sane at the next, and then immediately afterward sane again; and all this without any outward sign of the change in his mental condition. It is, however, useless to elaborate any further, as this court is bound by its former decisions upon this subject, which will be found cited in Carr v. State, 96 Ga. 284, 22 S. E. 570; Taylor v. State, 105 Ga. 746, 31 S. E. 764; Minder v. State, 113 Ga. 772, 39 S. E. 284. We therefore conclude that those requests to charge which sought to substitute another test of sanity for the knowledge of right and wrong should not have been given. With regard to the exception to the general rule in case of delusional insanity, the charge was correct, and followed the cases of Roberts v. State, 3 Ga. 310; Danforth v. State, 75 Ga. 614, 58 Am. Rep. 480; Flanagan v. State, 103 Ga. 619, 30 S. E. 550. Under the rules laid down in the above-cited cases, the finding of the jury was right, for the accused knew the difference between right and wrong, and acted upon real circumstances and the ordinary perceptions of the mind, and not upon any morbid delusions. There was no error in refusing a new trial.

Judgment affirmed. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness, and CANDLER, J., not presiding.

(116 Ga. 412)

ATLANTIC & B. R. CO. v. SEABOARD AIR LINE RY.

(Supreme Court of Georgia. Oct. 29, 1902.) EMINENT DOMAIN-RAILROADS-CROSSINGS-

INJUNCTION.

1. Where a railroad company was chartered by the legislature, but the charter gave it no power to condemn a right of way over the track of another railroad company, and where, subsequently, it made application to the proper authority to amend its charter in certain specified particulars, and also to adopt the provisions of the general railroad law of this state "as far as applicable," and such applicatior was grauted, section 2167 of the Civil Code, giving the right to acquire a right of way over the track of another railroan company by condemnation, became incorporated into its charter, although under the originai chatter such right of way could be acquired only by coutract, lease, or purchase.

2 Such company has, however, no right or power to cros the track of another railroa company without first acquiring such right or power and paying such just compensation therefor as may be fixed by contract or by condemnation proceedings instituted under the law enacted for that purpose.

3. Where such railroad company is about to cross the track of another railroad company without having acquired the right to do so, it is proper to grant an injunction at the instance of the latter company; but it is error for the court to provide in its order that the defendant company may cross the track of the plaintiff upon condition that it put in a certain described system of switches. The defendant should have been enjoined from making the crossing until it had acquired a legal right to

cross.

(Syllabus by the Court.)

2. See Eminent Domain, vol. 18. Cent. Dig. §§ 226, 318.

Error from superior court, Dooly county; Z. A. Littlejohn, Judge.

Suit by the Seaboard Air Line Railway against the Atlantic & Birmingham Railroad Company. Judgment for plaintiff, and defendant brings error. Modified.

J. L. Sweat, for plaintiff in error. J. Randolph Anderson, for defendant in error.

SIMMONS, C. J. An equitable petition was filed by the Seaboard Air Line Railway to enjoin the Atlantic & Birmingham Railroad Company from crossing its tracks in the city of Cordele at a point which was, the plaintiff alleged, "within so short a distance from the passenger station" it had established in that city "as to make it impossible for petitioner's trains to stop at said station without lying across and obstructing the proposed track of said Atlantic & Birmingham Railroad Company." It was further alleged in the petition (1) that, "should said crossing be permitted, petitioner could not handle its trains at said passenger station without constant danger to the same and to the traveling public thereon from trains of said Atlantic & Birmingham Railroad Company, and that the safety, value, and use of petitioner's said station would be destroyed"; (2) that said company had not secured from petitioner "any right by contract to make the said crossing," or "by condemnation or other legal means obtained the right to make such crossing"; and (3) that it was "not necessary that the tracks of said Atlantic & Birming ham Railroad Company should be allowed to cross the tracks of petitioner at the point selected by them, but that other and more suitable points of crossing could have been selected and can be selected, and which would work less damage to petitioner and which would not involve such great and constant danger to trains and to the traveing public." The defendant company file an answer in which it admitted that it ha not, by contract or by condemnation proceed. ings, acquired any right to cross the track of the plaintiff, but denied that the proposed crossing at the point in question would result in the injury apprehended by the latter, and alleged "that the point of the proposed grade crossing aforesaid is the only feasible, practical one to be made. A hearing was had in the court below, resulting in the grant of an injunction, and the defendant company excepted.

1. In view of the pleadings and the evidence upon which the case was submitted to the trial judge, and of the comprehensive scope of the order passed by him, the main question presented for our determination is whether or not the Atlantic & Birmingham Railroad Company has corporate authority to exercise the power of eminent domain, and thereby acquire a right to construct the proposed crossing. It is the legal successor to the Waycross Air Line Railroad Com

GAINES v. GAINES et al. (Supreme Court of Georgia. Oct. 30, 1902.) EQUITABLE PETITION-PARTIES.

1. Where a petition for equitable relief is filed by plaintiffs, as heirs at law of a decedent, in behalf of themselves and other heirs at law, and it appears from the copy of the will attached to the petition that the property involved would, if the averments contained in the petition concerning a deed made by the decedent on the same day that he made the will be true, pass, under a residuary clause of the will, to certain legatees, and all of these legatees are not made parties, and where it appears from the petition that some of the parties plaintiff are not legatees, a demurrer to the petition containing this ground is good, and should be sustained.

(Syllabus by the Court.)

Error from superior court, Bartow county; A. W. Fite, Judge.

Action by M. P. Gaines and others against L. P. Gaines. Judgment for plaintiffs, and defendant brings error. Reversed.

R. J. McCamy and J. M. Neel, for plaintiff in error. John W. Akin, for defendants in error.

ADAMS, J. The defendants in error filed their petition for equitable relief against the plaintiff in error, and expressly stated that they did so for themselves and all other neirs at law of the decedent whose estate was represented by the plaintiff in error as

executor. The purpose of the proceeding was to have set aside a deed to property of the decedent which it was claimed the plaintiff in error had secured by fraud and undue influence, and the prayer was that the property covered by this deed be adjudged to be the property of the decedent's estate. To this petition was attached the will of the decedent, in which, after disposing of other property, he directed that his executor convert all the rest and residue of his estate into money, and after paying debts and the expenses of administration, and setting apart a sufficiency to pay a specific legacy provided for in another item of the will, he then divide the balance of the funds of the estate into what the residuary clause calls "eight equal shares," which are designated. All of these legatees named are not made parties in any way, and several of the parties plaintiff are not such legatees. There is no suggestion of a claim in the petition in behalf of any of the parties plaintiff as legatees, and they expressly and in terms make their claim as heirs at law. If the theory of the plaintiffs be true, then it follows that the deed of the defendant is void, and the property thereby sought to be conveyed is still a part of the estate of the testator, and belongs, under the terms of his will, to the residuary legatees. The two general methods of acquiring title to things real are those by descent and by purchase; the latter, in its technical sense, covering every mode of acquisition, save only where the title is vested by operation of law. The differences between claims based upon these titles are essential and fundamental. A case made by heirs at law is a different case from that made by legatees. The decision of this court in the case of Phillips v. Rentz, 106 Ga. 249, 32 S. E. 107, covers, we think, this case; certainly in principle, even although the facts be not identical.

Judgment reversed. All the justices concurring, except LUMPKIN, P. J., absent on account of sickness.

(116 Ga. 476)

GAINES et al. v. GAINES. (Supreme Court of Georgia. Oct. 30, 1902.) EXECUTORS - BILL FOR CONSTRUCTION - INDIVIDUAL TRANSACTIONS.

1. A petition filed by an executor against all the heirs at law of his testator and all parties interested, which is based upon the principles embodied in section 4000 of the Civil Code, is sustainable, even although individual transactions of the plaintiff may be involved; it appearing that the estate is interested in all of the property covered by the suit, and that the defendants are or may be interested in such property; all of the allegations of the petition being connected with the distribution of the estate.

(Syllabus by the Court.)

Error from superior court, Bartow county; A. W. Fite, Judge.

Suit by H. W. Gaines and others against

L. P. Gaines, as executor. Judgment for defendant, and plaintiffs bring error. Affirmed.

John W. Akin, for plaintiffs in error. J. M. Neel, for defendant in error.

ADAMS, J. The petition in this case was filed after that dealt with in the case of Gaines v. Gaines, 42 S. E. 763, this day decided; the present defendant in error being the defendant in the court below. It was filed under the provisions of section 4000 of the Civil Code. All the questions involved are connected with the distribution of the estate. All the parties concerned under the will or as heirs at law are made parties defendant. The petition contains abundant equity, and complete justice can be done in the case made without the violation of any rule of law or practice known to us. We have read the petition, which the learned judge of the court below sustained against a demurrer filed on various grounds, not only with attention, but with pleasure. It is model of lawyer-like clearness, precision, and skill. We are satisfied that the court below was right in sustaining it and in overruling the demurrer. No useful purpose will be subserved by quotations therefrom, or a detailed discussion of its allegations.

Let the judgment of the court below be affirmed. All the justices concurring, except LUMPKIN, P. J., absent on account of sick

ness.

(116 Ga. 491)

DAVIS et al. v. DOUGHERTY COUNTY et al.

(Supreme Court of Georgia. Oct. 30, 1902.) COUNTIES BOND ISSUE-ELECTIONS-NOTICESTATUTES-IMPLIED REPEAL.

1. A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body.

2. The act of 1891 (Acts 1890-91, vol. 1, p. 241; Civ. Code, § 5458) relating to the publication of notices of sales and orders by certain public officers and others did not repeal or modify that portion of the act of 1879 (Pol. Code, § 377) which requires that notice of an election called for the purpose of determining whether bonds shall be issued by a county shall be published for a space of 30 days next preceding the day of the election.

3. When, at the hearing of an application under the provisions of the act of 1897 (Acts 1897, p. 82: Van Epps' Code Supp. 88 60746081) to validate an issue of bonds, it appears that the notice of the election was published for a period of time less than 30 days next preceding the day of the election, a judgment should be entered declaring the election invalid, and refusing to validate the bonds.

(Syllabus by the Court.)

Error from superior court, Dougherty county.

Petition by Dougherty county and others for an order validating a certain bond issue. From a judgment granting the petition, J. S. Davis and others bring error. Reversed.

D. H. Pope & Son, for plaintiffs in error. D. F. Crosland and W. E. Wooten, Sol. Gen., for defendants in error.

COBB, J. An election was held in the county of Dougherty to determine whether bonds to the amount of $40,000 should be issued for the purpose of erecting a new courthouse. The registration list for the Perelection showed 611 qualified voters. sons to the number of 427 voted, "For bonds," and 81 voted, "Against bonds." When the application to validate the issue of bonds came on to be heard, certain citizens of the county appeared, and were made parties to the proceedings, and interposed numerous objections to the passage of an order validating the bonds. One of the objections urged was that the notice of the election had not been published the requisite number of days before the election. Upon the hearing it appeared that the order of the county commissioners calling the election was passed on May 5, 1902; that the first notice of the election was published in the newspaper in which the sheriff's advertisements were published in an issue of the paper dated May 10th; and that subsequent insertions of the notice appeared in issues of the paper dated the 17th, 24th, and 31st days of May. It was admitted that the papers were really issued one day before they bore date. The election was held June 5th. It thus appears from the uncontradicted evidence and the admission above referred to that, between the date of the paper in which the first insertion of the notice of the election was given and the date of the election, there were only 26 days, and between the date of the actual issue of the paper and the date of the election there were only 27 days. Having reached the conclusion that a failure to begin the publication of the notice at a time which would be 30 days from the date of the election invalidated the election, it is unnecessary to refer to the other objections which were raised at the hearing of the application to validate the bonds.

The statute provides that the authorities calling such an election "shall give notice for the space of thirty days next preceding the day of election, in the newspaper in which the sheriff's advertisements for the county are published, notifying the qualified voters that on the day named an election will be held to determine the question whether bonds shall be issued by the county, municipality or division." Pol. Code, § 377. It is contended that, in determining what would be a compliance with the section of the Code just quoted, reference must be had to the provisions of the act of 1891, now contained in Civ. Code, § 5458. That act provides that "in all cases where the law of force on October 21st, 1891, required citations, notices, or advertisements, by ordinaries, clerks, sheriffs, county bailiffs, administrators, executors, guardians, trustees or others, to be pub

lished in a newspaper for thirty days it shall be sufficient and legal to publish the same once a week for four weeks (that is, one insertion each week for each of the four weeks) immediately preceding the term or day when the order is to be granted, or the sale is to take place; and the number of days between the date of the first publication, and the term or day when the order is to be granted or the sale to take place, whether more or less than thirty days, shall not in any manner invalidate or render irregular the said notice, citation, advertisement, or order or sale." Section 377 of the Political Code is a codification of the act of 1879, and therefore is a law which was of force at the date named in the act of 1891. While the act of 1879 is a general law in the sense that it is not confined in its operations to a given locality, it is a special law in the sense that it applies only to a particular proceeding. In Montford v. Allen, 111 Ga. 18, 36 S. E. 305, it was held that the provisions of section 5458 of the Civil Code did not repeal the provisions of an existing municipal charter; it being there said that "a general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body." It is true that in that case the particular or special law was also a local law, but we do not think this difference makes the principle of that decision any the less applicable in the present case. Even if the act of 1891 was, in general terms, sufficiently broad to embrace notices of elections to determine whether bonds should be issued by the authorities of municipalities and counties, it would not be construed so as to repeal the provisions of the act of 1879, unless there was something in the act of 1891 which made it plainly manifest that the general assembly intended that it should have this effect. But we do not think the act of 1891 is, even in general terms, sufficiently broad to cover cases provided for in the act of 1879. The act of 1891 relates to citations, notices, and advertisements by certain public officers and certain representatives of estates; the enumeration of such officers and representatives being followed by the words "or others." Applying the doctrine of ejusdem generis in the construction of the words just quoted, the officers charged with levying taxes, contracting debts, etc., for counties and municipalities, are not of the same class as any of the officers enumerated in the act, and consequently would not be embraced within the general descriptive word, "others." It is true that among the officers enumerated is the ordinary, and that in some counties the ordinary is the officer who has jurisdiction in county matters. But applying the rule of construction, noscitur a sociis, the ordinary referred to in this act is the officer who is the judge of the probate court, and not the

ordinary who has charge of county affairs. In addition to this, the act of 1891 does not apply in any case except where a notice is to be given of a sale or of an order, which, from the class of officers enumerated, and the use of the word "term," necessarily means an order passed by some court or judicial officer.

It is said, though, that, even if the act of 1891 did not repeal or modify the provisions of the act of 1879, the notice given in the present case was a substantial compliance with the act of 1879. In the case of City of Dawson v. Dawson, Waterworks Co., 106 Ga. 732, 32 S. E. 907, it was said: "The policy of the constitution is against the incurring of municipal debts, and therefore the constitutional provision prescribing the manner in which debts must be incurred is to be strictly construed. It has been the uniform ruling of this court that not only the constitutional provision must be strictly construed, but that the act of the general assembly prescribing the manner in which an election shall be held on the question of bonded indebtedness shall be also strictly construed." See, also, the cases cited in the case just referred to. The act requires that notice of an election shall be published for the space of 30 days next preceding the day of the election, and the publication of a notice for a period of time less than 30 days is neither a literal nor a substantial compliance with this provision. It is said, though, that this construction of the law would altogether prevent at the present time an election from being held in the county of Dougherty, for the reason that the paper in which the sheriff's sales are advertised is issued on Friday, and that 30 days after any Friday would fall on Sunday. All that is necessary to be said in answer to this suggestion is that the rule that Sunday is dies non applies in such a case, and an election would be valid if held on the following Monday. While the act provides, in terms, that the notice shall be given for the space of 30 days next preceding the day of the election, construing that in connection with the provision that notice shall be given in the paper in which the sheriff's advertisements are published, the first insertion of the notice in a newspaper issued at least 30 days before the election, and as nearly as may be immediately preceding the beginning of that period, would be a compliance with the law. See, in this connection, Montford v. Allen, supra. In some cases it has been held that a failure to strictly comply with the law as to notice of an election may be treated as a mere irregularity, when there has been an acquiescence in the result of the election, and a delay in raising the objection, and purchasers of bonds or others have been misled by the acquiescence and delay. See Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120; Brand v. Town of Lawrenceville, 104 Ga. 486, 30 S. E. 954. But in no case has it ever been