Volume 1 — Georgia Decisions

<p>Ill EQUITY,</p> <p> Bill for Account and Relief. Verdict for the Complainant. </p> <p>1st. The Court will not hear a motion for a new trial at the next term after Judgment is rendered, if the Judgment was entered and recorded, unless there was some action of the Court to stay the proceedings, although the counsel gave notice ofthe application and the grounds.</p> <p>2nd. When, during the existence of a partnership, one of the partners dies, the Statute of Limitations does not commence running in favour of the surviving partner, until there is an administration on the estate of the deceased partner.</p> <p>3rd. A surviving partner is entitled to the controul of the partnership effects, for the payment of debts, and for the residue, he is responsible, not to the widow or children of the deceased partner, with whom there is no privity, but to the executor or administrator, who alone can demand his part of the partnership effects, after the payment of debts.</p> <p>4th, In such case, the Equitable bar is anala|ous to the Statute of Limitations, and does not commence running until there is an administration.</p> <p>5th. After a lapse of20 years it will not be presumed from the mere receipt of the Register of Probates for his fees, that there was an administration on an intestate’s estate, when the Records, which appear to have been well preserved, furnish no evidence that administration was granted.</p> <p>6th, Under an allegation of a Bill in Chancery, by the admisistrator of a deceased partner against the executor of the surviving partner, “ that the surviving part» ner used the co-partnership funds in merchandizing,” his books are admissible in evidence to shew the profits he made.</p> <p>7th, A surviving partner is liable to the representative of his deceased partner for a moiety of the profits of the co-partnership effects used in trade; or if he employs-them and makes interest, for the interest on his share, deducting necessary expenses.</p> <p>8th. The affidavit of a Juror in a civil case, cannot be received to shew what transpired in the Jury room, for the purpose of impeaching a verdict returned by him-under oath, and to which he must have assented.</p> <p>In the above stated case, the complainant has obtained two verdict» by Special Juries, against the defendants. The last verdict for a less amount than the first. The last verdict was obtained at June term, 1841; and at or near the end of that term, on the 7th day of July, service of a notice for a new trial was acknowledged by the complainant’s counsel upon the grounds therein stated, and which are set forth in this decision, in which the defendants move for a new trial, complaining of the errors of both Court and Jury; and (luring that term the defendants moved the Court for a new trial on the grounds referred to above, and for a supersedeas : The complainant’s counsel declared themselves ready to argue the grounds. The defendants’ counsel then enquired of the Court, whether it would decide upon the grounds during this term. The Court answered, that it would do in this case like all other cases, and if there were any good reasons shewn why the Court should not make its decision at this term, it would continue it; but if no such grounds were shewn, the Court would proceed and decide upon the grounds of the motion : upon which information the defendants’ counsel stated that they" withdrew their motion for a supersedeas and filing the grounds ; but said that they did not withdraw their notice to the complainant of their grounds, at the same term when the verdict was rendered. The Court was moved for its final decree in the cause, which the Court signed and ordered to be recorded with the other proceedings in the cause, and upon which decree the Clerk issued an execution according to the rules of Court in such case made and provided. The finding of the Jury being for a certain sum — at the next term after the decree was signed (January term, 1842) the counsel for defendants handed to the Court the grounds presented to the Court and withdrawn at the June term previous, and asked of the Court to be heard on them, and a day was appointed on which the Court would hear counsel for and against the motion.</p> <p>The complainant’s counsel resisted the motion upon the ground that it came too late, and that the Court had no judicial power at this term to entertain the motion, or discuss its merits. The defendants insisted that they were still in time to be heard, and that the Court had the power to entertain the motion and grant a new trial.</p>

1. A new trial will not be granted, merely for error in the charge of the Court, where justice has been done between the parties. 2. A factor’s lien for a general balance, accrued in the life time of his principal, dues not attach to property, coming into the factor’s possession, after the principal’s death, by order of his representative. 3. An Executor de son tort can give to a third person no legal control of the dec©» ; dent’s property. 4.

In Equity — Motion to dissolve Injunction. 1. A Court of Chancery, in its sound discretion, may continue an injunction, after all the Equity of the Bill has been fully denied, in the defendant’s answer. 2. A Guardian, or other Trustee, may change the investment of the trust estate, where it is manifestly for the interest of the cestuy que trust. But if he does so without an order of court, it is at his own risk, and he will be held accountable for all the consequences. 3.

The verdict of a Special Jury must be manifestly contrary to evidence and the principles of Justice, to justify the Court in granting a new trial^ In case of doubt, the Court will not interfere, especially after two concurrent verdicts. 2. The admission of an incompetent witness is not ground fot a new trial, where all the facts, testified to by him, arc proved by other testimony. 3.

Assumpsit. Verdict for Plaintiff. 1st. Where there ⅛ a mass of conflicting testimony to be considered by the Jury, the Court will not grant a new trial. 2nd. In an action of Assumpsit for the recovery of money paid by a security, he will be entitled to recover interest, if the original creditor had such right. He will be substituted in place of the original creditor. Case-, cited by plaintiff — 2d. Camph. R. 439. 7 Johns. R. 332. Cases cited by defendant — 8 East.

Bill for Discovery and Relief. 1st. Under the Act of 1838, the widow and children of a testator, or an intestate, are entitled to one year’s maintenance out of his estate, without reference ta its solvency, 2nd. A bill for one year’s maintenance of a decedent’s family, and praying an account of the co-partnership against his executors, and a surviving partner, and charging a combination, is multifarious; and one of tile causes of complaint will be stricken out.

Verdict for Plaintiff for $2,000. Case, 1st. In an action for a malicious prosecution, whether there be want of probable cause, is a mixed question of Law and fact, and if there be evidence submitted to a Jury, tending to establish both the presence and absence of probable cause, the Jury must find malice, accordingly as they determine this question. 2nd.

Assumpsit. In a suit against an executor, on a demand against a testator, in his life time, ho may set off ¾,-deht created with him, as executor, by the plaintiff, since the testator’s death, though the converse of this proposition will not hold good. In this case, the plaintiff brought this action upon a Note of hand, made by the deceased, in his life time, to the plaintiff.

Assumpsit. Verdict for Defendant. A creditor is not bound by a contract to receive from his debtor a smaller sum in money, for his discharge from a greater, unless the money is actually paid and accepted at the time. No subsequent tender will avail him. The creditor has a right to refuse it.

Habeas Corpus, A fugitive from justice, from another State, may be arreste The prisoner, John Loper, having been arrested, on the 16th inst. under a warrant, issued by Isaac Russel, Esq. a Justice of the Peace in and for the County of Chatham, charged, on the oath of one Daniel Goldsmith, with having committed, on the 10th day of January last, a larceny of his goods, to the value of seventeen hundred dollars, in the town of Micconopy, Territory of East Florida, and with…

<p> indictment, Murder, Verdict, Voluntary Manslaughter. </p> <p>1st. It is no ground for a new trial, that a part of the Jury separated from the rest without the knowledge of the Court, or the presence of an officer, unless there was evidence that they were tampered with, which might be presumed, if the absence was a considerable time.</p> <p>Sad. When the Indictment is based upon the presentment of a Grand Jury, a misnomer of one of the Jury in the former, is no ground for the arrest of the Judgment.</p> <p>Motion for a new trial, upon the following ground : — That some of the Jury separated for a few minutes from their fellow Jurors, without the consent or knowledge of the Court, or in the custody of an officer.</p> <p>Upon an examination of the authorities, the Court finds the rule to be, that a mere separation of the Jury, for a short time, per se, will not avoid the verdict; but if the separation has been for a length of time, and under circumstances which induce a suspicion of their being tampered with, then the Court will exercise a sound discretion, and according to the facts of each case, will set aside, or sustain the verdict — (1 Cowen 221. Barnes 441. 8 Pick'g. 170. 4 Coreen 26. 1 Conn. Rep. 401. 1 Gall. 360. 1 Holst. 110. 2 Hayw. .238) — and it must appear that something more than a mere separation for a short time took place. In this case, it is not contended that any thing but a separation for a few minutes took place. This Court, therefore, overrules the motion for a new trial, upon the ground taken.</p> <p>The prisoner then moves in arrest of judgment: because the Attorney General, in making out the Indictment, founded on the presentment of a Grand Jury, in setting out the names of the Grand Jurors, he has set out the name of Philip D. Woolhopter as Philip C, Woolhopter, and therefore there is a misnomer of the Juror; and Mr. Miller, for the prisoner, quotes 4 Johns. R. Note 119. 5 Johns. R. 84. 2nd. Crown Cases (English) 303.</p> <p>The Atttórney General quote?, 11 Petersd. R. 545. 2nd. T. R. 5» 4 T. R, 469. 5 Term li. 525.</p>

In Equity, 1. A Court of Equity will not restrain a judgment at common law, on the ground of irregularity in obtaining it, or on the ground of want of jurisdiction in the common law court. 2. A Sheriff’s return of service cannot be impugned, by a bill hied to set aside the judgment; but, if false, the remedy is by action against the officer, 3.

<p> Trover, Verdict for Defendant, and Motion for a New Trial. </p> <p>1st, Between purchasers of personal property, the elder title must prevail, unless it be infected with fraud.</p> <p>2nd. The possession of the seller after the sale, is not, of itself, evidence of fraud ; , and that he had a right to redeem the property, is a circumstance to be considered by the Jury, in explanation of the possession.</p> <p>In this ease, Morrow made a bill of sale of a negro, sued for, to the defendant, Roll, dated on the 21st July, 1836, and at the same time Morrow signed a non-descript paper, stating, an agreement, that if he paid R. a certain amount, then Roll was to let him have the negro back, but this agreement was signed only by Morrow: and no proof was made of a delivery from Morrow to Roll, except the delivery of the bill of sale, and Roll, sometime afterwards, had the boy attached and sold, and purchased him at the Sheriff’s sale, after the plaintiff’s title accrued, on the 26th July, 1836 : five days after this sale to Roll) Morrow sold the boy to the plaintiff and executed a bill of sale to Butler, and delivered the boy to Butler, and Butler immediately hired the boy to Morrow, and delivered him back to Morrow. Roll got, and kept possession of the boy sometime after, and retains possession of him. And the above action was brought to recover the boy. And the Jury, after hearing the evidence, found a verdict for the defendant.</p> <p>The plaintiffs now move for a new trial :</p> <p>1st, That there was no delivery of the property by Morrow to Roll, and that Morrow continued in possession.</p> <p>2nd. That the boy was delivered to the plaintiff, at the execution of the bill of sale by Morrow to him, and that the plaintiffs’ title was complete.</p> <p>And it is contended, by Gould & Gumming, that a new trial should be granted, as the verdict is contrary to the evidence, as the want of delivery was a fraud on the last purchaser.</p> <p>that the delivery of the bill of sale, by Morrow to Roll, amounts (in Law) to implied delivery of the thing sold; and this, added to the written memorandum signed by Morrow, shewing that he was to have the boy back from Roll, by paying a certain sum of money, sufficiently accounts for R.’s want of possession — and that possession not following and accompanying the deed» is not, per se, a fraud, even against creditors, if the same be accounted for to the satisfaction of the Jury. But this is a case between purchasers, and therefore the one who has the elder title will hold the property; and he quotes the following cases : — 17 Mass. R. 110. 1 T. R. 205. Butter's N. P. 258. Long, on Sales, 118. Also, 2 Piclc’g. R. 607.</p>

Case. Verdict for Plaintiff. 1st, Contracts entered into to defraud the Government, are void, as against public policy; but the contract itself must furnish evidence of the fraudulent intent, unless it be specially pleaded, and then it may be shewn by aliunde testimony. 2nd. Under our statute, no evidence is admissible under the general issue, except such as disproves the cause of action.

<p> Habeas Corpus. </p> <p>A mittimus, not specifying the time, place, nor subject of an alleged larceny, is illegal upon the face of it.</p> <p>The defendant, Mary Bandy, was arrested, under a warrant, issued by Uriah II. Bevins, a Justice of the Peace, on the affidavit of George Sturtevant, administrator of the goods and,chattels of Thomas Stur-tevant, charging and accusing the said Mary Bandy, with having, on or about the first day of June, 1842, feloniously taken, and carrying away, the personal property of the said Thomas Sturtevant, to the value of one hundred and forty-five dollars, as appeal's by a copy of the original affidavit, furnished by said magistrate, to the said prisoner.</p> <p>Upon her arrest, the said magistrate committed the said prisoner to the common jail of Chatham County, under a commitment, of ■which the following is a copy :</p> <p>State of Georgia. — -Chatham Comity. To any lawful Constable of said County, and to the keeper of the. common jail thereof;-— I herewith send the body of Mary .Bandy, charged with having committed the offence of Larceny — And 1 do hereby command you, the body of the said Mary Bandy into your custody to take, and her safely to convey to the common jail of the said County; and you, the keeper of the said jail, the said .Mary Bandy into your custody to receive, and her safely keep, until she shall have been discharged, according to Law. Hereof fail not.</p> <p>Given under my hand and seal, this 11th day of June, 1842.</p> <p>UHL BEVINS, j. p.</p>

Certiorari. Wiiere there is conflicting testimony, it is the province of tiie Jury to weigh it. And a new trial will not be granted, on tile ground that the verdict may, possibly, be against the weight of evidence.

jFí» ⅞,, on Foreclosure of Mortgage — and Levy and Claim by Eliza, belh Wilcher. Verdict for Claimant. In Claim cases, the sayings of the defendant, in execution, prior to his being defendant, may be given in evidence, to sustain the title of the claimant — such sayings being presumptively against his interest.

Indictment, Murder. — Verdict, Guilty. Certiorari. I. A waiver of the irregularity of the proceedings, before an inferior tribunal, is no consent to dispense with the proof of those proceedings. S. In all trials of Slaves, for Capital offences, it is necessary that the preliminary proceedings, before the Magistrates, should appear on the face of the Indictment, either by way of recital, or allegation, and must be proved before the Jury, 3.

In Equity — Bill and Demurrer. 1. To oust the jurisdiction of Equity, a party’s remedy at common law must be adequate, complete, and adapted to the exigency of the case. 2. The lien of a junior mortgage, on the premises, is destroyed, by a sale under foreclosure of an elder one. 3. But tile junior mortgage has an equitable claim on the fund, raised by the sale, after the elder mortgage is satisfied. 4.

Petition for Certiorari in Muscogee Superior Court. 1. The Justices’ Courts of Georgia are not Courts of Record, 2. Several suits cannot be commenced by the same plaintiff, against the same defendant, at the same time, in a Court, not of Record, on several causes of action, which, in the aggregate, exceed the jurisdiction of such Court.

Certiorari. 1. Entering security, on an appeal, is a matter of record, 2. An authority, to bind one as security on an appeal, can be given only under seal: and dtibilalur, whether it can be given at all. 3. In a Justice’s Court, a security on appeal, not signing or sealing the recognizance, is not bound by an entry of his securityship, made by the magistrate, on his verbal authority.

Certiorari in Harris Superior Court, March Term, 1842. 1, An open aceount is not assignable, so as to authorize the assignee to maintain an action in his own name. 2. A promise to pay the account to the assignee, is a id ere naked promise, and does not confer the right to sue in his own name. The petition, in this co.se, states, that the plaintiff, Kendriclc, commenced an action against the defendant, Glover, in the Justice’s Court, for the 695th dist. Ga.

Certiorari. 1. The Act of 1821, “ to quiet the possession of personal property,” is to be construed strictly, 2, Property, voluntarily delivered to another person, cannot be recovered back from him, by the process, provided for in this Act, In obedience to the writ of Certiorari, issued in the above cause, the Magistrate, in the Court below, to whom it was directed, makes the following return of his proceedings therein : — That, on the 1st July, 1842, Philip Reilly, one of…

Demurrer. Bill of Quia timet and Injunction, in Harris Superior Court, March Term, 1842. 1. An order to arrest property upon a threat of its removal from the State, anti! the defendants give bond, is illegal.

<p> Habeas Corpus. </p> <p>1. If one oí two parties plaintiff being partners in trade, take the benefit of the Insolvent Law, and return upon his schedule, the debt due by judgment to the firm, and no trustee is appointed in terms of the Law, to take charge of the assets returned, no process can be issued for the collection of the judgment.</p> <p>2. If one of two partners take benefit of the Insolvent Law, the other partner has no authority to collect such of the debts of the firm as are placed on the insolvent’s schedule.</p> <p>AT CHAMBERS, Jajojaey 1st, 1842.</p> <p>The facts in this case, as they appear by the return of the Sheriff, (Luckie,) and are agreed on by the parties in interest, are as follows : In the month of January, eighteen hundred and thirty-nine, Calhoun <£• Bass obtained a judgment in the Superior Court, of this county, against George W. Ross, for the sum of five thousand dollars. On that judgment, and within the last few days, a ca. sa. has been issued, returnable to the next term of the Inferior Court, by virtue of which the defendant has been arrested, and is now held in custody. At the last term of the Superior Court, in this county, and prior to the issuance of the ca. sa., one of the plaintiffs, to wit: Calhoun, took the oath, and received the benefit of the “ Act for the relief of honest debtors,” reported in Prince’s Digest 291. In the schedule of property filed by Calhoun, preparatory to his discharge, is embraced the debt for which the defendant is now held in custody, and the judgment (and afi.fa. which has heretofore been issued upon it) were, at the time of his discharge, placed within the control of the Court. An Act of the Legislature, passed December 5, 1801, reported in Prince’s Digest 280, provides, that “ if any part of the property so given up shall consist of judgments, bonds, notes, contracts, securities, mortgages, liquidated demands, or open accounts, the Court shall order the same to be assigned over, by said debtor or debtors, to some fit or proper person, or persons, whom a majority of the creditors shall nominate, to the use of and in trust for such judgment creditors, which, when collected by the said trustees, together with the money which may be in the hands of the Sherifl’, arising from the sale of any property of such debtor, or debtors, shall be subject to the further order of and after the payment of the costs and charges, shall be distributed by the said Court agreeably to the Laws within this State, for the payment of judgments and executions.”</p>

Certiorari. A credit entered on a note barred by the statute of ¡imitations, does not of itself take the case out of the statute of limitations. There must be proof that the payment on which the credit was entered was actually made.

Certiorari. On proof that usurious interest is added into and constitutes a part of the consideration of a note sued on, a verdict cannot be rendered for the whole amount. The interest must be deducted.

<p> Certiorari. </p> <p>The part of a crop to which the cropper is entitled, under a contract that his portion was to be assigned him, after he paid his employer for provisions with which he should furnish him while he was making the crop, is not the subject of levy until the provisions are paid lor.</p>

Certiorari, la an action on a note for a wheat fan, “ if it proves to be a good one and performs well,” it is not necessary on a plea of failure of consideration for the defendant to prove that lie offered to return the fan. It is sufficient to prove that it was worthless.

Bill for Discovery, Relief, &c. 1. Under the laws of Georgia, a mortgage is a mere incumbrance, to pay a debt. 2. It is neither an assignment in trust, nor a conveyance, or transfer, under the Act of 1818. 3. The Act of 1818, therefore, does not affect mortgages, at all.

Assumpsit, Sfc. Verdict for Plaintiff and Rule Nisi for a new trial, 1st. It is competent for a person, not being a physician, to testify to the general health of a person. 2nd. The sayings of a sick negro to her physician, cannot be given in evidence, except as to the disease of which she is afflicted at the time of the conversation. This was an action founded upon a promissory note given for a negro woman.

<p> Ejectment, and Verdict for Plaintiffs and Rule Nisi for a new trial. </p> <p>1st. Parole evidence is admissible to raise a latent ambiguity in a grant, and then to explain it.</p> <p>Snd, If there be a mistake in the Christian name of a grantee, it may be explained by parole evidence.</p> <p>This is an action of Ejectment brought for the recovery of lot of land No. 134, in the eighth district of originally Troup, now Meriwether county. Upon the trial, plaintiff introduced in evidence a grant from the State of Georgia to James Meadows, orphan,⅛ HarroVs district, Upson county, for said lot of land, bearing date on the 22nd day of March, 1834, and which in its body, to wit: the tenendum el habendum conveyed the said lot of land to the said James Meadows. He then proposed to introduce parole testimony, to show that Edward S. Meadows, and not James Meadows, was the grantee intended. This motion was resisted by defendant’s counsel, upon the ground that parole testimony could not be admitted for the purpose of varying or explaining a written instrument. The Court overruled the objection, and permitted the evidence to go to the Jury. This testimony proved that Edward S. Meadows was an orphan at the time of giving in for draws in the land lottery of 1825 and 1826, and that he at that time resided in HarroVs district, Upson county, and that there was no person by the name of James Meadows residing in that district or county, and that the only orphan who resided in said district by the name of Meadows, at the time of taking in the names of persons entitled to draws in said lottery, was Edward S. Meadows, upon whose demise the plaintiff relied. It was further proved, that Edward S. Meadows was an orphan of James Meadows, who had departed this life many years before , in the county of Putnam. It did not appear that any individual by the name of James Meadows, of any other orphan by the name of Meadows, or any other name, had at any time set up a claim to said lot of land. The plaintiff proved the locus, and that the rent of said premises was worth, in the opinion of one w'itness, thirty dollars per annum, and one hundred dollars per annum, in the opinion of another. The Jury found for the plaintiff, on the demise of Edward S. Meadows, the premises in dispute, and one hundred and ninety* four dollars for mesne profits. The counsel for defendant then moved for a new trial, upon the following grounds :</p> <p>1st. Because the Court committed error, in permitting parole evidence, to shew that Edward. S. Meadow's, one of the lessors of the plaintiff, was the grantee intended, when the grant introduced by him was to James Meadows, orphan.</p> <p>2nd. Because the Court committed error, in deciding that parole evidence could be introduced by the plaintiff to explain a latent ambiguity, when there was no ambiguity on the face of the grant, nor any ambiguity raised by any other testimony.</p> <p>3rd. Because the Court permitted the plaintiff to introduce parole evidence to contradict the face of the grant which he had introduced himself in evidence, by shewing that Edward S. Meadows was the person intended to be the grantee, instead of James Meadows, (orphan,) the person named in the grant.</p> <p>4th. Because the verdict was contrary to both Law and evidence.</p>

Trespass, in Nature of Ravishment of Ward. A verdict’s being against evidence is net a ground for a new trial, where testimony, on both sides, has been submitted to the Jury, on which they might find either way. Nor, where there have been two concurrent verdicts, and no rule of law violated.

Bill for Discovery, Injunction and Relief. In paying the debts of a decedent, mortgages have a general lien on the estate, on the same footing with judgments, in the order of priority of date.

Assumpsit: Verdict for Plaintiff, Motion in arrest of Judgment, and, if overruled, then a Motion for a New Trial. 1. A count in tort cannot be joined with one in assumpsit. 2. But, where assumpsit is the proper remedy, a scienter is not necessary, to enable ■ a party to recover, for false representations.

IN EQUITY. Bill for Discovery and Belief. 1. An infant may disaffirm a deed made during his minority, after he arrives at full age, by executing another conveyance. 2, A person, may affirm a conveyance or contract made by him during his infancy, by doing any act which tends to confirm it.

IN CHAMBERS — IN EQUITY, Habeas Corpus. In the mailer of the Infant Child of Anna and Nathan S. King. 1. When the person in custody is an infant child, and the controversy is between its parents for the possession, the Court will look to the interest of the child, and award the possession to that parent, who will most likely train it properly, 2. The Chancellor will not permit it to be taken out of his jurisdiction.

Certiorari, in De Kalb Superior Court. 1st. Debts must be mutual, i. e. due between the same parties, to be set off against each other. , 2nd, A Debt of $252 75 cts. cannot be pleaded as a set off in a Justice’s Court.

AT CHAMBERS — Bill fur Discovery, Relief and Injunction. Motion to dissolve ike Injunction upon the coming in of the answer. 1. Equity will not relieve before eviction, by rescinding a contract for the purchase of lands, on the ground of a defective title. It may be that (he outstanding title might never be urged.

<p>ASSIGNMENT OF CHOSES IN ACTION.</p>

Bill for Discovery, Belief and Injunction. Demurrer. 1. A security is entitled to be relieved in Equity, against a creditor who has extended indulgence to his principal, after judgment, for a valuable consideration, 2. This, however, is to be taken with some qualification, for if the security has not been injured by the stipulation between the creditor and his principal, it seems he is not entitled to relief.

<p> Bi/,1 for Discovery, Relief, and Injunction. Demurrer filed. </p> <p>1. A plea to the jtiriteiction is a personal right, and available only by defendant himself.</p> <p>2. Judgments, in a Justice’s Court, cannot be set aside, on the ground of want of jurisdiction, upon the application of other creditors, by bill in Equity.</p> <p>The charges, in the above bill, are, that Briscoe held a note, made by Patillo, one of the defendants, for about two hundred dollars, on which he had sued in the inferior Court, and obtained judgment. That the other defendants, likewise, held notes, individually, on Patillo, for about the same amount, and that, pending the suit, brought by Briscoe, they prevailed on Patillo to give them small notes, under thirty dollars, in lieu of their original notes, and that, on these small notes, suits were brought, in the Justice’s Court, and judgments rendered, before the judgment in the inferior Court, in favor of complainant. The bill further charges, that by these judgments, an amount of money (i do not now recollect how much) had been raised by the Sheriff, and was in his hands, for distribution, among the fi. fa’s, and prays that the fi. fa’s, in favor of defendants, bo perpetually enjoined, and that the money, in the Sheriff’* hands, be paid over to complainant, in satisfaction of his fi. fa.</p> <p>The demurrer is upon the ground, that there is no equity in the bill, and that, by the Statute of the State, defendants had a right to do what the bill charges they had done.</p>

<p> Bill for Belief, ópc. in Coweta Superior Court, and Rule Nisi for new trial. </p> <p>1. An express trust in regard to personal property may be proved by parole evidence,</p> <p>2. Property wrongfully purchased with the trust fund, may at the option of the cestui que trust, be pursued in the hands of the trustee, or those in privity with him, and held subject to the terms of the original trust,</p> <p>3. An express trust against which the statute of limitations does not run, may be created by parole. The possession of the executors of a trustee, is the continuation of the trustee’s possession, and the statute does not run in their favour.</p> <p>4. If a trustee holds over, after the expiration of the trust, his possession is for the cestui que trust, and no bar is created in his favour.</p> <p>5. The statute does not begin to run in favour of a trustee until his possession becomes adverse by a refusal to deliver the trust property, or an appropriation of ⅛ by him.</p> <p>This is a bill filed by John L. Marlin, who sues in his own right, and as the assignee of Henry English, who married Catharine Martin, Jonathan Nutt, who married Eleanor Martin, and Morris Martin, and Joseph Frost and his wife Mary Frost — in which it is alleged, that John Langdon, in the year 1801, loaned to his daughter, Nancy Marlin, then a widow, and mother of the complainants, a negro woman by the name of Nance — that in the year 1802, the said Nancy intermarried with one Hiram, Buckley, now deceased, and upon said marriage, the said John Langdon, by express agreement and contract, permitted the said negro woman, Nance, to remain in the possession of the said Hiram Buckley and wife, expressly stipulating that she was to remain during the natural life of the said Hiram and wife, or either of them, and at the death of the survivor, the said negro woman and her increase was to become the property of the complainants, the children of the said Nancy Martin, by her former husband — that in the year 1807, the said Hiram Back-ley being dissatisfied with the said negro woman, Nance, returned her to the said John Langdon, who, being anxious to make provision for his daughter and her children, furnished the said Hiram Buckley with the sum of $400 in cash, in lieu thereof, with express instructions, and which was received by the said Hiram, with the distinct and express understanding that he was to purchase therewith another negro woman slave in the place and stead of the said Nance, and which,, with her increase, was to follow all the conditions in stipulations made concerning the said Nance at the time she was delivered to the said Hiram and wife, to wit: that she was to remain in their possession during the life of the survivor, and at the death of the survivor to become the property of the said children of the said Nancy Martin, the present complainants. It is further stated, that the said Hiram kept the four hundred dollars in his possession for several years, and then purchased therewith a tract of land and took the title thereto in his own name — and that, in the year 1812, he exchanged the said tract of land for a negro woman slave by the name of Jinny, and her two children, Bohh and Keziah, and placed them in the place and stead of the said negro woman Nance and her increase, and to follow the conditions and stipulations made and entered into concerning the said Nance and her increase. It is further stated, that the said Hiram, at the time he purchased the said negro woman Jinny and her children, although he then, and at all times afterwards during his life, admitted that the same were the proceeds of the said sum of #400, and that he and his wife had only a life estate in the same, and at their death the same with their increase were to become the property of complainants, yet the said Hiram took a bill of sale to said negro woman Jinny and her children in his own name. They further charge, that said Hiram received and held said negro woman Jinny and her increase in trust for the said complainants, and that the said negro woman Jinny and her children, at the time of the purchase, did not exceed in value the said Nance and her increase, and that the actual cost of the same did not exceed the principal sum of $ 100 and the interest thereon, from the time the same was received by the said Hiram till the said purchase was made. It is also alleged, that the said Hiram and wife continued to live together until the year 1819, when the said Nancy died, leaving no issue except the said complainants, and that said Hiram continued in possession of said negroes until the-— day of July, 1831, when he died; having made a will and appointed the defendants his executors. That said negroes had increased to some eleven or twelve in number, and that they had been taken possession of by the said Greer Connally, as executor's, and that they were still in their possession. The bill then states the value of the negroes, and prays that defendants may be decreed to convey to them the negroes, and to account to them for the hire, &c. The defendants admit, by their answers, that Buckley did, in the year 1812, receive the said negro woman Jinny and her two children in exchange for a tract of land, from a man by the name of William Pollard, and that he took the bill of sale in his own name, as they contend he had a right to do. They deny any knowledge of all the facts and circumstances charged in said bill, which go to shew that Buckley had a life estate only, in said negroes, or that he held them in trust for said complainants, and contend that said negroes were bona fide the property of the said Buckley; and as a circumstance in confirmation of this fact, they attach to their answers a copy of the will of the said Buckley, by which he disposes of the said negroes as his own property. They admit that they, as the executors of said Buckley, took possession of said negroes immediately after his death, and have continued to hold and control them ever since. They also insist upon the statute of limitations, by which they contend the complainants’right of recovery is barred.</p>

Certiorari. Where there is conflicting evidence, on an oath of Hleoalitg, in an inferior court; that court is competent to decide upon the weight of the evidence.

<p>ritAm — yrAv trial.</p>

Verdict for Complainant, and Motion for Neto Trial. 1. The answer of one defendant, in a Bill in Equity, is evidence against a co-defendant, who is Ms privy in estate. 2. The improper admission of evidence, is no ground for a new trial, when the facts, shown by it, are proved by other testimony. 3. Conceditvr. Delaying, for a consideration, the levy of an execution against the principal, by which delay he becomes less able to pay it, win discharge the security onhippeai.

<p>Case, &c. on Appeal, and Verdict for Plaintiff — Motion in Arrest of Judgment.</p> <p>If one of severa! joint plaintiffs die, pendent lite; the suit will proceed in the name of the survivors, whether they appear to be partners, or not.</p> <p>This action was predicated on two promissory notes, made by the defendant, and payable to William U. Anderson, Thomas Glascock, and Eli H. Baxter, or order. Pending said suit, and before final trial, Glascock, one of the payees, died, and his death was suggested on the record. The cause was permitted to proceed, in the name of the survivors, and a verdict was found for the plaintiffs. Defendant’s counsel then made a motion in arrest of judgment, upon the following ground : — “ Because the note, which was the foundation of the action, “ was made paya ble to all the plaintiffs, by name, and they are not aver- “ red to be partners, and Glascock being dead, and unrepresented, “the Court erred in permitting the case to proceed.”</p>

Certiorari. 1. An action of Debt will not lie, to recover for the loan of a collateral article, 2. Nor will indebitatus assumpsit. 3. After opening ajudgment by default, the defendant may avail himself of any radical defect, in plaintiff’s declaration.

Assumpsit. Judgment for the Plaintiff, and Ride Nisi for new trial. 1. A scrawl annexed to the signature of a party to an instrument, is a seal, and the instrument ⅛ a sealed instrument, though it contain no words signifying the parties’ intention that it shall be so considered. 2. An instrument under seal pleaded as a set off to an action on a promissory note, but not described as being under seal, is inadmissible in evidence, on account of the variance.

Certiorari. 1, In a justice’s court, the magistrate has a right to decide upon the facts, or on affidavit of illegality, But, 3, His submitting the issue to a Jury is no ground of error.

<p> Certiorari. </p> <p>An affidavit of illegality reaches nothing, prior to the judgment.</p>

<p> Habeas Corpus. </p> <p>A Sheriff cannot execute an attachment, for a contempt of Court, out of hi» county.</p>

Certiorari. 1st. The Justice of the District, and Clerk of the Inferior Court, have the right to determine the amount of compensation due to the person who tolls a stray male, for keeping the same, and their decision is final. 2d. They have power to refuse compensation, when the mule has been put to work.

Certiorari. Objections to the admission of a note in evidence cannot be made, after the paper lias been read, and the defendant has offered evidence to defeat it.

Certiorari, in Fayette Superior Court. JSo .matter can be assigned as aground of error in the proceedings before a Justice’s Court, that was not urged in that Court.

<p> Certiorari. </p> <p>A jury cannot iind a verdict on the agreement of a majority; but must be unanimous.</p>

Certiorari, 1st. A plaintiff cannot assign a debt, the subject of a suit, during the pendency of the suit, to the prejudice of third persons, 2nd. A defendant who is garnisheed to answer what he is indebted to the plaintiff, in a suit or judgment, and who admits his indebtedness to plaintiff, and judgment is entered against him on the garnishment, by paying this judgment, is discharged from the judgment entered in the original case,

Certiorari. Proving an account, in a Justice’s court, previous to a non-suit, will not dispense with proof of the same account, in a subsequent action founded upon it, in the same court.

Certiorari. A party to a negotiable instrument, who is not a party to a suit upon it, is not, as a matter ofcourse, so interested in the event, as to be an incompetent witness.

Bill for Discovery, Relief and Injunction. Demurrer. A Court of Chancery will not correct errors of Law ; or in other words, where the only ground on which relief is asked, is an ignorance of the Law, a Court of Equity will not interfere. This bill states that the complainant, Martha II. Fergerson, is the wife, and the other complainants the minor children of the respondent, James if.

<p>EaT3ife PRACTICE-EVIDENCE-DEVISE-NEW TRIAL.</p>

'Ejectment — Verdict and this point reserved to he submitted at the next term of the Court, to wit: Whether the plaintiff had made out such a case on the introduction of the grant from the State to Gregory O. Green, the power of attorney from Gregory O. Green to N. H. Greer, and N, II.

Bill for Discovery, Relief and Account — Verdict for Defendant, and motion for new trial. 1st. That a Jury had spirits in their room of which they did not drink, is no ground for a new trial. 2nd. The Court will not grant a new trial on the ground that the verdict is against evidence, when there is evidence on both sides, and on which the Jury might fairly predicate their verdict. 3rd. A receipt in full is not conclusive against the party who gives it, but may be explained.

Attachment, and Verdict for Plaintiff, and Motion in Arrest of Judgment. 1. A declaration in attachment need not recite the issuing and levy of tile origin a' process, which already form a part of the record. 2. A formal statement of a promise is not necessary, in an action of assumpsit, whereaii the tacts are set forth, from which the law implies a promise.

Bill of Interpleader, Injunction, &c. Demurrer. 1st, A bill of Interpleader will be sustained when there are two parties claiming of the complainant the same demand, and it is no objection that one has been carried into judgment. 2nd, The ground of equitable jurisdiction in such cases is the doubtful title of the defendants. Without it, the claimant might pay to the party having the inferior right, and thereby render himself liable to the other.

Bill for Discovery, Relief, and Partition. Demurrer. A. demurrer to a bill will not be sustained, when the complainant is entitled to anv part of the relief prayed for.

<p>EVIDENCE IN JUSTICE’S COVETS.</p>

Certiorari. 1. When several suits are brought, between the same parties, in a Justice’s Court, the defendant can take advantage of their amounting to more than thirty dollars, only by a plea to the jurisdiction.* 3. Legal arrest is not Duress. This petition for Certiorari alleges, that these actions were commenced against defendants, for three promissory notes, amounting to seventy-five dollars.

Burglary. Verdict Guilty, and Motion for a New Trial. 1st. When the principles of'justice require that a new trial should be granted, tile Court will look into the evidence, and decide upon the consideration it is entitled to. 2nd. Where circumstances of guilt are slight, in a high criminal case, the Court will grant a new trial. , The motion in this case is made on two grounds : — 1. That the verdict is contrary to Law. 2. That it is contrary to Evidence.

Certiorari. The act,, authorising a defendant to deny the plaintiff’s account, upon his own oath, is confined to cases where the plaintiff proves his account by affidavit, without appearing in court.

<p>E QUITS’ PRACTICE.</p>

Petition for Certiorari in Talbot Superior Court, Sept. Term, 1842. 1st. A Justice af the Peace has no jurisdiction of a case in which a plaintiff in attachment swears to a debt due by the defendant exceeding thirty dollars. 2nd. When a Garnishee answers in a Justice's Court that he is indebted to the defendant in a sum exceeding thirty dollars, the Court cannot take jurisdiction of the case. This petition is filed by Joseph Pou, the garnishee.

<p>Certiorari, in Talbot Superior Court,</p> <p>1st. Justices of the Peace before whom a set off is pleaded, when the debts are evidently not mutual, ought not to refer the set off to the Jury</p> <p>2nd, When there arc two plaintiffs, the Jury cannot find against one, and in favour of the other.</p> <p>The petition in this case and the return of the magistrates in obedience to the writ of certiorari, directed to them in the premises, shew, that the plaintiffs instituted an action upon an open account, for eleven dollars and twenty-five cents, against the defendant, to the April term, 1841, of the Justices’ Court for the 689th District Georgia Mil. of the county of Talbot — that at the May term, 1841, of the Court, the defendant pleaded a set off which consisted of a promissory note made by one of the plaintiffs, Bucfchanan, payable to one Elijah Reeder, and transferred to the defendant, which set off the Justices, on the trial of the action, rejected — that the defendant appealed to a Jury, and that upon the trial by the Jury, the Justices referred the plea and set off to them, but charged the Jury that the set off, in their opinion, could not be allowed the defendant without a breach of the Law ; nevertheless, the Jury did so far allow the same as to find a verdict against Buckhanan, whose note was opposed to the action by the defendant, and found for the plaintiff, Hunt, one half of the account steed for.</p>

Assumpsit, ófc. — Verdict for Plaintiff; and Motion for New Trial, 1. A new trial is to be granted, where a verdict is manifestly against evidence. 2. Payment of a partnership note, by one partner, or by a third person for him, is a p iyment of the note, so as to prevent that third person from recovering on it, against the iirm.

Assault, with intent to Murder, in Marion Superior Court — Verdict of Guilty, and Motion in arrest of Judgment. September term, 1842. An Indictment for an assault with an intent to murder, must charge that the act was feloniously done with malice aforethought. It is not sufficient that this allegation is made, in the first, part of the Indictment where the assault is charged.

Certiorari. The omission of the foreman of a Jury, to sign his name in full, to the verdict, when the parties were present, and no objection made, is not ground of error.

Certiorari. Property, once sold under execution, is not liable again, to execution against the same defendant, without proof that the title had been revested in him.

Certiorari. 1. Where a note is given, in payment for a purchase of property, which note is represented as gout], but actually valueless; the vendor may tender the note back, and recover the price agreed upon. 2. A new trial will not be granted, in an inferior court, where there was conflicting evidence, of the weight of which that court was the competent tribunal to decide.

<p> Claim an Appeal. Verdict, finding the property subject, </p> <p>1st. A Mortgagee, after the foreclosure ofhis mortgage, cannot levy on the mortgaged property after a sale on anotherfi.fa,, though of a junior date. He must claim the proceeds of the sale.</p> <p>2nd, After the foreclosure of a mortgage, Ae mortgager’s- right of redemption is gone.</p> <p>fe tie above case, a rule was granted at tfee last term of this Court, requiring the plaintiff to shew cause Why a new trial should not be granted, on the ground “ that it appeared by plaintiff’s own shewing, that the mortgage had been foreclosed and execution issued thereon before the sale of the property, and that plaintiff was present at the sale with his mortgage fi, fa, at the time of the sale of the property, and might and ought to have claimed the money. The property being sold by virtue of executions against the defendant.”</p> <p>On the trial of the above ease, it was shewn that the property levied on was included in the mortgage, upon the foreclosure of which, the fi. fa. levied was issued — that at the time of the execution of tfee mortgage, the property belonged to the defendant in execution.</p> <p>On the part of the claimant, it was shewn, that the same property had been previously levied on and sold by virtue of another fi. fa* against the defendant, of a later date than the mortgage, and that the equity of redemption in said mortgage had been foreclosed, and that the execution issued thereon was in the possession of the plaintiff, who was present at the sale, and who notified the crowd on the day of sale, that his mortgage was foreclosed, that he would not claim the money arising from the sale, but would proceed to levy his mortgage ft-fa- upon and resell the property ; and that at said sale, the claimant became the purchaser. ¾ ⅞</p>

Certiorari. Failure of consideration, in a negotiable note, is no defence to an action, in .favo* of a bona fide holder, without notice, unless he took the note after it became due.

Certiorari. 1st. No matter can be assigned as error in a certiorari of proceedings from a Justice’s Court, which was not insisted on in the Court below. 2nd. The copy of a note sued on in a Justice’s Court, need not be attached to the summons served on defendant.

<p>KYIBEVCE IS justice’s COURTS.</p>

Trover, fyc. In Cohb Superior Court, and Verdict for Defendant, and rule nisi for new trial. Argued and determined at March term, 1842. 1st. When a chattel is sold on condition that the title is not to vest until paid for, and time is given for the payment, the property is not changed until the payment, though the possession is delivered at the time of sale. 2d. A new trial will be granted when the verdict of the Jury is contrary to evidence.

<p> Certiorari, </p> <p>At common law, costs can be awarded only against the unsuccessful party.</p>

Motion jor New Trial. 1‘ Where a parent permits personal property to go into possession oí a daughter, on her marrbgc, or shortly afterwards, and to remain there, for a length of time ⅞ it will Be considered a gift, anti the property vests in the husband. 2.

Certiorari. 1st. Where several cases are brought in a Justice’s Court, upon notes given as the consideration of the same contract, the Superior Court will not interfere, unless it were set up as a matter of defence. 2nd. If the defendant to actions in a Justice’s Court, intends to rely on a former recovery in defence, he must plead it, and if not insisted on in the Court below, this Court will not interfere.

Bill of Discovery, Relief and Injunction, in Muscogee Superior Court, Demurrer. 1st, Distributees of an intestate’s estate, after baling obtained a decree against the administrator, who is insolvent, may, in Equity, pursue into the hands of the security, who is also insolvent, a note given for property sold, as a part oí intestate's effects, and transferred to him to protect him on his suretiship, though if has been reduced to judgment, am! have it applied in part or whole…

Certiorari. Before a justice’s execution can be levied on land; the officer must make a return thereon, tluitsuffieient personal property of the- defondantis not. to be found, to satisfy the execution. And this is the rule, even where tile defendant himself points out the lam], for levy.

<p>IITSTléÉ’sijitEISBiCTION'.</p>

Bill for Discovery, Relief, Ne Exeat, and Quia Timet, — Motion to dissolve Ne Exeat and Quia Timet, and dismiss Bill. 1. A writ of nc exeat will not be granted, in favor of a person, who has no legal right to sue. 2. An administrator ad colligendum can bring no action. 3. The next of kin of a decedent cannot sue fur his property, without administration. 4. A demurrer to a bill in Equity cannot be sustained, on the allegation of a mere matter offact.

Certiorari. 1. When several suits are brought, to one term of a Justice’s Court, anJ it is sought to dismiss them, on the ground that they constituted, originally, one entire demand, which was divided, in order to give a Justice jurisdiction; — that fact must be proved. 2. The notes themselves are not evidence of the fact above required.

Demurrer to Traverse of the Answer of Garnishee.- When a garnishee’s answer denies all indebtedness; the general averment, that bets indebted, and has in band effects o£ the defendant, without specifying what is his indebtedness, or what assets he holds, is unceiUm, indefinite, and constitutes no traverse of the answer.

<p> Bill for Relief and Injunction. Demurrer. </p> <p>1. Property, once sold under execution against J, S. is liable to be levied on again, if the defendant again becomes its owner.</p> <p>2. Property, underjevy and claim."is subject to a second levy, under other executions against tbc defendant.</p> <p>3. If money is raised to pay off a ii, fa. but not applied to it; a subsequent sale, under the same fi. fa. will convey good title to a bona fide purchaser. Semh,</p> <p>4. A sale of mortgaged property, after foreclosure, under a common law judgment in favor of other creditors, disposes only of the equity of redemption.</p> <p>5. Hence, the mortgagee cannot claim the proceeds of such sale, though his mortgage be elder than the judgment.</p>

<p> Certiorari. </p> <p>Recommencing an action, within six months alter a non-sait, does not oust the statute of limitations.</p>

<p>LOST PAPERS-EVIDENCE-FRAUDULENT CONVEYANCE-SPECIFIC ’ PERFORMANCE-NEW TRIAL.'</p>

Attachment against Gkeen Barbow, Sheriff of Macon County. Motion to Dissolve Attachment. 1. An alias fi. fa. from another court, cannot claim money, on motion, without producing the order of court, under which it was issued. 2.

Bill for Discovery, Relief, and Injunction. Demurrer to Bill for want of Equity. A Court of Equity will not interiore to set off a claim, not subsisting at the commencement of an action at law. against tho judgment when rendered, even upon tho suggestion that the plaintiff at common law is insolvent.

Bill for Discovery, Relief , and Injunction, Demurrer. 1. A Sheriff’s return on an execution, within seven years of the date of the judgment, renders it perpetual. 3. One partner cannot bind the firm by deed. 3. The Claim law of Georgia gives only a cumulative remedy. That, by action of Trespass, remains .• but a party, electing one of tliesc remedies, is bound by liis election, and cannot resort to the other. 4.