upon the transaction if the depositor knew of the insolvency, or had reason to suspect it, at the time that he received payment of his check, when such payment was made while the bank was still in operation and the payment made in the usual course of business. It is a well-known fact that the suspicion that a bank is insolvent causes all depositors who are acquainted with the facts leading to the suspicion to rush at once and withdraw their deposits. A run on a bank is always produced by those who think they have reason to suspect that the bank is in a failing condition; and we are not prepared to hold if a bank is still in operation, open during the usual hours of business, paying its checks in the order in which they are presented, according to the custom of bankers, that a depositor who merely had reason to suspect the solvency of the bank, this being the motive for his drawing a check, would be required to repay to the bank the amount so withdrawn, less what would be his pro rata share in the assets of the bank on the day that the amount was withdrawn, in the event that the bank was afterwards forced to liquidation, and was, in fact, insolvent. Neither are we prepared to hold that one who actually knows that a bank is insolvent, but does nothing except to draw his check and present it and receive payment over the counter in the usual course of business, would be required to refund the amount so withdrawn, less his pro rata share, upon a final winding up of the affairs of the bank. As we understand this record a decision of these questions is not necessary. But, when a depositor with notice, or knowledge, or reason to suspect that a bank is insolvent, by collusion with the officers of a bank, receives payment of his check not in the usual course of business, and under such circumstances that payment to him gives him a preference over the other creditors, the depositor is guilty of a fraud upon the other creditors, and will be required to refund all of the amount so withdrawn by him, except what would be his proportion of the assets upon the winding up of the affairs of the bank. And especially would this be true in a case where the doors of a bank were closed and other depositors were not being paid and the depositor receiving his money was singled out as the sole depositor, or one of a select few, who were being paid, when the depositors, as a class, were not being paid in the order in which their checks were presented. It has been held that if a payment was made not in the ordinary course of business, when the bank was actually, though not avowedly, insolvent, the payee cannot hold the amount paid to him, though he was ignorant of the bank's condition. 2 Morse on Banks (4th Ed.) 625. Payment made by an insolvent bank, or made in contemplation of insolvency, with the intent to give a preference to a particular creditor, is void, irrespective of

whether the insolvency was open and notorious, or whether the payee knew of the insolvency or motive of the bank in making the payment. Boone on Banks, § 301. Under our statutes, however, it would seem that if the depositor, although paid not in the usual course of business, was ignorant of the insolvency and of the intent of the bank to prefer him, he would be protected, and not required to refund. However, it would seem, under some circumstances, that payment out of the usual course of business would be a circumstance to be given great weight in determining whether there was notice, as a payment made with a view of giving a preference to a particular creditor is rarely, if ever, made in the usual course of business. See, in this connection, Clarke v. Ingram, 107 Ga. 565, 33 S. E. 802.

3. There was no evidence whatever authorizing the instruction of the judge on the subject of special deposits. The instruction of the judge, that if the defendant placed his money on deposit, and such action was induced by the officers of the bank, and if the insolvency of the bank was unknown to him, he would have a right to withdraw the money when he learned of the insolvency, was also unauthorized by the evidence; there being no evidence whatever that there was any inducement held out to him to make the deposit which he himself claims was a mere general deposit. The errors thus committed are of such grave nature, under the facts of the case, as to require a reversal of the judgment. The assignment made by the president and cashier of the bank, without the authority of the board of directors, was admissible simply as a circumstance showing the insolvency of the bank; it being, in effect, an admission of both the president and the cashier that the bank was insolvent on the day of the transaction in question, but the rejection of this evidence probably would not have been alone sufficient reason for reversing the judgment.

Judgment reversed. All the Justices con

cur.

RAGAN v. STANDARD SCALE CO. (Supreme Court of Georgia. June 15, 1907.) SUBROGATION-PURCHASERS OF INCUMBERED

PROPERTY.

Where one purchases a certain piece of property against which there are two recorded mortgages, and pays off the senior mortgage out of the purchase money, and it is canceled, equity will not, in the absence of an agreement between the parties to that effect, subrogate him to the rights of the senior mortgagee, as against the other incumbrancer, whose lien was subject to the senior mortgage, but prior to the purchase.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Subrogation, § 38.]

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by the Standard Scale Company against R. J. Ragan. Judgment for plaintiff, and defendant brings error. Reversed.

The Standard Scale Company filed an equitable petition against Ragan, and alleged the following facts: On May 26, 1902, one Corley executed and delivered to the Exchange Bank of Rome certain promissory notes for the principal sum of $240, and secured the notes by a mortgage on one "De Loach paragon" planer, and the mortgage was recorded on May 27, 1902. Subsequently Corley executed to Ragan a mortgage covering the same property, which was recorded on October 8, 1902, and "some time during the month of November, 1902, petitioner bought said property from said Corley for the sum of $200, and out of said purchase price it [plaintiff] paid the Exchange Bank of Rome the sum of $160; said amount being the balance due said bank upon said note and mortgage held by it. Upon receipt of said sum, said bank canceled its said mortgage, and surrendered the same to Corley." Ragan obtained a judgment in the city court against Corley on Corley's note and mortgage to him, and the execution was levied on the property described in the mortgage; and to this levy the Standard Scale Company interposed a claim. Corley is insolvent and has left the state. It was prayed "that said Ragan be enjoined from proceeding further with said case in the city court until this cause can be heard and disposed of; that petitioner be subrogated to the rights of said bank as against said property; that said Ragan be required to pay petitioner the sum of $160, with 8 per cent. interest thereon from November 6, 1902; and that upon failure to pay said amount, with interest, said property be found not subject to the mortgage fi. fa. held by said Ragan." The case was submitted to the presiding judge upon an agreed statement of facts, which accorded with the foregoing statement, and the court rendered judgment as follows: "That the property levied upon and claimed in said cause be, and the same is hereby, found not subject to the lien of plaintiff's fi. fa. unless plaintiff in fi. fa. (Ragan) pay over to claimant (Standard Scale Company) within thirty days from the date hereof the sum of $160, with 8 per cent. interest thereon from November 6, 1902." Ragan excepted.

*

*

C. E. Davis and J. W. & G. E. Maddox, for plaintiff in error. Dean & Dean, for defendant in error.

BECK, J. (after stating the facts). 1. The doctrine of subrogation was ably discussed by Justice Cobb in the case of Wilkins v. Gibson, 113 Ga. 31, 38 S. E. 374, 84 Am. St. Rep. 204, where the rule was announced (page 47 of 113 Ga., and page 381 of 38 S. E.) that "subrogation will arise only in those

cases where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would be bound to pay, or where he has some interest to protect, or where he advanced the money under an agreement, expressed or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor." The case of Simpson v. Ennis, 114 Ga. 202, 39 S. E. 853, which is relied upon by the defendant in error to support the ruling of the court below, is not in point in the case at bar. In that case Simpson purchased certain lands from the heirs of a deceased person. At the time of the purchase it was represented to Simpson by the heirs and their attorney that there were no other debts against the estate, except one due the Georgia Loan & Trust Company and some state and county taxes, which it was agreed that the purchaser should pay out of the purchase money, and which he did so pay. There is nothing in the record to show that the purchaser had either actual or constructive notice of any other debts due by the decedent. Subsequently to this conveyance the defendant qualified as administrator of the estate of said deceased, and brought an action of ejectment against the grantees of Simpson to recover, as the property of the decedent, the lands thus sold in order to subject them to judgments which had been obtained against him as administrator. Simpson filed an equitable petition to enjoin the administrator from prosecuting the ejectment suits until he should have reimbursed the petitioner for the amounts paid by him in extinguishing the debt to the Georgia Loan & Trust Company; and this court very properly held that the plaintiff was subrogated to the rights of the creditor whose debts he had extinguished as against the plaintiff in the ejectment suits. In the present case, however, tue plaintiff purchased a piece of property against which there were two recorded mortgages. He paid off the senior mortgage, and "the bank [the holder thereof] canceled its said mortgage and surrendered the same to Corley," the plaintiff's vendor; and the plaintiff now seeks to be subrogated to the rights of the bank as against the holder of the junior incumbrance. The rule in such cases is thus stated in Sheldon on Subrogation (2d Ed.) 48: "Where the purchaser from a mortgagor pays off the mortgage and has it discharged without more, equity will not subrogate him to the rights of the mortgagee against an incumbrancer whose lien is subject to the mortgage, but prior to the purchase." And in 27 Am. & Eng. Enc. of L. (2d Ed.) 238, it is said: "A purchaser of property who has discharged an incumbrance thereon will be subrogated to the lien of such incumbrance as against the holders of other incumbrances of which he had no notice, but not as against the holders of other incumbrances of which he had notice, either actual or constructive."

See, also, Woodside v. Lippold, 113 Ga. 877, 39 S. E. 400, 84 Am. St. Rep.,267. When the Standard Scale Company purchased the property in controversy from Corley and paid off the mortgage to the bank, it did so with constructive, if not actual, notice that Ragan held another mortgage against the same property; and it is not contended that the scale company made any agreement with either the debtor or the creditor that it was to be subrogated to the rights and priorities of the bank. Under the rule above announced, it follows that the court erred in holding that the plaintiff was subrogated to the lien of the bank as against the mortgage held by Ragan. Judgment reversed. All the Justices con

cur.

CARMAN v. WATSON & CO.

(Supreme Court of Georgia. June 15, 1907.) APPEAL-REVIEW.

The evidence introduced by the plaintiff was sufficient to authorize the verdict in his favor. No error of law is complained of, and, the judge being satisfied with the verdict, it should be allowed to stand.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3948.]

(Syllabus by the Court.)

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

Action by Watson & Co. against J. L. Carman. From the judgment, Carman brings Affirmed.

error.

J. F. Mitchell and Theo. Titus, for plaintiff in error. Hammond & Hammond, for defendant in error.

BECK, J. Judgment affirmed. All the Justices concur.

WHITE et al. v. NORTH GEORGIA ELECTRIC CO. et al.

(Supreme Court of Georgia. June 15, 1907.) 1. INJUNCTION CONTEMPT - MULTIFARIOUS PETITION.

If a petition for injunction and other relief is multifarious, and an objection is properly made, urging multifariousness as a reason why the prayers should not be granted, it is erroneous for the court, upon such petition, to grant an injunction and render a judgment finding the defendants in contempt of court for violating a former injunction declared upon in the suit. 2. ACTION-JOINDER OF CAUSES OF ACTIONMULTIFARIOUS PETITION.

A petition which embraces two claims by separate and distinct parties against separate and distinct parties, where there is no common right to be established, is multifarious.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Action, § 511.]

3. SAME.

The allegations of the petition in this case were of such character as to render the petition multifarious. Appropriate objection being taken thereto. it was erroneous for the court, irrespective of any other question in

58 S.E.-3

volved, to grant the injunction and adjudge the defendants in contempt of court. (Syllabus by the Court.)

Error from Superior Court, Rabun County; J. J. Kimsey, Judge.

Action by the North Georgia Electric Company and others against S. E. White and others. Judgment for plaintiffs, and defendants bring error. Reversed.

Brown & Randolph, J. J. Bowden, R. E. A. Hamby, and Spencer R. Atkinson, for plaintiffs in error. H. H. Dean, for defendants in error.

ATKINSON, J. 1, 2. As a general rule distinct and separate claims of or against different persons cannot be joined in the same action. Civ. Code 1895, §§ 4938, 4946. In equity, where there is a common right to be established by or against several, and one is asserting the right against many or many against one, equity will determine the whole matter in one action. Civ. Code 1895, § 4846. Equity is ancillary, but never antag onistic to the law. Civ. Code 1895, § 3923. The sections of the Code above referred to are entirely in harmony. The claims are not separate and distinct where there is a common right to be established by several against one or more. The contrary is true if no common right is involved, and if there is no community of interest between the parties suing. The common right referred to may consist of a joint interest in the cause of action declared upon, or of separate interests in the particular subject-matter of the suit. An example of the first class would be a suit upon a promissory note payable to several persons instituted by the several payees because each has an interest in the note and is entitled to collect it. An example of the second class would be a suit by several creditors having distinct and separate claims against an insolvent debtor, instituted for the purpose of marshaling assets of the debtor. In such case there is no joint ownership of the several claims asserted against the insolvent debtor, but all are interested in the disposition to be made of his property. It may be said that where several sue jointly, if there be not a joint interest in the claim declared upon or a common right in the object sought, the claims will be separate and distinct, and cannot be joined. With an improper joinder of causes of action the suit will be multifarious.

The doctrine of multifariousness is ably discussed by Mr. Justice Fish in Conley v. Buck, 100 Ga. 187, 28 S. E. 97, and the "common-right" test applied. There it is said: "An equitable petition by a judgment creditor against the defendant in execution and others alleged, in substance, that they had all entered into a conspiracy to defeat the collection of the debt upon which the judgment was founded, that the common object of all the conspirators was to 'hide' and

'cover up,' in the names of the conspirators other than the defendant in execution, property which really belonged to him, and that, in pursuance of this object, various deeds had been executed purporting to convey specified parcels of realty to these conspirators, which in fact belonged to the judgment debtor; the particulars in each instance being set forth. The petition prayed for the cancellation of the various conveyances which were, for the reasons stated, alleged to be fraudulent; and for a judgment subjecting all the property to the petitioner's execution. Held, that this petition was not demurrable as failing to set forth an equitable cause of action, nor as being multifarious, nor for want of sufficient fullness in stating wherein the alleged fraudulent acts of the several defendants consisted." So, also, in Van Dyke v. Van Dyke, 120 Ga. 984, 48 S. E. 380, the subject was considered. Mr. Justice Fish, again speaking for the court, said (page 988 of 120 Ga., and page 382 of 48 S. E.): "It is not true that since the passage of the uniform procedure act of 1887 multifariousness is no longer a ground of demurrer to an equitable petition. That act allows the joinder of equitable and legal causes of action in one suit, but an equitable petition that would have been demurrable for multifariousness in joining separate and distinct causes of action against different defendants, prior to the passage of that act, is still demurrable on such ground." Numerous other illustrations of the "common-right" test may be found in the decisions on the subject of multifariousness cited in 9 Michie's Dig. Ga. R. 472-474. If there is a common right and the court of equity takes jurisdiction, there is no limit to which the court will go in order to do complete justice, but, where there is no common right, equity will not, for any purpose, entertain a suit wherein separate and distinct parties with separate and distinct claims unite against one or more parties. The statutes simply prohibit the joining of such claims in one suit. If a suit be defective because of such multifariousness, it is demurrable, and, if objected to by appropriate demurrer, it is error to grant an Injunction and adjudge certain of the defendants in contempt of court for a violation of an older injunction. See, in this connection, Webb v. Parks, 110 Ga. 639, 36 S. E. 70; Moore v. Hill, 59 Ga. 760.

3. The case before us furnishes an example of multifariousness. After amendment the plaintiffs are the North Georgia Electric Company and Crisson, Poore, and Lockeby. The defendants are White, Magid, Prentiss, and De More. The plaintiffs Crisson, Poore, and Lockeby are not interested in any relief against any of the defendants, except De More. The only relief sought against him by Crisson, Poore, and Lockeby is an injunction to stay the prosecution of a certain forcible detainer proceeding, regularly sued out under the statute and pending in

the justice's court. There were no parties to that proceeding except Crisson, Poore, and Lockeby as defendants, and De More as plaintiff. The right of no other person was involved in that litigation, and the result obtained therein could not by any possibility have affected either the plaintiff the North Georgia Electric Company, or the defendants White, Magid, or Prentiss. If that proceeding could be enjoined, there were no other necessary or proper parties for the accomplishment of such a purpose than Crisson, Poore, and Lockeby as plaintiffs, and De More as defendant. With respect to that subjectmatter the North Georgia Electric Company may have been stricken from the pleadings, and all allegations relating to matters between the North Georgia Electric Company on the one hand, and White, Magid, and Prentiss on the other, may have been stricken, and a complete case would have been left for determination by the court, to wit, the application for injunction by Crisson, Poore, and Lockeby against De More. This claim between these parties was separate and distinct, and could not be joined in the same suit with another claim between other parties concerning a different subject-matter. The North Georgia Electric Company was not concerned with the injunction sought against the prosecution of the forcible detainer proceeding instituted by De More. It was wholly immaterial whether in that case De More should win or lose. The judgment would not affect that company in the least. Its claim was against White, Magid, Prentiss, and De More with respect to entirely different matters. Concerning this claim, it was alleged that the North Georgia Electric Company held title to certain land under a chain of title extending back to Bleckley et al.; that while the land was owned by Bleckley a controversy arose over the title between Bleckley and White, which resulted in the recovery of the land by Bleckley and the grant of a permanent injunction against White, enjoining all future interference with Bleckley's possession; that, in order to avoid the effect of the injunction, White sold to Magid and Magid sold to Prentiss, and that they had all combined and confederated for the purpose of defeating the injunction, and, so combining, had employed De More as a mere agent to go and enter upon the possession of the property. The prayer was for injunction against White, Magid, Prentiss, and De More, seeking to enjoin them from interfering with the possession of the North Georgia Electric Company, and likewise for a cancellation of the deed from White to Magid and the deed from Magid to Prentiss as clouds upon the title of the North Georgia Electric Company, and likewise to punish all for a contempt of court in violating the first injunction obtained by Bleckley against White, to which reference has already been made.

In this claim there is no possibility by which Crisson, Poore, and Lockeby could