gation or to a trust. In Pittman v. Elder, 76 Ga. 371, it was shown that an agreement to pay a debt barred by the statute of limitations, or discharged in bankruptcy, was not supported by what was formally called a "moral obligation," but by the antecedent obligation, the new promise to pay amounting simply to a waiver of the statute, or of the discharge. The Civil Code, section 3658, defines a good consideration to be such as is founded on natural duty and affection, or "on a strong moral obligation." In the light of the authorities, however, the strong moral obligation here referred to seems to be one supported either by some antecedent legal obligation, though unenforceable at the time, or by some present equitable duty. The section, however, does not relate to the moral obligation which inheres in every promise: Austell v. Humphries, 99 Ga. 416, 27 S. E. 736. While all courts recognize the obligation arising from any undertaking, they are, from the necessity of the case, forced to hold that naked promises must depend for their performance solely upon the will of the promisor, and not upon the tribunals which are organized to perform the "duty of government to protect person and property," and in pursuance thereof to award money damages for breaches of contracts: Civ. Code, sec. 5699. But they cannot enforce promises binding on the conscience except in those cases where some pecuniary damage flows from the breach, or where, in addition to the moral obligation, the promise is also supported by a consideration. When one receives a naked promise and such promise is broken, he is no worse off than he was. He gave nothing for it, he has lost nothing by it, and on its breach he has suffered no damage cognizable by courts. No benefit accrued to him who made the promise, nor did any injury flow to him who received it. Such promises are not made within the scope of transactions intended to confer rights enforceable at law. They are lightly made, dictated by generosity, courtesy, or impulse-often by ruinous prodigality. To enforce them by a judgment in favor of those who gave nothing therefor would 508 often bring such imperfect obligations into competition with the absolute duties to wife and children, or into competition with debts for property actually received, and make the law an instrument by which a man could be forced to be generous before he was just. Both under the civil and common law, courts were prohibited from enforcing contracts without consideration, and relegated the performance of such promises solely to those who made them.

Judgment reversed. By five justices.

A Promise Made to a Person to induce him to perform an act which he is already bound in law to perform is without consideration and not binding: Spencer v. McLean, 20 Ind. App. 626, 67 Am. St. Rep. 271, 50 N. E. 769. And a subsequent agreement not forming any part of an original contract, nor supported by the original consideration thereof, nor by any new consideration, is void: Macfarland v. Heim, 127 Mo. 327, 48 Am. St. Rep. 629, 29 S. W. 1030. Moral obligations as a consideration to support an express promise are discussed in the monographic note to Ferguson v. Harris, 39 Am. St. Rep. 735-746.

BURNETT & GOODMAN v. CENTRAL OF GEORGIA RAILWAY COMPANY.

[117 Ga. 521, 43 S. E. 854.]

CORPORATION Service of Garnishment on Agent.-An officer's return reciting that a summons of garnishment was served "personally on S. C. Hoge, agent in charge of the Central of Georgia Railway Company," does not show a service upon the corporation, but only upon Hoge in his individual capacity. (p. 176.)

F. Chambers & Son, for the plaintiffs.

J. E. Hall, R. D. Feagin, Hardeman, Davis, Turner & Jones and E. P. Johnston, for the defendant.

521 COBB, J. A summons of garnishment was issued and served "personally upon S. C. Hoge, agent in charge of the office of the Central of Georgia Railway Company." Hoge filed an answer denying indebtedness. The court struck this answer, and entered a judgment by default against the railroad company, it not having filed any answer to the summons. railroad company sued out a petition for certiorari, alleging that the judgment entered against it was unauthorized and void, and exception is taken to a judgment of the superior court sustaining the certiorari.

The

Civil Code, section 4710, is as follows: "Service of a summons of garnishment upon the agent in charge of the office or business of the corporation in the county or district at the time of service shall be sufficient."

To give the court jurisdiction of the corporation it is absolutely essential that the summons of garnishment shall be served upon it. It is within the power of the general assembly to prescribe how such service shall be perfected; and, under the provisions of the section quoted, service upon the corporation may be had by serving the summons upon the agent in charge of its

office or business. The corporation may be served by delivering the process to the individual who is its agent; but the entry of service should indicate with reasonable certainty that it was the corporation and not the individual who was intended to be served. The entry of service in the 522 present case does not show a service upon the corporation, but only upon Hoge in his individual capacity; the words "agent in charge of the office" of the corporation serving merely to describe and identify the individual upon whom the service was made: See State v. Sallade, 111 Ga. 701, 702, and cases cited. This rule should, if anything, be more strictly applied in cases of garnishments than in ordinary suits: See in this connection, Clark v. Chapman, 45 Ga. 488. The service was upon Hoge individually, and he properly answered the summons. The action of the court in striking the answer of Hoge and entering judgment by default against the railway company was erroneous, and the court properly sustained a certiorari sued out by it for the purpose of having the judgment set aside. If the officer's return had recited that he had served the summons of garnishment upon the Central of Georgia Railway Company, by handing the same personally to S. C. Hoge, who was the agent of the corporation and in charge of its office or business, this would have been sufficient. The return in Third Nat. Bank v. McCullough, 108 Ga. 249, 33 S. E. 848, was in this form. The question dealt with in the present case was not involved either in Central R. R. Co. v. Smith, 69 Ga. 268, or Flournoy v. Rutledge, 73 Ga. 735, or in Mitchell v. Southwestern R. R. Co., 75 Ga. 398. In all three cases the process was treated as referring to the individual named in his capacity as agent of the corporation in question, and the question was whether, so treating it, it was sufficient. Besides, in the last case, additional service was had upon the president of the corporation, and it was held generally that the service was sufficient.

Judgment affirmed. By five justices.

An Affidavit of Service of a summons reciting that affiant "personally served the same upon J. H. Elledge, the managing agent of the above-named defendant corporation," such corporation being the sole defendant in the case, shows a service upon the corporation: Keener v. Eagle Lake etc. Co., 110 Cal. 627, 43 Pac. 14. Said the court: "If Elledge had been a codefendant with the corporation, and the return of service had shown that only one copy of the summons had been delivered to him, there would be some reason for holding that it was a personal service upon him alone; but, as the corporation was the sole defendant, that reason does not exist.'

EQUITABLE LOAN AND SECURITY COMPANY v.

WARING.

[117 Ga. 599, 44 S. E. 520.J

CONTRACT Opposed to Public Policy.-The Power of Courts to declare a contract void for being in contravention of public policy is very delicate and undefined, and should be exercised only in cases free from doubt. (p. 190.)

CONTRACT-Supervision by Courts.-Courts should be extremely cautious in supervising private contracts, when the lawmaking power has not declared them unlawful. (p. 191.)

CONTRACT-Whether Fraudulent Because Impossible.-It is only in an extreme case that a court should hold a contract of such a character that its performance is impossible or improbable, and therefore that those who entered into it must have done so with a fraudulent intent. (p. 191.)

FORFEITURES Interpretation and Enforcement of.-Forfei tures are not favored, and a contract, if ambiguous, will be so construed as to avoid them; but when it is clear that the parties have agreed to a forfeiture, a court of law or of equity will enforce it. (p. 192.)

FORFEITURES When not Relieved Against.-The Time of Payment specified in a contract may be material, and by its terms a failure to pay within that time may involve an absolute forfeiture; and if it does, the forfeiture will not be relieved against even in a court of equity. (p. 192.)

FORFEITURES AND LAPSES -Business Dependent on. The mere facts that the success of a business or scheme is dependent, to some extent, upon lapses and forfeitures, even many lapses, is not sufficient to render it illegal. (pp. 193, 194.)

CONTRACT-Construction in Favor of Legality.-It is not presumed that people intend to violate the law, and the language of their undertakings must be construed, if possible, so as to make the obligation one which the law recognizes as valid. (p. 196.)

CONTRACT-Construction by Party in Favor of Legality.▲ construction in favor of the legality of a contract may be strengthened by the fact that one of the parties thereto has always placed that construction upon it. (p. 196.)

LOTTERY.-The Three Essential Ingredients of a lottery are consideration, prize, and chance; chance alone, or coupled with consideration, will not make a lottery. (pp. 195, 199.)

LOTTERY-Multiple Table.-Where Certificates of Investment are issued by a company, the fact that those to be called for redemption are determined by reference to a table of numbers arranged according to multiples of the figure 3, instead of in their numerical order, thereby making it possible in some cases for certificates to be redeemed before others of older date, does not make the scheme a lottery. (pp. 197, 198.)

LOTTERY-Chance and Prize. When a Number of Persons are entitled in any event each to a given amount, though it may not be the same amount, and all cannot be paid at one time, the deter

Am. St. Rep., Vol. 97-12

mination by lot, or chance, or drawing of what portion of that number shall be paid at different times, does not give to the transaction the characteristics of a lottery. It is when the amount to be paid, or the value of the article to be delivered, is itself determined, either in whole or in part, by lot, drawing, or chance, that the elements of a lottery are present. (p. 199.)

LOTTERY-Investment Certificates-Absence of Prize.-A scheme for the issuance and redemption of investment certificates or bonds, which involves the elements of consideration and chance, but not the element of prize, is not a lottery. (pp. 185, 199, 202.)

CORPORATIONS.-If any Statement in the Literature of a corporation is at variance with the contract which it finally makes with the holder of its certificates, what is stated in the certificate must control until the contract is reformed or rescinded. (p. 203.)

APPEAL-Right to Hearing by Full Court.-Even if, under any circumstances, a litigant has a right to ask that his case be heard before a full bench of judges in the supreme court, the application must be made before the case is heard. It is too late to urge the right as a ground for a rehearing. (p. 210.)

JOINT TENANCY with Survivorship.-In Georgia the mere creation of an estate in two or more persons never draws to it survivorship as an incident, and the presumption is that survivorship is not intended; but if it is provided for by express terms or necessary implication, the law allows it to exist. (p. 212.)

Hoke Smith, H. C. Peebles, Candler & Thompson, Rosser & Brandon, H. E. W. Palmer and E. W. Butler, for the plaintiffs in error.

John L. Hopkins & Sons, Brown & Randolph, and G. T. and J. F. Cann, for the defendant in error.

642 COBB, J. This case is here upon a bill of exceptions of the Equitable Loan and Security Company, assigning error upon an order of the judge of the superior court of the Atlanta circuit, placing its entire assets in the hands of a receiver for administration. The reasons for appointing the receiver were, that the scheme of the company, if not a lottery, was, to say the least of it, in the nature of a lottery, and was therefore, illegal; that the contracts evidenced by its certificates were impossible of performance by legal methods; and that such contracts were contrary to public policy. The court did not base its judgment upon the ground that the officers of the company had been guilty of malfeasance, misfeasance, or breach of trust. The court found that the officers of the company had not been guilty of any personal dishonesty or peculation in dealing with the assets of the company, but held that the scheme was illegal. The court also found that, if the scheme of the company was legal and its