The

prior possession alone, as against one who subsequently acquires possession by "mere entry and without lawful warrant or authority." Tested by this rule, how was the entry of the defendant effected? The tax execution was issued against the lands and tenements, goods and chattels of one Mrs. Stewart. It was not shown that this person was ever in possession of the premises, that she ever claimed title thereto, or that she ever returned the same for taxes or exercised any act of ownership whatever over them. No witness was produced who knew or had ever seen the defendant in execution. tax lien could attach only to her estate, and yet under such an execution the city marshal sells the property in dispute, the City of Atlanta becomes the purchaser, and the defendant in this case purchasing from the City of Atlanta, the tenant in possession is evicted and the possession delivered to this purchaser from the city. The only lawful warrant upon which a tenant can be evicted is a process against the tenant himself, or against the person under whom such tenant claims his right of possession. Under a judicial sale only the defendant in execution or his privies in estate can be evicted. The same rule applies to tax sales. Therefore, if an officer, with an execution against one person, seizes property in possession of another, he can justify the seizure only by showing that the property seized was really the property of the former, or his privies. So in this case, the execution not being against the person in possession, and there being no privity between the defendant in execution and such person, the sale of the property and eviction of the tenant in possession was a trespass; and it not being made to appear that the defendant in execution was the owner of the premises or had any interest therein, the entry of the lessor of the defendant in this action, in so far as concerned the person holding the prior possession, was without lawful warrant or

authority and was in law a mere entry. As against such an one, the first possessor was entitled to recover upon her prior possession alone. So that, whether the defendant be treated as having entered as a purchaser under the life-tenant, or whether we treat him as having entered under the alleged tax sale, the plaintiff was in either event entitled to recover. Such were, in substance, the instructions complained of, and, under the views here expressed, we are bound to adjudge them correct; and the verdict being supported by the evidence in every essential particular, the court properly refused a nonsuit and properly denied a new trial.

Judgment affirmed.

CORNIFF v. Cook.

1. A demurrer to a rule instituted in the city court of Atlanta having been overruled and no exceptions pendente lite having been filed, it was too late to assign as error the judgment overruling the demurrer, in a bill of exceptions sued out more than sixty days after the date of such judgment.

2. Where a constable, having in his possession an attachment against
a private corporation, went to a house in which personal goods of
the corporation were located, for the purpose of levying upon the
same, made an inventory of the goods (they being at the time
under his view, in his immediate presence, and constructively in
his possession), informed the only servant of the corporation
present that he had levied upon the property, and thereupon im-
mediately went to the president of the corporation, who, upon be-
ing informed of what had been done, agreed with the officer that
if the goods were not removed from the house the same should be
held subject to the order and control of the officer, who shortly
thereafter made an entry of levy upon the attachment, the levy
was legally sufficient, although the constable did not take actual
manual custody of the goods, or lock up the house or remove the
goods therefrom.

3. The requests to charge relating to what would be necessary to
constitute a valid levy were not applicable to the facts disclosed
by the evidence, and there was no error in refusing the same; and
the charges given upon this subject were pertinent and correct.
4. The law with reference to the burden of proof and the prepond-

erance of evidence was correctly stated by the presiding judge, and there was no error in refusing to charge that "the question whether the burden of proof has been carried is to be settled by looking at the number of witnesses testifying in favor or against certain facts, their demeanor on the stand, character, interest, etc." 5. The evidence warranted the verdict, and there was no error in denying a new trial.

November 12, 1894.

Rule against constable.

Before Judge VAN EPPS.

City court of Atlanta. July term, 1894.

The petition of Cook, a constable, showed, that a justice of the district where he served put in his hands an attachment sued out by Chamberlin, Johnson & Company against the Southern Travelers Club, a corporation of Fulton county, returnable to the March term, 1893, of the city court of Atlanta, for the purpose of having the same levied upon certain property, a schedule of which was annexed to the attachment, for the purchase money of said property; the indebtedness amounting to $405.42, with interest from April 9, 1892. Cook went to the club-rooms, seized the property described in the schedule, levied upon the same and made indorsement of such levy upon a piece of paper which he attached to the attachment. The property was in the hall and rooms of said club in charge of the janitor thereof, in whose charge Cook left the property, the janitor agreeing to keep the same for him, and requesting him to see Wellhouse, the president of the club, in regard thereto. Cook immediately sought Wellhouse and told him he had levied upon the property; whereupon Wellhouse said that if Cook would allow the property to stay in the rooms, it should not be disturbed and none of it should be removed, that the reason he did not wish it moved was because he wanted to have a meeting of the club to raise money to pay off the debt; and promised to keep the property for Cook, and in case the money was not raised, Cook could then remove

ކ

it. About a hour and a half after Cook had made the above levy, Corniff, constable of an adjoining district, undertook to levy upon the property, and closed up the doors of said hall and rooms, under several distress warrants. After this levy by Corniff, Cook demanded that Corniff turn over the property to him, which Corniff refused to do. Cook went back to the hall and found that the property had been removed therefrom. He then asked Corniff where the property was, and Corniff refused to tell him. Under said process Corniff posted notices and sold the property on the premises. Cook's attorney was about to give notice of the prior levy, when it was agreed between him and counsel for the creditor whose process was held by Corniff, that the property might be sold and the funds held until the questions should be settled by rule as to who was entitled to the proceeds of the sale. The property sold for $482, which sum is now in the hands of Corniff. Copies of the attachment, affidavit and levy by Cook are annexed. He prayed that Corniff be required to show cause why he should not turn over the proceeds of the sale to petitioner, to be held by him to answer such judgment as Chamberlin, Johnson & Company might recover against said club.

On this petition rule nisi was issued, returnable before the judge of the city court at chambers, the rule being issued February 27, 1893. A demurrer was interposed by Corniff, which was overruled on April 20, 1894. No exceptions pendente lite appear to have been entered. The bill of exceptions was certified by the judge on July 31, 1894. Corniff answered, in brief, that as constable he had placed in his hands several distress warrants, described; that armed with these, he proceeded to the rooms of the club and seized the goods in question (together with other goods); that said goods had not been levied on, and the club was running along as usual.

Cook filed a general traverse, and there was a verdict in his favor. Corniff moved for a new trial, and the motion was overruled.

MAYSON & HILL, for plaintiff in error.

GOODWIN & WESTMORELAND, contra.

LUMPKIN, Justice.

1. Upon the rule of practice announced in the first head-note, we will attempt no comment. The question involved is too well settled to require further notice at our hands.

2. The evidence as to what was done by the constable Cook when he went to levy the attachment sued out by Chamberlin, Johnson & Co. upon the property of the Southern Travelers Club, is somewhat complicated and confused; but after giving it a very thorough examination and study, we think a fair summary of its real purport and meaning is stated in the second head-note. Counsel for the plaintiff in error strenuously insisted that the porter of the club in charge of its property at the time Cook went to make the levy, could not, under the circumstances, become the agent of Cook to retain possession of the property; and further, that inasmuch as the constable did not take absolute manual possession and control of the goods, there should have been a joint promise by the porter and the president of the club to hold the property for the constable, in order to make the levy valid. Both of these contentions are, in our opinion, successfully answered by the fact that after the constable left the club-house, the president of the corporation agreed with the constable that if he would allow the property to remain where it then was, it should be held subject to the officer's order. The president was the alter ego of the corporation; and this being so, it is entirely immaterial whether the porter did or did not join with him in promising to hold for the constable;