compel a performance by the company of the duty above mentioned. There may be authorities to the contrary, but the true law of this question seems to be in favor of the doctrine that a private person may, by mandamus, enforce the performance by a corporation of a public duty as to matters in which he has a special interest: See 2 Morawetz on Private Corporations, sec. 1132; 4 Am. & Eng. Ency. of Law, 289, 291, and cases cited. In the case of State v. Savannah etc. Canal Co., 26 Ga. 665, the relief sought was granted at the instance of private persons, but it does not appear that the point was specially made as to their right, as such, to apply for the writ of mandamus, the position 402 then taken by the canal company being that this writ would not lie at all.

3. In Moody v. Fleming, 4 Ga. 115, 48 Am. Dec. 210, this court held that, except in a case of clear legal right, the writ of mandamus was a discretionary remedy. This view was followed in Harwell v. Armstrong, 11 Ga. 328, and in Loyless v. Howell, 15 Ga. 554, injunction cases, in which this court, by citing the case first above mentioned, evidently intended to put cases of mandamus and of injunction upon the same footing as to the question of discretion. The granting or refusing of injunctions has always been regarded as discretionary, and it seems quite clear that in cases of manda mus it lies very largely within the discretion of the presiding judge as to whether or not the writ will, in a given case, be made absolute; and, in order to reverse a judgment in a case of this kind, it would be necessary to show that the discretion of the court was abused.

In the present case the corporation answered that it had no funds, nor any means of obtaining such; and also that it would not be profitable to operate the canal if it were put in navigable condition. For the purposes of the decision be low this answer was taken as true, the question of its sufficiency being raised by demurrer.

So long as the corporation retains its franchise it will not be allowed to urge as an excuse for failing to perform any duty required of it by its charter, that the same would be unprofitable. It cannot consistently keep the franchise and refuse to perform the duties incident thereto, for the mere reason that such performance would be unremunerative. If the rights, privileges, and franchises granted by the charter are, in connection with the corresponding duties thereby im

posed, no longer desirable, the company should simply surrender the charter.

As to the validity of the other reason alleged for 408 failing to put the canal in a navigable condition, viz., that the company is without funds, and without means of obtaining funds, the question is by no means so clear. The writer was inclined to hold that, under section 3200 of the code (providing that mandamus will not be granted when it is manifest that the writ would, for any cause, be nugatory or fruitless), the answer of the company presented a good reason for refusing in this case to make the writ absolute. After some reflection, however, I have yielded to the better judgment of my brethren, and concluded to agree with them in holding that the entire matter may be safely left to the discretion of the circuit judge. While it is quite certain that if the company has no funds now, nor any means of obtaining them, and remains permanently in this condition, compliance with the judge's final order will be impossible, so far as the corporation itself is concerned, there may be a change in the present condition of things, and the officers of the company may be able to find some way to raise money in order to obey the mandate of the court. At any rate, they should make a bona fide effort to do so. If, because of the want of means, they cannot comply with the writ, and if, after due diligence, they remain unable to procure the necessary means for this purpose, and make these things appear to the court in any proceeding for contempt which may be instituted against them, we apprehend the presiding judge would take great care to see that no injustice or hardship was imposed upon them, and certainly would not inflict punishment for a failure to do a thing impossible of accomplishment. This matter is not now directly before us, and we leave the question thus raised to be dealt with by the judge of the court below when it arises, if it ever does.

Judgment affirmed.

MANDAMUS AGAINST CORPORATIONS TO COMPEL PERFORMANCE OF PUB. LIC DUTIES.-Mandamus lies to compel a street railroad company to perform the duty which it owes to the public to operate its road in accordance with the provisions of the law under which the road was constructed: City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609; 37 Am. St. Rep. 312, and extended note.

MANDAMUS BY PRIVATE INDIVIDUAL TO COMPEL PERFORMANCE OF PUBLIC DUTY: See the extended note to Crane v. Chicago etc. Ry. Co., 7 Am. St.. Rep. 484.

MANDAMUS-DISCRETIONARY WRIT.-Mandamus is not a writ of right, and is not granted as of course, but only at the discretion of the court te which the application is made: State v. Graves, 19 Md. 351; 81 Am. Dec. 639; Dane v. Derby, 54 Me. 95; 89 Am. Dec. 722, and extended note. To the same effect: City of Potwin Place v. Topeka Ry. Co., 51 Kan. 609; 37 Am. St. Rep. 312 See, also, the extended note to Freon v. Carriage Co., 51 Am. Rep. 798.

ATLANTA AND CHARLOTTE AIR-LINE RAILWAY COMPANY V. LEACH.

[91 GEORGIA, 419.]

RAILROAD COMPANIES - NEGLIGENCE LIABILITY FOR DEATH OF TRESPASSER. — A railway company exercising due diligence and care is not liable for running over and killing a trespasser upon one of its trestles who, through gross negligence, voluntarily places himself in a danger which he could have avoided in the exercise of ordinary care and prudence. The fact that the person so killed voluntarily encumbered himself with the care of a child and lost his life in protecting it does not render the company liable for his death, provided he could have saved his life in the exercise of ordinary care, if not so encumbered at the time of the accident.

Jacksons, Barrow & Thomas, S. C. Dunlap, and W. F. Findley, for the plaintiff in error.

M. L. Smith, J. B. Estes, and H. H. Dean, for the defendant in error.

420 LUMPKIN, J. 1. It is the grossest kind of negligence to walk upon a long and very high trestle of a railroad over which trains are constantly passing. The exercise of ordinary care and prudence would have prevented the plaintiff's husband from exposing himself to danger by going upon the trestle, and even after he went upon it he might, after becoming aware of the approaching train, have saved himself if he had not encumbered himself with the care of a small boy. The evidence shows that the company's servants did all in their power to stop the train after seeing the man and boy on the trestle, and strongly tends to show these servants, the engineer and fireman, saw the persons on the track as soon as it was possible for them to do so. If they were guilty of 421 any negligence at all, it was in failing to see these parties sooner, and this failure would not, under the circumstances, make the company liable. Not only was there a complete absence of wantonness or recklessness, but the negligence, if any, was slight, and the person killed be

ing a mere trespasser, the company, by its servants, exercised all the diligence to which he was entitled.

2. Whatever may be the law with reference to the liability of a railroad company for injuring or killing one who exposes himself to risk and danger by attempting to rescue another in a perilous situation which he had nothing to do with bringing about, certainly when one directly and by his own negligence causes the peril to exist, and because of it exposes himself to danger, he has, as against the company, no excuse for so doing. If so, it would be, in a certain sense, allowing him to take advantage of his own wrong. If a man were to load himself down with chains which could not be speedily removed, or in any other way fetter his movements, and in this condition attempt to walk over a trestle, no one will contend that because of these impediments to progress a railroad company would be liable for running over him on the trestle, when without them he might easily have escaped from the approaching train. So far as the company is concerned it would be entirely immaterial how the man encumbered himself, when but for the encumbrance, whatever its nature, there would have been no injury, and consequently no liability. The plaintiff's husband was doubtless under the strongest obligations, both of humanity and duty, to do all in his power, even at the risk of his own life, to save the unfortunate child he had so heedlessly carried into this most dangerous place, and the proof shows with almost absolute certainty that he actually lost his life because of his unavailing efforts to get the child over the trestle before the train struck them. In making these efforts, however he was neglecting his own safety, and thus violating his duty to the company. He had the choice of two fearful alternatives, and he undertook, as was creditable of him, to perform the duty he owed the child; but it must not be overlooked that he himself was responsible for the situation that forced this awful alternative upon him. He had no right to go upon the trestle at all, and in no event could he voluntarily encumber himself in any manner, and then rely upon the encumbrance as an excuse for not escaping. Of course, the plaintiff, his widow, can have no better right against the company than he would have had he been only injured and was suing for the injury.

422

3. Under the facts of this case she was not entitled to recover. Her husband's death was due to his own utter want

of care and prudence in going upon the trestle, in going there encumbered with the boy, and in failing to take the requisite steps to save himself after the danger from the train became imminent and the opportunity to escape was still at hand. Judgment reversed.

RAILROADS LIABILITY TO TRESPASSERS ON TRACK.-When a trespasser upon the track of a railroad is injured by a train the company is not liable unless the injury was wantonly and willfully inflicted, or was the result of such gross negligence as evidences willfulness: Lake Shore etc. Ry. Co. v. Bodemer, 139 Ill. 596; 32 Am. St. Rep. 218. To the same effect see Central R. R. etc. Co. v. Vaughn, 93 Ala. 209; 30 Am. St. Rep. 50, and extended note.

REED V. AUBREY.

[91 GEORGIA, 435.]

EXECUTORS AND ADMINISTRATORS-SALE OF MORTgaged LandS BY.-A regular and valid sale by an executor during administration of land belonging to the estate and mortgaged by the testator vacates proceedings to foreclose the mortgage, and bars the condition of a judgment of foreclosure; but if such sale is voidable this rule does not apply, and the mortgagee may elect not to ratify the sale by continuing to prose. cute his proceedings to foreclose the mortgage, as well as by equitable action against the executor to have the sale vacated.

HUSBAND AND WIFE-AGENT'S WIFE INCOMPETENT TO PURCHASE AT HIS SALE. A husband who is an agent to sell land has no power to make a valid sale thereof to his wife. EXECUTORS AND ADMINISTRATORS-SALES OF LAND-WIFE OF AGENT or EXECUTOR AS PURCHASER - EFFECT ON Mortgagee. - If a husband acting as agent for an executor sells land belonging to the estate at public sale for cash, and the father of such agent's wife bids off the land on his own account, but in reality for the benefit of his daughter, without paying any thing or taking a deed, the sale, as to him, is incomplete, and if the daughter is afterward, with the consent of all of the parties, substituted in place of her father as purchaser, and the terms of the sale are so modified as to make it partly for cash and partly on credit, this is not a binding administration, as against a mortgagee of the land, from the testator, and such mortgagee may elect either to ratify or repudiate such sale.

ACTION to foreclose a mortgage made by W. Aubrey and wife. After the death of said Aubrey his wife was appointed his executrix; as such executrix Mrs. Aubrey gave her son, G. H. Aubrey, a power of attorney to sell the land in dispute for cash, to pay debts of the testator and to make deed to the purchaser. After due and proper proceedings the land was sold by the sheriff at public sale, one Smith, the father of

AM. ST. REP., VOL. XLIV.-4