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dence at all, and documentary evidence is merely referred to in the bill of exceptions, this court can consider the same only so far as the contents of the documents are disclosed by the recitals in the bill of exceptions. Elwell v. Security Co., 28 S. E. 833, 101 Ga. 496; Parks v. Norman, 33 S. E. 1005, 108 Ga. 373; Braswell v. Brown, 38 S. E. 51, 112 Ga. 740.

2. Applying this rule to the case in hand, the bill of exceptions does not sufficiently show the character of the documentary evidence introduIced on the trial below to enable this court to determine whether or not the judgment excepted to was erroneous.

(Syllabus by the Court.)

Error from superior court, Montgomery county; D. M. Roberts, Judge.

Action between E. W. Hancock and James McNatt. From the judgment, Hancock brings error. Affirmed.

C. D. Loud, for plaintiff in error. J. B. Geiger and E. D. Graham, for defendant in

error.

PER CURIAM. Judgment affirmed.

LEWIS, J., absent on account of sickness.

(116 Ga. 350)

CENTRAL OF GEORGIA RY. CO. v. MOSELEY.

(Supreme Court of Georgia. Aug. 9, 1902.) APPEAL-REVIEW.

1. There was no material error in any of the several charges to which exception is taken, nor in admitting testimony; none of the numerous special grounds of the motion for a new trial not covered by the foregoing are meritorious; the verdict was warranted by the evidence, and was not excessive in amount; the case was tried in substantial accord with the rulings made therein by this court at the October term, 1900 (38 S. E. 350, 112 Ga. 914), and does not present any new question of law or practice for determination.

(Syllabus by the Court.)

Error from city court of Macon; W. D. Nottingham, Judge.

Action by S. R. Moseley against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Hall & Wimberly and J. E. Hall, for plaintiff in error. John R. Cooper and Steed & Ryals, for defendant in error.

PER CURIAM. Judgment affirmed.

LEWIS, J., absent on account of sickness.

(116 Ga. 63)

MAXWELL v. INMAN et al. (Supreme Court of Georgia. July 24, 1902.) NEW TRIAL.

1. There being no complaint of any error at the trial, and the evidence being sufficient to warrant the verdict, the trial judge did not abuse his discretion in refusing to set it aside. (Syllabus by the Court.)

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1. A judgment striking exceptions filed to an auditor's report as exceptions of law upon the ground that they were exceptions of fact will not, even if erroneous, be reversed, when it appears that the exceptions, even if treated as exceptions of law, were without merit.

2. When a partnership is dissolved by the death of one of the partners, the statute of limitations will begin to run in favor of the estate of the deceased partner, certainly after the expiration of 12 months from the date of the grant of administration upon the estate, as to all demands which the surviving partner may have against the estate, growing out of transactions occurring during the existence of the partnership.

3. When an action is brought upon an administrator's bond, and the administrator files a plea setting up that there was existing, at the time of the death of the intestate, a partnership between him and the defendant, and seeking to discharge himself as administrator from liability on account of demands which he has as surviving partner against the estate of the deceased partner, the plaintiff may reply to the claim so set up that the items thereof are barred by the statute of limitations, without filing a written pleading to that effect, when there is no order requiring such reply to be in writing.

4. Even if an administrator who has permitted a claim which he had against his intestate to become barred pending his administration may waive, in favor of himself, the right to plead the statute of limitations against the claim, and, in pursuance of this waiver, retain the amount due him from the assets of the estate, slight circumstances will be sufficient to overcome the presumption that his return setting up such retainer is correct, and that the claim against the estate was a just one, where there has been no return setting up the exercise of the right of retainer until long after the statutory period of limitations had expired; and especially would this be true where the return exercising the right of retainer was made pending a suit against the administrator for an accounting.

5. Applying the principles above laid down to the facts of the present case, there is nothing in the assignments of error requiring a reversal of the judgment. (Syllabus by the Court.)

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

Action by J. D. Sutton, guardian, against J. S. Willis and others. Judgment for plaintiff, and defendants bring error. Affirmed. Persons & McGehee, for plaintiffs in error.

Error from superior court, Oglethorpe A. J. Perryman and H. W. Hill, for defendcounty; H. M. Holden, Judge.

ant in error.

COBB, J. This was an action upon an administrator's bond, brought by a guardian whose ward was the grandchild of the defendant's intestate. The defendant sought to relieve himself from liability by showing that there was a partnership existing between his intestate and himself at the date of the former's death, and that he was entitled to credit, as against the claim of the plaintiff, for certain items growing out of the conduct of this partnership business, and an agreement which had been entered into between the heirs of the intestate and himself; the mother of the plaintiff's ward being one of the parties to this agreement. The case was referred to an auditor, and, after certain exceptions, which had been filed as exceptions of law to his report, were stricken, the exceptions of fact were submitted to a jury, who found against all such exceptions. The court entered a judgment in favor of the plaintiff for the amount specified in the auditor's report. The case is here upon a bill of exceptions assigning error upon different rulings made at the trial. All of the questions made in the record are, we think, ruled in the headnotes, and we do not deem it necessary or advisable to go further into the details of this somewhat complicated record. If any error was committed by the trial judge, it was not of such a character as to require a reversal of the judgment. From an inspection of the record we are satisfied that the auditor reached the right result. He did not assign, as reasons for his conclusion, some of the principles laid down in the foregoing headnotes, but these may be taken simply as reasons additional to those which he did assign for his findings.

Judgment affirmed. All the justices concurring, except LEWIS, J., absent on account of sickness.

(116 Ga. 337)

FARRAR et al. v. SOUTHWESTERN R.

CO.

SOUTHWESTERN R. CO. v. FARRAR et al.
(Supreme Court of Georgia. Aug. 9, 1902.)
RAILROADS-INSOLVENCY-ABROGATION OF
LEASE-RIGHTS OF STOCKHOLDERS
OF LEASED ROAD.

1. The federal court which administered the assets of the Central Railroad & Banking Company through a receivership thereof did not treat its lease of the property of the Southwestern Railroad Company as being of force and effectual during the entire period of the litigation.

2. The lease contract of 1869 between the Central Railroad & Banking Company and the Southwestern Railroad Company was, in effect, practically abrogated during at least a portion of the time that litigation was in progress.

3. If the stockholders of the latter company were in their own right entitled to any portion of the fund paid by the Central of Georgia Railway Company to it in settlement of its demand for "back rentals," no stockholder's claim on this account in any event exceeded 5 per cent. upon the amount of his capital stock, and a stockholder who received this

much of that fund cannot maintain against his company an action for more of it.

4. Even if a stockholder who had received none of this fund had a right of action against the company, the same became barred under the four-years statute of limitations.

(Syllabus by the Court.)

Error from superior court, Bibb county; Dupont Guerry, Judge pro hac.

Action by R. M. Farrar and others against the Southwestern Railroad Company. From the judgment, both parties bring error. Judgment on the main bill of exceptions affirmed; on cross bill, dismissed.

Henry A. Alexander, for plaintiffs. Hardeman, Davis & Turner and Adams, Freeman, Denmark & Adams, for defendant.

LUMPKIN, P. J. In the year 1869, the Southwestern Railroad Company, hereinafter called the "Southwestern Company," under legislative authority leased its railroad to the Central Railroad & Banking Company, here inafter called the "Central Company." By the terms of the contract, the lessee was to pay to the stockholders of the lessor a semiannual dividend upon their stock of 31⁄2 per cent., these dividends being due in June and December of each year. They were regularly paid up to and including the month of June, 1892. Previously, on the 3d day of March, 1892, the property of the Central Company had, upon a bill filed against it and others in the United States court by Rowena M. Clarke and others, been placed in the hands of E. P. Alexander as temporary receiver. Later, what is termed a dependent bill was filed by this company against the Farmers' Loan & Trust Company and others; and, finally, all of the property of the Central Company passed into the hands of H. M. Comer and R. Somers Hayes as permanent receivers, to be administered under the bill last mentioned. The latter was appointed receiver in October, 1893. This receivership terminated on the 31st day of October, 1895. No payments of dividends were made by the receivers to the stockholders of the Southwestern Company after June, 1892.

On January 19, 1893, H. M. Comer as receiver, under an order of court and for the purpose of securing the payment of a certain sum of money which he was authorized to borrow in order to carry on the business with which he had been intrusted, pledged to the Mercantile Trust Company various assets of the Central Company, including the leasehold interest it had held in the property of the Southwestern Company. On June 30, 1893, the court passed an order of which the following is a copy: "Ordered, that the receiver of this court shall, as soon as practical, make a report on the following corporations whose properties are under lease to the Central Railroad and Banking Company of Georgia, to wit: The Southwestern Railroad Company, the Augusta & Savannah Railroad Company, the Mobile & Girard Railroad Company, the Eatonton Branch Railroad; which report shall show

the amount of earnings which have come into the hands of the receiver from the operation of the said leased lines from March 4th, 1892, to date, or as near thereto as practicable, and shall also show the amount of expenses incurred by him in the operation of the same, and the amount of the disbursements for their account during the same period. The receiver shall also furnish to the said corporations a copy of this order. Within thirty days from the receipt of the said communication by the respective corporations, the said corporations shall make known to the receiver, and to this court, whether they desire to permit said properties to remain in the hands of the said receiver as representing the lessee company, with the right on the part of the said corporations, or either of them, to claim the net results of the operation of their respective properties, up to the rental contract, but not beyond, or whether the said respective corporations shall receive from the receiver the surrender of the leasehold interests held by him as receiver of the Central Railroad and Banking Company of Georgia. Should any of the said companies make known their option to receive the surrender of the leasehold interest as aforesaid, the said receiver shall immediately apply to this court, or to any one of the judges thereof, for an order authorizing and directing him to surrender the same. Should any of the said companies elect to permit the leasehold interest to remain in the hands of the receiver, said companies shall have the right to claim from this court the net results of the operation of their properties by the receiver, up to the rental contract price, and no more, unless the receiver should, under order of the court, elect to retain the leasehold interest, and to pay therefor the rental contract price." The action taken by the directors of the Southwestern Company with respect to this order will be gathered from the following extract from a report made by its president to the stockholders: "In view of the fact that the surrender of the road without shops or rolling stock would involve an immediate large expenditure that the company was not prepared to make, it was deemed advisable to permit the receiver of the Central to continue, for the present, to operate the road for account of the company, not because we desired it, but because we were practically helpless to do otherwise, and the so-called option was, or at least had all the force of, a mandate."

Comer, the receiver, and his associate, Hayes, continued to operate the railroad of the Southwestern Company until, under a plan of reorganization approved by the court, the Central of Georgia Railway Company, hereinafter referred to as the "New Central Company," became the owner of the lines of railroad and other properties of the Central Company. Before the reorganization took place, the receivers, under the order and approval of the court, sold the assets pledged as above stated. The Mercantile

Trust Company was the purchaser, and the proceeds of this sale were credited upon the debt which these assets had been pledged to secure. The plan of reorganization, to which the Southwestern Company was a party, embraced the following stipulation: "The new company will obtain new leases of the Southwestern and Augusta & Savannah railroads at a rental of 5% upon their respective capital stocks. Any arrears of rental due to these railroad companies, respectively, shall be adjusted on this basis." In a contract between the Southwestern Company and Samuel Thomas and Thomas F. Ryan, it was, among other things, agreed that these men were to purchase all the "railroads and property" of the Central Company, organize the new company, and deliver to it all that was so purchased; and that to this company the Southwestern Company would lease its railroad under a contract similar to that made in 1869 with the Central Company, except that the rental was to be upon the basis of 5 per cent. per annum instead of 7, and was to be payable to the Southwestern Company as a corporation, and not directly to its stockholders. In the contract between this company and Thomas and Ryan was a stipulation in these words: "Said purchasers will cause to be paid to the said Southwestern Railroad Company, through R. T. Wilson, its president, the rentals in arrears due the Southwestern Railroad Company, under the existing lease, from July first, eighteen hundred and ninety-two, up to the date of the execution and delivery of the new lease herein provided for, at the rate of five per cent. per annum, such rental to be paid in cash out of the proceeds of the issue of sixteen million, five hundred thousand dollars consolidated 50-year gold bonds, but it being agreed that there shall be credited on account of such rental whatever the Southwestern Railroad Company shall have received, or may hereafter receive, from the receivers on account of the rental or operation of said road accruing from and after July first, eighteen hundred and ninety-two, not including any amount spent upon the road or in its operations or improvements." These arrangements were all carried into effect, and on November 1, 1895, the court passed an order containing the following: "The Central of Georgia Railway Company hereby agrees and binds itself, on or before December 15, 1895, to fully pay and discharge any balance due of the arrears of rental, calculated on the basis of five per cent. on the capital stock of said Southwestern Railroad Company, deducting the payment herein stated, made and to. be made; and, upon the failure to make such payment on or before the date last aforesaid, the Southwestern Railroad Company shall be at liberty to apply to the court, on five days' notice, for such summary order requiring the said Central of Georgia Railway Company to pay over such balance due prior to

January 1, 1896." Immediately following the words just quoted, the order ran thus: "It is further ordered that the receivers of this court are hereby directed and authorized to turn over and deliver to the said Central of Georgia Railway Company, at midnight on October 31st, 1895, the possession of all the railroad and property of said Southwestern Railroad Company now in their possession as officers of this court; the said Central of Georgia Railway Company accepting such possession subject to the orders of this court requiring it to complete the payment of such back-due rental on or before the date herein before stated." Subsequently, the New Central Company paid over to the Southwestern Company the sum of $865,183.34, this being 5 per cent. per annum upon the capital stock of the Southwestern Company during the period of default herein indicated. This company, out of this sum, paid about $265,000 in settlement of various charges and expenses incident to the litigation, and on December 24, 1895, declared a dividend of 10 per cent. payable to the stockholders of record on that date. The gross sum received was thus reduced to about $90,000, which was set apart as a "sinking" fund, and so invested that it now amounts to something more than $100,000.

On July 18, 1899, R. M. Farrar filed against the Southwestern Company, in the superior court of Bibb county, a petition in which it is alleged that he "is the holder of an instrument of assignment by which the present owner of" specified certificates of stock issued by the Southwestern Company, "heretofore transferred, set over, and assigned to petitioner all his right, title, and interest in and to whatever sums of money he might be entitled to by virtue of his ownership of said shares of stock in the Southwestern Railroad Company, and not collected by him up to the date of assignment, except such dividends as might be declared on said stock after June 1st, 1899." To this petition there were several amendments, and the whole set forth, in substance, the facts above stated. The plaintiff in his original petition prayed for a judgment declaring that the fund received by the Southwestern Company from the New Central Company belonged to the stockholders of the former "at the time said fund should have been received by them under the terms of the lease of 1869," and for a distribution thereof accordingly. One of the amendments contained a prayer in these words: "That the execution of the decree for the return to its true owners of all that part of the fund received in compromise of defaulted rentals, except the sinking fund and the income subsequently received from it, which is now in the possession of the defendant company, be suspended and stayed by the court until such time when the said company shall have had a full opportunity to recoup itself against those whose conduct subjected it to this liability; 42 S. E.-34

it being the desire and purpose of petitioner to hold this action, except so far as it concerns the sinking fund and the income derived therefrom, in subjection to the wishes of the present stockholders of the defendant." Practically, then, the action was for the distribution of the sinking fund, and for the recovery of Farrar's alleged interest therein. Several other persons were, upon their own application, made parties plaintiff. The petition was on demurrer dismissed as to all of them, and they are here excepting to this action of the court.

1. As will have been perceived, the theory of the original plaintiff was that the large fund received from the New Centrai Company all belonged to the persons who were stockholders of the Southwestern Company at the end of each six months when the dividends would have been payable under the old lease; that the Southwestern Company had no right to one dollar of this fund; that it accordingly received the money in trust for the alleged owners, and was therefore liable to them for the same. It was urged in the argument here that: "The lease contract of 1869 was continuously in existence during the receivership of the Central Railroad; and ceased to exist only upon the execution of the amended lease of 1895." In support of this contention it was insisted that the hypothecation and sale of the "leasehold interest," under the order of the United States court, to the Mercantile Trust Company, necessarily showed that the court regarded the lease contract as being in existence and of force all the while. In this view we do not concur. The assets of the Central Company were pledged before the order of June 30, 1893, of which we shall presently have more to say. The pledgee, in so far as the "leasehold interest" was concerned, took no more than a bare equity, subject to the chances of the pending litigation; and, before the sale of that interest occurred, the character of that equity had been fixed by the order last mentioned, and it was, because of that order, either valueless in the hands of the purchaser, the Mercantile Trust Company, or else that company and its final successor in ownership, the New Central Company, acquired the right to whatever the owner of the equity was entitled to receive. Neither of these alternatives would be helpful to the plaintiffs in error. There are, it must be admitted, expressions in several of the documents copied above, and in others appearing in the record, which tend strongly to support the contention that the "leasehold interest" was continuously of force throughout the litigation; but these expressions cannot, in our judgment, do away with the positive terms of the order of June 30, 1893.

2. The effect of that order was to practically abrogate the original lease, at least from the time the Southwestern Company elected to allow its property to remain in

the hands of Comer as receiver. Certainly, from that time to the end, neither the Southwestern Company nor its stockholders could demand the 7 per cent. per annum, or, indeed, anything under the old lease contract. Undoubtedly, we think, it was no longer operative or effectual, but the company, by allowing its property to remain in the hands of the receiver, did obtain "the right to claim from [the] court the net results of the operation" of its property. This right was clearly given to the company, and not the stockholders.

3. In so far, then, as that portion of the $865,183.34 which sprang from the "net results" of the operation of the railroad of the Southwestern Company after the order of June 30, 1893, became effective, is concerned, we are quite clear that the same was properly paid to the company, and that it had the right to dispose of it as a corporate fund. If the amount of the two dividends which would have accrued in December, 1892, and June, 1893, under the old lease (making, both together, by the terms of the contract, 7 per cent., and which amount was by the settlement adjusted upon the basis of 5 per cent.), does in equity belong to those who were stockholders during these months, no person who was such a stockholder can claim his share of that amount if he has already received out of the gross fund a sum equal to or greater than 5 per cent. upon his stock. Counsel for Farrar conceded that his petition, properly interpreted, showed that his assignor did receive the 10 per cent. dividend declared December 24, 1895. This being so, that petition, in our judgment, utterly failed to set forth any cause of action against the defendant. His counsel relied earnestly upon the decision of this court in the case of Meldrim v. Trustees, 100 Ga. 479, 28 S. E. 431. That decision is by no means controlling in the case before us, for the reason that the court did not, in rendering it, pass upon the main question upon which Farrar's alleged right of action depends. While some of the expressions used by the chief justice, who delivered the opinion, indicate the contrary, it is nevertheless true that the court was not called upon to construe the order of June 30, 1893, and did not undertake to decide what effect should be given to it. On the other hand, that case was decided upon the agreed statement of facts which the parties thereto submitted to the court below. Neither side contended that the receiver did not, in point of fact, continue to operate the railroad of the Southwestern Company under the original lease of 1869; but in the agreed statement of facts just referred to, which constituted a part of the transcript of the record of that case of file in this court, it was conceded "that the consideration money under said lease was due from July 1st, 1892, to November 1st, 1895, the date when the lease contract between the Southwestern Railroad Company and the

Central of Georgia Railway Company became effective, a period of three [3] years and four [4] months." In other words, the lease of 1869 was treated as being operative during the entire period of the receivership. The order of June 30, 1893, was not mentioned in this agreed statement of facts, or alluded to in the pleadings; nor did it constitute a part of the record transmitted to this court. Indeed, we are by the record in the present case, for the first time, informed as to the contents of that order and its effect; which was, as above pointed out, to practically abrogate the original contract of lease made in 1869, at least from the time the Southwestern Company elected to allow its property to remain in the hands of Comer, as receiver, under the terms and conditions in that order specified.

4. As to the persons who were made parties plaintiff while the case was pending, it is sufficient to say that their right of action, if any they had, was barred by the statute of limitations. They were not made parties till November 14, 1901, which date is, of course, that upon which the action as to them began; and it was about six years after the Southwestern Company received the fund in controversy. The four-years bar applies. The written contract of lease between the Central Company and the Southwestern Company was in no sense a contract between the latter company and its stockholders, and it certainly embraced no promise by that company to pay them anything. The fact that this contract provided that the Southwestern Company should maintain, during the lease, its corporate organization "to the fullest extent necessary to preserve its charter, and protect the rights of its stockholders," does not, as contended, amount to a covenant under seal which brings this case within the twenty-years limitation. The ten-years limitation provided for in the Civil Code (section 3772) applies to technical trusts, and not to a case like the present. Lightning Rod Co. v. Cleghorn, 59 Ga. 782; Schofield v. Woolley, 98 Ga. 548, 25 S. E. 769, 58 Am. St. Rep. 315; Tiedman v. Fertilizer Co., 109 Ga. 661, 35 S. E. 999; Teasley v. Bradlez, 110 Ga. 498, 504, 35 S. E. 782, 78 Am. St Rep. 113. Moreover, the Southwestern Company was not undertaking to act as trustee for the stockholders with respect, to the fund it received from the New Central Company for the "back rentals." According to the petition, the defendant immediately set up the claim that the money was its own, and from the beginning held it adversely to the stockholders. If this fund really belonged to them, it was simply the case of an agent collecting money for his principal and keeping it. This being so, the suit should have been begun within four years from the time the adverse claim was, with the knowledge of the stockholders, set up. The petition does not show that any of the plaintiffs were ignorant of the position which the company

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