2. ADMISSIBILITY OF EVIDENCE.

There is no merit in the other exception to the court's ruling upon the admissibility of evidence.

3. CANCELLATION OF DEED-MORTGAGE FORE

CLOSURE.

The uncontradicted evidence in the case shows that the deed upon which the plaintiff in error relied to defeat the right of the defendant in error to proceed with the enforcement of its mortgage against the property involved in this controversy was without consideration; and there was no error in directing a verdict finding that this deed be canceled, and that the mortgage held by the defendant in error be enforced.

of a jury, and upon the conclusion of the evidence specified sums were separately awarded to the receiver and to the attorneys. The bill of exceptions, after reciting the facts as indicated, assigned error as follows: "To which ruling and order of the court the plaintiff in error then and there excepted, and now excepts and assigns the same as error." Held, that this was an insufficient assignment of error; and the writ of error, on motion, is dismissed. Wheeler v. Worley, 110 Ga. 513, 35 S. E. 639; Fidelity & Deposit Co. v. Anderson, 102 Ga. 551, 28 S. E. 382; Mutual Bldg. & Loan Asso. v. Glessner, 99 Ga. 747, 27 S. E. 187; Hall v. Huff, 74 Ga. 409; Adams v. May, 145 Ga. 234, 88 S. E. 928. Error from Superior Court, Bibb County;

Error from Superior Court, Forsyth Coun- H. A. Mathews, Judge. ty; N. A. Morris, Judge.

Action by the Farmers' & Citizens' Bank and others against the Bank of Cumming. Judgment for plaintiffs, and defendant brings error. Affirmed.

H. L. Patterson, of Cumming, for plaintiff in error. J. P. Brooke, of Alpharetta, Howell Brooke, of Canton, and J. F. Echols and C. M. Rider, both of Cumming, for defendants in error.

Action between H. F. Haley and the Commercial National Bank of Macon. Judgment for the latter, and the former brings error. Writ of error dismissed.

W. D. McNeil, of Macon, for plaintiff in error. Hardeman, Jones, Park & Johnston, and Harry S. Strozier, all of Macon, for defendant in error.

ATKINSON, J. Writ of error dismissed. All the Justices concur, except FISH, C. J., BECK, P. J. Judgment affirmed. All the absent on account of sickness. Justices concur.

(147 Ga. 555)

(147 Ga. 556) (No. 485.)

BERRYMAN v. BERRYMAN.
(Supreme Court of Georgia. Jan. 16, 1918.)

(Syllabus by the Court.)
APPEAL AND ERROR 267 (1) EXCEPTIONS
TO JUDGMENT-DISMISSAL.

Where, on a hearing at chambers by a judge of the superior court on a petition for temporary alimony, a judgment is rendered against the defendant, and the only assignment of error is based on the ground that "the court had a certificate from a physician that defendant's counsel was unable to attend the trial on account of physical illness, and that notwithstanding the information contained in said certificate the court ruled said case to trial," and there was no exception to the final order or judgment, the writ of error must be dismissed.

Error from Superior Court, Madison County; W. L. Hodges, Judge.

Petition for temporary alimony by B. M. Berryman against Young Berryman. From a judgment for temporary alimony, the defendant brings error. Writ of error dismissed.

Alex S. Johnson, of Royston, for plaintiff's in error.

GILBERT, J. Writ of error dismissed. HALEY v. COMMERCIAL NAT. BANK OF All the Justices concur, except FISH, C. J.,

MACON. (No. 448.)

(Supreme Court of Georgia. Jan. 16, 1918.)

absent.

(147 Ga. 523)

(Syllabus by the Court.)

EXCEPTIONS, BILL OF

7-ASSIGNMENT OF

DEAL v. MOSELY. (No. 44.) (Supreme Court of Georgia. Jan. 16, 1918.) (Syllabus by the Court.)

ERROR-SUFFICIENCY.

When the object of a receivership in an eq

uitable action had been accomplished, an issue 1. GIFTS 48-PAROL GIFT OF LAND-EvI. was raised as to the amount of fees to be paid

to the receiver and to the attorneys. The issue

DENCE-INTENT OF DONOR.

On the trial of an action for injunction and

was tried by the court without the intervention specific performance, instituted by a daughter

sent.

against her father, based upon an alleged parol ATKINSON, J. Judgment affirmed. All gift of land made to the daughter, accompanied the Justices concur, except FISH, C. J., abby possession and valuable improvements placed upon the land by the daughter and her husband on the strength of the gift, in which there was an issue under the pleadings as to whether the land was given to the daughter, evidence as to the amount of land owned by the father at the time of the alleged gift as to the number of children he had was admissible in connection with

(147 Ga. 574)

FOUNTAIN v. DORMINEY et al.
(No. 456.)

testimony tending to show that the father had (Supreme Court of Georgia. Jan. 18, 1918.) in contemplation a division of his property among his children at his death.

(Syllabus by the Court.)

2. GIFTS 48-PAROL GIFT OF LAND-EVI-1. CONTEMPT 63(1)—JUDGMENT-JURISDICTION-STATUTE.

DENCE.

There was no error in excluding testimony of the defendant, given while testifying as a witness in his own behalf, to the effect that after the time of the alleged gift, the plaintiff's husband had cut wood off of the land, and the defendant had continuously objected to his doing so; it appearing that the plaintiff was in possession of the land at the time. Porter v. Allen, 54 Ga. 623 (6, 7).

3. WITNESSES 406- IMPEACHMENT CONTRADICTORY TESTIMONY.

Evidence to the effect that a former witness, since deceased, left specified property, does not contradict testimony of the same witness delivered at a former hearing and read at the trial, or testimony of the plaintiff to the effect that "about all the money inherited from" the witness' father had been invested in making improvements on the land. Accordingly there was no error in rejecting a certified copy of the appraisement of the estate of the plaintiff's late husband, offered in evidence by the defendant for the purpose of impeaching the testimony of the plaintiff and her husband. 4. APPEAL AND ERROR

1056(2)-HARMLESS

302(1)-MOTION FOR

W. H. Fountain, as sheriff of Ben Hill county, sold certain land and received the purchase money. There were several claimants to the fund, and he was temporarily enjoined from paying the amount upon the fi. fas. under which the sale was made. His term of office expired: and subsequently, upon application of the purchaser, an order was granted in vacation, by consent of the creditors, directing the ex-sheriff to turn over the money, after deducting his fees, to the purchaser as custodian of the court, upon his executing a specified bond. The bond was duly executed, and upon demand the obligee refused to pay over the money, on the ground that the order of court directing payment to the custodian was void. Thereupon a proceeding was commenced against the obligee for attachA rule nisi ment as for a contempt of court. was issued by the judge in vacation, requiring the respondent to show cause at Cordele, in Crisp county, on June 9, 1917, why he should not be punished as for contempt. On the day set for a hearing an order was granted continuing the case until June 16, 1917, at Cordele. At the hearing so appointed the judge entered an order adjudging the respondent in contempt of court, and directed that he be confined in jail until the further order of court, unless he purged the contempt by paying over the money as directed. The respondent excepted on the ground, among others, that the judgment was contrary to law. Held:

ERROR EVIDENCE. When considered in connection with the testimony of the defendant and the testimony of the plaintiff on the subject of renting the property in dispute, evidence as to the rental value of the land was not of such materiality as to render it reversible error to refuse to allow a witness for the plaintiff, who had not testified risdiction in vacation to enter a judgment absoA judge of the superior court is without juas to the rental value of the property, to an- lute in a proceeding against a sheriff to punish swer the question, "What were those two places him for contempt of court for failing to pay over worth annually for rent?" 5. APPEAL AND ERROR der has been granted in term setting the case for money collected by him, where no appropriate orNEW TRIAL-GROUNDS. a hearing in vacation. Civ. Code 1910, §§ 4854, One ground of the motion for new trial com-5346; Tucker v. Hudson Ice, etc., Works, 142 plains of the admission of the report of the Ga. 83, 82 S. E. 496. The foregoing ruling is testimony of the plaintiff's husband, delivered applicable to the facts of this case, and the at an interlocutory hearing, but does not set judgment absolute rendered in vacation against forth the evidence either literally or in sub- the respondent was contrary to law. stance. The other remaining grounds relate to the admission and exclusion of testimony, with- 2. OTHER ASSIGNMENTS. out setting it out literally or in substance. As the judge was without jurisdiction to These grounds fall within the rule that grounds hear the case, it is unnecessary for this court to of a motion for new trial which are incomplete deal specifically with the several assignments and cannot be understood without resorting to of error based on rulings made at the trial.

an examination of the brief of evidence fail to present any question for consideration by this court. Smiley v. Smiley, 144 Ga. 516, 87 S. E. 668.

6. SUFFICIENCY OF EVIDENCE.

Error from Superior Court, Ben Hill County; D. A. R. Crum, Judge.

Attachment proceeding as for contempt of court by A. B. C. Dorminey and others

judging respondent in contempt, he brings

The evidence was sufficient to support the against W. H. Fountain. From an order adverdict. Error from Superior Court, Bulloch Coun- error. Reversed. ty; R. N. Hardeman, Judge.

Action by Ruth Mosely against G. W. Deal. Judgment for plaintiff, and defendant brings error. Affirmed.

Quincey & Rice, of Ocilla, and O. H. Elkins, of Fitzgerald, for plaintiff in error. McDonald & Bennett and Eldridge Cutts, all of Fitzgerald, for defendants in error.

B. T. Rawlings, of Sandersville, and H. B.
Strange, of Statesboro, for plaintiff in error.
Anderson & Jones, of Statesboro, and Hines
& Jordan, of Atlanta, for defendant in error. sent.

ATKINSON, J. Judgment reversed. All the Justices concur, except FISH, C. J., ab

(147 Ga. 525)
MELNICK et al. v. CITY OF ATLANTA.
(No. 63.)

(Supreme Court of Georgia. Jan. 16, 1918.)

(Syllabus by the Court.)

and, under the construction of class A as stated in the preceding note, the proposed amendment would not materially change the original petition as to the character of the business in which plaintiffs were engaged.

3. CONSTITUTIONAL LAW 230(4) — EqUAL PROTECTION OF THE LAWS-CLASSIFICATION.

1. CONSTITUTIONAL LAW 230(4), 287-LIThe proposed amendment alleged that the CENSES 7(1, 3), 16 (11)—JUNK DEALING city permitted licensees under classification C, DUE PROCESS OF LAW-EQUAL PROTECTION ing" junk of all kinds specified in classes A by themselves or agents, to engage in "gatherOF THE LAWS-"OTHER METALS"-"JUNK." The general tax ordinance of the city of and B without paying the license fee prescribed Atlanta for the fiscal year ending June 30, 1916, plaintiffs as licensees under class B to gather for those classifications, but would not permit contained three provisions for business licenses, the kinds of junk specified in class A, the effect as follows: A. "Junk gatherers, by wagon or otherwise, of plumbing, gas fixtures, automobile of which was to offend the equal protection fixtures, and other metals, each gatherer, $300.- clause of the Constitution. Held, that the busi00." B. "Junk gatherers by wagon or other-ness of a dealer in junk at a shop or in connecwise, bottles, rags, and paper, each wagon, $25.00." C. "Junk shop or dealers in old rope, brass, or rags, whether in connection with any other business or not, subject to ordinance reg ulating same business, * $50.00." Held, that the term "other metals," as employed in class A, construed in the light of the context, refers to metals generally, and consequently the business of gathering any metals that would fall within the definition of junk, whether or not they consisted of plumbing, gas fixtures, or automobile fixtures, is subject to that provision of the ordinance. The construction here given is in harmony with the principles applied in Latham v. Stewart, 140 Ga. 188, 78 S. E. 812, in which a different result was reached on account of difference in the ordinance.

(a) "Junk" is defined to be "worn out and discarded material in general that may be turned to some use; especially old rope, chain, iron, copper, parts of machinery and bottles gathered or bought up by tradesmen called junk dealers; hence rubbish of any kind; odds and ends." 24 Cyc. 79.

(b) Classification A partakes of the nature of a police regulation, and, considering the nature of the business, is reasonable. It is not discriminatory on account of anything expressed in classifications B and C. Being within the police power, classification A does not prima facie offend the due process or equal protection clause of the Constitution. State v. Cohen, 73 N. H. 543, 63 Atl. 928 (2); Gundling v. Chicago, 177 U. S. 183, 20 Sup. Ct. 633, 44 L. Ed. 725: Lieberman v. Van De Carr, 199 U. S. 552, 26 Sup. Ct. 144, 50 L. Ed. 305; Cutsinger v. Atlanta. 142 Ga. 555, 83 S. E. 263, L. R. A. 1915B, 1097, Ann. Cas. 1916C, 280; Freund on Police Power, § 39.

(c) The case differs from Morton v. Macon, 111 Ga. 162, 36 S. E. 627, 50 L. R. A. 485, and City of Waycross v. Georgia Investment Co., 146 Ga. 2, 90 S. E. 281, where the business was different, and the tax was upon the business as distinguished from a police regulation.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Junk.] 2. LICENSES_~~16(11) — JUNK GATHERING LICENSE TAX-CLASSIFICATION.

In an equitable suit instituted by licensees under classification B, to enjoin the city from enforcing the provisions of classification A against them, the original petition alleged that plaintiffs were engaged in gathering "plumbing, gas fixtures, automobile fixtures, other metals, bottles, rags, and paper." A proposed amendment alleged that the business was erroneously described, and that plaintiffs were not engaged in gathering junk consisting of plumbing, automobile fixtures, or gas fixtures, but only in old metals of other kinds that might be classed as junk, and junk consisting of bottles, rags, and paper. Held, that the business described in the original petition was subject to the license provided for in classifications A and B,

business of gathering junk, and affords a reasontion with some other business differs from the able basis for classification. As the city did not arbitrarily deny to the plaintiffs the right to obtain licenses under classification C, the described manner of administering the ordinance was not discriminatory, and did not deprive the plaintiffs of the equal protection of the laws guaranteed by the state and federal Constitutions. Atkinson, J., dissents from this ruling, license "gathering" junk at all, and conseon the ground that class C does not purport to quently makes no classification on that subject based on difference in the businesses of "gathering" junk and "dealing" in junk at a shop or in connection with some other business. Licensees, neither under class B nor class C, could "gather" under class A, but without class A their natural rights to do so would be equal, and prevention of the city from discriminating by administering class A in a manner to enforce its provisions against licensees under class B, and not against class C, is within the protection of the Constitution. Yick Woo v. Hopkins, 118 U. S. 356, 373, 374, 6 Sup. Ct. 1064, 30 L. Ed. 220; Barbier v. Connolly, 113 U. S. 28, 5 Sup. Ct. 357, 28 L. Ed. 923.

4. PLEADING 248(16)-AMENDMENT-NEW CAUSE OF ACTION.

While the case was pending the ordinance expired by its own limitation, and another similar in all respects was ordained for the ensuing. year. An amendment to the original petition was proposed, attacking the second ordinance upon the same grounds and seeking the same relief as prayed with reference to the first. Held, that this amendment was properly rejected on the ground that it sought to add a new cause of action. City of Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318; Eagle & Phenix Mills v. Muscogee Mfg. Co., 129 Ga. 712, 59 S. E. 804. 5. MUNICIPAL CORPORATIONS ~122(3)—ORDINANCE-MOTIVE OF ALDERMEN.

On the interlocutory hearing, testimony of certain of the aldermen as to the reasons and their motives for voting for the ordinance was properly rejected. McQuillin on Municipal Corporations, 88 129, 131; Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145. 6. REFUSAL OF INTERLOCUTORY INJUNCTION. There was no error in refusing an interlocu tory injunction.

Atkinson, J., dissenting. Beck, P. J., dissent ing from ruling in first headnote.

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

Action for injunction by I. Melnick and others against the City of Atlanta. Interlocutory injunction refused, and plaintiffs bring error. Affirmed.

Thos. B. Felder, Owens Johnson, and L. J Grossman, all of Atlanta, for plaintiffs in er

ror. J. L. Mayson and S. D. Hewlett, both | beneficiary of an estate in the property covered of Atlanta, for defendant in error.

FARKAS et al. v. SMITH, Ordinary, et al. person against whom the tax is to be levied,

any order of the court, and to make good and sufficient conveyance in fee simple to the purchaser, and to reinvest the proceeds of the sale as they may think proper and wise for the benefit of the trust, and upon the uses herein declared. I further hereby confer upon the trustees above named the authority and power to borrow money for the use of said estate in any instance that they may think it necessary and proper, and to secure the same by lien, mortgage, security deed of trust, or other forms of security, to or upon any part of my estate. The authority above conferred is limited and restricted to the trustees named in this instrument, or those appointed by virtue of the authority conferred by this instrument."

ing bond, from making returns to the ordinary, and from having any inventory or appraisement.

In pursuance of the provisions of the inheritance tax act (Acts 1913, p. 91), an appraisement of the estate was made, and a tax amounting to $3,222.35 was levied. To prevent its enforcement against the estate, the executors and trustees, as well as the legatees, named in the will, filed a petition for injunc tion against the officers charged by law with the collection of such tax. The state of Geor gia as a party at interest appeared by counsel and filed a general demurrer. It filed also an answer to the petition, admitting the facts as therein stated, but denying the correctness of the conclusion of law drawn from those facts by counsel for the estate. The judge decided adversely to the petitioners on the issue of law thus made, and denied the injunction. The plaintiffs excepted.

(4) "My trustees are authorized to continue any business that I may be engaged in at the time of my death, or they may embark or engage in any kind of business, trade, or enterprise that they may think proper and best for the estate. The said trustees may discontinue, or cease conducting, or sell, any of the businesses or enterprises that I may be engaged in at the time of my death, or any business, trades, or enterprises that they may have undertaken after my death. It is my desire and wish that my horse and mule business, and other things sold in connection therewith, when the trustees shall see fit to sell the same, shall not be sold to any person, firm, or corporation except my sons, or any number of them. And my trustees are hereby limited and restricted in their power of disposition of said business to one, all, or any number of my sons, Mack, Leonard, and Paul, named as trustees in this will, shall not be prohibited from becoming purchaser by reason of their trusteeship. I intend by this in-tended that the act in question, especially in strument to confer the right to purchase upon said trustees, notwithstanding any law to the contrary, which may be avoided by specific request or authority."

(5) "The trustees above named shall pay all necessary and proper expenses for the preservation, upkeep, improvement, and management of the estate, out of the income of said estate; and if said income shall be insufficient, then the trustees may exercise their right to borrow on the corpus of said estate."

The testator then provides for the disposition of the income arising from his estate, and against the possibility of death of any of his children without issue.

Items 16 and 17 are as follows:

(16) "The trust created by this instrument shall continue during the life of Freddie Farkas Harby, Mack Farkas, Gertrude Farkas Meyer, Sigo Farkas, Leonard Farkas, Paul Farkas, Edwin Farkas, and George Farkas, and until the youngest child of the above-named parties shall have attained the age of twenty-one (21) years."

(17) "Upon attainment of majority of my youngest grandchild, that is, the youngest child of the above-named parties (Freddie Farkas, Mack Farkas, Gertrude Farkas Meyer, Sigo Farkas, Leonard Farkas, Paul Farkas, Edwin Farkas, and George Farkas), the trust herein created shall terminate, and the estate shall be divided among the direct descendants of the testator, per stirpes, by the then existing trustees, according to value. Assessments are to be made by three (3) disinterested parties, who are to be appointed by the presiding judge of the superior court of Dougherty county, at the time of distribution, and upon the petition of the trustees, after proper notice has been given to all parties interested."

Item 19 names as executors the same persons designated as devisees in trust by item 2, expressly conferring on them power to administer the estate, excusing them from giv

L. Farkas and Pope & Bennet, all of Albany, for plaintiffs in error. John C. Hart, of Atlanta, Clifford Walker, Atty. Gen., and M. C. Bennet, of Atlanta, for defendants in

error.

ATKINSON, J. [1] 1. It is mainly con

view of section 10, is a provision for taxing property within the meaning of that part of the Constitution limiting the power of levying an ad valorem tax, and not merely an excise on the transfer of property. Whether a property tax is imposed is a material question which calls for a construction of the act.

It is to be borne in mind that there is a distinction between taxing property and taxing the transmission of title to property upon the taxable subjects, the former being a tax on death of an owner; they constitute separate

property, and the latter a tax or license on a privilege arising under statute. A tax may be constitutionally imposed on both. This is ruled in the case of United States v. Perkins, 163 U. S. 625, 16 Sup. Ct. 1073, 41 L. Ed. 287, where in the course of the opinion it is said by Mr. Justice Brown:

"Though the general consent of the most enlightened nations has, from the earliest historical period, recognized a natural right in children to inherit the property of their parents, we know of no legal principle to prevent the Legislature from taking away or limiting the right of testamentary disposition or imposing such conditions upon its exercise as it may deem conducive to public good. In this view, the socalled inheritance tax of the state of New York is in reality a limitation upon the power of a testator to bequeath his property to whom he pleases; a declaration that, in the exercise of that power, he shall contribute a certain percentage to the public use; in other words, that the right to dispose of his property by will shall remain, but subject to a condition that the state has a right to impose. Certainly, if it be true that the right of testamentary disposition is purely statutory, the state has a right to require a contribution to the public treasury before the bequest shall take effect. Thus the tax is not upon the property, in the ordinary sense of the term, but upon the right to dispose of it, and