Volume 10 — Georgia Reports

<p>[1.] It is not necessary to embody in the bill of exceptions, the questions propounded to a witness in interrogatories, as well as the answers, unless the answers are unintelligible without them.</p> <p>[2.] Documentary evidence, upon which no exception is founded, and which is not necessary to the elucidation of any ground of error taken in the bill, need not be embraced in the bill.</p> <p>[8,] Documentary evidence which is appended to a bill in Equity, or an answer, as an exhibit, and which is, therefore, a part of the record, and must come up under the certificate of the Clerk, need not be embodied in the bill of exceptions.</p> <p>[4.] Documentary evidence which is referred to and described in the bill of exceptions, and copies of which are appended to the bill of exceptions as exhibits, and which exhibits are certified to be true, by the presiding Judge, need not be embodied in the bill of exceptions. The better practice, however, is to copy them in the bill.</p> <p>[5.] When the ground of error is the judgment of the Court, on the sufficiency of a plea in bar of a former judgment, which plea in bar recites the former judgment in substance, and comes up with the record, under the certificate of tlie Olerlr, it is not necessary that such former judgment, or the record which contains it, should be embodied in the bill of exceptions.</p> <p>[6.] All persons interested in the judgment sought to bo reviewed, must be made parties to the writ of error, and in the order in which they stand in the record below. When, therefore, one of two or more defendants, against whom a decree has been rendered, brings a writ of error to reverse it, it is necessary for him to join his co-defendants, as plaintiffs in error; and upon the trial they may unite with him, and assign error against the decree, or they may sever and be heard in defence of the decree.</p> <p>[Y.] And if such plaintiff in error has failed to mate his co-defendant3 parties plaintiffs to the writ of error, they may be added by motion, without delay or cost, with the same privilege of assigning errors or severing.</p>

In Equity, in Twiggs Superior Court. Tried before Judge Hansell, April Term, 1851.

<p>In Equity in Camden Súperior Court. Tried before Judge H. R. Jackson, April Term, 1851.</p> <p>• This bill was filed by Elizabeth H Hopkins and Susan Anna Hopkins, the widow and child of William T. Hopkins, deceased, against the executors of his will, to recover a “ reasonable support” under the Act of 1838. See Vol.IX. 361. It appeared upon the trial that the estate was a large one, the annual income amounting to f 12,000; that the complainants were all the family left by testator, and that Susan Anna Hopkins, the daughter, was one of the residuary legatees. The other residuary legatee was a stranger in blood. It also appeared that under the advice of her physician, Mrs. Hopkins was forced to travel with Susan Anna Hopkins for her health. Upon the trial, the Jury found in favor of the complainants, the sum of six thousand dollars. Whereupon, a motion for a new trial -was made by the solicitors for the executors, on the ground that the decree of the Jury was excessive in amount, and nota reasonable maintenance, under the Act of 1838.</p> <p>The Court refused to grant the motion, and this decision is brought up for review.</p> <p>This case lies within a very narrow compass. There can be mo doubt that excessive damages is good cause for granting a mew trial.</p> <p>When there is a legal measure of damages, or any rule or principle by which they may be estimated, and that rule or principle has been violated, the Court will interfere. 4 Mass. 1, 41. 5 Ib. 435. When there is no such rule or principle, the Court interferes cautiously, unless the damages are outrageous or flagrantly excessive, or the Court is satisfied that there is no reasonable measure between the injury and the compensation, or unless the amount of damages warrant the belief that the Jury have been influenced by partiality or prejudice. 1 Yeats, 299. 1 South. 338. 15 Mass. 365. 16 Pick. 541. 1 Term Rep. 277. 5 Term Rep. 257.</p> <p>There is a principle in this case to guide the judgment. It is a reasonable maintenance which the law allows; but the Jury have assessed a most unreasonable sum. Here is a lady and one child, living on a plantation in the country. Is not the sum of $6000 for their support for one year, so unreasonable as to warrant the belief of partiality and prejudice ? The law does not contemplate a fund to travel, or for enjoyment and pleasure; it means the necessary comfortable support in the manner in which the children and wife have been accustomed to live. If the Jury can give away ‡6000 in this way, why not one-half of the estate ?</p> <p>One of the dearest and most invaluable rights to the citizen, is the right of testamentary disposition. It ought not to be allowed to be impaired by the partiality or prejudice of Juries, under color of this law, which was made for no such purpose.</p> <p>The motion for a new trial in this cause was not upon any alleged error on the part of the Court below, but upon the sole ground that the decree was excessive in amount. His Honor, Henry R. Jackson, before whom this cause has been twice tried, having overruled this motion for a new trial, this writ of error is brought to reverse that decision.</p> <p>1st. A Court may grant a new trial upon the ground of excessive damages. This is the extent to which any of the authorities have gone upon this subject. Dukcer vs. Wood, 1 Term R. 277. Jones vs. Sparrow, 5 Term R. 257.</p> <p>2d. While the Courts have thus exercised the power of revising the opinions of Juries, they have established fixed rules by which they will be governed in the exercise of that power, and this power will never be exercised where there are no grounds by which the excess might be fairly measured; because, the damages or the amount found by the Jury exceeded what, in the opinion of the Court, would have been a proper amount. Duberly vs. Gunning, 4 T. R. 651. Harvey vs. Huggins, 2 Bailey, 268, 269. Park vs. Hopkins, 2 Bailey, 408, ’9, ’10. Jacobs vs. Bangor, 4 Shepley, 191. Coffin vs. Coffin, 4 Mass. 42, 43, 44, 45. Mayor, &c vs. Trustees Bibb Co. Academy, 7 Geo. R. 204.</p> <p>3d. Where the presiding Judge, before whom the cause has been tried, and who is presumed to have been familiar with the facts and circumstances which transpired at the time of the trial, has, in the exercise of his discretion, refused a motion for a new trial, a very clear case of error must be presented to induce the Court to control its discretion. Jones vs. State of Georgia, 1 Kelly, 618. Hudgins vs. State of Georgia, 2 Kelly, 183. Roberts vs. State of Georgia, 3 Kelly, 322. Craft vs. Jackson, 4 Geo. R. 363. Spears vs. Smith, 7 Geo. R. 436, 437. Berry vs. Matthews, 7 Geo. R. 463.</p> <p>4th. The value of this estate, the family of the deceased, the' condition in which the estate was left, the income of the estate, fully sustain the. finding of the Jury. See will of the deceased. See Acts of 1838, p. 201.</p>

Ward, for plaintiff in error, moved to continue this cause, on the ground of the sickness of R. M. Charlton, Esq. evidenced by the following certificate: “ I hereby certify that in consequence of the injurious effects of repeated attacks of sickness on tire health of Robert M. Charlton, Esq. I have been compelled, as his medical adviser, to recommend an entire abstraction from all professional duty; particularly, attendance on the last May Term of the Superior Court at…

Indictment for larceny after a trust delegated or confidence reposed. In Chatham Superior Court. Tried before Judge H. R. Jackson, January Term, 1851.

Debt, in Macon Superior Court. Tried before Judge Warren, March Term, 1851. This was an action for the use of Eliza A. Jones, against the representative of the estate of Samuel F. Jones, her father and natural guardian, upon the bond given by him as guardian.

<p>Ejectment and motion for a new trial, in Macon Superior Court. Decided by Judge Warren, March Term, 1851.</p> <p>This bill of exceptions was filed to the decision of the Court below, on a motion for a new trial. One ground taken for a new trial was, that the Court erred in allowing the Sheriff’s deed and execution to be read to the Jury, as evidence of original title in Whatley — objections being made thereto, on the ground that said Sheriff’s deed was not original, and that the plaintiff must show a legal title in Whatley, the defendant in fi. fa. at the time of the sale by the Sheriff.</p> <p>This ground was overruled by the Court below, and is assigned as error.</p> <p>Another ground taken for a new trial was, that the Court erred in overruling the motion for a non-suit, made by defendant, on the ground, that the deed from the Sheriff to the plaintiff, conveyed only the interest of Whatley, the defendant in fi.. fa. in the premises, without specifying the quantity of interest owned by the defendant in fi. fa. and no evidence had been submitted to show what that interest was.</p> <p>The evidence showed that they?, fa. was levied on “all John Whatley’s interest in lot of land, number not known, the place whereon said Whatley now lives, pointed out by John Mitchell.” The deed to the purchaser professed to convey “ the interest of John Whatley in lot of land No. 271, 1st district of said County,” (Macon.)</p> <p>The Court below overruled the motion for a new trial on this ground, and this is assigned as error.</p> <p>Other grounds of error were assigned, but were not decided by this Court.</p>

Tried in Stewart Superior Court, before Judge Iverson, April Term, 1851. The following facts were agreed upon by the parties in the Court below— “John G. Perry, on the 2d day of March, 1848, made and published his last will and testament. On the 18th day of November, 1850, he departed this life. In the month of May, 1850, previous to his death,' a child, a daughter, still in life, was born.

Indictment for murder and motion for a new trial, in Randolph Superior Court. Decided by Judge Warren, April Term, 1851. In the trial of this cause — after eleven Jurors had been selected and sworn — Lewis Cannon, one of the eleven, absented himself from the court house and the balance of the Jury, without the consent of the Court, for five or ten minutes. When he returned, the Court, of its own motion, dismissed the said Juror and discharged him from the case.

Indictment for simple larceny, in Stewart Superior Court. Tried before Judge Iverson, May Term, 1851.

<p>Motion for a new trial, in Decatur Superior Court. Decision by Judge Warren, June Term, 1851.</p> <p>A motion for a new trial was made in this case, and a rule nisi granted, at June Term, 1849. This motion was continued for want of the papers, for three terms. At June Term, 1851, counsel against the motion moved to dismiss it, on the ground that though the brief of the testimony in the cause had been agreed upon by the counsel of both parties, yet said agreement was not entered upon the minutes of the Court, at the term at which the motion was made for a rule nisi; that this agreement and the brief of the testimony had been marked “ filed in office,” by the Clerk, and then taken out by the counsel for the movants who had kept them ever since.</p> <p>The Court overruled the motion to dismiss, and this decision is excepted to.</p> <p>Counsel for the movants then moved the Court to order the Clerk to enter this agreement on the minutes, nunc pro tunc, which motion was granted by the Court, and this decision also, is excepted to.</p> <p>On these exceptions error is assigned.</p>

Three indictments in Dooly Superior Court. Decision by Judge Warren, May Term, 1851. Heard together in this Court, by consent. George W. Kerese was arraigned on three several indictments in Dooly Superior Court — two for simple larceny, and one for, an attempt to commit a burglary; and at November Term, 1850, demanded a trial on each, in terms of the Statute in such cases made and provided, which demand was entered on the minutes.

Appeal to Stewart Superior Court. Decision by Judge Iverson, April Term, 1851. This was a controversy as to the right to administration upon the estate of William Leverett, deceased. Win. H. D. Dismukes, one of the applicants, married the sister of deceased. Mas-tin Leverett, the other applicant, was the uncle of deceased. Decedent left neither wife or child.

Indictment for murder, in Marion Superior Court. Tried before Judge Iverson, March Term, 1851. On the trial of Thomas Davis, for the alleged murder of Eli Larkin, the record discloses a voluminous brief of evidence submitted. The substance of it is as follows: That on the day the homicide was committed, Davis, the prisoner, came along' a path some 40 or 50 yards from Larkin’s (the deceased) house, on his way from, a mill, with a bag on his back.

In Equity, in Talbot Superior Court. Decided by Judge Iverson, March Term, 1851. Jno. T. Booth and N. Rains filed their bill, alleging that Martin M. Stamper had an action of assumpsit pending in the Superior Court of Talbot County, against Booth, founded on a promissory note, the consideration of which, being money lost at play; that Booth filed this as his plea, and had a witness subpoenaed to prove it. A short time before the trial, Booth and Geo.

<p>[1.] The pm-chaser under a judgment against the vendor or vendee of land like a purchaser from either, by voluntary conveyance, succeeds but to the interest which the debtor had power to encumber or part with — the one being entitled to call for the purchase money, as the representative of the vendor, and the other being entitled to call for a conveyance, as the representative of the vendee.</p> <p>[2.] The judgment creditors of the vendee of land, who has paid part of the purchase money, and has possession of the land, but has secured no deed, are entitled to the proceeds of the sale of his title, under an execution, in preference to the vendor.</p>

In Equity, in Muscogee Superior Court. Application for a receiver. Decision by Judge Iverson, at Chambers, May 22d, 1851.

In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Iverson, May Term, 1851. Wiley E. Jones, in his bill filed against the executors of Jef. J. Lamar, alleged, that on 11th March, 1837, he purchased of Jef.

<p>[1.] For the purpose of fixing bail, the ca. sa. against the principal must be returned to the next succeeding term of the Court from which it issued.</p> <p>[2.] No intermediate return is sufficient to fix the bail, neither can it be regarded as the return required by law.</p> <p>[3.] If the pleadings show that the ca. sa. was in fact returned into the Clerk’s office by the Sheriff, with an entry of non est inventus thereon, several weeks before the term of the Court to which it is made returnable, it constitutes a good defence to the scire facias sued out against the bail.</p> <p>[4.] During the time that intervenes between the test and return of the ca. sa, it must remain in the officer’s hands, subject, if practicable, to be executed.</p>

<p>Assumpsit, &c. in Talbot Superior Court. Tried before Judge Iverson, March Term, 1851.</p> <p>This was an action of assumpsit, &c. brought by Lucius Rolfe against Richard W. Rolfe, upon an account for services rendered as a clerk and a miller. Defendant pleaded “ accord and satisfaction ” and “ set-off.”</p> <p>In the progress of the trial, defendant introduced Jackson Fields as a witness, and proved that in July, 1849, plaintiff told him (witness) that he “ had just got a note from defendant; said nothing as to its consideration, nor about a settlement; said something about having sold defendant a mare.” In the same conversation, said “ if defendant would pay him what he owed him, he could carry onhis business without borrowing money.” To the latter portion of this evidence, drawn out on cross-examination, defendant objected, on the ground that although spoken at the same time, it was not a part of the same conversation. The Court overruled the objection, and this is assigned as error.</p> <p>Defendant offered in evidence, his own book of accounts, having made affidavit that the book then offered was his original book of entries; that he kept no clerk except plaintiff, and that the entries in the account of plaintiff are in the handwriting of plaintiff himself, except four items in the handwriting of defendant; and having proved by one customer that he kept correct books, plaintiff objected, on the ground that it was not competent for defendant to prove in whose handwriting the entries were. The books were rejected by the Court at that time, and defendant excepted.</p> <p>Subsequently, defendant proved by Alexander Rolfe, the facts as above stated, as to the items in defendant’s account being in handwriting of plaintiff, and that plaintiff admitted to witness that the account was correct. Defendant’s counsel, in his argument to the Jury, was commenting' upon the books, wdien he was stopped by plaintiff’s counsel, on the ground that the books had not been given in evidence — counsel differing as to the facts, the Court decided that the books had not been tendered in evidence. Defendant’s counsel then asked permission to give the books in evidence at that time — stating in their place, that at the time they announced the evidence closed, and up to the time of the decision of the Court, they fully believed that said book had been given in evidence. The Court overruled the motion, and this is assigned as error.</p> <p>Defendant’s counsel then moved that the cause be continued, on the ground of the mistake and surprise. The Court overruled this motion, and this is assigned as error.</p> <p>Defendant’s counsel afterwards moved for a new7 trial, on the ground of error in the Court, in the above stated decisions, and at that time filed their several affidavits to the facts stated in their place, and that the mistake or failure to read, arose from the loose practice of counsel in such matters, to waive the actual reading of the books in evidence.</p> <p>The Court refused a new trial, and this also, is assigned as error.</p> <p>In the progress of the case, one Alexander Rolfe was introduced by plaintiff, to explain a receipt in full, given by plaintiff to defendant, who stated, among other things, that at the time die receipt was given, “ witness remarked in the hearing of both parties to plaintiff, that he was a fool for giving such a receipt* The remark was made in an audible voice, not ten feet from the parties, and defendant might have heard it, if he paid attention.” The defendant objected to this evidence, on the ground that it was irrelevant and illegal, being witness’ own statement, and not replied to by defendant. The Court overruled the objection, and this also, is assigned as error.</p>

Claim, &c. in Talbot Superior Court. Tried before Judge Iyerson, March Term, 1851. A Ji. fa. in favor of James Dowdell vs. B. Whitehurst, was levied on certain real estate, (the Talbotton Hotel,) to which John Neal interposed a claim.

Debt, in Marion Superior Court. Tried before Judge Iverson, March Term, 1851. Benjamin J. Holley, the Sheriff of Marion County, appointed Zachariah Wallace his Deputy, taking bond with security from him for the proper discharge of ins duties.

<p>Debt, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1851.</p> <p>This was an action of debt, brought by Richard A. Lane against Thomas Morris, as a stockholder of the Planters’ and Mechanics’ Bank of Columbus, for the recovery of his pro rata liability under the charter, for the redemption of certain bills of the said bank, held by Lane. T0 this action, Morris, among other things, pleaded, that the right of action was barred by the Statute of Limitations, not having, been prosecuted within four years after the same accrued to the said Lane. Counsel for Lane demurred to the plea, and moved to strike it out. The Court below overruled the motion, and this is the first ground of error assigned.</p> <p>It appeared, in evidence, that the amount of stock subscribed in the Planters’ and Mechanics’ Bank, was one million of dollars, in shares of $100 each; that only $25 per share was paid in; that in April, 1847, suit was brought by Lane upon these bills, against Robert B. Alexander, the assignee of the Planters’ and Mechanics’ Bank, in which it was averred that a demand was made upon said bank for payment of the same, on 25th April, 1842. On 1st February, 1848, Robert B. Alexander, the assignee, confessed judgment “ to the plaintiff, for the sum of $>1,925, with interest and costs, to be levied of the goods and chattels, rights and credits, lands and tenements of the said Planters’ and Mechanics’ Bank of Columbus.” On this judgment execution issued, upon which the Sheriff made return of nulla bona, on 17th March, 1848.</p> <p>Plaintiff’s counsel requested the Court to charge, “ that if they should find for the plaintiff, he was entitled to interest on the amount of his bills, from the time of the demand on the bank, to the return of nulla bona on the fi-fa. and from that time interest on the proportion for which the defendant was liable.” The Court declined so to charge, but instructed the Jury as follows : “ That the plaintiff was entitled to recover interest on the proportion of the bills held by plaintiff, from the time of the return of nulla bona upon Úieji. fa.”</p> <p>This charge and refusal to charge, are assigned as grounds of error.</p> <p>The counsel for plaintiff requested the Court further to 'charge the Jury, “ in estimating the value of defendant’s stock, (in order to arrive at the amount of his liability under the charter,) they should be governed by the estimate or value fixed by the charter, viz: $100 per share, and not by the market value, or the amount paid in.” The Court declined so to charge, but instructed the Jury as follows: “That, in order to ascertain the pro rata proportion due by the defendant, that the value of the stock was to be estimated by the amount proven to have been paid in.”</p> <p>This charge and refusal to charge are also assigned as grounds of error.</p>

<p>[1.] A judgment is presumed to bepaicl after twenty years. This presumption may be rebutted.</p>

Motion, in Muscogee Superior Court. Decision by Judge Iverson, May Term, 1851.

<p>Claim, in Sumpter Superior Court. Tried before Judge Warren, May Term, 1851.</p> <p>The single question in this case was, whether the judgment and execution of plaintiff in fi. fa. was dormant, under the Act of 1823. The judgment was dated 7th May, 1842 ; execution issued 13th May, 1842. On the back of the execution was indorsed the following entries : “Levied the within fi. fa. on lot of land, No. not known, in the 16th district, formerly Lee, now Sumpter County, the undivided half of lot No. 199, and half of lot No. 209, in the 27th district, all levied on as the property of John H. Blount, 27th Sept. 1842.” This entry was not signed by any one.</p> <p>“The above levy was stopped by order of the plaintiff’s attorney, Nov. 2d, 1842. (Signed,)</p> <p>E. J. Cottle, Sheriff.”</p> <p>“ The above lands levied on by this Ji. fa. have been discovered not to be subject; it is, therefore, dismissed by order of plaintiff, July 27, 1849. (Signed,)</p> <p>Green M. Wheeler, Dep. Sheriff”</p> <p>On the same day, July 27,1849, the levy was made, to which the claim was interposed.</p> <p>The Court decided that the judgment and execution were dormant — the entries dated 27th Sept. 1842,"and 2d Nov. 1842, not constituting a legal levy and return, as required by the Statute.</p> <p>This decision is brought up for review.</p>

Ejectment, in Sumpter Superior Court. Tried before Judge Warren, May Term, 1851. Upon the trial of this case, plaintiff introduced a grant from the State of Georgia, (dated in 1843,) to Elizabeth Williams, widow, of--district, Hancock County, Georgia; proved possession in defendant, and closed.

Ejectment, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1851. This suit was brought by Jones, to recover fractional lot, (No. 10,) in 7th district of Muscogee.

In Equity, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1851. Moses H. Baldwin brought suit against Joseph A. L. Lee, on a promissory note for $317.

In Equity, in Muscogee Superior Court. Decision by Judge Iverson, May Term, 1851. The question in this case arose upon a motion to dissolve the injunction upon the coming in of the answer.

<p>Ejectment, in Harris Superior Court/ Tried before Judge Iverson, March Term, 1851.</p> <p>This was an action of ejectment, brought by Edward W. Pendergrast and Joseph Reilly and Julia Ann Reilly, formerly Julia Ann Pendergrast, as the heirs general of Patrick Pendergrast, deceased, for lot of land, No. 132, in the 18th district, of originally Muscogee. The land was granted to Patrick Pendergrast, in the year 1827. Patrick Pendergrast died in Ireland, in 1830. The defendants relied upon the Statute of Limitations. The plaintiffs insisted that suit was brought within seven years after their arrival of age. It is unnecessary to repeat here all the evidence introduced, touching the age of the plaintiffs.</p> <p>The plaintiffs offered in evidence the depositions of Moses Jones, moving at the same time to withhold from the Jury the following clauses: “Richard Prather purchased it (the land) of a Mr. Alford, in the fall of the year, 1828, witness thought in November, having given his notes for f>1150.” The Court overruled the motion, and this is the first error assigned.</p> <p>The plaintiffs offered in evidence the following certificate :</p> <p>“I hereby certify that Edward Pendergrast, born of Patrick Pendergrast and Mary his wife, (formerly Fleming,) was baptised by the Rev. P. Bulger, according to the rites of Ploly Roman Catholic Church, and that said Edward Pendergrast was born 19th August, 1821.</p> <p>(Signed) John Power, Vic. GcrPl and Rec. of St. Pet. Ch.</p> <p>A true extract from the Church Register, New York, January 23, 1844. (Signed) Charles E. Benson, CPk. St. Pt.</p> <p>To which certificate was attached the following affidavit, taken before John Bissell, commissioner for the State of Georgia, in New York City. George C. Collins sworn, says that he saw the Reverend John Power, Vicar General and Rector of St. Peters’ Church in said City, sign the above certificate, after carefully examining the same, and comparing it with the record book of said Church, and that he also saw Charles E. Benson, Clerk of said Church, sign the last of said certificates, after like examination, and that deponent also carefully compared the certificate so given by said John Power, with the original ¡entry in said record book or church register, and finds the same correct and true.</p> <p>Defendants objected to the certificate and affidavit going in evidence. The objection was sustained, and this decision is assigned as error.</p> <p>The defendants introduced no paper title, but relied upon possession, under claim of title; one of the witnesses for plaintiff having stated that Prather took possession in November, 1838, and had indirectly had possession of said lot, until 25th Dec. 1848, when Gullatt took possession; that when Prather took possession, there was a small piece of land cleared; that he cleared some four or five acres more, and cultivated it in the year 1839, and continued annually to clear until 1845, up to which time he had cleared about 50 acres; that Prather held possession individually in his own right, during each year, from 1839, to 25th Dec. 1848, when Gullatt took possession; that there was fifty acres cleared, and that it had usually been rented from 1845, for about a bale of cotton, weighing 500 lbs.</p> <p>The plaintiffs asked the Court to charge,</p> <p>1st. That the title of Prather, if a trespasser, in order to bar the rights of plaintiff, must have continued seven years in himself, from the time that the plaintiffs arrived at age, and must have so continued at the commencement of the plaintiff’s suit.</p> <p>2d. That the several possessions of Prather, Gullatt andBurdett, cannot be united together, if they were trespassers, so as to create title by possession; and even if Prather had possession for seven years, and had given .up said possession to either of the others, such possession cannot be relied on, to sustain the Statute of Limitations.</p> <p>3. That the infancy of both plaintiffs must have been removed before the Statute of Limitations commenced to run against either, in favor of the trespasser.</p> <p>4. That if E. M. Pendergrast was an infant in 1838, when Prather, a trespasser, went into possession, and continued so until 1841 or 1842, his right was not barred until 7 years’ actual possession in one tenant after arrival at full age, and that tenant also the defendant sued.</p> <p>5. That the Statute must be so construed and administered as to extend advantages to infants.</p> <p>The Court declined so to charge, but instructed the Jury, ‘‘That if Prather purchased the land, and held actual possession of it for 7 years next before the commencement of the suit, or if he held it for a while, and then sold it to another, who took possession and held it for the rest of the time, the length of these possessions, (being continuous) when added together, made seven years; that the defendants had a good title under the Statute, unless as far as Edward Pendergrast was concerned, it appeared that he came of age within the said 7 years; and so far as Reilly and wife wTere concerned, that Mrs. Reilly arrived at age within that time, or being under that age, had married Reilly within that period; in which events the plaintiffs were not barred by the Statute, nor the defendants protected.”</p> <p>Error is now assigned upon tbe refusal of the Court to charge and upon the charge as given.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Iverson, May Term, 1851. George W. Green, a creditor of the Bank of Columbus, filed a bill against Edward Carey, the assignee of the bank, alleging that the complainant is a judgment creditor, founded upon the bills of the bank; that Carey, as assignee, received, in 1843, assets to the amount of $630,000, and should have collected at least $500,000. The prayer was for an account and 'payment.

<p>In Equity, in Muscogee Superior Court. Decision by Judge Iverson, May Term, 1851.</p> <p>Seaborn Jones and John Schley filed a bill in Muscogee Superior Court, charging as follows :</p> <p>“ That the Southern Life Insurance and Trust Company of the State (then Territory) of Florida, at the April Term, 1843, of the Superior Court of said County, foreclosed a mortgage on the interest of Lucia A. Bowdre on two lots of land in the City of Columbus, Nos. 55 and 56, being one-half thereof, which lots were afterwards sold under the mortgage fi. fa. and purchased by the said Life Insurance and Trust Company; 'that by an order of the said Court, the purchase money was credited on the fi. fa. and titles directed to be made to the said company; that George Field, who had been the cashier or secretary of the said company, and was then acting as president of the same, in the year 1843, procured the Sheriff to execute titles to him individually, without any consideration being paid by him; that a large number of negroes were also included in the said mortgage, and in consideration of the company agreeing to release their claim on the negroes, William P. McKeen executed titles to lot No. 93, to George Field individually, he paying nothing therefor out of his own funds; that the Life Insurance and Trust Company held claims against the Farmers’ Bank of Chattahoochee or James S. Calhoun, the president thereof; that in payment of these claims, Calhoun agreed to convey to said company one-half of the said lots, Nos. 55 and 56; that the titles to the same were made to said George Field individually, without any consideration being paid by him, and on no other consideration than the one above stated; that Moody and Terry beingindebted to the said Life Insurance and Trust Company for a large amount, agreed, in consideration of being released from their said indebtedness, to convey the south part of lot No. 48, in said city, to the said company; that the titles to said lot were made to the said George Field individually, without any consideration being paid by him out of his own funds. The bill showed that complainants were judgment creditors of the Southern Life Insurance and Trust Company, to a considerable amount; that they had caused their executions to be levied on the said lots, Nos. 55, 56, 93 and 48, the sale of which had been stopped by the interposition of a claim to each by the said George Field.</p> <p>The bill prayed an injunction of the claims, and that Field be decreed to make conveyances of the property specified, to the Life Insurance and Trust Company.</p> <p>By an amendment to the bill, it was charged, that the claims of complainants, and another judgment of equal date with their own, belonging to another creditor, amount to $9,000; that Field and the Life Insurance and Trust Company are both non-residents of this State; that the property levied on is insufficient to pay the above claims, and there is no other property in this State which could be reached by these fi. fas.; that the Life Insurance and Trust Company owned certain choses in action, which were in the possession of Philip T. Schley, Esq. of said City, being chiefly promissory notes, given for the rent of the said property; that if these notes were in the name of Field, as payee, they were really the property of the company. The amended bill prayed to enjoin Philip T. Schley from paying over the amounts collected, or collecting the amounts due on said notes; and also, for an account between Field and the Life Insurance and Trust Company.</p> <p>By consent, (and without prejudice to the parties,) Philip T. Schley was appointed receiver to collect the choses in action in his hands, and to receive the rents, issues and profits of the lots in dispute, pendente lite.</p> <p>George Field filed his separate answer, stating as follows:</p> <p>“ That he was cashier of the Southern Life Insurance and Trust Company, from its organization until about the year 1839, when he was elected president, and continued president until December, 1845; that in the general suspension of specie payments in 1837, the defendant, in order to sustain the credit of the company, became individually responsible for money borrowed for the use of the company, to the amount of $25,000. In the spring and summer of 1838, it became necessary for the defendant, and he did largely increase his individual liability for money borrowed for the use of the company; that these were at short times, and the exact amount he could not state, but at no time were less than $25,000. In.1839, the individual liability of defendant continued to be at least as large. In 1840, it was largely increased, as set forth specially in the answer, so that in December, 1840, his individual liability for the company amounted to at least $200,000. . In 1841, the company having suspended specie payment, the defendant was forced to borrow money on his own account, and pay off some of the liabilities incurred by him for the company. On the 30th October, 1841, the balance due him for money so paid, above the amounts received by him, was $54,536 32. On 31st December, 1842, the balance thus due him was $43,536 58. On ,17th April, 1843, $41,840 75. Of the debts of the company, for which defendant is personally liable, there is still que and unpaid about $37,000, and of the amount paid by the defendant for the company, there was, at the time of filing the answer, still due the defendant not less than $25,000-. In the year 1839, the extent of defendant’s liability for the company being so large, he received, in July, the conveyance from the Farmers’ Bank of Chattahoochee to the undivided half of lots Nos. 55 and 56. He denied that it was taken in fraud of the company or its creditors, but as a security against the responsibilities he had incurred. In the same way and for the same purposes, he tookthe conveyance to lot No. 93, as set forth in the bill; that the fact that the conveyances were taken to defendant personally, was soon thereafter communicated to the company, and by them acquiesced in. The other conveyances mentioned in the bill, were taken under the same circumstances, and for the same purpose. The answer denied that the lots belonged to the company, but, on the contrary, asserted that they belonged to defendant. Farther, that on 31st March, 1841, the company assigned the debt of Moody and Terry to N. C. Robbins, in trust for the indemnity of defendant, andj that by the consent of the assignee and the company, the conveyance from Terry was taken to defendant; that 21st April, 1842, the debt of L. A. Bowdre was assigned to trustees for the indemnity of defendant, and that by the consent of the assignees and company, the conveyance by the Sheriff to half of lots Nos. 55 and 56, as stated in the bill; and that the agreements made with McKeen and Bowdre were drawn by John Schley, the complainant, (before he purchased the judgments against the company,) as the professional adviser of the defendant. The answer denied that the property was insufficient to pay the debts, if found subject, without the rents, issues and.profits. The answer also denied that defendant had control of sufficient assets of the Life Insurance and Trust Company to pay himself, without the property here in dispute.”</p> <p>To the bill as amended, the defendant demurred for want of equity. Upon hearing the demurrer, it was overruled by the Court, and this is the first error assigned.</p> <p>Defendant’s counsel then moved the Court, (the answer being in,) to dispose of the injunction, and discharge the order appointing Philip T. Schley receiver, &c. The Court refused the motion, and this is the other error assigned.</p>

Debt, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1851.

<p>[1.] Where a suit was commenced against two defendants, residing at that time in Marion County, and before trial and judgment, the new County of Macon was created by the Legislature, embracing that portion of the territory of Marion on which the defendants resided, and there being no provision in the Act for the transfer of suits pending in the old to the new County: Held, that by operation of law, under the provisions of the Constitution, that the new County of Macon was the proper County for the trial of the cause, thatbeing the County wherein the defendants resided, and that the judgment rendered in tke latter County was a good and valid judgment.</p> <p>[2.] Where a deed of conveyance includes several tracts or lots of land, and is attacked as being fraudulent, the vendor remaining in possession of the whole or any part of the land conveyed by the deed, is prima facie evidence of fraud as against creditors,_unless the possession is satisfactorily explained.</p>

Certiorari, in Baker Superior Court. Decision by Judge Warren, June Term, 1851.

Ejectment, in Sumter Superior Court. Tried before Judge Warren, May Term, 1851. This was an action of ejectment, brought on the séparate demises of John Cordery and Jeremiah Smith, against Major Ellis. The land was granted to John Cordery. Plaintiff claimed under a Sheriffs deed, reciting that the land was sold as the property of John Cordery, in March, 1835. The defendant claimed under a deed from Cordery to Jonathan Lyon, dated 10th June, 1834.

In Equity, in Muscogee Superior Court. Decision on demurrer, by Judgé Iverson, May Term, 1851. Reuben B. Patterson ‘died testate. The second and third clauses of his will read as follows : “ Item second.

<p>In Equity, in Stewart Superior Court. Decision on demurrer, by Judge Iverson,'May Term, 1851.</p> <p>Micajah Thomas, a judgment creditor of Darius Gilbert, deceased, and others who were creditors by note, filed a bill in behalf of themselves and other creditors of said Gilbert, against Thomas Gilbert and William M. Hardwick, charging among other things, that Darius Gilbert died in the County of Hancock, testate, leaving Wm. M. Hardwick and Thomas Gilbert as his executors; that Hardwick alone qualified, although in all of his transactions as executor, the bill charged he was counselled and directed by Thomas Gilbert; that the estate, real and personal, that went into the hands of said Hardwick, as executor, was worth at least the sum of $75,000; that among other things, was a valuable tract of land, lying in Baker County, worth $20,-000, all of the purchase money for which, had not been paid by said Darius Gilbert; that the executor, by his bad and fraudulent management, failed to pay up the balance, and the land was sold by the Sheriff, for the nominal sum of $200; that instead of selling the property and paying the debts within twelve months, he failed to sell the property until more than twelve months had elapsed, and when many suits against the estate had been prosecuted to judgment; that when the negroes were exposed to sale, there was very little specie or specie funds in Stewart County; that the advertisement gave ho intimation to persons wishing to purchase, that the sale would be for cash, instead of on credit for twelve months, as is usual and almost universal in sales by executors and administrators; that on the day of sale, and by mutual agreement between Thomas Gilbert and said Hardwick, it was determined that said property should be put up for cash and payment demanded in specie; and at the same time it was privately agreed and understood between them, that Gilbert might bid on credit, thereby enabling him to purchase the property at a reduced price, on the promise of Gilbert that the purchases thus made should enure to the benefit of the sister of said Hardwick, the widow of said Darius Gilbert, deceased; that many of the creditors attended the sale and protested against the terms ; and also proposed to purchase on their claims, which proposition was rejected, unless they would agree to settle and receipt the claim in full, by purchasing to the amount of fifty cents in the dollar; that by these means the property was sold at prices much below the real value, and Thomas Gilbert became the purchaser of most of the negroes, and Hardwick himself, and by his agents, became purchaser of others ; that Gilbert did not pay the cash, nor had he paid in full when Hardwick was removed from his trust as executor ; that Gilbert by misrepresentations to Hardwick himself, induced him to make titles to the property without receiving the pur - chase money, and has since refused to pay it at all; that notwithstanding property to the amount of $20,000 was thus sold, yet Hardwick and Gilbert withThe funds in their hands, permitted lands in Hancock County, worth $10,000, as well as the land in Baker, to be sold by the Sheriff under execution at prices ruinous to the estate; that Hardwick, under the advice of Gilbert, fraudulently procured himself to be dismissed as executor,in September in 1843, and that at January Term, 1847, administration de bonis non, cum, fyc. was granted to Henry Rogers of Hancock County; that Rogers has collected none of the assets, and “ has not brought suit against Hardwick and Gilbert, although requested so to do; ” that Hardwick is insolvent; that letters testamentary were granted first in February, 1841; that none of the complainants were present at the fraudulent sale complained of, (living at a distance from Stewart County,) and that they never heard of the fraud until within twelve months previous to the year 1847, when they filed their bill in Hancock Superior Court, against Hardwick, Gilbert and Rogers, which bill, in April, 1848, they were compelled to dismiss. This bill was filed January, 1849. The prayer of the bill was for an account by Gilbert and Hardwick, and to set aside the fraudulent sales complained of.</p> <p>To this bill, Thomas Gilbert, by his counsel, demurred, on the following grounds:</p> <p>1st. For a want of Equity. 2d. Because Henry Rogers, administrator, &c. is a necessary party, and not made so by the bill.</p> <p>3d. Because there is no privity between the complainants and defendant, Gilbert.</p> <p>4th. Because complainants are not the proper parties to seek this discovery and relief from defendant, but Rogers, administrator, &c. is the proper party.</p> <p>5th. For multifariousness.</p> <p>6th. The Statute of Limitations.</p> <p>7th. That Gilbert has been in possession of the negroes more than four years, without any notice of the existence of any judgment.</p> <p>8th. Because of a misjoinder of complainants, there being no joint right, but each having a separate right, independent of the others.</p> <p>9th. Because none of the complainants are judgment creditors, except Micajah Thomas.</p> <p>10th. Because the bill is indefinite, vague and uncertain.</p> <p>Upon hearing the demurrer, the Court overruled all the grounds except the second, which was sustained. To this decision of the Court overruling the demurrer, counsel for defendants excepted, and the errors are assigned thereon.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Iverson, at Chambers, April 9, 1851. On the 3rd day of March, in the year 1851, Wm.

In Equity. Application to Judge Hill for an injunction. The bill alleges that Nicholas Lewis, Sen. departed this life testate in the year 1847. By the second item of his will, he provided that complainants, who were children by a former marriage, shoulchtake no portion of his estate, except what should be especially pointed out in said will.

In Equity, in Monroe Superior Court. Tried before Judge Stark, March Term, 1851. William Morgan, the complainant’s' intestate, on the 23d day of January, 1828, executed to James B. Morgan, defendant’s testator, a mortgage on a negro woman, Mary, and her two children, to indemnify him, as his security to one Edwards, for a debt due 25th December, 1828.

<p>In Equity, in Coweta Superior Court. Tried before Judge Hum, March Term, 1851.</p> <p>This bill was filed to enjoin an action of ejectment, for the recovery of lot of land No. 161, in the first district of Cow-eta County. The bill alleged, that in the land lottery authorized by the Act of 1825, disposing of the territory lying between the Flint and Chattahoochee rivers, James St. John, one of the defendants, drew the said lot of land, for which a grant issued, in 1827; that St. John sold and conveyed the land to Michael Madden; that Madden conveyed it to Giles B. Taylor; Taylor to Shadrach Pérry; Perry to John Redwine; John Redwine to Lewis Redwine, the complainant, and the latter to David Dominick, who died, seized of the land; that the administrator of Dominick, sold the same regularly, to Sterling Elder, who went into possession, and made valuable improvements; that the deeds were all duly recorded, and contain warranties in the usual form, except the deeds from St. John to Madden, and Madden to Taylor, which contain no warranty.</p> <p>The bill alleges, that owing to the fact, that the deed from St. John to Madden, is defective in its probate, (having been admitted to record without an affidavit from either of the witnesses,) and the witnesses being dead, complainant is unable to prove the execution of the deed, without an appeal to the conscience of St. John.</p> <p>That William B. Brown, with full knowledge and actual notice of the facts, has combined with St. John, to defraud and eject Elder, and for some inconsiderable sum, has induced St. John to execute to him a deed to the land; and that Brown is now using the name of St. John, to recover said land in an action of ejectment against Elder, and in which action complainant was made a co-defendant by order of the Court.</p> <p>The bill prays that the deed from St. John to Brown, be dedared fraudulent and void, and be delivered up to be cancelled, or that Brown be decreed a trustee for Elder, and those under whom he claims, and ordered to convey his title to Elder, and thus quiet his possession; and that the action of ejectment be perpetually enjoined.</p> <p>Brown filed a demurrer to the bill, with specifications.</p> <p>The Court sustained the demurrer, and dismissed the bill, and counsel for complainant excepted.</p>

<p>Application for dower, in Monroe Superior Court. Heard before Judge Stark, March Term, 1851.</p> <p>The defendant in error, as the widow of John A. Schroeder, filed her application in Monroe Superior Court, to have her dower assigned her in a lot of land lying in Monroe County, and granted by the State of Georgia to the said John A. Schroeder, on the 6th day of June, 1822, and by him conveyed, on the same day, to the plaintiff in error.</p> <p>The application was traversed on the following grounds:</p> <p>1st. Because John A. Schroeder being an alien, was never seized of the land out of which the demandant claims dower.</p> <p>2d. Because said land was wild and uncultivated at the time it was sold by the said John A. Schroeder to this defendant, and not dowable.</p> <p>3d. Because the claim of demandant is stale and not entitled to consideration in a Court of Justice, on account of lapse of time, and the demandant’s abandonment of it and neglect to prosecute it.</p> <p>4th. Because no notice has been given to the representatives of the estate of the said John A. Schroeder, and if there be no representative, the demandant cannot proceed until one be made.</p> <p>5th. Because heretofore, to wit: on the-day of-in year 1828, after this defendant had been notified that application would be made by the said Louisa J. W. Schroeder, at the next Superior Court of said County of Monroe, for her dower in this same land, it was at said Court agreed by and between this defendant and the counsel for the said Louisa J. W. Schroeder, to settle said claim of demandant for dower in and to the land mentioned in her present petition, by this defendant paying the cost which had accrued in the prosecution of her pretended claim, which this defendant then and there paid, and the same was accepted by her counsel in full thereof, and the further prosecution of said claim was then abandoned, and this defendant has remained in the peaceable .and uninterrupted enjoyment of said land from thence until the — :—day of-when he received notice of this intended application.</p> <p>6th. Because this defendant is a purchaser without notice, for a valuable consideration, and has been in adverse possession of said land for twenty-seven years, since the death of the said John A. Schroeder, and uninterrupted adverse possession for twenty-two years.</p> <p>7th. Because he says that the said supposed cause of action in the demandant’s petition mentioned, did not accrue to the said Louisa W. Schroeder, within seven years before the exhibiting of the petition of the said Louisa W. in this behalf.</p> <p>After issue joined, the demandant’s counsel moved to strike out the 2d and 4th grounds, which motion was granted, and counsel for defendant excepted.</p> <p>Evidence was submitted which proved the marriage of the demandant with John A. Schroeder, in the City of Charleston, S. C. in the month of October, 1816, and that Schroeder died in the year 1823, in the City of Savannah; also the plat and grant for the lot of land, from the State of Georgia, to John A. Schroder, was given in evidence. An exemplification from the City Court of the City of Charleston, was offered in evidence, for the purpose of proving that the said Schroeder had been naturalized according to the laws of the United States, to which defendant’s counsel objected on several grounds, which the judgment of this Court renders it unnecessary to specify.</p> <p>The deed from Schroeder to the defendant was given in evidence, dated on the 6th day of June, 1822. It appeared from the evidence of Washington Poe, Esq. that in 1828 he was counsel for the demandant, in an application fqr dower in this same land, and finding that he must fail to succeed, he agreed with Chapman, if he would pay the cost he would dismiss the petition, which agreement was carried out.</p> <p>Among other things, the Court charged the Jury, “ that their verdict would depend upon three facts — the marriage of the wife to the alleged husband, the seizure of the husband during coverture, and his death. WTas the demandant married to the grantee ? Was the grantee seized of the land at any time during the coverture ? Is the husband dead ? If these questions are answered in the affirmative by the evidence, the demandant is entitled to a verdict; that the demandant’s right of dower was not barred by either lapse of time or the Statute of Limitations; that the dismissal of the former suit by Washington Poe, Esq. did not operate as a release of her right of dower.”</p> <p>To which counsel for defendant excepted, and upon these .exceptions have assigned error.</p>

Assumpsit, in Newton Superior Court. Tried before Judge Stark, September Term, 1851. This was an action of assumpsit, brought by the plaintiff in error, against the defendant in error, upon a bill of exchange, as follows: “ Covington, March 13th, 1849. Thirty days after date pay to the order of C. D. Pace, agent of the Bank of Augusta, Ga. one thousand dollars, for value received, and charge the same to your obedient servant. Richard Byrne. Messrs.

In Equity, in Pike Superior Court. Dissolution of the injunction, upon the filing of the answer, by Judge Stark, at Chambers.

<p>In Equity, in Upson Superior Court. Tried before Judge Stark, April Term, 1851.</p> <p>This was a bill in Equity, filed by the defendants in error, for their distributive share of the estate of Alpheus Beall, deceased.</p> <p>The bill alleges, that complainants are the illegitimate children of Alpheus Beall; that they were legitimatized by an Act of the Legislature, passed in the year 1843, and that they were entitled to two-thirds of said estate, and Mary C. Beall, the administratrix and widow, to the other third; and concludes with the usual prayer.</p> <p>The defendant, in her answer, admits “ that a bill as set forth in complainant’s bill, passed the General Assembly of the State of Georgia, and was sanctioned by the Governor, as charged in form, but she expressly denies that the saméis an Act of the Legislature of said State, and of binding force as a law; and this defendant says to the best of her information and belief, and she expressly charges that the said pretended Act was procured to be passed wholly at the instance and request of said Frederick Beall, mentioned in complainant’s bill,” &c.</p> <p>The defendant charges, in her answer, that the bill was passed by the Legislature without the knowledge and assent of Alpheus Beall.</p> <p>On the trial, the defendant in the Court below, sought to prove by William Taylor, “that he was the Senator from Upson County in the Legislature of 1843, and thatheheardthebilllegitimatizing complainants, read three several times, and that he never heard any evidence of the assent of Alpheus Beall presented-to the Senate.” The Court rejected the witness, and counsel for defendant excepted.</p> <p>The defendant proposed to prove b/ Charles W. Moore, that “ immediately after the list of Acts of the Legislature of 1843 appeared in the papers, he in the presence of company, read the one legitimatizing complainants, to Alpheus Beall, when the said Beall angrily remarked, “ that he wished some people would attend to their own business ; ” when Moore retired, but soon after returned and asked Beall if his remark was intended for him, and he (Beall) said “ certainly not.” The evidence was objected to by complainant’s counsel; the Court rejected it, and counsel for defendant excepted.</p> <p>The defendant proposed to introduce Thomas F. Bethel and Benjamin Bethel, to prove the sayings of Alpheus Beall, going to show that the said Act of the Legislature was passed without his assent and against his will, and also to impeach the testimony of Thomas Beall, a witness for complainants.</p> <p>Counsel objected, because the witnesses were securities upon the administration bond of defendant. The Court sustained the objection, and counsel for defendant excepted.</p> <p>Upon their voir dire, the Bethels testified that they were not interested in the event of the suit.</p> <p>It appears that letters of administration were granted to the defendant on the estate of Alpheus Beall, in September,. 1848, and the Bethels went her security upon the bond.</p> <p>In January, 1849, it being represented to the Court of Ordinary of Upson County, that the bond was too small, the Court required the defendant to give a new bond in a larger amount, and ordered the old bond to be discharged for all future acts ; which she did — the Bethels not signing the new bond as securities. On the 21st April, 1851, the defendant executed to the Bethels, a bond of indemnity with good and ample security, indemnifying them for all loss as her securities, as aforesaid.</p> <p>The cause being closed, defendant’s solicitor requested the Court to charge the Jury, “ that the Legislature only had the constitutional power to pass such a law as the one set up in the bill, by consent of Alpheus Beall.” The Court refused so to charge, but did charge the Jury, “ that the passage of such a law without the assent of Alpheus Beall, expressed or implied, is such a fraud as renders the law inoperative; ” and defendant’s counsel excepted.</p> <p>Counsel for defendant also requested the Court to charge the Jury, “that the answer of the defendant, responding to the charge in the bill in relation to the Act of the Legislature, is evidence for the defendant.”</p> <p>The Court refused so to charge, but instructed the Jury, “ that, that part of the answer that set up the £ Act ’ to have been fraudulently passed at the instance of Frederick Beall, was not responsive, and was not evidence for the defendant.” Counsel for defendant excepted.</p> <p>Counsel for defendant requested the Courtto charge the Jury, “ that it is their province and duty to determine what portions of the defendant’s answer are responsive to the allegations in complainant’s bill,” which the Court refused to do, but did charge, that such was the province and duty of the Court; counsel for defendant excepted, and upon these several exceptions has assigned errors.</p>

Trover, in DeKalb Superior Court. Tried before Judge Hill, March Term, 1851. This was an action of trover, brought by the defendant in error, against the plaintiff in error, for the recovery of a negro woman and child, and their hire. The defendant pleaded the general issue.

In Equity, in Troup Superior Court. Decision on demurrer, by Judge Hill, May Term, 1851.

Assumpsit, from Troup. Tried before Judge Hill, May-Term, 1851. This action was brought to recoyer money paid by plaintiff (Perry) as security for defendant, under judgments in Wilcox County, State of Alabama. To this action defendant pleaded the general issue and payment.

<p>[1.] When the occupancy of ihe premises of the plaintiff is admitted by the defendant, as also the plaintiff's title to them, and there is no agreement as to the price of rent to be paid, the demand which the plaintiff holds against the defendant is a claim existing in account, and is within the provision of the Act of 1847. In a complaint for its recovery, the form prescribed by the 4th section of the Act of 1847, is sufficient, and the plaintiff -may prove the value of the rent under it.</p> <p>[2J The forms prescribed by the Act of 1847,’ are not amendable, except so far as to make them conform to the form laid down in the Act.</p>

<p>Claim, in Troup Superior Court. Decided by Judge Hill, May Term, 1851.</p> <p>An execution in favor of Richard T. Stokes, against James C. Richardson, was levied upon a lot of land, which was claimed by Henry Favor. On the first trial, the plaintiff in execution confessed a judgment and entered an appeal. The appeal bond was made payable to the defendant in execution; when the cause came on to be tried upon the appeal, counsel for claimant moyed to dismiss the appeal, whereupon counsel for the plaintiff in fi.fa. moved to dismiss the levy before any decision had been made and recorded on the previous motion. The Court permitted the levy to be dismissed, and an order was taken to that effect.</p> <p>To which decision counsel for claimant excepted.</p>

Motion, in Houston Superior Court. Decided by Judge Stark, April Term, 1851. At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co. obtained judgment against T. & S. Williams, for the sum of $1793 96 cts. principal. Execution issued therefor, on the 18th day of May, 1839. The correct amount was inserted in the face of the execution, but on the back of it was for $753 96; the same entry was made on the execution docket.

Trespass, in Troup Superior Court. Tried before Judge Hill, May Term, 1851. This was an action of trespass, brought by the plaintiff in error against the defendant in error, for the recovery of damages.

<p>Assumpsit, in Crawford Superior Court. Motion for a new trial. Decided by Judge Stark, February Term, 1851.</p> <p>Plaintiff in error brought an action of assumpsit against the defendant in error, on a promissory note for $2498 00, dated in February, 1845, and due “one day after date,” on which note there were two credits, one for $100 00, dated 27th March, 1846, the other for $296 25, dated 5th April, 1847.</p> <p>The defendant filed the plea of usury, and served interrogatories on the plaintiff, under the Act of 1847.</p> <p>On the trial, it appeared from the answers of the plaintiff, that in 1838, the plaintiff loaned to defendant’s intestate, Willis S. Scott, deceased, $1000 00, at 16 per cent, per annum, and took his note for the principal and usurious interest, due 25th December, 1838. This note was then renewed at 16 per cent, and made due 25th December, 1839, for $1379 42; it was again renewed in 1840 and 1841. In March, 1840, plaintiff loaned defendant’s intestate $2000 00, at 16 per cent, and took a separate note for it, due the 25th December thereafter, which note^was renewed in 1841, at the same rate of interest. cotton to defendant’s intestate,</p> <p>In January, 1842, .plaintiff and defendant’s intestate had a settlement of their’affairs, when plaintiff purchased of defendant’s intestate, two negro girls, at $1300 00; this was admitted by the parties to be an excessive price, and in consideration of this excess, it was understood and agreed and so intended, that the contracts were and should be purged of the usury in them. Defendant’s intestate also turned over to plaintiff a note on William B. Colbert, for $700 00, which sums of $1300 00 and $700 00, were applied to the extinguishment of the note given for the loan of $1000 00 in 1838, and the balance of the payment credited on the notes for the $2000 loan and the cotton note. These notes were then consolidated, and a new note taken for the amount due on them, at 8 per cent, per annum. It was out of this note that the one sued on sprung.</p> <p>At August Term, 1850, the cause was tried on the appeal, when the Jury rendered a verdict in favor of the plaintiff, for $603 75 cents.</p> <p>When plaintiff moved for a new trial, on the grounds,</p> <p>1st. Because the verdict was contrary to evidence.</p> <p>2d. Because the verdict was contrary to law.</p> <p>At the February Term, 1851, the rule ni si. was- discharged by the Court, and counsel for plaintiff excepted.</p>

In Equity, in Crawford Superior Court. Decided by Judge Stark, February Term, 1851. This was a bill of peace, filed to quiet litigation. The bill charged, that an execution in favor of JohnD. Winn, issued from a judgment recorded in 1841, was levied upon a lot of land in Crawford County ; a claim was interposed to said land by the defendant in error, returnable to the February Term, 1842, of Crawford Superior Court.

In Equity, in Crawford Superior Court. Tried before Judge Stark, February Term, 1851.

Motion to dismiss appeals, in Bibb Superior Court. Decided by Judge Stark, July Term, 1851. Spencer Riley instituted two actions in Bibb Inferior Court, against the defendant — -trespass on the case, and trespass for false imprisonment.

<p>[1.] Where a defendant was indicted for simple larceny, in stealing a slave, and the evidence on the trial showed that the defendant, by his own confessions, made a promise to carry the slave with others, North, the slaves consenting to be sold once on the way : Held, that the Jnry might, under the 45th section of the 14th division of the Penal Code, find the defendant guilty of an attempt to commit the offence charged in the indictment, without any special count for that purpose.</p>

A bill in Equity, wherein Josiah H. Tedder was complainant and Benjamin E. Stiles defendant, was pending in Bibb Superior Court, when at the July Term, 1851, the Court passed the following order in reference thereto: “ It is by the consent of the parties in said cause, ordered by the Court, that the same be placed on the appeal docket, and the costs follow the final order.” To the passage of this order, Henry G. Ross, Clerk of said Court, objected, and refused-to place the…

Trover, in Bibb Superior Court. Tried before Judge Stark, July Term, 1851. This was an action ot trover, brought by the plaintiff in error against the defendant in error, for the recovery of a negro woman named Henrietta. The defendant pleaded the general issue.

Tried before Judge Stark, February Term, 1851. This was an application made to the Superior Court of Crawford County, by the defendant in error, to have dower assigned her, in fifteen acres of land situate in said County, of which her husband, David M. Causey, died seized and possessed. Commissioners were appointed, who laid off and assigned one-third of said land, on which were situated the dwelling house, kitchen, &c. to the applicant.

Ejectment, in DeKalb Superior Court. Tried before Judge Hill, March Term, 1851. This was an action of ejectment, brought on the several demises of David D. Nelson, Noah Paramore, executor of John Paramore, and Simeon A. Smith, against Alexander Ratteree, defendant, for the recovery of lot of land, No. 124, in the 14th district of originally Henry, now DeKalb County. By an order of the Court, at September Term, 1850, Robert F. Sessions was made a co-defendant.

Illegality, in DeKalb Superior Court. Decided by Judge Hill, March Term, 1851. At the September Term, 1849, of DeKalb Superior Court, a bill in Equity, wherein Dean & Nash were complainants, and Mason & Waldrip were defendants, was dismissed and order passed by the Court, that the defendants have leave to enter up judgment for the cost against the complainants. Judgment was accordingly entered up and a fi. fa. issued thereon.

Rule' ni si, in DeKalb Superior Court. Decided by Judge Hill, March Term, 1851. In November, 1838, Lemuel Cobb was appointed administrator on the estate of Humphrey Cobb, and executed his bond, with Jesse F. Cleaveland and Benjamin B. Avery as his securities. The bond was subsequently destroyed by fire. At the .

In Equity, in Houston Superior Court. Tried before Judge Stark, May Term, 1851. This was a bill in Equity, filed by Samuel R. Blake and his wife, formerly Mary Adeline Beall, against the plaintiff in error.

Ejectment, in Henry Superior Court. Tried before Judge Stark, April Term, 1851. This was an action of ejectment, instituted by the defendant in error, against the plaintiff in error, as tenant in possession, for the recovery of lot of land, number-, in the 12th district of Henry County. On the trial the plaintiff offered in evidence a grant from the State of Georgia to Rachel McRory, for the lot of land, dated on the 21st November, 1823.

<p>In Equity, in Cobb Superior Court. Decision upon demurrer, made by Judge Hill, April Term, 1851.</p> <p>This was a bill filed by James W. Yarborough and his wife, formerly Harriet M. West, Richard B. Higgins and his wife, formerly Jane West, John H. Higgins and his wife, formerly Hester West.</p> <p>The bill alleges, that in the year 1818, John Wingo, of Spartanburg District, South Carolina, made a parol gift of a negro boy, named Peter, about five years of age, to his daughter, Jincy West, during her life, and at her death said negro was to become the property of the children then born of the said Jincy, ■and to be born, and to vest in them and in no one else; that at •the time of the gift, there were two children then living, born of •the said Jincy, as the wife of John West, the defendant, to wit: Harriet M. and Hester, two of the complainants in the bill. The bill alleges, that the negro was delivered to the said Jincy West and her husband, John West, who thereby became a trustee, by operation of law, for the said Jincy during her life, and for the benefit of her children who might be living at her death; .that the said negro remained in the possession of John West, from the time of the gift until the year 1836; that Jincy West departed this life about the year 1830, leaving four children, complainants in this bill; that after her death, John Wingo applied to West, and required of him to surrender the said negro to him, the said John Wingo, to be held in trust by him for the benefit of the said children of Nancy West, when the said John West promised the said Wingo that he would hold the said negro boy in trust for the said children; thatthe said West removed to Georgia in 1835 or 1836, and about that time sold and disposed of the said negro boy, to some person unknown to complainants, for the sum of nine hundred dollars.</p> <p>The bill prayed that defendant should be decreed to come to a full and fair settlement in relation to the value, and the hire, and the interest thereon of the said negro boy.</p> <p>To this bill defendant filed a general demurrer.</p> <p>At the hearing, counsel for complainants moved to amend the bill, by striking out the word “ parol” before “ gift,” in the 11th line from the top of the first page, and, also, by inserting “ that they could not establish their claim without resorting to the conscience of the defendant,” and by adding a “ special prayer for relief.”</p> <p>The Court overruled the motion to amend, sustained the demurrer, and dismissed the bill.</p>

Decision by Judge John H. Lumpkin, April Term, 1851. This was an application to the Judge in Chancery, by Abby McGee, wife of John McGee, stating, that by the cruel and improper treatment of her husband, she had been compelled to leave his house, and to commence a suit for divorce, which was still pending; that she had no means of prosecuting her suit, or of supporting herself during its pendency, and praying that she might be allowed out of the defendant’s estate a sum…

Ejectment, from Gordon Superior Court. Tried before Judge John H. Lumpkin, May Term, 1851. This was an action of ejectment, brought by the plaintiff in error against the defendants. On the trial, plaintiff offered in evidence, his letters of administration, granting him the power to administer the “ goods, rights and credits,” of his intestate, which were objected to by defendants, as not conveying any right to sue for land.

<p>Trover, from Chattooga Superior Court. Tried before Judge Jno. H. Lumpkin, April Term, 1851.</p> <p>The facts of this case are as follows: Mrs. Lucy Carlton, of the State of Alabama, died,, leaving a will, in- which was the following bequest: “ I give and bequeath to my son, Robert W. Carlton, during his natural life, and at his death to the lawfully begotten heirs of his body, the following property, to wit: Aggy, a woman- about thirty-two years of age, and the rest of her children, to wit, James, Caroline, Sarah, Manuel and John,, and all their increase forever. Nevertheless, if the said Robert W. Carlton, shall die without an heir, then it is my desire that the above described and named negroes and their increase be set free at his death.” This will was- established, and Robert W. Carlton took possession of the negroes under it, and subsequently sold them to defendant. Robert W. Carlton died, leaving the plaintiffs, his children, minors, who now sue Price, the defendant, for the negroes. All these facts were admitted on the trial. The Court below, held that the will created an estate tail, and was therefore void as to the limitation over, and vested a fee simple in Robert W. Carlton.</p> <p>The Jury found for defendant, and plaintiffs excepted to said ruling of the Court. i</p>

Illegality, in Jackson Superior Court. Decided by Judge James Jackson, August Term, 1851. Samuel P. Thurmond sued John Horton in an action on the case, for slanderous words, which was tried on the appeal, and a verdict for five dollars damages returned by the Jury.

Case, in Gwinnett Superior Court. Tried before Judge James Jackson, September Term, 1851.

In Equity, in Walton Superior Court. Decision by Judge James Jackson, August Term, 1851. In 1815, Mrs. Susannah Stamper executed the following instrument : Georgia, Morgan County.

Attachment, in Clarke Superior Court. Decided by Judge James Jackson, August Term, 1851. This was an attachment sued out by Saulter & Ivy against Esquire N. Butler. Their affidavit states that there was due “ the sum of forty-five dollars and ninety-two cents on note, besides interest.” The bond was given for ninety-one dollars and eighty-four cents.

<p>Indictment, in Floyd Superior' Court. Tried before Judge JohnH. Lumpkin, July Term, 1851.</p> <p>This was an indictment for larceny from the house, which was charged in the bill of indictment, as follows: “For that the said James Berry on the tenth day of April, eighteen hundred and fifty, in the County aforesaid, with force and arms, the dwelling house of one William Montgomery, there situate, unlawfully, wilfully, feloniously and maliciously did enter in the night-time and having so entered, seven thousand dollars, to wit, two thousand dollars in gold and silver coin of the value of two thousand dollars, and five thousand dollars in bank bills of the value of five thousand dollars, and three thousand dollars in promissory notes of the value of three thousand dollars, of the property, goods and chattels of the said William Montgomery, in the said dwelling house, did then and there, being found then and there, feloniously, unlawfully, wilfully, maliciously, and privately did take and carry away, with intent to steal the same, contrary to the laws of the said State, the good order, peace and dignity thereof.”</p> <p>On the trial of this indictment, the proof went to show that the felony had been committed by two negroes named Phil and Tom, and the State sought to convict the defendant, by showing that he procured the negroes to commit it, and got the money, or part of it.</p> <p>The following is such of the testimony as was admitted by the Court, after objection by the defendant.</p> <p>It was proved that the negro Phil was whipped for the purpose of forcing him to disclose who were concerned with him in the larceny; that defendant and several others were present and all agreed that the negro should tell all he knew; that the negro then accused defendant of being concerned in it, upon which defendant appeared enraged and approached the negro with a knife in his hand, threatening to kill him, but was prevented from getting to him; that afterwards defendant said to one of the witnesses, that he knew from the negro’s countenance, that he was going to accuse him.</p> <p>John Tate testified that he had several conversations with defendant about the stolen money; which conversations witness related, and added that “ he thought from Berry’s remarks, that he knew where the money was.”</p> <p>Pending the trial, the Court adjourned for the night, and when about to adjourn, the presiding Judge inquired what should be done with the Jury ? To which defendant’s counsel replied that they were willing that the Jury should disperse, and the State also consenting, the Jury were allowed to disperse and go where they pleased until the Court convened.</p> <p>The Jury returned a verdict of guilty.</p> <p>Whereupon the defendant moved an arrest of judgment, on the following grounds, to wit:</p> <p>1st. Because the prisoner is indicted as principal, without stating in what degree; whether in the first or second degree, and is therefore too general and not in the words of the Penal Code.</p> <p>2d. Because the indictment charges that the prisoner entered the dwelling house in the night-time, without stating with what intent he entered said house.</p> <p>3d. Because the indictment does not state that the prisoner, after having entered said dwelling house did steal anything therefrom.</p> <p>4th. Because the indictment charges no facts that would make prisoner principal in the second degree.</p> <p>5th. Because the bill of indictment contains no sufficient description of the property stolen.</p> <p>All of which grounds were overruled by the Court, and the motion in arrest of judgment refused.</p> <p>Whereupon defendant moved for a new trial, on the following grounds, to wit:</p> <p>1st. Because the Court erred in permitting evidence to go to the Jury to prove that the negro Phil, in a confession or statement drawn from him by whipping, accused or charged the prisoner with receiving the stolen money in order to apply or explain the reply and conduct of the prisoner.</p> <p>2d. Because the Court erred in permitting the counsel for the State to suppose in his argument to the Jury in conclusion, that the negro Tom, had also, when removed out of the prisoner’s sight, made the same statement that Phil had made, and state that supposition to the Jury, without stopping the counsel or correcting any improper impression made on the minds of the Jury by such supposition, by-calling the especial attention of the Jury to such supposition in the charge of the' Court to the Jury.</p> <p>3d. Because the Jury found contrary to law and the charge of the Court.</p> <p>4th. Because the Jury found a verdict contrary to evidence and without evidence.</p> <p>5th. Because the Jury were allowed to disperse after they had heard the evidence, and remain so dispersed, without a bailiff, for several hours and to mix and mingle with the crowd, although it was done at the suggestion of defendant’s counsel upon the asking of the question by the Court what should be done with the Jury.</p> <p>6th. Because there was no sufficient proof as to the identity of the property stolen.</p> <p>7th. Because there was no proof that the property was stolen from a dwelling house.</p> <p>8th. Because proof that a trunk was taken and carried away, in which there was money and divers- other things, does not sustain an allegation of taking and carrying away money.</p> <p>9th. On the ground of newly discovered evidence contained in affidavits herewith presented.</p> <p>With this last ground, was filed an affidavit of defendant, stating that he had discovered new testimony in his behalf, in this, that Samuel Stewart had been employed by the prosecutor to visit defendant, and by pretending friendship and offering him assistance, to endeavor to extract from him something that would lead to a discovery of his guilt, and that Stewart had also sent the negro Phil to talk with him, and had overheard the conversation, and that Stewart would testify that he had not heard nor obtained anything going to criminate defendant.</p> <p>There was also filed an affidavit of John D. Dickinson, stating that he had heard the above facts from Stewart, and that Stewart was now sick with fever.</p> <p>All these grounds were overruled by the Court, and a new trial refused.</p> <p>To all which rulings of the Court defendant excepts.</p>

Certiorari, from Floyd Superior Court. Decided by Judge JohnH. Lumpkin, July Term, 1851. Erastus Morris and another, as partners, obtained a license from the City Council of Rome, to retail liquors in the City limits. The license was issued March 1st, 1850.

Assumpsit, in Gwinnett Superior Court. Tried before Judge James Jackson, September Term, 1851. This was an action brought by Rice B. Green and wife, to recover of New Gordon the sum of five hundred dollars, held by him, under a parol gift of Mrs. Sarah Hardin, now deceased, to be used by him during the life of the donor, then to he paid to plaintiffs.

<p>[1.] It is only necessary for remainder-men and reversioners, to state their case in the terms of the Act of 1830, in order to entitle them to the remedy therein provided; they need not specify in their bill, the threatened wrong or probable ground of possible injury, to enable them to obtain the assistance of the Court to avert the peril.</p> <p>[2,] The defendant, under the Act of 1830, may, by answering, controvert the title of the complainant; and if the decree of the Jury be against its validity, he will be released from his obligation for the forthcoming of the property. Otherwise, the security which he has given will continue.</p> <p>[3.] The Act of 1830, to preserve tlie rights of remainder-men and reversioners, contemplates that the hill should be filed and the security given, in the Oounty where the person resides, who has the possession or control of the property; and unless special cause exist, the jurisdiction cannot be transferred.</p> <p>[4.] The fact that different portions of the property claimed are held in several Counties, is not sufficient, especially where the title is not the same, through which the respective owners derive their right.</p> <p>[5.] The fact that a party is interested in the decree, is a sufficient reason why he should be made a co-defendant to the bill, and he may be brought out of his County for this purpose.</p>

<p>Ca. sa. from Floyd Superior Court. Decided by Judge John H. Lumpkin, July Term, 1851.</p> <p>The facts of this case are as follows:</p> <p>John D. Dickerson, was arrested by a ca. sa. at the instance of Coleman & Starr, and gave security for his appearance at Court. On the 5th day of July, 1850, a short time before the session of the Superior Court, he filed in the Clerk’s office a schedule of his effects, for the purpose of taking the benefit of the Act for the relief of honest debtors, and notified Coleman & Starr thereof. At July Term, 1850, he went to the Clerk, in open Court, with an affidavit in writing, as prescribed by said Act, and swore to the same in the presence of the Clerk, who attested it, and filed it in office. Subsequently, the case was called in its order, and was continued by the defendant. At July Term, 1851, it was again called, and defendant moved to take an order, as of July Term, 1850, discharging the defendant.</p> <p>This was resisted by Coleman & Starr, who moved to file a suggestion of fraud and concealment. The Court refused leave to file the suggestion of fraud, and allowed the defendant to take an order, nuñc pro tunc, discharging him from arrest.</p> <p>To which decisions the plaintiffs in ca. sa. excepted.</p>

Certiorari, from Greene Superior Court. Decision by Judge Starnes, March Term, 1851. Gwynn Allison sued out a scire facias returnable to Greene Superior Court, to revive a dormant judgment, rendered in said Court in his favor, vs. Thomas Chaffin and Roger Q. Dickinson. Chaffin resided in Muscogee County, and Dickinson in Baker. Copies were served on each by the Sheriffs of their respective Counties; Dickinson appeared and litigated, and judgment was rendered against him.

Debt and certiorari, in Richmond Superior Court. Decision by Judge Starnes, at Chambers, July 18, 1851.

<p>[1.] When an affidavit of illegality was filed according to the provisions of our Statute, against the levy of an execution, issued upon a judgment obtained against an intestate in liis life time, upon his goods and chattels in the hands of his administratrix, before the expiration of twelve months from the date of her letters of administration: lie Id, that the judgment creditor was not restrained, by the l'2th section of the Judiciary Act of l^S), from the collection of such judgment, until the expiration of twelve months, by a levy and sale of the intestate’s property.</p>

<p>[1.] Notes, bonds and otter assumptions, made to a person as a physcian or surgeon, the consideration of which is services rendered in prescribing for the cure of diseases, without a license: Held to be null and void; so, also, any obligation which springs out of the exercise of the profession of medi» cine, without a license.</p>

In Equity, in Greene Superior Court. Decision by Judge Johnson, September Term, 1851.

Case, in Putnam Superior Court. Decision by Judge Johnson, September Term, 1851.