accurate pleading might have led to the production of a declaration containing a larger number of separate and distinct paragraphs, and this would have been, probably, the better practice; but it requires no strain, we think, to hold that the declaration with which we are now dealing was, for all practical purposes, sufficient.

2. The note declared upon contained a promise to pay ten per cent. attorney's fees, if collected at law or through an attorney; but, through inadvertence or otherwise, there was no distinct allegation of indebtedness for such fees, nor prayer for the recovery of the same. Nevertheless, there was no error in allowing the amendment praying for a recovery of attorney's fees, over an objection that such an amendment set up a new and distinct cause of action. The promise to pay these fees was part of the plaintiff's cause of action, and this clearly appeared from an inspection of the copy note attached to the declaration. The amendment, therefore, amounted to nothing more than an amplification of the plaintiff's cause of action.

3. We have directed the reporter to set forth the substance of the plea originally filed by the defendants, as well as the contents of the plea which was subsequently substituted therefor. It must not be overlooked that, by the latter, the former was in terms withdrawn. In the beginning of the first plea, the defendants set up the general issue, and followed the same by alleging the special matters upon which they relied as a defense to the plaintiff's action. It will be observed that the substituted plea did not set up the general issue. This latter plea was stricken on demurrer, and complaint is made that this action of the court was erroneous on the ground, among others, that "the plea of the general issue was filed, and same should not have been stricken except on special demurrer." Inasmuch as the defendants themselves withdrew the plea of the general issue,

it is obvious that the alleged error in striking this defense presents no question for adjudication by this court.

4. Another ground of complaint against the action of the court in striking the defendants' plea was, that it set up the defense of non est factum, by averring that the note was executed by one of the members of the firm of Wingate & Mell without authority. In dealing with the question thus made, it will, of course, be understood that no reference is had to the plea first filed, because it was withdrawn, and what follows is intended as applicable only to the plea last filed. While it is true that this plea does allege that the firm of Wingate & Mell did not execute and deliver to Black & McIntosh the note sued upon, yet, as this same plea elsewhere admits that Mell, one of the firm of Wingate & Mell, did make the note in question in the firm name, and nowhere sets forth facts sufficient to negative his authority so to do, it follows that the entire plea, taken together, did not amount to a plea of non est factum. The plea contains enough to make it apparent that the making and delivering of promissory notes was within the legitimate scope of the business conducted by Wingate & Mell; and while, of course, neither member of this firm would have power to bind the firm by a promissory note given in a matter relating exclusively to his own private business and in which the firm had no interest at all, yet, prima facie, a note executed by one member of this firm, in the firm's name, would be binding upon it; and in the absence of allegations distinctly showing that the note was given upon a consideration outside of the firm's business, the plea entirely failed to show that the note in controversy in the present case was not, as it purported on its face to be, a valid and binding contract of the firm.

5. Other grounds of alleged error in striking the defendants' plea were, that it alleged that the note sued on

was an accommodation paper made by Wingate & Mell for the benefit of Black & McIntosh, and that the bank, having notice of the accommodation character of the note, took the same at its own risk. Bearing still in mind that we are dealing alone with the plea substituted for the one originally filed and withdrawn, we are quite sure that sufficient facts were not alleged to show that the plaintiff was put on notice that the defendants, Wingate & Mell, were accommodation makers only-if, indeed, that was the truth of the case. Granting that Black & McIntosh were largely indebted, by indorsements and otherwise, to Wingate & Mell; that the former were largely interested in building houses; that the latter were engaged in the plumbing and tin business, and, as materialmen, did a large quantity of work for Black & McIntosh; and that the plaintiff had full knowledge of these facts, we are at a loss to see how such knowledge could put the plaintiff upon notice of the true relation of Wingate & Mell to the note in question. They were the makers of the note, and, apparently, bound primarily, as such, for its payment; and nothing whatever in the facts just recited (which constitute all with reference to this matter contained in the defendants' plea) was calculated to inform the plaintiff that the note was, as to Wingate & Mell, a mere accommodation paper. The plea nowhere denies that the plaintiff procured the note in due course of trade and before its maturity; and, properly construed, sets forth no valid defense to the action. It makes no difference that the note sued on was in renewal of others previously made in like manner. In any view of the matter, nothing was alleged legally sufficient to defeat a recovery by the plaintiff, and there was no error in rendering a judgment accordingly. Judgment affirmed.

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749

WILLIAMS V. MOODY.

1. Where a deed of conveyance recited that it was made subject to a mortgage upon the property conveyed, given by the grantor to a third person to secure a specified sum with interest, "which said mortgage and interest said grantee assumes as part of purchase price" of the property, the grantee, upon failing to pay off the mortgage at its maturity, became liable to the grantor for the amount due thereon.

2. Although the mortgage of which the grantee had thus assumed payment, did not upon its face disclose that a given default in the payment of interest would render the principal of the note secured by the mortgage due at a date earlier than that otherwise fixed for its maturity, yet where that note, as described in the mortgage, referred to an "interest coupons note," which, though not so stated in the mortgage, was in fact attached to the note for the principal, and it appears that an examination of the latter note would have disclosed the terms upon which its maturity would be advanced, the grantee in the deed was chargeable with a knowledge of these facts, and in assuming payment of the mortgage became liable accordingly.

3. The maturity of the note secured by the mortgage having been advanced because of default in the payment of interest, demand for which was made upon the grantee, and payment refused by him, and the mortgagee having exercised a power of sale contained in the mortgage, the proceeds of which sale were insufficient to pay off the debt, and the mortgagor having paid the balance due thereon, the grantee became liable to her in an action for the amount of such balance.

November 12, 1894. By two Justices.

Complaint. Before Judge VAN EPPS. City court of Atlanta. January term, 1894.

LEWIS & GREEN, for plaintiff in error.

KING & ANDERSON, contra.

SIMMONS, Chief Justice.

M. B. Williams purchased certain land from Mrs. Helen S. Moody, taking a conveyance from her which contained this provision:

"This deed is made subject to a mortgage of $2,000 given on said property by Helen S. Moody to Samuel D. Rambo, dated 12th day of January, 1893, with in

terest from date at 8 per cent. per annum; principal due 3 years, interest payable semi-annually in separate interest notes given therefor, which said mortgage and interest said M. B. Williams assumes as part of purchase price above."

The mortgage commenced thus: "State of Georgia, Fulton county. "$2,000.

Atlanta, Ga., Jany. 12th, 1893. "Three years after date I promise to pay Samuel D. Rambo or order two thousand dollars, value received, with interest from date at eight per cent. per annum, as per my interest coupons note No. 1, of even date herewith;' this being followed by this language: "I hereby create and give to said Samuel D. Rambo, his heirs and assigns, a full and complete mortgage lien on the following property" (describing it). A provision was contained in the mortgage that if the debt to secure which it was given was not paid at maturity, the mortgagee had the power, after complying with certain conditions as to advertising, etc., to sell the property described and apply the proceeds to the payment of the debt. The "interest coupons note No. 1," referred to in the mortgage, was a note with interest notes attached, and corresponded in date, amount, time of maturity and rate of interest with the mortgage. It contained, however, a provison which did not appear in the mortgage, that, "upon failure to pay any of said interest within thirty days after due, said principal sum shall, at the option of the holder, become due and may be collected at once, time being of the essence of this contract." The purchase of the property by Williams was made before any of the interest notes had matured. When the first interest note became due, Mrs. Moody demanded of him that he pay the same, but he refused or neglected to do so; and after thirty days from that date had elapsed, the mortgagee elected to declare the whole debt due, and proceeded to enforce collection thereof. After comply