tion as other records of his office." The deed from White to his wife, having been made in 1884, is, of course, to be governed by the law as found in the Code of 1882. The deed made by White to the loan association, having been made in 1894, is to be controlled by sections 2778 and 3618 of the Civil Code. The title acquired by Mrs. White under her deed was superior to the claim of every other person whatsoever, but her failure to record the same in due time would have the effect of preventing her from asserting her title against a subsequent purchaser from her husband, if such purchaser took without notice of the existence of her deed, and had his deed recorded in due time. Having failed to record her deed within the time allowed by law, she took the risk of her husband's making a deed to a subsequent innocent purchaser, and this risk continued as long as she withheld her deed from record. Therefore, when, in 1894, her husband, for value, made a deed embracing the property to the loan association, and the same was received, filed, and recorded in accordance with the law then of force, and without notice of the existence of her prior unrecorded deed, such second deed, if otherwise valid, would take precedence of the prior unrecorded deed. In order, however, for her deed to be defeated by such subsequent conveyance, it is absolutely essential that the subsequent conveyance should be a valid instrument. If the subsequent deed be void for any reason, the holder of the same acquires no right against the holder of the prior unrecorded deed. Therefore, if Mrs. White can show that the second deed made by her husband was, for any reason, void, the fact that she failed to record her deed is immaterial to an assertion of her rights under it. If the loan made by the association was infected with usury, the deed taken to secure such loan would be void. Mrs. White's rights in the property being complete long before the suit against her husband was filed, she, of course, is not concluded by the judgment in that case, and has the right, on a claim filed to the levy of the execution issued on such judgment, to raise the question as to the validity of the deed which was the foundation of the special lien now asserted on the property by the loan association. On this point the case is controlled by the cases of Ryan v. Mortgage Co., 96 Ga. 322, 23 S. E. 411, and Marshall v. Charland (Ga.) 31 S. E. 791, and is to be distinguished from the cases of Swift v. Dederick, Id. 788, and George v. McAllister, Id. 790.

3. The claimant contended that the deed made by White to the loan association was void on account of usury, and, in support of this contention, tendered in evidence the charter and by-laws of the association, and also offered to prove by its general manager that it acted under this charter, and had made loans to persons who were not members

or stockholders, and had issued stock known as "investment stock," which matured at a different time and in a different way "and a different amount than is charged upon regu lar loans." The court refused to allow any of this evidence. We think this was error. The claimant had a right to attack the deed for usury, and should have been allowed to offer any competent evidence which would tend to support her contention. If the plaintiff association was a building and loan association pure and simple, and the particular transaction under investigation was one thoroughly in accord with the scope and object of such an association, there would be no usury in the transaction. If, on the other hand, the association was not a building and loan association pure and simple, and the plan of its operations was only a scheme to make money at usurious rates of interest under the form of building and loan contracts, and a sum of money in excess of the amount which would be realized from the legal rate of interest was exacted from the borrower, such transaction would be tainted with usury, and the deed would be void. This was a question for the jury to determine from evidence submitted to them. See Cook v. Association (Ga.) 30 S. E. 911; Hollis v. Association (Ga.) 31 S. E. 215, and cases cited. The plan of the association as set forth in its charter and by-laws and its actual operations, as proposed to be proved by the testimony of the general manager, were material. The court should therefore have allowed the jury to pass upon the evidence. 4. There was no error in refusing to exclude evidence showing that Mrs. White had applied for dower in the property in controversy. The application for dower being subsequent to the deed made by her husband to the loan association, of course, could in no way operate as an estoppel, so as to prevent her from asserting her title to the property. But the fact that she did, after the date of her deed, file an application of this character, treating the property as the property of her husband's estate, would be a circumstance to be considered by the jury on the bona fides of her claim of title, subject, however, to be explained by her.

5. Error is assigned upon the refusal of the judge to exclude from evidence two tax fi. fas., for 1895 and 1896, against the property in dispute, which fi. fas. had been transferred to the plaintiff in execution, and also upon the court's refusal to exclude the return of the appraisers on the estate of A. W. White, which appraisement included the property in dispute. Mrs. White, the claimant, not being connected in any way with the tax fi. fas. or the appraisement, so far as the record discloses, we do not think the evidence was relevant, and hence the court erred in refusing to exclude the same.

It is not necessary to rule specifically on all of the numerous questions made in the record. The controlling questions are decid

ed by what has been said. Upon another trial the presiding judge can conform his charge to the law as laid down in this opinion, and, if other errors were committed, he will have an opportunity to correct them. Judgment reversed. All the justices concurring, except LITTLE, J., disqualified, and LUMPKIN, P. J., absent on account of sick

ness.

DAWSON v. DAWSON et al.1 (Supreme Court of Georgia. Nov. 25, 1898.) TAX SALE-VALIDITY-RIGHTS OF PURCHASER-APPEAL IN FORMA PAUPERIS-LIABILITY FOR COSTS. 1. Where property has been duly sold under a tax fi. fa. against one who returned the property for taxes, and who was in possession thereof, such sale is not invalid because the property did not belong to the defendant in fi. fa., but to his minor children, nor because the fi. fa. included taxes upon other property that did not belong to the minors. If the property is not redeemed within 12 months from the date of the sale, the purchaser gets a good title as against the real owners.

2. Counsel for plaintiff in error is not relieved from liability for costs in this court when the affidavit in forma pauperis does not indicate where it was executed, and does not show that the officer attesting the same was authorized to administer the oath.

SIMMONS, C. J. 1. The decision in the case of State v. Hancock, 79 Ga. 799, 5 S. E. 248, followed in Barnes v. Lewis, 98 Ga. 558, 25 S. E. 589, fully covers the law and facts in this case. The reasoning in the decision in that case also applies to this, and the principle announced therein is the same as that involved in the case under consideration. In the Hancock Case a claim was interposed by the true owners. In this case there was no claim, but a sale made under a tax fi. fa. by the sheriff, a purchase by a third party. and a suit by the true owners to recover the property. Here the father had given this property to his children, remained in possession for years, and returned the property to the tax receiver as his own. This court held in the Hancock Case that: "It is not incumbent upon the state or county to investigate the legal title to property before assessing the same. The only duty of the tax receiver of the state and county in regard to this matter is to see that all the property, not exempted as above set out, is returned by

1 See note at end of case.

some one.

If it is not returned by the legal owners, as in this case, but is returned by the husband and father, while in possession, the state and county are entitled to the taxes thereon; and, if the taxes are not paid by the person who returns the property for taxation, nor by the legal owner thereof, the tax collector, finding the return of the property on the receiver's digest, has a right-indeed, it is his duty-to issue execution against the person who returned the same, and have it levied thereon." It was also held that, if the person making the return returned this property, of which some belonged to his children and some to himself, it was the duty of the children to pay the taxes on their property so returned by the father, and that, if they did not do so, the property should be sold. The record shows that it was sold, purchased by a third party, and not redeemed by the children within 12 months, as the statute requires. Whether they were minors or adults at the time of the sale does not matter, so far as redemption is concerned. The statute makes no exception in favor of minors for redeeming property sold under a tax execution.

2. The law allows the losing party in the trial court, if he wishes to have alleged errors therein reviewed in this court, and is unable to pay the costs, to file an affidavit in forma pauperis of his inability. That affidavit is filed in the office of the clerk of the trial court, and a certified copy is transmitted to this court as part of the record. The record in the present case contains what purports to be a pauper affidavit, signed by the plaintiff in error. The writing states that she is unable to pay the costs. It purports to be attested by one T. W. Bates, notary public. There is nothing on or in the paper to indicate where the alleged affidavit was made, what county or state. If the venue had been stated as Georgia, Muscogee county, we would have inferred that Mr. Bates was a commercial notary public in that county, but, as it fails to give the venue, we cannot take judicial cognizance that Mr. Bates is an officer authorized to administer an oath. No affidavit having been filed as required by law, the statute requires the plaintiff in error or her counsel to pay the costs. Counsel appealed to us to remit the costs on the ground of the poverty of the plaintiff in error, and the fact, he says, that Bates was a notary public in Muscogee county. While we would be glad to relieve counsel, in every case of this kind, from the payment of the costs, we cannot disregard the law which requires them to pay it. Appeals of this kind have become very frequent of late years in this court. Counsel, through oversight or negligence, fail to prepare these affidavits according to the law, and then appeal to us to remit the costs. All the costs of this court belong to the state. They are appropriated to the payment of the salaries

of certain officers, if they amount to the sum paid them. If they are not sufficient to pay these salaries, the deficit is paid out of the state treasury. If they amount to more than sufficient, the excess is turned into the treasury. The state, by its law, remits the costs when the plaintiff in error complies with certain prescribed regulations. These regulations have not been complied with in the present case, and this court has no authority to remit the costs. The remission of these costs to pauper litigants is gratuitous on the part of the state. We regret to say that a great many litigants take advantage of the law when, in our opinion, they are really not entitled to its benefits. Many cases come before us where parties, excused under this law from the payment of costs, appear from the records to own and possess a considerable amount of property. We would respectfully recommend to the legislature that the law be so amended as not to allow parties to be themselves the sole judges of the truth of their affidavits of inability to pay the small amount of costs taxed in this court. We are the more impressed with the importance of this matter since the report of the clerk of the number of these cases on the present docket. This report shows that of the 497 cases so far returned to this term of the court, 177 are brought up by plaintiffs in error who have availed themselves of the benefit of the law. The plaintiffs in error in more than one-third of the cases brought to the present term are, according to this report and the affidavits filed by them, too poor to raise the small amount of $10 to pay for having their cases passed upon by this court. The sum of $1,770 is thus given by the state to these litigants at one term of the court. Judgment reversed. All the justices concurring, except LUMPKIN, P. J., and LITTLE, J., absent on account of sickness.

NOTE.

Defendant, although not the legal owner of a certain house and lot, returned it for taxes as his own, together with personal property and a poll. Upon default, tax executions issued against the land in question and other property, which_belonged to the person returning the same. Held, that the claimants of the property erroneously returned by defendant must offer to pay the proper amount of taxes against the property claimed before they can have it declared not subject to the execution. State v. Hancock, 79 Ga. 799, 5 S. E. 248.

Where a trustee, having the title to realty, returned it for taxation for a particular year in his own name, making no other tax return for that year, and the property was afterwards sold under a tax execution issued against him individually, and based upon the return indicated, and, though not so appearing on the face of the execution, the property tax on this identical property, the purchaser at the sale, if the same was otherwise free from objections, obtained a good title, as against the cestuis que trustent represented by the trustee; and this is true, although the poll tax of the latter was also included in the tax execution. Barnes v. Lewis, 98 Ga. 558, 25 S. E. 589.

DAVIS v. MUSCOGEE MFG. CO. (Supreme Court of Georgia. Dec. 13, 1898.) PLEADING-AMENDMENT-COSTS ON APPEALPAUPER AFFIDAVIT.

1. The original petition in the present case setting forth no cause of action whatever, there was nothing to amend by.

2. A pauper affidavit filed for the purpose of relieving the plaintiff in error from the payment of costs in this court is sufficient, if it state that the plaintiff in error, because of his poverty, is unable to pay the costs; and it need not be further stated in the affidavit that he is unable to give bond for the eventual condemnation money, or that his counsel has advised him that he has good cause for a writ of error. Aliter, if the purpose of the affidavit is also to obtain a supersedeas of the judgment rendered in the court below.

(Syllabus by the Court.)

Error from superior court, Muscogee county; W. B. Butt, Judge.

Action by Robert Davis against the Muscogee Manufacturing Company. From an order refusing to allow plaintiff to amend his complaint, he brings error. Affirmed.

Blandford & Grimes, for plaintiff in error. McNeill & Levy, for defendant in error.

COBB, J. Davis sued the Muscogee Manufacturing Company for damages, alleging that he was in the employment of the defendant, to clean and wash window glass in the defendant's factory, and, while he was so engaged, the engineer, or some other employé of the defendant operating the engine of the factory, without warning to the plaintiff, and without his knowledge, turned on the steam from the engine or other appliance of the defendant so carelessly and negligently that the water and steam went outside of the factory. to the window plaintiff was washing, and thereby, without any fault on his part, scalded and burned him, to his damage, etc. When the case came on for trial the plaintiff proposed to amend the declaration as follows: "And plaintiff further alleges that the defendant was negligent, in this: that it kept and maintained a foot valve, which was liable to get out of order at any time, and which was well known to defendant, and which did get out of order, and when out of order a vacuum attached to the engine or attachment of said engine would be broken, and, when so broken, would cause hot water and steam to be forced in a pipe running up the side of the building of said defendant, whereby your petitioner was scalded and burned, to his damage," etc. The defendant objected to the amendment upon the ground that it constituted a new cause of action. The court sustained the objection, and the plaintiff excepted.

1. The petition, as originally filed, set forth no cause of action. The negligence alleged resulted from the acts and conduct of the employés of the defendant, who were the fellow servants of the plaintiff; and such negligence, although resulting in damage to the plaintiff,

did not give him a cause of action. Kerr v. Cotton Mills (Ga.) 31 S. E. 166, and cases cited. The amendment offered alleged that the plaintiff was injured by the negligence of the defendant in not providing proper machinery. This was entirely different from the allegation in the original petition, and made a cause of action which was in no way connected with the allegations contained in the original petition. It was contended by the plaintiff in error that the original petition set forth a cause of action, which consisted of the negligent scalding and burning of the plaintiff, and that the amendment did not make a new cause of action, but was permissible for the purpose of making varying allegations as to what constituted the negligence resulting in the scalding and burning. It is true that in the case of Harris v. Railroad Co., 78 Ga. 525, 3 S. E. 355, it was held that, "the cause of action alleged being the homicide of plaintiff's husband by means of the defendant's negligence, the allegations in the declaration touching the specific acts of negligence, and the manner of causing death, may be varied or added to by amendment during the progress of the trial, so as to adapt the pleadings to the evidence in all its aspects," and that Chief Justice Bieckley, in the opinion, says: "The cause of action was the homicide of the plaintiff's husband by the negligence of the defendant. In setting out that negligence, it was described in one way in the original declaration, in another by the first amendment, and in another by the second amendment. But it was all the same cause of action." The distinction between that case and the one now under consideration is that the original petition set forth a cause of action, the substance of it being that the plaintiff's husband was killed by the running of the defendant's trains, locomotives, cars, and other machinery, and that his death was the result of no negligence on his part, but was due to the negligence of the defendant; it then being alleged in what this negligence consisted. So that the original petition contained a complete cause of action. The amendments which were allowed simply made allegations of acts of negligence additional to those contained in the original petition. If the petition in the present case had alleged that the plaintiff was burned and scalded by the negligent conduct of the defendant in the operation of its factory, and had set forth some specific act of negligence, then, under the ruling in the Harris Case, an amendment containing additional acts of negligence might have been properly allowed. But the original petition contained no allegation of negligence which was chargeable in law against the defendant, and for this reason the case differs materially from the Harris Case. What has been said in reference to the Harris Case also applies to the case of Railroad Co. v. Kitchens, 83 Ga. 83, 9 S. E. 827. There is nothing in this view to conflict with the ruling made in the case of Ellison v. Railroad Co., 87 Ga. 691, 13 S.

E. 809. While some of the language of Chief Justice Bleckley, taken isolated and alone, might lead to the conclusion that the amendment in the present case should have been allowed, still, if the opinion is construed as a whole in the light of the record in that particular case, it will be seen that the amendments which are allowable under the authori ty of that decision are those which simply make perfect a cause of action which is imperfectly set forth in the pleading sought to be amended. That this is the true purpose of the decision comes out clearly in the language of the seventh headnote, which is as follows: "Under the Code, a declaration which has all the requisites to make it good and sufficient in substance, save that it omits to allege some fact essential to raise the duty involved in the cause of action which the pleader evidently intended to declare upon, is amendable by supplying the omitted fact at any stage of the case. Thus, where the duty claimed was the duty of forbearing to obstruct a sewer pipe which conveyed waste water from the plaintiff's premises, and discharged the same on the defendant's land, the declaration was amendable by alleging an easement subjecting his land to the burden of receiving the water so discharged. Also, in an action by a mother suing for the homicide of her son, where the fact omitted from the declaration was that she was dependent upon him for a support, the declaration was amendable by alleging that fact." The omission in the original petition in the present case was not due to a failure to allege some essential fact which was necessary to a cause of action imperfectly set forth therein, but was an omission to allege in any way whatever a state of facts which would constitute a cause of action against the defendant. We cannot hold that it was the intention of this court in Ellison's Case to carry the law of amendment to such an extent. An imperfect cause of action may be made perfect by a suitable amendment. No cause of action whatever cannot, by amendment, be converted into a cause of action.

2. Upon the call of this case a motion was made to dismiss the writ of error on the ground that the pauper affidavit appearing in the record was not sufficient, in that it did not distinctly appear from the same that counsel had advised plaintiff in error that he had good cause for a writ of error. The constitution declares that plaintiffs in error shall not be required to pay the costs in this court when the usual pauper affidavit is filed in the court below. Civ. Code, § 5881. It is provided by law that, "if a pauper oath be made for the purpose of carrying any case to the supreme court without payment of costs, such oath shall state that the plaintiff in error, because of poverty, is unable to pay the costs in said case, and must not add conjunctively the inability of the plaintiff in error to give bond for the eventual condemnation money." Id. § 5553. See, also, rule 14 of the supreme

court (26 S. E. viii.). It would seem, therefore, that, if the pauper affidavit is filed for the sole purpose of bringing the case to this court without the payment of costs, the only thing material to be stated in the affidavit is that the plaintiff in error, from his poverty, is unable to pay the costs. If, however, the purpose in filing the affidavit is not only to be relieved from the payment of costs, but also to obtain a supersedeas of the judgment of the court below until the case is finally adjudicated here, the affidavit must not only set forth that the plaintiff in error is unable to pay the costs, but also, disjunctively, that he is unable to give security for the eventual condemnation money, and that his counsel has advised him that he has good cause for a writ of error. Civ. Code, § 5552; Flannagan v. Scott (Ga.) 31 S. E. 23; Williams v. George, 104 Ga. 599, 30 S. E. 751.

Judgment affirmed. All the justices concurring, except LUMPKIN, P. J., and LITTLE, J., absent on account of sickness.

1. The benefit of a demand for trial duly made in a superior court is not lost by reason of the subsequent transfer of the indictment to a city court.

2. If, at a term when a demand for trial is operative, a trial be had, which results in a verdict of guilty, and a new trial be granted at that term, the failure of the accused to then move for a discharge will not affect his rights under the demand. It will stand over, to be complied with at the next term.

(Syllabus by the Court.)

Error from city court of Gwinnett.

Ben Gordon was indicted for misdemeanor, and demanded a discharge, and, on refusal, brought error. Reversed.

L. F. McDonald, for plaintiff in error. F. F. Juhan, for the State.

FISH, J. At the September term, 1897, of the superior court of Gwinnett county, Ben Gordon was indicted for misdemeanor. During the March term, 1898, a demand for trial was duly made, and entered upon the minutes, and the case was continued by the state. Subsequently, and during the same term, an order was granted transferring the indictment to the city court of Gwinnett for trial. At the June term, 1898, of the city court,-that being the first term of such court after the transfer of the indictment,--the accused was tried, convicted, and a new trial granted him. the August term, 1898, of the city court, the accused announced "Ready for trial," but the state continued the case. Thereupon the accused moved for a discharge under the demand. There were juries impaneled and qualified to try him at this term. The motion was passed, to be considered later in the term, bu the court adjourned without disposing of it.

At

At the next term,-October term, 1898,-when the case was called, the accused announced "Ready," and renewed his motion for a discharge, upon the ground that he had not been tried at the preceding August term. The motion was passed to be heard later in the term, and on October the 14th, during the term, after the state had continued the case, and while there were juries impaneled and qualified to try the accused, he presented a written demand for a discharge, which was then refused by the court, whereupon the accused excepted.

1. The act establishing the city court of Gwinnett (Acts 1895, p. 384, § 29) provides that "the judge of the superior court may send down from the superior court of Gwinnett county all presentments and bills of inGictment for misdemeanors to said city court for trial," etc. The indictment in this case, charging the accused with a misdemeanor, was pending in the superior court of Gwinnett county at the time he therein made, and had entered upon its minutes, his demand for trial. The order which was subsequently granted, at the same term the demand was made, transferring the indictment to the city court, carried the whole case, including the demand for trial, to the latter court, without affecting the rights of the accused under his demand. To hold that he could not insist upon a discharge in the city court, under a demand for trial duly made in the superior court prior to the order of transfer, would be to say that merely transferring his case from one court to another would deprive the accused of all benefit of the statute guarantying to him a speedy trial. He certainly could not move for a discharge in the superior court after the indictment had been transferred to the city court, because the case would no longer be pending in the former court; and if he could not insist upon such motion in the latter court, where the indictment was then pending, he would lose all rights under his demand. In Hunley v. State (Ga.) 31 S. E. 543, Mr. Justice Little said: "To give effect to both sections of the Penal Code to which we have adverted, that is, that cases charging misdemeanors may be transferred from the superior court to the city court, and the provision securing to a defendant the right of a demand for trial,-it must be held that the terms of the court to which the case has been transferred are to be regarded as the terms of the court covered by the statute, and that a demand for trial, in order to be effective, must be made to the court in which the case is pending at the time of the demand." And he further said that "to render the demands available so as to operate as acquittals, under the provisions of the statute, they would have to have been made in the city court." to which the cases he was then considering had been transferred from the superior court. If a demand for trial can be made in the city court under an indictment transferred from the superior court, there can be no reason why a demand made in the superior court