
 
 49 
 
 Certificate of protest 
 
 265 
 
 Injury between blow-post & cross'g 
 
 61 
 
 
 E. 
 
 For expulsion from train 
 
 58 
 
 PROPERTY EXEMPT FROM SAI 
 
 For injury in alighting 
 
 60 
 
 See Homestead and Exemption. 
 
 
 For assault upon passenger 
 
 63 
 
 
 
 For derailment of train 
 
 Tf. 
 
 PROSECUTOR. 
 
 For misdelivery of freight 
 
 64 
 
 Judgment for costs against 
 
 439 
 
 Against a " last carrier " 
 
 70 
 
 
 By car-coupler 
 
 74 
 
 PROTEST. 
 
 
 For homicide 
 
 398 
 
 Notice of 
 
 264 
 
 REAL ESTATE. 
 
 
 Notarial certificate of 
 
 265 
 
 Administrator's deed to 
 
 238 
 
 PUBLIC ROADS. 
 
 
 Claim of lien on 
 
 Deed to secure debt 
 
 169 
 164 
 
 Proceeding to open 
 
 1-4 
 
 .5-7 
 
 Foreclosure of lien, petition for .... 
 
 Mortgage on 
 
 Mortgage foreclosure, petition for. . 
 
 171 
 
 for damages 
 
 U*)! 
 
 Altering form for suggested 
 
 2 
 
 148 
 
 Discontinuing, form for suggested.. 
 
 2 
 
 Power of attorney by adm'r, to sell. 
 
 239 
 
 Order app't'g dis't road comm'rs . . 
 
 8 
 
 Warranty deed 
 
 254 
 
 Order appointing road overseer. . . . 
 
 8 
 
 Quit-claim 
 
 254 
 
INDEX. 
 
 461 
 
 KEAL ESTATE AGENT. 
 
 Suit for commissions S92 
 
 RECOGNIZANCE. 
 Of defendant in bail process 320 
 
 BECOED. 
 
 Of deeds, law governing 254-8 
 
 Probite of mortgage for 145 
 
 REINVESTMENT. 
 
 Petition to sell homestead for 188 
 
 REJECTION OF GOODS BOUGHT. 
 
 Rights of seller stated 261 
 
 RELIGIOUS SOCIETY. 
 
 Incorporation petition 86 
 
 RENT. 
 
 Distress warrant for 383-5 
 
 REPLEVY BOND. 
 
 In attachment 315 
 
 In bail case 318 
 
 In claim case 322 
 
 In illegality to mortgage ;?/« 160 
 
 In lien foreclosure 179 
 
 RES AD JUDICATA. 
 
 Plea of... 404 
 
 RESERVATION OF TITLE. 
 
 Conditional bill of sale 167 
 
 {In the conditional bill on p. 167, in the 
 clause " the vendor shall in no event 
 be entitled, &c.," the word " vendor " 
 should be " vendee.") 
 
 RESIGNATION. See Adm'r, Guard'n. 
 
 RESPONDEAT SUPERIOR. 
 
 Law of discussed 76 
 
 RETURN. See Levy, Service. 
 
 Administrator's 229 
 
 Guardian's 116 
 
 Of interrogatories 408 
 
 ROAD LAWS. 
 
 Private ways (which subject see) . . 18-23 
 Public roads (which subject see) . . 1-17 
 
 RULE NISI. See Administrators, Guar- 
 dians. Motion for New Trial, ^c. 
 
 On mortgage foreclosure 150 
 
 RULES. 
 
 Against officers 363-5 
 
 Of inheritance 216-217 
 
 SALE,. See Executions. 
 
 Bill of, to secure debt 164, 260 
 
 Bond for title back 166 
 
 Conditional bill of 167 
 
 L (In the conditional bill on p. 167, in the 
 clause " the vendor shall in no event 
 be entitled, ifeo,," the word " venaor " 
 should be " vendee,") 
 
 SALE (Continued). 
 
 Deed to secure debt 164 
 
 Executor's, claim affidavit at 326 
 
 Homestead, petition tor to reinvest.. 188 
 
 Land, adm'r's petition to sell 236 
 
 deed 238 
 
 Over $50, law governing, stated, . . . 260 
 To insolvent, law governing, stated. 260 
 
 SANCTION OF CERTIORARI. 
 
 By Judge Superior Court 329 
 
 SCHEDULE. 
 
 For " pony " homestead 193 
 
 SEARCH WARRANT. 
 
 Affidavit to obtain 443 
 
 Warrant 443 
 
 SEAL. 
 
 Instrument under, definition 404 
 
 SECURITY FOR DEBT. 
 
 Deed 164 
 
 Bill of sale 164, 260 
 
 Bond for title, back , 166 
 
 SELLER'S REMEDY. 
 
 Where goods rejected, law as to. . . . 261 
 
 SERVICE.! 
 
 Sherifl's return of 400 
 
 Return of, as to minor 400 
 
 By publication, order for 399 
 
 SET OFF. 
 
 Plea of 404 
 
 SETTLEMENTS. Ss6 Administrator, 
 
 Guardian. 
 SHERIFF. 
 
 Rule against 363 
 
 SHERIFF'S SALES. 
 
 Advertisement of 422 
 
 Deed of sheriflF 423 
 
 Of perishables, proceeding for 424-7 
 
 SHORT HOMESTEAD. 
 Schedule of property 193 
 
 "SHORT ORDER." 
 To sell live stock, perishables, &c. . . 426 
 
 SLANDER. 
 
 Complaint for 307 
 
 SPENDTHRIFT. 
 
 Will creating trustee for 203 
 
 STATUTE OF DESCENTS. 
 
 Rules of inheritance 216 
 
 STATUTE OF FRAUDS. 
 
 Plea of 403 
 
 STATUTE OF LIMITATIONS. 
 Plea of 403 
 
462 
 
 INDEX. 
 
 STAY OF EXECUTION. 
 
 Bond of defendant, to obtain 421 
 
 STOCK (IN CORPORATIONS.) 
 Levy on, see Code §6430. 
 
 STOCK (LIVE). 
 
 Estrays (whieh see) 24-26 
 
 Impounding (wWcli see) 27-28 
 
 Injured by R. R., summons 57 
 
 Levy on, order to sell ■ 426 
 
 STOPPAGE IN TRANSIT. 
 
 Seller's right of, stated 261 
 
 SUBMISSION. 
 
 To arbitration "..... 294 
 
 SUBPOENA. 
 
 In Superior Courts 406 
 
 In Justices' Courts 282 
 
 Duces Tecum 406 
 
 SUITS. See Attachment, Breach of 
 Contract, Divorce, Petitions, Sfc-, #c. 
 
 SUMMONS. 
 
 To defendant in justices' courts .... 275 
 
 SUMMONS OF GARNISHMENT. 
 
 In attachment for purchase money. 309 
 In ordinary cases 339 
 
 SUMMONS TO JUROR. 
 
 Justices' courts 285 
 
 SUPERIOR COURT. 
 
 Application for adm'n to 287 
 
 Petition 388 
 
 SUPERSEDEAS. 
 
 Bond of plaintiff in error 436 
 
 Pauper affidavit, in lieu of bond. . , . 436 
 
 SUPPLIES. 
 
 Lien for, proceedings to foreclose. . . 176 
 
 SUPPORT. 
 
 Allowed family of decedent, see 
 Year's Support. 
 
 SUPREME COURT. 
 
 Application for admission to 288 
 
 Bill of exceptions 432 
 
 SURETY. 
 
 Plea of release 403 
 
 TABLE OF ANNUITY. 
 
 Form for jury charge as to use of.. . 267 
 The table itself 268 
 
 TABLE OF MORTALITY. 
 Form for jury charge as to use of. . 267 
 The Carlisle table 268 
 
 TELEGRAPH COMPANIES. 
 
 Incorporation, petition for 83 
 
 TEMPORARY ADMINISTRATION. 
 
 Application for 218 
 
 Letters temporary 219 
 
 TEN-DAY ORDER. 
 
 To sell live stock, perishables, &c. . 426 
 
 TENANT. 
 
 Distress warrant 383-5 
 
 Eviction of, proceedings for 379 
 
 Foreclosure vs. for supplies 176 
 
 TENDER. 
 
 Plea of 403 
 
 TESTAMENT. See Wills. 
 
 Letters testamentary 214 
 
 TESTAMENTARY CAPACITY. 
 
 Rule determining 205 
 
 TESTIMONY. See Evidence. 
 
 THREE-DAY ORDER. 
 
 To sell live stock, perishables, &c. . . 426 
 
 TITLE. See Deeds, Bills of Sale, &c. 
 
 Bond for 166 
 
 Levy where deft has not, law as to. 420 
 Petition to require adm'r to make. . . 232 
 Warranty of, suit for breach of 39 1 
 
 TITLE BY CONTRACT. 
 
 Morals of the law of, stated 260 
 
 TORTS. See Complaints, Petitions, 
 Declarations. 
 
 TOTAL DIVORCE. See Divorce. 
 
 TRADER. 
 
 Creditor's bill against 140 
 
 TRANSIT. 
 
 Stoppage in, law of stated 261 
 
 TRAVERSE. 
 
 Of attachment affidavit 315 
 
 Of certiorari answer 332 
 
 Of garnishee's answer 346 
 
 Of return of service, see Code ( 
 
 TRESPASSERS ON LAND. 
 
 Proceedings against 377 
 
 TRIAL. See New Trial. 
 
 TROVER. See Bail. 
 
 Complaint in superior courts . . , 
 in justice's court 
 
 TRUST DEED. 
 
 To secure debt, law regulating .... 168 
 
 TRUST FUNDS. 
 
 Investment, petition for 231 
 
 Law governing, Code §?3176, 4863. 
 Minor, return of service on ....... . 400 
 
 396 
 280 
 
INDEX. 
 
 463 
 
 •TWELVE MONTHS' SUPPORT. 
 See Year's Support. 
 
 TJSURY. 
 
 Plea of. 404 
 
 General information as to 19S 
 
 YERDICT. 
 
 In divorce case 97 
 
 In forcible entry and detainer .... 386 
 
 In proceeding vs. intruder 378 
 
 In proceeding to evict tenant 382 
 
 In road (damages claimed) 6 
 
 In trover, see Code |§ 3887, 3920, 5334 
 
 Ordinary verdict (justice ct.) 286 
 
 (Sup'r ct.) 411 
 
 Verdict in default cases, law as to . . 402 
 
 WAGES. 
 
 Exempt'n from garnishm't, claim of 345 
 Exemption from garnishment, con- 
 tract waiving 347 
 
 WAIVER. 
 
 Of garnishment exemption ., 
 
 .. 347 
 
 Of Homestead, in note 264 
 
 in mortgage 142 
 
 Of notice of interrog's- 408 
 
 WARD. See Guardians. 
 
 WAREHOUSE MAN. * 
 
 Power of attorney by farmer to 
 - mortgage crop to 147 
 
 WARRANT. 
 
 Distress for rent 383-5 
 
 Possessory, affidavit for 371-2 
 
 Eor arrest, see Penal Code, § 865.- 
 
 WARRANT OF APPRA.ISEMENT. 
 
 For decedent's estate 227 
 
 WARRANTY. 
 
 Breach of, suit for 394 
 
 WAYS. 
 
 Private ways (which subject-see). .18-23 
 WIDOW. See Dower, Fear's Support. 
 
 Complaint by, for homicide of hus 
 
 band 
 
 398 
 
 WIFE. See also Divorce and Alimony. 
 Husband and wife, generally. . . .87-103 
 
 WILL. 
 
 Affidavit of witness, proving 210 
 
 Capacity testamentarj', rule as to . . 205 
 
 Caveat 213 
 
 Deeds, instruments construed as. . . . 204 
 
 Last will and testament 203 
 
 Mutual — instrument upheld as. . . . 207 
 
 Oath of executor 214 
 
 Probate in common form, petit'n for 210 
 Probate in solemn form, petition for 211 
 Production, petition to compel .... 208 
 Witness, affidavit proving will 210 
 
 WITNESS. 
 
 See Interrogatories, Subpoena. 
 
 WORDS. 
 
 Complaint for 397 
 
 WORK. 
 
 Liens for, foreclosure of 169—172 
 
 WRIT OF CERTIORARI. See 
 
 Certiorari. 
 
 WRIT OF ERROR. 
 
 Judge's Certificate '....■. 435 
 
 WRIT OF HABEAS CORPUS. 
 
 Proceedings as. to 439 
 
 WRIT OF LUNACY. 
 
 Writ 125 
 
 Return or verdict 126 
 
 WRIT OF POSSESSION. 
 
 Dower lands 337 
 
 To eject intruder 378 
 
 In partition 369 
 
 WRITINGS. 
 
 Notice to produce 405 
 
 Subpoena duces tecum 406 
 
 WRONGFUL DISCHARGE. 
 
 Bights of employee stated 198 
 
 YEAR'S SUPPORT. 
 Proceedings to set apart 240v244 
 
I *l^. 
 
 M^ 
 
 ■iff, 
 
 ). 1 < IS 
 
 l^