the objectionable remarks should affect their verdict, and satisfied himself that the evil effects of the remarks which counsel made had not found lodgment in the minds of the jurors, this would have sufficed. But however this may be, in the absence of any interposition a mistrial should have been ordered, and the failure to so order it is cause for a new trial.

The grounds of the motion which have not been specifically referred to present no legal cause for the grant of a new trial.

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

(115 Ga. 644)

ANDERSON et al. v. BRUMBY, Mayor (three cases).

(Supreme Court of Georgia. June 7, 1902.)

CLERK OF CITY COUNCIL-LIABILITY ON BOND.

An official bond, which fails to meet the requirements of a statute in that it is given to an officer other than the one to whom it should have been made payable, is not enforceable at the suit of a successor in office of the obligee, nor can an action thereon be maintained by such obligee, if he be not an official authorized by law to institute and prosecute legal proceedings in his representative capacity. (Syllabus by the Court.)

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

Actions by T. M. Brumby, mayor, against S. A. Anderson and others. Judgments for plaintiff, and defendants bring error. Reversed.

Sessions & Moss, for plaintiffs in error. D. W. Blair and J. E. Mozley, for defendant in error.

LUMPKIN, P. J. An action was brought in the superior court of Cobb county by T. M. Brumby, as mayor of the city of Marietta, against R. E. Lawhon, as principal, and Saxon A. Anderson and G. S. Owen, as sureties, upon a bond given by Lawhon as clerk of the city council of Marietta, conditioned for the faithful performance of all of his duties as such clerk. It was made payable to "D. W. Blair, mayor of said city of Marietta for the time being, and to his successors in office." The plaintiff alleged in his petition that he was the "successor in office" of D. W. Blair, who was mayor at the time the bond was given, and upon this allegation predicated his right to sue on the bond for the breach thereof which he averred had been made. The sureties filed a demurrer, based on numerous grounds, one of which was that "the bond sued upon and sought to be enforced is shown by said petition to have been made to an obligee other than that designated by the charter" of the city of Marietta, and "for this reason said bond cannot be sued upon by a successor." A wholly independent action was also brought by Brumby, in his representative

capacity, against Lawhon, as principal, and Anderson and A. Y. Leake, as sureties, upon another bond, reciting that it was given to "R. N. Holland, mayor of said city of Marietta for the time being, and to his successors in office," on condition that it was to become inoperative should Lawhon well and truly perform the duties devolving upon him as city clerk. This action was met by a demurrer precisely like that above referred to. Still another action, brought in the name of "Thomas M. Brumby, mayor of the city of Marietta," upon a similar bond, was instituted against Lawhon, as principal, and Anderson and J. Paige, as sureties. This bond was made payable to "T. M. Brumby, mayor of said city of Marietta for the time being, and his successors in office." The petition filed in this case specifically alleged that: "Petitioner is mayor of the city of Marietta, and in such representative capacity he brings this suit, for the use of the board of education of the city of Marietta." To this petition Anderson and Paige demurred on the ground, among others, that "the mayor of the city of Marietta, in his representative capacity, has no authority in law to bring a suit, because the charter creating said office of mayor fails to confer such These three authority upon said officer." cases are now before this court for review, having been brought here by separate writs of error. Each calls for a determination of the question whether or not the court below erred in holding that Brumby, in his representative capacity, was a proper party plaintiff. We entertain the view that he was not. By an act approved January 22, 1852, the town of Marietta was incorporated as a city, and provision was made for the election of a governing body, to consist of a mayor and six councilmen. Acts 1851-52, p. 390. It was in the fifth section of this act declared "that the mayor and members of the council, as before mentioned, shall be known as the mayor and council of the city of Marietta, and by such, their corporate name, shall sue and be sued, plead and be impleaded, and do all other acts relating to their corporate capacity." Provision was also made for the election of a marshal, treasurer, and clerk of council; and in the tenth section it was declared that these officers should be required to "give bond and security to the mayor and council of the city of Marietta, in a sum each to be fixed by the mayor and council, for the faithful performance of his or their duties." So it will readily be perceived that the official bond which Lawhon, as city clerk, was legally called upon to make, was one payable, not to the mayor of the city, but to its duly incorporated governing body,-"the mayor and council of the city of Marietta." Indeed, it was very frankly conceded by the able counsel who appeared in this court in behalf of Mayor Brumby that the instruments upon which these suits were instituted could not

properly be regarded as valid statutory bonds; and the sole contention upon which counsel based the alleged right to sue thereon was that they were, under the rules of the common law, enforceable as voluntary bonds. In this connection section 263 of the Political Code was cited and relied on. It declares that: "Whenever any officer required by law to give an official bond acts under a bond which is not in the penalty payable and conditioned, nor approved and filed as required by law, such bond is not void, but stands in the place of the official bond, subject, on its condition being broken, to all the remedies, including the several recoveries, which the persons aggrieved might have maintained on the official bond." It does not, however, undertake to prescribe at whose suit such a defective bond is to be enforced. Granting, then, for the sake of the argument, that the provisions of this section were intended to apply to bonds required of municipal officers, it furnishes no aid in determining whether or not Brumby had any right in his official character to maintain any one or all of the actions instituted by him in that capacity. It is undoubtedly true that a bond given by a public officer is not to be considered void merely because it is made "payable to an obligee other than as required by statute." 2 Am. & Eng. Enc. Law, 467. On the contrary, "all such bonds are good as common-law bonds, and may be enforced by suit in the name of the obligees or their personal representatives." Id. 467a, note. But "where a bond purporting to be official is made payable to official persons, whom the statute does not authorize to become the obligees, the successors of such obligees cannot maintain an action on the bond." Id. 467, note 10. In support of the proposition last stated numerous authorities are cited. Of these we select as specially pertinent the following: In Stuart v. Lee,

3 Call, 422, it appeared that a statute of Virginia prescribed that the official bonds required of sheriffs should be made payable "to the justices." The bond sued on was made payable to Gov. Randolph. His successor in office, Gov. Lee, sought to enforce it, but the court held that he had no right to sue thereon. It was, in the case of White v. Quarles, 14 Mass. 451, ruled that a bond given to a probate judge and his successors in office could not be enforced by the probate judge who succeeded him, the reason assigned being that, as the bond was not executed in conformity to statute, the plaintiff had no legal interest therein. The supreme court of Alabama, in the case of Calhoun v. Lunsford, 4 Port. 345, held that: "No action can be maintained by the successor of a judge of the county court upon the bond of an assessor and collector of taxes, made payable to the judge; such bond, by statute, being required to be made payable to the governor." The bond sued on was made payable to "Richard S. Clinton, judge

of the county court of Dallas county, or his successors in office." In discussing the question whether his successor, Judge Calhoun, could lawfully maintain an action upon such a bond, Chief Justice Hopkins, who pronounced the judgment of the court, said (pages 346, 347, 4 Port.): "A judge of a county court has corporate powers so far as to enable him to discharge his official duties. The successor in office of such a judge would be entitled to an action upon any contract that the judge was authorized to make and had entered into in his official capacity, and upon which the judge would have a right of action if he had continued in the office. But it was not necessary for Judge Clinton to take the bond in this case payable to himself to enable him to perform any official duty which was required of him. His duties in relation to the official bond of the assessor and tax collector were definite. He was re quired to fix the penalty of the bond, to approve it, and cause it to be recorded in the office of the clerk of his court. In taking the bond payable to himself, he acted in his natural capacity; and, although the bond was made payable to him as the judge of the county court of Dallas county, or his successors in office, yet as he had no authority to take it to himself in his official capacity, the legal effect of the bond is the same that it would be if his official character had been omitted in the bond." In Hibbits v. Canada, 10 Yerg. 465, a suit brought by the personal representatives of one James Hibbits upon a bond made payable to him and to his successors in office was held by the supreme court of Tennessee to be maintainable, the conclusion reached by that court being stated as follows: "An administration bond, made payable to the chairman of the county court and his successors in office, instead of the governor of the state, as required by law, cannot be sued upon by the successor in office, but is a good voluntary bond, and suit may be brought upon it in the name of the original payee, or his personal representative, if he be dead." A similar ruling was announced in the case of Jones v. Wiley, 4 Humph. 146. The supreme court of Maine had under consideration, in Lord v. Lancey, 21 Me. 468, an obligation like that referred to immediately above, and seems to have entertained no doubt that the successor in office of the payee named therein had no right to sue upon it. Another case directly in point is that of Stevens v. Hay, 6 Cush. 229, in which Metcalf, J., reviews the leading authorities on the subject. See, also, Governor v. Twitty, 13 N. C. 176. Clearly, where a bond required by statute is improperly made payable to a public officer who is without power in his official capacity to sue thereon, his successor in office can, in his official capacity, have no greater authority in the premises. It is to be borne in mind that, as a general rule, a public officer has no right, as such, to maintain a suit of any

character. Accordingly, it is only where, by express statute, he is constituted a corporation sole, and is given the right to sue or is made subject to suit, that he can properly be regarded as having any standing whatever in a court of justice. Overseers of Poor of City of Boston v. Sears, 22 Pick. 126.

As remarked above, an official bond is not void merely because given to an officer other than the one to whom, under the provisions of a statute, it should have been made payable; and, where such obligee has authority to Institute legal proceedings in his representative capacity, such a bond is enforceable at his instance. Justices of Christian v. Smith, 2 J. J. Marsh. 472; Sweetser v. Hay, 2 Gray, 49. But this is necessarily otherwise when he is clearly without such authority, and therefore cannot become a proper party plaintiff. In that event the bond may, perhaps, be construed as an obligation given to the payee in his individual capacity, and enforceable by a suit brought in his name and right as a private citizen for the use of the person or persons aggrieved by a breach thereof. See Iredell v. Barbee, 31 N. C. 250; Fitts v. Green, 14 N. C. 291, 296; Williams v. Ehringhaus, Id. 297; Hibbits v. Canada, 10 Yerg. 465. This is, however, a matter which we are not now called upon to decide. Suffice it to say that all three of the actions instituted by Brumby were avowedly brought by him in his representative capacity as mayor of the city of Marietta. The act incorporating that city certainly did not confer upon its mayor any of the powers incident to a corporation sole; and, so far as we are informed, there is no law of force in this state authorizing that official to maintain an action of any sort under any circumstances whatever. This court is fully committed to the proposition that no suit can be lawfully prosecuted save in the name of a plaintiff having a legal entity either as a natural or as an artificial person. See Mutual Life Ins. Co. of New York V. Inman Park Presbyterian Church, 111 Ga. 677, 36 S. E. 880, and cases cited.

The views expressed above in no way conflict with the decision rendered in Stephens v. Crawford, 1 Ga. 574, 44 Am. Dec. 680, and followed in another case between the same parties reported in 3 Ga. 499. The bond then under consideration was, as it should have been, made payable to the governor of this state and his successors in office; and it was in all respects a good statutory bond, save that it was not given within the time prescribed by law. Suit thereon was instituted in the name of Gov. Crawford, as the successor of Gov. McDonald, who was in office at the time it was executed. The court held that, as this bond was properly made payable to the governor and his successors in office, an action thereon by Crawford was maintainable, he having in his representative capacity authority to prosecute suits of this character, and the makers of the bond being,

therefore, estopped from questioning his right to sue thereon in accordance with its express terms. It was further held that, as it was enforceable only as a voluntary bond, the rules of the common law applied, and accordingly there could be but one recovery thereon. This is now otherwise under section 263 of the Political Code, the provisions of which we have herein before quoted, which expressly authorizes "the several recoveries" which might formerly be had upon an official bond executed in strict conformity to statutory requirements. The doctrine established by the two decisions last above mentioned is simply this: A bond made payable to a public official, who is authorized by law to enforce by suit obligations of that character, may likewise be enforced by his successor in office, if the bond so stipulates; but the remedy to be pursued in case the bond does not conform to all statutory requirements is, not that pointed out by statute as applicable to obligations given in strict compliance therewith, but that afforded by the rules of the common law. This doctrine was recognized and given effect by the supreme court of Tennessee in the case of Polk v. Plummer, 2 Humph. 500, 37 Am. Dec. 566, in which Reese, J., filed an elaborate and wellreasoned opinion. When the obligee of a voluntary bond is a public official, who has been by law constituted a corporation sole, there can be no impropriety in entertaining a suit thereon instituted by him or by his successor in office; but it is quite another thing for a court to ignore the settled policy of the law by giving countenance to a suit filed in the name of a public servant who is legally incapable, as such, of maintaining an action of any description. Accordingly, we do not feel authorized to give our sanction to the further prosecution of the legal proceedings instituted in the court below with a view to recovering on the three bonds under consideration, which, because of apparently inexcusable ignorance and neglect of duty on the part of the municipal authorities, have given rise to useless, annoying, and expensive litlgation.

Judgment in each case reversed. All the Justices concurring, except LEWIS, J., absent on account of sickness

(115 Ga. 662)

LINDLEY v. FREY. (Supreme Court of Georgia. June 7, 1902.)

DEED-FAILURE TO RECORD-PRIORITIESBONA FIDE PURCHASER.

Where, in 1890, one made a deed to land to one person, and subsequently made a deed to the same land to another person, who took it without notice of the former deed, and had it recorded prior to the record of the former deed, the second deed, under sections 2778 and 3618 of the Civil Code, has priority over the first.

(Syllabus by the Court.)

Error from superior court, Douglas county; C. G. Janes, Judge.

Action by E. W. Frey, administrator, against Charles Lindley. Judgment for plaintiff, and defendant brings error. Reversed.

W. A. James, for plaintiff in error. J. S. James and B. T. Frey, for defendant in error.

SIMMONS, C. J. Frey, as administrator of Morse, brought complaint for land against Charles Lindley. Upon the trial of the case the plaintiff introduced a deed from Mack Lindley conveying the land in dispute to Morse executed January 23, 1890, and recorded in the office of the clerk of the superior court November 19, 1900. He showed his authority as administrator, proved the value of the premises for rent, and closed. The defendant introduced a deed to the same land, executed in 1876, from A. H. S. McEwen to A. D. McEwen; a deed to the land from A. D. McEwen to Mack, Charles, Moses, Virgil, and James Lindley, dated in 1883, and recorded May 7, 1900; also a deed from Mack Lindley to defendant, conveying a one-fifth interest in the same land, dated July 28, 1891, and recorded May 7, 1900. The defendant testified that when he purchased and paid for a one-fifth undivided interest from his brother Mack he had no knowledge or notice that the latter had sold the land to any one else. There was no evidence whatever to contradict this statement. The court directed the jury to find for the plaintiff a onefifth interest in the land in dispute and mesne profits. A verdict was returned accordingly, and judgment entered thereon. The defendant excepted to the direction of the verdict by the court.

We think the judge erred in directing a verdict for the plaintiff. In doing so he was evidently controlled by the old law upon the subject of the registration of deeds. Before the passage of the act of 1889 and the adoption of the present Code, the law was that the grantee of a deed should record it within 12 months from its execution. If the deed was not recorded within that time, and another deed was made by the same vendor to a different vendee, and recorded in time, the younger deed prevailed. But, if neither deed was recorded within a year, the older took precedence. The legislature changed this rule by the act of 1889 (now Civ. Code, § 2778), and by the change made in section 3618 of the Civil Code. It will be seen by a reference to section 2778 that of two deeds to the same tract of land, made by the same grantor to different parties, the younger, if it be recorded before the older, and was taken in good faith, and without notice of the older, takes precedence. It will also be seen that the codifiers made a corresponding change in section 3618. Prior to the present Code this section (2705, Code 1882) required that a deed should be recorded within one year from its execution. These words were omitted from the present code section, which declares that "the record may be made

at any time, but such deed [the older and unrecorded deed] loses its priority over a subsequent recorded deed from the same vendor, taken without notice of the existence of the first." The record in this case clearly shows that the grantee in the younger deed took that conveyance without notice of the plaintiff's older deed, and that the younger deed was recorded some six months before the older deed was filed for record. Under this section of the Code the younger deed took priority over the older, and it was error to direct a verdict for the plaintiff. Under the facts appearing, the verdict should have been directed for the defendant.

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

(115 Ga. 793)

SOUTHERN RY. CO. v. CARTER. (Supreme Court of Georgia. June 12, 1902.)

CERTIORARI-EVIDENCE.

There was no evidence to authorize the verdict for the plaintiff in the justice's court, and it was error to overrule the certiorari. (Syllabus by the Court.)

Error from superior court, Appling county; Jos. W. Bennet, Judge.

Action by F. M. Carter against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

De Lacy & Bishop, for plaintiff in error. Bennett & Bennett, for defendant in error.

PITTSBURGH SPRING CO. v. SMITH et al.

(Supreme Court of Georgia. June 11, 1902.)

APPEAL-REVIEW-INSTRUCTIONS.

1. The defendant having joined issue with the plaintiffs without demurring to their petition, and they having introduced sufficient tes timony to prove their case as laid, the verdict in their favor was warranted. Railway Co. v. Ladson, 40 S. E. 699, 114 Ga. 762.

2. The failure of the court to charge upon a ground of defense not set up in the defendant's answer certainly does not entitle the latter to a new trial.

(Syllabus by the Court.)

Error from superior court, Pike county; E. J. Reagan, Judge.

Action by Smith & Sons against the Pittsburgh Spring Company. Judgment for plainAffirmed. tiffs, and defendant brings error.

G. D. Dominick and A. A. Murphey, for plaintiff in error. W. W. Lambdin, for de fendants in error.

PER CURIAM. Judgment affirmed.

LEWIS, J., absent on account of sickness,