in point on this question,-that of Drum. mond's Adm'r v. Jones (N. J. Ch.) 13 Atl. 611; and others to the same effect, and in great numbers, could easily be found. The question, however, is an entirely different one when the power conferred is not merely unilateral, but matter of express covenant in the deed, and not one involving personal trust or confidence, but properly pertaining to the office of trustee, and especially is this so when it is a power coupled with an interest. We think it becomes obvious, from an inspection of the deed of George D. Millen, that it was not his intention to create in Cornelia M. Millen and Jacob Waldburg a mere personal trust as to the sale of his estate. The instrument, as will have been seen, expressly confers upon them, "and the survivor of them, and the executors and administrators of such survivor," a power to sell "upon such terms as may to them, or the survivor of them, or the executors or administrators of such survivor, seem advisable." It is therefore manifest that the maker of this deed did not contemplate that the power should be exercised by the named trustees and none others, or that it should cease to be operative in case of their death or resignation. Undoubtedly, under this deed, the power of sale would have gone to the "executors" or "administrators" referred to, for the deed expressly so declares. If the word "successors" had also been used, there would be no room to doubt that a successor duly appointed by the court would have succeeded to the powers of sale belonging to the original trustees. As, however, the deed did not expressly extend the power of sale to the successors of the trus tees named, and as the sale upon the validity of which this case turns was not made by Cornelia M. Millen and Jacob Waldburg, or the survivor of them, or by any executor or administrator of such survivor, but by a trustee appointed by the court, the question is, did the power of sale go to that trustee? If so, he acquired it under the order of court, and by operation of law, upon a proper construction of the deed, and not by the donor's express declaration. Under this deed, the trustees were clothed with the legal title and estate in the trust property, and the same was an estate in the entire fee, because the beneficiaries consisted of a married woman, as tenant for life, and of minor children in remainder; and the deed plainly and distinctly declares that the holding in trust shall be for the remainder-men as well as for the life tenant. Besides, some of the objects of the trust clearly indicate that they were to be executed irrespective of whether the tenant for life were alive or dead. For instance, the power to sell for the purpose of paying the debts of George D. Millen was evidently to be exercised even if Mrs. Mary S. Millen, the life tenant, should die before the debts were all paid. Such being the character of the deed, we think the power of

sale passed to the duly-appointed successor of the original trustees. "A trustee who has been duly appointed under a power, and in whom the legal estate in the trust property has been vested by a proper conveyance or assignment, stands precisely in the same situation, and is invested with the same powers and privileges, with reference to the trust estate, as if he had been originally appointed a trustee, with the exception, indeed, of discretionary powers personally given to the original trustees." Hill, Trustees, 188. To the same effect, see 2 Perry, Trusts, § 503, where the following language is used: "But, where the estate is transferred to trustees duly appointed under a power, the transferees take the estate and office together. and can exercise the power. But, where the court appoints new trustees, it cannot communicate arbitrary or discretionary powers to them, unless the instrument of trust confers such powers upon the trustees for the time being, or they are annexed to the office. If a power is given to a trustee, his heirs and assigns, and a new trustee is appointed, and a vesting order made, the new trustee may execute the power under the word 'assigns.' In Johnson v. Cushing, 4 Shars. & B. Lead. Cas. Real Prop. p. 5, we find an elaborate discussion concerning the execution of powers by a surviving donee, or by substitute. On page 53 the following language occurs: "As to a power given to executors, the old rule was that where a mere power was given to executors, by name, then, if one died, the survivor or survivors could not execute the power; but if there were a devise to the executors, to sell, then the survivor or survivors, having a power coupled with an interest, could execute the power. Co. Litt. 133a. This distinction is recognized in many modern authorities, and the conclusion may be drawn that, while a power coupled with an interest will survive the death of one of its donees, a naked power will not"; citing Franklin v. Osgood, 14 Johns. 553; Bartlett v. Sutherland, 24 Miss. 395; Peter v. Beverly, 10 Pet. 532; Williams v. Veach, 17 Ohio, 171; Parrott v. Edmondson, 64 Ga. 332; Coleman v. McKinney, 3 J. J. Marsh. 246; Ross v. Clore, 3 Dana, 189. It must not be understood that the "interest" referred to in the expression, "power coupled with an interest," means a personal beneficial interest on the part of the donee of the power. The phrase just quoted simply means that the donee is possessed of the legal estate, or of a right therein. See page 24 of the volume last above mentioned, and the cases there cited. In Drummond's Adm'r v. Jones, supra, it was held that "where the power is annexed to the office of executor, and it is created to enable an executor to perform his duties there, although the words creating it indicate that the donee may exercise discretion, yet it will be held to belong to the office, and may be exercised by any person who may

happen to fill the office." And see Farrar v. McCue, 89 N. Y. 142, in which it was held that a power of sale conferred by will upon executors passed to new trustees appointed by the court in their stead. The case which, upon its facts, is most nearly in point upon the question now under consideration is that of Park Heights Co. v. Oettinger, 53 Md. 46. We commend to the careful consideration of all interested the able opinion of Irving, J., and the authorities cited by him, which we think abundantly sustain our conclusion in the present case that the power of sale conferred by the deed of George D. Millen upon Cornelia M. Millen and Jacob Waldburg passed to, and could be legally exercised by, Grief Linch, their successor in the trust under the court's appointment.

3. There is one other question requiring brief notice at our hands. It will have been observed that, in the petition presented to the court by Cornelia M. Millen and Jacob Waldburg to be relieved of the trust, it was recited that they had paid all the debts of George D. Millen; and it was accordingly insisted by counsel for the plaintiff's in error that inasmuch as the trust deed declared that, out of the proceeds derived from the sale of the grantor's property, the trustees should pay all of his debts, and, after the payment of the same "to hold the rest and residue of said estate, real and personal," upon the trusts already mentioned, the power of sale had become exhausted before any change of trustees was made. We think a complete answer to this contention will appear from an examination of the deed of trust. The power of sale was undoubtedly broad enough to comprehend all the property conveyed by the deed, and it is evident that the grantor did not intend to confine the exercise of this power to the one purpose of raising a sufficient sum of money to pay off his indebtedness. He evidently believed the property in question was worth more than enough to settle all his debts, and the facts show that he was right in so believing. The language of the deed itself leaves no room to doubt that George D. Millen intended that the original trustees should have the power to sell, not only for the purpose of paying his debts, but also for reinvestment. This will become apparent from a mere glance at the words used in the deed at the conclusion of the clause investing the trustees with the power of sale. After expressly giving to them the power to sell and dispose of any or all of the property conveyed, the following words are used: "Reinvesting, however, so much of the proceeds derived therefrom as may not be necessary to pay off the debts of the said George D. Millen, upon the same uses and trusts as are hereinbefore mentioned." The language just quoted, in connection with other portions of the deed, establishes beyond controversy, we think, the correctness of the proposition stated in the third headnote.

4. The charge of the court amounted, in substance, to a direction that the jury should find in favor of the defendant. The case was absolutely controlled by the legal principles which we have announced and endeavored to sustain in the foregoing divisions of this opinion. Our views of the law coincide entirely with those entertained by the eminent trial judge; and if these views are correct the only verdict legally possible, from the undisputed facts, was that which the jury returned, and consequently, his honor committed no error in giving the direction above mentioned. Judgment affirmed.

CENTRAL RAILROAD & BANKING CO. V. JACKSON. (Supreme Court of Georgia. July 23, 1894.) CONTINUANCE IN CIVIL CASES ALTERATION OF COMPLAINT IGNORANCE OF DEFENDANT. The declaration, as filed, recorded, and served, being for damages to lot of land No.

and the same having been altered by adding an "s" to each of the words "lot" and "No.," and by filling the blank with four numbers, so as to make the complaint apply to four lots of land instead of to one only, and it appearing that the counsel representing the defendant at the trial had no previous knowledge of this alteration, and it not appearing that any notice of the same had been given to or served upon them, or upon their predecessor in the management of the cause, who was dead, it was a good ground for a continuance that counsel were surprised to find the declaration in this condition, they stating in their places that they were wholly ignorant of the alteration until the case was called for trial, and for that reason were not prepared to go to trial on the question of damages to three of the lots, but were prepared as to one only. The court erred in refusing a continuance, or, at least, in not postponing the trial for such time as would be reasonable for making preparation, in view of the changed state of the declaration.

(Syllabus by the Court.)

Error from superior court, Houston county; A. C. Riley, pro hac Judge.

Action by C. H. Jackson, trustee, against the Central Railroad & Banking Company for damage to land. Judgment for plaintiff, and defendant brings error. Reversed.

Steed & Wimberly and John R. Cooper, for plaintiff in error. M. G. Bayne, for defendant in error.

PER CURIAM. Judgment reversed.

ROCKMORE v. CULLEN et al. (Supreme Court of Georgia. July 23, 1894.) SUIT IN JUSTICE'S COURT-OPEN ACCOUNT-AFFIDAVIT OF PLAINTIFF-SWORN DENIAL BY DEFENDANT.

Under the act of September 26, 1883, when the plaintiff in a suit upon an open account in a justice's court has duly proved his account by written affidavit, the introduction of that affidavit in evidence to the jury, on the trial of an appeal taken by the defendant, is conclusive upon the right of the plaintiff to recover, unless the defendant has filed his written affidavit denying the

justice and fairness of the whole or some part of the account. An unsworn plea will not suffice as a substitute for the affidavit required of the defendant by the statute, nor will a sworn plea, unless the oath thereto be in writing.

(Syllabus by the Court.)

Error from superior court, Walton county; N. L. Hutchins, Judge.

Action by Cullen & Newman against E. M. Rockmore on an open account. After a verdict for plaintiffs, the cause was removed to the superior court by certiorari, where the writ was overruled, and defendant brings error. Affirmed.

The following is the official report:

Cullen & Newman obtained a verdict in a magistrate's court against Rockmore, who took the case by certiorari to the superior court, where the certiorari was overruled, to which ruling Rockmore excepted. The judge of the superior court ruled that while the verdict was not technically legal, because of the method of calculating the interest, it appearing that substantial justice was done, the certiorari was dismissed, and judgment affirmed. The suit was upon an open account for $42.37 principal, $26.03 interest, was returnable to the May term of the magistrate's court, and there was personal service. No plea was filed nor appearance made at that term, and judgment was rendered by the magistrate against defendant. In his petition for certiorari, petitioner alleged that he was prevented from being at the court and entering his plea, on account of a sudden attack of severe illness on his way to court, information of which he sought to and did convey to the justice before the case was brought, who disregarded the information and entered judgment. The magistrate in his answer said that the case was called in its order; that the court sent after Rockmore, after he had been called by the constable, and the parties returned and answered that Rockmore was drunk; that the court had no notice from defendant that he could not attend or had any intention of filing a defense; and that the court met -Rockmore that morning, and had a conversation with him, and had no notice of his being dissatisfied with the judgment until he came to give bond and appealed to a jury; that when the trial came on appeal both parties announced ready, and plaintiffs' counsel introduced the account, and closed; that then defendant's counsel offered to introduce some of the goods as bought of plaintiffs, and to testify himself, which was objected to by plaintiffs' counsel upon the

principal $42.37, interest $26.03, and costs. The pleas offered were pleas of not indebted, and that the goods and other articles purchased of plaintiff's were not such as were recommended to defendant, and defendant was not bound by the contract made with plaintiffs. The answer was not traversed. The petition for certiorari alleged that when the case was called for trial before the jury petitioner offered to file his pleas, which was objected to because they were not sworn to, which objection the court sustained; that petitioner then offered to swear to or verify the same then and there, and asked the magistrate to swear him to the same; that plaintiffs' counsel objected, because the pleas were not filed and sworn to at the first term, which objection the court sustained; that plaintiffs then tendered their open account in evidence, and closed; that petitioner was then sworn in his own behalf, and proceed ed by his own testimony to show why plaintiffs were not entitled to recover on the account, but plaintiffs' counsel insisted that petitioner was not entitled to be heard and sworn in his own behalf, which contention was sustained by the court, and the jury retired, and returned their verdict; that petitioner insisted that part of the account sued upon was for a lot of jewelry set forth in a list attached to this petition (no such list was attached, so far as the record shows). and that the jewelry as sold and sent him was of no merchantable value, and not of the best quality of jewelry to be had, as guarantied by plaintiffs and shown by said list, because it was nothing but brass, and not gold plated, and hence the plea of failure of consideration, and, this item being more than the principal sued for, plaintiffs were not entitled to recover any sum. The errors alleged were: Because the verdict was contrary to law and evidence; because of error in refusing to allow the plea to be filed; error in refusing to allow petitioner to swear to and verify the pleas; error in refusing to allow him to testify in his own behalf; and because instead of $26.03 interest being due, if plaintiffs were entitled to recover at all, the correct amount is only $12.26.

C. H. Brand, for plaintiff in error. Napier & Cox, for defendants in error.

PER CURIAM. Judgment affirmed.

first term, nor any filed at that term under oath, as required by law; that at that time defendant offered to swear to the plea orally, without attaching affidavit, which was objected to by plaintiffs' counsel, and this objection was sustained; and that, there being no more evidence offered, defendant picked up his plea and walked out, the case closed, and the jury found for plaintiffs,

& C. R. CO.

(Supreme Court of Georgia. July 30, 1894.) LIEN FOR MATERIALS SUIT TO FORECLOSEAMENDMENT OF DECLARATION-SUIT AGAINST OWNER ALONE-DISMISSAL.

1. An action against a railroad company by a material man to enforce a statutory lien upon the railroad for the price of materials sold, not to the company, but to a contractor, is not amend able so as to charge the company as a debtor to

the plaintiff for the value of the material, as goods sold and delivered, or as goods of the plaintiff used and appropriated by the company in constructing its railroad. Such an amendment would introduce a wholly new and distinct cause of action.

2. In respect to the dismissal of the action after the proposed amendment was disallowed, the case is ruled by Lombard v. Trustees, 73 Ga. 322, and Castleberry v. Johnston, 17 S. E. 772, 92 Ga. 499.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by Montague & Co. against the Chattanooga, Rome & Columbus Railroad Company for materials furnished, and to foreclose a lien for the same. On a judgment dismissing the action, plaintiffs bring error. Affirmed.

The following is the official report:

The petition of Montague & Co. alleged: They are material men, and persons furnishing material for improving real estate. As such, on March 5, 1888, they furnished the Chattahoochee Brick Company railroad culvert pipe, for which it promised to pay them $167.40 principal, besides interest, which sums are past due, unpaid, and owing to petitioners, and due them for 165 pieces of such pipe sold and delivered by them to the brick company, which was of the value of said sum of money. The Chattahoochee Brick Company are the principal contractors for the building and equipment of the Chattanooga, Rome & Columbus Railroad through the counties of Floyd and Chattooga, and used said pipe in building the said railroad through Floyd county. The pipe is fastened and otherwise secured to the railroad track, roadbed, and right of way, and especially to that part of the same in Floyd county, at a certain portion of the road mentioned. Petitioners have fully complied with their contract for furnishing the pipe to the brick company, and have taken no personal security for the debt, and have no security therefor except under their lien herein asserted. Within three months from the time the pipe was furnished, petitioners recorded their claim of lien, in the office of the clerk of the superior court of Floyd county, the claim of lien being set out in the declaration, and being a claim on the railroad, and a certain part of it described, lying in Floyd county, which was sublet to J. H. Powers by the Chattahoochee Brick Company. The lien was claimed for furnishing the railroad company with 165 pieces of railroad culvert pipe, shipped March 5, 1888, of the value of $167.40, which, with accrued interest, is due Montague & Co. for said material, "which was used by said company in the construction of its line of railroad in said county of Floyd, and the same and every part thereof is now unpaid. Said pipe or material was received and used and put in said company's roadbed by said Chattahoochee Brick Company, the chief or principal contractors of said line of road. Montague & Co. assert this their lien for said sums

against said railroad as against the true owner or owners, as by statute provided." The petition further alleged that petitioners began this action for the recovery of the amount due them within 12 months from the time the same became due and payable. Process was prayed against the railroad company, and for foreclosure of the lien claimed. The action was brought in Floyd superior court July 21, 1888. On June 21, 18SS, plaintiffs served the railroad company with notice of their lien, and their purpose to establish the same to enforce the payment of their debt. In October, 1888, the railroad company pleaded not indebted, and denying that plaintiffs had any lien on the railroad and its property. In January, 1890, plaintiffs amended their declaration, alleging: Defendant was served with notice in writing of their lien, and their purpose to foreclose it, on June 21, 1888,-nine months before defendant settled with the brick company, on March 21, 1889. Defendant paid the brick company a sum largely in excess of plaintiffs' debt, in full settlement of their contract for the construction of the road. The brick company had actual notice of plaintiffs' lien and its record, and in May, 1888, admitted their liability to plaintiffs on this debt, and promised to pay it, but have never paid it, nor any part of it, and now refuse to pay it. The brick company is liable therefor to plaintiffs, because it used the pipe in the construction of the railroad, knowing it was plaintiff's' property, and not paid for by any one, and though it so used the pipe, and promised at that time, and shortly afterwards, to pay for it, it delayed the fulfillment of the promise until it finally refused to pay. The brick company has either been paid the funds due plaintiffs, and holds them for plaintiffs' use and benefit, or the railroad company has the funds held back in the final settlement with the brick company, and now holds the same for plaintiffs' use, but refuses to pay plaintiffs. Both the railroad and brick companies, on the day of their final settlement, and long before, knew that the debt was owing to plaintiffs, and unpaid, and that they, and each of them, were liable therefor, and yet each is seeking to evade the same, as if by common consent. The brick company has actual notice of the pendency of plaintiffs' suit, and had at and long before the final settlement, and expressed its indifference with regard to the suit. The debt was due plaintiffs, in the first instance, by the brick company, and afterwards became due plaintiffs, in the second instance, by the railroad company, and it is now due by each. Plaintiffs prayed that the brick company, a corporation domiciled in Fulton county, might be made a party defendant, and required to interplead therein. January 17, 1890, this amendment was allowed, and an order passed that the brick company be made a party defendant, and be served. On December 4, 1890, an order was passed reciting that the brick com

On

pany had not been served, and it was ordered that it be served at once; and on January 27, 1891, it was served by the sheriff of Fulton county. It demurred on the following grounds: Because it appears from the petition that it is a citizen of Fulton county, and the superior court of that county alone has jurisdiction of plaintiffs' suit; because the suit should have been brought within one year from the filing of plaintiffs' lien; and because no sufficient or legal cause of action is set out against the brick company. The case coming on for hearing, plaintiffs amended as follows: Powers, as a subcontractor on the railroad. ordered the pipe from them, but never used it, because he failed, as such contractor, before the pipe arrived on the road, and it was used by the brick company, who took from Powers his contract, and did the work Powers undertook to do by his contract. Before this suit was begun, or their lien filed for record, Powers became insolvent, and is so at the time of filing this amendment, and for these causes was not sued. The brick company has been paid by the railroad company for the pipe, but at no time has the brick company paid therefor, but is indebted to plaintiffs for the same $167.40, with interest. Plaintiffs offered the following amendment, which the court refused to allow: "If, for any reason, plaintiffs are not entitled at law to have their special lien established against the railroad company, the railroad company having got the pipe, and appropriated it to its exclusive use, plaintiffs are entitled to recover the value thereof, and pray they may recover generally against the railroad company, and have verdict and judgment accordingly for the sum due, as in ordinary actions for debt on implied contracts. For these causes, and others set out in this cause, plaintiffs pray that they may recover generally against the railroad company, as in suits on accounts and other ordinary debts, and for this reason they ask it may be converted into a suit for that purpose." The action was dismissed upon the written demurrer, and upon an oral motion to dismiss made by the defendants. To this ruling, and to the refusal to allow the amendment last above mentioned, plaintiffs excepted.

Henry Walker, for plaintiffs in error. Fouche & Fouché and J. Branham, for defendant in error.

PER CURIAM. Judgment affirmed.

BOOZ v. BATTEY. (Supreme Court of Georgia. Aug. 6, 1894.) APPEAL FROM JUSTICE- PLEA FILED IN SUPERIOR COURT.

After the defendant in a suit upon a promissory note, brought and tried in a justice's court, has established in that court the defense of payment, failure to reduce the defense to writing before the jury is stricken in the supe

rior court to try an appeal taken by the plaintiff will not preclude the filing of a proper plea of payment then tendered, unless it affirmatively appears that some injustice will be done the plaintiff by allowing the plea to be filed. Where, on the contrary, it affirmatively appeared that the same defense sought to be set up by the plea was litigated in the justice's court, it was error not to permit the plea to be filed. This ruling is made in full view of the acts of September 26, 1883 (Acts 1882-83, p. 103); October 15, 1885 (Acts 1884-85, p. 97); and October 16, 1891 (Acts 1890-91, p. 111).

(Syllabus by the Court.)

Error from superior court, Polk county; W. M. Henry, Judge.

Action by G. M. Battey, transferee of Battey & Hamilton, against M. A. Booz, ou promissory notes. Judgment for plaintiff. Defendant brings error. Reversed.

The following is the official report:

G. M. Battey, as transferee of Battey & Hamilton, sued Mrs. Booz in three separate suits in a justice's court, upon promissory notes made by her to Battey & Hamilton, three in number, aggregating $180 principal, one dated February 26, 1885, and the other two November 26, 1885, and all transferred to Battey, by Battey & Hamilton, on February 1, 1888. The three cases were appealed to the superior court, and there, on motion of plaintiff's counsel, were consolidated. Plaintiff moved for a judgment for the amount of the notes, because no written pleas had been filed to the suits in the court below, they being on unconditional contracts, nor had any written pleas been filed in the superior court. Defendant's counsel then offered the following written pleas, in brief: Before the institution of the suit she fully paid and discharged all of the notes, in the following manner: For the year 1885 she had an arrangement with Bonner & Bonner, tenants on her farm in Floyd county, that the rents due her by them, $500, were to be paid Battey & Hamilton, who then owned the notes sued on. Said tenants, during the fall of 1885, turned over to Battey & Hamilton, as agents of defendant, enough cotton to pay off the $500 rent, to wit, 14 bales, and she directed Battey & Hamilton to keep enough of the rent cotton to pay off all the notes, and to pay her the balance. They collected said rent of $500, appropriated the money to their own use, and failed to give her credit on the notes. When the notes were given, it was agreed between her and them that the notes were to be paid off in this manner, and they were so paid. During 1886 and since, and during the fall of 1885, after the notes were so paid, she demanded the notes from Battey & Hamilton, and the balance of the rent due her, and so paid to them, and they refused to cancel the notes or turn them over to her, and pay her the balance due on the rents. Further, that G. M. Battey, as her agent, on December 16, 1885, swore out a distress warrant against the Bonners for rent due her during 1885, and on the first Tuesday in March, 1886, col