to get securities to go on her bond, but failed | fendant, but has the privilege of making the to do so. She was the wife of Clifford Har- affidavit provided by the statute for that purpose. Such a proceeding constitutes a species of ancillary proceeding in connection with the action of trover. * per, now deceased. He did not live with her. They lived together at intervals. He died on September 17, 1912, in Brunswick. He left about $730 deposited in a bank in that place. The Civil Code, § 5154, provides for an She has not the money in her possession. It application to obtain a release from imis in the hands of her lawyers. "I did not prisonment under bail process, without givget any money, but a check. I had to sign a ing security, when the defendant is neither paper for it. I did not see any money. It able to give the security required by law nor was a check for $730. My lawyers have that to produce the property. Under the old law, money. They have it with my permission. if the defendant could not give security, he I did not get any $700.70 as de- was compelled to remain in jail. The hardscribed in that affidavit for bail. My law- ship of imprisonment until the case should yers did not either. We have never seen or be tried was the mischief. The act of 1879 had the money. He got a check for $730. I (Acts 1878-79, p. 144), from which the Code had to sign for it." section above cited was codified, furnished The plaintiff in the action of trover intro- the remedy. It did not seek to affect the duced an official of a bank in Milledgeville, power to proceed with the trover suit to a who testified: "Georgia Jeffers formerly had determination of the rights of the plaintiff money on deposit in the bank. She instruct- upon the question of the trial of property, ed the witness to deliver her money to Clif- but to furnish a method by which a defendford Harper, who was her grandson. The ant should not be held unjustly in imprisonwitness delivered it accordingly, paying to ment until the trial. Upon such a hearing Harper $700.70; the $700 being in gold cer- the main question of fact is as to the inatificates of the denominations of $10 and $20. bility of the defendant to give security or Mrs. Jeffers said that she was sick and wish- produce the property. This has been refered to give the money to her grandchildren. red to as the issue, in several decisions of Harper carried her book to the bank in order this court. But none of them dealt with the to obtain payment." question of whether the imprisonment should Georgia Jeffers, the plaintiff, testified as be continued if, on the face of the affidavit follows: "Clifford Harper was her grand-made by the plaintiff, it appeared that there son. She was sick, and sent for the officer of the bank, and directed him to deliver to Harper all of her money. Harper went to the bank and drew it out. He kept it in his trunk and did not deliver it to her. She never asked him for it until after he went to Brunswick, when she wrote to him to send her part of it. He had some money in his trunk other than that which she gave him, but it was not much. He kept the money in his trunk until he went to Brunswick, when he took it with him. She did not give him permission to do so." The presiding judge denied the application for discharge, and the applicant excepted. was no sufficient ground for requiring bail, the production of the property, or imprisonment of the defendant. The statute states that the defendant, in applying for a release, shall state in .his petition that he is neither able to give the security required by law nor to produce the property, "and can furnish satisfactory reasons for its nonproduction, and traverse the facts stated in the plaintiff's affidavit for bail." If the affidavit for bail describes no property sufficiently to be seized by the officer, or produced by the defendant, of for the production of which security could be properly required, was it the intention of the statute that the defendant must produce undescribed property or re Sibley & Sibley, of Milledgeville, for plain-main in jail until the final hearing of the tiff in error. Hines & Vinson and D. S. Sanford, all of Milledgeville, for defendant in error. LUMPKIN, J. (after stating the facts as above). [1] 1. The first question which arises is whether, after an affidavit has been filed in a trover case for the purpose of requiring bail, and the defendant has been arrested and imprisoned and has applied to be discharged under section 5154 of the Civil Code, upon the hearing of such application the applicant can attack the affidavit as containing no sufficient description of the property to be seized, or for the forthcoming of which the defendant is required to give bond. A bail proceeding is not an essential part of a trover case. The plaintiff trover suit? Would not such an affidavit as failed to supply a sufficient description of the property to furnish a basis for imprisonment of the defendant show a "satisfactory reason for its nonproduction," within the meaning of the statute? In this case, when the hearing came on upon the question of discharging the defendant from imprisonment, the trover suit, as a whole, was not up for consideration, but the bail proceedings and the question of continuing the imprisonment of the defendant were before the court. We see no reason why the court could not then determine the question of the sufficiency of the affidavit as a ground for further imprisonment. Whether the attack upon it, which seems to partake of the accurately framed is not very material. The the allegations of a petition, how does the point was raised, and the presiding judge passed upon it on its merits by overruling the demurrer and motion. fact of the giving or not giving of a bond appear, unless alleged in the petition? In McLennan v. Livingston, 108 Ga. 342, 33 S. E. 974, the petition in an action of trover described the property as "$270 in lawful money of the United States. Also $30 in lawful currency of the United States, the same being two $10 bills and two $5 bills." It was held that the description was insufficient, and that a demurrer to the petition was properly sustained. This was clearly correct as to the description of the "$270 in lawful money of the United States." As to the description of a part of the money as "$30 in lawful currency of the United States, the same being two $10 bills and two $5 bills," it was said that "this description is not nearly so distinct as that in the case in 98 Ga." It is not so clear that the description last quoted differs greatly from that in the 98 Ga. But they were held to be distinguishable. Reference was again made to the fact that in the case in 98 Ga. a bond had been given for the forthcoming of the property as a reason for overruling a demurrer to the declaration. But we have already seen that this additional reason for overruling the demurrer had previously been discredited. But the description in the affidavit now before us does not measure up to that held to be sufficient in 98 Ga. It gives the amount of $700 in bills of the denominations of $20 and $10, but does not say how many there were of each or either. How many of each could the sheriff seize under this general description? It is too vague to furnish a basis for bail process. [2] 2. Having held that the point of lack of sufficiency of description contained in the affidavit filed for the purpose of requiring bail could not be raised on the hearing of the petition for discharge, the next question is whether the description was sufficient to authorize imprisonment until bail should be given. In McElhannon v. Farmers' Alliance Warehouse, etc., Co., 95 Ga. 670, 22 S. E. 686, it was held that a description of money sought to be recovered in an action of trover as being "$3,500 lawful money of the United States" was insufficient, and the petition was demurrable. It was said that: "The test of the sufficiency of such a declaration is and should be, is the description of the chattels sued for so definite and distinct as to enable the court to seize them for restitution to the owner?" When the case was again before this court, an amendment had been made so as to add to the description the words, "lawful money of the United States consisting of 100 silver certificates of $5 each, 150 national bank notes, known as national currency, each for $10, and 75 treasury notes of the United States, each for the sum of $20." It was held that this was good as against a demurrer. In the opinion Chief Justice Simmons said: "The description is sufficient to identify the property if found in the defendant's possession. Each particular class of bills or notes is de scribed; the denominations of each class are given, and the number of bills or notes of each denomination. If this description is not sufficient, it would be a rare case in which money could be recovered in an action of trover, for few people who handle money remember the particular bank which issued it or the number of each particular bill or note; indeed, few persons ever look at the name of the bank or the number of the bill or note; and in these busy days of commerce few persons keep their money in bags, so that it can be identified in that manner. If the sheriff, upon attempting to make a seizure of the property described in the writ, should find in the defendant's possession 100 silver certificates of $5 each, 150 national bank notes of $10 each, and 75 treasury notes of $20 each, lawful money of the United States, he would be justified in taking possession of the same." Farmers' Alliance Warehouse, etc., Co. v. McElhannon, 98 Ga. 394, 25 S. E. 558. It was mentioned, as an additional reason why the demurrer should be overruled, that the defendant had The evidence in the present case showed, given bond for the forthcoming of the prop-in brief, as follows: Harper, the husband of erty, thus admitting the possession of money answering the description. But this additional reason was criticised in Cooke v. Bryant, 103 Ga. 727, 730-731, 30 S. E. 435. Beside the criticism there made, it might be [3] 3. The action to recover personalty, which is commonly called trover in this state, is not applicable to recovering a sum of money which may be due and unpaid. Its purpose is to recover specific property or for its conversion by the defendant. Bail process is permitted in order that security may be had for the forthcoming of the property, or, in default thereof, that the specific property may be seized, or, if the property cannot be seized, the defendant may be imprisoned. Civil Code, § 5152. The statutory right on the trial to elect to take a verdict for the property or its value does not change the nature of an action of trover so as to make it the equivalent of an action of assumpsit. "An action of trover for the recovery of money must be based on a legal obligation upon the part of the defendant to deliver specific money to the plaintiff." Cooke v. Bryant, supra. the defendant, obtained from a bank in Baldwin county, under authority from Georgia Jeffers, $700 in gold certificates of the denominations of $20 and $10, and 70 cents in silver. This occurred in the spring of the the grandmother of Harper, was sick, and he kept the money in his trunk, where he also had some money of his own, though not much. Some time later (the date does not appear) he went to Brunswick, in Glynn county, where he died on September 17th thereafter. He left $730 on deposit in a bank in that place. His widow, the defendant, and her attorney went to Brunswick, where she had to "sign a paper" for the money, and received a check for $730. Her attorney had charge of the proceeds with her consent at the time of the hearing. She never received or had the bills of the character mentioned in the affidavit. The de posit of Harper was not identified with the money received by him in the spring, and what she received from the Brunswick bank was not the specific money which Harper had previously received from the other bank. This did not authorize the continued imprisonment of the defendant under bail process, and she should have been discharged. Judgment reversed. All the Justices con cur. (139 Ga. 763) HARPER v. TERRY, Jailer. Error from Superior Court, Baldwin County; Jas. B. Park, Judge. Application for writ of habeas corpus by Rebecca Harper against S. L. Terry, jailer. Application denied, and applicant brings error. Affirmed. Sibley & Sibley, of Milledgeville, for plaintiff in error. D. S. Sanford and Hines & Vinson, all of Milledgeville, for defendant in error. BECK, J. Rebecca Harper filed her application for a writ of habeas corpus against S. L. Terry, jailer of Baldwin county, alleging that she was illegally restrained of her liberty and held in the jail. This application, coming on to be heard on the 17th day of December, 1912, before the judge of the superior court, was refused, and the applicant was remanded. To this judgment she excepted. It appeared on the trial of the case that the applicant had been taken into custody of the sheriff in certain bail-trover proceedings instituted against the applicant by Georgia Jeffers. Afterward Rebecca Harper made application for discharge, alleging that she was neither able to give bond and the security required by law nor to produce the (Supreme Court of Georgia. April 18, 1913.) property, and denying that she had in her (Syllabus by the Court.) 1. APPEAL AND ERROR (§ 486*)-BAIL TROVER-SUPERSEDEAS-EFFECT. Where a defendant in bail-trover proceedings is apprehended and confined in jail, and makes application for discharge, alleging that on account of her poverty she is unable to give the bond or security required by law, and is unable to produce the property, that the property is not in her custody or control, and that she at no time had possession or control of the property, and the judge hearing such application for discharge refuses it and remands the applicant to custody, the effect of a supersedeas upon the suing out of a bill of exceptions to have this judgment reviewed is not to release the applicant from custody, but the case is left in statu quo. The applicant, being already in custodia legis, is properly remanded until the determination of the questions raised in the bill of exceptions by the reviewing court. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2276; Dec. Dig. § 486.*] 2. HABEAS CORPUS (§ 33*)-GROUNDS-BAIL TROVER. The court did not err in refusing to discharge the petitioner in the habeas corpus proceedings. She was not detained in jail under "a mere semblance of law." The order of court under which she was restrained of her liberty was one granted by a judge of the superior court after hearing the application, made by the party herself, for discharge from custody under bail process. Whether that order refusing the discharge on that hearing was erroneous or not will be determined upon a review of that judgment; that question having been brought up for determination by the reviewing court. But it is not a void judgment. It is a binding adjudication until reversed or set aside. [Ed. Note.-For other cases, see Habeas Corpus, Cent. Dig. §§ 18, 31; Dec. Dig. § 33.*] possession, custody, or control the property to recover which the bail-trover proceedings had been instituted. Upon the hearing of this application, she was remanded to the custody of the jailer. To this judgment she sued out a bill of exceptions to have the judgment reviewed in the Supreme Court, and filed two affidavits, one stating that she had been advised by her counsel that she had good cause for writ of error, and that she was unable, because of her poverty, to pay the costs or give the bond or security for the eventual condemnation money, the other stating that she was unable to pay the costs in the case. On the hearing of the habeas corpus case appeared the following, in addition to the facts recited in the foregoing statement: In 1912 the applicant was appointed temporary administratrix of the estate of her deceased husband, Clifford Harper, by the court of ordinary of Baldwin county. As such she collected, on November 4, 1912, $730 from the National Bank of Brunswick, Ga., and in the following month she secured possession of a trunk and other personal effects belonging to the deceased. She has not produced the money sued for in the bail-trover proceeding, and has given no bond to secure its production. [1] 1. It is contended by counsel for plaintiff in error, in the first place, that the detention of plaintiff in error in the jail was illegal, because upon the hearing of the application for discharge from custody in the bail-trover case the filing of the pauper affidavits referred to in the statement of facio and testamentary trustee under a will, but the (a) Where the same person is both executor title to the property devised is placed in him as trustee, in a suit to recover realty so left, a demise in the name of the executor is not available. [Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 16-29, 238-245; Dec. Dig. §§ 9, 86.*] 2. EJECTMENT (§ 9*)-TITLE OF PLAINTIFF— JOINT DEMISE. operated as a supersedeas, and consequently | troduction in evidence of the lessor's letters that the applicant for discharge, the plain- testamentary. tiff in error here, should have been released from custody until the hearing and determination in the reviewing court of the bill of exceptions sued out to the order of the judge refusing the application for discharge from custody under the bail-trover proceedings. But we are of the opinion (conceding that, the bill of exceptions having been sued out, the filing of the affidavits referred to operated as a supersedeas without any express order from the court granting a supersedeas) that the effect of such a supersedeas was to leave the case and the applicant for discharge in statu quo. The applicant was already in custody of the law; the judgment refusing her discharge had no other effect than to leave her where she was at the time of the filing of the application. A supersedeas would not have the effect of changing the status and releasing the party held in custody. ·DENCE. There being evidence to authorize the verdict, and the same having been approved by the trial judge, it will not be disturbed here. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3876, 3948-3950; Dec. Dig. 1005.*] Error from Superior Court, Worth County; Frank Park, Judge. Action between William Brown and G. M. Pinson. From an adverse judgment, Brown brings error. Affirmed. Julian B. Williamson and J. H. Lipton, both of Sylvester, for plaintiff in error. Pope & Bennet, of Albany, for defendant in error. BECK, J. Judgment affirmed. Justices concur. (139 Ga. 773) is necessary to show title and a right of entry In order to recover on a joint demise, it in each and all of the persons named as lessors in that count. [Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 16-29; Dec. Dig. § 9.*] 3. APPEAL AND ERROR (§ 1050*)-ACTION BY EXECUTOR PROOF-WILL-ADMISSION IN EVIDENCE. At common law an executor suing in ejectment was required to make a profert of the will, but that rule is abrogated by statute. Neverthe less, where one of the plaintiff's lessors is an executor, the will would not be so irrelevant that its reception in evidence would require a new trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.*] 4. EJECTMENT (§ 90*)-EVIDENCE-EXEMPLIFICATION OF BANKRUPTCY. The exemplification of bankruptcy was admissible as bearing on the issue made as to the execution and delivery of a deed by the bankrupt anterior to the adjudication. [Ed. Note. For other cases, see Ejectment, Cent. Dig. §§ 254-277; Dec. Dig. § 90.*] Error from Superior Court, Terrell County; W. C. Worrill, Judge. Action by Mrs. M. A. Hart and others against Charles Deubler. Judgment for plaintiffs, and defendant brings error. Re versed. H. A. Wilkinson, of Dawson, for plaintiff in error. M. C. Edwards, of Dawson, for defendants in error. EVANS, P. J. The action was ejectment in the common-law form. The demises were laid, one in the name of M. A. Hart, executrix of T. J. Hart, and the other in the name of Mrs. M. A. Hart, Tom Hart, and Ed Hart, heirs at law of T. J. Hart. The defendant pleaded not guilty, and that he is the owner of the premises in dispute by virtue of a deed from T. J. Hart, dated November 8, All the 1875, and continuous possession thereunder from the date of its execution to the filing of the suit. The jury returned a general verdict for the "plaintiffs." The court refused to grant a new trial, and the defendant excepted. DEUBLER v. HART et al. (Supreme Court of Georgia. April 18, 1913.) (Syllabus by the Court.) 1. EJECTMENT (§§ 9, 86*)-PROOF OF TITLEAPPOINTMENT OF EXECUTOR. In an action of ejectment in the commonlaw form, where a demise is laid in an executor, the appointment and qualification of the executor is a necessary part of the plaintiff's title. The usual way of proving them is by the in [1] 1. An insuperable obstacle to upholding the verdict is that neither of the plaintiff's lessors was shown to have a right of recovery. An executor may maintain an action of ejectment, but, in order to recover, he must exhibit in evidence his letters testamentary. The province of the letters is to prove the appointment in order to show [4] 4. The court excluded from evidence certified copies of the proceedings in bankruptcy of Thomas J. Hart. The petition in bankruptcy was filed on November 26, 1875, and the adjudication also was made on that date. Included in the inventory of property claimed as exempt is "one house and lot in the city of Dawson." The evidence does not disclose whether the locus in quo was that house and lot. If that is the same house and lot in dispute, this proceeding would be relevant in connection with the plaintiffs' evidence attacking the execution and delivery of the deed produced in evidence by the defendant from Thomas J. Hart, purporting to have been executed a few days prior thereto. On the other hand, if the premises in dispute were not scheduled in bankruptcy, the bankruptcy exemplification would be admissible as bearing on the execution and delivery of the deed. In either view the evidence was relevant. his authority to have possession of the land. | evidence would not be ground for new trial. Lamar v. Sheffield, 66 Ga. 710. Where one sues as executor to recover on a chose in action belonging to his testator, upon failure of the defendant to file a plea in abatement, the plaintiff is not required to prove his appointment as executor; but the rule is other wise if the letters testamentary constitute a part of the plaintiff's title to the property sued for. Hazlehurst v. Morrison, 48 Ga. 397. Letters testamentary on the estate of T. J. Hart were a part of the lessor's title in the demise laid in the name of the executrix, and there could be no legal recovery on that demise without proof of the same. The reception in evidence of the will naming Mrs. Hart as executrix will not suffice to dispense with proof of her appointment and qualification as executrix, as wills may be probated by others than the nominated executor, and a nominated executor may offer a will for probate and yet refuse to qualify. Nor could a recovery be supported under this demise on the ground that Mrs. Hart is also named as testamentary trustee. Where the same person is both executor and testamentary trustee under a will, but the title to real property therein devised is placed in him as trustee, in a suit to recover such realty a demise in the name of the executor is not available. Schley v. Brown, 70 Ga. 64. [2] 2. Nor could there be a recovery on the demise of the heirs at law of T. J. Hart. The plaintiffs offered in evidence the will of T. J. Hart, in which the specific property was devised to Mrs. Hart in trust for her sons Thomas J. Hart, Jr., and Edwin Harris Hart. T. J. Hart having disposed of the premises in dispute by will, his heirs could not take the estate by inheritance. The devise is not to the widow and children as tenants in common, but to the widow as trustee for the children. She would only take the naked legal title during the minority of the children, and the evidence discloses that at least one of them was sui juris upon the institution of the action. As to him the trust was executed. So that, even if the words "heirs at law" annexed to the names of the lessors in the second demise be treated as surplusage, there can be no recovery under the familiar rule in ejectment that, in order to recover upon a joint demise, it is necessary to show title and a right of entry in each and all of the persons named as lessors in that count. Powell on Actions for Land, § 27, and cases cited. As the case will be sent back for another trial, we forbear discussion of the facts. Judgment reversed. All the Justices concur. (139 Ga. 753) ROBSON & EVANS v. J. R. HALE & SONS. (Supreme Court of Georgia. April 18, 1913.) (Syllabus by the Court.) 1. SALES (8 62*)-CONTRACT-CONSTRUCTION. A contract to purchase a certain quantity of oats, to be delivered in specified amounts each month during five months, is an entire contract of purchase, though the deliveries are to be made at separate times. [Ed. Note. For other cases, see Sales, Cent. Dig. §§ 171-179; Dec. Dig. § 62.*] 2. CONTRACTS (8_313*)—BREACH OF CONTRACT -ATTEMPT TO RESCIND. If a purchaser under such a contract, after receiving two shipments of the grain, without lawful cause notified the seller that he would not receive the balance of the grain undelivered, he could not thereby rescind the contract without the consent of the seller, but such a repudiation of it constituted a breach. Cent. Dig. § 1279; Dec. Dig. § 313.*] 3. SALES (§ 340*)-BREACH BY BUYER-REM EDIES. By Civ. Code 1910, § 4131, it is declared that upon the breach of an executory contract of sale by a purchaser the seller ordinarily has a choice of any one of three remedies: He may retain the goods, and sue for the difference between the contract price and the market price at the time and place for delivery; or he may sell the property, acting for that purpose as agent for the purchaser, and recover the difference between the contract price and the price on resale; or he may store or retain the property for the purchaser and sue the latter for the entire price. [3] 3. The will of T. J. Hart was received in evidence over objection. At common law an executor suing in ejectment was required to make profert of the will, but that rule has been abrogated by statute in this state. Lamar v. Gardner, 113 Ga. 781, 39 S. E. 498. Nevertheless, where one of the plaintiff's The evidence disclosed a clear repudiation lessors is an executor, the will would not be of the contract by the purchaser, with no legal altogether irrelevant, and its reception in reason therefor. The verdict was fully war Dig. §§ 927-942; Dec. Dig. § 340.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |