modify any of the conditions; 12. The passenger to sign his name and otherwise identify himself whenever called upon to do so by the conductor or agent of the line or lines, failure to do which renders the ticket void. These are the twelve conditions that the passenger subscribes to and agrees to be bound by. The declaration alleges that he performed them all on his part, and he so testifies in his evidence. Then the ticket is dated, signed by the passenger and by an attesting witness, and signed by the general freight and passenger agent. On the reverse side is the following: "Agent of Georgia Pacific Railway Company will stamp in space below on the left of the page. Agent of Queen and Crescent Route will stamp in space below on the right of the page." And there is a scroll on each margin for the stamp. "In compliance with my contract with the Georgia Pacific Railway Company and lines over which this ticket reads, I hereby subscribe my name as the original purchaser of this ticket"; signed by the passenger, and attested officially by the agent who sold the ticket, and dated on the day of sale; stamped on the right margin instead of the left.

There appears, in the execution of this ticket, to be two irregularities: 1. The stamp is on the wrong margin; and 2. One signature of the passenger is made at the wrong place. He signed twice when he bought the ticket, once in the right place for the selling station, and then again at the place where he should have signed in New Orleans this signature that should have been made at New Orleans was made at the time and place of sale, Tallapoosa, and was attested by the very agent who sold the ticket, and dated there by him, apparently. The passenger testified that at New Orleans he went to the proper agent to have the ticket stamped and signed in accordance with the contract; that he identified himself; that he urged upon the agent to recognize him and to recognize the ticket; that the agent declined to do it, but referred him to another officer, which officer stated that he sometimes for ladies had done such a thing, but he was not going to do it any more, so he declined. The effort-a persistent effort— made in New Orleans to have this contract complied with on the part of the designated agent failed. The passenger got upon the train to return, and they threatened him with expulsion, but he procured a ticket from a friend that brought him regularly as far as Meridian, Mississippi. There his new ticket exhausted itself, and he passed on to Birmingham with

out question. In going from Meridian to Birmingham he had no trouble. When he reached Birmingham, he was then again at the line of the company that sold him the ticket, and he got upon its train, and when about two miles out, he offered it to the conductor to pay his fare; the conductor examined it and refused to recognize it, and expelled him from the train. Such is the evidence. He took measures then to get home. He seems to have done all that his contract required of him, and failure in correctness was on the part of this company's agent in the first instance, and of the agent designated by this company to act for it in New Orleans in the next instance. So we think that the plaintiff could recover in this action his proper damages of all sorts. Why not? The only excuse that can be rendered is, that the company's business was managed by itself (because management by its agents is management by itself) in a way that it would not recognize its own ticket. The company was as much represented by the agent who sold the ticket as if it had been a natural person who in person had represented himself. And so of the agent in New Orleans. It was as much represented by the conductor who rejected the ticket and expelled this man from the train as if it had been a natural person and had been there present and had in person ejected him. Then where is the difficulty in holding it liable? It is very proper to have rules and regulations amongst agents and employees by which they can conduct business orderly and correctly, but failure to do it correctly, intelligibly, and conformably to instructions is as much the fault of the company as it is the fault of the agent. The company can no more be heard to say that an error was committed by its agent, resulting in a breach of duty on its part to the plaintiff, than it can be heard to say that an error was committed by its own action. The agent's action is as binding upon it, within his sphere of power and duty, as is the action of the president or the board of directors within theirs. This agent that stamped the ticket wrong and attested a signature by the passenger out of time and place was acting in the line of his duty, and the plaintiff testifies that he believed in good faith that he understood his duty, and that he signed the ticket exactly where the agent pointed out for him to sign. He had a right to assume that all these agents understood their duties, and would perform them; and if he performed his, he could stand upon his contract, and upon his relation as passenger which the contract generated.

Now, if he had omitted his duty, as was the case with the party in Moses v. East Tennessee etc. R. R., 73 Ga. 356, where the passenger failed to go and get his ticket stamped, he would have had no case. There the passenger had no right to a return carriage, he was in default; but here this plaintiff has done his duty, his whole duty, and that being so, he is in the same attitude as a passenger where no mistake or irregularity has been committed. Whether we take the declaration or the evidence, or both, there ought to have been a recovery by the plaintiff for all sorts of damage that he sustained,-all sorts that the jury thought proper to award.

Judgment reversed.

CARRIERS EXEMPLARY DAMAGES: See Stutz v. Chicago etc. R'y Co., 73 Wis. 147; 9 Am. St. Rep. 769, and note 777; Columbus etc. R'y Co. v. Bridges, 86 Ala. 448; ante, p. 58, and note.

THARP V. YARBROUGH.

[79 GEORGIA, 382.]

DEED TO THE HEIRS OF A, he then having children living, vests an estate in them to the exclusion of his children subsequently born.

L. D. Moore, and W. S. Wallace and Son, for plaintiffs in

error.

Gustin and Hall, and R. D. Smith, for the defendants in error. LUMPKIN, J. The only question presented for adjudication in this case is, whether or not the court below properly construed a certain deed.

...

between Cicero

The deed begins: "This indenture . A. Tharp. . . . of the one part, and the heirs of Robert A. Tharp.... of the other part, witnesseth," etc. It conveys the land in controversy to "the heirs of Robert A. Tharp, their heirs and assigns," in consideration of love and affection and the sum of five dollars. At the time the deed was made, Robert A. Tharp had three children living. Several others were born afterwards. It is conceded that if the deed passed the title to the three children first mentioned only, and that those subsequently born took no interest thereunder, the plaintiffs in the court below could not recover, and that the verdict for defendants was right. The court held that the words "heirs of Robert A. Tharp" meant his children, and included only those in life when the deed was executed.

There seems to be no difficulty in reaching the conclusion that the word "heirs" in this deed did mean "children"; but did it mean only the three then in existence? or will it extend to those who were born afterwards? We think the judge below ruled correctly. Every deed must have parties. This deed expressly defines who are the parties to it, viz.: Cicero A. Tharp of the one part, and the heirs of Robert A. Tharp of the other part. A deed must not only have parties to it, but they must necessarily be in existence at the time of its execution, unless, by its own terms, it provides a beneficial interest for parties yet to be born. If Mr. Tharp had conveyed to the heirs, or to the children, of his brother, now born, or who may hereafter be born, it would seem clear the latter would take an interest under the conveyance when they came into life, but he did not so convey.

It is insisted that by the use of the word "heirs " the donor intended to fix, as the class of persons who should take this land, those who would be the heirs at law of Robert A. Tharp after his death, and that accordingly his death must be waited for to ascertain precisely to whom the title did pass. At the same time, it is also contended that the word "heirs means the "children" of Robert A. The donor could not have used the word in two senses. He had in his mind the objects of his affection and his bounty, -the three children of his brother then in esse, and it is not likely that he meant to give his property to the heirs at law of his brother without regard to who they might be, possibly persons not even related by blood to himself. He must have used the word "heirs" in the sense of "children," and in that sense it could apply only to children then living. Surely the donor did not intend to keep the title to this property in nubibus till his brother's death. He desired it to vest immediately, and this could only be accomplished by giving the deed the construction herein indicated.

The case in 33 Ga. 454, relied on by the ingenious counsel who appeared for plaintiffs in error, differs from the case at bar in two essential respects: 1. The testator there provided a trustee, to whom the title passed under the will, and it was made the duty of this trustee to hold the property for the benefit of the cestuis que trust; 2. The will gave the property in trust for the benefit of the heirs in law of John P. Vinson, and, as Chief Justice Lumpkin observes, "By giving the property to the heirs in law of John P. Vinson [testator's son], it shows that the testator looked to the death of his son as fixing the

period when the legatees should be ascertained." Mr. Tharp's deed does not convey to the heirs at law, but to the heirs of his brother. It is also true that more liberal construction should be given to wills in favor of persons not born than to deeds, which are contracts between the parties. In addition to what has been already said, the policy of our law favors the vesting of estates, and this is another reason for upholding the construction given to the deed in this case.

Judgment affirmed.

HEIRS. A devise to "children" of testator's son comprehends only the children living at the testator's death: Shotts v. Poe, 47 Md. 513; 28 Am. Rep. 485; and see note to Lipman's Appeal, 72 Am. Dec. 692; Thompson v. Garwood, 3 Whart. 287; 31 Am. Dec. 502; Chase v. Lockerman, 11 Gill & J. 185; 35 Am. Dec. 277; Hubbard v. Lloyd, 6 Cush. 522; 53 Am. Dec. 55; Collin v. Collin, 1 Barb. Ch. 630; 45 Am. Dec. 420, and note.

CLEMENTS v. TILLMAN.

179 GEORGIA, 451.]

ENFORCEMENT OF A DECREE FOR A SPECIFIC SUM OF MONEY CANNOT BE BY PROCESS OF CONTEMPT, but only by execution against property as at law. It is therefore an error to add to a decree for the payment of money a clause that in default of payment, "the defendant be held and deemed to be in contempt of the order and decree of this court."

SUIT in equity by Hattie E. Tillman, legatee, under the will of Jacob A. Clements, against John W. Clements, executor, and Sarah B. Clements, executrix, of such will, for account and settlement. The jury returned a verdict that John W. Clements, as executor, had in his hands, belonging to Hattie E. Tillman, as such legatee, the sum of $810 principal, and $500 interest. Upon this verdict the court entered the following decree: "Whereupon, the premises considered, it is ordered, adjudged, and decreed by the court, that the complainant do recover the sum of $810 principal, and the further sum of $500 interest to this date, and the further sum of $- - cost of suit in this behalf laid out and expended, for which said several sums let execution issue, to be levied in the first place of the goods and chattels, lands and tenements, of said Jacob A. Clements, deceased, in the hands of John W. Clements, executor of the will of said Jacob A. Clements, if to be found, and if not to be found, then to be levied of the personal goods and chattels, lands and tenements, of said John W. Clements. It is