plaintiff's objections to the signing of the | going somewhat fully into the details of the bill of exceptions on the ground that the testimony. record is unnecessarily voluminous.

In

The judgment of the Superior Court is recases of this character it is difficult to pre- versed, with costs to the appellant above sent the questions of law properly without and below, and new trial awarded.

GEORGIA SUPREME COURT.

E. FLOYD, Plff. in Err.,

v.

Lewis COOK et al.

(........ Ga.........)

• Where a claimant gives a levying offcer a forthcoming bond, and retains possession of the property, and subsequently the same officer seizes and sells the property under a lien of superior dignity, applying the proceeds to such superior lien, the maker of the forthcoming bond is not liable thereon for a failure to produce the property at the time and place of sale. The law having taken the property from his possession, there

is no breach of the conditions of the bond for which he can be held liable.

(August 13, 1903.)

RROR to the Superior Court for Camp-
E
bell County to review a judgment in de-
fendants' favor in an action brought to en-
force a forthcoming bond. Affirmed.

The facts are stated in the opinion.
Mr. J. F. Golightly, for plaintiff in er-

ror:

Lewis Cook could not file a claim to the property which belonged to his father, give a forthcoming bond, and take charge of part of the crop raised on the rented premises, when that crop contained a sufficient amount

Mrs. Smith. He sublet a portion of it to his son Lewis Cook. Lewis made a crop on his portion, and in the fall of the year Floyd, who had obtained a common-law judgment against S. E. Cook, had an execution issued upon the judgment, and levied upon the crop of Lewis. The latter filed a claim in which he set up that the crop levied upon, consisting of certain cotton and corn, belonged to him, and not to his father, and was not subject to the lien of the judgment. The cotton and corn were in the field, and Lewis gave to the officer a forthcoming bond, wherein he obligated himself to produce the property at the time and place of sale if it was found subject to the fi. fa. Subsequently, and after Lewis had sued out a distress warrant against S. E. gathered the crop, Mrs. Smith, the landlord, the whole premises. This distress warrant Cook, the person to whom she had rented was levied by the same officer upon all the crops raised on the rented land. The officer

took the cotton and corn out of the possession of Lewis Cook, returning to the latter sold the crop, and applied the proceeds of the forthcoming bond which he had given, the sale to the lien of Mrs. Smith. Lewis Cook, supposing that this ended his claim to pay the rent and also the claim of Floyd, case, did not attend the trial of that case, and allow the entire crop to be gathered off and the claim was dismissed for want of the place, and then defeat Floyd by proving ed both Floyd and Mrs. Smith. By direc prosecution. The same attorney representthat, notwithstanding the crop was not his, tion of this attorney, the levying officer ad-that he had no right to file the claim,vertised for sale the property levied upon the property had been taken under a fi. fa., under Floyd's common-law judgment. Lewis which was a superior lien to that of Floyd. failed to produce the property according to Linder v. Sunders, 77 Ga. 57; King v. Castlen, 91 Ga. 488, 18 S. E. 313; Young v.

Waldrip, 91 Ga. 765; Barfield v. Covington, 103 Ga. 190, 29 S. E. 759; Reese v. Worsham, 110 Ga. 449, 78 Am. St. Rep. 109, 35

S. E. 680.

the terms of the forthcoming bond, and

Floyd brought his action for a breach of the bond, alleging the making of the bond by Lewis and his surety, and that they had failed to produce the property. The defendants filed a plea setting up the facts above stated, and alleging that Lewis was unable to produce the property, because it had been Simmons, Ch. J., delivered the opinion of taken from his possession by virtue of a suthe court:

Messrs. L. S. Roan, K. A. Nisbet, and C. S. Reid for defendants in error.

perior lien by the very officer to whom he

A farm was rented by S. E. Cook from had given the forthcoming bond, and had

Headnote by SIMMONS, Ch. J.

NOTE.-For the effect of intervening impossibilities to perform as a relief from the obligation of a contract in general, see note to

Stewart v. Stone, 14 L. R. A. 215.

been sold, and the proceeds applied to settle the distress warrant against his father. All the above-recited facts appearing on the trial of the case, the court, on motion, granted a nonsuit. The plaintiff excepted.

In that case

There was no error in the ruling made by will see that he is in error. the court. There had been no voluntary Bullock, Bush, & Co. had a common-law breach of the bond. Mrs. Smith's distress judgment against Barfield, and the execuwarrant was a lien superior to that of the tion thereon was levied upon certain cotton common-law judgment as against all the and corn made by Barfield as the tenant of crops raised upon the rented premises, Owens. Barfield replevied the property, and whether raised by S. E. Cook or by his sub- gave a forthcoming bond for its production tenants. All the crops raised upon the rent at the time and place of sale, Owens being ed premises were equally subject to the lien the surety on the bond. The property was for rent. It was impossible, under the law, advertised for sale, and was not forthcoming for Lewis Cook to resist this lien for rent. on the day of sale. Barfield and Owens He could file no claim, nor institute any were sued upon the bond, and their defense kind of proceeding, which would relieve his was that Barfield was a tenant of Owens, part of the crop from this lien. The law and owed him rent out of the property levcompelled him to submit to the seizure of ied upon, in an amount equal to its value, his crop under this lien. The levying officer and that Owens had taken the property and sold the crop, and applied the proceeds to applied it to the payment of rent prior to the lien of Mrs. Smith. It was then impos- the day of sale, after which appropriation sible for Lewis to produce the property at Owens had sued out a distress warrant the time and place of sale, as he had agreed against Barfield, and placed it in the hands to do, for the law had seized it and disposed of the sheriff. This court held that, under of it. Further than this, the law had seized these facts, Barfield and Owens "could not it through the same officer to whom the relieve themselves of their obligation to proforthcoming bond had been given. Perform duce the property by subsequently applying ance was rendered impossible by the act of it to the payment of rent due by Barfield to the obligee in the bond. In the case of Owens. While Owens had a landlord's lien Chalker v. Thompson, 72 Ga. 478, two fi. for rent upon the crops grown upon the fas. were levied upon Thompson's property. rented premises during the year 1894, suHe gave a forthcoming bond, in the usual perior to the lien of the common-law judgterms, for the production of the property at ment of Bullock, Bush, & Co., yet, in order the time and place of sale. Before the day for him to have realized the benefit of such of sale he had the property exempted and superior lien, under the facts of this case, set apart to him as the head of a family. it was necessary for him to have sued out a The property not forthcoming on the day of distress warrant against Barfield, placed it sale, suit was brought against Thompson in the hands of the sheriff, and demanded and his sureties for a breach of the forthcom- that the proceeds of the sale of the crop be ing bond. This court held that the plaintiff applied to the satisfaction of the lien for could not recover, because there had been rent, in preference to the judgment lien. In no breach of the bond; that, the exemption such an administration of the property by having been taken before the day of sale, the court, the rights of all parties interested the officer could not make sale of the prop- therein could have been determined accorderty, and it was utterly useless for Thomp- ing to the facts of the case. The suing out son to produce the property at the place of of the distress warrant by Owens, and placsale; that the right of exemption, and the ing it in the hands of the sheriff, after the exemption itself, to Thompson, as the head property had been applied to the payment of of a family, deprived the plaintiff in fi. fa. the rent, did not affect the liability of Barof the right to subject the property. The field and Owens for the breach of the bond." law controls the rights and remedies of Thus it will be seen that, after the levy of every person, and, when it interferes and the common-law judgment, Barfield and Owprevents an obligor from complying with the ens administered the property themselves. conditions of a bond, the obligor should not This they could not do, so as to devest a be held liable because of his noncompliance. judgment lien, as was decided by this case The interference of the law is analogous to and by the cases of Stallings v. Harrold, 60 an act of God operating to prevent compli- Ga. 478, and Duncan v. Clark, 96 Ga. 263, ance. Savannah, G. & N. A. R. Co. v. Wil-22 S. E. 927, and the cases therein cited. cox, 48 Ga. 437. Counsel for the plaintiff If Lewis Cook and his father had turned in error insisted that the case of Barfield v. over their crops to Mrs. Smith without a Covington, 103 Ga. 190, 29 S. E. 759, holds foreclosure of her lien, these cases would to the contrary, and settles the law in his have been applicable and controlling. This favor. We think that, when he reads that was not done. They waited until Mrs. case carefully and analyzes the facts, hel Smith asserted her lien by proper legal pro

cedure, when their property was levied upon | This made the case quite different from by the officer to whom they had given the those just cited. forthcoming bond, and was sold under the law. When Mrs. Smith had her distress warrant levied, she asserted her lien accord

All the Justices concur, except Candler, ing to law, and the sale under the distress J., disqualified, and Turner, J., not presidwarrant was an administration by the law. ing.

ILLINOIS SUPREME COURT.

standing in this order at the time of said agreed if he should die by suicide, whether death or disability; and provided also, that sane or insane, the defendant should not be this certificate shall not have been surren- held liable; and the further replication was dered by said member, and another certifi- filed that Achterrath did not commit suicate issued at the request of said member, | cide. Issue was joined upon these replicain accordance with the laws of this order." tions. The certificate was signed by the supreme president and the supreme secretary, and the corporate seal was attached; and written upon the same were the following words, to wit: "I accept this certificate on the conditions named herein." On November 22, 1899, the sum of $500 was paid on the certificate on account of the loss of one hand by the insured, as appears from an indorsement on the certificate, leaving $1,500 due thereon.

May 8, 1901, William Achterrath, the insured, came to his death by suicide, he having shot himself in the head with a revolver at his home in Augusta township.

The declaration sets out the certificate in hæc verba, and avers, among other things, that William Achterrath died on May 8, 1901, and that he was at that time in good standing, and had complied with all the laws, rules, and regulations of the society; and that his widow within a reasonable time furnished appellant with satisfactory evidence of his death, and offered to deliver up the certificate upon payment to her of the amount due thereon, etc.

The appellee, the plaintiff below, filed a replication, spoken of as replication No. 6, to the second and third pleas. In this replication, after referring to the organization of the society or order, and to its adoption of a constitution and by-laws, and after referring to § 1 of article 1 of the constitution, providing for the name and location of the association, and to § 1 of article 4, providing that the supreme circle may grant authority to organize any number of local circles, etc., and after setting forth that in article 2 of the constitution the object of the society was stated to be, first, for social and fraternal benefits to all acceptable white persons between the ages of eighteen and fifty-nine years; second, to provide for the families of the deceased members, and to assist the disabled from old age or accident by equitable assessments upon its members; and, third, to provide death benefits to all its beneficiary members, etc.; and after referring to § 1 of article 3 of the constitution, providing that white persons of either sex who shall pass the required medical examination may become beneficial members The defendant below filed a plea of the by complying with all the laws and regula general issue, and two special pleas. The tions of the order as set forth in its bysecond plea averred that it was provided in laws and the benefit certificate, it is then the contract of insurance that, if the in- averred that by § 1 of article 16 of the consured should die by self-destruction, the cer- stitution of the order it is provided that, tificate should be null and void, and that "after two years from the date of a certifiWilliam Achterrath did die by self-destruc- cate, the member continuing in good standtion, and therefore the certificate and con- ing, the only conditions binding upon the tract were of no binding effect on the de- member are the agreements as to his full fendant, and that defendant was thereby re- compliance with the laws and rules of the leased from said contract. The third plea association, and that all dues and assessalleged that, in and by the application for ments shall have been paid as required. In membership signed by William Achterrath, all other respects the payment of any sum which was a part of the contract of insur- due under any certificate, issued to a memance, it was provided that if he should die ber, shall be indisputable and incontestby suicide, whether sane or insane, the de- able." The sixth replication then avers that fendant should not be held liable under the William Achterrath became a member of the contract; and avers that he did commit sui-order under the provisions of the constitucide, whether sane or insane, and therefore | tion and by-laws in force at that time, and the contract and certificate were wholly null at the time the certificate was issued, and and void. Issue was joined upon the plea of general issue.

Two replications were filed to the second plea, the first denying that it was provided in the contract that self-destruction of Achterrath should render the contract void, and the second setting up that Achterrath did not die by self-destruction. The defendant below joined issue upon these replications. To the third plea a replication was filed to the effect that Achterrath did not make application for membership, in which it was

so remained during his lifetime; that he was in good standing in the order at the time of his death, and that, under said § 1 of article 16, the amount due plaintiff is incontestable and indisputable by defendant, and that defendant is estopped from refusing payment on account of Achterrath's death by self-destruction.

The plaintiff below filed a further replication, spoken of as replication No. 7, to the second and third pleas, averring that, after the defendant knew of Achterrath's

death by self-destruction, it collected and ac- | peal to the appellate court for the third discepted from the plaintiff 85 cents, the full trict the judgment of the circuit court in amount of one assessment levied against favor of plaintiff for $1,500 and costs has Achterrath, and still retains the money, and been affirmed. The present appeal is from thereby waived the provision against sui- such judgment of affirmance. cide, and cannot claim exemption on account thereof.

Upon the trial, the plaintiff below not only introduced the benefit certificate already set forth, but also the application of William Achterrath for membership in the circle, and the constitution and by-laws of the circle in force January 21, 1901. She also introduced in evidence the proofs of loss, signed by her and made under oath to

cide as the cause of the death of her hus band, to which proofs of loss was attached the sworn statement of the physician, procured by her to make medical proof of the death, which statement also gave suicide as the cause of the death. It also appeared in evidence that the original verdict of the coroner's jury was that the insured "came to his death by two wounds in the head inflicted by his own hand," etc.

The defendant below, appellant here, filed a rejoinder to the sixth replication, averring that, while it admitted its incorporation, and that the constitution and by-laws provided the things set forth in the replication, yet Achterrath did not make full compliance with the laws, rules, and regulations, the supreme circle, in which she gave suiin that he committed suicide or self-destruction; that he died by his own hand, wilfully and intentionally shooting himself with a pistol; and that, therefore, § 1 of article 16 is not binding on the defendant, but rendered the contract null and void, wherefore Achterrath lost his good standing, and was not at his death in good standing; and that the defendant was discharged from liability under the contract. The plaintiff below demurred to this rejoinder to the sixth replication, and the demurrer was sustained. The defendant below then filed its amended rejoinder to the sixth replication, therein admitting the incorporation of the plaintiff under the laws of Illinois, and that its constitution and by-laws provided the things set forth in the replication, but alleging that William Achterrath was not in good standing at the time of his death. To this rejoinder plaintiff added the similiter.

Defendant below filed a rejoinder to plaintiff's seventh replication, setting up that it was provided by § 1 of article 12 of the constitution and by-laws of defendant, which were a part of his contract, that all assessments are due and payable to the local secretary of the circle to which the member belongs on the first day of each month, and that the assessment referred to in the seventh replication was due and payable on May 1, 1901, prior to the death of Achterrath; that defendant had a right to accept it; that defendant had no knowledge of the manner of Achterrath's death until after the assessment was due and payable, and, by receiving it, did not waive any part of the contract providing that self-destruction should avoid the contract. Plaintiff joined issue upon this rejoinder.

The cause was tried before the court and a jury. The jury found a verdict for the plaintiff below, and assessed her damages at $1,500. Motion for new trial was sustained, and the verdict was set aside. A second trial then took place with the same result, to wit, verdict and judgment in favor of plaintiff below for $1,500 and costs. The motion for new trial after the rendition of the second verdict was overruled. Upon ap

The eighth clause of the application of the deceased for membership in the order was as follows: "I further agree that this order shall not be responsible under this contract if my health shall become impaired by the use of narcotics, or alcoholic, vinous, or malt liquors, or shall die in consequence of a duel, or by suicide, whether sane or insane, or by the hands of a beneficiary hereunder (except by accident), or in consequence of the violation or attempted violation of the laws of any state or territory of the United States." The ninth clause of the application. following immediately after the eighth clause above set forth, is as follows: "I agree to make punctual payment of all dues and assessments for which I may be come liable, and to conform in all respects to the constitution, laws, rules, and usages of this order now in force, or which may hereafter be adopted by the supreme circle thereof."

Section 5 of article 10 of the constitution of the order is as follows: "If a member dies in consequence of a duel, or by the hands of justice, or by the practice of any pernicious habit that obviously tends to shorten life, or by self-destruction, or by the use of intoxicating liquor, or by or on account of the violation of any criminal law of any state, province, or municipality, then, in all such cases, the certificate of membership. shall be null and void, but the board of directors, if in their judgment the circumstances attending such death warrant it, may, at their option, without prejudice, pay any sum not exceeding the full amount thereof."

Section 1 of article 14 of the constitution provides as follows: "If a member becomes