was the cause of the injury complained of; but it is an established rule that "negligent ignorance is the equivalent of knowledge." Penn Foundry Co. v. Probst, 114 Va. 264, 76 S. E. 323; 26 Cyc. 1142. [10] Assignment of error No. 4 does not demand our consideration. It relates to 14 alleged errors contained in bills of exceptions Nos. 4 to 17, both inclusive, dealing with certain questions propounded to witnesses, which were objected to, but were allowed to be answered, and all that is said in support of the assignment of error is "that defendant is advised that errors were committed to its prejudice by said rulings of the court." Clearly this does not meet the requirement of the established rule that a petition for a writ of error, being in the nature of a pleading, must state clearly and distinctly the errors relied on to reverse the judgment. Wash. So. Ry. Co. v. Cheshire, 109 Va. 741, 65 S. E. 27, and authorities cited. box," and further admits that it was the duty of Honaker to give instructions as to the movement of cars, that is, make out a "shifting list" of cars to be moved, and that he (plaintiff) regularly got the shifting list out of the "bill box." He may have forgotten that Honaker notified him that the car in question was unsafe and not to take it across the mountain, but this would not relieve him of the imputation of negligence in putting the car in his train and attempting to haul it across the mountain, and whether he exercised ordinary care for his own safety in failing to remember the instructions given him not to take the car across the mountain and was guilty of negligence contributing to the injuries of which he complains were questions which the jury might and should have considered under defendant's instruction No. 5, supra, refused by the court. Especially should this instruction have been given in view of the fact that the court had on its own motion given instruction No. 1 (set out in the official report of the case), which, when read in the light of the facts the evidence tended to prove, told the jury that the plaintiff was entitled to recover if the car "was loaded by said company with freight billed to points along its line and was taken out by said plaintiff"; that is, if Spradlin, manager of store No. 1, put goods into the car for other points, plaintiff had a right to take the car, although he may have had no instructions to take it, but may have received positive instructions not to take it; and this contention, made in the argument of the case here for the plaintiff, was doubtless made before the jury, leaving wholly out of view the facts and circumstances adverted to in defendant's instruction No. 5 which was refused, and which (Supreme Court of Georgia. July 13, 1916.) facts and circumstances should have been considered by the jury along with all the evidence in the case upon which their finding was to be made. [11] The last assignment of error relates to the refusal of the court to set aside the verdict of the jury as contrary to the law and the evidence. Since the judgment complained of has to be reversed for errors in granting and refusing instructions to the jury pointed out above, we deem it inexpedient or unnecessary to discuss further the evidence in the case. The judgment of the circuit court is reversed, the verdict of the jury set aside, and the cause remanded for a new trial therein not in conflict with this opinion. Reversed. (145 Ga. 531) BRYANT v. DAVIS. (No. 548.) (Syllabus by the Court.) 1. TRIAL 237(3)-INSTRUCTIONS-RULES OF EVIDENCE. On the trial of an action, where there is a [9] The refusal of defendant's instruction contest between the holder of a mortgage and No. 5 left the jury free, if not required, un- the holder of a junior security deed, executed der the instructions given by the court, es- by the same person, conveying the same land, where it appeared that the mortgage was recordpecially plaintiff's instruction No. 6 as modi-ed before execution of the security deed, but the fied, to find for the plaintiff, although they legality of the record was attacked on the might have believed that plaintiff did get no- ground that the signature of the unofficial subtice from Honaker that the car was unsafe, scribing witness was a forgery, and there was a sharp conflict of evidence upon that question, and instructions "not to take it across the it was error, requiring the grant of a new mountain," but "failed to know at the time trial, for the judge to charge: "In case you are he handled the car"; that is, had failed to undecided, after a consideration of the evidence in the case, as to which side should prevail, remember the notice he had received of its it would be your duty to resolve that doubt in defective and unsafe condition. Not only favor of the defendant in this case, as the buris it a rule of law too well settled to require den of proof lies with the plaintiff who brings citation of authority that a servant is under a petition into court, alleging the facts upon which it is necessary to base a recovery." as great obligation to care and provide for [Ed. Note.-For other cases, see Trial, Cent. his own safety from such dangers as are Dig. § 548; Dec. Dig. 237(3).] known to him, or are discoverable by ordi- 2. MORTGAGES nary care on his part, as the master is to provide for him, and the negligence of the master does not excuse the servant for the failure to exercise such care, if such failure 92-RECORD-ATTESTATION. A mortgage on real estate, which contains no recital as to its place of execution, except the caption, "Georgia, Washington County," and the attesting clause wherein the official witness signs his name with the addition, "J. P., Bar tow, Jefferson County, Georgia," is to be construed as showing upon its face that it was at tested by the official witness in Jefferson county, and, if otherwise entitled to record, may be recorded in that county. [Ed. Note. For other cases, see Mortgages, Cent. Dig. § 203; Dec. Dig. 92.] the charge: 'If, after the plaintiff has shown her dependence upon her son and his killing by the defendants' train, the evidence leaves the matter in such doubt that you are unable to say from the evidence in the case whether the railroad company was at fault as complained of, or not, as above explained to you, then the burden would not have been carried, and you should find Error from Superior Court, Washington the issue of such negligence against the railroad County; W. M. Goodwin, pro hac, Judge. company'-was erroneous on the ground that it Action by C. S. Bryant against Lewis ignored the rule of law providing for the deterDavis. Judgment for defendant, and plain-mination, of issues upon a preponderance of tiff brings error. Reversed. Jordan & Harris, of Sandersville, for plaintiff in error. Hardwick & Wright, of Sandersville, for defendant in error. evidence." When these rulings are applied to the present case, the charge complained of was error requiring the grant of a new trial. [2] 2. The caption of the mortgage was: "Georgia, Washington County." The attestATKINSON, J. [1] 1. W. A. Thomas ex-ing clause was: "Signed, sealed, and delivered ecuted a mortgage on certain land to Lewis in the presence of N. S. Josey, S. B. Tarver, Davis, and subsequently executed a deed con- J. P., Bartow, Jefferson County, Georgia." veying the same land as security for debt to It was contended that this was a void execuC. S. Bryant. In a contest between the hold- tion of the mortgage, and did not entitle it er of the mortgage and the holder of the se- to record, on the ground that it appeared on curity deed, it was contended that the se- the face of the paper that Tarver, the official curity deed should prevail, on the ground attesting witness, being a justice of the peace that the mortgage, though recorded before of Jefferson county, attested the paper in execution of the security deed, was improp- Washington county, and was without authorerly recorded, and that the record thereof ity of law to do so, and, notwithstanding was insufficient to charge notice, and that extrinsic evidence to the effect that the witthe holder of the security deed received it ness attested the mortgage in the county of without actual notice of the execution of his official residence, such evidence would the mortgage. The ground of attack upon the not render the record of the mortgage lawlegality of the record of the mortgage was ful. The caption of the mortgage was merethat the signature of the unofficial witness ly, "Georgia, Washington County," and if the thereto was a forgery. On this question the attesting witness had signed his name thereevidence was in sharp conflict. Among the to with recitals following it showing only instructions to the jury, the judge charged: that he was a justice of the peace in Jefferson county, the presumption would be that the paper was executed in Washington county, as indicated by the caption, and the execution would be illegal. Allgood v. State, 87 Ga. 668, 13 S. E. 569. But that was not all. In connection with the words indicating that the witness was a justice of the peace of Jefferson county, there was also the word "Bartow" in the attesting clause. The only possible effect that could be given to that word, when used in the connection in which it was employed, was that the paper was attested by the witness in Bartow, which is judicially known to be an incorporated town in Jefferson county. By giving effect to the whole of the attesting clause, it affirmatively appears from the face of the paper that it was attested by the official witness in the county of his official residence. In Rowe v. Spencer, 132 Ga. 426, 64 S. E. 468, it was "In case you are undecided, after a consideration of the evidence in the case, as to which side should prevail, it would be your duty to resolve that doubt in favor of the defendant in this case, as the burden of proof lies with the plaintiff who brings a petition into court alleging the facts upon which it is necessary to base a recovery." One of the grounds of the motion for new trial complains of this charge. In order to be entitled to record, mortgages on realty must be attested by two witnesses. Civil Code, § 3257. In Standard Machinery Co. v. Holton, 84 Ga. 592, 10 S. E. 1016, it was held: "In complaint upon an account, with closely conflicting evidence, a charge that if the plaintiff fails to make out his case, or if you have any doubt as to whether the plaintiff has made out his case fully, the defendant should have a verdict, because it is the plaintiff's duty to make out his case before he is entitled to recover,' is erroneous, and requires a new trial after verdict for the defendant, although no other error be found in the charge." held: "Unless it appears from the face of the paper that the officer before whom it was officially attested was without the territorial limits of his official jurisdiction in attesting the same, it will be presumed that he was acting within such jurisdiction." In Central of Georgia Railway Co. v. Swann, 144 Ga. 11, 85 S. E. 1001, it was held: "In all civil cases the issues are to be determined according to the preponderance of evidence, by which is meant that superior weight of evidence which, while not enough to wholly free the mind from a reasonable doubt, is yet In the light of what has been said, it is sufficient to incline a reasonable and impartial manifest that the mortgage was entitled to mind to one side of the issue rather than to the record. other. Civil Code, §§ 5730, 5731. Accordingly, on the trial of an action against a railroad company by a mother for the homicide of her child, cur. Judgment reversed. All the Justices con (145 Ga. 539) SOUTHERN BELL TELEPHONE & TELE- of Peace, et al. (No. 550.) company, whereupon that corporation filed a petition to enjoin the further prosecution of the levies, on the ground that these judgments were rendered on accounts placed with (Supreme Court of Georgia. July 13, 1916.) Van Geisen, by virtue of an agreement between the telephone company and the magistrate that neither he nor his constables GALITY. (Syllabus by the Court.) 1. CONTRACTS 129(1)-CONSIDERATION-LE- would hold the telephone company liable for costs in any case where a recovery was had A contract made by a justice of the peace against the person sued, but the costs, if colwith one who claims indebtedness from many persons on account, that the latter will turn lected, were to be collected from the defendover the accounts to the former for suit in the ant in the judgment. It was alleged that pejustice's court, upon the understanding that titioner's contract with Van Geisen was neither the justice nor the constables will hold the plaintiff liable for costs in any cases where a recovery is had against the party sued, but the costs, if collected, are to be collected from the defendant in the judgment, is opposed to public policy, illegal, and void. [Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 616, 619-621, 625-632; Dec. Dig. 129(1).] 2. COSTS 93-PERSONS LIABLE-COLLEC TION. Where such justice of the peace enters up judgments against the various parties, and is afterwards removed from office, and his successor issues executions on the judgments, upon which are entered returns of nulla bona, and where on notice of such return, and after refusal to pay costs on demand, cost fi. fas. are issued and levied on the property of the plaintiff, such levies will not be enjoined at the instance of the plaintiff against whom the cost fi. fas. are proceeding, solely because of his iflegal agreement respecting costs, made with the justice who entered up the judgments. (a) The circumstance that the justice with whom the agreement was made has since died, and that the parties entitled to, his estate, and the constables who were in office under him, may be entitled to receive the costs, does not alter the principle. (b) The plaintiff's prayer for injunction is dependent upon giving effect to the illegal contract, which the courts will not countenance. [Ed. Note. For other cases, see Costs, Cent. Dig. §§ 369-375, 384-387; Dec. Dig. 93.] Error from Superior Court, Chatham County; W. G. Charlton, Judge. Proceedings by W. B. Mitchell, justice of the peace, and others, to collect costs of the Southern Bell Telephone & Telegraph Company. From a judgment against the company, it brings error. Affirmed. Osborne & Lawrence and David S. Atkinson, all of Savannah, for plaintiff in error. made with the knowledge of Van Geisen's constable, McCall, who told Mitchell not to issue the cost executions, because of the agreement. Since Van Geisen's removal from office he has died, and his whole estate has been set apart to his widow and minor children as a year's support; and neither she nor either of the constables who served under her deceased husband has demanded costs of petitioner, but they have always abided by the agreement with respect to costs. A demurrer on the grounds that no cause of action was alleged, and that the petitioner had a complete remedy at law, was sustained, and the petition was dismissed. [1] 1. A contract made by a justice of the peace, whereby he agrees to charge no costs in suits to be brought by a corporation, unless such costs are collected from the defendants in the suits, is a violation of judicial duty, and void. An agreement which makes the fees of a justice of the peace in a judgment rendered by him depend on whether he is able to collect them from the defendant is opposed to public policy and the due administration of justice. Such an agreement as is set up by the petitioner in the instant case is void, and will not be enforced by the courts. See Howell v. Fountain, 3 Ga. 176, 46 Am. Dec. 415. [2] 2. "When cases are tried, the justices of the peace shall render judgment therein according to the law and the facts of each case, and such judgment shall be enforced by execution, unless prevented by appeal or other lawful means." Civil Code 1910, §§ 4737, 4765. When Mitchell came into office it was his official duty to issue executions EVANS, P. J. Van Geisen, a justice of the upon the judgments entered up by his predepeace, was removed from office. W. B. Mit-cessor, not barred by the statute, and upon chell qualified as his successor, and Mitchell which no execution had been issued. It is found several judgments entered by Van the duty of a constable to execute all exeGeisen on the official docket in favor of the cutions to them directed by lawful authority. Southern Bell Telephone & Telegraph Com- Civil Code 1910, § 4696. When an execution pany against divers defendants, upon which issued from a justice's court shall be returnno executions had been issued. Executions ed by a constable with the entry that there were issued on these judgments by Mitchell, is no property of the defendant out of which and after entries of nulla bona as to the satisfaction of the execution can be made, respective defendants and refusal by the the plaintiff is liable for the costs; and if telephone company to pay the costs, execu- the plaintiff, upon being notified of the retions were issued against it for the amount turn and a demand for the costs, shall fail of the court costs. These executions were to pay such costs, execution therefor may levied on certain property of the telephone issue against him. Civil Code 1910, § 4761. From a consideration of these statutory provisions it will appear that the executions for costs are proceeding regularly, and that the officers sought to be enjoined are acting within the sphere of official duty. The plaintiff asks that these officers be stayed in the performance of their official duty, because of its illegal contract with Van Geisen, exempting it from liability for costs. The plaintiff's right to injunction depends upon the enforcement of its illegal contract, and the maxim, "Ex dolo malo non oritur actio," applies. Hawkeye Ins. Co. v. Brainard, 72 Iowa, 130, 33 N. W. 603. The circumstance that the costs due to Van Geisen should be paid over to his widow, and that those due to the constables who served under him should be paid to them, none of whom is pressing for collection, does not alter the case. Judgment affirmed. All the Justices con cur. (145 Ga. 512) TANNER v. AMERICAN NAT. BANK. (No. 540.) filed a petition to intervene, alleging that the full amount of the notes had been paid to him by Hinson; that he was liable to Hinson for any amount which might be recovered in the action by the bank, and had agreed to pay any judgment that might be rendered against Hinson on the notes; that he was the owner and legal holder of the notes at their maturity, and at the time they were paid by Hinson. He offered to pay any judgment that might be recovered against Hinson, and asked that he be allowed to appear and defend against the action. The court declined to allow the intervention. It was said in Delaney v. Sheehan, 138 Ga. 510, 513, 75 S. E. 632, 634, that "interveners pro interesse suo are not known in ordinary common-law suits." In that case the court refused to allow a third person to intervene in a trover case on the grounds that he had purchased the chattel involved from the defendant on the installment plan, and had paid all of the purchase-money except amounts stated, and was entitled to (Supreme Court of Georgia. July 13, 1916.) have the property upon paying the balance, PARTIES (Syllabus by the Court.) A bank sued H. on a note payable to his order and indorsed in blank by him. H. pleaded that the bank was not a bona fide holder, and had notice at the time it took the note that T. was the legal owner thereof, and that at maturity he paid the note to T. T. filed a petition to intervene, adopting the allegations of the plea of the defendant, and further alleging that he had agreed to indemnify H. against a second payment of the note. Held, that T. had no right to intervene merely for the purpose of contesting the plaintiff's right to judgment against the defendant. [Ed. Note.-For other cases, see Parties, Cent. and that the trover suit was collusive. It is unquestionably the general rule at common law that persons who are not parties to a suit cannot, in general, file an intervention therein for a stay of the proceeding or any other cause; the remedy being by original bill. There are some exceptions to the general rule, as where the intervener sets up some right that would be directly affected by the judgment. An illustration of this is the case of Rust v. Woolbright, 54 Ga. 310. There A. sold land to B., taking his notes for the purchase money, and giving a bond for title. A. traded a portion of these notes to C. as collateral security for a debt he owed him. After this he brought ejectment against B. for the recovery of the land on his failure to pay. B. filed an equitable plea, claiming that he was entitled to a convey Action by the American National Bank against Elias Hinson, and B. H. Tanner intervenes. Judgment for plaintiff, and inter-ance of title, and asking that a general acvener brings error. Affirmed. J. W. Quincey, L. E. Heath, and Lank ford & Moore, all of Douglas, for plaintiff in error. Hardeman, Jones, Park & Johnston, of Macon (Harry S. Strozier, of Macon, of counsel), for defendant in error. counting be had between them, and that A. make to him a conveyance of title. Where upon C. asked to be made a party to the pro ceeding, so as to protect his interest and the notes held by him; and it was held that it was error for the court to refuse to permit the movant to be made a party. By bringing EVANS, P. J. The American National an action of ejectment the plaintiff in that Bank brought an action against Elias Hinson case was undertaking to rescind the contract. to recover an amount alleged to be due up- The defendant was asking for an accounting, on two notes made by Elias Hinson, payable and that a title be made to him by the plainto his order, and indorsed in blank by him tiff, based upon that accounting; and the and by the Brown Wagon Company. Hinson court held that the intervener had the right pleaded that the bank was not a bona fide to ask that the plaintiff should not rescind holder; that B. H. Tanner was the owner the trade by a recovery of the land, and that of the notes, and the bank had notice of this the defendant should not have a title until fact when it obtained possession of them; he had paid the notes held by the intervener and that when the notes matured Hinson In many states interventions are regulated paid them to Tanner, who was the legal own- by statute. Most of them permit any perIn this state of the pleadings Tanner son who has an interest in any matter in er. Error from Superior Court, Telfair County; E. D. Graham, Judge. Action by Daniel Gaskins, Sr., executor, against the Baxley Banking Company. Judgment for plaintiff, and defendant brings error. Affirmed. J. M. Swain, Jr., and J. C. Bennett, both of Hazlehurst, for plaintiff in error. L. E. Heath, of Douglas, for defendant in error. HILL, J. Daniel Gaskins, Sr., as executor of the last will and testament of William Hinson, brought suit, on May 16, 1914, against the Baxley Banking Company upon a time Litigation to intervene by rule of court. This interest must be of such a direct and immediate character that the intervener will either gain or lose by the direct effect of the judgment. The interest must be that created by the claim in suit, or a lien upon the property or some part thereof in suit, or a claim to a lien upon the property or some part thereof which is the subject-matter of litigation. Smith v. Gale, 144 U. S. 509, 518, 12 Sup. Ct. 674, 36 L. Ed. 521. Even in those states a stranger cannot come in the case merely for the purpose of contesting the plaintiff's right to recover. Hunt v. O'Leary, 84 Minn. 200, 87 N. W. 611; Hillier v. Stew-certificate of deposit issued by the bank, a art, 26 Ohio St. 652. In the instant case Tanner, who seeks to intervene, is not bound "Telfair County Bank (Branch Baxley Bankon the note, as indorser or otherwise. He ing Co.) $1,000. Lumber City, Ga. Jan. 25, 1905. This certifies that estate of Wm. Hinprays no affirmative relief against any party son has deposited in this bank $1,000, payable to the suit. If a judgment goes against Hin- to the order of the administrator, 12 months son, no judgment in personam could be en- after date, on return of this certificate, propertered up against Tanner by the plaintiff.ly indorsed, with interest at the rate of 6 per cent. per annum. Interest will cease at maHe is not a necessary party for Hinson's de- turity. Not subject to check. J. A. Doster, fense. His introduction into the case as a Cashier." party defendant could only serve to lend friendly assistance to the defendant in contesting his liability to the plaintiff, which he could do just as well without becoming a party. The court properly declined to allow the intervention. copy of which is as follows: It is alleged in the petition, that on July 7, 1913, the day when the plaintiff qualified as executor, he indorsed the certificate of deposit as executor, and demanded payment of the bank of the trust fund and money represented by the time certificate, and the bank re Judgment affirmed. All the Justices con- fused and still refuses to pay. That the cer cur. (145 Ga. 508) BAXLEY BANKING CO. v. GASKINS. (No. 538.) tificate of deposit was never presented and the money demanded by any one authorized until it was presented by petitioner on July 7, 1913; and that it had never been paid. Judgment was prayed for the amount stated (Supreme Court of Georgia. July 13, 1916.) in the certificate of deposit, with interest. (Syllabus by the Court.) 1. BANKS AND BANKING The defendant filed its demurrer on the grounds that the petition failed to set out a 152-FUNCTIONS cause of action, and that the debt declared AND DEALINGS-CERTIFICATE OF DEPOSIT-on was barred by the statute of limitations. MATURITY. A certificate of deposit issued by a bank and The judge overruled the demurrer, and the demade payable "to the order of the administra- fendant excepted. tor, 12 months after date, on return of this certificate, properly indorsed, with interest at the rate of 5 per cent. per annum. Interest will cease at maturity"-is not due until it is returned to the bank, properly indorsed, and payment thereof is actually demanded. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 336, 465-482; Dec. Dig. 152.] 2. LIMITATION OF ACTIONS 66(9)-NECESSITY OF DEMAND-CERTIFICATE OF DEPOSIT. The statute of limitations would begin to run against the certificate of deposit only from the date it was returned to the bank properly indorsed and payment thereof was actually de manded and refused. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 362; Dec. Dig. 66(9).] 3. LIMITATION OF ACTIONS 66(9)-DEMAND -CERTIFICATE OF DEPOSIT. [1-3] 1. Does the language of the certiflcate of deposit, properly construed, make it due 12 months after its date? If it does, the suit brought in 1914, 9 years after its date, would be barred by the statute of limitations. It is plain that the money could not be withdrawn under 12 months from the date of the certificate. It is also clear that the interest ceased after 12 months. When, then, is the certificate payable? It is not due before the "return of the certificate, properly indorsed" at any time. It might be payable 12 months after date, on return of the certificate properly indorsed, or subsequently. The certificate was not returned properly indorsed, and a demand made for the money, 12 months after date, and not until July 7, 1913. In the case of Hillsinger v. Georgia Railroad Bank, 108 Ga. 357, 33 S. E. 985, 75 Am. St. Rep. 42, this court held that: Accordingly, where such a certificate was dated January 25, 1905, and demand for payment was made of the bank on July 7, 1913, and suit was brought on the certificate on May 16, 1914, it was not error to overrule a demurrer to the petition on the ground that the certificate was barred by the statute of limitations. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 362; Dec. Dig. 66(9).]* ed." "A certificate of deposit issued by a bank, and payable to the order of the depositor 'on return of this certificate properly indorsed,' is not due until payment thereof is actually demand |