the ground that the court refused to declare vacant the office of the defendant in error. The court did not err in this ruling, under the facts, notwithstanding the character of the proceed ing. Error from Superior Court, Harris County; G. H. Howard, Judge. Suit by J. H. Lynch and others against J. C. Blanton. Judgment for defendant, and plaintiffs bring error. Affirmed. A. L. Hardy, of Hamilton, for plaintiffs in error. T. T. Miller, of Columbus, for de fendant in error. Error from Superior Court, Evans County; W. W. Sheppard, Judge. Suit by Henry Talmadge & Co. against the Perkins Lumber Company and its creditors, to establish a mortgage lien, and for the appointment of a receiver, etc., in which William W. Mackall and the Savannah Trust Company intervened. Judgment for plain tiff and such interveners, and after a sale of property the receivers applied for order requiring the filing of the claims before a certain date, whereupon Gertrude C. Perkins and others intervened, and from an order sustaining demurrers to the petition in interven GILBERT, J. Judgment affirmed. All the tion by Henry Talmadge & Co. and others, Justices concur. the interveners bring error. Affirmed. On March 21, 1912, Henry Talmadge & Co., a copartnership, filed in the superior court of Tattnall county, a petition against the Perkins Lumber Company, a corporation, and its creditors, asking for the appointment of receivers; for decree that certain mortgages described in the petition were liens on the Register & Glennville Railroad, owned by the Perkins Lumber Company; for special liens against said railroad; and for general judgment. The mortgages referred to were executed by the Perkins Lumber Company, one dated June 6, 1908, and securing the principal sum of $125,000, and one dated November 11, Error from Superior Court, Dougherty 1910, and securing the additional sum of $10,County; E. E. Cox, Judge. Action by J. W. Kemp against J. B. Tyler and others. Judgment for plaintiff upon a directed verdict, and defendants bring error. Reversed. W. I. Geer, of Colquitt, for plaintiffs in error. Thos. H. Milner, of Albany, for de fendant in error. 000. William W. Mackall intervened and set up a mortgage by the Perkins Lumber Company covering the same property, dated February 1, 1916, to J. F. Hanson, trustee, to secure certain bonds in the principal sum of $6,900, held by the intervener, and prayed for judgment of foreclosure, etc. The Savannah Trust Company intervened and set up two mortgages executed to it by the Perkins Lumber Company, one dated March 1, 1911, to secure the principal sum of $63,000, and one dated January 31, 1912, for $2,000, both cov PER CURIAM. On the trial of an issue involving the value of timber trees, the opinions of witnesses as to their value are not conclusive upon the jury. Under the evi-ering the same property. dence in this case it could not be said that the only verdict that could have been rendered was one for the plaintiff for the particular amount found in his favor. There was also an issue of fact as to whether the plaintiffs in error were liable under the allegations of the petition. It was error, therefore, for the court to direct a verdict for the plaintiffs. Judgment reversed. All the Justices con cur. (147 Ga. 527) The case came on to be tried; and on April 11, 1913, a verdict and judgment were rendered in favor of William W. Mackall for $6,900 principal, $1,145.73 interest; Savannah Trust Company $2,000 principal, $186.30 interest; Savannah Trust Company $63,000 principal, $10,375.45 interest; and Henry Talmadge & Co., $135,666.66 principal, $15,056 interest. By the decree entered upon the verdict, debts of the Perkins Lumber Company amounting to more than $234,000 were declared to be valid liens on the railroad property in the hands of the receivers, superior to any other PERKINS et al. v. HENRY TALMADGE & claims whatsoever; and the rank of said CO. et al. (No. 159.) (Supreme Court of Georgia. Jan. 16, 1918.) (Syllabus by the Court.) CORPORATIONS 566(5)-PARTIES 47-INTERVENTION-DEMURRER-CAPITAL STOCK. The intervention of plaintiffs in error did not set forth a cause of action, and the general demurrers were properly sustained. liens among themselves was also fixed by the decree. Subsequently the railroad property of the Perkins Lumber Company (all other assets of the corporation having been administered in a bankruptcy proceeding instituted after the filing of the petition by Henry Talmadge & Co.) was sold by the receivers under order of the court for $225,000, and the sale was confirmed. In the order of sale it was kins, Henry C. and W. C. Perkins pretended provided that the purchasers, if lienholders, to acquire and become owners of all the might pay their bid by surrendering debts to stock of the Perkins Lumber Company; but the amount decreed to be due them; and the interveners contend that the guardian could lienholders bought the property and assigned not sell, except for cash, the stock owned it to the East Georgia Railway Company, one by them respectively, and that W. C. Perof the defendants in error. The decree fur- kins obtained no title to the stock belonging ther provided that the purchasers should take to interveners. (6) That Henry W. Perkins, the property free and clear of all claim there- as guardian for interveners, has never reon, except the obligations of the receivership. covered the shares of stock or the value In the order delivering the possession of the thereof, or any of the proceeds arising thereproperty to the purchasers, or their assignee, from, and that interveners have never rethe court reserved the right to call upon the ceived any part of the value of the said purchasers for any sum which might be de- shares of stock. (7) That, following the creed to be due from the receivers, or liens death of Henry C., W. C. Perkins was electcreated by them in the course of the receiver- ed president of the Perkins Lumber Comship, or other claims which might be a liabil-pany, and as such, on June 6, 1908, he exeity of the receivers. There being no further assets in the hands of the receivers, they applied to the court for an order requiring all persons having claims against them to prove and file them with one of the receivers as chairman by a certain date, or else be thereafter barred to claim anything against the receivers or the property sold by them. W. V. Davis was named as manager of the receivers, and May 1, 1916, was fixed as the limit of time in which such claims should be filed. cuted a mortgage to Henry Talmadge & Co., and a supplemental mortgage on November 11, 1910, on the property known as the Register & Glennville property, sold by the receivers in this case; and as such president he executed other mortgages on said property under dates of January 31, 1912, and March 1, 1911. (8) That the property covered by all of said mortgages included the interest of interveners in said property as represented by their shares of stock in the Perkins Lumber Company, and these mortgages were executed without authority of law "so far as affects the interest of interveners in said property"; that W. C. Perkins, as trustee and guardian, had no right to create a lien on the interest of interveners in the corporate assets of the Perkins Lumber Company, as represented by their shares of stock. (9) That all of said mortgagees had notice, "actual or constructive," that the mortgages embraced the interest of interveners in the property covered thereby, the interest of interveners being represented by their respective shares of stock in the Perkins Lumber Company, and that no lien could be created thereon by the Perkins Lumber Company or its officers. (10) That on June 15, 1915, interveners filed in Evans superior court a suit against Henry W. Perkins as guardian, American Bonding Company as surety on guardian's bond, and W. C. Perkins & Perkins Lumber Company as sureties on another guardian's bond, for failure to take advantage of and recover the assets left interveners by the will of George W. Perkins, and for failure to recover from the Perkins Lumber Company and from the estate of Henry C. Perkins, deceased, the On May 5, 1916, Gertrude C. Perkins, Sarah E. Perkins, and Willie Lee Schroder, née Perkins, filed in the superior court of Tattnall county an intervention disclosing, in substance, the foregoing, and making the following claims: (1) That George W. Perkins died September 14, 1903, leaving by will to interveners 50 shares each of the stock of the Perkins Lumber Company of the value, at the time of his death, of $150 per share. (2) That by the will of George W. Perkins Henry C. Perkins was appointed guardian for interveners, with power to sell at public or private sale any of the property bequeathed to them; that said guardian accepted the trust, but never withdrew the stock owned by the interveners from the Perkins Lumber Company; that later Henry C. Perkins, as president of the Perkins Lumber Company, gave a mortgage to J. F. Hanson, trustee on the Register & Glennville Railroad property, Henry C. Perkins and Perkins Lumber Company at the time holding the shares of stock belonging to interveners in trust for interveners. (3) That Henry C. Perkins died on December 17, 1906, but before his death he had sold, as guardian, the stock of interveners to W. C. Per-value of said shares of the stock of the Perkins for $100 per share; that W. C. Perkins kins Lumber Company bequeathed to internever paid anything except a portion of the veners; and that on October 28, 1915. interest on the purchase money, and title interveners each obtained a verdict and judg to the stock never legally passed out of in- ment against the guardian, Henry W. Perterveners. (4) That on March 1, 1907, Henry kins, and certain sureties, including the PerW. Perkins was appointed and qualified as kins Lumber Company, for $15,550 principal, guardian for interveners, and gave bond in besides interest. (11) That inasmuch as the the sum of $120 000 as such guardian with stock of the Perkins Lumber Company at the the Perkins Lun ber Company as a surety. time of the death of George W. Perkins was ture proceedings in the case, including the application of the receivers themselves to have all claims against the Perkins Lumber Company, and the properties of the company sold by them, presented to them by a date certain. recover "at least the alleged contract price | court in favor of the defendants in error, of sale of the said shares," with interest which decree was the foundation of all fuadded. (12) That the capital stock of the Perkins Lumber Company was divided into 1,000 shares, and interveners claimed 150/1000 of the price bid for the property at receiver's sale. (13) That they elect to follow the proceeds of the sale, instead of following the property. They prayed that they be paid from the proceeds of sale by the receivers the respective amounts they claim as their interest in the property, and that the decree of April 11, 1913, be so amended as to decree their claims to be liens upon the proceeds of the sale by the receivers "superior to the claims of any other creditor of the Perkins Lumber Company." Interveners did not attach to their intervention a copy of the will of George W. Perkins; nor a copy of the contract of sale of the stock bequeathed to interveners by the will of George W. Perkins alleged to have been made by Henry W. Perkins, guardian, to W. C. Perkins; nor a copy of the suit filed by interveners in Evans superior court against Henry W. Perkins, guardian, et al. To this intervention defendants in error interposed their several and joint demurrers, general and special. The court sustained the general demurrers, and the interveners, as plaintiffs in error, insist that this was error, because: (a) The defendants in error were not entitled to be heard, and were without interest in the subject-matter of the litigation, in that they had not filed their claims with the chairman of the receivers by May 1, 1916, as required by the order of the court; (b) the intervention set forth a good cause of action. W. G. Warnell, of Claxton, and Way & Burkhalter, of Reidsville, for plaintiffs in error. Wm. B. Stephens and Travis & Travis, all of Savannah, for defendants in error. GEORGE, J. (after stating the facts as above). The first contention made by the plaintiff's in error is that defendants in error were not entitled to be heard in opposition to the intervention filed by them, and had no interest in the subject-matter of the litigation and funds arising from the sale of the property of the Perkins Lumber Company by the receivers, because they had failed to file their claims with the chairman of the receivers by May 1, 1915, as required by order of the court. This contention must be dismissed, with the observation that the order of court requiring all parties to present their claims to the receivers by a day fixed was passed upon the application of the receivers appointed in the very proceeding in which the defendants in error were allowed a decree setting up and declaring the rank of their respective liens. The ex parte order of the court, if it referred to defendants in error at all. certainly did not have the effect to [1] Did the intervention set forth a cause of action? Plaintiffs in error came into court on May 5, 1916, under the familiar rule in equity that an intervener takes the case as he finds it. On that date they found a decree of the court establishing and declaring liens in favor of the defendants in error. This decree was rendered more than three years prior to the filing of the intervention, and, both under section 4358 of the Civil Code and the rule in equity referred to, the interveners are not entitled to have the decree annulled. They expressly declared that they elected to follow the proceeds of the sale of the property made by the receivers. The relief prayed by them grows out of the decree rendered before the filing of the intervention, and they cannot be heard to attack the decree on any ground which might properly have been the subject-matter of a plea by the Perkins Lumber Company. They cannot with one hand reap the fruits of the decree and with the other strike down the decree itself. Seaboard Air Line Railway v. Knickerbocker Trust Co., 125 Ga. 463, 54 S. E. 138; Charleston, etc., Railway Co. v. Pope, 122 Ga. 579, 50 S. E. 374. The decree in the original suit of Henry Talmadge & Co. against the Perkins Lumber Company and its creditors established the validity of the mortgages respectively held by the defendants in error. These mortgages were more than sufficient in the aggregate to consume the entire purchase price received for the properties of the Perkins Lumber Company. Interveners, therefore, could have no standing as judgment creditors; and as stockholders (and such they really were, under their allegations) their claims could not he paid out of the assets of the defunct lumber company ahead of common creditors, to say nothing of judgment lien creditors and mortgage creditors. To this latter class the defendants in error belonged. It is an elementary principle that the capital stock of a corporation is first for creditors, then for stockholders. Even the general creditors of the corporation (and certainly there is no claim made in the intervention that defendants in error are not general creditors) are entitled to be paid before the stockholders can claim any portion of the assets of an insolvent corporation. Schley v. Dixon, 24 Ga. 273, 71 Am. Dec. 121 (1); Beck v. Henderson, 76 Ga. 360 (4). It follows from the foregoing that the judgment sustaining the general demurrers to the intervention was right, and it is therefore affirmed. All the Justices con TION. Authority is vested in the mayor and aldermen of the city of Jackson, under its charter (Acts 1908, p. 805), to provide for the registration of voters prior to any municipal election. An election on the question of issuing school bonds was held without providing any system of registration; and therefore no means existed for determining whether two-thirds of the qualified voters did in fact cast their votes in favor of the issuance of the bonds. The judgment of the trial court, validating the issuance of such bonds, was erroneous. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Any.] Error from Superior Court, Butts County; W. E. H. Searcy, Jr., Judge. Action between R. W. Mays and others and City of Jackson and others. Judgment for the latter, and the former bring error. Reversed. W. E. Watkins and H. M. Fletcher, both of Jackson, for plaintiffs in error. C. L. Redman, of Jackson, and E. M. Owen, of Zebulon, for defendants in error. [termining whether two-thirds of the qualified voters did, in fact, cast their votes for bonds exists." Floyd County v. State, 112 Ga. 794, 801, 38 S. E. 37, 40. The act of the General Assembly, creating the new charter for the city of Jackson (Acts 1908, p. 805), contains the following: "Said mayor and aldermen shall have power and authority to provide for the registration of voters prior to any municipal election in said city," etc. The words "any election" are sufficiently broad to include elections for the issuance of bonds. Mayor, etc., of Decatur v. Wilson, 96 Ga. 251, 23 S. E. 240. Under the agreed statement of facts in this case it appears that the municipal authorities of the city of Jackson have made no provision for registration as authorized by the charter of the city; and therefore no means existed for ascertaining the number of qualified voters authorized to participate in the election held for the purpose of determining the bond issue in question. The judgment of the court validating said bonds was errone ous. Judgment reversed. All the Justices concur, except FISH, C. J., absent. (147 Ga. 570) COOPER et al. v. OGLETHORPE SAVINGS & TRUST CO. et al. OGLETHORPE SAVINGS & TRUST CO. et al. v. COOPER et al. (Nos. 410, 412.) (Supreme Court of Georgia. Jan. 18, 1918.) (Syllabus by the Court.) 1. VENUE ←22(1, 3)—ACTION AGAINST JOINT WRONGDOERS. ferent counties may be sued in one action in the While two joint wrongdoers residing in difcounty where either of them resides, it is not permissible in such a suit to seek equitable reof the county in which the suit is pending. lief against the wrongdoer who is a nonresident when no substantial equitable relief is prayed against the resident defendant. Especially is this true in a case where the equitable relief sought is of such character that, if the suit had been brought in the county of the residence of the person against whom it is sought, the other defendant would have been merely a nom GILBERT, J. "The policy of the law of this state is, and has been since the adoption of the present Constitution, opposed to the incurring of debts by towns and cities; and it has therefore become the settled rule that all laws in reference to the course to be followed by the public authorities in obtaining consent to contract a debt in behalf of the taxpayers are to be strictly construed, and the consent of the taxpayers is never held to have been given in any case unless the requirements of the law providing the manner in which the debt shall be incurred have been strictly complied with in every material particular." City of Thomasville v. Light Co., 122 Ga. 399, 401, 50 S. E. 169. One of the requisites to a valid issuance of bonds is that the same be assented to by two-thirds of the qualified voters of the municipality desiring to incur the bonded indebtedness. It is essential that those vot-inal party to the proceeding. ers shall be legally qualified to do so; and 2. PLEADING 198-JOINDER OF CAUSESwhether they are so qualified must be determined in the manner provided by law. Where legislative provision has been made for registration of voters, such registration is to be considered in determining that question. In the absence of such provision, the tally sheets of the last general election shall be taken as the correct enumeration. Rich-be taken advantage of by each of the defendants ter v. Chatham County, 146 Ga. 218, 91 S. E. 35. "If the municipality has been invested by the Legislature with authority to put a system of registration in force, and an election is held without having provided a system of registration, no means of de-ble; one which might be brought in the county SEPARATE DEMURRERS. The uniting in one suit of a cause of action for the recovery of personal property wrongfully withheld against two wrongdoers, one a resident and the other a nonresident of the county in which the suit is brought, and an equitable cause of action against the nonresident, in which the resident defendant is not substantially concerned, is such a defect as can on separate demurrers raising the objection that the court has no jurisdiction to decree the equitable relief sought against the nonresident. 3. VENUE 22(3)-JOINDER-DISMISSAL. of action, it set forth two separate and distinct If the petition in this case set forth a cause causes of action, one legal and the other equita TO RECOVER PROPERTY-EVIDENCE. of the residence of either defendant, and the oth- | Allen, 128 Ga. 181, 57 S. E. 224; Turner v. er which could not have been properly brought Woodward, 136 Ga. 275, 71 S. E. 418. elsewhere than in the county of the residence of 2. VENDOR AND PURCHASER 219-ACTION the defendant against whom the substantial equitable relief was prayed. The defendants therefore were entitled to a dismissal of the petition, unless the alleged equitable cause of action was eliminated from the petition. 4. PLEADING 248(1)-AMENDMENT TO PETITION-NEW CAUSE OF ACTION-INCONSIST ENT ALLEGATIONS. The offered amendments to the petition should have been disallowed, on the objections: (a) That each contained a new, and therefore a separate and distinct, cause of action; (b) that the allegations of the amendments were inconsistent with and contradictory to the allegations of the original petition. The petition as amended was subject to the demurrer based upon the grounds indicated in the first, second, and third divisions of this decision, and there was no error in dismissing it. This case is controlled by Townsend v. Brinson, 117 Ga. 375, 43 S. E. 748, and differs on its facts from Baker v. Davis, 127 Ga. 649, 57 S. E. 62. On the trial of such suit as just indicated it was not error, over an objection that it was irrelevant, to permit the defendant (the donee) to testify that prior to the death of the donor (the alleged husband of the witness), when he was having his will drawn by an attorney, the witness said to the attorney in the presence of the husband that she had an interest in the property in controversy, and that the donor at that time made no response, and she also at the same time told the donor that she would not vacate the premises now in dispute. Such evidence was material on the issue whether the donor had made a gift of the house and lot to the donee and she had acquired an interest therein. 3. VENDOR AND PURCHASER 219-PAROL GIFT EVIDENCE. Where on the trial of such case a witness for the plaintiff, not a party to the case, testified to the effect that she married the vendor and donor 30 or 40 years before the trial, that she Error from Superior Court, Screven Coun- had four children as the result of such marriage, ty; R. N. Hardeman, Judge. Action between S. F. Cooper and others, receivers, and the Oglethorpe Savings & Trust Company and others. Judgment for the latter, and the former bring error. Judgment on main bill of exceptions affirmed, and crossbill of exceptions dismissed. T. J. Evans, of Sylvania, for plaintiffs in error. Garrard & Gazan and E. S. Elliott, all of Savannah, for defendants in error. that she had never been divorced from him and for divorce, it was not error to exclude such had never been served with any notice of a suit evidence on the ground that it was irrelevant and immaterial to the issues involved in the case. 4. SUFFICIENCY OF EVIDENCE. The evidence was sufficient to authorize the verdict. Error from Superior Court, Baldwin County; H. C. Hammond, Judge. Action between Flo Hudson and Evelyn Broughton. Judgment for the latter, and the former brings error. Affirmed. tiff in error. L. Kenan, E. R. Hines, and D. Allen & Pottle, of Milledgeville, for plainS. Sanford, all of Milledgeville, for defendant in error. HILL, J. Judgment affirmed. All the Justices concur, except FISH, C. J., absent. (147 Ga. 522) BARTON et al. v. CHANCE et al. (No. 465.) (Supreme Court of Georgia. Jan. 15, 1918.) (Syllabus by the Court.) "Where any suit is instituted or defended by a person insane at time of trial, or by an indorsee, assignee, transferee, or by the personal representative of a deceased person, the opposite party shall not be admitted to testify 1. DEEDS 125-CONSTRUCTIONS-FEE. in his own favor against the insane or deceased Thomas S. Mims conveyed by deed to James person as to transactions or communications A. Mims, and unto his successors in trust, with such insane or deceased persons [whether such transactions or communications were had by such insane or deceased person with the party testifying or with any other person]." Park's Ann. Code, § 5858, par. 1. Consequently, on the trial of an action to recover a house and lot, brought by a vendee in a warranty deed against a donee in possession under claim of a parol gift from the same transferor to an undivided half interest in the lot, with valuable improvements made thereon by the donee, and with actual notice to the plaintiff by the donee prior to and at the date of the deed from the vendor to the vendee, where at the time of trial the vendor and donor was dead, it was not error to refuse to permit the plaintiff and her agent to testify as to alleged conversations and transactions with the vendor relative to the transfer of the house and lot to the plaintiff. Hendrick v. Daniel, 119 Ga. 358, 46 S. E. 438; Hendricks v. * * * certain described land, for the sole and separate |