any other proposition which the case may present, for the maintenance of which counsel in their briefs did not insist or contend.

We proceed now to deal with the case under the first theory. We may regard it as fundamental that the owner of property may, as against his creditors, sell, lease, or otherwise dispose of the same, in whole or in part, so long as the transaction is in good faith and founded upon a valuable consideration. A purchaser or other person acquiring any interest in the property takes the same, under circumstances above referred to, freed from the claim of creditors who have no lien at the time that the owner makes the disposition of his property to him. A creditor who acquires a lien after such disposition by the debtor can, as a general rule, seize, under the process issued in enforcement of his lien, only such interest in the property as remains in his debtor, and cannot defeat or in any way interfere with the purchaser in the rights that he has acquired prior to the acquisition of the lien. In the present case the answer of the garnishee alleged that, "by virtue of an understanding existing and an agreement" between the garnishee and the defendant in attachment, a car of the defendant in attachment coming from a point without the state into the possession of the garnishee loaded, upon being unloaded in this state, might be reloaded by the garnishee and used for the purpose of shipment, provided it was routed in such a way that the direction would carry it to the point whence It started; that is, the agreement alleged was, in effect, that the cars of the defendant in attachment should be used to haul freight to points along the line of the garnishee, and, when such cars were emptied, that the garnishee might use them for transporting its freight, provided that they should be loaded only with freight that had a destination in the direction from which the car originally came, when received in their possession and returned to the owner at some point on its line of road out of the state. It was alleged that agreements of this kind were at the present day necessary and almost universal for the purpose of facilitating through shipments and preventing the necessity of unloading and reloading cars at connecting points; that, without such right so to receive and return cars, its business as a common carrier would be seriously affected. The answer does not allege that this agreement was in writing; but the substance of it was set forth therein, and is in effect as above stated. There was no traverse to the answer.

Neither was there any exception in the nature of a special demurrer to any of the averments, or other motion made challenging the sufficiency of the answer. In the absence of such exceptions, the answer will be deemed as admittedly true, and as alleging a valid and binding agreement between the two companies of the character above indicated.

Under its agreement, the garnishee acquired a right to use each car of the defend

ant in attachment as it came into its possession under the circumstances referred to. This was not a mere naked right under the answer, but was based upon a consideration; for, under the arrangement between the companies, each one was to pay the other for the use which it made of the other's cars. We see no reason why such an agreement is not valid, and, if it is valid, under its terms the company receiving the car loaded acquires a special property therein; that is, present possession, with the right to use the car in the transaction of its business for certain purposes and during a limited time. This agreement antedates the service of the summons of garnishment, and, conse quently, the lien of the attachment. It is a valuable right. The junior attaching creditor cannot, by mere levy, acquire any lien which would defeat the right of use which the garnishee had in the car. If the owner of a horse makes an agreement with another by which the other is to have the use of him for a year, a creditor of the owner cannot defeat this arrangement by the levy of an attachment sued out after the agreement of hiring has become complete. Such would be the case if the hiring was for even a day. The right to the use of the thing hired for the term of the contract of hire is substantial, and cannot, without violence to the rights of the person hiring, be taken from him without his consent, either under authority of an after-acquired lien against the hirer, or under authority of an after-acquired title obtained from the hirer. The car involved in controversy was no less than the subject-matter of a contract for hire, and the garnishee's interest therein was superior to any after-acquired interest which could be asserted by means of the attachment proceeding. This principle is recognized in section 2913 of the Civil Code of 1895, which is in the following language: "A thing hired is not subject to sale under judgment obtained subsequent to the contract of hire against the owner, but may be levied on, and a bond for its forthcoming at the expiration of the time for which it is hired may be demanded of the person hiring: Provided, the time of hiring does not exceed one year." The word "levied," in that section, is to be given its technical meaning-that is, an actual seizure of the property by a levying officer under a process— and therefore the latter part of the section in relation to a forthcoming bond would have no application in a case where the property is seized under a garnishment, which is for some purposes treated as in effect a levy upon the property, but it is not a technical levy within the meaning of the statute.

Under the record it appears that this contract of hire, or this right to the use of the car so vested in the garnishee by virtue of the contract, would not cease to exist until after the car had been returned to a point be

yond the limits of this state. At that time the garnishee loses control of the car and it is beyond the jurisdiction of the court. The garnishee would neither have a contractual right nor the process of court to bring the car back into the jurisdiction of the court. It is very clear that the fixed rights of the garnishee to so use the car could not be denied by the defendant in attachment. Admitting the contract of hire to the garnishee, the defendant would not be heard to deny to the garnishee the right of use according to the terms of the contract. If the defendant could not take the car before the contract of hire had terminated, by what authority would a junior lien creditor take it? The creditor could not take that which was not the defendant's. It may be safely said that at common law, if the defendant the Northern Pacific Railway Company could not take the car from the garnishee at any time while it was being sought to impress it with the lien of the attachment levied by service of the process of garnishment, the plaintiff, the Southern Flour & Grain Company, could not do so. This court said in Owens v. Atlanta Trust & Banking Co., 122 Ga. 523, 50 S. E. 380: "By garnishment he may reach what is due his debtor, but is bound by existing, though unrecorded, counterclaims, set-offs, pledges, incumbrances, or liens." In Bates v. Forsyth, 69 Ga. 365, it is said: "What one cannot recover himself cannot be recovered by garnishment against him." In Tim v. Franklin, 87 Ga. 95, 13 S. E. 259, it is said: "As a general rule, creditors cannot reach by garnishment any assets which the debtor himself could not recover from the garnishee." In Drake on Attachment (7th Ed.) § 458, it is said: "A fundamental doctrine of garnishment is that the plaintiff does not acquire any greater rights against the garnishee than the defendant himself possesses. Where, therefore, the attachment plaintiff seeks to avail himself of the rights of the defendant against the garnishee, his recourse against the latter is limited by the extent of the garnishee's liability to the defendant. See, also, in this connection, 14 Am. & Eng. Enc. L. (2d Ed.) 793; 20 Cyc. 994; 1 Shinn on Attachment & Garnishment, §§ 28, 34, 41; 2 Shinn on Attachment & Garnishment, § 578; Waples on Attachment & Garnishment (2d Ed.) §§ 255, 356; Johnson v. Union Pacific R. Co. (C. C.) 145 Fed. 249, and citations.

In view of what has been said, the garnishee had rights which not only the defendant, but also the plaintiff, the garnishing creditor, was bound to respect. Under the conditions already stated, the garnishee could not be required in a court of law, without equitable pleadings, to deliver the car to the officers of court in response to the summons of garnishment, to be disposed of by order of the court. The rights of the parties in equity are not involved in this

case. In the first place, there are no equitable pleadings upon which equitable relief could be granted to the attaching creditor; and, in the second place, the attachment was returned to the city court of Atlanta, a court with common-law jurisdiction, but without jurisdiction to grant affirmative equitable relief, such as the plaintiff would require in order to subject to its attachment, upon equitable principles, the residuary interest of the defendant in the car. Under the pleadings the court did not, under this theory of the case, err by discharging the garnishee, nor in dismissing the attachment. The court's ruling upon this theory of the case being well founded, the Judgment of discharge and dismissal will be affirmed.

2. We may now consider whether the attempt upon the part of the garnishing creditor to take this car by means of the garnishment process is violative of the federal Constitution and statutes upon the subject of interfering with interstate commerce. The car came into this state under circumstances which are sufficiently stated in the foregoing division of this opinion. It was a vehicle of transportation which brought from another state a load of wheat consigned to a point in this state. There was no attempt to serve the attachment by direct seizure of the car, so as to interrupt the due transmission of the freight; but the execution of the attachment was attempted by service of the summons of garnishment. While the garnishment might ultimately impound the car, the service of the writ was perfectly consistent with the right of the garnishee to continue its use to the point of destination, and there to discharge the freight. This being true, it may be regarded as a matter of fact that the levy of the attachment by service of the summons of garnishment did not in any manner interrupt the transportation or delivery of the freight. A mere statement of the facts renders it manifest that, as affects either the freight which the car brought into the state or the business of transporting the same, there was no interference whatever; and it follows, of course, that, if there was nothing further involved, the car would not be exempt upon the theory of unlawfully interfering with interstate commerce.

It is insisted further, however, that the car is a part of the equipment of a railroad company employed generally in the hauling of interstate and intrastate freight, and employed at this particular time only for the purpose of bringing from a point without this state a load of wheat to be discharged within the state, with the possibility of being reloaded with freight destined to points either in this state or beyond the limits of this state, and, after being so loaded, returned in the direction from which it had come. It is readily seen that there is a time while in this state that the car becomes empty, and, returning, may or may not be employed in

the business of transportation. The fact of present transportation of freight is, therefore, eliminated. The question finally is resolved into this: Is an unloaded car, which is generally employed by a steam railroad company as a part of its equipment in the transportation of freight from one state into another, exempt from the process of attachment regularly instituted for the collection of a debt? Such is the case before us, and we proceed to deal with the law applicable to such facts. The attachment laws with which we are dealing are not in conflict with the state Constitution, and there is no attack made upon their validity. They may be regarded, therefore, as valid in all respects. There is no purpose of these attachment laws, except the enforcement of the payment of debts. Such purpose is not only legitimate, but essential to the maintenance of the commercial and industrial welfare of the state. It is proposed in this instance to employ the writ of attachment only for this purpose. Rights of this kind may be enforced by any member of the public in any well-founded case. It may sometimes happen that the prosecution of such right for the legitimate purpose of collecting a debt may incidentally affect interstate commerce; but it does not follow that, merely because of such incidental effect, the courts will always enjoin the prosecution of the otherwise legitimate right. This principle has been recognized a number of times by the Supreme Court of the United States, though not in any case involving the collection of a debt. A case involving the application of the principle to the right of levy for the collection of a debt has not been before that court. The cases in which they have applied the principle are those involving occupation tax, public morals, public convenience, health of people and animals, and similar cases. See Williams v. Fears, 179 U. S. 270, 21 Sup. Ct. 128, 45 L. Ed. 186; Lake Shore Ry. Co. v. Ohio, 173 U. S. 285, 19 Sup. Ct. 465, 43 L. Ed. 702; Missouri Ry. Co. v. Haber, 169 U. S. 613, 626, 18 Sup. Ct. 488, 42 L. Ed. 878; Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166; New York R. Co. v. New York, 165 U. S. 628, 631, 17 Sup. Ct. 418, 41 L. Ed. 853; Chicago Ry. Co. v. Solan, 169 U. S. 133, 18 Sup. Ct. 289, 42 L. Ed. 688; Richmond R. Co. v. Patterson Tobacco Co., 169 U. S. 311, 18 Sup. Ct. 335, 42 L. Ed. 759, and authorities cited in each case.

But, after all, the argument in each case leads to the conclusion that, if the thing attempted is in pursuance of a valid state law, its enforcement will not be stayed only be cause it may incidentally affect interstate commerce. The principle is applicable to the case at bar, and the plaintiff should not be precluded from collecting his debt by impounding the car in the manner attempted, because of the incidental effect it may have on the general use of the car in the matter of transporting interstate freight. To hold

otherwise would in effect be to render immune from the payment of debts all property of railroads employed in interstate traffic. Such a proposition does not rest upon sound reason. What we have said seems not to be in entire harmony by some courts. See Davis v. Cleveland R. Co. (C. C.) 146 Fed. 403; Wall v. N. & W. R. Co., 52 W. Va. 485, 44 S. E. 294, 64 L. R. A. 501, 94 Am. St. Rep. 948; Connery v. Q., O. & K. C. R., 92 Minn. 20, 99 N. W. 365, 64 L. R. A. 624, 104 Am. St. Rep. 659. But the rulings in those cases are not controlling, and we do not, by force of their reasoning, feel drawn to a conclusion different from that already stated. The decisions to which we have alluded as entertaining a contrary view are interestingly criticised in the Harvard Law Review, vol. 20, No. 4, pp. 319, 320. In view of what has been said, we hold that the answer of the garnishee did not allege such facts with respect to the car as to render it exempt under the second theory insisted upon.

Judgment affirmed. All the Justices concur, except FISH, C. J., absent.

(127 Ga. 669)

MADDOX v. STEWART et al. (Supreme Court of Georgia. Feb. 15, 1907.) 1. INJUNCTION-DENIAL.

Under the peculiar facts of this case, there was no abuse of discretion in refusing to grant an injunction.

2. APPEAL-HARMLESS ERROR.

While some of the evidence admitted was subject to objection, its admission was not such error as to require a reversal, under the facts of the case.

(Syllabus by the Court.)

Error from Superior Court, Coffee County; T. A. Parker, Judge.

Action by J. D. Maddox, administrator, against W. W. Stewart and others. Judgment for defendants, and plaintiff brings error. Affirmed.

MOREHEAD v. ALLEN et al. (Supreme Court of Georgia. Feb. 26, 1907.) 1. QUIETING TITLE-PLEADING ISSUES.

Under the issues made by the pleadings, the evidence introduced, and the agreements of parties stated in the bill of exceptions in this case, it was error to hold that "in a proceeding of this sort the plaintiff could not rely on any title or rights which she might have to the land in dispute derived from the sale made by the United States marshal, and the deed of said marshal thereunder, to J. W. Lathrop & Co., but the only questions which could properly be considered were whether the deed made by W. D. Allen in 1871, conveying the land in dispute to

his wife for life, with remainder to the children therein named, conveyed the remainder interests in said land to the defendants, and whether the deed made by Mrs. Susan W. Allen, under the decree of Judge Hill, rendered December 13, 1873, conveyed such remainder interests to J. W. Lathrop & Co."

2. WRIT OF ERROR-DISPOSITION OF CAUSEPROCEEDINGS IN LOWER Court.

As a new trial is ordered, the entire de cree is set aside. If it was intended to adjudicate that the order of the judge of the superior court, granted in 1873, was a decree in open court, this will be open for redetermination, in view of the fact that the heading of such order recites that it was granted "at chambers" (although during the continuance of a term of court), and in view of the other evidence. 3. INFANTS-ACTIONS-SERVICE OF PROCESS.

It was held in Adams v. Franklin, 8 S. E 44, 82 Ga. 168, that prior to the act of 1876 (Civ. Code 1895, § 4987), requiring minors to be personally served, service of their guardian ad litem was in accordance with the practice of courts of equity at the time, and was sufficient. [Ed. Note. For cases in point, see Cent. Dig. vol. 27, Infants, §§ 258-261.]

4. QUIETING TITLE-PLEADING-ANSWER.

There was no error in overruling the demurrer to the defendants' answer, or in allowing the amendment. 5. REMAINDERS Court.

SALE UNDER ORDER or

Where the plaintiff alleged that certain proceedings to obtain an order for the sale of property which had been conveyed to a married woman for life, with remainder to her children, were filed by her on behalf of herself and children, to obtain an order to make a conveyance, that she had the advice and assistance of able counsel, and that he prepared the petition for her, the children could deny that the attorney had authority to file the petition, and that their mother authorized it, or knew anything of it until after the order was granted; and could set up that then she was induced to sign a deed purporting to convey both her interest and theirs, but that they were not bound thereby. 6. WITNESSES - COMPETENCY-TRANSACTIONS WITH PERSONS SINCE DECEASED.

Under the facts as they appear in the record in this case, there was no error in admitting the evidence of the life tenant, who was not a party to the record or in interest in such sense as to render her incompetent, and who would not be bound by the result, although the persons alleged to have dealt with her were dead. (Syllabus by the Court.)

Error from Superior Court, Houston County; W. H. Felton, Jr., Judge.

Action by Mrs. L. L. Morehead against J. H. Allen and another. From a judgment in favor of defendants, plaintiff brings error. Reversed.

Fort & Grice, W. L. & Warren Grice, and Duncan & Duncan, for plaintiff in error. Joseph H. Hall, Miller & Jones, and Warren Roberts, for defendants in error.

LUMPKIN, J. 1. Mrs. Morehead brought her equitable petition against A. S. Allen and J. H. Allen. The plaintiff alleged, among other things, as follows: Allen, the father of the defendants, was heavily in debt. In 1871, in order to hinder, delay, and defeat his creditors, he made a deed conveying certain lands to his wife for life, with remainder to their children. This intent was known to

The

the wife. The deed purported to be for a consideration, but was really voluntary. Lathrop & Co. were among his creditors at the time. Later they obtained judgment in the United States court, caused the land to be levied on and had it sold at marshal's sale, and became the purchasers. An agreement to compromise was effected between Lathrop & Co. and Allen and his wife. wife, for herself and as next friend of the children, filed an equitable petition, reciting, among other things, that the marshal's sale left it in doubt as to who might finally hold the lands, and obtained an order authorizing her to make a conveyance to Lathrop & Co., covering both the life estate and remainder in 700 acres of the land, upon their making a conveyance to her for life, with the remainder to the children, covering 500 acres. This was done. The chilrren are now asserting that they have title in remainder to the 700 acres, and that the proceedings and conveyance were invalid as to them. Plaintiff holds the land as the successor of Lathrop & Co. Other reasons for filing this proceeding to quiet the title or remove a cloud from it were alleged. It was prayed that the deed of Allen made in 1871, in so far as it covered the land claimed by plaintiff and in so far as it purported to convey title in remainder to the defendants, be de creed to be void, that defendants be enjoined from attempting to disturb the title or pos session of plaintiff, and that general re lief be granted. By amendment the plaintiff set up that she claimed title to the estate in remainder in the 700 acres conveyed to Lathrop & Co. under the decree or order referred to above, and also under the mar shal's deed; and she prayed that, in the event the decree should be held void as to the remainder in that part of the land, It should also be decreed void as to the remainder interest in the 500 acres, and that the title to such remainder interest should be held invalid, and the deed of 1871 be canceled as to the remainder interest of the defendants in the 700 acres, and that she should be decreed to have title to all the interests of the defendants therein, and also to "two-thirds" of the defendant's interest In the 500 acres conveyed to them by said decree, by virtue of her title derived from the marshal's sale. The defendants denied that the original deed was fraudulent, or without consideration, asserted that the proceedings before the judge of the superior court, and his order thereon for the conveyance of the life estate and remainder to Lathrop & Co., were invalid, so far as the remainder was concerned, and that the defendants had a perfect title to the remainder interests; "and, in order that complete justice may be done at this time," they prayed that a decree be entered adjudging that the deed to Lathrop & Co., in so far as it attempted to convey the interests of the remaindermen, was absolutely void, that it be

delivered up and canceled, and that the defendants should have such other and further relief as might be equitable and just.

The bill of exceptions alleges that it was agreed that the plaintiff had the same title to the lands in dispute that Lathrop & Co. held, and that she had succeeded to their title by deed or inheritance; and also that "it was agreed that all points and exceptions as to nonjoinder and misjoinder of parties be waived, and that the case proceed to trial as though all proper parties were before the court"; also that the presiding judge pass on the questions both of law and fact without a jury. Evidence was introduced on the various subjects of controversy, including evidence as to the marshal's deed, the financial condition of Allen at the time he made the deed to his wife and children, and the consideration thereof. The bill of exceptions recites as follows: "At the conclusion of the testimony, and after the argument of counsel, the court held and ruled as follows: That in a proceeding of this sort the plaintiff could not rely upon any title or rights which she might have to the land in dispute, derived from the sale made by the United States marshal, and the deed of said marshal thereunder, to J. W. Lathrop, & Co., but the only questions which could properly be considered were whether the deed made by W. D. Allen in 1871, conveying the land in dispute to his wife for life, with remainder to the children therein named, conveyed the remainder interests in said land to the defendants, and whether the deed made by Mrs. Susan W. Allen under the decree of Judge Hill, rendered December 13, 1873, conveyed such remainder interests to J. W. Lathrop & Co."

From the foregoing statement touching the pleadings and evidence, it is clear that the whole question of the title of the plaintiff and defendants was put in issue; that the plaintiff did not rely solely upon the order of the judge of the superior court and the deeds made under it, but also set up the marshal's deed, alleged that the deed made by Allen to his wife and children was fraudulent, and sought relief if the deed of Mrs. Allen to them was held void as to the remainder. It was sought to settle the entire question, and all questions as to parties were waived. We do not clearly see why the judge of the superior court held that a part of the issue thus raised could not be considered, and confined his consideration to only one branch of it. In this we think he erred.

2. Counsel for plaintiff in error contend that the proceedings and order under which the life tenant made a deed seeking to convey both the life estate and remainder cannot be treated as a proceeding and order of a judge at chambers, but must be considered as a proceeding and decree in open court. Counsel on both sides have in their briefs discussed at some length the effect of these

proceedings and this order, and whether they have any such effect in law as to bind the children and prevent their asserting the invalidity of the conveyance by their mother of their remainder interest. It is contended on behalf of the plaintiff in error that this point was adjudicated by the judge of the superior court in his decree in this case, that no cross-bill of exceptions was filed, and that, therefore, it is conclusively determined whether the decision as to that point be correct or not. We are not quite clear as to the exact intention of the learned judge of the Macon circuit in this part of the decree. It reads as follows: "It is further considered, ordered, and decreed that the order of the Honorable B. Hill, judge superior courts Macon circuit, entered upon the ex parte proceedings of date December 12, 1873, the order being dated December 13, 1873, authorizing Susan W. Allen to convey to J. W. Lathrop & Co. the interest of the said Alexander S. Allen, Maggie L. Allen, and John H. Allen in the 700 acres of land described in the petition, while based on a term-time proceeding, and entered in term, is void for the want of jurisdiction of the subject-matter." It will be noticed that the judge does not directly adjudicate that these proceedings were had in open court, but recites that, "while based on a term-time proceeding, and entered in term," the order was void. It also describes the action of the judge under consideration as an order, not a decree, and refers to the proceedings on which it was entered as "ex parte proceedings." If this was an adjudication that what transpired was in open court, it would seem to also adjudicate that an order, not a decree, was passed, and that the proceedings were ex parte. If it be said that by reference to the proceedings then under consideration, copies of which appear in the record, it will be seen that a guardian ad litem was appointed and required to show cause and make answer, it will also be seen, by the same reference to that record, that the order passed by the court did not, on its face, purport to have been passed in open court, but at its head contained a recitation: "At Chambers, Perry, Ga., Dec. 12th, 1873." Orders are often passed in chambers and chambers proceedings had between the beginning of a term of court and its adjournment. Thus applications for interlocutory injunctions, the appointment of ad interim receivers, and the like take place at chambers, although during term of court. Nor does the fact that the proceedings were entered on the minutes fix their status as having transpired in open court. Orders granted in vacation may likewise appear on the minutes. Civ. Code 1895, §§ 3172, 4864. In the case of McGowan v. Lufborrow, 82 Ga. 523, 9 S. E. 427, 14 Am. St. Rep. 178, there was evidence from which the court held that it could be found that the proceedings were in open court. In fact, a witness testified that the application