1015. In each case it is to be determined whether an infant of the age and capacity of the one in question would, under the circumstances of the case, be chargeable with negligence on account of its conduct at the time of the transaction under investigation. In this case the infant was shown to be dull at school and subject to fits. If the deceased had been an adult, there would be no question that his death was due to his own recklessness, and that there could be no recovery as a consequence of the homicide. Whether his being dull and subject to fits would relieve him from a duty to take care of himself which would be required of an infant more intelligent and free from infirmity is a matter not to be determined by the court, but by the jury under proper instructions from the judge. The judge erred in granting a nonsuit.

Judgment reversed. All the Justices con.

cur.

(127 Ga. 162)

OXFORD KNITTING MILLS v. SUTTON. (Supreme Court of Georgia. Dec. 15, 1906.) INFANTS-ACTION BY NEXT FRIEND-EXECUTION-VALIDITY.

Where a judgment has been obtained in a suit by a minor, prosecuted by a prochein ami, and execution issued thereon, it is not a valid ground of illegality to the enforcement of the execution by the levying officer that the prochein ami has not given the bond required under Civ. Code 1895, § 5681.

(Syllabus by the Court.)

Where, in an action to recover damages for alleged trespass upon agricultural land, the title to which was in dispute, and to enjoin the alleged trespasser, it appeared, upon an interlocutory hearing of the application for injunction, that the damages were not irreparable, and the evidence as to the solvency of the defendant was conflicting, the discretion of the trial judge in refusing an injunction will not be controlled. even though the evidence submitted may have shown that the land in dispute was really the property of the plaintiff. McFarland v. Park Woolen Mills, 39 S. E. 405, 113 Ga. 1072, 1074; Wiggins v. Middleton, 43 S. E. 432, 117 Ga. 162; Woodstock Iron Works v. Leake. 45 S. E. 429, 118 Ga. 642; Stonecipher v. Wilson, 47 S. E. 936, 120 Ga. 466.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, § 304.] (Syllabus by the Court.)

Error from Superior Court, Pike County; E. J. Reagan, Judge.

Action by G. P. Huguley against Luther Holmes and others. Judgment for defendAffirmed. ants, and plaintiff brings error.

C. J. Lester, for plaintiff in error Robt. T. Daniel, for defendants in error.

FISH, C. J. Judgment affirmed. All the

ATKINSON, J. Under the provision of Civ. Code 1895, § 5681, a prochein ami who has prosecuted a personal action in the name and behalf of a minor will not be allowed to receive the proceeds of the suit until he has executed the bond therein provided for. This, however, does not prevent a lawfully authorized levying officer from proceeding with the collection of the execution issued upon such a judgment. Payment to the lawfully authorized officer will be protection for the defendant, and it is the officer who will be interested in seeing that the prochein ami gives the bond. The bond is never required until the time comes for the prochein ami "to receive the proceeds," and that condition does not exist while the enforcement of the execution continues to remain in the coercive state. It follows that It is not an available ground of illegality to the enforcement of such execution that

(127 Ga. 211)

MOUNT v. WALL. (Supreme Court of Georgia. Dec. 20, 1906.) 1. EXECUTION-LEVY-FORTHCOMING BOND

VALIDITY.

A bond conditioned for the forthcoming of property levied on under an execution, which is payable to the plaintiff in execution, is not good as a statutory bond; but if the obligors. or either of them, receive from the levying officer the property levied on, upon the tendering of such bond, the obligor receiving the property would be liable thereon in the event the condition should not be complied with. The reception of the property would be a sufficient consideration to support the promise to have the property forthcoming at the time and place of sale. See Wall v. Mount, 49 S. E. 778, 121 Ga. 831.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Execution, §§ 408-410.] 2. APPEAL-REVIEW.

The evidence authorized the verdict, and the excerpt from the charge complained of, in the light of the evidence, did not contain any error prejudicial to the losing party.

(Syllabus by the Court.)

Error from Superior Court, Terrell County; E. J. Reagan, Judge.

Action by A. T. Wall against W. M. Mount. Judgment for plaintiff, and defendant brings error. Affirmed.

H. A. Wilkinson, for plaintiff in error. W. H. Gurr, for defendant in error.

ATKINSON, J. Judgment affirmed. All the Justices concur.

(127 Ga. 208)

WHITTLESEY, Tax Collector, v. ACME
BREWING CO.

(Supreme Court of Georgia. Dec. 20, 1906.) INTOXICATING LIQUORS-SPECIAL TAX-PLACE OF PAYMENT.

Under paragraph 28 of section 2 of the general tax act of 1905 (Acts 1905, p. 30), where a brewing company which was engaged in the manufacture of beer in this state paid the special tax imposed upon it in the county where its principal office was located, it was not liable also to pay an additional tax in another county of this state because it stored beer in such latter county and filled orders taken by an agency located therein.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 96, 100.]

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. A. Little, Judge.

Action by the Acme Brewing Company against P. E. Whittlesey, tax collector. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

The Acme Brewing Company filed its equitable petition against the tax collector and sheriff of Muscogee county, seeking to enjoin the collection of an execution issued against it for a special tax. The application for injunction was submitted to the presiding judge upon the pleadings and an agreed statement of facts, which showed the following: The plaintiff is a brewing company engaged in the brewing and manufacture of beer at Macon, Bibb county, Ga., with its principal place of business located there. It has established a branch office in Columbus, Muscogee county, from which it fills orders for beer when the territory in which they have been received is more convenient to its branch office than to its main office. The plaintiff fills orders only from the product of its own brewery in Bibb county. The beer used in filling orders by the branch office is stored in Muscogee county for that purpose, but it is brewed in Bibb county. It is simply kept and stored in Muscogee county for more conveniently filling such orders as it receives from the neighboring territory. Plaintiff has paid to the tax collector of Bibb county $300, being the tax imposed by the first part of paragraph 28, § 2, of the general tax act of 1905 (Laws 1905, p. 30), upon every brewing company engaged in the business of brewing or manufacturing beer. It pays no taxes in Muscogee county. The tax collector of that county has issued an execution, claiming that it is also liable for the payment of a special tax there, and such execution has been levied upon the property of the plaintiff. The presiding judge granted the injunction, and the defendants excepted.

John C. Hart, Atty. Gen., and S. P. Gilbert, Sol. Gen., for plaintiff in error. J. E. Chapman, for defendant in error.

LUMPKIN, J. (after stating the foregoing facts). Paragraph 28 of section 2 of the general tax act of 1905 (Laws 1905, p. 30) reads as follows: "Upon every brewing company engaged in the business of brewing or manufacturing beer, three hundred dollars for each plant or brewery in this state, and upon all other persons, firms or corporations who are engaged in the sale of beer, whether on consignment or otherwise, who have not paid the tax as liquor dealers imposed by paragraph seventeen of this section, for each place of business including all other persons, corporations, or agencies maintaining storage depots in this state for the sale of beer in kegs or barrels in each county where they do business, three hundred dollars." The tax collector contends that, under this section, a brewing company located in one county of this state, which has paid the tax of $300 "for each plant or brewery" imposed in the first part of the foregoing section of the act, is also liable to pay $300 under the provisions of the latter part of the section, because of the storage of beer in another county, from which orders by an agent located there are filled.

The section of the act under consideration first lays a special tax of $300 upon each brewing company for each plant or brewery in this state. It then levies a special tax of the same amount "upon all other persons, firms, or corporations who are engaged in the sale of beer, whether on consignment or otherwise, for each place of business, including all other persons, corporations, or agencies maintaining storage depots in this state," etc. It is evident that, after referring to brewing companies, the expres sion "upon all other persons, firms or corporations," refers to those other than such brewing companies. This language divides the dealers in beer referred to into two classes, one comprising brewing companies, and the other dealers other than such companies. When later in the paragraph, and in connection with the second class of dealers just mentioned, the language is used "including all other persons, corporations, or agencies," it is evident that this includes such other persons, corporations, or agencies in the second class. Furthermore, it says, "all other persons, corporations, or agencies." What does this mean? Persons, corporations, or agencies other than what? Having placed in one class brewing companies and in another class other persons, firms, or corporations who have not paid the liquor tax imposed in another paragraph, this paragraph then proceeds to include in the second class all other persons, corporations, or agencies maintaining storage depots. If the word "other," as here used after the word "including," was intended to contrast the persons, corporations, and agencies enumerated after

It with the persons, firms, or corporations just previously enumerated in the class, then the effect of this language would be to create, first, a class comprising brewing companies; second, a class comprising all other persons, firms, or corporations than brewing companies engaged in the sale of beer and who have not paid the liquor tax previously imposed; and, third, to include in this second class all persons, corporations, or agencies doing a storage business other than those already in the class; and, those already in the class being other than brewing companies, the result would be that the persons included in the second class by the last part of the paragraph would be persons, corporations, or agencies "other" than those which are "other" than brewing companies. We do not think the Legislature intended any such meaning, but that the expression "all other persons," following the word "including," has the same meaning as the identical words "all other persons" earlier in the paragraph, and thus is maintained the general classification already mentioned.

This paragraph is substantially the same as that in the act of 1896 construed in Smith v. State, 109 Ga. 227, 34 S. E. 325, and Acme Brewing Co. v. Fletcher, Id. 463, 34 S. E. 558, except for the addition to the second class of the words, "including all other persons," etc., with which we have just dealt. There was no error in granting the injunction.

Judgment affirmed. All the Justices con

cur.

(127 Ga. 200)

AMERICAN HARROW CO. v. BANKS
BROS.

(Supreme Court of Georgia. Dec. 20, 1906.) JUSTICES OF THE PEACE-EXECUTION-PAYMENT EVIDENCE.

This was a claim case in a justice's court. The levy was dismissed upon the ground that the execution had been fully paid off; there being entries of levies which were sufficient in amount to discharge the execution in full. The execution did show a number of entries of levies upon personal property, which were unexplained. No evidence at all was introduced at the trial to show the value of the property embraced in these levies. This was absolutely essential to the determination of the question as to whether the levies, unexplained, were suffi cient to raise a presumption of payment, and for this reason the justice of the peace erred in dismissing the levy, and the certiorari should have been sustained.

(Syllabus by the Court.)

Error from Superior Court, Jasper County; H. G. Lewis, Judge.

Claim case by Banks Bros. against the American Harrow Company. Judgment for claimants was affirmed on certiorari, and defendant brings error. Reversed.

(127 Ga. 200)

W. F. STIMPSON CO. v. DRISKELL. (Supreme Court of Georgia. Dec. 20, 1906.) SALES-WABranties-Breach.

This case is controlled by the decision in National Computing Scale Company v. Eaves, 116 Ga. 511, 42 S. E. 783. The verdict was not unsupported by the evidence. (Syllabus by the Court.)

Error from Superior Court, Monroe County; E. J. Reagan, Judge.

Action by D. S. Driskell against the W. F. Stimpson Company. Judgment for plaintiff, and defendant brings error. Affirmed.

B. J. Dasher, for plaintiff in error. Persons & Persons, for defendant in error. LUMPKIN, J. Judgment affirmed. All the Justices concur.

(127 Ga. 163)

CORNWELL v. LEVERETTE. (Supreme Court of Georgia. Dec. 15, 1906.) 1. LANDLORD AND TENANT- COLLECTION OF RENT-AMENDMENT OF PLEADING.

Where the amount due a landlord is measured by the value of the specifics in which the rent is payable, it is competent for the landlord, after a distress warrant has been converted into mesne process by the filing of a counter affidavit, to amend his pleadings by alleging the value of the specifics claimed is of a larger sum than that originally named in the affidavit upon which the distress warrant issued.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Landlord and Tenant, § 1107.]

2. WRIT OF ERROR-RECORD-BILL OF EXCEPTIONS--AMENDMENT OF PLEADING.

If it is desired to review by direct exception the ruling of the trial court in rejecting an amendment to the pleadings, the proffered amendment, either literally or in substance, must be set out in the bill of exceptions or attached thereto as an exhibit. The reference in the bill of exceptions to the nature of the rejected amendment is too general and indefinite to raise any question for adjudication.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2884.]

3. SAME-PRESENTATION OF QUESTIONS-MoTION FOR NEW TRIAL.

Even if the ruling of the court rejecting an amendment to a defendant's pleading may be reviewed on the motion for a new trial, a copy of the rejected amendment, literally or substantially, must appear in the motion before the court will be called on to review such ruling. When an amendment to pleading is rejected, the party offering it must abide the court's ruling and cannot introduce evidence to support the allegations therein. His remedy is to except to the ruling on the amendment, and in this way test its legal sufficiency.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1408-1411.]

4. EVIDENCE-SUFFICIENCY.

The verdict is supported by the evidence. (Syllabus by the Court.)

Error from Superior Court, Jasper County; H. G. Lewis, Judge.

Action by Mrs. Emily Leverette against G. L. Cornwell. From a judgment in favor Afof plaintiff, defendant brings error. firmed.

EVANS, J. Mrs. Emily Leverette caused a distress warrant to be issued against her tenant, G. L. Cornwell, for "the sum of $70, or one-fourth of the balance of the crop to be gathered" on the rented premises. To the levy of this distress warrant the defendant filed his counter affidavit that no part of the rent claimed was due. The distress warrant and counter affidavit were returned to the justice's court. On motion of the defendant, the justice required the plaintiff to elect whether the distress warrant should proceed for the money claimed or one-fourth of the crop, and the plaintiff made her election that it should proceed for the sum named therein. The trial resulted in a judg ment for the plaintiff, and the defendant appealed to a jury in the superior court. On the trial of the appeal the plaintiff was allowed to amend her affidavit by increasing the amount therein claimed from $70 to $85. The allowance of this amendment is assigned as error. The defendant then offered to amend his counter affidavit, but his amendment was rejected. The jury returned a verdict for the plaintiff for the sum of $74. A motion for a new trial was made on the usual grounds, and by amendment the movant alleged that a new trial should be granted, because the court erred in allowing the amendment to the plaintiff's affidavit and in refusing the proffered amendment to the defendant's counter affidavit, or to allow proof offered in support of the same. The court overruled the motion, and the bill of exceptions complains of the allowance of the amendment offered by the plaintiff, the refusal to allow the amendment to the counter affidavit, and the denial of a new trial.

1. Where rent is payable in specifics, the value of the specific property should be al leged in the affidavit to distrain. Toler v. Seabrook, 39 Ga. 14; Urquhart v. Urquhart, 46 Ga. 415. A distress warrant may issue for a definite sum, without disclosing that the rent was payable in specifics, and it will be no variance on the trial between the pleadings and the proof that the defendant contracted to pay, as rent, a part of the crop raised, rather than a definite sum of money. Driver v. Maxwell, 56 Ga. 11; Renew v. Redding, Id. 311. The affidavit upon which the distress warrant issued was duplicitous, in that the plaintiff claimed that the rent due was either $70 in money or one-fourth of the balance of the crop. She offered no amendment to her pleadings in the justice's court, but on the trial in that court was required by the justice to elect whether she would claim that the rent was payable in money or in specifics; and she elected to claim the former. On the appeal she tendered an amendment alleging that the rent contract was that the defendant should pay as rent

one-fourth of the crops raised on the rented premises, that only one bale of cotton had been delivered to her by the defendant, and that the value of her proportion of the balance of the crop was $85. The amount due the landlord was measured by the value of the specifics in which the rent was payable; and it was competent, after the distress warrant had been converted into mesne process by the filing of a counter affidavit, to amend her pleadings by alleging that the value of the specifics claimed was a sum other and larger than that originally named in her affidavit.

2. The bill of exceptions recites that the defendant offered to amend his counter affi davit by alleging that the landlord was insolvent and "had damaged defendant in the sum of $58, because of breach of rent contract in undertaking to dispossess the defendant of lands he had rented, and for attorney's fees and time and expenses of said litigation, and for time and expenses and attorney's fees in defending the distress warrant, the basis of this suit, because said warrant was illegally sworn out and before the rent was due under the contract, said damages being divided and indicated as they occurred." The proffered amendment does not appear in the bill of exceptions, and the characterization of its nature, as appears from the quoted extract, is too general and indefinite to present any legal question for determination. It is true that the proffered amendment is specified in the bill of exceptions as a part of the record; but it forms no part of the record, and this court cannot consider what purports to be a copy of it embraced in the transcript of the record sent up by the clerk of the court below. The proffered amendment should have been set forth either literally or in substance, in the bill of exceptions, or attached thereto as an exhibit. Taylor v. McLaughlin, 120 Ga. 703, 48 S. E. 203.

3. In the motion for a new trial the defendant also assigns as error the disallowance of his amendment; but he neither attaches the amendment, nor sets it forth, elther literally or in substance. Even if the ruling of a judge disallowing an amendment to a defendant's pleadings can be reviewed by a motion for a new trial, this ground of the motion cannot be considered, as it does not disclose the contents of the proffered amendment. Other grounds of the motion complain and the court refused to allow evidence offered in support of the rejected amendment. Where a trial court refuses to allow an amendment, the party offering it must abide by the court's ruling, and cannot introduce evidence to support the allegations therein. His remedy is to except to the ruling on the amendment, and in this way test its legal sufficiency.

4. The verdict was supported by the evi

dence, and has the approval of the trial judge, and we see no reason to disturb it. Judgment affirmed. All the Justices con

cur.

(127 Ga. 141)

THOMASON v. WILSON. (Supreme Court of Georgia. Dec. 14, 1906.) 1. ALTERATION OF INSTRUMENTS-AUTHORITY OF PARTY-NECESSITY OF WRITING.

A promissory note, in which a seal followed the name of the maker, but in the body of which the fact that it was a sealed instrument was not recited, was so altered as to recite in the body of the paper that the instrument was under seal. In a suit on such a note, the maker filed a plea of the statute of limitations, alleging that he had not undertaken and promised to pay the note within six years of the maturity thereof, and also alleging that the words in the body of the note, reciting that it was a sealed instrument, were inserted without his knowledge or consent after the instrument was signed. Held, that the authority to insert the words and change the legal character of the paper from an unsealed instrument to a sealed instrument cannot be conferred by parol.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Alteration of Instruments, § 87.]

2. SAME-PLEADING.

It is not necessary, in a plea of the character above referred to, to allege that the alteration was made by a party claiming an interest in the paper and with intent to defraud.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Alteration of Instruments, §§ 221-223.] (Syllabus by the Court.)

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

Action by R. N. Thomason against A. O. Wilson. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

R. U. Thomason brought a suit against A. O. Wilson upon a promissory note made by Wilson to John Orr, indorsed by Orr in blank, for $101.16. The note was dated February 2, 1893, and purported to be under seal. The defendant filed pleas of non est factum and the statute of limitations, and by amendment alleged that the words, "Witness my hand and seal," were not in the note when signed by him, and the alteration therein was made without his knowledge or consent. At the trial the plaintiff testified that he had inserted the words, "Witness my hand and seal," after the note came into his possession, by the parol authority of the maker. Plaintiff moved to strike the amended plea, because it contained no allegation that the alteration was made with intent to defraud. This motion was overruled, and the plaintiff excepted. At the conclusion of plaintiff's evidence, the defendant moved for the direction of a verdict, and the court directed a verdict for the defendant. To this judgment the plaintiff excepted.

George & Anderson, for plaintiff in error. Foster & Foster and E. W. Butler, for defendant in error.

COBB, P. J. (after stating the foregoing facts). In order to render a promissory note a sealed instrument, it must be so recited In the body of the note. The mere addition of the seal after the signature of the maker is Insufficient. Jackson v. Augusta Southern R. Co., 125 Ga. 801, 54 S. E. 697 and citations. When the note in the present case was executed, it was not a sealed instrument. A seal followed the name of the maker, but the body of the instrument did not recite that it was under seal. It was, therefore, merely a written promise to pay, not under seal. The period of the statute of limitations applicable to such a paper is six years. The suit was not brought within that time after the date of the maturity of the note. The plea of the defendant alleged that the words, "Witness my hand and seal," were inserted in the note after it was signed by him, and without his authority or consent. The plaintiff testified that he inserted these words in the note by the authority of the defendant, but that this authority was in parol. The addition of these words to the note changed the legal character of the paper. It made that which was an unsealed instrument before the words were added an instrument under seal. The Code declares that authority to make a sealed instrument must itself be under seal. Civ. Code 1895, § 3002. The changing of an ordinary promissory note into a sealed instrument is the making of a sealed instrument, and the authority to make this radical change in the paper must be evidenced in the same way that authority to make a sealed instrument in the first instance would have to be shown. Under the evidence the authority required by law for this purpose was lacking, and therefore the paper remained an unsealed instrument, and its legal effect was the same as if the words had never been inserted therein.

It is said though, that when a party sued upon a written instrument seeks to avoid it entirely, on the ground that it has been altered in a material part, he must allege in the plea that the alteration was made by a person claiming a benefit under the contract and with intent to defraud. Shirley v. Swafford, 119 Ga. 43, 45 S. E. 722; Burch v. Pope, 114 Ga. 334, 40 S. E. 227. The rule laid down in the decisions cited and the sections of the Code upon which these decisions are based has no application in a case like the present. If the party sought to be held liable under the written contract relies upon the alteration in order to vitiate the instrument and altogether avoid liability thereon, it is absolutely essential, in order to render the plea complete, that there must be allegations that the alteration was made by a party claiming a benefit under the paper and that the alteration was made with intent to defraud. The purpose of the plea, however, in the present case, was not to vitiate the paper and to avoid liability altogether thereon. The effect of the plea was simply to charge that the