Volume 1 — Georgia Reports

Motion to Dismiss Writ of Error. This cause was called up in its order, when Akin, of counsel for defendants in error, moved to dismiss the writ, on the following grounds : 1. Because it did not appear from the record before the court, that the bill of exceptions was made out, and certified by the presiding judge, within four days after the trial, as required by the Act organizing the Supreme Court. 2.

Ejectment. This was an action of Ejectment, tried in the Superior Court of the county of Cass, before Judge Wright. The transcript of the record discloses that this action was predicated upon two several demises : the first from James.

<p> Motion to dismiss Writ. </p>

<p>Service of the Rule Nisi upon the complainant’s Solicitor slating the grounds of the application, and fixing the time and place of hearing the motion to dissolve an Injunction in vacation, on Ihe coming in of the answer, is sufficient service.</p> <p>Where the answer plainly and distinctly denies the facts and circumstances upon which the Equity of the bill is based, the Injunction will be dissolved.</p> <p>Upon a motion to dissolve an Injunction, the court will look to such parts of the answer only, as are responsive to the Bill.</p> <p>A defendant in Equity cannot both charge and discharge himself by his answer. Incases where Equity interferes to execute preventive justice, by enjoining trespasses, she still forbears to intermeddle with the title.</p> <p>Trespass will be enjoined, in all cases, where from the nature of the trespass, or the circumstances of the parties, the remedy at law cannot be full and adequate.</p> <p>All persons are entitled to be protected in the use, integrity, and value of their property ; and where courts of law cannot give such protection ; whether because of the tardiness of the remedy — the peculiar nature of the property injured — the insolvency of the wrong-doer, or the plaintiff’s inability to prove his damage— Equity must needs interfere, in order that justice be done, with her harsh, but indispensable process of Injunction. An Injunction will not be dissolved upon the ground that the title of the complainant is questioned by the answer. But where the title is denied, the courts will look more closely to the character of the trespass.</p>

In Equity. This cause was brought before the Supreme Court at Cassville, March term, 1846, upon the transcript of the record, bill of exceptions and writ of error thereon from the Superior Court of Floyd county. Its history is this.

This was an action of Assumpsit, tried before Judge Weight, in the Superior Court of the county of Floyd. It was predicated upon a note of hand for $892 50, dated March 11, 1841, due six months thereafter, payable to defendant in error, and subscribed by one Robert Ware, and the plaintiffs in error, John H. Lump-kin and Wesley Shropshire. Ware having died, Lumpkin and Shropshire were the only parties originally sued.

This was a suit in equity brought in the Superior Court of the county of Putnam, for the purpose of recovering back usury from the defendant in error alleged to have been paid by complainants’ intestate, while in life. The defendant answered the bill, and also pleaded specially the statute of limitations.

<p>Co-executors and Administrators are, in the eye of the law, considered as but one-person, for many purposes : and the acts of one will be considered as the acts of all, in reference to the administration of the assets. But one co-executor or administrator cannot be made chargeable with the devastavit of his companion, where he has not, in any manner, contributed thereto.</p> <p>No recovery can be had upon an administration-bond against the securities, at the suit of a creditor, until a devastavit against the administrator is first established according to law. The liability of the securities is an ultimate liability, not primary.</p>

<p>The question whether a Garnishee is liable for interest upon the fund in his hands, or the debt owed by him, which is sought to be recovered by process of Garnishment, is not one of strict law, but of discretion, depending upon considerations of equity growing out of the facts and circumstances of the particular case.</p> <p>When the Garnishee resists the payment of the fund in his hands into court, or controverts his indebtedness, he will be held liable for interest.</p> <p>It is a general rule, that persons who are prevented from paying over money by process of the court, as Summons of Garnishment, Writs of Injunction, and the like, are not liable for interest.</p>

This was an action on the case, tried in ¡he Superior Court of the county of Richmond, before Judge Gamble, at March Term, 1846 ; the facts of which are as follows : On the 4th of October, 1840, William Glendenn.ing became the proprietor of twenty-five shares of bank stock of the Augusta Insurance and Banking Company.

An action of Assumpsit was instituted in Scriven Superior Court, on a bill of exchange drawn by John Johnson in favor of Henry Beaufort upon Edward J. Black, which was accepted, and afterwards transferred to Neil Ballingall. There was a verdict for plaintiff, and appeal entered by the defendants. On the final trial defendants attempted, under the general issue, to show illegality in the consideration of the instrument, to wit, that it had been given to compound a felony.

<p>The “ eventual condemnation money” secured by an injunction bond, is the amount ultimately fixed, and settled by the judgment or decree of the court in the case.</p> <p>The final judgment or decree of the court, in the case in which the injunction is sanctioned, affords the only legal evidence of the measure of damages, to bo recovered in a suit on the injunction bond.</p>

<p>This was an action of covenant upon warranty of soundness of a slave, tried before J udge Merriwether, in the Superior Court of the county of Greene, at March Term, 1846. The facts of the case are set forth in the opinion delivered by the Superior Court, to which the reader is referred.</p>

An action of debt was commenced by James Thomas against- Darius Gilbert, to the February term, 1840, of the Inferior Court of Hancock County. Held: that the administrator de bonis non had a right to maintain an action against the displaced executor for all the assets which had come into his hands, and that the act of the last General Assembly was only declaratory of this pre-existing right.

This was an action of debt on a guardian’s bond, tried before Judge Merriwether, in the Superior Court of the county of Morgan, at March Term, 1846. On the 5th of December, 1835, the defendant in error, William Woods, was appointed guardian of Wilson Woods and Augustus Woods, orphans of James Woods, deceased, and gave bond with one John Woods and the defendant, John Vason, as his securities.

<p>This was an issue tried before Judge Gamble, at the April term, 1846, of Burke Superior Court, between the above-mentioned parties, who were plaintiffs in execution against one Byne, and who were respectively claiming money raised by the sale of Byne’s property, upon a rule taken against the sheriff at the instance of the defendants in error, each claiming the money on the ground of priority of their respective judgments. It appeared that a judgment was confessed by the defendant in execution (Byne) to the defendants in error at November term, 1842, of Burke Superior Court, from which an appeal was taken by Byne, and the cause continued pending on the appeal until November term, 1843, when it was dismissed by the consent of parties, (Stovall, Simmons & Co., and Byne,) and the verdict and judgment confirmed, and the execution issued from the judgment in favor of Stovall, Simmons & Co. was claiming the money. While the cause was thus pending on the appeal, at the term preceding its dismissal, Noble A. Hardee and others, plaintiffs in error, recovered and signed judgments against Byne, whose executions were claiming the money adversely to that of Stovall, Simmons & Co. Upon this state of facts the court below decided that the judgment of Stovall, Simmons & Co. was, by priority of date, entitled to the money, and ruled accordingly ; to which the plaintiffs in error excepted, and assign for error in said decision :</p> <p>1st. That the judge erred in deciding that, where an appeal is entered in any cause in this State, the lien created by the first judgment (except so far as the same arises out of, and is authorized by, the act of 3 822) on the property of a defendant is not destroyed by said appeal.</p> <p>2d. The Judge erred in deciding that the appeal does not (in language which use has made in our Slate legitimate) carry the case up in its totality, and subject to all new lights which may be thrown upon it in law and fact; subject to all amendments of the pleadings ; and operative until the court appealed to renders its judgment or decision upon said appeal, and orders and directs an effective judgment, upon which execution may issue, to enforce the same, which takes its lien from the time of its entry.</p> <p>3d. The Judge erred in deciding that if the last judgment is to relate back to the lime of the first judgment, it would not be retroactive in its effect, and therefore contrary to law.</p>

<p>This was a bill in Equity, brought in Putnam Superior Court, against Stephen B. Marshall by Leonard F. Choice, an infant, who sued by his guardian, John Graybill. It. alleged that Leonard Fretwell, the grandfather of the complainant died testate in the year 1820, leaving, unrcvoked and in full force, his will — a copy of which is hereto appended.(a) That, by the third item in said will, particular negroes were, by the testator, bequeathed to his daughter, Mary Fretwell, during her natural life, and the heirs of her body foreverF That after the death of her father, Mary Fretwell intermarried with one William Choice ; and that the said negroes, by the assent and approbation of the Executors, went into the possession of her said husband, who held them by virtue of his marital rights. The bill further stated that the complainant was the only child of the aforesaid marriage; that Mary, the mother, was dead ; and that he was entitled to all of the negroes, with their increase mentioned in the third clause of the testator’s will. That Cloe, one of said negroes with her descendants — children and grandchildren— had got into the possession of the defendant by purchase or otherwise, who refused to deliver them up, or account for their hire. There was the usual prayer for relief. To this bill the defendant demurred. First, for want of Equity ; and, secondly, because the party had full and complete remedy at common law. The cause came on for hearing, before the Hon. J. A. Merriwether, circuit Judge, March Term, 1846 ; who sustained the demurrer on the first ground, and decided, that by the third item in her father’s will, Mary Fretwell took an absolute estate in the property bequeathed in said clause — the words “ heirs qf%her body forever,” as used therein, being words of limitation, and not of purchase. To ‘this opinion of the court below, the complainant excepted, upon the ground, That the words used in the third item, conveyed an estate for life only to Mary Fretwell, with remainder in fee to complainant as a purchaser.</p>

This was an action brought against the defendant, as endorser of a promissory note made by Joseph R. Thompson, dated 7th of January, 1842, and due 61 days thereafter, for $600.

<p>Equity cannot relieve an administrator after two judgments de bonis testatoris and de bonis propriis have been successively recovered against him at law.</p>

<p>This was an action of assumpsit for money had and received, the object of which was to recover usury back, tried before Judge Scarborough in Twiggs Superior Court, April Term, 1846.</p> <p>Jt appeared in evidence on the trial, that in the early part of the year 1838, the plaintiff, through Henry Bunu, borrowed from the defendant $2,940, and gave his note, with Bunn as his security, for $3,500, to fall due on the 1st of January, 1839. That he renewed, for the year 1839, by giving a note for the usury of $700 ; and for the year 1840, by giving a nofe for the usury of $840. The note for the original loan, and also those given in renewal, were made payable to the defendant, and were subscribed by the plainriff as principal, and the said Bunn as his security, whom the plaintiff secured by mortgages on property.</p> <p>Before the maturity of the last note, given in renewal, Bunn took up from the defendant all of the said notes, amounting, in the aggregate, to $5,040, principal, and shortly afterwards, the plaintiff reimbursed him in property, and the notes and mortgages were given up and satisfied.</p> <p>After the close of the evidence and the argument of counsel, the Judge of the court below charged the jury, amongst other things, that if Bunn paid defendant, even before the maturity of the note, and, subsequently, the plaintiff paid Bunn, to indemnify him as surety, plaintiff must fail in his action. That if plaintifi had paid Bunn, before he, Bunn, paid defendant, the law implied an agency of Bunn to plaintiff; but that hero the proof was, that plaintiff paid his security after the security had paid the creditor. If a security pay an usurious contract, and subsequently, his principal pay him back the amount so paid upon the contract of surety-ship, an action cannot be supported by the principal debtor against the principal creditor, for money had and received. That a security was not compelled to plead usury, but might pay the whole amount, and recover of the principal for so much money paid to his use. And the jury, under the charge of the court, found for the defendant.</p> <p>To which the plaintiff’s counsel excepted.</p>

<p>The answer of a, defendant is evidence for him, so far as it is responsive to the ceso made by the bill, or connected necessarily with the responsive matter, or expía natory of it. As where it is charged in the bill that the defendant in execution is in possession of the property conveyed by him in his co-defendant in the bill, as being prima fade evidence of fraud — the answer admitting the possession, and showing, by way of explanation, that the defendant in execution holds as tenant of the vendee, paying him rent and hire therefor, is responsive to the bill, and therefore evidence in his favor.</p> <p>In the construction of a statute, when the words of the enacting clause are clear and positive, recourse must not be had to the title or the preamble. They serve to assist m removing ambiguities, where the intent is not plain and manifest. The title of an act and the preamble, are, strictly speaking, no parts of it.</p> <p>A bona fide and absolute conveyance of any part, or the whole of his estate, by a person unable to pay his debts, (even to a creditor in satisfaction of a pro-existing debt, whereby another creditor is excluded from any share or portion of the estate so conveyed,) if the same be free from any trust for the benefit of the seller, or any person appointed by him, is a valid conveyance as against such excluded creditor, and ail other persons. Such a conveyance is not obnoxious to tile statute of 1818. (a)</p>

This was a suit originally brought in a Justice’s Court by the plaintiff in error, against the defendants for tho recovery of damages for stock alleged to have been killed on the railroad by defendants’ cars running over them, anterior to the enactment of the statute of 1843, entitled “ An act to amend an act to define the liabilities of tho several railroad companies in this State, for the loss of stock killed or wounded by the running of cars or locomotives on their roads,…

<p>This was a bill in equity, tried before Judge Fleming, in Chatham Superior Court, January Term, 1840. The bill was instituted at the instance of the defendants in error against the plaintiffs, charging that on or about the 2d day of June, 1840, the complainants advanced to Edward btiles, at his request, the sum of $2,125 86, and took his note for the same, payable on the first day of December thereafterwards : that on the 30th of that month ho paid them on said note $592 01, and subsequently on the 20th of February, 1841, the further sum of $89 75, leaving still due and unpaid the sum of $1,475 26 ; that the complainants, having-ascertained that said Edward was greatly embarrassed in his circumstances, and believing him to bo insolvent and unable to pay his debts, instituted suit against him for said balance in the inferior Court of said county of Chatham, returnable to May Term, 1842, of said Inferior Court; and at the January Term, 1843, recovered judgment against him therefor, with interest and cost, and from which execution was issued. That about the 19th of April, 1842, and but a few days after the commencement of said suit by the complainants, the said Edward being in failing circumstances, and unable to pay his debts, as they believed, executed to Joseph Jones, Charles West, and Roswell King, junior, (three of the plaintiffs in error,) as trustees of Caroline Clifford Stiles, a mortgage of nine negro slaves, to secure the payment of three notes, bearing date the 1st of January, 1836, and payable respectively at one, two, and three years after date thereof, and the interest, which up to that time had accrued, being debts long antecedent to, and not contracted at the time of the execution of said mortgage. That said mortgage was executed in the county of Chatham aforesaid, and having been made and executed by the said mortgagor to secure debts long antecedent, and at a time when lie was unable to pay his debts, with interest, lo prefer the said mortgagees, and to exclude the other creditors of the said mortgagor from an equal share, or portion of the estate so assigned, transferred and mortgaged, and said mortgage containing a condition that the, surplus of moneys arising from the sale, of said negroes, after payment of said notes, amounting to $798 98 principal, besides interest and charges, should be, returned to the said mortgagor, being a trust in favor of him, the scád Edward, was under the laws of Georgia aforesaid null and void, and considered in law' and equity as fraudulent against creditors. Notwithstanding which, the said trustees caused the said mortgage to bo foreclosed at the February Term, 1843, of the Superior Court of the said county of Chatham, and execution to be issued thereon, and required the said John E. Davis, sheriff of said county, (one of the plaintiffs in error,) to sell said nine negroes, so illegally mortgaged, under the execution issuing from said foreclosure in favor of said mortgagees, and to pay over the proceeds of said sale to said mortgagees, the trustees aforesaid; and the said sheriff’ proceeded to sell said slaves, and holds in his hands, as sheriff, a large sum of money, being such proceeds, which are claimed under the aforesaid illegal mortso foreclosed as aforesaid. That the had said trustees to desist from their said claim, founded upon said illegal mortgage, and to permit the complainants, with other judgment creditors of the said Edward, to share'pro rata the said proceeds, and to permit the said John E. Davis, sheriff as aforesaid, to retain said proceeds, to be applied to the payment of said judgments, &c. ; and concluded with a prayer for injunction, and for a decree directing said proceeds to be paid over to the judgment creditors, wholly disregarding the claims set up under the said mortgage, and for general relief, &c.</p> <p>The plaintiffs in error, who were defendants in said bill, answered, admitting the sale of the negroes under the mortgage fi. fa., and the proceeds of the sale held up in the hands of the sheriff, except so much thereof as was necessary to pay costs, and an execution older than the mortgage ; the balance left on hand being $1,017 73. Divers executions against said Edward Stiles, besides the mortgage fi.fa., were in the hands of the said sheriff, unsatisfied ; and it appeared that he had no other property at the time of the levy, except the mortgaged negroes.</p> <p>The said Edward Stiles, answering the bill, stated that he had mortgaged to the defendants in error, to secure the payment of their said debt, a tract of land in the couhty of Bryan, of five hundred -acres first quality inlaqd swamp, called “ Crow-lane,” with the improvements thereon, worth, as he believed, three thousand dollars at the time of giving the mortgage in 1841; and at the time of his answer it was worth $2,000. That said mortgage had never been foreclosed, and remained of force and effect, and was the oldest lien against him. That sometime in the year 1836 he purchased a plantation called “ Selina,” in the county of Bryan, from said trustees, and gave a mortgage upon it to secure the purchase-money. In April, 1842, the said Edward, being desirous of disposing of said plantation, proposed to said trustees, or their agent, to give up the mortgage thereon, and that he would substitute in its stead a mortgage on the nine negro slaves referred to in said bill, the amount of the notes and the interest accrued thereon being then nearly twelve hundred dollars, which was accepted, and the mortgage on the negroes aforesaid was executed and delivered. That at the time of executing said mortgage he was solvent, and able to pay his debts with his property at a fair valuation. That said mortgage was executed in good faith, and with no view of excluding any one of his creditors from a fair and just participation of his estate, which he believed to be ample for the payment of his debts at a fair valuation ; nor did he have any view of securing to himself any benefit by way of trust, to the exclusion of his other creditors, for any surplus remaining after satisfaction of said mortgage to the trustees. That he had no intention to prefer one of his creditors to another, or to reserve any trust to himself, to the exclusion of his creditors.</p> <p>The answer of the trustees corroborated that of the said Edward Stiles as to the mortgage on the place called Selina, and the consideration therefor, and the circumstances under which the same was given, and the substitution, in its stead, of the mortgage upon the nine slaves, and the reasons therefor : They stated that the whole matter on the part of the trustees was conducted by the Reverend Joseph C. Stiles, the husband and father of their cestui que trusts, who, they believed, had no design whatever to defraud any of the creditors of the said Edward Stiles in the said transaction ; they had no knowledge at the time of the execution of the mortgage on the slaves, that the said Edward Stiles wasin failing circumstances. They denied the fraudulent trust charged 5a the bill, and insisted that the. condition embraced in the mortgage, which entitled said Edward to any surplus, was not such a trust as was contemplated by the statute, because without such condition the said Edward would have been entitled by law to any such surplus.</p> <p>Upon, the trial of said bill in the court below, the solicitors for the plaintiffs in error offered Benjamin Edward Stiles as a witness, who was objected to on the ground of interest; which objection being overruled, and the witness examined, it was subsequently discovered that the said witness was a surety of the plaintiffs in error on their appeal bond in the case, and the objection was again renewed on this ground : — their counsel contended that the objection came too late, which being overruled by the court, they moved to substitute another surety in the place of the witness, but the presiding judge decided that the appeal bond could not be altered for that purpose; that it would not then be the bond which had been filed, and the appeal would be filed without bond within the time prescribed by law. Whereupon the counsel for the plaintiffs in error excepted.</p> <p>The counsel for the plaintiffs in error then submitted to the court that a mortgage was not such an assignment, transfer, or conveyance in trust as was intended and embraced, under and by the provisions of the act of Georgia of 1818, to prevent fraudulent conveyances, to deprive creditors from an equal distribution of an insolvent’s estate, and that tinder the laws of Georgia, a mortgage was but a security for a debt, and did not change the ownership of the property: And the presiding judge decided, and so charged the jury, that a mortgage was such an instrument as was embraced under the said act, if made under the circumstances stated in said act, to bring it within its operation. To which the counsel for the plaintiffs in error excepted.</p> <p>The counsel for the, plaintiffs in error then submitted to the court, that if a mortgage was an instrument embraced under the act of 1818, it could only be so, when made by an insolvent to secare aa antecedent debt, under the apprehension and in expectation of immediately winding «p, and with the intent and motive to give a fraudulent preference^ and the said court decided, and so charged the jury, that if the party was insolvent at the time the mortgage was made, it was within the act, although neither the mortgagor nor mortgagee knew of such insolvency at the time ; and although they did not act under the motive or with the intent to give a fraudulent preference, and although the mortgagor was woundup by executions twelve months after the date of the mortgage, provided that the jury should be satisfied that the mortgage was voluntary, and not forced by the vigilant creditor. To which the counsel for the plaintiffs in error excepted.</p> <p>In behalf of the plaintiffs in error it was proved on the said trial that in 1836 the said trustees sold to the said Eward Stiles a tract of land in Bryan county, called Selina, for ($800) eight hundred dollars, and took three promissory notes, bearing interest, in payment; and to secure which notes the said trustees took a mortgage from the said Edward Stiles, the vendee, on the said Selina plantation ; that in the same year the said Edward Stiles exchanged the said plantation for another with Alexander Stephen, who had knowledge of the mortgage, and under an agreemeat by ike said Stiles to procure the removal and cancellation of said mortgage ; that in April, 1842, upon the arrival of the said Joseph C. Stiles into Georgia from Kentucky, he being the husband and father of the cestui que trusts of the Selina plantation, the said Edward Stiles arranged with him, by the consent of the said trustees, to substitute a new mortgage upon nine slaves, to secure the said notes and interest, in the place of the mortgage on Selina, which new mortgage being taken, the old mortgage on S'elina was given up to the said Edward Stiles ; and the counsel for the plaintiffs in error thereupon submitted to the court that, under these facts, the latter mortgage on the negroes could not be within the provisions of the act of ISIS, even admitting the insolvency of the said Edward Stiles at the time, because the relinquishment of the old mortgage was a present good and valuable consideration for the new; and the said court decided, and so charged the jury, that the new mortgage was for the security of the notes, and the interest which had accrued from 1836 to 1842, when the mortgage was given ; that the interest was a sum greater than the value of the Selina plantation and mortgage on it; and that so far as the new mortgage was given to secure the interest, it was within the statute, and so far void; and that being void in part, it was, by the act, void altogether. Whereupon the counsel for the plaintiffs in error excepted.</p> <p>Upon these several exceptions the error was assigned.</p>

<p>This was an action on the case, brought by the defendant in error against the plaintiff in error, in the Superior Court of Chatham county, and was tried if» said Superior Court before Judge Fleming, at May Term, 1846.</p> <p>For the facts of the case, and the error assigned, see the opinion of the court, Ksapra.)</p>

This was an action of indebitatus assumpsit, brought by the defendants in error against the plaintiff in error, in the Inferior Court of the County of Chatham, to recover $350, for so much money paid by them for his use — being a suit for contribution. The plaintiff in error by his attorneys pleaded the general issue, and a.so a plea of set off.

<p>This was a claim case, tried before Judge Fleming, in Chatham Superior Court, May Term, 1846. A distress warrant for rent, issued at the instance of the defendant in error, against one Charles E. Mustin, was levied upon sundry articles of merchandize, which were claimed by the plaintiffs in error. Upon the trial, it appeared in evidence that the defendant in execution, Mustin, rented the store which he occupied in Savannah, from the plaintiff in execution, Scudder, and owed him a balance for rent of $210 83, for which the distress warrant issued. It further appeared in evidence, that the defendant in execution, Mustin, was accustomed to deal with and obtain goods for'his store, from the claimants, Cameron & Co., merchants in Charleston, S. Carolina. The claimants held the promissory notes of the defendant in execution ; that on the 20th of October, 1S45, the defendant in execution sold to the claimants, by a written bill of sale and invoice, the goods thereto annexed, which were proved and given in evidence — the goods and articles in said invoice mentioned, being all ,the goods in his store. The consideration for the sale was the delivery up by the claimants of the promissory notes aforesaid of the defendant in execution, amounting to $100, or thereabouts, more than the value of the goods sold, as inventoried and invoiced in the schedule annexed to the bill of sale.</p> <p>It was proved that the articles, levied on and élaimed, were contained in the schedule attached to the bill of sale. It was further proved that the defendant had no other property, except a horse and wagon, and some other small matters, which the witness, Blackwood, said were also sold to the claimants, and that he attested a bill of sale for them, but none was adduced.</p> <p>It was further proved that the defendant in execution, at the time of the sale, was considered insolvent. The store and goods in it were delivered at the time of the sale to the agents of the claimants, and by their orders the goods and articles were subsequently sold at auction by an auctioneer.</p> <p>Upon this state of facts, the judge below charged the jury, that if they found the defendant in execution was insolvent at-the time of said sale, and that the consideration paid for the goods by the claimants was an antecedent debt due by the defendant to claimants, then, that said sale, however absolute, was not bona fide, within the meaning of those terms in the statute of 1818 of Georgia; that such sale was in violation of that act, and could not be sustained, because it would be a preference of one creditor to another, which the act was intended to prevent.</p> <p>The jury, under the charge of the court, found the property subject.</p> <p>"Whereupon the counsel for the plaintiffs in error, who were the claimants in the court below, excepted to the charge of the court, upon the ground that the sale, being absolute upon its face, accompanied with delivery of possession, and no secret trust proved, was bona fide under the act of 1818, and that the absolute payment of an antecedent debt is a o-ood consideration, to support a bona fide sale, by an insolvent under the provisions of said act.</p>

<p>This was a bill in equity, tried before Judge Fleming, in the Superior Court of the county of Chatham, May Term, 1846.</p> <p>The facts of the case, and the errors assigned in the court below, being fully set forth in the opinion of the Supreme Court, are omitted here.</p>

<p>A writ of error will not be sustained, even under the statute organizing the Supreme Court, on account of the court below refusing to grant a continuance in a causo, unless it is a most plain and palpaple instance of the arbitrary and oppressive exercise of the discretion necessarily vested in them by the law.</p> <p>The practice in England, upon the construction of the act of 33d Edward 1, of passing jurymen, in criminal cases, until the whole panel is exhausted, and a jury not made, before the crown can be called upon to show cause, is not authorized in this Stale, since the adoption of the Penal Code.</p> <p>In order to impeach a witness, by showing that he has made contradictory statements, it is not necessary that he absolutely deny the declarations imputed to him. It may bo done when he says he does not recollect if the subject matter of those conversations bo relative to the issue.</p> <p>Witnesses who testify as to what they saw respecting a transaction after night, and by star-light, aided by lamps upon the surrounding buildings, cannot be impeached by persons who propose to prove that they have made experiments on other nights between the same hours, and with the same degree of light, and were unable to discern objects accurately.</p>

This was an action predicated upon the foregoing instrument, tried before Judge Alexander, in the Superior Court of the county of Stewart, at April Term, 1846. For the facts and circumstances of the case, and the grounds of error alleged, the reader is referred to the opinion of the Supreme Court.

This was an indictment for murder, in the Superior Court of the county of Stewart, tried before Judge Alexander, at April Term, 1846, and resulted in a conviction of the prisoner for voluntary manslaughter. The bill of indictment in this case contained a single count for murder, and was found at the October adjourned term of said court, in the year 1844.

<p>Books of accounts, about to be tendered in evidence, must be first proved to be the original books of entry, by the oath of the party introducing them, and then be submitted to the inspection of the court; and, if found free from all l'raudulentjappearances or circumstances — such as material and gross alterations, false additions, Ac., and contain the first entries or charges, by the party, made at or near the time of the transaction tobe proved — they are competent If the' contrary is discoverable from the books themselves, or comes out upon the examination of the party, they ought to he rejected. The credibility, both of the books and of the party, is to be weighed by the jury, and depends upon various circumstances, of which they are the judges.</p> <p>Separate sheets of paper, containing the original entries of an account for lumber, though such sheets are attached to the declaration as the bill of particulars, are admissible in evidence, upon the footing of original books of accounts, and under the same rules and restrictions as aro prescribed by the courts in the case of merchants’ or shopkeepers’ books.</p> <p>it is not material whether the original entries of an account be made in a book or upon a separate sheet of paper; it is only material that it be an account of the dealing between the partios, and be primary and original.</p> <p>When the plaintiff’s only evidence is his original books or entries of his account, it becomes indispensable to prove aliunde by one or more persons who had dealt with him, that he was in the habit of keeping correct accounts.</p>

This was an action of assumpsit, tried on appeal before Judge Warren, in the Superior Court of the county of Sumpter, at May Term, 1846. It was predicated upon a note, made by the defendant, payable to James C. and Jephtha B. Pickett, for $480 00, due the 25th day of December, 1843, and endorsed by Jephtha B. Pickett to James C. Pickett, and by him to Hilliard J. Reed, the plaintiff in error.

<p>For the facts and grounds of error in this case, see the opinion of the Supreme Court.</p>

This was an action of debt, brought by the plaintiff’in error against the defendant, upon a promissory note for $1,115 76, dated the 26th of January, 1842, and due the 1st of January thereafter, made by the defendant in error, and T. & W. Sanders, and being a joint and several note; the defendant in error being principal, and T. & W. Sanders securities upon the contract upon which the note was given. To which action the pleas of usury and payment were plead.

<p>This was a bill of indictment, founded upon a presentment of a grand jury at Sumpter Superior Court, againstthe plaintiff in error, for a high, misdemeanor, for having and keeping about his person, and elsewhere, a pistol, the same not being such a pistol as is known and used as a horseman’s pistol, under an act of the General Assembly of the Stale of Georgia, entitled “ An Act to guard and protect the citizens of this State against i'he unwarrantable and too prevalent use of deadly weapons,” assented to on the 25th December, 1837 ; upon which bill was endorsed, by the solicitor-general, that the same was “founded on the presentment of a grand jury.”' — The bill of indictment, so made out and endorsed, as founded upon presentment, 5fc., had not at any time been sent out toa grand jury, and found a true bill: that the only evidence of there having been a presentment made in said case was a paper, purporting to be a presentment of the grand jury for the November Term, 1844 , of said court, and an entry made upon the minutes of the court for the said term, as follows, to wit:</p> <p>“ The State vs “Hawkins H. Nunn</p> <p>And the names of the grand jurors inserted in the said paper, purporting to be the presentment, were the names of the grand jurors of said term.</p> <p>At May Term, 1846, of said Superior Court, the said bill of indictment came on to be tried before Judge Warren ; when the plaintiff in error having been arraigned, and plead not guilty by his counsel, moved to quash the indictment on the following grounds :</p> <p>1st. That the before-recited statute of the State of Georgia, assented to on the 25th of December, 1837, under which said indictment was found, is contrary to, and in violation of, the Constitution of the United States of America.</p> <p>2d. That said statute is contrary to, and in violation of, the Constitution of the State of Georgia.</p> <p>3d. That the indictment does not show and charge that the defendant below carried the pistol, with the having and keeping of which he is charged, secretly.</p> <p>4th. That there is no sufficient legal evidence of record upon the minutes of the court, at the term at which the presentment, upon which said indictment is framed, purports to have been made, that said presentment ever was in fact made by the grand jury, or delivered into court.</p> <p>5th. That the bill of indictment was never sent before any grand jury for action upon it.</p> <p>6th. That said statute is void for uncertainty, and for the absurdity and contradiction in its different provisions.</p> <p>All of which said grounds were overruled by the court below ; and the plaintiff in error excepted. George Dykes, a witness for the State, was then introduced, and proved that on the 4th day of November, 1844, the plaintiff in error, in said county of Sumpter, had a pistol in his hand, which was not a horseman’s pistol, but a breast pistol. And thereupon, after argument, the judge of the court below charged the jury that the aforesaid statute was constitutional and of force, and if they believed that the defendant had the pistol, they should bring in a verdict of guilty. To which the plaintiff in error also excepted.</p>

<p>In applications for new trials, a brief of the testimony, approved by the court, or agreed upon by the parties or their counsel, must be filed ; and such approval or agreement, as the case may be, must be entered upon the minutes at the term at which the judgment is rendered, and the rule for new trial is applied for.</p> <p>A rule nisi for a new trial will not be granted in Georgia at the instance of a party, unless application is first made during the term at which the judgment was rendered, and unless such application appear upon the minutes of that term.</p> <p>The judges may make rules for new trials returnable in vacation, in cases where the application has been first made in term, and recorded, and where the record shows that such rule is made so returnable in vacation.</p> <p>When the term of the court at which the judgment was rendered has passed, and no application made and recorded at that term, the record in the cause having been finally made up, the court has no power to grant a new trial, except in some peculiar and extraordinary cases.</p>

The decision of the court below, complained of in the bill of exceptions, was upon a motion for a new trial. The defendant in error brought an action of assumpsit against the plaintiffs in error, in Early Superior Court, upon two general money counts: one for money had and received, and the other for money paid, laid out, and expended ; to which the plaintiffs in error pleaded the general plea of non assumpsit.

This was an action of debt, brought by the plaintiff in error against the defendants in error, who were liable as partners, under the style of T. & W. .Sanders, upon a joint and several promissory note for $1,115 76, made by one Wiley Pearce and the defendants, he being principal and they only securities upon the contract upon which the note was given. The note was given on the 26th day of January, 1842, and due on the 1st day of January ensuing.

<p>A plaintiff in trover for certain slaves, required bail, under the second section of the act of 1821, entitled “An act to quiet and protect the possession of personal property, and to prevent the taking possession thereof by fraud or violence.” The defendant was arrested, and the slaves seized by the sheriff under the process, and being unable to give security under the act, the plaintiff thereupon gave security under another provision of the same act, and received from the sheriff the possession of tlie slaves sued for, and afterwards, and without any trial, dismissed his action of trover, still retaining the possession of the slaves thus obtained. The defendant then sued the former plaintiff in trover for the‘same slaves, and insisted that his possession, obtained as aforesaid, was tortious:</p> <p>Held, that said possession was not tortious, but was a lawfully acquired possession, under and in pursuance of the above-recited act.</p>

<p> A brief history of the action of Assumpsit. </p> <p> Simple and short precedents in Debt and Assumpsit. </p>

This was a bill in equity, filed by the plaintiffs, by their next friend, James A. Slaton, in Mpscogee Superior Court, against Watson and Walker, executors of James C. Watson, deceased, and divers others, who were judgment creditors of said deceased.

This cause came before the Supreme Court, upon the transcript of the record and hill of exceptions, from the Superior Court of the county of Muscogee.

<p>An appeal may be taken from a confession of judgment, reserving the right of appeal, as well as from the verdict of a jury.</p> <p>The recognizance of appeal need not he attested by the clerk.</p> <p>It is not the duty of the clerk to certify the day on which the court adjourned, in sending up the appeal. It will be presumed, unless the contrary appear, that the appeal was entered within the four days after the adjournment of the court at which the verdict was obtained.</p> <p>The entry on the bench docket, of two general continuances, without anything appearing on the minutes of the court, wiSl not work a discontinuance of a cause, so as lo entitle the defendant to a judgment of non pros., under the law and the rules of practice in this State.</p> <p>If the clerk send up the original papers, together with a certified copy of the appeal bond, it is a compliance with the act which requires him to transmit the appeal.</p> <p>An appeal may be entered by the attorney of record. The law does not require that the parly appealing should sign the bond. Ho must pay costs, and give security for the eventual condemnation money. His signature to the bond is only necessary, therefore, to signify his assent to (he appeal. If put there by the attorney at law, ho will be bound by the bond, if be subsequently recognise and ratify the act.</p> <p>A declaration, seeking to charge an attorney, on a promissory note placed in his hands far collection, must either allege that he received the money, or that Ihe debt was good, and a reasonable time had elapsed, and that it had not been collected and paid over, or that the claim had been lost by neglect, or want of professional skill.</p> <p>An endorser on a note is an incompetent witness, on the score of interest, to prove the payment of money by him to the attorney of the plaintiff, in an action against the attorney, unless released.</p> <p>An agent of an insurance company may maintain an action in his own name, on a note belonging to the company, provided it be endorsed in blank, or made payable to bearer. Nor can the title of the holder of a negotiable note be questioned, unless the defence makes it necessary.</p> <p>An agent, has no right to direct the payment of his principal’s money to his own debt. And if the attorney of the principal pays money collected for him, to the debts of the agent, knowing that the funds belong to the principal, it will not be a good discharge.</p> <p>In an action of assumpsit, by the principal against his attorney, for money had and received, the measure of damages is the amount of money collected, with interest thereon, from the time it was demanded, or from the date of its reception, if the attorney has failed to give notice to his client, or willfully misapplied or appropriated the money to his own use.</p>

On the 3d day of November, 1845, the justices of the Inferior Court of the county of Muscogee, sitting as a Court of Ordinary, in regular term, passed an order, requiring the defendant in error to show cause, on or before the then next regular term of said Court of Ordinary, why his letters testamentary, as executor of James McLaren, deceased, should not be revoked, and he be discharged from said trust, on the ground that he had failed to make any return, within the time…

This was a motion to quash ca. sa., issued from a judgment rendered upon scire facias against the plaintiff in error, as bail of another, which judgment was rendered upon motion, and without the intervention of a jury trial. This motion was tried before Judge Alexander, in Muscogee Superior Court, May Term, 1846, and, after argument, the motion was overruled ; to which the plaintiff in error excepted. For further particulars, see the opinion of the court.

This was a bill in equity, which, upon motion, was dismissed in the court below, Judge Hill presiding, at May Term, 1846, for want of equity. The facts, and grounds of error in the case are set forth in the opinion delivered by the Supreme Court, to which the reader is referred.

<p>A court cannot originate a case, or a motion, in vacation, and give judgment thereon, unless the authority is expressly conferred by law. But when a motion originates, during a regular term, and contains a provision for the further action of the court upon it, and for the rendering of its judgment in vacation, to be entered upon the minutes of the court, as of such term, such judgment so rendered in vacation is legal, and should be -entered by the clerk accordingly.</p>

This was an action of assumpsit, tried before Judge Alexander in the Superior Court ,of the county of Muscogee, at May Term, 1846. It was predicated upon a banker’s check, drawn by the defendants, Kyle and Barnett, npon the bank of Columbus, for $524, in favor of L. Gambrill or order, and was endorsed by him to the plaintiff.

The facts of this case, and the errors assigned, are set forth in the opinion delivered by the Supreme Court, to which the reader is referred.

This was a motion to quash a writ of scire facias, sued out, at the instance of the defendant in error, against the plaintiff in error, in Muscogee Superior Court, heard before Judge Alexander, at May Term, 1846. It appeared that the defendant in error had sued out civil process in the Superior Court of said county, against one Robert Walsh, requiring bail, and that upon his being arrested, the plaintiffin error became his bail.

This case was tried by Judge Alexander, in Muscogee Superior Court, May Term, 1846. The opinion delivered by the Supreme Court contains the facts of the case and the points decided.

This was an action, tried upon a general demurrer to the declaration, on the appeal, before Judge Alexander, in the Superior Court of the county of Muscogee, at May Term, 1846.

This was a bill in equity, dismissed upon demurrer, before Judge Alexander, in Muscogee Superior Court, at May Term, 1846. The facts shown by the bill, so lar as they are material to this question, being stated in the opinion of the Supreme Court, it is deemed unnecessary to set them forth here.

These were claim cases, tried before Judge Floyd in the Superior Court of the county of Crawford, at February Term, 1846. They were founded upon levies made upon certain slaves, as the property of the estate of James H. Wright, deceased, by virtue of executions against Elizabeth Wright, as executrix of the last will and testament of said deceased, founded upon debts of the testator.

<p>A parol contract for tile sale of goods, to be delivered, and which the parties reasonably expected would be delivered, within a year, though the price was to be paid after that period, is not within the statute of frauds; because, in such case, all that is on one side to be performed, namely, the delivery of the goods, is to be done within the year. •</p> <p>If there has been a delivery, either actual or virtual, by the vendor, in pursuance of a verbal sale, he has lost the power of retraction, under cover of the statute, if the vendee chooses to treat the contract as complete.</p> <p>The statute of frauds has no application to a contract which has been fully performed on both sides.</p> <p>The question of delivery by the vendor, and acceptance by the vendee, is always a question of fact, exclusively for the jury.</p> <p>For the facis of the case, and the error assigned, see the opinion of the Supreme Court, delivered by his Honor Judge Lumpkin.</p> <p>having been of counsel for the plaintiff in error, in the court below, delivered no opinion in this case.</p>

This was an action of debt upon a guardian’s bond, brought in Merriwether Superior Court, by the justices of the Inferior Court of Putnam county, as a Court of Ordinary for the use of the defendants in error, against Wiley Bryant and Jesse Pye, the said Jesse being then in life, as the surviving' obligor in said guardian’s bond, (Littleberry Perdew, the other co-obligor, having died before the commencement of the suit.) The plaintiff in error/Wiley Bryant, on the 9th day of…

This was a suit in equity, brought by the defendant in error against the plaintiff in error, returnable to the April Term, 1846, of the Superior Court of the county of Campbell, the object of which was to recover back usury alleged to have been paid by the complainant to the defendant in the bill.

<p>Against the right of action to recover the property of an intestate, the statute of limitations will not commence to run until administration of his estate has been granted.</p>

<p>This was an action of trover and conversion, tried before Judge Floyd, hi tlic Superior Court of tho county of Houston, on the appeal, at April Term, 1846. Tho suit was brought by the plaintiff in error against the defendant in error for tho recovery of damages for tho alleged conversion of fourteen slaves.</p> <p>Tho defendant in error pleaded the general issue, and also a special plea, alleging, that if tho slaves sued for were tho separate and trust property of the plaintiff’s intestate, in her lifetime, the same slaves were reduced to possession by Henry Talton, the husband of said Camilla Talton, the plaintiff’s intestate ; and that the said Henry Talton being in tbe possession of said slaves before and at the time of tbe death of said Camilla, afterwards departed this life so possessed, and so in tbe enjoyment thereof. And the defendant in error, and Narcissa J. Taitón, the widow of said Henry, obtained letters of administration on the estate of said Henry; and, as such administrator and administratrix, they received said slaves into their possession, and held and claimed them as such administrator and administratrix, as a part of the estate of said Henry.</p> <p>Upon the trial, it was proved, by witnesses introduced in behalf of the plaintiff, that the slaves mentioned and described in said case were inherited by the said Camilla, the plaintiff’s intestate, partly from the estate of Hopkins Liptrot, her former husband, and partly from the estate of Aquilla Liptrot, her father; that Henry Taitón intermarried with said Camilla, and survived her, and afterwards married again, and died. Camilla left two children: one by her former husband, and the other by the said Henry. The demand of the slaves, and the refusal of the defendant to deliver them, and his possession before and after the commencement of the suit, and that he treated them as his own, together with their value, and the value of their hire, was proven. The plaintiff in error then introduced his letters of administration on the estate of said Camilla, and also a marriage contract between said Camilla and.Iienry, and John Liptrot, as trustee, (a copy of which marriage contract is attached,*) which were read in evidence to the jury by the plaintiff in error. The plaintiff then proved the intermarriage of said Henry and Camilla, in pursuance of said marriage contract, and closed his case.</p> <p>Whereupon the defendant’s counsel, without introducing any evidence in support of his plea, moved the court for a nonsuit, on the ground that the legal estate was in said John Liptrot, as trustee, and not as administrator, of said Camilla.</p> <p>And, secondly, if the plaintiff had any remedy, it was in equity, and not in a court of law.</p> <p>Which motion the court below sustained, and held, that an administrator took no other title than his intestate had, and stood in the game condition. Plaintiff sued as administrator of Camilla Taitón, deceased; and, to prove title, showed a paper, which purported to be articles of agreement made and entered into between said Camilla, then a single woman, Henry Taitón, and John Liptrot, in contemplation of a marriage about to be solemnized between said Camilla and Henry, for the purpose of securing to Camilla the enjoyment of her property, free from all control of her future husband, and from all liability to his debts. To effect this object, the property of the said Camilla, by the said deed of agreement, was conveyed to the said John Tip trot, in trust, for the said Camilla; and, by the same deed, the said John Liptrot accepted the trust. The marriage was solemnized between the said Camilla and Henry. The property mentioned in the deed was received, and held, and controlled according to its provisions, during the life of Camilla. She died, leaving a child by said marriage, her husband surviving her. Henry Taitón died, in the possession of the property, leaving the child of Camilla by said marriage surviving him. John Liptrot took letters of administration, upon the estate of Camilla Taitón, deceased, and brought the suit; and to show, and prove, title, exhibits this deed.</p> <p>Camilla Taitón, the plaintiff’s intestate, at the time of her death, had only an equitable interest in the property; and such interests are cognizable alone in a court of equity. The legal title remains in the trustee, and he alone could sue, and recover, at law; and the court, therefore, awarded the nonsuit. To which decision of the court below the plaintiff in error excepted.</p> <p>1st. That the court erred in this, that it ruled only an equitable title vested in the plaintiff, as administrator of Camilla Taitón.</p> <p>2d. Because the court erred in ruling that any estate, or title, remained in the said John Liptrot, after the death of Camilla Taitón, and grant of letters of administration to the plaintiff.</p> <p>3d. Because the court erred in ruling that the legal title remained in the said trustee,'after the grant of said letters.</p> <p>4th. Because the court erred in ruling that the plaintiff could not recover said property in trover, at law, against a wrong-doer.</p> <p>5th. Because the court ruled that the plaintiff’s remedy was solely in equity, and not at law.</p> <p>6th. Because the court erred in ruling that the plaintiff could bring an action at law, as trustee, under said contract.</p> <p>Upon which exceptions the errors complained of were assigned.</p>

<p>This was a rule to foreclose a mortgage on real estate, in the Superior Court of the county of Houston, at the instance of the plaintiff in error, as the assignee of Nathan H. Beal, against the defendant in error.</p> <p>compliance to foreclose, error, was the mortgagor, appeared in'court, and disputed, upon oath, the amount claimed to be due, and denied that more than twenty-seven hundred dollars was due upon the mortgage ; alleging that the mortgage, as well as the note, to secure which it was given, except the sum of twenty-seven -'hundred dollars, was void for usury. The defendant in error then proceeded to file the plea of usury, setting forth circumstantially the original transaction, and the usury exacted, and several subsequent renewals, and the usury exacted thereon, and also divers payments made by the defendant in error upon said transaction, and claiming that they should be deducted from the original amount loaned, which, if done, would leave the amount above mentioned as the balance due.</p> <p>At the April Term, 1846, the said rule to foreclose, and the issue thereon made by the defendant’s plea of usury and payments, as aforesaid, came on to be tried on appeal in said Superior Court, before Judge Floyd, when the plaintiff in error moved to strike out the plea or affidavit of the defendant in error, on the ground that the statutes of Georgia did not contemplate or authorize the setting up of usury at law against a mortgage, on his proceedings under a rule to foreclose his mortgage. Which motion was overruled by the court, and the plaintiff in error excepted.</p> <p>The counsel for the plaintiff in error then introduced, and read in evidence to the special jury, the note and mortgage described in the rule nisi, and then closed his case.</p> <p>It .appeared that Nathan H. Beal, the original payee and mortgagee in said note and mortgage, had assigned the same to the plaintiff without recourse.</p> <p>The counsel for the defendant in error then introduced the said Nathan H. Beal as a witness, to prove the usury and payments alleged in the plea ; to whose competency, for that purpose, the plaintiff’ in error objected, which was overruled by the court below, and the witness was ordered to testify. To all which the plaintiff in error excepted.</p> <p>The witness, Beal, testified as to the usury, and as to the payments made upon the renewals, &c. He also testified, that before he assigned the note and mortgage to the plaintiff, that himself, with plaintiff and defendant, had an interview, in which the defendant urged both of them, witness and plaintiff, to use their best exertions with certain legatees, who were to receive the proceeds of said note and mortgage, to get indulgence for him until the next fall or Christmas, when he would pay every dollar of the same, principal and interest. That the defendant did not disclose to the plaintiff that there was any usury in said note, nor any other objection to its validity; nor did the witness disclose to the plaintiff' that the transaction on which the note and mortgage were given was tainted with usury. Shortly after this interview, on the same day, the plaintiff became possessed of the note and mortgage, by the assignment of witness, and gave to the defendant the indulgence desired by him. From aught that appeared upon the trial, the plaintiff was an innocent holder without notice. The defendant’s counsel here closed their case. The plaintiff then produced a letter, addressed to him by the defendant, dated Houston, January 20th, 1844, (being the day after the note and mortgage were assigned to plaintiff,) as follows, to wit:</p> <p>“ Col. S. Bailey :</p> <p>“ Dear Sir — I feel a considerable anxiety to know the event of the settlement made at Perry, between Beal and Bostwicks, so far as I am interested. Will you be so good as to write me what disposition was made of my paper held by Beal, if any ? 1 well know I have nothing to claim from the Bostwicks, but from Beal much. I am fully apprised he has been disposed to deal hard with me, but he should recollect, if he sues me, I can claim the advantages of the law, and most assuredly I will do so under-existing circumstances; but, if waited with till the end of the present year, I will pay every dollar of the debt. 1 only ask this of Beal; he should grant it me. Will you be so good as to say to me by letter if Beal or the Bostwicks control my note at this time; and, if Beal has put it out of his control, what course will be taken by those who control it. Your answer to this in full will very much oblige your friend.</p> <p>“ Respectfully yours,</p> <p>“ Answer me at Perry.” “ H. H. Lumpkin.”</p> <p>And proved the said letter to be in the hand-writing of the defendant, and offered to read it in evidence upon said trial, when the counsel for the defendant objected, and- the court below sustained the objection, and the letter was rejected. To which the plaintiff in error excepted.</p> <p>After argument to the jury, the court below charged, that, by the laws of Georgia, neither legal nor usurious interest could be recovered on a contract tainted with usury ; and that it made no difference whether the contract was in the hands of the payee or of an innocent transferree ; and that any payments of either legal or usurious interest made at any time on previous or prior renewals, must be deducted out of the sum originally loaned, and that the balance was all that the plaintiff was entitled to recover. -To which charge of the court below the plaintiff in error excepted.</p> <p>The plaintiff in error then requested the court below to charge the jury as follows:</p> <p>1st. The plaintiff, on the foreclosure of a mortgage, when the defendant sets up the plea of usury, is entitled to principal and legal interest.</p> <p>2d. That where there have been renewals and payments of interest made, the note sued on being for eight per cent., defendant cannot deduct, from the note sued on, the interest paid on renewals.</p> <p>3d. That the defendant, knowing that the note was about to be transferred by said Beal, .and not notifying the plaintiff that there was any usury to be plead against the note, but representing to the plaintiff that it would be fully paid, he could not set up usury against the plaintiff.</p> <p>Which the court below refused, but charged the jury that the contrary thereof was law. To which the plaintiff in error excepted.</p>

Algernon S. Speer and Alexander Speer made six thirty dollar notes, payable to one William Hayman, or bearer, dated 16th of February, 1839, and due the 25th of December thereafter. Hayman transferred these notes to the plaintiff in error, who afterwards, on the 8th of February, 1842, endorsed them to the defendant in error, with the reservation that he was not to be liable in the first instance.

<p>A note given by way of renewing and continuing an original contract for a usurious-loan, the mere change of securities would not purge it cf the usury.</p> <p>But if A, as the maker- of a-usurious note, is about to pay it up to B, the payee ami holder, and-C, for-the purpose of using the money for his own benefit, borrows Atinóte from B,-and gives B his (C’s) own note with A, as his security — there being no usury in the transaction between B and C — the note of C, with A, security, thus substituted, would not be obnoxious to the statute of usury.</p>

<p>a person, assuming to act as the agent of a corporation, but without legal authority, makes a contract, and the corporation receive the benefit of it, and use the property acquired under it, such acts will ratify the contract, and render the corporation liable thereon.</p> <p>In the execution of instruments under seal, by an agent, the general rule is, that it must purport, upon its face, to be the contract of the principal, and his name must be inserted in it,,and signed to it.</p> <p>In the case of instruments not under seal, executed by agents, if it appear from the face of the paper, that the credit was not given to the agent, and the name of the . principal was disclosed at the time of the transaction, and the act was within the power of the agent, the principal is bound. Upon such contracts, where the intent is not sufficiently clear that the principal was to be bound, the defect may be supplied by parol testimony.</p> <p>The clause, to be found in most of the bank charters imGeorgia, which provides that the funds of the company shall in no case be liable for any contract or engagement whatever, unless the same shall be signed by the president, and countersigned by the cashier, of the corporation, does not apply to such contracts or engagements as occur, or are necessary to the ordinary business of a cashier or agent; such as drawing and endorsing bills of exchange, checks and drafts — acts which appertain, according to commercial usage, to the office of a cashier.</p> <p>A general power to discount bills of exchange, confers on the agent the power to endorse.</p> <p>In a suit by the Central Bank, no proof of notice, demand, or protest, is necessary to charge the endorser.</p> <p>In a case where the holder of an endorsed paper fails to give notice of the dishonor, where notice is necessary to charge the endorser, and the endorser is therefore released in law, and the holder then transfers the paper to the Central Bank, and the endorser is sued : although on the trial the bank is not bound to proven-notice, demand, or protest, yet the endorser would be let into his defence, and by proof would be .permitted to show his discharge for want of notice.</p>

<p>A bill was filed on the chancery sido of the Superior Court of tho county of Bibb, at tho instance of tho Monroe Railroad and Banking Company against the Roswell Manufacturing Company and others, the creditors of the former, the object of which was to obtain a decree for the sale of the railroad and equipments, and all the rights, franchises and property therewith connected, and for a distribution of tho proceeds among the creditors, in order of priority of their claims, the said railroad company having become hopelessly insolvent, and unable to complete the road, or keep the same in operation, or pay their debts. At May Term, 1845, of said Superior Court, a final decree was rendered in said cause, ordering the sale, and appointing certain commissioners to carry the same into effect, and providing that the proceeds of said sale should be paid to the clerk of said court, and by him deposited in bank, for safe keeping, on special deposit, and that public notice should be given to the creditors of said company to file their respective claims, or a schedule thereof, in the clerk’s office of said court. That the creditors, if any controversy should arise respecting said claims, should then litigate amongst themselves, in respect to all objections which would or might have been available against them by the company, if said sale had not been made, in relation to matters of set-off, and whether they should be subject to objection on account of the statute of limitations, non-performance of contracts, or other causes, embracing the quantum of consideration paid for claims, or any of them; and also, that the liens claimed by the respective creditors should be then and there also investigated and adjudicated.</p> <p>The sale took place, and the sum of $160,525 33 brought into court. At May Torra, 1846, of said Superior Court, the question of the distribution of said fund amongst the claimants who were creditors of said company came on to he heard’, before Judge Floyd, when it was moved, on the part of the defendant in error, and other hill-holders of said company, that the court should order and decree that said fund should first be applied and paid out in satisfaction of said bills, as having priority over all other claims, by virtue of a statutory lien created under the 11th section of the charter of said company,, as follows: “ The railroad to be built by said company, from Macon to Forsyth, together with allreoenue arising therefrom, and all the property, equipments and effects therewith connected, shall be pledged and bound for the redemption of the notes, or bills, issued by or from said companywhich motion was opposed by the counsel of the plaintiff in error, as mortgagee, who contended, and maintained, before the court below, that the statute relied on by the counsel for the bill-holders did not create a legal specific lien, paramount to all other liens on said road. And they contended for, and moved the court to rule that, as the plaintiff in error was, bona fde, the holder of bonds, certificates, or notes, secured by mortgage on said road, and its appurtenances, to secure the payment for work^ labor and materials, done and furnished on said road, subsequent to the execution of said mortgage, and on the faith of said mortgage, the plaintiff in error was entitled to be paid out of said fund, in preference to bill-holders. In behalf of the plaintiff in error, it was then shown to the court, that in 1842 the said company became entirely unable to proceed with their work, and which was then in a very unfinished and ruinous condition, even below the city of Griffith. In this situation, on the second day of August, 1842, the company entered into a contract with the plaintiff in error, and others, his associates, for certain work, and, materials, as agreed upon in said contract,, the company agreeing to secure the payment for Said work and materials, by a lien, or mortgage, on tlio road and property of the company. Under this contract, a large amount of work was done, and materials furnished, on said road. Amongst other things, about 1,200 tons of railroad iron, with cars, ear-wheels, engines, tenders, tools, &e., to the amount, by engineer’s estimate, of $154,146 86 ; besides which, said contractors furnished timber, and built about thirty-six miles of superstructure, and several miles of grading, leaving only four miles to be done to complete their contract, which would have "been done but for hindrance by the company.</p> <p>The mortgage clause of the agreement of the second of August, 1842, was in the following words, viz.: '• It is further agreed by the parties hereto,” (the Monroe Railroad and Banking Company, on the one part, and John D. Gray & Co., D. McDougald, A. B. Davis, Robert Collins, and Flam Alexander, of the second part,) “that the whole of the Monroe Railroad, to the point of junction with the Western and Atlantic Railroad, and all and every part thereof, implements of every kind therewith connected, or to bo connected, and all real estate to the same appertaining, and all other effects to the same appertaining, shall bo and is hereby conveyed and vested in the said parties of the second part, (the plaintiff in error, and associates,) in full title and estate, until all the dues and payments to which they shall become entitled under this contract shall have boon fully met and satisfied. Provided, however, that the management, superintendence, and keeping up of said road, anu the use of the property, &c., herein named and conveyed, and of all transportation thereon, shall continue to be conducted by the said Monroe Railroad and Banking Company, their officers and agents.”</p> <p>It appeared that the plaintiff in error, and his associates, performed their part of the contract, except the completion of four miles of the road, which they were prevented from doing by the company.</p> <p>After argument in the court below, the presiding judge ruled, and decided, that the lien created by the bills of said company, under the said lllh section of the charter, was paramount to, and overrode all lions, and that said motion of the bill-holders should be granted; and overruled the, motion of the plaintiff in error, and adjudged and determined that the said fund should be paid out, in the following order:</p> <p>Costs legally incurred in obtaining the decree, and making the sale under it.</p> <p>Attorneys’ fees, for bringing the money into court.</p> <p>The taxes of the company due the State of Georgia.</p> <p>Then bank bills, each bill to take in proportion to the value received by the bank for it, at its emission by the bank. Judgments founded on bank bills, to take pari passu with bank bills, and under the same terms.</p> <p>Next in order, judgments founded on contracts, other than bank bills and mortgages, according to the respective dates of each ; judgments for right of way included as judgments. All other claims, not reduced to judgments, nor secured by special lien, placed on the same footing ; and appointed certain auditory to hear and audit the claims submitted, and to make report thereof, &c.</p> <p>Whereupon the counsel for the plaintiff in error, as mortgagee under the contract aforesaid, excepted upon the following grounds :</p> <p>1st. Because the court below ruled and decided that the clause in the charter of said Monroe Railroad and Banking Company, declaring that said road should be “ pledged and bound for the redemption of the bills or notes of said company,” created a specific and paramount legal lien, on said road, over all other liens.</p> <p>2d. Because the court below decided, that the directors of said company could not make a mortgage or transfer of said property, (road and fixtures,) so as to exclude the statutory lien of bill-holders.</p> <p>3d. Because the court below decided, that the bills of said company had a specific lien on the whole money arising from the sale of said road, when the statute creating said pretended lien in favor of bill-holders, only extended to a part of said road, to wit: that part of said road extending from Macon to Forsyth.</p> <p>4th. Because the court below decided, that the work and labor done on said road, and materials and iron furnished and put on said road by the contractors to 'whom said mortgage was given — which said work was done, and materials furnished after the insolvency of said railroad and banking company — was liable and subject to the payjnent of the bills of the company, in preference to said mortgage or debt for said work and materials.</p> <p>5th. Because the court below decided, that the bank-bills should each take in proportion to the value received by the bank for it, at its emission by the bank, whereas the original decree fixed the quantum of consideration, paid for the bills by the claimants, as the amount to be received.</p> <p>Afterwards, in an adjourned term of the court below, the plaintiff ir error showed, that at the same time the mortgage contract aforesaid was made by said company with himself and his co-contractors, it was also agreed that the sum of $300,000, of the bills of said banking company, should be set apart and placed in the hands of a third party, to be held as further security to said contractors, and to be delivered to them in the event that it should be decided by the judicial power of the State, that the bills of said bank had. any preference or priority over other claims, by virtue of the said 11th section of the charter of said company 5 and in accordance with said agreement, said bank-bills, to the extent of about $200,000 were set apart and held for that purpose.</p> <p>So the matter stood until the term aforesaid of the court below, when the presiding judge ruled as aforesaid, that bills of said bank had preference and priority over the mortgage claim against said company. Whereupon the-said plaintiff in error caused the very same bank-bills which had been so set apartas aforesaid for that purpose, to be brought forward and delivered to the auditors, and required that the amount of his said claim should be audited from the bills, according to said contract with the company ; but the auditors declined to do so, and the court below decided, that said bills could not be considered as bills issued by the said company, and therefore they could not be admitted to receive, from the fund, any pro rata or other share with other bank-bills. That, as to said claim of the plaintiff in error, to be allowed to claim, and take out of said fund as a bill-holder, by virtue of the bills set apart by said bank, as a collateral security, to secure said plaintiff in error, and others for work done and materials furnished on said road, the same was invalid, by reason that said bills, in the opinion of the court below, had never been legally issued by said bank. To which decision and judgment of the court below, the plaintiff in error excepted.</p> <p>Because the court below erred in deciding, that the said bills, set apart as collateral security, to secure the plaintiff in error and his co-contractors for the work and labor done, and materials found and furnished, on said road, had not been legally issued by said bank, and therefore could not claim any of said fund.</p>

The railroad, and all the property and equipments therewith connected, belonging to the Monroe Railroad and Banking' Company, was sold by certain commissioners under a decree in equity, rendered in the Superior Court in the county of Bibb; and the sum of $160,525 33, the aggregate amount of said sale was brought into the court below.

This cause grew out of an affidavit of illegality. On the lltli day February, 1841, a judgment was rendered In Bibb Superior Court, at the instance of Uriah J. Bulloch, against Rufus K. Evans as maker, and John P. Evans, the plaintiff in error, and Berry Rogers, defendant in error, as endorsers for the sum of $308 15, principal, besides interest and costs.

<p>In a suit upon a noto payable upon time, with interest from date, if not punctually paid, the back interest is recoverable as stipulated damages.</p> <p>If, in the entering up of the judgment, swh back interest be not computed, the judgment ¡nay be afterwards amended, under an ordt r of the court, so as to include the interest from the date; and the collection of it may be enforced, though the original execution had issued and been returned satisfied.</p>

For the facts of the case, and the grounds of error, sec the opinion of the Supreme Court. His Honor Judge Warner, having been of counsel in the court below in this cause, gave no opinion upon it in the Supreme Court.

This was an action brought by the plaintiffs in error against the defendant in error, in the Superior Court of the county of Pike. The record disclosed that the note sued on was made by the defendant’s testator while in life, and one Jeremiah Leak as copartners in trade, under the partnership,name and style of Walker and Leak, and that, at the time of the institution of the suit, the copartner Leak vras stiii surviving.

The defendant in error had sued out an attachment against John B. Davis, predicated upon a note due the Central Bank of Georgia, of which the said John B. Davis was maker, and the defendant in error the last endorser ; the said John B. Davis having moved out of the State, and the defendant in error having been sued as said last endorser, and judgment rendered against him.

This was a hill in equity, tried in the Superior Court of the county of Gwinnett, before Judge Dougherty, at March Term, 1846.

The plaintiffs in error filed a bill against the defendant in error, and Houston Aycoek, sheriff of the county of Floyd, praying an injunction, which was sanctioned.

This case was tried before Judge Dougherty, in the Superior Court of the county of Clark, at the August Term, 1846. For the facts of the case, and the error as.-igned, the reader is referred to the opinion delivered by the Supreme Court.

For the facts of the case, and the matters of error assigned, the reader is referred to the decision of the Supreme Court.

<p>For the facts of the case, and the errors assigned, sec the opinion of the Supremo Court, delivered by his honor Hiram Warner.</p> <p>Lumpkin, Judge, being a stockholder in the Georgia Railroad and Bank-' ing Company, gave no opinion in the ease.</p>

<p>This was an action of ejectment, verdict for the defendant, and motion for a new trial, which was refused by the court below. For the facts of the case, and the grounds of error taken, the reader is referred to the opinion of the Supreme Court.</p>

For the facts of this case, and the grounds of error, see the opinion of the Supreme Court, delivered by his honor, Judge Lumpkin.

To call-a woman a whore in this State is actionable. This was an action of slander, tried before Judge Wright, in the Superior Court of the county of Floyd, at April Term, 1846.

<p>Tills was an action of trover for several slaves; verdict for tlic defendant in error, who was tito plaintiff below, and motion for a new trial overruled. Tried before Judge Dougherty, in the Superior Court of the county of Hall, at March Term, 1846.</p> <p>For the facts of the caso, the grounds of the motion for a new trial, and the errors assigned in the decision of the court below, the reader is xeferred to the opinion delivered by the Supremo Court.</p>

<p>An execution is valid, issued upon a confession of judgment, which appears on the writ, and which has been registered together with the declaration and judgment, upon the permanent records of the court, although the clerk has omitted to enier said confession upon the minutes.</p> <p>An entry of confession of judgmenl, on the declaration of file in the clt rk’s office, is sufficient, in the absence of all proof, to discredit the memorandum, to authorize the court wherein it was made, to have it transcribed on its minutes at any subsequent term, in order to preserve their harmony.</p> <p>No notice to the defendant is necessary, to warrant an application to the court, to enter said 'confession, nunc pro tunc.</p> <p>Is it necessary that a confession of judgment, which is the act of the party only, should appear on the minutes ? And can a claimant after issue joined, and a trial on the merits, except to the regularity of the previous proceedings in the cause ? Quere ?</p>

This was an indictment against the plaintiff in error for the larceny of a slave named George, tho property of Samuel Buffington, senior, who was the prosecutor, tried before Judge Merriwether, in the Superior Court of the county of Baldwin, at August Term, 1843, and which resulted in the conviction of the prisoner.

This was an action, of debt upon a sheriff’s bond, tried before Judge Merriwether, in the Superior Court of the county of Baldwin, at August Term, 1846. Upon the trial, a copy of a bond, duly certified by the proper officer, purporting to be a sheriff’s bond, executed by John S. Stephens, John M. Maclin, Benjamin L. Lester, and Michael J. Kenan, the plaintiffs in error, was offered in evidence, in behalf of the defendant in error, who was plaintiff below.

<p>A sheriff is liable to be attached for the failure of his deputy to pay over money collected on an execution by him.</p>

<p>In an action of covenant, for abroach of warranty in selling an unsound, negro, the measure of damages is tho difference between the price paid, and the actual value of tho negro in her unsound condition; and if of no value, then the price paid, with interest thereon.</p>

The plaintiff in error brought an action in Putnam Superior Court, against the defendant in error, as endorser of a note for $600, payable at the Bank of the State of Georgia, Savannah, made by G. 13. Alien, and endorsed by said William Whitfield and one James Griggs. The defendant pleaded the general issue, and also, that the plaintiff had obtained the note fraudulently.

This was an action of trover for several slaves, Phebe and her children, brought by the plaintiffs in error against the defendant, in Warren Superior Court, and was tried on the appeal, before Judge Sayre, at October Term, 1846. The conversion of the slaves by the defendant, and their value, with the value of their hire, was proven.

<p>For the facts of the case and the errors assigned, the reader is referred to the decision of the Supreme Court.</p>

The questions involved in this case were adjudicated in the court below, before Judge Gamble, at September Term, 1846. For the facts of the case, and the error assigned, see the decision of the Supreme Court.

This was an indictment, for the larceny of a slave, found against John G. Jones, the plaintiff in error, Allen Jones, William Adams, and Wilson Chambers, tried before Judge Merriwether, in the Superior Court of the county of Wilkinson, at October Term, 1846. When the cause was called for trial, the counsel for the prisoners announced that they were ready for trial, and that they would sever on the trial.

<p>The act of 1843, prescribing the questions to be propounded to the juror upon his voire dire, is constitutional and valid.</p> <p>The State is entitled to the ten peremptory challenges allowed by the penal code of 1833.</p> <p>After a juror has answered in the negative the questions propounded by the act of 1843, it is competent for the prisoner to put him upon triors, for the purpose of showing that he is not indifferent; and the formation and expression of a decided opinion, as to the guilt or innocence of the prisoner, is a disqualification, notwithstanding it be founded on rumor or hearsay ; and it is not necessary to provo personal prejudice or ill-will to the accused. It will be inferred from a deliberate opinion of guilt, once declared.</p>

<p>This was an indictment for murder, tried in the Superior Court of the County of Greene, before Judge Merriwether, at the September adjourned Term, 1846.</p> <p>For the history of the case and the errors assigned, see the opinion of the Supreme Court.</p>

<p>This was a bill in equity, filed by Eliza Bell, a feme covert, by her next friend against her husband, William Jewell, the administrator on the estate of her deceased father, and sundry judgment creditors, praying for an injunction, and decree for what is commonly called the wife’s equity, to he set apart in the name of a trustee for the special use of herself and her children. The bill stated that the complainant was one of five distributees of the estate of her deceased father, William Bugg, who died in 1845, possessed of considerable property, consisting of lands and slaves, &c. That said William Jewell administered on his estate. That on the application of the administrator, the Court of Ordinary, in December, 1.845, appointed certain persons as commissioners to divide the slaves. That on the 10th day of December following, the commissioners thus appointed divided the slaves into five portions, and that four of the slaves were apportioned to her husband in her right. That neither the complainant nor her husband was a party to the proceedings for a division, nor had notice of the application therefor, nor was either of them present at the division. That the slaves thus allotted and sot apart never went ont of the possession of the administrator, Jewell, and no person was present on the part of her husband to receive them, and the administrator continued to retain control over them. That they had never been in the possession of her husband, but had remained with the administrator until they were seized by the sheriff as the property of her husband by virtue of an execution at the instance of Thomas E. Zuber, one of the defendants to said bill. That the levy was made on the 15th of December, while said slaves were in the possession and under the control of the administrator. That said slaves were sold in February, 1846, by the sheriff, under an agreement that the proceeds of the sale should bo held by the sheriff, subject to the decision of the court on the facts of the case, in the same manner, and with the same benefit to her, as on an application by bill on her part to stay the sale, and to seek the aid of a court of equity in her behalf to have the property set apart for her exclusive benefit, so that the creditors of her husband should not subject the same to the satisfaction of their demands against him. And finally, that her husband was hopelessly insolvent, and unable to maintain her and her children.</p> <p>This bill was returned to October Term, 1846, of Oglethorpe Superior Court, when the solicitors for the defendants below demurred thereto on the following grounds :</p> <p>1st. That so far as respected the money in the hands of the sheriff, •or the slaves out of which the same was raised, the wife could have no equity to a settlement out of the same, as, by the allegations in her bill, the said creditor-defendants were calling upon neither a court of law nor equity to assist them in prosecuting their rights, but were merely executing judgments of the court already obtained. »</p> <p>2d. Because the creditors could levy, .and did levy only upon the legal interest of the husband, William J. Bell, their debtor, and could sell and did sell nothing more. If the slaves were not his, the purchaser received no good title.</p> <p>3d. That if the slaves were not the subject of levy and sale, a full common-law remedy was afforded in a claim by the administrator, Jewell. If he failed to claim, and thereby the rights and interests of the complainant were affected, her redress was upon him,'and not upon the creditors, in whose conduct there was nothing charged illegal, unconscientious, or inequitable.</p> <p>4th. Because the creditors were not attempting to make any equitable interest of the wife subject to their debts, and consequently the rule of doing equity, when they sought equity, did not apply.</p> <p>5th. Because the exhibit of the return of the commissioners attached to complainant’s bill showed that the' slaves levied on had been set apart as the portion of William J. Bell, and the only reason why they had not been delivered, was because he was not present. If the order of division and return of the commissioners were illegally obtained, the complainant’s remedy was upon the administrator.</p> <p>6th and lastly. Because the marital rights of the husband had attached, and consequently the judgment creditors had a right to sell.</p> <p>After argument upon the demurrer, the court below, Judge Sayre presiding, overruled the same, and ordered the defendants to answer. To which decision the counsel for the plaintiffs in error excepted.</p> <p>1st. That the court erred in deciding that a court of equity would interfere, and enjoin a judgment creditor from selling property levied on as the property of the husband, until provision was made for the support of the wife.</p> <p>2d. That the court erred in deciding that the marital rights of the husband had not attached to the slaves set apart as his portion of the estate.</p> <p>3d. That the court erred in deciding that the complainant could seek the benefit of the division made by the commissioners, and at the same time deny the benefit of it to the judgment creditors as being irregular and illegal.</p> <p>4th. That the eourt erred in deciding that the marital rights did not attach till the indemnifying bond was given.</p> <p>5th. That the court erred in deciding that the return of the commissioners of the division, and the order making the return the judgment of the Court of Ordinary, were not sufficient to make the husband’s marital rights attach.</p> <p>6th. That the court erred in overruling the demurrer.</p>