described land." There was no material conflict of evidence upon the foregoing facts. The defendant, in support of her claim of title to the 30 acres of lot No. 477, introduced evidence to the effect that on May 5, 1882, by deed duly executed and recorded, A. L. Rogers conveyed to Lowe & Knox the land in dispute as security for a debt; that Joseph L. Moore paid the debt to Lowe & Knox, and from them took a deed duly transferring the property to himself, which was duly recorded; and that when this was done, it was agreed between A. L. Rogers and his wife that if she paid off the debt of her husband, which then amounted to $620, Moore should convey to her the land in dispute. She proceeded to make payments at intervals, and on November 22, 1895, as she claims, she made the final payment which discharged the debt. It was then attempted to have executed a deed from Moore to her, but on account of illness in the family of the person whom they sought to engage to draw the deed, it was not then drawn. On January 14, 1904, the deed was executed by said Joseph L. Moore, and duly placed upon record, conveying to Mrs. Rogers the 30 acres in question. This deed, however, was made under compulsion; for it appears to have been executed in obedience to a decree of the superior court of Forsyth county, rendered in the case of Julia A. Rogers v. Joseph L. Rogers and A. L. Rogers. In that suit, which was filed in the February term, 1903, Mrs. Rogers alleged the facts as already set forth, and that after she had made the final payment to Moore on her husband's debt, and after the failure to get the deed executed, her husband, without her knowledge or consent, and disregarding his agreement with her, had, on January 21, 1897 (about two years after she had finished paying Moore), conveyed the 30 acres of land and other land to C. W. Summerour to secure a debt of $450; that on November 16, 1899, A. L. Rogers had conveyed said land and another lot to M. G. Duck to secure a loan; that this deed was transferred by Duck to John I. Teasley, who had obtained judgment upon the debt; that he caused said lands to be levied on to be sold; and although she had paid to Moore the sum of $620 by her own money, upon the faith of the agreement of her husband and Moore that Moore should convey the land to her, yet said Moore refused to convey. Whereupon she prayed the court for specific performance by Moore, and that the deeds to secure the debt he canceled as clouds upon her title. Upon demurrer to that suit, all parties except A. L. Rogers and Joseph L. Moore were dismissed. In Moore's answer to the suit he denied that he had ever agreed to make Mrs. Rogers a deed to the 30 acres, or that she had ever demanded one; but alleged that, on December 19, 1897, he had a final settlement of all matters between them

with A. L. Rogers, in which, after allowing Rogers credit for all money paid either by him or by his wife, Rogers was still found due and owing Moore $66.43, which was credited, by direction of Rogers, on the note; that since that time credits for all other payments by the husband or wife had been duly made, but that, after all credits had been allowed, a balance was still due on the debt for which the land was held. It was prayed that, should the jury find that there was a valid agreement as claimed by Mrs. Rogers, and that the deed should be made to her, she be required to pay the balance so owing before he should be required to execute the deed. The jury, at the August term, 1903. found $150 due to Moore, and required him, upon the payment of that sum and costs of court, to execute a deed to Mrs. Rogers, and it was so decreed. The deed hereinbefore recited from Moore to Mrs. Rogers was in obedience to this decree.

On the trial of the present case, Moore testified as a witness; and his testimony as to amounts and dates of payments was in accordance with the claims made by Mrs. Rogers in her suit in Forsyth superior court, except that he claimed that there was a balance due him. She testified that she paid substantially all the money, and receipts were introduced from Moore to Mrs. Rogers running through a number of years for the sum of money which she claimed to have paid. Moore's wife was a sister of A. L. Rogers. Under the testimony of Moore, A. L. Rogers had never owned any interest in lot 477, except the 30 acres before referred to. He testified that in the division of the estate of William Rogers, the father of Mrs. Moore and A. L. Rogers, the 30 acres referred to came to A. L. Rogers, and the remainder of the lot came to Mrs. Moore; that the remaining 4.88, a fraction, acres, claimed by Mrs. Rogers, was obtained by her from Mrs. Moore by exchange made in 1895, for another piece of land not involved in the litigation. The deed to the 4.88 acres bears date in 1903. Mrs. Rogers explained that it was not executed until about February, 1904.

The court directed a verdict in favor of the defendant. The plaintiff excepted, and assigned error on the following rulings:

(1) "The plaintiff introduced in evidence Deed Book G, page 531, of the clerk's office of the superior court of Milton county, wherein a deed from Lowe & Knox to Joseph L Moore, dated March 10, 1884, purports to have been recorded in said book on December 5, 1900. From said original Deed Book it appeared that said deed was recorded as one from Lone C. Knox to Joseph L. Moore, and that nowhere in said record did it appear to be a deed from Lowe & Knox to said J. L. Moore. This being shown the court, counsel moved to rule out said deed and exclude the same from the jury, on the ground that the same was not properly recorded.

Ga.)

This the court refused to do, and permitted said deed to remain in evidence before the jury."

(2) "Counsel for plaintiff moved to exclude from evidence the deed from Sarah L. Moore to Julia A. Rogers, dated February 29, 1903, purporting to convey the 4.88 acres in lot No. 477, on the ground that the same purported to have been executed in the county of Milton and was attested by G. H. Barker, a justice of the peace, in the county of Gwinnett, it being alleged that the same was not properly recorded, and that there was no proof of the execution of the original. The court refused to rule out said deed." (3) The court erred: (a) In not submitting to the jury to decide whether the debts secured by the deeds from A. L. Rogers to Lowe & Knox and from Lowe & Knox to J. L. Moore, had not been paid off and discharged by A. L. Rogers with his own money, and that the title thereto had become invested in said A. L. Rogers. (b) In holding that the fi. fa. in favor of C. W. Summerour against A. L. Rogers and the judgments upon which they were founded and the sale of the land in dispute under the executions were null and void, because the justice's court had no jurisdiction of the notes upon which said judgments were founded. (c) In not holding that the plaintiff was subrogated to the title of C. W. Summerour to the premises in dispute, by reason of his having bid off the land at said sheriff's sale under said fi. fas., and having paid for the said land so bid off at sheriff's sale a sum of money more than sufficient to pay off and discharge the indebtedness of said A. L. Rogers to Summerour, which was secured by the deed of Rogers to Summerour, and which indebtedness was paid off and discharged with the money of plaintiff. (d) In not holding that the defendant was estopped by reason of the fact that she accepted a deed from A. L. Rogers to the premises in dispute, in, which deed it was recited that a part of the consideration thereof was the payment by her of the indebtedness of A. L. Rogers to C. W. Summerour, secured by the deed of A. L. Rogers to C. W. Summerour.

J. P. Brooke and Jas. K. Hines, for plaintiff in error. H. L. Patterson, for defendants in error.

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

(126 Ga. 50)
VIRGINIA-CAROLINA CHEMICAL CO. v.
PROVIDENT SAVINGS LIFE ASSUR.
SOCIETY et al.

(Supreme Court of Georgia. July 28, 1906.) 1. RECEIVERS INJUNCTION-JOINDER OF CAUSES OF ACTION.

Since the passage of the uniform procedure act of 1887, a plaintiff may, in one action against the defendant, seek both legal and 54 S.E.-59

929

equitable relief. But in such an action he can. not obtain the appointment of a receiver or the grant of an injunction ad interim under circumstances where such interlocutory relief could not be obtained prior to that act.

[Ed. Note. For cases in point, see vol. 42, Cent. Dig. Receivers, §§ 4, 21-23.]

2. SAME.

Generally a creditor by note, which has not been reduced to judgment, and with no lien, is not entitled to an interlocutory injunction and the appointment of a receiver for his debtor's property.

[Ed. Note.-For cases in point, see vol. 42 Cent. Dig. Receivers, §§ 15, 18.]

3. SAME.

The pleadings and evidence do not present such an exceptional case as to require such re lief, or render its refusal error.

4. APPEAL-REVIEW-QUESTIONS NOT RAISED

BELOW.

The petition does not raise the distinct question whether the defendant company had an insurable interest in the lives of two of its directors; nor does it appear whether such question was distinctly passed on by the presiding judge.

5. INSURANCE-OVERISSUE OF STOCK-RECEIVERS.

If there was an overissue of stock, this would not alone necessitate the appointment of a receiver for the company's property at the instance of a holder of stock pledged to him as security for the debt of an original stockholder, prior to the additional issue.

6. USURY-QUESTION OF FACT.

If a transaction is on its face usurious, it may be so declared as a matter of law. If, on its face, it is not usurious, but is claimed to be a device to cover up the charging of usury, a question of fact as well as one of law is involved. And this is especially true where it is in question whether, under the facts, the creditor who alleges that a transaction between the debtor and another creditor involves usury, was in a situation to entitle it to set up the alleged usury.

[Ed. Note. For cases in point, see vol. 47, Cent. Dig. Usury, §§ 341-346.]

7. RECEIVERS-APPOINTMENT INJUNCTION.

Under the pleadings and evidence there was no abuse of discretion in refusing the ap pointment of a receiver and the grant of an interlocutory injunction in this case.

follows: The holding of two notes, aggregating about $1,000 principal, not reduced to judgment nor secured by any lien on the property of the Industrial Company; the taking out of insurance policies upon the lives of two directors of that company, and the giving of a note for the premiums, and assignment of the policies as collateral security for the loan; the fact that the plaintiff loaned to Ford, the president of the company, as an individual certain money, and took as collateral security 37 shares of stock in the company before its name was changed to that which it now bears; an alleged illegal change of name and overissue or unauthorized issue of stock in addition to the original capital; certain acts of mismanagement, and disagreements on the part of the officers. Insolvency was not directly charged; but it was alleged that the defendant, the Provident Society, was endeavoring to bring the property to sale under a power in its mortgage, and that there was danger of loss to plaintiff; and also that it was necessary to gather and protect the peach crop. amendment the bringing of a suit in Chatham superior court by the Provident Society, and the appointment of a temporary receiver was alleged. There were other allegations, but they are not material to be set out.

By

Since the passage of the uniform procedure act of 1887, a plaintiff may proceed In one suit to seek both legal and equitable relief against the defendant debtor, without first obtaining judgment at law, and having an entry of nulla bona made. DeLacy v. Hurst, 83 Ga. 223, 9 S. E. 1052. But interlocutory injunction or appointment of a receiver cannot be obtained in such a case where a like extraordinary remedy could not be obtained before the passage of that act. The principles governing the grounds for such extraordinary relief remain unaltered. Stillwell v. Savannah Grocery Co., 88 Ga. 100, 144, 13 S. E. 963; Branan v. Baxter, 122 Ga. 225, 50 S. E. 45. Generally, a common creditor by note or open account, with no judgment or lien, is not entitled to such relief. The exceptional cases (such as Cohen v. Meyers, 42 Ga. 46; Bell v. Dawson Grocery Co., 120 Ga. 628, 48 S. E. 150; Cohen v. Morris, 70 Ga. 313, and similar cases) need not be here considered. Suffice it to say that under the evidence, looking at the plaintiff's position from the standpoint of a creditor, no such case is made; certainly, none which would make it an abuse of discretion to refuse the interlocutory relief prayed. v. Savery, 116 Ga. 321, 42 S. E. 495.

Anvil

In the briefs of counsel, the question was argued at some length whether the defendant company had an insurable interest in the lives of two of its directors, or officers. But no such point was distinctly raised in the petition, or shown to have been passed on by the presiding judge. The petition alleged

that plaintiff was informed and believes that about one-half of the note "represents a premium on a large life insurance policy written by said Assurance Society on the life of some individual, your petitioner is not in formed who;" that the policy was fully paid up, and had a cash surrender value, and was held by the Provident Society as additional security for the payment of the note: that "the Industrial Company has no authority to become responsible for the payment of life insurance premiums, and the. action of its officers in executing a note there for, and executing a deed conveying the property of said company to secure the payment of said note was ultra vires and void;" that the note and deed constitute a fraud upon the creditors and stockholders of the Industrial Company; and that the "Assurance Society were bound to take notice of the powers conferred upon said Georgia Industrial Company by its charter." In the amendment were copied certain allegations from the petition filed by the Provident Association praying for a receiver against the Industrial Company. Among them as set out in the amendment was the statement, that, "in addition to said land conveyed as security for said $40,000 note, said Provident Savings Life Assurance Society had insured the lives of two of the officers of the Georgia Industrial Company, in which policies the Georgia Industrial Company was named as the beneficiary, the amount of said insurance being $40,000; that said insurance had been assigned to said Provident Savings Life Assurance Society as additional security for the payment of said $40,000 note." It will thus be seen that the question of insurable interest was not directly raised; but only a general charge that the act was ultra vires, coupled with a reference to the charter powers, one of which was "to borrow money and secure the same by collaterals, personalty, security, mortgage, deed, or otherwise, and to issue notes or other obligations therefor, to make contracts of any kind whatsoever for the furtherance of its business." Neither did the mere recital from the pleadings in another suit raise the point. So far as appears, the question presented was whether the action was ultra vires for want of charter power to perform it, not whether the company had an insurable interest in the lives of the insured. From the standpoint of a stockholder the additional issue of stock by the officers, if in fact illegal, would not result in throwing the company into the hands of a receiver. If entitled to any remedy under the facts, injune tion to prevent the transfer of the stock. and proper final decree in regard to it would seem to furnish relief. Certainly, we see nothing in the evidence requiring a receivership on this ground, nor injunction against the Provident Society. Indeed, it appears that the Society is already restrained

in another proceeding from selling under the power of sale contained in its mortgages because of a default claimed by it to have occurred, nor could it do so while the property is in the custody. of the receiver appointed by the superior court of Chatham county; at least, not without permission from the court.

It is contended by the plaintiff that the tak ing of the policy by the defendant company, and assigning it as an additional security and giving the note, was in itself a usurious transaction, or, at least, was a mere device for the charging of usury. This is denied by the defendants, who contend that the full amount of the note and mortgage was loaned to the society: that it insured the lives of two of its officers, taking paid-up policies, making itself the beneficiary, and assigning the policies to the Provident Association as an additional security; but that there was no usury agreed upon, intended, or paid. In 29 Am. & Eng. Enc. L. (2d Ed.) 510 (4), it is said: "Where an insurance company, as a condition of making a loan, requires the borrower to take from its policies of life insurance either on his own life or on the life of a third person, and to pay premiums thereon in addition to the highest legal rate of interest on the amount lent, it is held in a number of jurisdictions that the transaction is usurious per se, as the profit thus derived by the lender, though contingent, is in the nature of additional interest. In other jurisdictions, however, it has been held that such a requirement does not per se render the transaction usurious. But in every jurisdiction such a requirement would undoubtedly be deemed usurious if exacted for the purpose and with the intent of enabling the lender to receive a greater profit upon the loan than legal interest." Usury is defined by the Code of this state, section 2877, to be "the reserving and taking, or contracting to receive and take, either directly or by indirection, a greater sum for the use of money than the lawful interest." In section 2886 it is declared: "It shall not be lawful for any person, company, or corporation to reserve, charge or take for any loan or advance of money, or forbearance to enforce the collection of any sum of money, any rate of interest greater than eight per cent. per annum, either directly or indirectly by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever." When a transaction is not on its face usurious, but is claimed to be a device for the charging of usury, a question of fact is involved, and the burden of establishing the charge is on the party making it. Here there was an issue as to what was the real transaction, and also as to whether, even if there were usury, the plaintiff made a case which authorized it to set up the defense. From a careful inspection of the entire pleadings and evidence,

we are of the opinion that the presiding judge did not abuse his discretion in refusing the injunction and receiver prayed.

The judgment on the main bill of exceptions is affirmed; and, under the statute, the cross-bill is dismissed. All the Justices concur, except FISH, C. J., absent.

(126 Ga. 84)

MITCHELL v. STATE. (Supreme Court of Georgia. July 27, 1906.) 1. CRIMINAL LAW-NOLLE PROSEQUI- NEW ACCUSATION.

Where, before a jury had been impaneled or a plea to the merits had been entered or the defendant had been put in jeopardy, a demurrer to an accusation in the criminal court of Atlanta was filed, on various grounds, there was no error in permitting a nolle prosequi to be entered upon the accusation, on motion of the solicitor, and a new affidavit to be made, and a new accusation to be framed upon it. Acts 1890-91, vol. 2, pp. 937, 938, § 11; Pen. Code 1895, § 957.

2. SAME-SUFFICIENCY OF AFFIDAVIT.

An affidavit is sufficient as a basis for framing an accusation in the criminal court of Atlanta, although made before a commercial notary public. Pol. Code 1895, § 503, par. 4; Wright v. Davis, 48 S. E. 170. 120 Ga. 670, 676; Acts 1890-91, vol. 2, p. 937; Shuler v. State, 54 S. E. 689, 125 Ga. 778.

[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 418, 531.] 3. SAME.

Whether such an affidavit would furnish a sufficient foundation for the issuance, by the judge of the criminal court, of a warrant to arrest the accused person. quære. Acts 189091, supra, Pen. Code 1895, §§ 882-885. 4. SAME-SUFFICIENCY OF ACCUSATION.

Under the act creating the criminal court of Atlanta, an accusation which alleged that the prosecutor, "in the name and behalf of the citizens of Georgia," charged and accused the defendant with the offense described, was suffi cient, and was not demurrable on the ground that it should have stated that "the state of Georgia" charged and accused the defendant, or that it did not appear for what citizens the prosecutor acted. Whether or not it would have been preferable to have stated that the state of Georgia, upon the information of the prosecutor, charged the defendant with the crime, the accusation in the form stated above was not subject to demurrer. Dickson v. State, 62 Ga. 589 (3).

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 420, 526–532.] 5. SAME-SIGNING ACCUSATION.

While it provided in section 11 of the act of 1891 (Acts 1890-91, p. 937) that accusations in the criminal court of Atlanta shall be signed by the "solicitor general," yet, when that seetion is construed in connection with sections 9 and 10 (page 937), it appears that the term "solicitor general" was loosely applied to the solicitor of that court, and it was intended that accusations should be signed by him, and not by "the solicitor general of the superior court.' [Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 422, 551.] 6. SAME-ACCUSATION.

It may be the better practice for an accusa. tion in the criminal court of Atlanta to state that it is based on the affidavit of some person; but where it appeared on the face of the record that an affidavit was made by a named person,

and immediately following it, bearing the same name, the prosecutor, "in the name and behalf of the citizens of Georgia," charged and accused the defendant with the offense described in the affidavit, the accusation was not demurrable, under the act creating that court, because it did not in express terms state that it was based on the affidavit.

Beck and Atkinson, JJ., dissenting from this

note.

[Ed. Note. For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 526-532.]

7. COURTS-MUNICIPAL COURTS--PRACTICE.

The general law touching the practice in county courts, and in what are called "city courts" established on recommendation of the grand juries (Cr. Code 1895, § 777 et seq.) does not apply to or control the practice in the criminal court of Atlanta, which was established, and its practice regulated. by the act of September 6, 1891. Acts 1890-91, p. 935; Welborne v. Donaldson, 41 S. E. 999, 115 Ga. 563. 8. INDICTMENT-RIGHT TO DEMAND.

A person brought to trial in the court mentioned, under an accusation charging him with a misdemeanor, is not entitled to demand an indictment by the grand jury. Moore v. State, 52 S. E. 81, 124 Ga. 30. 9. CRIMINAL LAW-DEFENSES.

Whether one who arrested a person accused of the crime of gaming was a lawful officer or not, or whether the arrest was legal or illegal, will not furnish any ground for acquitting the accused when brought to trial for such offense. Special pleas setting up such matters as grounds for acquittal were properly stricken; the defendant being accorded all of the rights of defense to which he was entitled, under the plea of not guilty.

10. SAME-COMMITTAL TRIAL.

The provision of the act of September 6, 1891 (Acts 1890-91, p. 935), creating the criminal court of Atlanta, to the effect that where the judge of that court issues his warrant, and the defendant is arrested under it, if he so desires he may have "a committal trial" before a magistrate, contemplates that this shall be done before the trial on the merits has been reached. It does not intend that, when the case has been reached and called for trial on its merits, the defendant can cause the main trial to be stopped and postponed, in order that he may first have a preliminary trial before a court of inquiry. The object of a commitment is to detain the accused, or place him under bond, to insure his presence when the case shall be called. But when the case is reached and the accused is placed on final trial, there is no further need for a committing trial.

11. GAMING-EVIDENCE.

The evidence authorized the verdict; and there is nothing in any of the other grounds of the petition for certiorari which requires a reversal.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Buck Mitchell was convicted of gaming, and brings error. Affirmed.

Robt. L. Rodgers, for plaintiff in error. C. D. Hill, Sol. Gen., and Lowry Arnold and Jno. A. Hynds, for the State.

LUMPKIN, J. There are many points in this case, but none of them are of sufficient prominence or strength to support a reversal. Most of them will be found to be controlled directly, or in principle, by the act which created the criminal court of Atlanta (Acts

1890-91, vol. 2, pp. 935 et seq.), and the declsions in Welborne v. Donaldson, 115 Ga. 563, 41 S. E. 999; Gordon v. State, 102 Ga. 673, 29 S. E. 444; Wright v. Davis, 120 Ga. 670, 48 S. E. 170; Moore v. State, 124 Ga. 30, 52 S. E. 81. Various criticisms have been made and questions raised in regard to the language of the act of 1891. But Mitchell, not the act of the Legislature, was on trial. And infractions of the laws of style on its part render him none the less guilty of violating the criminal law of the state. One who is caught while gaming cannot hope to escape punishment by reason of literary blemishes in the act creating the court which tries him. Nor can he claim a verdict declaring him to be not guilty, on the ground that he was illegally arrested. We see no reason why this conviction should not stand. The headnotes sufficiently deal with the questions raised.

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

NANCE v. STATE.

(126 Ga. 95)

(Supreme Court of Georgia. July 27, 1906.) 1. PERJURY-EVIDENCE-CorroboraTING CIR

CUMSTANCES.

Upon the trial of one indicted for perjury, where a witness testified positively to the commission of the offense, and corroborating circumstances were relied on in connection with his testimony as a basis for conviction, such "corroborating evidence need not be in and of itself so strong as to support a verdict of guilty, but it must be sufficient to connect the accused with the perpetration of the offense, and lead to the inference of his guilt, and more than sufficient to raise a suspicion against him." Chapman v. State, 112 Ga. 56 (2), 37 S. E. 102; Dixon v. State, 116 Ga. 186, 42 S. E. 357. [Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Perjury, §§ 125-132.]

2. CRIMINAL LAW-INSTRUCTIONS ABLE DOUbt.

REASON

Where the court has correctly charged the law on the subject of reasonable doubt concerning the whole case, it is not incumbent upon him to divide the case or the evidence into different propositions, and give a charge on the subject of a reasonable doubt in regard to one or more of them severally. Smith v. State, 124 Ga. 213, 52 S. E. 329.

[Ed. Note.-For cases in point, see vol 14, Cent. Dig. Criminal Law, § 1922.] 3. PERJURY-EVIDENCE.

Where an indictment charged the accused with having committed perjury in his testimony before the grand jury upon the investigation of a charge against a person accused of illegally selling whisky, there was no error in admitting in evidence the indictment or special presentment found in the case upon which he was there examined, charging the illegal sale of whisky, upon the consideration of which by the grand jury the perjured testimony was alleged to have been given.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Quo Warranto, § 110.] 4. SAME-SUFFICIENCY.

The evidence of corroborating circumstances in this case, together with the direct