vert a suit for land into an application for equitable partition. The court held that these objections to the proffered amendments were well taken, sustained the defendants' demurrer to the petition as originally framed, and dismissed the action. Error is assigned upon the court's refusal to allow the amendments, and upon the order sustaining the demurrer.

L. D. McGregory and S. H. Sibley, for plaintiffs in error. E. T. Shurley and E. P. Davis, for defendants in error.

EVANS, J. (after stating the facts). 1. While the plaintiffs stated, in the beginning of their petition, that they sued as heirs at law of the Pottle estate, they attached a copy of his will to their pleadings, set forth in what capacity they were really interested in the property in controversy, and distinctly prayed for the relief sought as the legatees referred to in the fourth item of the will. Their pleading was certainly open to the criticism that it was self-contradictory and duplicitous, with respect to the capacity in which they brought suit, but their petition was amendable so as to remove this objection, and the proffered amendments did not undertake to introduce new parties or a different cause of action against the defendants.

2. The real important question to be determined is whether, looking to the original petition and the proffered amendments, the plaintiffs set up facts which entitled them to bring suit, and, if so, whether the particular relief sought was such as could properly be granted by the court in the absence of other parties at interest not brought before it. Under the plaintiffs' allegations, both the deed from the executrix to Wheeler and the deed from him to Mrs. Norris ought to be delivered up and canceled. Were the executrix in life and a party defendant to the suit, there could be no question as to the propriety of granting this relief to the plaintiffs, if they sustained by proof their charges of fraud and collusion. The executrix being dead, was it necessary to have before the court a duly appointed administrator upon the estate which she represented? We think not, in view of the decision in Bledsoe v. Bledsoe, 29 Ga. 385. There are no creditors of the Pottle estate, and all the legatees and other parties at interest who would be affected by the cancellation of the deed executed by the executrix and delivered to Wheeler are before the court. As to the prayer for partition, the difficulty is that Mrs. Heath was a legatee, and neither her creditors nor the creditors of her deceased husband would have representation before the court in the division to be made among the legatees in life and the heirs of those who are now dead. But the demurrer does not raise this specific objection, but only the general contention that there was no equity In the petition and the plaintiffs were entitled to none of the relief sought; that is to say,

the demurrer does not point out any nonjoinder of parties, but merely challenges the right of the plaintiffs to institute this suit. If, as they allege, they took under the will as tenants in common with Mrs. Heath, who was the nominated executrix, and who, in fraud of their rights, undertook to deed the land to Wheeler by a secret conveyance without consideration, it was the right of the plaintiffs to have this conveyance and the deed from Wheeler set aside, and to be restored to the possession of the land adversely held by Mrs. Norris, if they commenced their action in due season. Their petition was filed in March, 1902, and they did not learn of the deed from the executrix to Wheeler until, after her death in 1897, it was placed on record in the year following. The executrix, who was also one of the legatees, took possession of the land upon the death of her testator, and was permitted by the other legatees to remain in possession up to her death, they not being put on notice that she or any one else set up any adverse claim to it. Upon her death, the plaintiffs suffered her husband and her daughter, Mrs. Norris, to continue to live upon the premises, still having no intimation that either claimed any right to occupy the land otherwise than as an heir of the deceased legatee, Mrs. Heath. The plaintiffs were not in laches, certainly, in not undertaking to oust Mrs. Norris before they discovered, in 1898, the fraud of which they were the intended victims, and they then acted with due promptness in looking after their rights, bringing their suit within four years thereafter. Having no reason to suspect the making of a secret conveyance by the executrix, the rights of the plaintiffs are not to be defeated simply because they did not discover the fraudulent scheme till some four or five years after the antedated conveyance to Wheeler was made and he had reconveyed to Mrs. Norris, who took as a mere volunteer, even if she did not have actual notice of the fraud.

However, as to the personal effects which the plaintiffs also seek to recover, they assign no reason why they have waited thus long before attempting to set up their rights with regard to the same, and their suit is barred. They should have earlier insisted upon whatever rights they had to have the personal effects of the estate properly administered upon and the proceeds turned over to them and others named by the testator as the objects of his bounty.

Our conclusion is that the suit of the plaintiffs was improperly dismissed, for they should have been afforded an opportunity to establish their claim to the land, and, it other necessary parties were suggested by the defendants and were joined in the action. also granted their prayer for an equitable partition in accordance with the terms of the will. Judgment reversed. All the Justices con

cur.

(127 Ga. 39)

MARTIN v. STATE. (Supreme Court of Georgia. Dec. 11, 1906.) 1. BASTARDY BOND.

When a bastardy proceeding is begun after the child is born and the mother is well, the father can be required to give a bond only for the maintenance and education of the child until it arrives at the age of 14 years. If the proceeding is begun before the child is born, the bond must cover also the expenses of the lying in of the mother.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 6, Bastards, § 22.]

2. SAME EVIDENCE.

The evidence authorized the verdict, and no sufficient reason appears for a reversal of the judgment.

(Syllabus by the Court.)

Error from City Court of Richmond County; W. F. Eve, Judge.

Charles Martin was convicted of bastardy, and brings error. Affirmed.

The accused was arraigned upon an accusation charging him with the offense of bastardy, and was convicted. He filed a motion in arrest of judgment, and also a motion for a new trial, each of which was overruled, and he excepted. It appears from the record that he was arrested and brought before a justice of the peace, who, after hearing the evidence as to the paternity of the child, passed the following order: "Charles Martin having been arrested and brought before me upon a warrant pursuant to 1248 and 1249 of the Penal Code, issued at the instance of Essie Jacobs, the mother of a certain bastard child, which warrant charges said Charles Martin with being the father of said child, after hearing the evidence, it is ordered that the said Charles Martin give security for the maintenance and education of said child until it arrives at the age of fourteen years." Upon refusal to give the bond required in the foregoing order, the justice of the peace committed the accused to jail in the event he failed to give a bond for his appearance at the next term of the city court.

N. M. Reynolds and Salem Dutcher, for plaintiff in error. Jas. C. C. Black, Jr., for the State.

COBB, P. J. (after stating the foregoing facts). 1. The motion in arrest of judgment was predicated upon the ground that the accused was not called upon to give a bond in terms of the law; the order calling upon the accused to give a bond providing for a bond only for the maintenance and education of the child until it arrived at the age of 14 years, not including the expenses of the lying in of the mother. As the order of the justice of the peace calling upon the accused to give the bond does not appear upon the face of the accusation, of course the motion in arrest of judgment was properly overrul

ed, but the accused can avail himself of the same point on the motion for a new trial, for the reason that, if he was not called upon in terms of the law to give the bond, the verdict would be contrary to the evidence. We will, therefore, deal with the question as presented under the general grounds of the motion for a new trial. It appeared from the evidence that the bastardy proceedings were begun after the child was born, and the mother was well, and was in no further need of maintenance and nursing resulting from the birth of the child. The whole purpose of the bastardy law is to indemnify the county against any expense that might be imposed upon it by having to take care of a pregnant woman who is a pauper during the time that she lies in. If the child is born and the mother has recovered, and no demand has been made upon the county for such expenses, somebody, of course, has discharged this expense, and the county would never be liable for the same, either at the instance of the mother or at the instance of the person who paid such expenses. But, even after the child has been born and the county has not been charged with any expense resulting from the lying in of the mother, there is a liability that the child may thereafter become a charge upon the county, and the father must give a bond to indemnify the county against this possible charge. If the bastardy proceeding is begun by a pregnant woman before the child is delivered, the bond required by the terms of the law is a bond for the lying-in expenses and the maintenance and education of the child until it arrives at the age of 14 years. If the child has been born and the mother has recovered before the bastardy proceedings are instituted, the bond required by the terms of the law is simply a bond to indem nify the county against a possible charge for the maintenance and education of the child until it arrives at the age of 14 years. Under the facts in this case, the accused was called upon to give the only bond that he could have been lawfully required to give, and the judgment will not be reversed on account of the justice of the peace not having incorporated in the demand for the bond indemnity for the expenses of the lying in. Pen. Code 1895, § 1248 et seq.; Acts 1902, p. 57.

2. One ground of the motion for a new trial is based upon alleged newly discovered evidence. All the evidence relied upon in this ground tends simply to impeach the testimony of the prosecutrix, and, under the repeated rulings of this court, the discretion of the judge, exercised in overruling the motion on this ground, will not be interfered with. The evidence authorized the verdict, and no sufficient reason has been shown for a reversal of the judgment.

Judgment affirmed. All the Justices con

cur.

(126 Ga. 718)

JOHNSON v. TANNER. (Supreme Court of Georgia. Nov. 13, 1906.) 1. ERROR, WRIT OF-DISMISSAL.

On the argument of this case a motion was made to dismiss the writ of error, upon the ground that the suit to be enjoined had been dismissed. The fact of dismissal was not admitted by opposing counsel, and was denied by the plaintiff in error. Under these circumstances it would be necesary for this court to determine, as a matter of fact, from extrinsic evidence, whether or not the suit had been dismissed, before we could dismiss the bill of exceptions on the ground taken. This court is without original jurisdiction, and can neither make the inquiry nor dismiss the bill of exceptions upon the ground taken. See Tuells v. Torras, 39 S. E. 455, 113 Ga. 691; Garlington v. Davison, 50 S. E. 667, 122 Ga. 677.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3163.]

2. SAME-BILL OF EXCEPTIONS-CERTIFICATE OF JUDGE.

A motion was made to dismiss the bill of exceptions on the further ground that the certificate of the judge to the bill of exceptions was void, because "it did not appear why the same was not signed within 20 days from judgment excepted to, nor does it state that the failure to sign such certificate was without fault on the part of the plaintiff in error." In his certificate the judge certifies that the bill of exceptions was handed to him 14 days after the judgment refusing the injunction was rendered, and that he kept it until a day more than 30 days from the rendition of the judgment. This explanation shows the plaintiff in error to be without fault, and the writ of error will not be dismissed. Civ. Code 1895, 88 5542, 5543; Acts 1896, p. 45; Railroad Commission v. Palmer Hardware Co., 53 S. E. 193, 124 Ga. 633.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2404; vol. 21, Cent. Dig. Exceptions, Bill of, § 66.]

3. ANIMALS-NO FENCE STOCK LAW-ADOP

TION.

When a militia district seeks to adopt the "no fence" stock law and put it into effect under the provisions of the Political Code 1895, § 1781, as amended by the act of 1899 (Acts 1899, p. 30, Van Epps' Code Supp. § 6154), it is a condition precedent to the law going into effect that within six months after the election declaring for "no fence," the ordinary (or such other tribunal as may have jurisdiction of county matters) shall have good and substantial fences erected around the lines of such portions of such district as touch nonstock or "fence law" districts or counties, in order to prevent the incursion of stock from other counties or districts, the fences to cross public and private roads, provided however, that suitable gates are established for passage along such roads. See, in this connection, Puckett v. Young, 37 S. E. 880, 112 Ga. 578.

4. SAME EVIDENCE.

The evidence disclosed by the record in this case is for the most part unfounded opinion of witnesses, and uncertain and indefinite, and taken as a whole does not show the fencing of the district in the manner or, in the time prescribed by the law, and it follows that it has not been shown that the "no fence" law was in effect in the militia district in question at the time of impounding the animals complained of. 5. INJUNCTION-PROSECUTION OF SUITS.

It being alleged in the plaintiff's petition that his animais had been impounded without authority of law, and that, under the guise of an alleged law, which, in fact, was not in force, the defendant who was himself insolvent, proposed to continue to impound the plaintiff's stock and barass him with unfounded suits for

the recovery of damages occasioned by the stock, which, under the law, had a right to go at large, and these facts appearing to be true under the evidence, it was erroneous for the judge to decline to enjoin the defendant from further impounding the plaintiff's stock, and from the further prosecution of his suits.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 155, 156.]

6. SAME.

Under the act of 1899, supra, the ordinary was without jurisdiction to pass any judgment to the effect that, "since the election had been held and had resulted in favor of stock law, and since the fence had been constructed around the district within six months after the election, the stock law was in force in the said district." Such judgment by the ordinary was void, and, upon the hearing of the application for injunction, the plaintiff's objection to the admission in evidence of the order, upon the ground that it was void and irrelevant, should have been sustained.

7. SAME EVIDENCE.

On the interlocutory hearing of the application for injunction, an affidavit which does not contain either a caption of the case under consideration, or other facts which show that the affidavit was intended by the witness to be used as evidence in the particular case, is not admissible in evidence. In this case the court erred in admitting such an affidavit, offered by the defendant, over the objection, appropri ately urged, of counsel for the plaintiff. See, in this connection, 1 Enc. P. & P. 374; Warren v. Monnish, 23 S. E. 823, 97 Ga. 399; Whitley v. Berry, 31 S. E. 171, 105 Ga. 251; Hill v. McBurney Co., 38 S. E. 42, 112 Ga. 788; 52 L. R. A. 398.

(Syllabus by the Court.)

Error from Superior Court, Johnson County; B. T. Rawlings, Judge.

Action by William Johnson against W. C. Tanner. Judgment for defendant, and plaintiff brings error. Reversed.

Jas. K. Hines and Wm. Faircloth, for plaintiff in error. Daley & Bussy, V. B. Robinson, J. L. Kent, A. L. Hatcher, R. B. Blount, J. R. L. Allen, and E. L. Stephens, for defendant in error.

The plaintiff alleged in his petition the following facts: On the 21st of February, 1905, a stock-law election was held in the 1201st district, G. M., Johnson county, the district wherein both the plaintiff and the defendant reside. The result of the election was declared to be in favor of the adoption of the stock law, but the law never went into effect, because the district was not inclosed with a substantial fence within six months after the election, as was required by a provision of the stock law. Nevertheless, after the expiration of the six months, the defendant impounded certain hogs of the plaintiff, refused to return them, and commenced suit to recover of the plaintiff the expenses incurred in impounding the animals, as well as damages for the trespasses they had committed. The petition alleged further that the defendant was insolvent and threatened to continue to impound plaintiff's stock, if nec essary. The prayer was to enjoin the defendant from pursuing his alleged cause of ac tion against the plaintiff, and to restrain him from carrying out any threats to impound

plaintiff's stock in the future, and to decree that the stock already impounded be delivered back to the plaintiff. A demurrer and answer

both were filed to the petition, in the latter of which the defendant admitted having impounded plaintiff's stock, and that he was claiming damages for injuries done by said stock and also expense for feeding them, and declared that he intended to continue to impound plaintiff's stock if they were allowed to go upon his (defendant's) premises. He denied, however, that the stock law had not gone into effect, but, on the contrary, justified his actions under that law. On the trial of the issue thus raised, the plaintiff contended that the stock law had never become operative because suitable fences bad not been erected around the militia district within six months after the election. In support of that contention, the plaintiff introduced in evidence the affidavits of a number of witnesses which were to the effect that the fence in many places was not on the militia district line, but was many yards therefrom; that it was insecurely fastened to stakes driven a few inches in the ground; that it had fallen in many places of its own weight; that for a considerable distance no fence at all was constructed, but that in lieu of the fence a water course was relied on, and this, not being navigable as required by law, afforded no obstruction to the passage of stock; that adequate gates had not been provided at the intersection of roads, and that, on the whole, the fence utterly failed to accomplish the purposes for which it was constructed. The defendant, on the other hand, introduced numerous affidavits to the effect that the fence was of the "proper" height, built of the "proper" sort of wire, was as substantial "as required by law." He also tendered in evidence an order signed by the ordinary of the county and dated within six months after the election, which declared, in substance, that, since the election had been held and had resulted in favor of stock law, and since the fence had been constructed around the district within six months after the election, the stock law was in force in the said district. The plaintiff objected to the introduction of this order, on the ground that the ordinary had no authority, under the provisions of the stock law, to promulgate the same, and that it was irrelevant, which objection the court overruled. The defendant also offered in evidence a joint affidavit of three witnesses, stating that they had built and fully completed the fence around the 1201st district "in conformity to the requirements of law," and within six months after the election, and had erected gates wherever the fence crossed roads. This affidavit was objected to by the plaintiff on the ground that it was not entitled in the cause, and because there was no provision of law for the making of the same, and that It was hearsay and irrelevant, which objection the court also overruled. On this state 56 S.E.-6

of evidence the court passed an order denying the injunction, and the plaintiff, by bill of exceptions, brings the question of the correctness of this ruling for review by this court. A motion was made to dismiss the bill of exceptions on the grounds: (1) That the certificate of the judge to the bill of exceptions was void because "it did not appear why the same was not signed within 20 days from the judgment excepted to, nor does it state that the failure to sign such certifi cate was without fault on the part of the plaintiff in error." (2) That the suit sought to be enjoined by the plaintiff, namely, the one filed by the defendant to recover damages of the plaintiff on account of the trespass, etc., of the impounded stock, had been dis missed and the stock had been returned to the owner. In support of this contention the defendant attached to the motion his own affidavit and that of the justice of the peace to the effect that the aforesaid suit had been dismissed. It was not admitted by counsel for the plaintiff that the suit had been dismissed, but it was contended in his brief that the plaintiff in error denied that the suit had been dismissed.

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

(126 Ga. 767)

BELT v. LAZENBY. (Supreme Court of Georgia. Nov. 14, 1906.) 1. PLEADING AMENDMENT.

When defendant, after demurring to a petition at the appearance term, dies during such term and before the time allowed by law for demurring has expired, and the executor of his will is, at the next succeeding term, made a party defendant in his stead, and thereupon immediately offers to amend the demurrers filed by his testator, it is not erroneous to allow him to do so.

2. COMPROMISE and SettleMENT-CONSIDERA

An agreement to devise, if founded upon sufficient consideration, is, after the death of the party who agreed to devise, enforceable against his sole heir at law, by treating the heir as a trustee and compelling him to convey the property in accordance with the contract; and where the agreement is entire and embraces both real and personal property, and the estate of the decedent is unrepresented and owes no debts, and the heir is in possession of all of such property, it is not necessary, in order to enforce the contract in its entirety, to have an administrator for such estate appointed and made a party defendant to the suit. In such a case equity, having obtained jurisdiction over the subject-matter and over the heir for the purpose of enforcing the contract as to the land against him, may enforce the whole of the contract against him.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 49, Wills, §§ 175, 178, 180.]

6. SAME-PLEADING.

Where, in an action against an heir to enforce specific performance of the contract of his ancestor to devise designated property to the plaintiff, the petition, after setting forth the alleged agreement, alleges that such ancestor, prior to his death, "gave direction regarding the turning over of said property to petitioner,' such allegation is not subject to demurrer upon the ground that it fails to state to whom such direction was given, nor because such direction, if given, would not authorize a recovery or justify a representative of the ancestor's estate in delivering the property to the plaintiff. 7. Same.

Where, in an action of the character above indicated, the petition alleged that the circumstances leading up to the contract sought to be enforced were that certain described property had been devised to plaintiff by her brother, its deceased former owner, but that after his death the will was surreptitiously destroyed without being probated, and the widow of the testator bad gone into possession of such property as his sole heir at law; that the contention in reference to the will continued an open one in the family for years; that the plaintiff contended that the will had not been revoked, but surreptitiously destroyed after the death of the testator, and that she was entitled to the property, while the testator's widow contended otherwise; and that they finally compromised and settled their conflicting claims by entering into the contract in question, which had been fully performed by the plaintiff-such petition was not demurrable because no copy of the alleged will was attached thereto, nor the substance of the same stated therein, nor because the date of the will and the names of the subscribing witnesses thereto were not stated nor was it demurrable because it failed to allege whether there had been any administration upon the estate of the alleged testator.

(Syllabus by the Court.)

Error from Superior Court, Warren Coun. ty; H. M. Holden, Judge.

Action by E. T. Belt against R. P. Henry Lazenby, executor. Judgment for defendant, and plaintiff brings error. Reversed.

Mrs. E. T. Belt brought an equitable petition against R. P. Henry Lazenby. The petition made the following allegations:

Petitioner's brother, Henry A. Jones, died in 1854, leaving a will devising to her a described tract of land and 174 shares of Georgia Railroad & Banking Company stock.

"Paragraph 3. Said will was destroyed after testator's death before being probated, and the widow of said Henry A. Jones, Minerva Lazenby Jones, went into possession of the estate of her said huband as his sole heir at law. The contention with reference to the will of said Henry A. Jones continued an open one in the family for years, when on the day of March, 1887, said Minerva Lazenby Jones sent for your petitioner, and your petitioner came to Warren county. Sald Mrs. Jones then made a full disclosure of the facts relative to said will, which are not necessary to be stated here, and made with your petitioner a full accord and satisfaction and settlement and compromise of all contentions existing between them in reference to the estate of said Henry A. Jones.

"Paragraph 4. Under said agreement your petitioner was ready to receive from said Mrs. Jones the dividends accruing from said 174 shares of railroad stock from the date of said agreement, and said Mrs. Jones was to continue to possess the remainder of said property received from said Henry A. Jones' estate during her life, and was to will both said stock and the remainder of said property to your petitioner if she survived said Mrs. Jones, or, if not, to the children of petitioner.

"Paragraph 5. Under the terms of said agreement all the said dividends were paid to petitioner from time to time, and said Mrs. Jones remained in, undisturbed enjoyment of remainder of said property, until her death on the 6th day of August, 1903.

"Paragraph 6. Prior to the death of said Mrs. Jones she gave direction regarding the turning over of said property to petitioner, who lived in a distant county, but failed to make said will."

Paragraph 7. The defendant, Lazenby, "was the brother of said Mrs. Jones and her only heir at law, and has received possession as such, both of said railroad stock and sald described tract of land. He has received since the death of Mrs. Jones, besides other properties, the dividends from said railroad stock to the amount of about $1,914."

Paragraph 8. He "is deeding away some of said land and is about to sell and transfer said railroad stock, and, if said property should pass into the hands of innocent purchasers for value without notice, the equities of petitioner would be defeated"; he not hav. ing sufficient means to respond to her claim against him.

"Paragraph 9. Your petitioner, under the said agreement, has for 16 years received the dividends from said stock, and for sald time has suffered the undisturbed possession by Mrs. Jones of the remainder of said property, and the same has been fully executed, and there remains but that petitioner should have evidence of her title covered by said agreement; her equity therein being perfect by reason of the execution of said agreement, as well as by the making thereof."

The petition was afterwards amended as