Dougherty County vs. Kemp & Hood.

ratifying whatever the said party of the second part, or his substitute or attorney, shall lawfully do.

"The said party of the second part hereby accepts the trust created and in him reposed by these presents, being responsible only for actual receipts or willful defaults.

"In witness whereof, said parties of the first and second parts have hereunto set their hands and affixed their seals, the day and year above written."

The plaintiffs, as the creditors of the defendants in fi. fa., did not accept the terms of the assignment. The assignment in this case comes within the ruling of this court in MeBryde vs. Bohannon, 50th Georgia Reports, 527, and is controlled by it.

Let the judgment of the court below be affirmed.

55 252 82 784

DOUGHERTY COUNTY, plaintiff in error, vs. KEMP & HOOD, defendants in error.

Neither the judge of the superior court, nor the sheriff, has any power to make the county the bailee of a horse, nor is the county responsible for the loss of a horse bailed to an officer for the purpose of serving process and bringing in witnesses to testify in behalf of the state in criminal cases. The officer, while engaged in his legal duties, is not the agent or servant of the county, but of the law; and if engaged otherwise than in his legal duties, he is the servant of those who sent him.

County matters. Courts. Sheriff. Before Judge STROZER. Dougherty Superior Court. October Term, 1874.

Reported in the opinion.

D. H. POPE, for plaintiff in error.

STROZER & SMITH, for defendants.

BLECKLEY, Judge.

The sheriff and his deputy were owners of a livery stable. The superior court being in session, a witness for the state in

Turner et al. vs. Linam.

a criminal case on trial or about to be tried, was wanted. The
presiding judge ordered the sheriff to furnish a horse and
buggy, and send one of the bailiffs attending upon the court
out some eighteen miles in the country, and bring in the wit-
ness at once. The sheriff objected on account of the heat of
the weather, saying that it was dangerous to a horse to be
driven at that time of day, and proposed to send at night, and
have the witness present by the meeting of the court next
morning. The judge persisted in his order, and the bailiff
was sent at once by the sheriff, with a subpoena, after the wit-
ness, the horse and buggy used being the property of the
sheriff and his deputy as livery-men. The horse took the
scours, a disease almost sure to prove fatal if driving be kept
up after the attack. The bailiff continued to drive, and the
horse died in the road. The owners thereupon brought an
action against the county for the value of the horse. The de-
claration is in the short form authorized by the Code in cases
of open account, and the bill of particulars debits the county
with "one horse, killed while in the service of the county,
by over driving." At the trial, the court, in one part of the
charge to the jury, laid it down as law that if the horse was
driven by the bailiff in a way that caused death, the county
would be liable. The jury found that the county was liable,
and a motion was made for a new trial on alleged error in this
principle of the charge, and because the verdict was contrary
to the evidence and to law.

What is said in the head-note is enough to dispose of the
The county is not liable.

case.

Judgment reversed.

R. W. TURNER et al., administrators, plaintiffs in error, vs.
ELIZABETH LINAM, defendant in error.

1. Letters of administration granted in another state have no validity in this
state except such as is imparted by the statutes of this State.

55 253 66 277

67 84

76 395

Turner et al. vs. Linam.

2. Therefore, an administrator appointed in Alabama, who institutes a suit in Georgia, must bring himself within sections 2614 and 2615 of our Code, the provisions of which sections prescribe the terms on which he may sue in our courts.

3. These sections prescribe that such administrator, pending the action, shall file in the clerk's office where the suit is brought "a properly authenticated exemplification of the letters of administration;" the filing therein of the exemplification of the order for the appointment of such administrator does not comply with the statutes of Georgia; the exemplification should be of the entire record of administration touching the letters, and particularly of the letters themselves, which letters, by the Code of Alabama, are required to be recorded in her courts of probate.

4. Where administrators appointed in Alabama seek to be made parties to a suit in Georgia, begun in the lifetime of the intestate, if they can be made parties at all to such suit, they can only be made such by a compliance with section 2615 of the Code; and if they do not so comply, no recovery can be had on a demise in ejectment in the name of their intestate, and a nonsuit will be awarded.

Foreign administrators.

Administrators and executors. Exemplifications. Ejectment. Before Judge HOPKINS. Clayton, Superior Court. March Term, 1875.

Reported in the opinion.

WILLIAM EZZARD; JOHN COLLIER, for plaintiffs in error.

ROBERT BAUGH, for defendant.

JACKSON, Judge.

This was an action of ejectment brought for the recovery of a lot of land in the county of Clayton. Two demises were laid in the declaration; one in the name of Noel Turner, and the other in that of George W. Adair, executor of the last will and testament of Ephraim M. Pool, deceased.

On the trial the plaintiffs showed a grant from the state to Noel Turner. Noel Turner died pending the suit, and an exemplification or certified copy of an order appointing certain parties administratrix and administrator upon his estate by a probate court in Alabama, was filed in the clerk's office under section 2615 of our Code and exhibited in proof on the

Turner et al. vs. Linam.

No proof at The court non

trial. There was no exemplification of the letters of administration filed in office, or exhibited on the trial. all of title in Adair or his testator was made. suited the plaintiff, and that judgment is the error complained of.

The naked question for our adjudication therefore is, can an administrator appointed in Alabama be made a party to a suit brought in Georgia by his intestate by filing in the office of the clerk of the superior court an exemplified copy of the order of his appointment from the probate court of Alabama?

1. Letters testamentary or of administration have no validity beyond the limits of the state granting them, and suit cannot be brought within the jurisdiction of another state unless authorized by the statute law of the latter state: 5 Georgia Reports, 295; 24 Ibid, 370.

2. By section 2614 of our Code, if a person die domiciled in another state and letters are granted there and none are issued here, the administrator or executrix may institute his suit in any court of this state. The following section in our Code provides that pending the action a properly authenticated exemplification of the letters testamentary or of administration shall be filed with the clerk of the court to become a part of the record: Code, section 2615. The language of section 2614 of the Code is "may institute his suit," and not "may be made a party to a suit already instituted." This case is not, then, within the letter of the statute, but as it may be covered by the reason and spirit of the act, we do not put our judgment upon this point.

3, 4. Conceding that a foreign administrator may be made a party to a pending suit under these sections of our Code, the question recurs, have these administrators complied with the terms imposed? The record shows that they have filed in this case only an exemplified copy of the order of appointment, and have not filed a properly authenticated copy of the letters granted them. By the laws of Alabama the letters of administration are recorded in the probate court, (Code of Alabama, section 2016,) and our statute requires an exempli

Wheeler vs. Walker.

fication of those letters to be filed here as part of the record. The administrators may have been dismissed or the letters revoked; therefore we think that the entire record of the probate court of Alabama, touching this grant of administration should have been shown, and an exemplification thereof should have been filed with the clerk. The title to this land is in the heirs-at-law of Turner, unless administration on his estate has vested it in an administrator for the benefit of creditors and heirs, and as the proof shows no grant of letters in Georgia, and as no properly authenticated exemplification of the letters granted in Alabama has been filed in the clerk's office of the court below, the plaintiff showed no title on which he could recover in ejectment, and the non-suit was properly awarded.

Judgment affirmed.

55 256 72 204 76 725 79 488

ALEXANDER W. WHEELER, sheriff, plaintiff in error, vs.
JAMES P. WALKER, defendant in error.

(BLECKLEY, Judge, having been of counsel, did not preside in this case.)

1. Mandamus was prayed directing the sheriff to accept an affidavit of illegallity and to refrain from selling certain property under execution. The petition was presented to the judge in vacation, who ordered the sheriff to accept the illegality or to show cause at the next term of the superior court to the contrary, and in the meantime that he suspend the contemplated sale. To this judgment exception was taken, and the question brought here for review:

Held, that the writ of error should be dismissed as prematurely brought. The order excepted to was purely interlocutory and not final.

2. The judgment was not an injunction so as to bring the writ of error within the provisions of the statute specially applicable to that class of cases. It merely suspended the sale of the property until the petition for mandamus could be finally passed on in term time.

Mandamus. Illegality. Injunction.

Practice in the Su

At

preme Court. Before Judge CLARK. Sumter county.

Chambers. July 3d, 1875.