cases arriving during the term were docketed to the next term of the court. When the court was reorganized in 1897 the right of the court to close the docket was recognized in the rules then adopted; the language of the rule being: "Criminal cases filed after the docket of the term has been closed will be heard at the next term in advance of all other business, and in the order of their filing." Rule 22, 97 Ga. xii, 36 S. E. v. This rule was amended in February, 1900, and the following appears in the amended rule: "Unless otherwise specially ordered, the criminal docket for each October term will stand closed on the last Saturday but one before the third Monday in the month of February following the beginning of such term. The criminal docket of each March term will be closed by special order."

Under the recent rules of the Supreme Court, adopted January 14, 1907, the authority of the court to close the criminal docket by special order is distinctly recognized. Rule 27, 126 Ga. xii. From necessity the court must have the authority to close the docket, and thus fix a limit to the business of the term. Otherwise it would be impracticable, if not impossible, to dispose of the business of the court according to the true intent and spirit of the Constitution and the laws. When the time for adjournment of the term arrives, the court loses jurisdiction of all cases heard at the preceding term, and affirmances by operation of law result. If the power exists, then the time when the docket shall be closed must necessarily be left to the discretion of the court. According to the practice instituted by Mr. Chief Justice Warner and his associates, this time was fixed when the last case on the regular call of the docket had been argued. When criminal cases were required to be given speedy hearing, the time of closing the docket as to those cases was fixed in the manner above referred to; that is, by an automatic rule fixing a certain time during one term, and by a special order fixing a given date during another term-it being practicable in the one instance, on account of the terms overlap. ping, to fix the time automatically, and not being practicable at the March term, which has not, and should never, overlap the October term, to fix the closing of the docket in any other way than by special order designating a particular day for this purpose. On June 22, 1906, an order was passed closing both the civil and criminal dockets of the March term, 1906, on July 7th. This appears to be the first time that the civil docket was ever closed by special order; but it has been, as has been shown, the practice to close the criminal docket in this manner for a long time prior thereto. The fast writs that are placed upon the civil docket come to this court in the same way as those which are placed upon the criminal docket. A fast writ of error is a fast writ of error, without reference to the character of the case which

58 S.E.-11

the record discloses. If this court has no power to close the civil docket it is also without authority to close the criminal docket. The time in which either docket is to be closed is a matter within the discretion of the court, if it can be shown that the power to close under any circumstances exists.

While the manner in which the docket was closed has varied, there is nothing to indicate, either in the practice of the court or the utterances of its members, which brings up one single doubt as to the authority of the court to provide what shall be the business of a given term as to the cases brought under the system inaugurated under the act of 1870. For nearly 40 years the court has exercised this power, without dissent from any one who has been a member of the court during that long period of its history. During this period the authority of the court has, up to the present time, been recognized by the acquiescence of the bar in the practice which it has followed. For the first time is the authority of the court in reference to the matter brought in question. This court, and all other courts, will recognize the practice of co-ordinate departments of government, and allow the construction placed by the officers in such department upon statutes, and even the Constitution, to be operative, where there is room for construction. The long-continued practice of the executive or the legislative department will be treated as persuasive authority by the courts, and has, in numerous cases, been followed, although the individuals composing the court at the time would have doubt as to the true construction if the question were left unaffected by the construction placed upon it by another department of government. If this deference is shown by the courts to the practice of other departments of government, how much more are we authorized to show deference to the practice of our own department, unchallenged by any one who ever was a member of the department, even though there has been no express utterance that such practice is authorized by the Constitution and by the laws. There was, under the Constitution of 1868, and possibly under the present Constitution, the gravest doubt as to whether the Governor has any authority to approve a bill after the adjournment of the General Assembly. This doubt was voiced by Judge Warner in Solomon v. Commissioners, 41 Ga. 157; but the right of the Governor was recognized solely for the reason that the past history of the state showed the practice of the Governor to take five days after the adjournment of the General Assembly for the revision of bills, and this practice of the executive department of the government was followed by the courts, notwithstanding the doubt as to the true interpretation of the Constitution. Even if we should allow ourselves to settle into a condition of doubt as to the right of the court to close its docket for the term, we would not only be authorized, but we would be almost

constrained, to follow in the footsteps of our predecessors and continue the practice which was in existence so long, and which has been sanctified by the reputation and character of our predecessors who inaugurated as well as those who have followed it without hesitation or misgiving.

Let us for a moment consider what would be the consequences if this power did not exist and were not exercised. The court would be compelled to postpone its final adjournment until all of the cases of the preceding term have been decided. Since the docket was closed, on June 12th, 14 cases brought to this court by fast writs of error have reached the clerk's office, including the one now under consideration. If the docket is reopened, and this case placed thereon, the other cases must be given the same direction. Other cases are being almost daily received. There are now to be disposed of, by this court, more than 60 cases which the Constitution imperatively declares shall be decided during the present term; and then there are more than 170 cases of the present term, many of them brought to this term on fast writs of error, which are entitled to consideration at the earliest possible moment. If the power to close the docket does not exist, not only the cases now in the clerk's office must be heard, but all others that reach there between now and the first Monday in October. It is impracticable to dispose of the business of the court under the constitutional requirement, unless the business of the term can be fixed in some way which is reasonable and just, and proper to the litigants whose cases are before the court and the judges who have imposed upon them, under their oaths, the duty of deciding them. If the docket is not closed, on the first and third Mondays in July, August, and September the court must, under the rules, hear all fast writs of error as they are received from day to day by the clerk. It is not reasonable, it is not just, it is not practicable, for the court to transact its business unless it has the power which it has exercised. If there is no authority in the court to close the docket for the entering of cases, then it is not only impracticable, but it is impossible, to carry into effect the provisions of the act of 1877, as contained in Civ. Code 1895, § 5571. This section relates to delayed cases, and it is provided that such cases shall be heard "after all of the cases on the entire docket for the term have been heard." As long as cases can be entered on the docket for the term, these delayed cases are not subject to call for argument; and if the docket must remain open until the day of the final adjournment there will be no time for the hearing of the delayed cases. If the docket cannot be closed prior to the date of final adjournment, any case entered thereon before final adjournment is a case on the docket

for that term, and the delayed cases must await the hearing of all such cases. Not only must the delayed cases await the last day of the term, but the last moment of the last day.

This act indicates, by the strongest implication, that the Legislature contemplated that the court should exercise the power which it has always exercised from the date of its origin, and fix reasonable rules and regulations as to the docket of the term and the business to be disposed of thereon. The law authorizes it to exercise this power. As authority for this statement we simply cite the name of every Chief Justice and every Associate of this court who has presided here from 1870 down to the present time; and, as highly persuasive authority, we call attention to the unbroken acquiescence of the bar during that long period of time. When in 1906 the General Assembly proposed an amendment to the Constitution creating the Court of Appeals, it inserted in this amendment this language: "All writs of error in the Court of Appeals, when received by its clerk during the term of the court and before the docket of the term is, by order of the court, closed, shall be entered thereon, and when received at any other time shall be entered on the docket of the next term, and they shall stand for hearing at the term for which they are so entered, under such rules as the court may prescribe, until otherwise provided by law." Acts 1906, p. 26; 126 Ga. xviii, xix. The language of this amendment is in entire consonance with the long-continued practice of the Supreme Court. It is reasonable to presume that the General Assembly, in using the language above quoted in the amendment to the Constitution, intended to approve the practice of the Supreme Court in reference to closing its docket, and make it a part of the law governing the Court of Appeals. A casual reading of the amendment will indicate that the purpose of the General Assembly was to have the Court of Appeals, as nearly as may be, a court of last resort, for cases within its jurisdiction, of the same character as the Supreme Court. It not only makes the provisions of the Constitution and the statute relating to the Supreme Court applicable to that court, but in this instance expressly conferred upon that court the power which the General Assembly knew had always been exercised by the Supreme Court practically during its entire history. We recognize the importance of the case involved in this ruling. We also recognize the importance of all the other cases. We do not know what is in these other records. But every case which reaches this court is an important case to the litigant, and this case will not be the first by which an injury may have resulted from the fact that the docket has been closed and a delay in the hearing brought about. While we regret that the administration of

the law is such that great injustice sometimes results from following established procedure, it is far better that established procedure should exist, and the individual sustain loss as a consequence thereof, than that chaos should prevail in the administration of the law and many suffer in consequence thereof. The motion to docket the case at the present term must be overruled. All the Justices concur.

GRAND LODGE KNIGHTS OF PYTHIAS OF GEORGIA v. CRESWELL et al. (Supreme Court of Georgia. July 19, 1907.) 1. PARTIES-AMENDMENT-OPERATION AND

EFFECT.

When an equitable petition was filed by certain members and officers of a fraternal order not incorporated in this state, on behalf of themselves and other members, and on demurrer raising, among other points, the point of want of proper parties, and that it appeared that the Supreme Lodge of the order was a corporation of the District of Columbia and was not made a party, an amendment was presented for the purpose of making it a party, adding other allegations, and by order of the court the amendment was allowed, the Supreme Lodge was made a party, and the case was directed to proceed on behalf of both it and the original plaintiffs, to which order no exception was taken, this operated as an adjudication that there was an action pending with sufficient parties to authorize amendment, and that the party added was a proper party.

2. INJUNCTIONS-PRELIMINARY

INJUNCTION

GROUNDS-CORPORATIONS-INFRINGEMENT OF

NAME.

Inasmuch as some of the plaintiffs are members and officers of an unincorporated fraternal association of this state, and proceeding by equitable petition filed by themselves and others of the class, and another plaintiff is the Supreme Lodge of the organization incorporated in the District of Columbia, and the defendants have been operating and are seeking to be incorporated in this state under a name which is claimed to be an infringement of the name of the plaintiff's association, and the question is involved whether and how far the plaintiff, which is a foreign corporation, might be affected by the state's granting a charter to the defendants as a domestic corporation in the name and for the purpose asked, and also whether there is a fraudulent purpose or design to so infringe, under all the evidence the presiding judge should have enjoined the defendants from obtaining the charter applied for, so as to preserve the status in respect thereto until, on final jury trial, all of the questions of law and fact can be fully adjudicated.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 304-306.]

3. SAME.

Having determined that the court erred in refusing to grant an injunction as to the charter applied for, we allow the ruling of the chancellor denying the injunction in other matters to stand until the final trial or further order of court, leaving open all the other questions for future determination. See Foster v. Blood Balm Co., 3 S. E. 284, 77 Ga. 216.

4. SAME.

The rulings here made do not conclude any questions of law or fact on the final trial of the case, except as ruled above, and all are left open to be then determined.

(Syllabus by the Court.)

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

Action between Grand Lodge Knights of Pythias of Georgia and C. C. Creswell and others. From the judgment, Grand Lodge Knights of Pythias of Georgia brings error. Affirmed, with direction.

John P. Ross and H. Douglas, for plaintiff in error. Bell, Pettigrew & Bell, for defendants in error.

ROAN, J. Judgment affirmed, with direction.

FISH, C. J., and EVANS and ATKINSON, JJ., being disqualified, Judges GOBER, of the Blue Ridge circuit, ROAN, of the Stone Mountain circuit, and EDWARDS, of the Tallapoosa circuit, were designated to preside in their stead.

FENDER v. VALDOSTA LUMBER CO. (Supreme Court of Georgia. July 10, 1907.) NEW TRIAL-GROUNDS.

The only grounds of the motion for a new trial being that the verdict was contrary to law and the evidence, and the evidence being sufficient to support the verdict, there was no error in overruling the motion.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, New Trial, § 142.]

(Syllabus by the Court.)

Error from Superior Court, Lowndes County; R. G. Mitchell, Judge.

Action between J. F. Fender and the Valdosta Lumber Company. From an order de nying a new trial, Fender brings error. Affirmed.

J. A. Whitaker, for plaintiff in error. Woodward & Smith and O. M. Smith, for defendant in error.

FISH, C. J. Judgment affirmed. All the Justices concur.

BROWN v. CENTRAL OF GEORGIA RY.

CO.

(Supreme Court of Georgia. July 11, 1907.) CARRIERS-EXPULSION OF PASSENGER-EVI

DENCE.

Where a passenger boarded a railroad train at Fort Valley for the purpose of going to Smithville, and tendered in payment of his transportation a mileage book, which, upon examination, was found not to contain sufficient mileage for the journey, but only suffi-cient to carry the passenger to Marshallville,. and the conductor informed the passenger that he intended to stop at Marshallville, that the ticket office would be open, and that the passenger could buy a ticket from the agent at that point, and on arriving at Marshallville the passenger left the train immediately for the purpose of purchasing a ticket, and found the ticket office open, but the agent, engaged in other business than selling tickets, did not wait on plaintiff immediately, and where it appeared

that there was sufficient time for the ticket to be purchased, if the agent had attended to the matter, and plaintiff boarded the train without having obtained a ticket, for the reason that the train was about to depart, and these facts were known to the conductor, and the plaintiff tendered the conductor three cents per mile from Marshallville to Smithville, the conductor had no legal right to put him off the train because he refused to pay four cents per mile. [Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 1433.]

(Syllabus by the Court.)

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Action by W. O. Brown against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.

Brown sued the railway company, alleging that he boarded the train of the defendant at Fort Valley for the purpose of going to Smithville. When the conductor approached he handed him a mileage book, and was informed by the conductor that the mileage in the book was not sufficient to take him to Smithville. When the plaintiff boarded the train he thought he had sufficient mileage to carry him to Smithville. When the conductor informed him to the contrary, he offered to pay him in cash whatever amount was necessary to continue his transportation to Smithville, when the conductor replied: "I have got to stop at Marshallville, and the office is open, and you can buy a ticket from the agent." On arriving at Marshallville plaintiff left the train immediately for the purpose of purchasing a ticket, but the agent was engaged with his express business, and could not wait on plaintiff, and the conductor did not stop a sufficient length of time for him to secure the ticket, but waved the train ahead just as the agent was prepared to issue the ticket. Plaintiff then boarded the train, and the conductor demanded four cents per mile from Marshallville to Smithville. Plaintiff refused to pay this amount, but offered to pay fare at the rate of three cents per mile, plus 15 cents, which offer was declined. The conductor then stopped the train at a flag station, known as "Winchester," about two miles from Marshallville, and forcibly ejected plaintiff from the train. It is alleged that according to the rules and regulations of the company the plaintiff was entitled to ride from Marshallville to Smithville upon payment to the conductor of three cents per mile for the distance in excess of the mileage contained in the book. It is also alleged that the conductor had no right to demand four cents per mile from Marshallville to Smithville, as he knew that the plaintiff had exercised every effort to secure a ticket at Marshallville, and therefore he was entitled to ride on a cash fare of three cents per mile. The petition then alleges in detail the damages claimed to have been sustained on account of being ejected at night in the cold, and being required to ride

in a private conveyance two miles to Marshallville, etc. At the conclusion of the plaintiff's testimony the judge granted a nonsuit, and the plaintiff excepted.

Twiggs & Oliver and Jas. M. Du Pree, for plaintiff in error. Lawton & Cunningham and W. D. Kiddoo, for defendant in

error.

COBB, P. J. (after stating the facts). The plaintiff was certainly entitled to use his mileage book for the purpose of transportation to the last station to which the train was scheduled or accustomed to stop, embraced within the number of miles remaining in the book. According to the averments in the petition this station was Marshallville. He intended to go to Smithville, a station much further on, and thought he had mileage sufficient for that purpose. He was mistaken. But, even if he had not labored under this misapprehension, he could not have secured a ticket at Fort Valley from Marshallville to Smithville in order to complete his journey. The plaintiff was rightfully on the train, therefore, from Fort Valley to Marshallville; and the question is whether he used reasonable diligence to secure a ticket after Marshallville was reached. The conductor was under no obligation to delay the train at Marshallville for the purpose of allowing him to secure a ticket. Neither was the ticket agent at Marshallville under any obligation to keep the ticket office open for the sale of tickets while the train was standing at the station, if Marshallville was a point at which the agent was authorized to close the ticket office during such time. But whether Marshallville was a point at which the agent was authorized to close his office is immaterial; for it distinctly appears that the ticket office was open, and the agent refused to sell the ticket immediately upon demand, for the reason that he was engaged in business connected with the express company. The agent did not place his refusal to sell the ticket upon the ground that the time for selling tickets for that train had expired, but expressed a willingness to sell the ticket, and delayed the sale simply for the reason that he was temporarily engaged with other matters. If the time that the train was at the station was sufficient for the plaintiff to have purchased a ticket if the agent had been at his place as ticket agent, the failure of the plaintiff to secure a ticket from Marshallville to Smithville was not his fault, but was the fault of the company. If, when the train reached Marshallville, the ticket office was closed, and properly closed, the conductor would have had the right, when the plaintiff re-entered the train, to demand of him four cents per mile; but if the ticket office was open, and the failure to procure the ticket was due to the refusal of the agent to sell a ticket because engaged in other business,

especially when such other business was not connected with the business of the railroad company, the conductor, upon being informed of the circumstances which caused the failure to procure the ticket, had no authority to demand more than three cents per mile. A prospective passenger must use due diligence, according to all the circumstances of the case, to procure a ticket before boarding a train, or rest content to pay the additional charge imposed upon those who ride without tickets; but, when such diligence has been used, the right of the conductor to make the additional charge does not exist. The plaintiff had the right to ride from Fort Valley to Smithville upon a ticket purchased from Fort Valley at three cents per mile for the entire distance. He had a right to ride from Fort Valley to Smithville upon two tickets, one purchased at Fort Valley to carry him to Marshallville, and the other at Marshallville to carry him to Smithville. If he boarded the train at Fort Valley with a ticket there purchased from Fort Valley to Marshallville, he took the chances of being able to purchase a ticket from Marshallville to Smithville while the train was standing at the station; and if, through no fault of the railroad company, he failed to secure a ticket at Marshallville, he must rest content to pay the additional charge. When he boarded the train at Fort Valley with his mileage book, he was in the same position as if he had bought a ticket from Fort Valley to Marshallville. His journey was really divided into two parts. His right to transportation from Fort Valley to Marshallville was complete and undenied. His right to transportation from Marshallville to Smithville at the ticket rate depended upon whether the ticket office was open at Marshallville, and he exercised due diligence in endeavoring to buy a ticket, and failed from no want of diligence on his part.

This case is very similar to the case of Georgia Railroad Co. v. Murden, 83 Ga. 753, 86 Ga. 364. In that case the plaintiff boarded the train at Robinson, a flag station, to go to Augusta, and the conductor demanded four cents per mile for the entire distance, and there was a controversy between the plaintiff and the conductor as to whether a passenger who boarded a train at a flag station could be charged more than three cents per mile. The conductor finally told the plaintiff that if he would pay him four cents per mile to Crawfordville, and there leave the train and board it again, he could ride the remainder of the distance for three cents per mile. It seems that there was a rule of the company which authorized a conductor to accept a cash fare of three cents per mile on night trains when an office was closed. The plaintiff left the train at Crawfordville and attempted to purchase a ticket, but the office was closed. When he reentered the train the conductor demanded four cents per mile notwithstanding the fact

that the office was closed, and upon the refusal of the plaintiff to pay this amount he was ejected from the train. The only difference between that case and this is that in that case the office was closed and no tickets were being sold, while in the present case the office was open, but the agent refused to sell the ticket until he had transacted other business. So far as the diligence of the passenger was concerned, it was the same in each case. Each did all that reasonable diligence required. The passenger in the first instance went to the ticket office and found it closed, and the passenger in this case went to the ticket office and found it open, but no one there to sell the ticket. This case is, in principle, controlled by the ruling in the Murden Case above cited. The court erred in granting a nonsuit.

Judgment reversed. All the Justices con

cur.

HESTER v. GAIRDNER.

(Supreme Court of Georgia. June 15, 1907.) 1. MORTGAGES-DEBTS SECURED-FUTURE AD

VANCES.

The demurrer was properly overruled. 2. SAME-PAROL EVIDENCE.

If a deed is made to secure a particular debt. it cannot be extended by a subsequent parol agreement so as to secure other debts. But where a deed in the form of a warranty deed was given to secure an indebtedness, and no bond to reconvey was made, and there was nothing in the written contract to fix the amount of indebtedness secured, but the deed expressed a certain amount as a consideration thereof, in a suit by the grantee against the grantor or his administrator, seeking a general judgment and also to establish a lien on the property, it was competent to show by parol evidence that the deed was given to secure an indebtedness already existing to the amount expressed as a consideration, and also to secure future advances to be made.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 35, Mortgages, §§ 237-245, 247.]

3. EVIDENCE-PAROL EVIDENCE-CONTRADICTION OF ASSIGNMENT.

Where a note was transferred by written assignment from the payee to one person, it was not competent to ask him, the assignee, to state in parol whose note it was, so as to prove title thereto in another.

4. TRIAL-ISSUES OF FACT.

That the plaintiff amends his petition, so as to change certain allegations, does not raise an issue with himself which must be submitted to a jury.