ton: "There must be such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded." One reason for requiring the description to be definite is that otherwise the accused would not be able to plead the judgment as a bar to another indictment. See 12 Enc. Pl. & Prac. 979. See, also, the other cases and authorities cited in the Walthour Case. While the description in the present case is not as general and indefinite as that in the Walthour Case, and that case is therefore not absolutely controlling, we think the principle of that decision requires a holding in the present case that the description was fatally defective for the reason that there was nothing| therein by which any article or number of articles could have been identified with any reasonable degree of certainty. If the language of that part of the indictment under discussion had been followed by the words "consisting of oil cups, globe valves, injectors, drainers, gauge cocks, siphons, lubricators, piping, return bends, steam gauges, inspirators," it might have been sufficient to have put the accused on notice of the articles they were alleged to have received. See, in this connection, Cody v. State, 100 Ga. 105, 28 S. E. 106. But it is certain that an allegation that the articles received were "brass fittings" of a given weight and value would not have accomplished this purpose. Let us assume that the accused are entirely Innocent, and of course, this must always be done in passing upon the sufficiency of an indictment; at what a loss would an innocent man be in the preparation of his defense, when he is called on to meet the charge simply that he received, knowing them to have been stolen, 400 pounds of brass fittings, of the value of $300. No person could thoroughly prepare to meet such a vague and indefinite charge. While Pen. Code, § 929, provides that an indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury, it has been more than once held that "this section was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial, nor to deprive him of the right to have an indictment perfect as to the essential elements of the crime charged." See O'Brien v. State, 109 Ga. 51, 53, 35 S. E. 112, and cases cited. The criminal pleader should always avoid unnecessary allegations which are descriptive of the offense, but at the same time he should be careful to make the descriptive averments sufficiently definite and certain to put the accused on notice of the charge he is to meet. The court erred in overruling the demurrer.

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

(116 Ga. 570)

ANDERSON v. STATE. (Supreme Court of Georgia. Nov. 13, 1902.)

CRIMINAL LAW-APPEAL-REVIEW.

1. There was no error of law complained of. The evidence was sufficient to support the finding of the trial judge, who presided without a jury. There was no abuse of discretion in refusing to grant a new trial.

(Syllabus by the Court.)

Error from city court of Cartersville; A. M. Faute, Judge.

Shelley Anderson was convicted of crime, and brings error. Affirmed.

Jas. B. Conyers, for plaintiff in error. Sam P. Maddox, Sol. Gen., for the State.

COBB, J. Judgment affirmed.

LUMPKIN, P. J., absent on account of sickness. CANDLER, J., not presiding.

(116 Ga. 495) REYNOLDS & HAMBY ESTATE MORTG. CO., Limited, v. MARTIN. (Supreme Court of Georgia. Oct. 31, 1902.) PARTIES-ALIENS-FOREIGN CORPORATIONS

JURISDICTION-RECEIVERS-FRAUD.

1. A petition for a receiver and other equitable relief against two foreign corporations, two individual citizens and residents of another country, and the sheriff of the county in which the petition is filed,-the sheriff being only a nominal defendant,-which does not set forth that either of the foreign corporations has any office, officer, agent, or place of doing business in this state, or that either of the alien individuals resides in said county or is to be found therein, does not set forth any jurisdiction in the superior court of the county of the sheriff's residence in this state, for a proceeding in personam, or a right to obtain a personal judgment against any one of the four principal defendants. An entry of service by the sheriff cannot supply the omission to set forth jurisdiction in the petition.

2. No ground for equitable relief in the defendant in error as an individual is set forth in the petition. (a) It is not made to appear that what he calls a fraud was a fraud upon him in any legal sense. (b) The matters and things set forth in the petition as a reason for interfering with a final judgment obtained by the plaintiff in error against the defendant in error, also set forth in the petition, could have been pleaded to a suit on the bond resulting in this judgment, if they possessed any legal efficacy. (c) The delay and laches of the defendant in error furnish a further reason for noninterference by a court of equity.

3. The defendant in error does not show that, as a stockholder of the two foreign corporations, he is entitled to a receiver to take charge of their assets in this state.

(Syllabus by the Court.)

Error from superior court, White county; J. B. Estes, Judge.

Suit by John Martin against the Reynolds & Hamby Estate Mortgage Company, Lim

ited, and others. From a judgment for plaintiff, the above-named defendant brings error. Reversed.

J. L. Oakes and H. H. Perry, for plaintiff in error. Spencer R. Atkinson, W. A. Charter, and G. S. Kytle, for defendant in

error.

ADAMS, J. John Martin filed in the superior court of White county, in this state, a petition for relief against the Gold Reefs of Georgia, Limited, the Reynolds & Hamby Estate Mortgage Company, Limited, alleg- | ed in the petition to be corporations of the kingdom of Great Britain and Ireland, and there domiciled, and Frederick Hunt and Edwin Bowley, also alleged to be citizens of that kingdom, and the sheriff of White county; the last named being only a nominal defendant, and not one against whom, under the decisions of this court, any substantial relief was prayed. A separate demurrer to this petition was filed by the Reynolds & Hamby Estate Mortgage Company on various grounds, which was overruled by the court below, and a bill of exceptions was taken to the judgment of the court overruling this demurrer. The prayers of the petition are for process against each of the defendants named, requiring them to appear at the next term of White superior court to answer the complaint; for the appointment of a receiver to take charge of, and, under the jurisdiction of the court, enforce the collection of, a judgment in favor of this company against the defendant in error set forth in the petition, to retain the proceeds of this judgment to answer such final judgment and decree as may be rendered in favor of the defendant in error; that the receiver be required to take possession of and hold, subject to the final decree and direction of the court,. certain real property alleged to belong to the corporation known as the Gold Reefs of Georgia, Limited, one of the defendants, to the end, if the court should finally decree in favor of the defendant in error against the Gold Reefs of Georgia, Limited, that this company is indebted to him in the sum of £1,826, alleged to have been obtained from the defendant in error in consequence of a gross fraud, that the defendant in error might in this way realize on any judgment which might be rendered in his favor in the premises; for a writ of injunction preventing this company from incumbering its Georgia property, and the Reynolds & Hamby Estate Mortgage Company, Limited, from assigning or setting over its judgment to any third party, and preventing the sheriff from advertising the property for sale under this judgment; and finally for general relief. There is no specific or direct prayer for a judgment or decree against any defendant. It is not, in terms, alleged that the defendant in error is entitled to a decree against any defendant, and the indication of

the desire to obtain a decree against the Gold Reefs of Georgia rests upon implication, rather than upon specific statement or prayer. The petition sets forth that the defendant the Reynolds & Hamby Estate Mortgage Company, Limited, had at the November term, 1901, of White superior court, obtained against the defendant in error a general as well as a special judgment for the full amount of a bond given by the defendant in error to this company on the 22d day of February, 1898, covering the sum of £4,000 principal, and secured by a mortgage, which judgment includes £1,826, of which, according to the petition, the petitioner has been cheated and defrauded as stated in the petition. It is admitted in the petition that the defendant in error received £2,174 of the face of his bond, and the general purpose of the petition is to obtain redress as to this balance of £1,826 through the intervention of a court of equity by the appointment of a receiver, the collection of the judgment, and the seizure of the real property heretofore mentioned. The petition also sets forth the alleged rights of defendant in error as a stockholder in the two corporations, and the threatened destruction of those rights. There are no specific prayers that seem to be entirely germane to the status of a stockholder, and these allegations may be inserted for the purpose of giving additional weight and strength to the appeal of the defendant in error for relief as an individual against what he denominates a gross fraud. 1. There is no statement anywhere in the petition which suggests that any one of the four principal defendants has any residence of any kind in the county of White. All of them are alleged to be citizens and residents of the kingdom of Great Britain and Ireland. Neither of the two corporations is alleged to have any agent of any kind in this county. The sheriff of the county is made a party defendant for the purpose of arresting his proceedings under the execution based upon the judgment above mentioned. His connection with the case as a nominal defendant would not give to the court jurisdiction of the case. Rounsaville v. McGinnis, 93 Ga. 579, 21 S. E. 123; Coal Co. v. Anderson, 103 Ga. 810, 30 S. E. 640. We do not see how the court could render a judgment in personam against any one of the defendants, with or without service by publication. So far as we are aware, all the authorities are against jurisdiction for this purpose, unless, of course, the nonresident is found in this state, and here served. See, for example, Dearing v. Bank, 5 Ga. 505, 48 Am. Dec. 300 et seq; Schmidlapp v. Insurance Co., 71 Ga. 246; King v. Sullivan, 93 Ga. 627, 20 S. E. 76. In the last-mentioned case this court, through Mr. Justice Lumpkin, says (noticing the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, freely used m the argument by the distinguished counsel for the defendant in error): "A proceeding of

the kind above mentioned [one against specific assets of a foreign corporation for the purpose of subjecting them to a judgment against the corporation] is, so far as the corporation is concerned, a proceeding in personam; and therefore, in order to give the court jurisdiction for the purpose indicated, actual service is essential. In the case of a foreign corporation which has no office, officer, agent, or place of business in this state, such jurisdiction cannot be obtained by merely serving the corporation by publication. This doctrine is supported by the principle announced in Pennoyer v. Neff, in which it was held that a personal judgment rendered by a state court against a nonresident of the state in an action upon money demand was without validity where the defendant was served by publication, but upon whom no personal service of process within that state was made, and who did not appear."

2. Treating the petition as a proceeding in rem, that is to say, as an application for an equitable seizure, through the medium of a receiver, of the property of the defendant, | to be held until the final decree in the case, and recognizing the ample power of a court of equity of this state to so seize such property and render a judgment against the same in a proper case made, we nevertheless hold that no such case is stated in this petition.

(a) We are unable to find how a fraud, in any legal sense, has been perpetrated upon the plaintiff below. He admits giving to the Reynolds & Hamby Estate Mortgage Company his bond, under his hand and seal, whereby he acknowledges to have received from this company as a loan £4,000, but says that at the time he executed this instrument he did not suspect, and had no reason to suspect, the purpose of this company, in connection with the Gold Reefs of Georgia, to perpetrate upon him the gross fraud which he undertakes to set out. It seems that the defendants Hunt and Bowley were to make the loan which the Reynolds & Hamby Estate Mortgage Company was subsequently organized to carry; that the defendant in error received £2,174 in cash; that he was induced to believe that before the balance of the loan, which, under the agreement, was to be paid in stock of the Gold Reefs Company, could be issued to him, it would be necessary for him to subscribe to the stock of the Gold Reefs Company to the amount of £1,826, and that in payment of this sum he drew a draft in favor of the Gold Reefs Company on the mortgage company; that this draft (he claims) ought to have been paid in cash, and, instead of the mortgage company so paying it, the Gold Reefs Company exchanged its own stock with the mortgage company for stock of the latter company of the value of the face of the draft. The pleader complains in strong terms of this payment, and alleges that it did him sub

stantial harm as a stockholder in these companies, and as the owner of property held under a mortgage by the mortgage company. We do not see how the drawer of the draft can complain of this, because of the principle that an agreement to pay means, without more, a payment in cash. The petition does not show, certainly with any clearness, that this did not occur before the giving of the bond. The natural inference would be that it occurred before this, and was probably known by the defendant in error when he executed this obligation, acknowledging at the date of the obligation an indebtedness in the full amount of the loan. He seems to have received all that this contract contemplated, viz., £2,174 in cash, and the balance in the stock of the Gold Reefs Company. The complaint that the officers of the Gold Reefs Company saw fit to receive in payment of its draft shares of the mortgage company, instead of cash, seems to be predicated upon the idea that this company thus surrendered its opportunity of collecting cash, which could have been used in its mining operations to the advantage of the defendant in error as a stockholder, and also as the owner of property in the improvement of which he expected this money to be used. The defendant in error voluntarily became a stockholder in these foreign corporations, and is presumed to know that he thereby conferred upon them a large discretion as to their obligations and the use of money received by them. It is stated in the declaration that Hunt and Bowley agreed that the stock of the Gold Reefs of Georgia which was to be delivered to petitioner in lieu of cash should be paid for by them; that this was the substance of their agreement, and was the sole consideration in inducing him to accept said stock in lieu of cash; and that it was well known to Hunt and Bowley and to the said Gold Reefs of Georgia at the time petitioner undertook to receive said stock that this company was in practically an insolvent condition, not even having an interest in the property of petitioner, upon which property was principally based the organization of the company. The agreement between the petitioner and Hunt and Bowley set forth in the petition seems to provide for this payment. The bond subsequently given to the mortgage company, more than a year thereafter, does not suggest, nor does any allegation in the petition state, that this agreement entered in any way into the consideration as between the mortgage company and the petitioner. As already suggested, we think it is fairly inferable that the petitioner gave this bond to the mortgage company when cognizant of the breach of the contract. We do not find any allegations in the petition which negative this conclusion. In the language of the headnote, it is not made to appear that what he calls a fraud was a fraud upon him in any legal sense.

His

(b) It seems to us that the judgment obtained by the mortgage company against the defendant in error in November, 1901, concludes him as to the claiins made in his petition for relief in the case at bar. If what he says be true, and his allegations mean anything, they mean that he did not owe the mortgage company £1,826 of the £4,000 embraced in the bond and the judgment. contention seems to be that the consideration as to this part of the debt had really failed. In the latter part of paragraph 8 he alleges that "as a result of said conspiracy so entered into between the said Gold Reefs of Georgia, Limited, and the said Hunt and Bowley, and the said Reynolds & Hamby Estate Mortgage Company, Limited, he has been robbed by the said Gold Reefs of Georgia, Limited, the said Hunt and Bowley, and the said Reynolds & Hamby Estate Mortgage Company, Limited, of the sum of £1,826." In paragraph 10 he alleges that this mortgage company "has caused the said mortgage given by him to secure said bond to be foreclosed in the superior court of White county, and, as well, has obtained against him a general judgment for the full amount promised to be paid in the terms of said bond, with interest, which said sum includes the £1,826 of which your petitioner has been cheated and defrauded as aforesaid." In another portion of paragraph 8 the petitioner says "that neither Hunt and Bowley, nor the Gold Reefs of Georgia, Limited, ever advanced to him, nor paid on his account, the said sum of £1,826, but, on the contrary, accepted from the Reynolds & Hamby Estate Mortgage Company, Limited, its own stock in lieu of cash, left the Gold Reefs of Georgia, Limited, in an insolvent and helpless condition, and thus deprived your petitioner of the very advantage which he had in view when he undertook to receive the stock of the Gold Reefs of Georgia, Limited, in lieu of cash." He directly connects the mortgage company with the conspiracy and fraud resulting in a failure of consideration as to the £1,826, and avers it was fraudulently organized for the very purpose of cheating him out of this consideration; and if we give full effect to all that the defendant in error claims, and his conclusions therefrom as to their legal efficacy, we would necessarily determine that he did not owe this part of the bond to the mortgage company, and that it was not entitled to a judgment for these £1,826. It is not pretended that the defendant in error was not fully cognizant of all the facts set out in his petition when he was proceeded against in White superior court, in a suit wherein a general judgment was sought and secured. "A judgment of a court of competent jurisdiction is conclusive between the same parties and their privies as to all matters put in issue, or which, under the rules of law, might have been put in issue in the cause wherein the judgment was rendered." Civ. Code, § 3742. This section of the Code

codifies a well-established and familiar principle. See Kenan v. Miller, 2 Ga. 329; Watkins v. Lawton, 69 Ga. 674, 675, with the general authorities cited in this last decision.

(c) As we understand the petition, more than four years elapsed after the perpetration of the alleged fraud before any application was made for relief. The petition suggests that the petitioner desires to rescind the contract under which he received this stock of the Gold Reefs Company, because, in the latter part of the petition, immediately before the prayers, appears the following statement: "Petitioner now and here tenders to the court, for delivery to the Gold Reefs of Georgia, Limited, the stocks of that company received by him as aforesaid in payment of his draft drawn as aforesaid," etc. "But in order to the rescission, he must promptly, upon discovery of the fraud, restore or offer to restore to the other whatever he has received by virtue of the contract, if it be of any value." Civ. Code, § 3711. "The duty is placed upon the party who seeks to avoid the contract on the ground of fraud to make such efforts to discover the fraud as would amount to ordinary diligence in law.” Association v. Robinson, 101 Ga. 272, 30 S. E. 918, 42 L. R. A. 261. After holding this stock, which, according to his allegation, was palmed off upon him in pursuance of a fraud, he waits more than four years, taking advantage of the chances of the enhancement of the stock in value, and then, after a Judgment of a court against him in a suit where he could have been heard, asks a court of equity for relief against the consequences of his own laches. Independently of any question of rescission, we observe, in the language of this court in Sandeford v. Lewis, 68 Ga. 484: "He that seeks relief in a court where equity reigns must come with clean hands and without unfair conduct himself. He must knock at her doors, too, without delay and laches." In Marshall v. Means, 12 Ga. 68, 56 Am. Dec. 444, the learned judge says: "Neither equity nor law will assist those who neglect to take care of themselves. 'Vigilantibus non dormientibus jura subveniunt' is one of the earlier maxims which we learn both at the bar and from the books." In Richards v. Mackall, 124 U. S. 183, 8 Sup. Ct. 437, 31 L. Ed. 396, the court say: "A party who makes an appeal to the chancellor should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise, the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the statute of limitations in his answer. To let in the defense that the claim is stale, and that the bill cannot, therefore, be supported, it is not necessary that a foundation be laid by any