event of the death of the testator's daughter without child or children or the issue thereof surviving her; and accordingly in the opinion in that case, on page 143, it was argued that by these superadded words, "lawful issue," the testator meant such child or children of his daughter as she might having living at her death, and not an indefinite line of descendants. Again, in the case of Toole v. Perry, 80 Ga. 681, the will directed that all the property devised to the testator's daughters and children should be free from the debts and liabilities of their present or any future husband, and for their sole and separate use. It was held in that case that the devise was not only for the benefit of such children as were in life at the death of the testator, but also included those afterward born to the daughters. The reasoning of that decision rested upon the superadded words, "free from the control," etc., "of their present or any future husbands"; and Justice Blandford in his opinion, on page 682, argues that from these words it was to be inferred the testator had in view the probability naturally flowing from the relation of husband and wife, the testator speaking, not only of the present, but of any future husbands. The distinction between that case and the case of Baird v. Brookin, 86 Ga. 709, is clearly shown in the opinion of Justice Lumpkin on page 716 of that case. The deed now under consideration is simply to Jere Hollis, 108 trustee of his wife, Mariah A. Hollis, and the children, issue of their marriage. Under the uniform rulings of this court, the words, standing alone, refer to the children then in life. The expression "issue of their marriage" can mean nothing more nor less than to designate the particular children of the trustee and his wife, so as not to include any others that might possibly have been the issue of any former marriage. It would have been tantamount to the same thing had the conveyance been to the trustee, for the benefit of his wife and the children of their marriage, there being no superadded words in the conveyance indicating any intention whatever of the grantor to include any persons not in life at the time his conveyance went into effect. Under the uniform rule of construction adopted by this court, as we view its decisions, we conclude that none of the children of this marriage, born after the execution of this deed, have any interest whatever in the property conveyed. It follows, therefore, that the trust was executed before the alleged illegal sale of the property by the trustee, and that on this account the present action cannot be maintained. Hence we think the court erred in overruling the

defendants' demurrer to the plaintiff's petition, but that after this was done the court was right in sustaining the defendants' motion for nonsuit.

The above view of the case renders it entirely unnecessary to consider the questions presented by the main bill of exceptions, or the other questions arising upon assignment of error in the cross-bill of exceptions.

Judgment on cross-bill of exceptions reversed; main bill dismissed.

All concurring, except Simmons, C. J., disqualified.

CHILDREN-WHO INCLUDED IN DEED TO.-A deed to the heirs of A vests an estate in his children then living, to the exclusion of children born subsequently: Tharp v. Yarbrough, 79 Ga. 382, 11 Am. St. Rep. 439; and a devise or bequest to children embraces only those children living at the time of the testator's death: Thompson v. Garwood, 3 Whart. 287, 31 Am. Dec. 502; Collin v. Collin, 1 Barb. Ch. 630, 45 Am. Dec. 420. It must be remembered, however, that an exception to this general rule exists when, by a conveyance or devise, the time of distribution or enjoyment is postponed to some subsequent date. In that event, all the children in being when the time for distribution or enjoyment arrives are included within the benefit of the grant or devise: Thomas v. Thomas, 149 Mo. 426, post, p. 405, and note.

HILSON V. KITCHENS.

[107 GEORGIA, 230.]

JUSTICES OF THE PEACE-PLACE OF HOLDING COURT.-A justice of the peace, after giving notice that his court will thereafter be held in a new place in some particular house or definite locality in a certain village, cannot, after holding court there, lawfully hold his court in any other house or locality in that village, without giving further notice of such change, as required by statute.

JUSTICES OF THE PEACE-VOID JUDGMENTS.-A judgment of a justice of the peace is void, when it affirmatively appears therefrom that the court was held at a place where it could not lawfully sit.

K. J. Hawkins, for the plaintiff in error.

E. B. Rogers and J. K. Hines, for the defendant in error.

231 COBB, J. An execution purporting to have been issued from a justice's court was levied upon certain personal property, and the progress of the same was arrested by an affidavit of illegality, alleging that the pretended judgment upon

which the execution was issued was not rendered at a place lawfully appointed for holding justices' courts. The case was carried by appeal to the superior court, and the issue raised upon the affidavit of illegality was submitted to the judge without the intervention of a jury. From the evidence introduced before the judge it appeared that the justice of the peace who issued the execution was elected in 1886, and held his first court in the office of Dr. Scruggs at Scruggsville in the eleven hundred and sixty-ninth district in Glascock county. At the time of holding this court the justice wrote notices and posted them, stating that after publication of such notices for sixty days the place for holding the justice's court within the district would be changed from Scruggsville to Mitchell "at some point near the line" of a named railroad in that town. In pursuance of such notice the place for holding court was changed to Mitchell, and has been since held at that place. At the time of giving notice of the change of place "there was no house in the town of Mitchell" in which to hold court, and the first court was held in a "guano-house, near the railroad track." The court was not always held in the "guano-house," but was held at different places in the town of Mitchell. One or two courts were held in Kitchens Brothers' store, one or two others in Kelley & Snider's store, while still others were held in the depot, Dr. Kitchens' office, and in the store of Daniel Brothers. Several courts were held in the latter place, and the judgment upon which the execution in this case issued was rendered there. There "is yet no house in Mitchell" in which justices courts can be held without the consent and permission of the owner. The judge "overruled" the affidavit of illegality, and the defendant excepted.

The constitution declares that justices of the peace shall "sit monthly at fixed times and places": Civ. Code, sec. 5856; see, also, sec. 4101. "Justices of the peace have authority, and it is their duty, to select some central and convenient place in their 232 respective districts at which to hold their courts, of which they shall give ample public notice, and also to keep their offices within said districts": Civ. Code, sec. 4082. The manner of changing the place of holding such courts when a new justice is elected is prescribed in section 4106 of the Civil Code, which is as follows: "When a new justice of the peace is qualified, and he desires to change the place of holding such courts, he may do so by giving public notice of the fact, stating the place to which changed, and the first court to be thus

held, which change shall not go into effect short of sixty days from the time of advertising." It appears from the record in the present case that the lawful place of holding justices' courts in the district in which the plaintiff in error resided was, at the time of the election of the justice of the peace who rendered the judgment and issued the execution, in Scruggsville. He had a perfect right, under the authority of the section of the code above quoted, to change the place of holding court, in the manner therein prescribed. It is not necessary, in the present case, to determine whether the effort to change the place of holding justices' courts in the district was ineffectual because a designated house or other fixed locality in the town of Mitchell was not set forth in the notice. If the place of holding court was by the notice and advertisement legally removed from Scruggsville, such removal was to the house at which the first court was held in Mitchell. This house became the "fixed place" for holding court, and it was not lawful to hold court at any other house without complying with the law requiring public notice of a change of place. As there was no authority for holding court in the town of Mitchell at any other place than the house in which the court was first held, a judgment rendered at any other place is absolutely void: Civ. Code, sec. 4108. The facts of the present case are all that are necessary to show the wisdom of the lawmakers in requiring these courts to be held at "fixed places." The evils and hardships resulting from a migratory court are plainly manifest. No one interested in the cases pending in the justice's court at Mitchella village about a mile and a half in diameter-could tell in what house to look for the court which was to pass upon his 233 rights; and even the justice himself could not always tell with certainty where he was going to "administer justice."

The judgment attacked in the present case being void, the question could properly be raised by an affidavit of illegality: Planters' Bank v. Berry, 91 Ga. 264.

Judgment reversed.

All the justices concurring.

JUSTICES OF THE PEACE-PLACE OF HOLDING COURT.A justice of the peace loses jurisdiction over a cause where he adJourns it to a time or place uncertain: Crandall v. Bacon, 20 Wis. 639, 91 Am. Dec. 451, and note.

ADAIR v. SOUTHERN MUTUAL INSURANCE CO.

[107 GEORGIA, 297.]

INSURANCE - FIRE - CHANGE IN CONDITIONS OF PREMISES.-A provision in a policy of fire insurance that it shall be forfeited by any change in the use or condition of the insured premises increasing the degree of risk, unless due notice is given to the company and a new agreement is entered into, applies to changes of a permanent nature and not to mere temporary changes in the use of the premises. The mere temporary use of a threshing machine for a few hours on the premises where the insured property is located does not, of itself, work either a forfeiture or suspension of such policy.

INSURANCE-CHANGE IN CONDITION OF PREMISESNEGLIGENCE.-If a policy of fire insurance provides that it shall be forfeited by any change in the use or condition of the insured premises increasing the risk made, without due notice to the company, and a new agreement entered into, and the insured or one to whom he has intrusted the entire custody and control of the insured property by his negligent acts so changes the use and occupancy of the premises as to temporarily increase the risk without the consent of the company, it is not liable for a loss directly resulting as a consequence of such acts.

INSURANCE-CHANGE IN CONDITION OF PREMISES— NEGLIGENCE QUESTION FOR JURY.-Under a policy of fire insurance providing that it shall be forfeited by any change in the use or condition of the insured premises increasing the degree of risk, the question whether or not there has been such negligent use of the insured property as to materially increase the risk and thus cause the loss, should be submitted to, and determined by, the jury, when the evidence is such as to raise a serious doubt.

W. R. Hammond, for the plaintiff.

Erwin & Erwin and S. C. Dunlap, for the defendant.

298 LEWIS, J. Suit was brought by Augustus D. Adair, as administrator of the estate of Sarah C. Hudson, deceased, against the Southern Mutual Insurance Company, the same being an action for the recovery of a loss on a policy of fire insurance.

This policy was issued to the plaintiff on the 22d of January, 1897, and "insures estate of Mrs. Sarah C. Hudson against loss or damage by fire to the amount of twelve hundred dollars for the term of one year," one thousand dollars of said sum being on a house that was occupied by the family of the deceased as a dwelling, and the balance on furniture in the house. After plaintiff's evidence had closed, the judge granted a nonsuit on motion of defendant's counsel, upon which error is assigned by the plaintiff in his bill of exceptions. It appears from the record that at the time of the fire the premises were in possession of the husband of deceased, who, with his children, occupied