If the plaintiff files a petition which sets forth a cause of action, and the defendant files an answer thereto which would be equivalent to a plea in confession and avoidance at common law, and instead of demurring to the answer the plaintiff goes to trial, and the issue made by the answer is found in favor of the defendant, we know of no good reason why this verdict should not be set aside upon motion made during the term at which the verdict was rendered, upon the ground that the plea was bad in substance, or why a new trial should not be granted in order that the pleadings might be amended and the bad plea stricken from the record, even if it would not be proper in such a case for the judge to ignore the matter of avoidance in the plea which was bad in substance, and enter a judgment in favor of the plaintiff upon the petition as confessed. Certainly, when the attention of the court is called to the fact that a judgment is about to be entered, in favor of the defendant, simply because a plea which was bad in substance, and which would be held to be frivolous and unfounded in the code states, had been found to be true by the jury, the court would have a right to disregard the plea, upon a motion to set aside the verdict, or, it may be, upon a motion for a new trial, or, if either of these remedies was not appropriate under our system, then to frame such a remedy as would prevent the court from entering a judgment which could have no other effect than to bring the court into discredit and the administration of the law into contempt. Such a judgment was never permitted at common law when a timely motion was made to disregard the finding upon the insufficient plea. Such a judgment cannot now be entered, in any of the code states in this Union, when a timely motion for a judgment on the pleadings is made. Certainly, in a state where the claim is made that substance only is looked to in judicial proceedings, such a judgment cannot be entered when timely objection is made to its rendition. If the court could at common law protect itself from entering such a judgment after verdict, then it would necessarily follow that, under our system, the court would have a right to stop the trial at any time before verdict, when its attention is called to the fact that the plea is bad in substance, and that, even if found true, it would not legally authorize a judgment in favor of the defendant, and would take some steps, either by striking the plea or directing a verdict, which would have the effect, not only of preventing the necessity of entering a judgment upon a bad plea, but also the necessity of proceeding with a trial which would result in no other way than in a finding which would have to be subsequently disregarded by the court. If the court can disregard the plea after verdict because the same is bad in substance, either by setting aside the verdict which is based

thereon, or by granting a new trial, or by taking such other steps as would have the effect of preventing a judgment from being entered on the finding in favor of the plea, then the court, during the progress of the trial, can take any proper and necessary steps required to prevent a finding upon the plea which is bad in substance. This may be accomplished either by striking the plea, If a motion is made to this effect, by ruling out evidence which is offered in support of the plea, or, if evidence has been admitted, by directing a verdict for the plaintiff notwithstanding the plea and the evidence offered in support thereof. A plea which does not set forth anything which is, in law, a sufficient reason for defeating the right of the plaintiff to recover upon a petition which sets forth a cause of action, should not, even if proved to be true, be allowed to have the effect to defeat the plaintiff in his right to recover, provided the plaintiff calls attention to the fact that the plea is bad in substance, either during the progress of the trial before verdict, or makes a timely motion after verdict to disregard the verdict finding in favor of the plea; and this is true notwithstanding the plaintiff has passed over the plea which was bad in substance without demurring to the same prior to the trial. It is well settled in this state that, if a petition does not set forth a cause of action, the court can relieve itself of the necessity of rendering a judgment in favor of the plaintiff on such a petition by dismissing the same at any time, during the progress of the trial, when its attention is called to the fact that the petition is bad in substance. This can be done either upon motion of the defendant or by the court upon its own motion. If the petition sets forth a cause of action, and the plea and answer thereto set up no ground of defense whatever, we see no good reason why, under our system, the court at any time before verdict should not give the case such direction as would disregard the plea, and do this either upon motion of the plaintiff or upon its own motion. This practice is entirely in accord with the theory of our system, which is that a verdict and judgment in a case should, so far as possible, decide the actual merits of the controversy between the parties, and do substantial justice between them. Of course, if the answer was good in substance, and was simply defective in form, the court would have no authority to disregard the same either on the motion of the plaintiff or otherwise, for the reason that, by failing to demur, the plaintiff has waived all defects of form in the

answer.

Keeping this in mind, none of the rulings of this court are in conflict with the position above taken. In Bryan v. Gurr, 27 Ga. 378, it was held that where a plea of justification had not been demurred to for insufficiency, and evidence had been admitted under it without objection, it was error for the

court to charge the jury that the plea was defective, and the defendant could take nothing under it. An examination of this case will show that the plea, though informal and defective, was good in substance, and of course in such a case the plaintiff, by failing to demur, waived the formal defects in the plea, and the court should have treated the plea as good for the purposes of the case. In Siesel v. Harris, 48 Ga. 652, it was held that when the defendant filed a plea of usury which was good in substance, but otherwise defective, and there was no demurrer to the plea, it was error for the court to charge that the jury could disregard the plea for the reason that it did not contain all of the essentials necessary to make a perfect plea of usury. There was nothing said in either of these two cases as to the right of the court to instruct the jury to disregard the plea if it had been altogether bad. In Henderson v. Fox, 83 Ga. 233, 9 S. E. 839 (3), it was held that a plea of justification, although loose and informal, which was not demurred to, would not be very closely scrutinized after verdict. Neither in England after the statute allowing pleadings to be amended, nor in the code states, was the court authorized to disregard, either before or after verdict, a plea which was good in substance but defective in form; and that is the extent only of the rulings just referred to. There is no ruling, so far as we have been able to ascertain, which in terms denies to the court the right to disregard a plea bad in substance before verdict, or after verdict if a timely motion is made to that effect, notwithstanding the failure of the opposite party to raise the question of the sufficiency of the plea by a general demurrer to the same. There is nothing in the position above taken which conflicts with the rulings of this court that the legal sufficiency of a petition cannot be called in question by a motion for a nonsuit, or by objection to evidence, or by a motion for a new trial. In the case of Fleming v. Roberts, 114 Ga. 634, 40 S. E. 792, which followed the previous rulings of this court, it was held that the legal sufficiency of a petition cannot be brought in question by an objection to evidence introduced in support of the same. It was there said: "If a petition is good in substance, but defective in form, objection to It must be made by an appropriate special demurrer at the first term; if a petition is not good in substance,-that is, taking every allegation to be true, it fails to set forth a cause of action,-objection must be made to it either by a general demurrer, or a motion to dismiss the case before verdict, or by motion in arrest of judgment or motion to set aside the judgment after verdict. We know of no other way in which the legal sufficiency of a petition can be properly brought before the court."

It will thus be seen that, where the defendant passes over a petition bad in sub

stance without demurring, he is given three remedies by which he may call in question the sufficiency of the petition,-one before verdict, and two after verdict,-one of these latter being recognized by the common law; that is, a motion in arrest of judgment; the other two, the motion to dismiss before verdict and the motion to set aside after verdict, being peculiar to our system. The legal sufficiency of a declaration could not be called in question at common law on a motion for a new trial, and it cannot be called in question by such a motion in this state. The legal sufficiency of a plea in confession and avoidance which was bad in substance, but which had not been demurred to, could be called in question at common law by a motion after verdict to enter a judgment notwithstanding the verdict, or, in certain cases, by a motion for a repleader. There being very few, if any, cases where the motion for a repleader would be applicable under our system of pleading, it follows that, If the motion for a judgment notwithstanding the verdict is not in substance still of force in this state, we have abolished the only remedy known to the common law which would be applicable under our system, and substituted no remedy in the place of this salutary common-law remedy which was abolished. The negligent or ignorant defendant who fails to demur to the petition is given, under our system, the motion to dismiss, available to him at any time before verdict, and there is retained for his benefit the common-law motion in arrest of judgment. Is the ignorant or negligent plaintiff to be punished more severely than the ignorant or negligent defendant? If we have retained the motion in arrest of judgment as a remedy for the defendant, why not retain also the motion for judgment notwithstanding the verdict for the benefit of the plaintiff? If we have created a new remedy for the defendant by motion to dismiss pending the trial, why not recognize the necessity for a similar remedy for the plaintiff, and give him a right to move to strike the plea or disregard the plea, or any other motion which would have the effect, during the progress of the trial, of disposing of a plea which was altogether bad in substance? A motion to exclude the evidence, or a motion to direct a verdict, would have the same effect, and in justice it seems that the plaintiff should be entitled to remedies of this character, where similar remedies are given to his adversary under circumstances where he would be as much at fault as the plaintiff would be.

In the present case, the plea confessed the truth of the allegations in the petition. It in effect admitted the execution of the bond and the failure to support the wife. It set up, as a reason why the defendant was not liable on the bond notwithstanding the facts charged in the petition were true, that the wife had voluntarily abandoned the husband, and the failure to support her was due entire

ly to her conduct. Under the ruling in Duke v. Brown, this constituted no reason for the failure to support the wife, and therefore was no defense to the action on the bond. If this plea had been proved, and the jury had returned a verdict finding in favor of the defendant on this plea, this finding would have been upon an issue which could not have legally decided the controversy between the parties. The finding should either have been disregarded or set aside. Such being the case, when it appeared to the court, during the progress of the trial, that the plea was bad in substance, and if found in favor of the defendant the court should have refused to enter a judgment thereon, it was not only the right, but it was the duty, of the court to give the case such direction as that the plea would be disregarded. This was done in the present case by refusing to allow evidence to sustain the plea. The same result could have been accomplished by allowing the evidence and directing a verdict against the defendant. In any event the right result was reached, and the judgment, so far as this question is concerned, should be affirmed.

In all that has been said, Mr. Justice LIT TLE agrees with us. In what follows we speak only for ourselves.

In this case, the bond was for $750, but for some reason the suit was brought only for $600. The court directed a verdict in favor of the plaintiff for the full amount sued for. It having appeared that the husband failed to support the wife, under the ruling in Duke v. Brown the plaintiff was entitled to recover the full amount of the bond, if this amount had been sued for, and under that ruling he was entitled in the present case to recover the full amount for which the suit was brought. It is insisted that the ruling in Duke v. Brown was erroneous, for the reason that there is nothing in the statute authorizing a judgment for the full amount stipulated in the bond, and that, therefore, suits upon bonds of this character should be governed by the ordinary rules of the common law, and the plaintiff should be permitted to recover only such damages as the proof showed she had sustained prior to the filing of the petition. The general rule is that in a suit upon a penal bond, whether the amount recovered is the full penalty or not, all remedies on the bond are merged in the judgment, and no further suit can be brought on the bond. The act in reference to the bond given for the purpose of stopping a prosecution for seduction provides that the bond shall be filed in the office of the ordinary and recorded, and, upon the failure of the principal obligor to comply with the bond, suit may be brought thereon. Pen. Code, § 389. The statute does not in terms say what should be the amount of recovery on the bond. The question thus arises whether it was within the contemplation of the general assembly that one recovery, say for a failure to support the wife for one day, of an infinitesimal amount, would

have the effect to prevent another recovery on the bond for a failure to support during a period of two, three, or five years. As the statute does not in terms provide that successive recoveries may be had upon the bond for continued default on the part of the husband to support the wife, the better view seems to be that the general assembly intend. ed that one suit only should be brought upon the bond. Such being the case, could this suit be brought the moment there was a failure to comply with the terms of the obligation, and the full amount of the bond be recovered as a penalty, the fund thus going into the hands of the ordinary to be disbursed by him for the benefit of the wife and her offspring, having a due regard for what had been done by the husband in the way of supporting his wife before the suit, or what might be done thereafter during the continuance of the five years; or was the wife compelled to wait until the expiration of the five years, and live as best she might during that term, and then bring a suit which would reimburse her for the cost of her living during the period that her husband had failed to support her? It must be kept in mind that the legislative purpose and intent was to provide for the maintenance and support of the wife, and the act must not be construed in such a way as to defeat this end. If it is held that no suit can be brought until after the expiration of five years, except for such an amount as may be necessary to pay for the support during the time that the husband may have failed to support the wife prior to the suit, or that a suit brought within five years must be limited so as to authorize a recovery only for an amount necessary to support the wife during that part of the period of five years which had expired before the bringing of the suit, then the legislative purpose, to provide for the support of the wife for the full period of five years, although not entirely defeated, is, to a large extent, disregarded. To hold that a suit brought during the five years was limited to the actual damages sustained up to the time the suit was brought would not carry out to its full extent the legislative purpose. To hold that the wife must wait until after the expiration of the five years, if she expected to demand of her husband and the security on his bond the full amount necessary to support her for the entire period, would not be at all in furtherance of the legislative scheme. The purpose, as has been stated more than once, of the general assembly, was to provide for the maintenance and support of the wife for the period of five years; and the amount necessary for this purpose was to be fixed by the ordinary when the bond was given; and the wife was entitled to look to the bond for such a part of this sum as was necessary to support her during that portion of the period of five years that the husband failed to support her. No other course was open to the court, in passing upon the act and determining what was intended to be accomplished by

the general assembly, keeping in view the purpose and intent for which the legislation was passed, than to hold that the failure, for any period of time, to support and maintain the wife, constituted a breach of the bond, and that, when such breach took place, it was the duty of the public officer who was the custodian of the bond to bring a suit thereon, and recover the full amount of the bond. Any other view than this is not only inconsistent with the purpose and intent of the legislation under consideration, but tends to defeat the wise and beneficent ends intended to be accomplished by that legislation. But it is said, as it was said in Duke v. Brown, that the act does not in terms authorize this. This must be conceded. While we cannot look to other legislation for the purpose of carrying into effect a piece of defective legislation, we can look to other legislation indicating the purpose and policy of the state in order to determine what was the legislative intent in dealing with a matter similar to that already dealt with by previous legislation, and construe the terms of the act in the light of prior legislation on a subject of a somewhat similar nature, and in this way give to the act a construction which is clearly in line with the legislative intent indicated therein, and which will further the wise purposes which are manifested by the terms of the act, when taken in the light of past history which had its effect in bringing about the legislation in question. The legislation on the subject of the remedies to be given on bastardy bonds was, therefore, in Duke v. Brown, resorted to in order to throw some light upon the question as to what was to be the character of the remedy upon the bond given in cases of the character now under consideration. It was not contended in Duke v. Brown, -neither is it contended now,-that there is any express legislation authorizing a recovery of the full amount of the bond in a suit of the character before us; but it was contended then, and it is contended now, that in no other way can the legislation contained in the sections of the Penal Code above cited be carried into full effect unless so construed as to allow in a given case a recovery for the full amount stated in the bond. Any other construction would not only be not consistent with the scheme as dealt with in the act, but would seriously tend to defeat the entire purpose for which the legislation was passed. The bond given by the seducer to stop the prosecution for seduction was treated as a bond given to the public, conditioned for the support of his wife, and, if he failed to support her, the public, through the public officer who was the payee of the bond, was to recover the amount, and see that the same was appropriated for the purpose for which the bond was given. While the question was not directly involved in Duke v. Brown, nor is it involved here, it was then said, and no reason appears for a modification of what was laid down there, although it may be subject

to the criticism that it was obiter, that the ordinary should use the fund from time to time for the support and maintenance of the wife and her offspring, and that if, at the end of the period of five years from the date of the marriage, any amount remained uncollected on the judgment, or, if collected, remained unexpended in the hands of the ordinary, such amount should be returned to the person who paid the same to the ordinary. The court is now, and was in Duke v. Brown, confronted with a condition of affairs where, under one construction, the act providing for the bond to be given by the seducer to support his wife and children could be rendered effective, and under another construction the act would be practically nullified. One construction would make the act a benefit to the victim of the crime; the other construction would simply afford to a confessed felon an opportunity to escape from the obligation to support a once virtuous female whose happiness and character he had destroyed. Between these two constructions it seemed, when Duke v. Brown was before the court, that that which carried into effect the manifest legislative intent, and inured to the benefit of the unhappy victim of the crime, was to be preferred to a construction which inured to the benefit of the felon himself, who was out of the penitentiary simply by the mercy of the law, the enforcement of which he was further attempting to defeat by the refusal to comply with the obligation entered into when this mercy was extended to him.

After due reflection, there appears no good reason why the rule laid down in Duke v. Brown should not be adhered to. Every conclusion reached in Duke v. Brown, after patient re-examination of that case, is still satisfactory to the writer, and nothing has occurred to his mind, or been presented by any one else, in reference to the conclusions there reached, which would require that the same should not be followed in other cases where the questions there discussed are involved. The writer stated in Duke v. Brown that a great deal of what was there said was obiter, but such portions of the opinion were then deemed to be necessary to a well-rounded discussion of the questions actually involved. The right was expressly reserved to depart from these dicta in the future, if upon further reflection they were not thought to be well founded. The writer now sees no reason to withdraw, restrict, modify, or depart from anything said in the opinion in Duke v. Brown.

(115 Ga. 796)

WYNN. RICHARD ALLEN LODGE, NO. 14, K. P. (Supreme Court of Georgia. June 12, 1902.) JUSTICE OF THE PEACE-SUMMONS-VALIDITY. 1. It is essential to the validity of a summons issuing from a justice's court for the purpose of instituting an action therein that some person should be named as defendant. Ac

cordingly, a summons which names as a defendant "Richard Allen Lodge, No. 14, Knights of Pythias," is fatally defective, in that it does not disclose that such lodge is either a corporation or a partnership, and therefore subject to suit. Barbour v. Albany Lodge, 73 Ga. 474, followed in Thurmond v. Baptist Church, 36 S. E. 221, 110 Ga. 816.

2. The ruling above announced disposes of the only question made and argued in the present case, and it follows that there was no error in refusing to sanction the petition for certiorari.

(Syllabus by the Court.)

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

Action by D. D. Wynn against the Richard Allen Lodge, No. 14, Knights of Pythias. Judgment for defendant in an action before a justice, and from the refusal of a petition for certiorari, plaintiff brings error. Affirmed.

O. E. & M. C. Horton, for plaintiff in erRucker. & Rucker, for defendant in

ror.

error.

PER CURIAM. Judgment affirmed. LEWIS, J., absent on account of sickness.

(115 Ga. 670)

BAKER v. BRANAN et al. (Supreme Court of Georgia. June 7, 1902.)

APPEAL-REVIEW-NEW TRIAL.

The evidence did not, under the law ap plicable thereto, demand the verdict rendered. Therefore this court will not reverse the judgment of the trial court granting a first new trial.

(Syllabus by the Court.)

Error from superior court, Carroll county; C. G. Jones, Judge.

Action by C. N. Baker against Branan Bros. & Co. From an order granting a new trial, C. N. Baker brings error. Affirmed. S. Holderness, for plaintiff in error. PER CURIAM. Judgment affirmed. LEWIS, J., absent on account of sickness.

(115 Ga. 671)

MCLAUGHLIN ▼. TAYLOR. (Supreme Court of Georgia. June 7, 1902.)

MORTGAGE LIEN-SALE BY RECEIVER-
PARTNERSHIP.

The lien of a mortgage held by a stranger to a suit in which a receiver is appointed to wind up the affairs of a partnership, against the individual interest in real estate of one member of the partnership, remains upon the property, notwithstanding it has been sold by the receiver.

(Syllabus by the Court.)

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

Action by L. C. McLaughlin against L. F. McLaughlin. Judgment for plaintiff. On levy of execution, J. M. Taylor filed a claim.

Judgment for claimant, and plaintiff in execution brings error. Reversed.

J. J. Dunham and Simeon Blue, for plaintiff in error. Geo. P. Munro, for defendant

in error.

COBB, J.

At

This was a claim case, in which L. C. McLaughlin was plaintiff in execution, L. F. McLaughlin defendant in execution, and J. M. Taylor claimant. the trial it appeared that on September 24, 1886, the defendant in execution executed a mortgage to the plaintiff in execution upon a one-fourth interest in certain described lots of land, and that this mortgage was duly recorded. At the time this mortgage was executed the defendant in execution was a member of the firm of Fort & Co., and this firm was in possession of the land described in the mortgage. On July 15, 1890, an order was passed by the judge of the superior court in a proceeding which had been instituted by L. F. McLaughlin against Wiley Fort for the purpose of dissolving the partnership above referred to, and having an accounting and settlement of the affairs of the same, authorizing the receiver which had been appointed to sell the assets of the firm, part of which was the land in controversy in the present case. Under the authority of this order the receiver sold the land in controversy, and on December 21, 1890, made a deed to the same to one Jenkins, and the claimant in the present case derived title from the purchaser at the receiver's sale. The mortgage of the plaintiff in execution was not foreclosed at the date of the receiver's sale, a judgment of foreclosure not having been obtained until the 27th day of April, 1892. The mortgagee was not a party to the proceeding in which the receiver was appointed and the order of sale granted. The court directed the jury to return a verdict finding the property not subject to the execution, and to this judgment the plaintiff in execution excepted.

The controlling question in this case is whether the sale by the receiver under the order in the proceeding instituted by the defendant in execution against his copartner for the purpose of winding up the affairs of the partnership of which they were members devested the lien of the mortgage held by the plaintiff in execution. The plaintiff in execution was not a party to this proceeding. The receiver was appointed for the purpose of bringing before the court and disposing of the property of the parties to the litigation, and no other interest was before the court than such interest as either of the partners had in the property sold by the receiver, and the only interest in the property in controversy which was before the court was the equity of redemption. Tarver v. Ellison, 57 Ga. 54; Roberts v. Hinson, 77 Ga. 589, 2 S. E. 752 (2); De Vaughn v. Byrom, 110 Ga. 907, 36 S. E. 267 (2). An