Volume 11 — Georgia Reports

<p>Covenant, .in Twiggs Superior Court. Tried before Judge Hansell, October Term, 1851.</p> <p>This was an action by A. B. Beckom, against F. C. Aven, for a breach of warranty of soundness in a negro. The negro was sold by Aven as administrator on the estate of James A. Young, and in the bill of sale made by him, was the following warranty: “ And the said Furney C. Aven, administrator, warrants said negro constitutionally sound ; and he also warrants and defends the title to said negro, to Said Allen Beckom, his heirs, executors and administrators, against the claim of himself, his heirs and all other persons whatsoever, so far as the office of administrator authorizes him, forever.”</p> <p>This suit was against Aven individually, and the first and main question made in the Court below was, whether Aven was individually liable upon this warranty. The Court held him liable, and this is the first error assigned.</p> <p>Defendant below pleaded a subsequent release from the warranty, and in support thereof, introduced two witnesses, who swore “ that some misunderstanding having arisen about the warranty, Beckom told them that he was satisfied about the negro, as he knew him better than Aven, for he had a wife near his house.” The Court charged the Jury that there was “ no evidence before them to support the plea of release.” This is also assigned as error.</p>

<p>In Equity, in Twiggs Superior Court. Decision by Judge Hansell, October Term, 1851.</p> <p>James R. Lowery died, and Thomas J. Perryman became his administrator — Hardy Durham being the surety upon his bond.</p> <p>In 1841, James P. Guerry, in right of his wife, one of the children of Lowery, and as guardian for three of the minor children, and John Williams in right of his wife, and as guardian of another minor child, filed their bill, in Twiggs Superior Court, against Perryman, as administrator, for an account. At the trial term, there being no answer, the bill was taken, pro confesso, and a verdict was rendered by the Jury for $2048 54, for each complainant. On this verdict, a judgment or decree was entered, in favor of Guerry individually, and as guardian for the three minors, for four times the said sum.</p> <p>, Subsequently, a suit was commenced on the administrator’s bond, against Durham the surety, and a judgment obtained for a sum smaller, by several thousand dollars, than the decree against Perryman. To indemnify Durham, (who paid oil the judgment,) Perryman transferred to him, among other things, a note (not negotiable) made by James P. Guerry to Perryman; Durham transferred this note to one John Dennard, who commenced suit thereon, in the name of Perryman for his use. To this suit, Guerry pleaded as a set-off, the balance due on the decree recovered by him against Perryman, and at the same time filed a bill in Equity, in order to get this equitable claim allowed as a set-off.</p> <p>Pending this suit, in November, 1849, Hardy Durham, John Dennard and Thomas J. Perryman, filed their bill in Twiggs Superior Court, in the nature of a bill of review, setting out the foregoing facts, and praying a review and reversal of the decree rendered upon the original bill against Perryman. This bill alleged farther that, “ at the time of the filing of the said bill, Perryman was not a citizen or resident of the State of Georgia, but had long before left said State, and removed to the State of Texas, and has never been in Georgia since, and that the complainants in the said bill, by themselves or their attorneys, with a full knowledge of the fact, directed or procured the Sheriff oí Twiggs County to return on said bill, that he had served the same, by leaving a copy at the most notorious place of abode of said Perryman, in the County of Twiggs, when in fact, he had no such residence.”</p> <p>The grounds or reasons assigned for the review were, 1st. Because there was no service of the bill upon Perryman.</p> <p>2d. Because the bill was taken pro coiifesso, and a decree taken at the second term.</p> <p>3d. Because the decree does not follow the verdict.</p> <p>The bill also prayed for an injunction to restrain Guerry from pleading the said decree, or in any manner using it against the suit of Dennard against him. This bill was sanctioned, and injunction granted by Judge Warren, who, in the order granting it, stated that “ it was represented to him, that the Judge of the Southern Circuit was absent from the Circuit.”</p> <p>To this bill a demurrer was filed, on the grounds, among others :</p> <p>1st. That there is no allegation that the decree has been signed and enrolled, or performed, or bond and security given for its performance.</p> <p>2d. Because there is no equity apparent upon the face of the bill.</p> <p>3d. Because there was no petition, supported by affidavit, previous to the sanction of the bill.</p> <p>4th. Because of the laches and lapse of time before complainants applied for the aid of the Court.</p> <p>At the same time, there was a motion “ to dismiss the bill for improvident sanction,” on the grounds, among others:</p> <p>1st. Because the bill was sanctioned without the payment of costs of the former suit, and without giving bond and security for the eventual condemnation money and future costs.</p> <p>2d. Because it is no where shown that the Judge of the Southern Circuit was absent from his Circuit at the time the, bill was sanctioned.</p> <p>The Court below overruled both the demurrer and the motion, and on this decision error has been assigned.</p>

In Equity, in Twiggs Superior Court. Decision on demurrer, by Judge Hansell. October Term, 1851. In 1836, James R. Lowery died, and Thomas J. Perryman became his administrator, giving Hardy Durham as the surety on his bond. In 1841, James G. Guerry, as the guardian of three of the minor children of Lowery, filed a bill for account and distribution against Perryman, and a decree was rendered thereon, at April Term, 1842, for each complainant, for $2048 64.

Case for words, in Twiggs Superior Court. Decision by Judge Hansell, October Term, 1851. Consolidated by consent. The plaintiffs in error brought actions against Samuel Taylor and wife, for slanderous words.

<p>[1.] If a distributive share of an intestate’s personal estate, accrue to a married woman during coverture, and the husband die before distribution is made, and without any act on his part reducing it to possesion, it survives to the wife.</p> <p>[2.] II. died, leaving a widow and ten children, and a paper purporting to be his last will and testament. He bequeathed the whole of his estate to nine children. Upon the division, the husband of one of the daughters received two negroes, and after the death of the husband, the probate of the will v\ as revoked, and an intestacy declared, on account of the insanity of the testator, and the two negroes were returned to the administrator: Held, that the possession of the negroes by the husband, was not such, under the law, as caúsed his marital rights to attach, but that the same belonged to the wife, by virtue of her survivorship.</p>

In Equity, in Glynn Superior Court. Decision on demurrer, by Judge H. R. Jackson.

Motion to dismiss an appeal, in Chatham Superior Court. Decided by Judge H. R. Jackson, June Term, 1851. Two motions were made in this cause — one, to have the cause entered on the Appeal Docket, the other, to dismiss the appeal. Both were founded upon the same question, and involved the same, and a single point.

Claim, in Chatham Superior Court. Decision by Judge H. R. Jackson, June 2d, 185.1. Held: that the property was subject to the execution, under the acts before referred to. Upon this decision error has been assigned.

<p>[1.] Where a Solicitor General in this State has, during his term of office, instituted a prosecution against a defendant, by preferring abill of indictment against him for a violation of the law, public policy forbids that he should be allowed, after the expiration of his term of office, to be employed as counsel for such defendant, on his trial for the offence charged in such indictment.</p>

<p>Indictment for incestuous adultery, in Marion Superior Court. Tried before Judge Iverson, September Term, 1851.</p> <p>The indictment in’ this case alleged, that “ George W. Cook, being a married man, in the County and State aforesaid, on the first day of May, in the year 1851, and on divers other days and times, before and after that day, did, then and there (and on said other days and times) commit divers acts of incestuous adultery, by cohabiting and having sexual intercourse with one Lucinda Cook, an unmarried woman; she the said Lucinda Cook, being then and there, the daughter of him, the said George W. Cook, contrary to the laws,” &c.</p> <p>On the trial, defendant’s counsel moved to quash the indictment. 1st. Because it did not aver that Lucinda Cook was the legitimate daughter, of the whole blood, of the defendant, by her mother, to whom he was legally married.</p> <p>2d. Because it alleges, “ divers othertimes, before, &e.” when it should aver and be confined to a particular date.</p> <p>The Court overruled the motion, saying that he had doubts upon the question, and having such doubts, he would give the State the benefit of them; because the State was not allowed to carry the case to the Supreme Court. To this decision defendant excepted.</p> <p>The State proposed to prove by defendant’s admissions, that Lucinda Cook was his daughter, and that her mother was his lawful wife, to whom he had been legally married. Defendant’s counsel objected, and insisted that the marriage should be proved by the record of the license and return thereon; and the mother identified by witnesses who were present at the marriage; and that neither proof of cohabitation, -reputation or confessions, nor all combined, are admissible, without proof of the marriage in fact; and that the alleged daughter is the. legitimate offspring of such marriage.</p> <p>The Court overruled the objection and admitted the evidence, and defendant’s counsel excepted.</p> <p>Counsel for defendant requested the Court to charge the Jury, that the law was as insisted on by counsel, as to the proof of marriage, &c. The Court refused soto charge, and defendant excepted.</p> <p>On these exceptions error is assigned.</p>

Motion to dismiss a bill, in Dooly Superior Court. Decision by Judge Warren, November Term, 1851. Seaborn C. Biyan, as trustee for Mrs. Mary Wallace, filed a bill against George M. Duncan, her former trustee, alleging, that Wm.

In Equity, in Dooly Superior Court. Tried before Judge Warren, November Term, 1851. The bill filed in this case, by plaintiff in error, as the trustee of Mrs. Mary Wallace, a feme covert, set forth that Wm.

<p>Ejectment, in Sumter Superior Court. Tried before Judge Warren, November Term, 1851.</p> <p>This action was brought by the lessee of Gladney and another, administrators of Godwin, against Isaac B. Deavors. On the trial, plaintiffs offered in evidence a Tax Collector’s deed, and at the same time, a Tax Collector’s fi. fa. against John Deupree, for the tax for the year 1841, issued September, 1841, and levied by the Tax Collector, October 29th, 1841. On the same day was an entry by A. B. McCrea, Constable, of “no personal property to be found.” Objection being made by defendant’s counsel, the Court ruled out the fi. fa. and entries thereon, on the ground that the Tax Collector had no authority, by law, to issue execution for taxes, except in cases where the Grand Jury had allowed his insolvent list; and in all other cases it was the duty of the Tax Collector to seize and sell without execution; that the Constable had no authority to make the return of “ no personal propertybut that plaintiff'might prove, aliunde, that there was no personal property. To all of which rulings and decisions, the plaintiff’s counsel excepted.</p> <p>Plaintiffs then introduced parol proof, to show that there was no personal property, fiom which it appeared that John Deupree had no personalty, except such as the insolvent laws exempted from levy and sale.</p> <p>The Court charged the Jury that there was no personal property exempt from levy and sale for taxes, under the laws of Georgia — debts due the State not being included in the provisions of the insolvent laws. To this charge,' plaintiff, by his counsel, excepted.</p> <p>There was an exception filed to the charge of the Court, as to the question of fraud, on the ground that it was not authorized by the evidence. Under the view taken by the Supreme Court, of the other questions made in the record, it is unnecessary to repeat all the evidence, for the purpose of reviewing this question.</p>

Indictment for forgery, in Baker Superior Court. Tried before Judge Warren, December Term, 1851. The indictment in this case was for forging an instrument, of which the following is a copy: “ Mr. Hoarey — Please let William Hoskins have fifteen dollars’ worth in your store, and you will oblige me. October 29th, 1851. H. W. Vines.” The first count set forth the instrument, calling it an order, and charged defendant with forging it.

In Equity, in Marion Superior Court. Decision on demurrer, by Judge Iverson, September Term, 1851. The General Assembly of 1847 passed an Act, among other things, to provide for the location of a new County site, in the County of Marion, and to compensate the owners of lots at the old site (Tazewell) for the depreciation of their real estate, by-reason of the removal.

Trover, in Talbot Superior Court. Tried before Judge Iverson, September Term, 1851. Edward A. Adams and wife and others, the children of Louisa Mizell, brought an action of trover against William Mizell, for a negro woman, Rose, and her descendants. The plaintiffs below claimed under the will of Allen Dorman, the father of Louisa Mizell.

<p>[1.] One to -whom a slave is liired for a year, is entitled to no abatement of the price because of the death of the slave after the commencement of the term.</p>

Trover, in Marion Superior Court. Tried before Judge Iverson, September Term, 1851. This was an action of trover, brought by John Young against Respass, for a negro girl named Ann. The defendant below claimed the negro as a purchaser, from Eason Joiner, the son-in-law of Young, and to whom the defendant alleged a gift of the negro.

Ejectment, in Talbot Superior Court. Tried before Judge Iverson, September Term, 1851. This was an action of ejectment, brought by John ÍK. Jones, against G. B. Scoggins, for one and one-foúrth acres of land. The plaintiff relied upon a prior possessory title, and on the trial proved that he had been in possession for three years, of the premises in dispute, and that cjefendant obtained possession from one Hollis, who obtained possession by a forcible entry on :the premises.

Larceny, in Baker Superior Court. Tried before Judge Warren, December Term, 1851. Waller D. Whaley was placed upon his trial, under an indictment for Ihe larceny of a negro, named Bracewell.

Motion, in Baker Superior Court. Decision by Judge Warren, December Term, 1851. Waller D. Whaley was arrested by the Deputy Sheriff of Baker County, under a warrant, charging him with the offence of larceny. The officer issuing the warrant gave no directions under his hand and seal, for the seizure of a sufficient amount of property for the payment of all legal costs and expenses, as' provided by the Statute. The arresting officer, however, seized a horse, saddle and bridle.

Affidavit of illegality to fi. fa. for cost, in- Pike Superior Court. Decided by Judge Stark, at February adjourned Term, 1852. An action of trespass was brought by the plaintiff, against the defendant, for the beating of a slave belonging to the plaintiff.

Assumpsit, in Pike Superior Court. Tried before Judge Stark, February adjourned Term, 1852. On the 31st day of May, 1839, William Segur and William Crawford executed their joint and several promissory note, to Henry Kunkle or bearer, for one hundred dollars, payable on the 25th December, ensuing. Kunkle transferred the note to Edward F. Knott, by delivery.

Scire facias, in Pike Superior Court. Heard and decided by Judge Stark, February Term, 1852. The plaintiff in error instituted an action of trespass, against John Ison, the defendant’s testator, returnable to the June Term, 1848, of Pike Inferior Court. The alleged cause of action was the injury done to the wagon of plaintiffs, by the defendant, in cutting all the spokes out of one of the wheels of said wagon.

Case, in Coweta Superior Court. Tried before Judge T-Ttt.t,, September Term, 1851.

<p>[1.] At Law, an agreement must be strictly performed; but Court3 of Equity will, in cases of accident, surprise, fraud or ignorance, under certain circumstances, grant relief.</p> <p>[2.] If a writing lias been executed, with a view of obtaining a particular object, and by mistake, it lias been so drawn as not to have the contemplated operation at Law, Chancery will reform the instrument, so that it will fulfil the intention of the parties.</p> <p>Agreements, whether executed or executory, within or without the Statute of Frauds, whether for the conveyance of real or personal property, will bo reformed by Courts of Equity, on-the ground. of mistake.</p> <p>[3.] The proper inquiry, in all applications for relief against mistakes is, does the instrument contain the true agreement between the parties ? Is it what they intended it should be ?</p> <p>[4.] As to the degree' of proof that will be required, before relief will be granted agaiust written instruments, no uniformly inflexible rule has been prescribed. The mistake itself should be plain and made out by evidence clear of all reasonable doubt.</p> <p>[5.] Relief will be granted in certain cases, not only where the fact of the mistake is expressly established, but where it is fairly inferred from the nature of the transaction.</p> <p>[0.] Courts of Equity will grant relief more readily, where the mistake is made to appear, by reference to another writing.</p> <p>p.] The instrument reformed, takes effect from the time when it was originally executed.</p> <p>[8.] It is not necessary that the donee should be cognizant of the instructions given to the scrivener by the donor. It is sufficient to entitle those claiming under the deed of gift, to have it reformed if he accepted it, as it was understood and intended tobe drawn at the time it was executed.</p> <p>[9.] Equity will interfere to correct mistakes and reform written contracts between the original parties, and those claiming under them in privity, such as personal representatives, heirs, devisees, legatees, assignees, voluntary grantees, and judgment creditors or purchasers from them, with notice of the facts.</p> <p>[ 10.] Title to relief against mistakes may be forfeited by acquiescence or unreasonable delay; but lapse of time can never be setup as a defence in Equity, when it would not constitute a good statutable bar at Law.</p> <p>[11.] The Courts, slow at all times in exerting their authority, to reform written instruments, will be much more reluctant to interpose where upwards of thirty years have elapsed since the execution of the instrument. In such a case, the mistake should be made out by the most explicit and unequivocal proof.</p> <p>[12.] When, from the record, it appears conclusively, that the proper decision was made, the proceeding will not be reversed on error, because bad reasons are given for it, unless the party was prejudiced thereby.'</p> <p>[13.] If there is Equity in a bill, the want of all the necessary parties is not a sufficient ground for refusing to sanction it.</p> <p>[14] To transfer property by gift, there pmst be a deed pj- insp-uipput of gift — or, an actual delivery of the thing, tp the donee.</p>

Trover, in Coweta Superior Court. Decided by Judge Hill, September Term, 1851. The process attached to the declaration in this action, was not signed by the Clerk of the Superior Court, but by “ Charles E. Tuft, Deputy Clerk.” On the trial on the appeal, counsel for defendant demurred to the sufficiency of the process, on the ground that it was so signed. The Court sustained the demurrer, and ordered a non-suit to be entered in the said cause.

In Equity, in Butts Superior Court. Tried before Judge Stark, September Term, 1851.

<p>■ In Equity, in Coweta Superior Court. Tried before Judge Hill, September Term, 1851.</p> <p>This was a bill filed for discovery, account and settlement. The bill charges, that on 20th day of January, 1840, complainant placed in the hands of Thomas C. Brown, notes on solvent persons, amounting in the aggregate to about $6000, for which Brown executed the following receipt:</p> <p>“Received, January 20th, 1840, of Otis Smith, the following notes, to be disposed of in such manner as my judgment'may dictate, for which I am to return an account to said Smith when called for.” The receipt specifies the notes, and is signed,</p> <p>“T. C. Brown.”</p> <p>The bill charges, that owing to the pressure in the financial condition of the country, the said Brown realized a large .amount from said fund, by means of shaving paper, and loaning at usurious interest, and that said fund was received by Brown, and held and used by him in trust, and for the use and benefit of the complainant; that being satisfied with the profit Brown was real ¡ izing from said fund, he did not call on him for a settlement, until a short time before Brown’s death, which occurred in the year 1847. Brown then promised to come to a settlement, and appointed a day for that purpose, but his feeble condition prevented its execution.</p> <p>The bill charges, that Simms had been appointed administrator on the estate of Brown, by the Court of Ordinary of Coweta County; and that complainant had frequently called on Simms for a settlement, which had been refused.</p> <p>The bill prays that Simms, as administrator, &c. may come to an account and settlement with complainant, &c.</p> <p>The defendant filed his answer, in which.he pleaded an account and settlement between his intestate, Brown, and complainant, and also insisted upon the'Statute of Limitations.</p> <p>On the trial, complainant introduced witnesses, among them William Dougherty, to prove that Brown had admitted that he was using -funds for the use and benefit of complainant, &c. To which testimony, counsel for defendant objected, on the ground that such evidence enlarged and varied the written contract between the parties, to-wit: the receipt.</p> <p>The objection was overruled by the Court, and the evidence admitted, and counsel for defendant excepted.</p> <p>The complainant having closed his case, the defendant sought to prove by Henry Long, that Thomas C. Brown in his life time, to-wit: in the early part of 1841, had paid to the administrators of James Fannin, the sum of $2800, or thereabouts, in extinguishment of a debt due said estate by Smith, the complainant.</p> <p>The Court ruled the testimony inadmissible,, on the ground that it showed a payment, and that no payment had been pleaded by the defendant.</p> <p>• Counsel for defendant excepted.</p> <p>The testimony of Kinchen L. Harrison, going to the same .point, was ruled out by the Court, and counsel for defendant excepted.</p> <p>Counsel for defendant requested the Court to charge the Jury, ££ that the Statute oi Limitations commenced to run from the date of the receipt.” Which charge, the Court refused to make, but charged that the receipt, per se, showed that something was to be done with the funds by Brown, executory in its character, for which he was accountable on demand, and therefore, that the Statute only run from the time of a demand for an account.</p> <p>To which, counsel for defendant excepted, and upon these several exceptions, have assigned error.</p>

Decided by-Judge Starke, April Term, 1851. At the July Term, 1850, of the Inferior Court of Upson County, sitting as a Court of Ordinary, the will of Charity Walker was propounded for record, by her executor, Nathaniel F. Walker. Benjamin Walker, an heir at law, of the said Charity, filed a caveat to the will. The Court admitted the will to record, and the caveator entered an appeal.

Illegality, in Bibb Superior Court. Tried before Judge Starke, July Term, 1851. On the first day of January, 1849, Richard Bassett was elected Tax Collector in and for the County of Bibb, for that year. On the fifth day of June following, he executed, in the presence of three of the Justices of the Inferior Court, his bond, as such Collector.

Indictment, in Houston Superior Court. Tried before Judge Powers, October adjourned Term, 1851.

<p>In Equity, in Bibb Superior Court. Decision on demurrer, made by Judge Starke, July Term, 1851.</p> <p>The bill charges, that in 1849, the defendant instituted his action against one John ■ G. Myers and the complainant, alleging that Myers, as principal, and complainant as security, made and executed to him (Gigley) a bond for titles to a certain lot in the City of Macon, and that they had failed to make titles to said lot in terms of said bond; and that to this action, complainant ^ (Myers not having been served) pleaded, among other things, that the bond was given by Myers, as administrator of Charles T. England, deceased, on a contract of sale of the real estate of England, made privately and contrary to law- And when the plaintiff had closed his case, the bill alleges that complainant moved the Court to non-suit the case, on the following, among other grounds:</p> <p>“That the testimony showed, that the undertaking in the bond was.illegal and void, and that the obligors and obligees were cognizant of it, and particeps criminis, in this, that it was an obligation on the part of Myers, as administrator of Charles T. England, to sell the real estate of deceased, contrary to the Statutes regulating the sale of intestates’ real estates. The Court refused the motion to non-suit, and a verdict was found against the complainant.</p> <p>The bill charges, that to the decision of the Court, complainant excepted, and by writ of error, carried the same to the Supreme Court; that when the bill of exceptions was presented to Judge Starke, for his signature, counsel for Gigley added to the first ground, the following: “ There was no evidence to show the knowledge of plaintiff, to the fact stated, other than the bond in evidence,” which the bill charges was a mistake.</p> <p>The bill charges, that in consequence of this mistake, he has been injured and damaged, because the Supreme Court, in the case made and carried up by said bill of exceptions, sustained the legal defence set up by complainant to said action, but decided that the same was not proved.</p> <p>The prayer of the bill was that the judgment rendered and fi.fa. issued in said case might be decreed to be set aside, annulled and cancelled, &c.</p> <p>To this bill, the defendant filed a general demurrer.</p> <p>Which, at the hearing, was sustained by Judge Starke, and the bill dismissed.</p> <p>To which decision, counsel for complainant excepted.</p>

<p>In Equity, in Pike Superior Court. Decided by Judge Starice, at Chambers, January 8th, 1852.</p> <p>The bill charges, that the Plank Road Company, by virtue of its charter, granted in 1849, had constructed about some thirteen miles of their road, in and through the County of Pike, on which they had erected two toll-gátes. The bill charges, that for the purpose of settling difficulties that had occurred between the Justices of the Inferior Court of said County, and said Plank Road Company, in consequence of the latter appropriating to their use the public high road, leading from. Griffin, in said County, to the Flat Shoals on Flint river, in said County, the said Company cut out a road running along and near said Plank Road; upon the cutting out of which road, the said Justices agreed and consented to dismiss a suit which they had instituted against said Company.</p> <p>The bill charges, that in violation of said agreement, the said Justices, on the 7th day of July, 1851, passed an order, notifying the Commissioners of Roads in the districts through which said Plank Road runs, that said toll-gates -were obstructions on the said Flat Shoals road, with the intention of directing said Commissioners to remove said toll-gates, under pretence of legal authority; that the commissioners of the 545th District, acting under said order, on the day of 1851, cut down one of said gates ; that the' Company had again erected said toll-gate, and was apprehensive that the said commissioners, acting under the order of said Court, -would again cut it down, &c. &c.</p> <p>The prayer of the bill was for an injunction and specific perfonnance of the agreement, as charged in the bill, on the part of said Court.</p> <p>In their answer, the defendants admit the construction of the Plank Road ; they deny that any agreement was ever entered into by them, with the said Company, in relation to- the latter cutting out a new road, along and near said Plank Road.</p> <p>They admit that said Road was cut out, as charged in the bill, but that the same was hardly passable.</p> <p>They admit that the order was passed, as charged in the bill, and that the commissioners of the 545th district had proceeded, under said order, to remove one of the toll-gates erected by said Company ; and that the Company had again erected said gate ; and that it was their intention, and had given notice to have it again taken down, &c.</p> <p>The defendants also filed a demurrer to the bill, alleging that there was no equity in the bill, and that complainants had a full and complete remedy at Common Law.</p> <p>Upon the coming in of the answer, counsel for defendants moved to dissolve the injunction.</p> <p>The demurrer and answer were, by consent, heard together.</p> <p>Judge Starke overruled the motion, and counsel for defendants excepted.</p>

Indictment, in Troup Superior Court. Tried before Judge Hill, November adjourned Term, 1851.

In Equity, in Crawford Superior Court. Tried before Judge Starke, August Term, 1851. The bill charges, that Willis S. Scott was appointed’guardian of JohnF. and Cynthia Prosser, minors of John Prosser, in the year 1821. His first return was made in 1822, in which he charges himself with a negro boy named Harry, the subject of the suit, and also for his hire. For ten consecutive years, he continued in his returns to account for the hire of the boy.

<p>Ejectment, in Bibb Superior Court. Tried before Judge Starke, July Term, 1851.</p> <p>This was an action of ejectment, brought by John P. Evans against John L. Birge, returnable to November Term, 1847, of Bibb Superior Court, for the recovery of several lots of land, near the City of Macon, constituting a part of what is known as the “Macon reserve;” among them, lots 74 and 79, the subject-matter really in dispute.</p> <p>On the 16th day of December, 1848, Birge enjoined the action of ejectment by bill in Equity.</p> <p>At the July Term, 1851, the action of ejectment and the bill were tried together. In the progress of the trial, Judge Starke dismissed the bill, on the ground that complainant had an adequate Common Law remedy.</p> <p>Plaintiff in ejectment gave in evidence, the plot and grant from the State of Georgia to Samuel H. Fay, for said lots, and also a deed to himself.</p> <p>The defendant in ejectment, then gave in evidence a bill in Equity, filed by the plaintiff in ejectment, in 1842, against one Alexander R. McLaughlin</p> <p>This bill alleged that McLaughlin as the friend of complainant, in 1839 and 1840, advanced a large amount of money, in satisfaction of outstanding fi. fas. against complainant, took a transfer of said fi. fas. and also the notes of complainant'; that said notes were renewed during the year 1840, at the end of every sixty days, at a large and usurious rate of interest; that the land known as the “Fay place” and belonging to complainant, was finally sold under and by virtue of said fi. fas. on the 6th day of July, 1841, when McLaughlin purchased the same at $3100. The bill alleged that complainant had paid off the. principal and legal interest advanced on said fi. fas. by McLaughlin, with property exclusive of the “ Fay place.”</p> <p>By an amendment to his bill, complainant charged that the “ Fay place,” wms again sold in January, 1842, under a mortgage fi. fa. in favor of Samuel H. Fay, against complainant. At this sale J. J. Gresham, Esq. became the purchaser, as the attorney of the plaintiff in fi. fa. with the understanding that he was to convey the same to McLaughlin.</p> <p>To the bill McLaughlin filed his answer, which together with the verdict of the Jury, and the decree of the Court on said bill and answer, was read to the Jury, which was as follows: “ We the Jury find and decree that the defendant, Alexander R. McLaughlin, deliver up to the complainant all the notes he now holds against the complainant, John P. Evans, and we decree that all the executions mentioned in the bill, and which are held by McLaughlin, be entered satisfied; that.the defendant McLaughlin pay $348, on the elder fi. fas. now claiming the money in the Sheriff's hands, and find for the complainant Evans, $29 77 cts. with the cost of suit to be paid by the defendant.”</p> <p>Plaintiff in ejectment then offered in evidence, a file of the “ Macon Messenger,” a paper published in the City of Macon, for the purpose of showing the illegality of the sale of lots 74 and 79, under the mortgage fi. Ja. in favor of Fay, the same not having been advertised according to law.</p> <p>Counsel for defendant objected to the evidence.</p> <p>The Court sustained the objection, and repelled the evidence, on the ground “ that the legal title to said land was out of Evans; that his admission in his oiiginal and amended bill against McLaughlin, and the answer of McLaughlin thereto, and the judgment of the Court upon the demurrer of John J. Gresham to said original and amended bill, and the verdict of the Jury, and the decree of the Court, on said original and amended bill, together with the fi.fas. showed the title out of Evans, and worked an estoppel against him, as to all of said land.”</p> <p>To which ruling of the Court, counsel for plaintiff in ejectment excepted.</p>

<p>Claim, in Walker Superior Court. Tried before Judge Jno. H. Lumpkin, October Term, 1851.</p> <p>For the facts of this case, seethe decision of the Court.</p>

Ejectment, in Gordon Superior Court. Tried before Judge Irvin, March Term, 1852. The facts of this case are as follows: The plaintiff in error brought his action to recover a lot of land in possession of defendant. On the trial, plaintiff introduced a grant from the State to Wesley Yarborough’s orphans, issued under the Lottery Acts of 1830 and 1831, covering the land in dispute.

<p>[1.] The bare circumstance that the name of a person who did not execute the bond, is inserted in the body of it as one of the obligors, and a seal is left for his name, is not, of itself, evidence to show that those who did sign and seal and deliver it, delivered it only as an escrow, upon condition that that person should also execute it.</p> <p>[2.] It is error in the Court to charge the law, upon an assumed state of facts, which have not been proven.</p> <p>[3.] It is error in the Court to restrict the consideration of the Jury, in its charge, to a portion of the testimony only; and to instruct them that they must find for the plaintiff or the defendant, accordingly as they may find thatto be.</p> <p>[4.] Will a Justice of the Inferior Court, who has certified by his official attestation, that a Sheriff’s bond has been sealed and delivered, be allowed to deny that the bond was, in fact, delivered ? Quere,</p> <p>[5.] Although a Sheriffs bond be originally delivered as an escrow, yet, if subsequently, the sureties suffer him to act under this bond, will it not authorize the inference, that they had waived their demand of additional sureties and had consented to bo bound by it as it stood ? And would not a contrary doctrine be to sanction a fraud upon the public ? Quere.</p>

<p>In Equity, in Floyd Superior Court. Decision by Judge John H. Lumpkin, at Chambers.</p> <p>For the facts of this case, see the decision of the Court.</p>

<p>[1.] Where a Sheriff had made a levy on the property of a defendant in execution, and neglected to advertise, and sell the same for nealy six months, not having time to do so, before the next term of the Court, and just before the sitting of the Court, the defendant obtained an injunction restraining the plaintiff from collecting his fi.fa.: Held, that the Sheriff by'his negligence, in failing to collect the money, was liable therefor, and could not protect himself for such negligence, by alleging the granting of the injunction, as an excuse for not having raised it.</p>

<p>Assumpsit, in Paulding Superior Court. Tried before Judge Jno. H. Lumpkin, November Term, 1851.</p> <p>The facts of this cause are fully set out in the opinion of tl Court.</p>

Action on note, in Floyd Superior Court. Tried before Judge Lumpkin, February Term, 1852. George W. Howell brought his action against John S. Burnett, on a promissory note. On the trial of which, at February Term, 1852, defendant tendered in evidence, under a plea of set-off, a note made by the plaintiff, to S. E. Burnett or bearer, dated August 26th, 1842. To the introduction of this note, plaintiff objected, on the ground that it was barred by the Statute of Limitations.

<p>Petition for mandamus or writ of prohibition against Judge Iverson, in a cause pending in Muscogee Superior Court.</p> <p>The facts of this case are as follows :</p> <p>By order of the Superior Court of Muscogee County, upon a bill filed for that purpose, by William Dougherty for himself and others, Seaborn Jones, who was a trustee named in a deed of trust executed by Daniel McDougald, conveying certain property for the benefit of creditors, had been removed from said trust, and A. S. Rutherford appointed a receiver to collect and apply said trust funds. A motion was then made before the Judge at Chambers, by said Dougherty, that Seaborn Jones, Duncan McDougald, Ann Eliza McDougald and Alexander McDougald, be summoned to appear, on a day fixed, before the Court, to discover, on oath, what portion of said trust property they had in their hands respectively; to account for the same, and to turn it over, by proper conveyances, to said receiver.</p> <p>To this motion Seaborn Jones, Ann E. McDougald and Duncan McDougald filed their answers in writing. Alexander McDougald was examined ore tenus before the Court and discharged from the order. The plaintiff then moved an additional order, requiring the said parties to answer certain interrogatories, in writing, by him propounded; which order was granted by the Court, after objection made by the defendants, who thereupon filed their bill of exceptions, returnable to the July Term, 1852, of the Supreme Court, for Americus, alleging the granting of said order as error and seeking to renew the same. This bill of exceptions was sanctioned by the Court, and bond filed in terms of the law.</p> <p>Subsequently to the filing of this bill of exceptions, William Dougherty again appeared before the Judge in Chambers, and moved that a day be appointed on which said Duncan McDougald, Ann E. McDougald-and Seaborn Jones should answer said interrogatories ; which motion, after objection made and argument, was granted by the Court.</p> <p>And the said parties defendants now appear, by counsel, before this Court and move a writ of mandamus or prohibition, to be directed to the Judge of the Superior Court of Muscogee County, restraining all further proceedings of any kind, in said cause, and especially the order to answer last mentioned, until the decision of said bill of exceptions at the next Americus Term.</p>

In Equity, in Laurens Superior Court. Motion for a new trial. Decided by Judge Hansell, March Term, 1852.

Assumpsit, &c. in Baldwin Superior Court. Tried before Judge Johnson, February Term, 1852. This was a suit by John Treanor against John J. Mitchell, upon an account for merchandize.

In Equity, in Putnam Superior Court. Decision by Judge Johnson, March Term, 1852. L. P. Harwell and wife filed a bill against James W. Armstrong and Joseph Johnson, returnable to March Term, 1851, of Putnam Superior Court. At that term, the entry of “Usual Rule” was made on the docket, but no order was taken on the minutes.

<p>Certiorari, in Wilkinson Superior Court. Decided by Judge Johnson, April Term, 1852.</p> <p>The Inferior Court of Wilkinson County, ordered the sale of a runaway negro, named Anthony, after a due advertisement of the same, as required by law. The Clerk of the Inferior Court issued a process, which he termed an attachment, requiring the Sheriff to sell, &c. The Sheriff levied this process on the negro, Anthony, and made the following return thereon :</p> <p>“ The above levy sold for four hundred and fifty-one dollars, and after deducting all costs and expenses, leaves a balance of two hundred and forty-seven dollars and twenty-five cents, paid to this attachment. S. B. MURPHY, Sh’ff.”</p> <p>Subsequently the Inferior Court passed an order as follows :</p> <p>The Justices op the Inferior Court, ) vs. V Anthony, a runaway negro man, slave. )</p> <p>Attachment from Wilkinson Inferior Court, returnable to January Term, 1841.</p> <p>It appearing to the Court that Solomon B. M urphy, late Sheriff, has collected on the above stated attachment, the sum of $451: It is ordered that he show his actings and doings in relation thereto, &c.</p> <p>The Sheriff made return thereto, that he paid out for fees and expenses, $252.58, leaving a balance of $198.42, which amount he paid to A. B. Raiford, late Treasurer of the County. This return was sworn to by the Sheriff.</p> <p>A traverse was filed to this return, and issue formed thereon.</p> <p>Upon the trial of this issue in the Inferior Court, Murphy, by his counsel, objected to the Justices of the Inferior Court sitting in the cause, on the ground that they were the parties plaintiff of record, which objection was overruled and excepted to.</p> <p>He then objected to the farther progress of the cause, on the ground that the Clerk, and not the Justices of the Inferior Court, was the proper party; which objection was overruled and excepted to.</p> <p>Plaintiff’s counsel tendered in evidence, the deposition of A. B. Raiford, late Clerk and Treasurer, to show that the balance was never paid over to him. Defendant’s counsel objected, on the ground that Raiford was interested and an incompetent witness. The objection was overruled and excepted to.</p> <p>On these exceptions a writ of certiorari to the Superior Court was sued out, and on hearing the return thereto, Judge Johnson refused to sustain the writ; overruling the 1st and 2d grounds, and holding that there was evidence sufficient to sustain the verdict, without the testimony of Raiford.</p> <p>In addition to the return on the attachment, it was proven that the books of the Clerk and Treasurer showed no money paid from the sale of said negro to the Clerk. There was no proof on the part of the Sheriff that he had paid the money to Raiford, the Clerk.</p> <p>Exceptions were filed to Judge Johnson’s decision, and error assigned thereon.</p>

<p>[1.] Testamentary capacity is to be determined by tie condition of the testator’s mind at the time of his executing or acknowledging the will.</p> <p>[2.] For the purpose of shedding light npon the state of the testator’s mind when the will was made, evidence of its condition, both before and after the period, may be produced.</p> <p>[3.] As an independent fact, proof of incapacity at one period, is inadmissible to impeach a will made at another.</p> <p>[4.] When testimony has been introduced, showing that the testator’s mind was the same when the will was made that it was at a subsequent period, when he was found to be non compos mentis, proof of Ms incapacity at the latter period, is relevant and proper to attack the will.</p> <p>[5.] When insanity is once found, upon an inquisition of lunacy, it is presumed to continue; and the onus is cast upon those offering a will, to show that the disqualification has been removed.</p> <p>[6.] When it is apparent that, justice may have been defeated by the misapprehension of the facts or the law, by the Court, in its charge to the Jury, the error calls for correction, as a matter of right.</p> <p>[L] If, taking all the instructions collectively, the law seems to have been properly expounded to the Jury, the judgment will not be reversed, though some one opinion maybe erroneous.</p> <p>The correctness of a charge must be determined by the whole, taken together.</p> <p>[8.] Fraud is a distinct head of objection to the validity of a will, from importunity and undue influence; usually they are the very opposites of each other. Both are equally destructive of the validity of a will.</p> <p>[9.] By the Statute Law of some of the States, when insanity of the testator is alleged, the inquiry must always be, whether, at the time of executing or acknowledging the will, the testator was capable of making a valid deed or contract; and no inferior grade of intellect will suffice; but such is not the rule of the Common Law, nor in Georgia.</p> <p>[ 10.] The right to the free enjoyment and disposition of one’s property, is required by the best interests of society.</p> <p>[11.] The phrase, “a mere glimmering of reason,” used in Potts and others vs. House, (6 Ga. Rep. 324,) explained and illustrated.</p> <p>[12.] It is the duty of the Oourts to administer justice according to law, and it is irregular and improper to call upon counsel to waive any legal right, in the presence and hearing of the Jury, who are charged with the case.</p>

Distribution of money, in Baldwin Superior Court. Decision by Judge Johnson. The only issue in this case was, whether on the distribution of the assets of an intestate, a debt due to the Central Bank, was a debt due to the State, so as to give it a priority of lien over older judgments belonging to individuals. Judge Johnson held that it was not, and the counsel for the Central Bank excepted.

Indictment for murder, verdict for manslaughter, and motion for new trial, in Richmond Superior Court. Tried before Judge Starnes, January Term, 1852. James Campbell was placed upon bis trial upon an indictment charging him with.the murder of Alfred Mays. Upon the trial, the following evidence was given in before the Jury. Testimony for the State. John Evans, (sworn.) I knew Alfred Mays ; I saw him last in January, 1851 — think it was about the 23d — it was in this County.

Decision by Judge Starnes, 2d. March, 1852. A motion was made to dismiss the wrrit of error in this case, on the ground that the same was sued out to an interlocutory order, viz: the decision of Judge Starnes, in granting, ex parte, the writ of certiorari, there being as yet, no final decision in the cause.

<p>In Equity, in Richmond Superior Court. Tried before Judge Starnes, January Term, 1852.</p> <p>On 26th day of June, 1828, Benjamin L. Greenwood and Elizabeth M. M. Scurry, in contemplation of a marriage about to be solemnized, entered into the following marriage settlement:</p> <p>Georgia :</p> <p>This indenture, tripartite, made and entered into this twenty-sixth day of June, in the year of our Lord one thousand eight hundred and twenty-eight, and of the Independence of the United States, the fifty-second, between Benjamin Leigh Greenwood, of the County of Richmond and State aforesaid, of 'the first part, Elizabeth Melvina Mounger Scurry, of the County of Columbia and State aforesaid, of the second part, and George L. Twiggs and William W. Montgomery, of the County of Richmond and State aforesaid, and Benjamin Leigh of the County of Columbia and State aforesaid, (trustees of the said Elizabeth M. M. Scurry) of the third party. Whereas, Richard 0 Scurry, the father of the said Elizabeth M. M. late of the County of Richmond and State aforesaid, deceased, in and by his last will and testament, bearing date on thé ninth day of November, in the year of our Lord one thousand eight hundred and seventeen, did give and bequeath unto his said daughter, the said Elizabeth M. M. the whole of his estate, both real and personal, and in and by said will, did nominate, constitute and appoint Benjamin Leigh, of Columbia County, sole executor thereof, with power to dispose of said property, in said will mentioned, in such manner as he might think proper and meet 'for the benefit of his said daughter. And also, in and by said will, declared, that the said property or the proceeds thereof, should not be paid over and delivered to her until she'should attain the full age of twenty-one years, all which will more fully appear by reference to said recited Will, remaining in the custody of the Court of Ordinary of the County of Richmond, and State aforesaid, where the same was proved and admitted to record by virtue of which said will, she, the said Elizabeth M. M. is entitled unto all and singular the said property, real and personal, and the proceeds, rents, issues and profits thereof, according to the terms, stipulations and provisions in said will contained. And whereas, by the permission of God, a marriage is intended to be shortly had and solemnized between the said Benjamin L. Greenwood and the said Elizabeth Melvina Mounger Scurry, and it is agreed by and between the said Benjamin L. and the said Elizabeth M. M. that if the said intended marriage shall take effect and be solemnized, then, notwithstanding said marriage, he, the said Benjamin L. his executors, administrators and assigns-, shall not and will not intermeddle with the said property, real or personal, nor the rents, issues and profits thereof, further or in any other manner than' as is hereinafter stipulated, mentioned, and agreed upon. And whereas, the said property consists mostly of money, notes, bonds and other securities for money, and household furniture, which said property is now in the hands and under the control and direction of the said Benjamin Leigh, the executor of the said will of the said Richard O. Scurry and the guardian of the said Elizabeth M. M. to be by him disposed of according to the direction of the said will. And whereas, it is agreed by and between the said Benjamin L. Greenwood and the said Elizabeth M. M. Scurry, that the said property and estate, goods and effects so belonging to, and being the property of the said Elizabeth M. M. in case the intended marriage shall take effect, shall not, in any event whatever, be subject or liable, either at Law or in Equity, to the payment of any of the debts of the said Benjamin L. Greenwood at present contracted, and now due, and owing or to become due, and owing by him, or any debt or debts which may be by him in future contracted and due and owing on any account, or for any purpose whatever. And it is further agreed, that the said property, money, goods and effects, whether in possession or in action,, shall be secured, transferred, conveyed and assured to the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, (trustees as aforesaid,) on the trusts and so and for the uses and trusts, intents and purposes hereafter mentioned, expressed and declared, and so and for no other trust, uses, intents or purposes, whatever. Now, therefore, this indenture witnesseth that the said Elizabeth Melvina Mounger Scurry, by and with the consent and approbation of her intended husband, the said Benjamin L. Greenwood, and also by and with the consent and approbation of her said guardian, the said Benjamin Leigh, who is also the sole executor of the last will and testament of the said Richard O. Scurry, which consent of the said Benjamin L. Greenwood and Benjamin Leigh, is manifested and declared by their being parties to these presents and signing and sealing the same, and for and in consideration of the said intended marriage and of the sum' of one dollar to her in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and to the intent that the said estate, both real and personal, money, goods and effects, bonds, bills, notes and other securities for money, and the rents, issues, profits and proceeds thereof, may be secured and applied upon the trusts and to and for the uses, intents and purposes, hereinafter expressed and declared, hath granted, bargained, sold, aliened, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, convey and confirm unto the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, (trustees as aforesaid) and the survivor of them and the executor and administrator of the survivor of them, all the estate, real and personal, money, goods and effects, bonds, bills, notes and other securities for money, and household and kitchen furniture, and other effects which she is, or may be entitled unto, under and by virtue of the said last will and testament of her said father, Richard O. Scurry, to have and to hold the said estate, real and personal, money, goods, bonds, bills, notes and other securities for money and household and kitchen furniture and other effects, unto the said George L. Twiggs, William W. Montgomery and Benjamin Leigh and the survivor and executor and administrator of them in fee simple, upon the trusts and so and for the several uses, intents and purposes hereinafter mentioned and declared, and none others. That is to say, that they, the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, and the survivors of them, and the executors and administrators of the survivors of them, shall and may, by and with the consent of the said Benjamin L. and Elizabeth M. M. expend, lay out and invest the said money, goods, bills, bonds, notes and other securities for money and other property and effects, in land and negroes, or in any other property which may be agreed upon by and between all the parties to these presents ; and shall and will immediately from and after the solemnization of the said intended marriage, and so soon as the said property, goods, money and effects can, according to the provisions of the said will of the said Richard O. Scurry, be paid over to them, as trustees, as aforesaid by the said executor of the said will, permit and suffer the said Benjamin L. and his intended wife, the said Elizabeth M. M. to have, hold, possess and enjoy the said land and negroes and other property, real and personal, with the appurtenances, and to receive the rents, issues and profits thereof, for the purpose of supporting and maintaining the said Benjamin L. and Elizabeth M. M. and such child or children as may be born of the said Elizabeth M. M. during her' coverture with the said Benjamin L. for and during the joint lives of the said Benjamin L. and Elizabeth M. M. and the life of the survivor of them; but upon this special understanding and agreement, by and between all the parties to this indenture, that neither the land, negroes, goods, money nor any other part or portion of the said property, real and personal, nor the rents, issues, or profits thereof, or any part or portion of them, or either of them, shall go to, or be subject, either at Law or in Equity, to the payment of any of the debts of the said Benjamin L. Greenwood already contracted, or wdiich may be by him at any future time contracted. , And that, if the rents, issues and profits of the said property, real or personal, shall, at any time, be more than sufficient to support the said Benjamin L. and Elizabeth M. M. and the child or children which may be the fruit of the said intended marriage, then such overplus shall be invested by the said trustees, in such property, real or personal, as may be agreed' upon by and between all the parties to these presents, to be held by the said trustees, or the survivors of them, and the executors and administrators of such survivor, upon the same trusts, and to and for the same uses, intents and purposes hereinbefore and hereinafter mentioned and declared. And in the event of the death of the said Elizabeth M. M. Scurry, leaving a child or children, the fruit of the said intended marriage, then upon trust that they, the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, and the survivors of them and the executor and administrators of such survivor of them, and the executors and administrators of such survivor, shall and will continue to permit the said Benjamin L. Greenwood, to have, hold and keep possession of the said property, real and personal, and receive the said rents, issues and profits thereof, under the restrictions and limitations, and for the purposes hereinbefore mentioned, for the support of himself and the said child or children for and during the term of his natural life. And from and immediately after his death, then upon the further trust and confidence, that they, the said George L. William W. and Benjamin, and the survivor of them and the executors and administrators of such survivor, shall and will convey, transfer and set over by proper and legal conveyances, .the whole and every part of the said property, real and personal, and the increase thereof, and the rents,-issues and profits of the same, to the said child or children, shave and share alike, in fee simple, and freely discharged from all further trusts. And in case the said Elizabeth M. M. should die in the life-time of the said Benjamin L. and without leaving a child op children, such child or children should all die ip the life-time of the said Benjamin U. then upon the further trust, that they, the said George L. William W, and Benjamin, and the survivor of them, and the executors and administrators of such survivor shall and will permit and suffer the said Benjamin L. to have, hold, keep and possess all and singular the said property, real and personal, with the increase thereof, and the rents, issues and profits thereof, for his support and maintainance for and during the term of his natural life ; and from, and _ immediately after his decease, that they shall and will convey, assign and set over all the said property, real and personal, with the increase thereof, to such person or persons and in such manner as the said Benjamin L. Greenwood shall and may order, direct and appoint, by his last will and testament, in writing, duly executed in the presence of three or more credible witnesses. And in case he should fail or neglect to make such will or appointment, then, that they shall and will convey, transfer .and set over the said property, real and personal, .and the increase thereof, together with the rents, issues and profitsof the same, to the legal heirs and representatives of the said Benjamin L. in fee .simple, share and share alike, and by proper and legal .assurances. And in case 'the said Benjamin L,. Greenwood shall die in the life-time of the said Elizabeth M. M. Scurry, leaving a child .or children, the fruit of the said intended marriage, then, upon this further trust and confidence, that they, the said George L, Twiggs, William W. Montgomery and Benjamin Leigh,' and the survivor of them, and the executors and administrators of such surviyor, shall and will permit and suffer the said Elizabeth ,M. M. Scurry, to have, .hold, keep and possess the said property, real and personal, and the increase thereof, and the rents, issues and profits of the same, under the restrictions and limitations hereinbefore named, for the support of herself and the said child or children, for and during the term of her natural life; and from and immediately after the decease of the said Elizabeth M. M. Scurry, then, upon this further trust and confidence, that they, the said George L. William W. and Benjamin, and the survivor of them, and the executors and administrators of such survivors, shall and will convey, transfer and set over by proper and legal conveyances, the whole and every part of the said property, both real and personal, and the increase thereof, together with the rents, issues and profits of the same, to the said child or children, share and share alike, in fee simple, and freely discharged from any further trust. And in case the said Benjamin L. shall die in the life-time of the said Elizabeth M. M. and without leaving a child or children,' of the said marriage, or leaving a child or children, such child or children should all die in the life-time of the said Elizabeth M. M. then, upon this furthertrust and confidence, that they, the said George L. William W. and Benjamin, and the survivor of them, and the executors and administrators of such survivor, shall, and will, immediately upon the happening of either of the said last mentioned events, convey, assign and set over, by legal and proper conveyances, the whole of said property, real and personal, and the increase thereof, together with the rents, issues and profits of the same, to the said Elizabeth M. M. in fee simple, and freely discharged from any other trust. And the said Benjamin L. Greenwood, for himself, his heirs, executors, administrators and assigns, doth promise, covenant and agree to, and with, the said Elizabeth M. M. Scurry, and to and with the said George L. Twiggs, William W. Montgomery and Benjamin Leigh and the survivor of them, and the executor and administrator of such survivor, that they, the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, and the survivor of them, and the executors and administrators of such survivor, shall and may take, hold, keep and enjoy, all and singular the said property, real and personal, and the increase thereof, hereinbefore conveyed to them by the said Elizabeth M. M. upon the trusts and confidence, and to and for the uses, intents and purposes hereinbefore mentioned, expressed and declared. And that he -will do no act to hinder, frustrate or defeat the true intent and meaning of these presents; and that they shall and may, hold the said property without the let, suit, trouble or denial of the said Benjamin L. his heirs, executors, administrators or assigns. And further, that he the said Benjamin L. his executors, administrators or assigns, shall and will at any time or times hereafter, upon the reasonable request of the said George L. William W. and Benjamin, or the survivor of them, or the executors and administrators of the survivor, make, do and execute, or procure, to be made done and executed, and suffer and permit his said intended wife to do, make and execute, or in conjunction with her, will do, make, and execute, as may be deemed most legal and correct, all and every such further and other reasonable and lawful act or acts, thing or things, devices and assurances in the law, whatsoever, for the further, better and more perfect conveyance, assignment and transfer of the said property, real and personal, and its increase, and the rents, issues and profits of the same unto the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, and the survivor of them, and the executors and administrators ofsuch survivor, to and for'and upon the several trusts, intents and purposes hereinbefore expressed and declared, according to the true intent and meaning of these presents, as by them or any of them, or their or any of their counsel, learned in the law, shall be reasonably devised or advised and required. And the said George L. Twiggs, William W. Montgomery and Benjamin Leigh, for themselves, their executors and administrators and assigns, do covenant, promise and agree to, and with the said Benjamin L. Greenwood and Elizabeth M. M. Scurry, that they will take, receive and • accept the said property, real and personal, hereinbefore by the said Elizabeth M. M. to them conveyed, upon the several trusts, and to and for the uses, intents and purposes hereinbefore expressed and declared, and to and for no other intent or purpose whatever. And further, they will faithfully execute and perform the said several trusts, and hold the said property, real and personal, for no other purposes than those herein mentioned and declared, according to the true intent and meaning of these presents. And it is further mutually agreed, and declared by and between all the parties to these presents, that in case the said Benjamin L. and the said Elizabeth M. M. or the survivor of them,, shall be desirous to have the said property, real or personal, hereinbefore conveyed and assured, or any part thereof, sold, and the money arising from such sale invested in any other property, real or personal, stock or fund, or placed out upon any security ;• and shall signify such his, her or their desire, by writing under his, her or their hand, or hands, signed in the presence of two or more credible witnesses; that then, the said trustees, or the survivors of them, and the executors and administrators, of the survivor, shall, accordingly, sell and dispose of the said property, real and personal, or any part thereof, and invest, place, lay out or dispose of the money arising by the sale thereof, in such other property, real or personal, stock, funds or securities, or in such other manner as the said Benjamin L. and Elizabeth M. M. or the survivor of them, shall, by such writing as aforesaid, direct, limit, or appoint; provided, however, that the said trustees or the survivor of them, or the executors and administrators of such survivor, shall approve of and give his or their consent to such sale, purchase and investment. Which said property, real, and personal, stocks, funds or securities, when so purchased, shall be transferred, assigned, conveyed, settled and assured so and in such manner as that the same, with the increase, rents, issues and profits thereof, may remain, continue and be applied and disposed of, to and for and upon the same trusts, uses, intents and purposes as the said property, real and personal, hereinbefore conveyed, are hereinbefore directed, limited and appointed, to go and be applied and be disposed, and that in all respects, according to the true intent and meaning of these presents. And in case of the death or removal of any one or all of the said trustees, it is mutually agreed by and between all the parties to these presents,-that the said Benjamin L. Greenwood and Elizabeth M. M. Scurry, during their joint lives, and either of them after the death of the other, shall and may nominate and appoint one or more trustees to the said property, real or personal, herein conveyed, upon the same trusts, and to and for the same uses, intents and purposes hereinbefore mentioned and declared, but such appointment shall not be made, unless by the consent of the surviving and unremoved trustees or' one of tbem, which said appointment shall be made under the hands and seals of the said Benjamin L. and Elizabeth M. M. or the survivor of them, in the presence of two or more credible witnesses, and be attached to these presents,- and form a part thereof. And in case of the death of the said Benjamin L. Greenwood and the said Elizabeth M. M. Scurry, and of any or all of said trustees, other trustees should be necessary to carry into effect the true intent and meaning of these presents, then, and in such a case, a trustee or trustees shall and may be nominated and appointed by a Court of Equity, for the purpose of carrying these presents into full effect. And whereas, the said property hereinbefore conveyed, is now in the hands of the said Benjamin Leigh, as executor of the last will and testament of the said Richard O. Scurry, deceased, to be delivered over by him, according to the provisions of the said will. Now, it is mutually agreed by and between all the parties to these presents, that when the time arrives at which the said property is to be handed over, the said Benjamin Leigh shall deliver the same to the said trustees, taking their receipt for the same, which shall be a full and complete discharge to him from the said Benjamin L. and Elizabeth M. M. — the said trustees to hold the same upon the terms and stipulations hereinbefore mentioned. In witness whereof, the parties to these presents have hereunto set their hands and affixed their seals, the day and year first above written.</p> <p>Signed, sealed andq delivered in presenceofus,</p> <p>Hfnry Greenwood,</p> <p>Nelson Carter,</p> <p>Thomas S. Martin.</p> <p>BENJ. L. GREENWOOD, [l. s.]</p> <p>ELIZABETH M. M. SCURRY, [l. s.]</p> <p>BENJ. L. GREENWOOD, |>. s.]</p> <p>GEORGE L. TWIGGS, [l.b.]</p> <p>W. W. MONTGOMERY, [l. s.]</p> <p>BENJ. LEIGH, [l. s.]</p> <p>Subsequently, difficulties having arisen, Benjamin L. Greenwood sued for and obtained a divorce, a vinculo matrimonii, from his wife, Elizabeth M. M. Greenwood. Subsequent to the divorce, Elizabeth M. M. Greenwood executed a release, of which the following is a copy:</p> <p>Georgia:</p> <p>This indenture, tripartite, made and entered into this twenty-eighth day of August, in the year of our Lord eighteen hundred and thirty-eight, and of the Independence of the United States, the sixty-third, between Elizabeth M. M. Greenwood, formerly Scurry, and lately the wife of Benjamin Leigh Greenwood, of the County of Baker, and State aforesaid, of the first part, the said Benjamin L. Greenwood of the County of Baker and State aforesaid of the second part, and George L. Twiggs and William W. Montgomery, both of the County of Richmond and State aforesaid, (trustees of the said Elizabeth M. M.) of the third part. 'Whereas, heretofore, to wit, on the twenty-sixth day of June, in the year of our Lord one thousand eight hundred and twenty-eight, a deed of marriage settlement was entered into by and between the said Elizabeth M. M. and the said Benjamin L. whereby the property belonging to the said Elizabeth M..M was, by their consent, transferred and conveyed to the said George L. Twiggs and William W. Montgomery, and one Benjamin Leigh, (since deceased) as trustees for the said Elizabeth M. M. to and for the uses, intents and purposes, and upon the special trusts and confidence therein described and provided for, all of which will more fully appear, by reference to the said deed of marriage settlement, which will be found of record in the office of the Clerk of the Superior Court of Richmond County in the State aforesaid. And whereas, the intended marriage between the said Elizabeth M. M. and the said Benjamin L. mentioned in said marriage settlement, was solemnized between the parties on the said twenty-sixth day of June in the year of our Lord eighteen hundred and twenty-eight, and the property described in the said indenture, reduced to the possession of the said Benjamin Leigh Greenwood, by and with the consent and approbation of the said trustees. And whereas, the said Benjamin L. and the said Elizabeth M. M. lived together as man and wife for several years, and until the eleventh day of September, in the year of our Lord one thousand eight hundred and thirty-six, and caused the said Benjamin L. to institute in the Superior Court of the County of Baker and State aforesaid, an action at law against the said Elizabeth M. M. for a divorce, which, said action came on to be tried, and was tried, in the Superior Court of Baker County, at October, in the year of our Lord one thousand eight hundred and thirty-seven, before a Special Jury, when the following verdict was returned, pronounced and recorded, viz:</p> <p>“ We find that sufficient proofs have been referred to our consideration, to authorize a total divorce, that is to say, a divorce a vinculo matrimonii, upon legal principles, between the parties in this case. (Signed,) Thomas H. Hull, Foreman.</p> <p>And whereas, at the second term of the said Superior Court thereafter, to wit, at the August Term, in the year of our Lord one thousand eight hundred and thirty-eight, the same cause came on to be again tried, and was tried, as the Constitution provides, before another Special Jury, when, after hearing the evidence in the case, the Jury returned the following verdict, which was received, pronounced and recorded, to wit:</p> <p>“ We find that sufficient proofs have been referred to our consideration, to authorize a total divorce, that is to say, a divorce a vinculo matrimonii, upon legal principles, between the parties in this case. Mathew B. Moor, Foreman.</p> <p>By virtue of which two concurring verdicts, the said Benjamin L. and Elizabeth M. M. have been divorced a vinculo matrimonii, and are now separate and distinct persons in law. And whereas, the said Benjamin L. being desirous to make provisions for the support and maintenance of the said Elizabeth M. M. notwithstanding the said divorce, has proposed to give her the sum of ten thousand dollars, on condition that she, with the consent and approbation of said trustees, will release and relinquish all claim which she now has, or may at any time hereafter have to all or any and every part or portion of the property, both real and personal, mentioned, specified and contained in the said deed of marriage settlement, which proposition the said Elizabeth M. M. by and with the consent and approbation of the said trustees, the said George L. Twiggs and William W. Montgomery, has agreed to accept, which consent and approbation are manifested by their signatures to this instrument. Now, therefore, this indenture wiinesseth, that the said Elizabeth M. M. for, and in consideration of, the sum of ten thousand dollars, to her in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath released, relinquished and quit claim, and by virtue of these presents, forever release, relinquish and quit claim unto the said Benjamin L. Greenwood all her rights, title, claim, interest or demand in Law or Equity, in and to all and every part and parcel of the property, both real and personal, of whatsoever nature or kind mentioned, specified, or in any manner contained or comprehended in the said deed of marriage settlement, and doth also freely and fully, for the consideration expressed, release and relieve her said trustees, George L. Twiggs and William W. Montgomery from all liability to her, under and b.y virtue of the said deed of marriage settlement. And it is further agreed and stipulated, by and between all the parties to this indenture, that the provisions and stipulations contained in the said deed of marriage settlement, shall be fully and fairly carried into effect, so far as they relate to the said Benjamin L. Greenwood and the child now in life, which is the fruit of the said marriage, to wit, the said Duncan L. Clinch and for his and their use and benefit; and that if the said Benjamin L. shall die before the said Elizabeth M. M. that the said trustees shall dispose of the said property specified in said deed of marriage settlement, for the benefit of the said child, in such manner as ■is mentioned and declared in said deed, as if the said Elizabeth M. M. were dead, notwithstanding she may be still in life, because the object and true intent and meaning of this indenture. are to release unto the said Benjamin L. all the interest and claim of the said Elizabeth M. M. under the said deed and marriage settlements, she having as above expressed, received from him a full and fair consideration of the same, and to secure to the child, now in life, of the said marriage, the said Duncan L. Clinch, the whole property, after the death of the said Benjamin L. as provided and stipulated in the said deed of marriage settlement, notwithstanding that the said Elizabeth M. M. may survive the said Benjamin L. And the said Elizabeth M. M. for the consideration above mentioned, doth hereby fully authorize and empower her said trustees, George L. Twiggs and William W. Montgomery and the survivors of them, to dispose of the said trust property, in such manner as the said deed of marriage settlement points out and declares, in the event of the death of the said Elizabeth M. M. during the life time of the said Benjamin L. and to carry into effect all the provisions of the said deed of marriage settlement, except such as relate to the said Elizabeth M. M. whose interest under the same has been hereby fully and entirely released, to and for the benefit of the said Benjamin L. and the said Duncan L. Clinch. And the said Elizabeth M. M. doth further authorize and empower her said trustees and the survivors of them to sell any or all of the said property, real and personal, upon the application of the said Benjamin L. Greenwood, and to re-invest the proceeds thereof in such other property as he and they may think proper, as they are now authorized to do by said deed of marriage settlement, upon the joint application of the said Benjamin L. and Elizabeth M. M. and in every case to do and perform, upon the application and request of the said Benjamin L. alone, any and all such acts, matters and things as they are, by the said deed of settlement, authorized to do upon the joint application and request of the said Benjamin and the said Elizabeth M. M. And in the event of the death of the said child, Duncan L. Clinch, during the life time of the said Benjamin L. the said Elizabeth M. M. hereby covenants and agrees to and with the said Benjajamin L. and the said George L. Twiggs and William W. Montgomery, that the said Benjamin L. may dispose of and devise the said property, real and personal, by his last will and testament — or in default thereof, that the said property, real and personal, shall, after the death of the said Benjamin L. be assigned and set over by the said trustees, to his legal heirs and distributees, in such manner and form as provided for in said deed of marriage settlement, and as if the said Elizabeth M. M. were dead, notwithstanding that the said Elizabeth M. M. may still be in life.</p> <p>In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written.</p> <p>Elizabeth M. M. Greenwood, [l. s.]</p> <p>Benjamin L. Greenwood, [l. s.]</p> <p>George L. Twiggs, [l. s.]</p> <p>W. W. Montgomery, [b. s.]</p> <p>Signed, sealed and delivered in presence,</p> <p>Jno. Schbey, Jun.</p> <p>Joseph Sturgis, j. i. c.</p> <p>W. J. Minis,</p> <p>Robert G. Greenwood.</p> <p>Benjamin L. Greenwood, in 1841, made and executed his last will and testament, in which, in the event of the death of Duncan L. Clinch Greenwood, (the issue of the aforesaid marriage) before arriving at the age of twenty-one r ears, and without leaving a wife, child or children, living at his death, he bequeathed all of the property included in the marriage settlement to certain legatees named in the will.</p> <p>Benjamin L. Greenwood died, leaving this will unrevoked. Subsequently Duncan L. Clinch Greenwood died, before arriving at the age of twenty-one years, and without leaving a wife,, child or children living at his death. Elizabeth M. M. Greenwood survived him.</p> <p>George L. Twiggs, the surviving trustee under the marriage settlement, filed a bill in Richmond Superior Court, setting forth the foregoing facts; and that Elizabeth M. M. Greenwood claimed the whole of the property, as the distributee and heir a^ law of her son, D. L. C. Greenwood; while the legatees under the will of Benjamin L. Greenwood claimed the property under the said will. The prayer was that these claimants might interplead.</p> <p>Upon the trial of this bill, the presiding Judge charged the Jury, among other things :</p> <p>uThat Mrs. Elizabeth M. M. Greenwood did not assign her right to the property described in said marriage settlement, under the Statute of Distribution of this State, but only conveyed the rights and interests which she had under the marriage settlement; and that though she had the same right under the marriage settlement which she has under the Act of 1843 — or our Statute of Distribution' — yet, that she, only by the instrument, (made subsequent to the divorce) assigned the right she had under the marriage settlement; that she did not assign the interest which was afterwards cast upon her by the Statute; and that as by the conveyance which she did make, she agreed that the terms of the trust under the marriage settlement should cease to operate at the death of Benjamin L. Greenwood; that as the said Benjamin L. contracted to this effect with her, that his representatives are bound bjr such contract; that the property did vest in Duncan L. Clinch Greenwood upon the death of his father, said Benjamin L. and remains the property of the estate of the intestate infant, and is now to be distributed to his next of kin, who Mrs. Elizabeth M. M Greeenwood is.”</p> <p>To this charge, counsel for William J. McBride, administrator, &c. excepted, and has assigned error as follows:</p> <p>1st. That the property under the marriage settlement between Benjamin L. Greenwood and Elizabeth M. M. Scurry and their trustees, did not vest in their child, Duncan L. C. Greenwood, he having been survived by his mother, Elizabeth M. M. Greenwood, (and that E. M. M. Greenwood is not entitled to said property as the heir of her son, she having conveyed her interest to Benjamin L. Greenwood) that said property goes to and vests in the legal representatives or the legatees under the will of Benjamin L. Greenwood, deceased.</p> <p>2d. That by the conveyance made subsequent to the divorce, Elizabeth M. M. Greenwood conveyed all her then and future interest, right and title in the specific property described in said marriage settlement, both in Law and Equity, to Benjamin L. Greenwood for a valuable consideration.</p> <p>3d. That the Act of the Legislature of 1843, subsequent to said conveyance cannot re-invest said property in Elizabeth M. M. Greenwood.</p> <p>4th. That Elizabeth M. M. Greenwood having conveyed all her then and future interest (under the marriage settlement) in said trust property, when the contingency happened, to wit, her surviving her husband and child or children of the marriage, the right she acquired under the marriage settlement upon the happening of such contingency, goes to and vests in the legal representatives or the legatees under the will of Benjamin L. Greenwood.</p> <p>5th. That a contingent interest or remainder (such as E. M. M. Greenwood had under the marriage settlement) may be sold and conveyed, and such sale and conveyance will be enforced in Equity after the event has happened upon which the contingency or remainder vested.</p> <p>6th. That when a trust has been declared and vested in trustees, and the trustees accept and act upon the trust, it will be enforced in Equity.</p> <p>7th. That it is not in the power of the tenant for life, or other party to destroy contingent remainders before they come in esse and vest in the remainder-man.</p>

In Equity, in Burke Superior Court. Decision on demurrer, by Judge H. R. Jackson, May 5th, 1852. William A. Skrine, of Washington County, died, intestate, and Quintilian Skrine became the administrator. Joseph T. Simmons and wife, and others, the distributees of Wm. A. Skrine, in 1851, filed their bill in Equity, in Washington Superior Court.

In Equity, in Muscogee Superior Court. Decision by Judge Powers, November Adjourned Term, 1851.

<p>In Equity, in Muscogee Superior Court. Decision by .Judge Powers, at November Adjourned Term, ÍH51. Writs of error sued out by both parties, aud consolidated by consent, in Supreme Court.</p> <p>Seaborn Jones filed a bill praying an injunction and the appointment of a receiver- — charging in substance as follows: That the Southern Life Insurance and Trust Company, a corporation located in Florida, having certain specified claims on different persons in Columbus, one George ¡'field, the former cashier of the said company, took in payment of the claims certain real estate situated in the said City, and instead of taking titles to the company, caused the titles to be executed to himself, paying no consideration therefor; that Philip T. Schley, as the agent of Field, was controlling the property aud receiving the rents and pi of Its thereof; that he was subsequently, by order of the Superior Court, appointed receiver, to coiled aud hold this fund, subject to tin- order of the Superior Court; and that he had, as such, collected a large amount, which he now held subject to the order of said Court; that complainant being the holder oí bank bilis oí the said company, had sued out attachments thereon, returnable to the Jnyliee’s Court in the 773d District G. M., and had obtaim'd judgments thereon, amounting to C5,800; that those attachments had been levied on the real estate above referred to, to which Field bad interposed a claim, which claim was still pending; that if the said property is found subject, that there are judgment liens older than those of complainant, that would exhaust more than this property would sell for under judgment; that the I file insurance and'['rust Company lias no other property within the jurisdiction of the Courts of this State ; that George Field has .sold his claim to tin: said property since the rendition of the judgments, to Alfred Tversou, William Dougherty and George Ilargnnes, Jr. tor the sum of R5 or 0000, being loss than the value of the eorpv>; of the property, and not over two-thirds of Urn amount, of rents now in ¡he hands of the receiver ; that these assignees were making every effort to get these funds out of the hands of the receiver, and if they succeed, will apply the same to their own use, in■ violation of the trust, and will thereby deprive complainant and the other creditors of all means of collecting their debts. The prayer of the bill was for an injunction, to restrain Schley from paying; over the money in his hands, and also for the appointment of a. receiver, to hold tine funds and collect the future rents, to bo subject to the order of the Court.</p> <p>Upon applying for the sanction of the presiding Judge to this bill, the same was resided by the assignees of Field, and after argument had, the Court granted an order sanctioning the bill, with die condition, that the receiver, Philip T. Schley, should pay over the funds in hi5, hands to the assignees of Field, upon their giving; bond in the sum equal to double the: amount of the Justices5 Court fi./as. oí complainant, conditioned to pay the complainant, (H'-tho property is found subject to the attachments, on the final trial of (he claim) all the rents, issues and profits of said property from the day of the levy to the final sale.</p> <p>To this order and decision, both parties filed exceptions; the complainants assigning as error, that portion of the order allowing the funds to be paid upon bond being given; the defendants assigning as error, the sanctioning of the bill.</p> <p>The two cases were heard together in the Supreme Court.</p>

<p>Ejectment, in Muscogee Superior Court. Tried before Judge Powers, at November'Term, 1852.</p> <p>The heirs at law of Martin Brooks, deceased, brought suit for a lot of land in Muscogee County. The defendants claimed under a Sheriff’s sale of the land, as the property of Martin Brooks.</p> <p>The defendants on the trial offered in evidence a deed made by John C. Mangham, as Sheriff, reciting that by virtue of a fi. fa. issued from the Inferior Court of said County, (of Muscogee) at the suit of James C. Leonard against Martin Brooks, he had lately seized, (this tract of land,) and after being advertised according to law, he did, on the sixth day of June, in the year of our Lord 1843, at the place of public sales in the said County of Muscogee, expose the same at public outcry, when Kenneth McKeagie, &c.”</p> <p>Also, a fi. fa. from the Inferior Court of said County, in favor of James C. Leonard against Martin Brooks, upon which there was entered a levy on this tract of land, signed by “ Theobald Howard, D. Sheriff.” Also, a return of the sale and the disposition of the proceeds, which was signed by no person.</p> <p>Plaintiffs’ counsel objected to the admission of the deed in evidence because it was made by John C. Mangham, and the levy was made by Theobald Howard, D. Sheriff, and there was no evidence that he was, or acted as Deputy Sheriff. Also, because it did not appear in said deed, nor was there any evidence that the said sale was advertised at the Court house door and two or more public places, and was made between the hours of ten o’clock, A. M. and four o’clock, P. M. as required bylaw.</p> <p>All of which objections, the Court overruled, and plaintiffs’ counsel excepted.</p> <p>Plaintiffs’ counsel also objected to the ji. fa. going in evidence, on the ground that it did not appear, nor was there any proof that the lot in dispute was'sold, as there was no date or signature to the entry making a return of the sale. All which objections the Court overruled, and this decision was excepted to by counsel for plaintiffs.</p> <p>Plaintiffs’ counsel requested the Court to charge the Jury, that if they believed from the evidence, that at the time of the levy and sale, Martin Brooks, the defendant in Ji. fa. was dead, and there was no representation upon his estate, and the heirs were all minors, the sale was void.</p> <p>The Court refused so to charge, and plaintiffs excepted.</p> <p>On these exceptions error is assigned.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Iverson, at November Adjourned Term, 1851. This bill was filed, returnable to May Term, 1851. At that term, the Court entered “Usual Rule” upon the Docket, but no order was entered on the minutes.

In Equity, in Muscogee Superior Court. Decision by Judge Iverson, at Chambers, April, 1852. The question in this case arose upon an investigation before Judge Iverson, sitting as a Master in Chancery. In response to an order of the Court, Seaborn Jones and other parties defendants filed a written answer to the matters contained in the order served upon them.

<p>Assumpsit, &c., in Muscogee Superior Court. Tried before Judge Iverson, November Adjourned Term, 1851.</p> <p>Edward Carey, as the assignee of the Bank of Columbus, brought suit against Philip A. Clayton, upon a promissory note for $1,000, payable to A. B. Davis, and indorsed by him to the Bank.</p> <p>Clayton pleaded payment, and also pleaded as a set-off an account current rendered by the Bank of Columbus to P. A. Clayton, which was balanced, the last item on the debit side of which was as follows:</p> <p>“Balance account to new account, $1,159 15.”</p> <p>Defendant notified the plaintiff to produce all the books of the Bank containing any account between defendant and the Bank. In response to which notice, on the trial plaintiff showed that the books were not within his control; having probably been destroyed by fire when the banking house was burned.</p> <p>The Court charged the Jury, “ that although there was nothing due the defendant on the account annexed to the plea of set-off, that account being on its face balanced, and the balance in favor of defendant carried to new account, yet it was an acknowledgment of the Bank of Columbus, that that balance constituted an item in the new account, and that it was incumbent on the Bank of Columbus to show that the said balance of account was paid or absorbed by items or charges against the defendant.”</p> <p>To which charge plaintiffs counsel excepted and has assigned the same as error.</p>

Assumpsit, &c., in Muscogee Superior Court. Tried before Judge Powers, November Adjourned Term, 1851. This was a suit by the Muscogee Railroad Company against John G. Winter, upon a subscription for $10,000 of the Stock of the said Company. When the case was called for a hearing, counsel for Winter moved for a continuance, on the ground of the absence of one Dubois, by whom he expected to prove the location of the present Muscogee Railroad; a fact material to the defence.

Motion to set aside a judgment. In Muscogee Superior Court. Decision by Judge Iverson, May Term, 1852. This was amotion to set aside a judgment in favor of Blanche G. Gibson, against the Central Bank, recovered in the Superior-Court of Muscogee County, on the ground that the Court had no jurisdiction ; the bank being located by its charter, in Baldwin County.

Debt, &c. in Muscogee Superior Court. Tried before Judge Iverson, at November Adjourned Term, 1851. Held: said three hundred and seventy-six shares of bank stock, so transferred by said Holt and Colquitt, to his name, as aforesaid, at the instance of said McDougald, and without the defendant’s knowledge or assent as aforesaid, nor is he in any manner liable therefor, all of which he is ready to verify, and therefore puts himself on the…

<p>In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Iverson.</p> <p>Edward Carey, as assignee of the Bank of Columbus, brought an action at law against Hampton S. Smith, as a stockholder of the Planters’ and Mechanics’ Bank of Columbus, to recover from him the amount of his ultimate liability for the redemption of the bills of the Planters’ and Mechanics’ Bank, held by the Bank of Columbus. The declaration averred that most of the bills were issued in March and October, 1838.</p> <p>Smith filed his bill in Equity enjoining the above suit, and averring substantially, that long before the institution of the suit, the charters of both the Planters’ and Mechanics’ Bank and the Bank of Columbus, were forfeited by the judgment of the Superior Court of Muscogee County; that Carey “has not been constituted and appointed in any legal way or by any legal authority, assignee of the Bank of Columbus, being made by a Board of Directors not legally qualified and appointed ; that the bills sued on were issued and put in circulation when the said bank was in a state of failure and suspension, and so known to be, by the Bank of Columbus;” that these bills were not received by said Bank of Columbus until 1842, when both banks were in a state of suspension, and unauthorized, under their charters, to transact business. Proceedings at the time were pending to forfeit their charters; that when the Bank of Columbus received these bills, they knew that complainant was no longer a stockholder, having transferred his stock long prior to that time ; that said bank positively refused to receive said bills upon the responsibility of the bank or its stockholders, but received them upon the condition that one John Banks and other directors and stockholders of the said Planters’ and Mechanics’ Bank would execute their bond, personally binding themselves to redeem said bills, if the Bank of Columbus would receive them; such bond was executed and the bills received upon the responsibility of this bond ; that this contract was “ fraudulent and improper” on the part of the banks, and ought not to be enforced against its stockholders. The bill then charged as follows :</p> <p>** “ Your orator .states with regard to the stock held in his name, as appears upon the books of said bank, he owned and held in his own right and for his own account only 1425 shares thereof; and as to the balance which appears by said stock account, to have been transferred to him, it was not so, transferred with a view to any ownership thereof by him; that he at no time made any payment therefor, either in money, by note or otherwise, or any promise or contract for payment therefor, except a premium of one dollar per share, to S. A. Bailey, which he paid by the direction of Daniel McDougald. He states that said Planters’ and Mechanics’ Bank was organized, as he believes, under its charter, in the spring of the year 1837; that the stockholders who then took the stock, subsequently declined to prosecute the business of banking, without having issued any bill or incurred any liabilities within the knowledge of your orator, and some of them transferred their stock to your orator; that subsequently, and in the year 1838, it was concluded to prosecute said enterprise, and this defendant was induced, for the benefit'and at the instance of others, to collect together other purchasers of said slock, and in doing so, procured it to be transferred to him, without his assuming any liability therefor, either to the bank or any other person, exceptthe payment to Bailey before stated. This stock, to the number of 3564 shares, thus transferred to your orator, as will be seen by reference to said stock account, was held in his name, the greater portion thereof only a few days, some of it a few hours, and transferred to those persons for whom it was procured, viz: — 200 shares to S. A. Bailey, 600 shares to D. McDougald, 600 to M. W. Perry, 200 to John Banks, 1689 other shares to D. McDougald, and 273 other shares to M. W. Perry; and your orator states that he at no time voted upon or claimed said 3561 shares in his own right; that he was not recognized or considered as the owner thereof by the bank or any of its stockholders, and that the same was transferred to the several persons before stated, before said bank issued a bill or incurred a liability of any sort.</p> <p>“It is proper that your orator in this connection, should state that the 900 shares transferred by him on 27th March, 1838, in equal numbers (300 to each) to John E. Morgan, Wm. A. Redd, and Wm. Redd, senior, were his, and that whatever liabilities may have attended to the ownership thereof, are his, as the same are transferred to and held in the names of the said Morgan and Redd, for your orator’s benefit, and without the intention on the part of the said transferrees in any manner to hold or claim the same for their own account; and that the said stock so held by said Morgan and Redd, was transferred by them or by your orator at their request, as will appear upon the stock ledger and transfer-book, on the 28th October, 1839 — which transfer was made upon the contract and for the exclusive benefit of your orator, and as he believes, without their knowledge. (Here was inserted complainant’s stock account, amounting to 4989 shares.) All of which was transferred prior to the contract with the Bank of Columbus, before set forth. That when the Planters’ and Mechanics’ Bank commenced business in February, 1838, it did so as a suspended bank; that during all the time the complainant was a stockholder, though the bank did not pay specie, it was at all times fully and abundantly able to meet all its liabilities, and did meet them in every instance when called upon, to the satisfaction of all persons having any claims upon it of any character whatever.” **</p> <p>The bill further charged, that for more than two years after the transfer of all complainant’s stock, the bank continued business, “ sorneties paying specie and sometimes not,” and was during all the time solvent; that the persons to whom he transferred his stock, were at the time “for the most part solvent;” that long after he ceased to be a stockholder the Legislature passed an Act relieving the bank from the effect of the suspension, if it would resume and continue specie payment; and that in pursuance thereof, the bank did resume specie payment, but how long it continued so to do, complainant was unable to say; that sometime during the year 1841, in March or April of that year, said bank, as well as the bank of Columbus, failed to redeem their bills i?i specie, and their respective charters were forfeited; that complainant did not give notice as required by the charter, immediately on transferring his stock, but did so long before the final failure of the bank, and before the arrangement between it and the Bank of Columbus, hereinbefore set forth ; that if liable at all, it is only for the ultimate redemption of the bills, and that the assets of the bank in the hands of the assignee had not been exhausted, especially the balance of the capital stock unpaid, amounting to $750,000; that the assignee of the Bank of Columbus had compromised with John Banks and others for their liability for the sum of $6000 ; (the bill sought for discovery as to this arrangement); that the banking house was liable to pay the debts of the bank, and that Carey as assignee, should not go upon complainant until he had exhausted his remedy upon the bond, and the equitable assets in the hands of the receiver. The bill prayed an injunction, and was sworn to by H. S. Smith, the complainant.</p> <p>To this bill, Carey, assignee, demurred on various grounds, and among others, for want of Equity, submitting to answer such portion of the bill as sought for discovery.</p> <p>Subsequently complainant served the defendant with notice of an amendment by which he sought to strike out all that portion of the original bill copied above and included within the asterisks, (**) and to insert in lieu thereof an amended bill, in which, among other things, it was charged, that shortly after the organization of the corporation, it was resolved, “ that in consequence of the derangement of the monetary system throughout the Uni-ed States, it would be imprudent for the bank to make any issue of bills, and therefore (hat the bank would not commence operations, but for the present put out at interest the capital paid in ; that subsequently, it being deemed advisable to call in the capital and commence business, certain stockholders, amounting to 3635 shares, being unwilling to continue their investment, transferred their stock to complainant, merely to be transferred to others as they might desire it, which was accordingly done, before a single bill was issued. The amended bill set out more specifically the arrangement between the Bank of Columbus and the Directors of the Planters’ and Mechanics’ Bank— the giving of the bond by John Banks and o+hers, and charged that this arrangement was made for the benefit of the directors giving the bond, and the bills were received upon their credit and responsibility; that Carey, as assignee, has since released the obligors in the bond from all liability thereon, and is now seeking to make the stockholders responsible for the bills received upon the faith of this bond, by the Bank of Columbus.</p> <p>Carey filed a demurrer to the bill as amended, to the mode of amending said bill, and as to the relief prayed for, offering to answer the remainder of the bill.</p> <p>The hearing of the demurrers, and the motion to amend came on to be heard together, when complainants moved still further to amend, by striking out the allegation in the original bill as to the resumption of specie payment by the bank, and also the words, “sometimes paying specie and sometimes not.”</p> <p>Upon argument had, the Court below7 alknved all the amendments proposed, and overruled the demurrer on all the grounds taken.</p> <p>This decision is assigned as error.</p>

<p>[I.] Persons owning lands as tenants in common, are incorporated for the purpose of selling the lands held in common, and making improvements thereon, and the charter is accepted: Held, that the title to the property vests in the corporation, and that one of the tenants cannot maintain a suit to enjoin a trespass on the same, and that the corporation alone can sue.</p> <p>[2.] Held, also, that one of the original tenants cannot maintain a suit to enjoin a breach of covenant entered into by a purchaser from the corporation, of portions of such land, with the corporation.</p> <p>[3.] Persons exercising the corporate powers of a corporation may, in their character as trustees, be held liable in a Court of Chancery, for a fraudulent breach of trust; and a stockholder,inacasewherethedirectorscollude with others who have made themselves liable by negligence or fraud, and refuse to prosecute; or when they are necessarily parties defendants, may file a bill on his account and in behalf of the other stockholders ; in such a case, the corporation must be made a party defendant.</p>

In Equity, in Muscogee Superior Court. Decisions by Judge Iverson, at Chambers, 1852. Consolidated by consent. Wm.

In Equity, in Sumter Superior Court. Decision by Judge War-ken, on application for the appointment of a receiver, at Chambers, June, 1852. . .

<p>Certiorari, in Stewart Superior Court. Decision by Judge Iverson, April Term, 1852.</p> <p>Wm. M. Hardwick, as executor of Daniel Gilbert, brought suit against Thomas Gilbert, for the recovery of the purchase money for certain negro slaves sold by said Hardwick, as the executor of Darius Gilbert, deceased. In the declaration, he described himself as “Wm. M. Hardwick, executor ofDarius Gilbert, deceased;” made proferí of his letters testamentary, and prayed process to issue, to answer him in a suit, as executor, fyc. The suit was returnable to the Inferior Court of Stewart County. At the April Term, 1844, of said Court, the plaintiff had an entry made upon the Bench docket, suggesting his removal from the executorship of said estate. The cause remained in this condition until July Term, 1851, of said Court; when, upon motion of defendant, it was ordered that parties be made, at the next term, or the case be dismissed. At January, 1852, no parties being made, nor any effort to make • parties, the case was dismissed. To this order of dismissal, Hardwick sued out a writ of cer- ' tiorari.</p> <p>At the April Term of the Superior Court, the certiorari came on to be heard, when defendant moved to dismiss 'the writ, on the ground that Hardwick was not the proper party to sue out a writ, but the same should be sued out by the administrator de bonis non of Darius Gilbert.</p> <p>The Court overruled the motion, and counsel for Gilbert excepted.</p> <p>Upon hearing the return to the certiorari, the Court sustained the writ, and ordered the case re-instated; holding—</p> <p>1st. That the right of action for the purchase money of the property sold, accrued to Hardwick individually, and did not pass to the administrator de bonis non.</p> <p>2d. That the entry made on the docket, at Hardwick’s instance, and his permitting the cause to remain stationary for fifteen successive terms of the Court, did not amount to an abandonment of the cause so as to work a discontinuance.</p> <p>To which decision Gilbert excepted.</p> <p>On these several exceptions, error has been assigned.</p>

<p>Trespass on the case, in Stewart Superior Court. Tried before Judge Iverson, on motion for new trial, April Term, 1852.</p> <p>This was an action on the case, brought by Isaac McCrary, against John B. Kendrick, for the seduction of plaintiff’s daughter, per quod servitiam amisit. The Jury returned a verdict for the plaintiff for $1,049; whereupon, defendant’s counsel moved for a new trial, on the ground “ that the finding of the JmW was contrary to law and evidence submitted, in this, viz: that it was proven at the trial, that the daughter of plaintiff was twenty-one years of age at the time the seduction took place, and the actual damage to the plaintiff, proved on the trial, was only forty-nine dollars; whereas, the Jury gave one thousand dollars vindictive damages.”</p> <p>The Court below refused the motion for a new trial, and this decision is assigned as error.</p>

Debt, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1852. Held: that the rule nisi could not be amended, and this decision is assigned as error. On hearing the original motion for a new trial, the Court refused to make the rule absolute. And to this decision defendants excepted. And upon these several exceptions, error has been assigned.

Indictment for murder, in Stewart Superior Court. Tried before Judge Iverson. May Term, 1852. The plaintiff was placed upon his trial under an indictment, charging him with the murder of William R. Morris.

<p>Claim, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1852.</p> <p>A fi.fa. in favor of Shields & Ball vs. G. H. Croxton, was levied on a tract of land in Stewart County, to which William Rushin interposed a claim. Upon the trial, the plaintiffs in fi.fa. offered in evidence, a copy deed from John Stanton to James Moore; to which plaintiffs counsel objected, on the ground that the probate thereof was not sufficient to authorize its registry; the subscribing witness swearing, u that he saw John Stanton sign and seal the deed, and for the purposes therein named; and that he also saw Duke Hamilton and W. A. Mott, as witnesses to the same.” The Court admitted the deed, and this is the first error assigned.</p> <p>Plaintiff in fi.fa. then proposed to read in evidence a copy of a deed from M L. Brown to G. H. Croxton, to which claimant’s counsel objected, on the ground that the probate thereof, was insufficient to authorize its registry, the subscribing witness swearing, “ that he saw M. L. Brown- assign the within deed, and that E. D. H. assigned with him at the same time, as a subscribing witness.” The Court admitted the deed, and this is assigned as error.</p> <p>Plaintiff’ in fi. fa. then proposed to read in evidence an alias fi.fa. (under which the levy had been made,) issued by F. D. Wimberly, Clerk of the Inferior Court of said County, on the — day of July, 1846, in lieu of an original, alleged to -have been lost; also, an order passed by the said Inferior Court, at its July Term, 1846, requiring the Clerk to issue an alias fi.fa.,</p> <p>Counsel for claimant objected to this alias fi.fa. on the ground that a copy of the lost original should have been established, as provided by the Statute; and that the Inferior Court had no authority to order an alias fi. fa. issued. The Court overruled the objection, and this decision is assigned as error.</p> <p>The claimant proved by one Daniel Matheson, that he, as Sheriff, in 1842, raised a large sum of money from the property of Croxton, under a certain fi.fa. against him, and that the owner and assignee of they?, fa. now levied, notified him, as Sheriff, to hold up the money so raised, as he claimed it, under this fi. fa.; that he did so hold it up, and afterwards, by the instructions of the assignee, paid out the fund, ($80 or $100) to others. The Court, in its instructions to the Jury, charged them, “ that forasmuch as the fi.fa. in favor of Shields & Ball was not levied, and did not raise and bring this fund into Court, but the same was raised under a junior fi. fa., the payment of the money by Matheson, under the instructions of the assignee of this y?, fa. did not amount to a payment or satisfaction pro tanto, of this fi. fa. To-which charge counsel for claimant excepted, and has assigned the same as error.</p> <p>Some time after the Jury returned, one of them came into Court with the Bailiff, and stated to the Court, that he and his fellow Jurors disagreed as to whether the Shields & Ball fi. fa. had been levied at the time the money was raised, about which Matheson testified. Whereupon, the Judge told the Juror, that there was no evidence introduced, going to show that the execution of Shields & Ball had been levied, and brought the said fund into Court. To which proceeding by the Court, claimant by his counsel excepted, and has assigned error thereon.</p>

<p>[1.] Wherethe securities of one charged with a criminal offence, surrender their principal in open Court, in discharge of their liability, as provided by the Act of 1831, the Solicitor General is not entitled to charge commissions on the amount of the bond or forfeited recognizance, but is only entitled to charge the fee oí Jive dollars, ns prescribed by the Act of 1839, and no more.</p> <p>[2.] All officers charging costs, and exacting its payment from the pocket of the citizen, must always shew the authority of the law to do so.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Iverson. May Term, 1852. This bill was filed by Carey, as assignee, against several defendants, stockholders in the Chattahoochee Railroad and Banking Company. At May Term, 1852, counsel for complainant moved the Court for leave to strike out the name of John W. Sutlive, one of the defendants, and to dismiss the bill as to him, upon the following showing: 1st. The affidavit of Wm.

In Equity, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1852. At November Term, 1848, of the Superior Court of Muscogee County, the “ usual rule” to plead, answer and demur, was granted in this case.

<p>In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Iverson. May Term, 1852.</p> <p>Sophia H. Shorter, the widow of Eli S. Shorter, and Reuben C. Shorter, John A. Urquhart and wife, and Virginia Shorter, by her guardian, H. S. Smith, filed a bill, as the distributees and heirs at law of Eli S. Shorter, charging that Eli S. Shorter died possessed of a large estate; that Sophia H. Shorter and James H. Shorter, were appointed and qualified as the administrators on his estatethat James II. Shorter was the only acting administrator, and had the sole, exclusive, and entire administration of said estate, to the exclusion of said Sophia H. who did nothing more than qualify as such ; possessed himself of the whole estate, and by various fraudulent devices (specially set forth in the bill) converted to his own use the whole of the estate; that by false and fraudulent representations, he procured from the complainants, (who had great confidence in him,) full acquittances and receipts for a mere nominal consideration; that James H. Shorter was dead, and George Hargroves was his regularly appointed administrator. The prayer of the bill was for an account. To this bill an answer was filed, to which was appended an exemplification of the returns and accounts of James H. Shorter, as administrator. Complainants, by leave of the Court, amended their bill, and sought therein to surcharge and falsify many of the credits allowed in the returns.</p> <p>To the bill, as amended, a demurrer was filed—</p> <p>1st. Because it appears from the bill, that Sophia II. Shorter, the surviving administrator of Eli S. Shorter, is a necessary party to the bill, and is not made so in her representative capacity.</p> <p>2d. Because the heirs at law are not the proper parties to ask for an account upon the estate; but the surviving administratrix is the proper party.</p> <p>3d. Because Virginia Shorter, one of the complainants, being an infant, can sue only by next friend, or guardian ad litem.</p> <p>4th. That the following allegations in the bill are not sufficiently certain and definite: •</p> <p>I. “Your orators charge that there .were about fifteen thousand acres of land belonging to the said Eli S. Shorter, in the State of Mississippi, of the value of one hundred thousand dollars, or some such large amount, all of which with the title and evidences of the title and interest of said Eli S. went, as before charged, into the hands and possession of said James H.; that he and his administrator since his death, have sold a portion of said lands and received therefor the sum of $50,000, or some such sum, and complainants here ask that the defendant may discover and distinctly set forth what lands, describing by schedule or otherwise each tract and its value, and what portion has been sold, and at what price, and also the evidence of title to the same in his possession or control; what portion was sold to said Cowles, or taken back in settlement of said claim, and otherwise belonged to Eli S. Shorter.</p> <p>2. “That the said James H. Shorter had misapplied the funds and effects of said estate of the said Eli S. — in this, that he paid, as shown by voucher No. 7, in the return for the year 1837, five hundred dollars, when there was no debt due from said estate, and no legal evidence of the same furnished by said James H.” (The item No. 7, was as follows : “ Cash paid Eli Shorter’s subscription to open street, by H. S. Smith, $500 00.)</p> <p>3. “ Also the same in regard to payment, as shown by voucher No. 15, in same return. (No. 15 was as follow’s: “Cash paid Arthur B. Davis, agent for T. W. Smith & Co. This amount of cash indorsed by them to Eli S. Shorter, $19,950 00.)</p> <p>4. “ Also the same in relation to payment, as shown by voucher No. 22, in said return.” (No. 22 was as follows: “J. H. Falconer’s note endorsed by Eli Shorter, payable at the Bank of Pensacola, in Apalachicola, and interest paid J. S. Calhoun, $3022 25.)</p> <p>5. “ That he paid E. L. DeGraffenreid as shown by voucher No. 46, in same return, when the said DeGraffenreid was indebted to said estate of much larger sum, and which the said James H. has returned as insolvent. (No. 46 was as follows : “ Cash advanced E. L. DeGraffenreid on account last sickness, |98.”)</p> <p>6. “ That the payment, as shown by voucher No. 47, in said returns, was made illegally and improperly, for the reason that there was no debt against said estate, and no sufficient evidence-of it to authorize payment by the administrator. (No. 47 was. as follows: “Eli S. Shorter, account with Bank of Columbus,, for overdraw and interest, $13,205 33, and stock, $6,825 06,, making $20,030 20.”)</p> <p>7. “That the payment, as shown by voucher No. 50, in same-return, was made ,to Jerry Cowles, when the estate held against him a note of more than double the amount of said debt, and which was never paid to the estate.” (No. 50 was as follows: “'Paid Eli S. Shorter’s note to Seaton Grantland, due June 29, 1836, and interest, $13,287 59-”)</p> <p>8. “That he paid, as shown by voucher ifo. 62, same return,, when there was no debt and not sufficient evidence thereof to-authorize the same.” (No. 62 was as follows: “ Cash paid Dan’l Carpenter, in part for money collected for him by Eli S., Shorter, as his attorney, $1,000.”)</p> <p>9. “ That in fact there was no payment made, as per voucher No. 82. (No. 82 was as follows: “ Cash sent per mail to Sarah W. Harris, executrix, as per request, $200.”)</p> <p>10. “ That the payment made, as per voucher No. 84, in same1 return, was unauthorized, as the same was no debt against said estate.” (No. 84 was as follows: “ Paid Moore & 'Paver’s, account on Shorter, Tarver & Co., Eli S. Shorter $225 83.”)</p> <p>11. “ That the said James H. ought not to be allowed credit, as claimed in said return, for voucher Nos. 86, 91, 92 and 93,, as there is no evidence of such payments, and they were not debts against said estate, if paid.” (These were moneys paid and advanced to Mrs. Shorter and Reuben C. Shorter, for tuition, &e.”)</p> <p>12. “ That the payment, as shown by voucher No. 107,, ira return of said administrator, for 1838, was made without sufficient evidence of the debt against said estate, and paid on a note on Pearce N. Lewis, purchased by said James H. with the funds of said estate, at a discount of 25 per cent, or some such large discount.” (No. 107 was as follows: “ Paid executor and executrix of Dan’l Carpenter, in full of their account of money collected, by Eli S. Shorter, on the case of St. John & Lewis vs. Norton & Mitchell, $3,652 75.”)</p> <p>13. “ That for payment, as shown by voucher No. 147, in said return, there was no evidence the same was ever paid.” (No. 147 was as follows : “■ Cash sent Mrs. Sarah H. Harris per mail, by her request, in part per account, $200.”)</p> <p>14. “ That the payment made, as claimed by voucher No. 170, in said return, is illegal, because Thomas E. Tygart was at the time largely indebted'to the estate, and which was never collected.” (No. 170 was as follows : “ Cash paid Thomas E. Tygart, $47.”</p> <p>15. “ That the payment, as claimed by voucher No. 178, in said return, is improper, as the claim paid was not a debt against said 'estate, and because no such payment was in fact paid.” (No. 178 was as follows: ££ Paid amount of Talcomb & Kimbrough’s account on Shorter, Tarver & Co. paid $691 33. Eli S. Shorter, ■} paid $230 44.”)</p> <p>16. “ That the payment, as claimed as per voucher No. 204, in return of 1839, is illegal and improper; because the claim paid was not a debt against said estate, and because no such payment was in fact made.” (No. 204 was as follows: ‘£ Charles E. Mims’ account paid, $766 35.”)</p> <p>17. “ That the same is true in regard to the credit claimed for voucher No. 229 ; that it was no claim against the estate— was never paid by James H. Shorter, and was improperly allowed by the Court of Ordinary.” (No. 229 was as follows: ■“ My account for sundries furnished for the family, $1949 98.”)</p> <p>18. “ That the payments to D. Golightly, Holt & Echols, and Thomas Foster, were extravagant and unnecessary, and improperly paid and allowed.” (These items were as follows : ££ David Golightly, account paid, $724 92.” “ Colquitt, Holt and Echols, account paid, $500.” “ Cash paid Thomas Foster, Esq. on account for professional services, $1,300.”)</p> <p>19. “ That the payment claimed, as per voucher No. 277, was illegal and improper: because the plaintiffs in said fi. fa. and owners of said claims were at the time largely indebted to said estate) and the administrator should have 'set off the same against said claim.” (No. 277 was as follows: “ Cash paid judgment, Jacobi & Hani vs. James H. Shorter, administrator, and Sophia H. Shorter, administratrix, $443 75.”)</p> <p>20. “ That the payment, as claimed by voucher No. 320, return of 1842, was illegal and improperly allowed ; because the claim was not a debt against the estate, and no evidence of that fact before the Court of Ordinary, nor that the same had been paid.” (No. 320 was as follows: “ Cash paid Francis T. Anderson, attorney at law, toward paying cost and expenses of suit in Virginia vs. Preston & Nelms, $200.”)</p> <p>21. “ That the payment, claimed by voucherNo. 271, is illegal and improper, in this, that the claim was not a debt against said estate; that the proof before the Court of Ordinary was insufficient to establish that fact; that the administrator presented the drafts to himself and paid the money to himself, if any was paid — but complainants deny that any ought to have been paid, or was in fact paid ; and that no credit ought therefore to have been allowed said administrator therefor.” (No. 271 was as follow's: “Paid Eli S. Shorter’s acceptance of John S. Scott’s drafts, viz: one for $1861 12 — interest $75 97; also one originally $5,713 89, on which are several credits, leaving amount due thereon, $4,999 96; making together $7,617 05.”)</p> <p>22. “That the credit claimed and allowed, as per voucher No. 290, in same return, is illegal and improperly allowed, for that there was no mistake in the original return ; that the original credit given the estate was correct, and the correction illegal and erroneous.” (No. 290 was as follows : “This amount erroneously credited to the estate on the 4th April, and 4th May, 1837, and 1st January, 1838, being John S. Scott’s proportionate part of the notes of Alfred Shorter and Obadiah Echols, as appears by intestate’s statement in writing, $5,472 00.”)</p> <p>23. “ Your orators charge that in addition to the foregoing specifications, are numerous acts of mismanagement and malfeasance of said administrator, as shown by his said returns, and which they ask in the hearing of this case may be correct-fed.”</p> <p>24. “That the said administrator show by his returns to have paid claims due others, that were not debts against said estate.”</p> <p>25. “ That he has paid accounts and demands bearing no Interest against said estate, and has left unpaid notes and other «demands on which interest was accruing.”</p> <p>26. “ That he sold the effects of said estate at a discount', viz: ¡the claim against Echols & Thornton, which he was-not flowed to do by law, and for which there was no necessity.”</p> <p>27. “ That the payment claimed by voucher No. 140, in return of 1S38, was made, if at all, without authority of law, and improperly allowed by the Court of Ordinary, in this, that the debt (if it existed at all, which complainants deny,) was in the shape of drafts drawn by said Eli S. which was the proper and the only evidence of said debt; that at the time said administrator paid said debt, the same was not proved against said estate ; that it was paid, if at all, in the shape and form of an account and large amounts of interest charged and paid; and your orators say that the payment made by said administrator, was made in the notes of Philo D. Woodruff or James N. Bethune, or Woodruff & Bethune, belonging to said estate, and nothing else; that no money was paid nor other notes than those above stated.”</p> <p>28. “ That the several credits claimed by said administrator in said returns, for payment to the heirs of Stephen W. Harris,, are improper, for that credit has been given twice for the same-payment.”</p> <p>29. “That the said administrator rented the store-house and real estate, and hired out the negroes of said estate, to insolvent persons, and required no security, who never paid for the same, to the great loss and injury of said estate.”</p> <p>30. “ That he has failed to collect the debts due said estate, when he could have done so.”</p> <p>31. “That he has returned notes and demands as insolvent, which were not so, to .wit: the notes of Woodruff & Bethune, and others, as shown by his return, and by his neglect has permitted the Statute of Limitations to bar the right of the heirs of the said Eli S. to sue for and recover said demands, and taken no steps whatever to present the same.”</p> <p>32. “And your orators further charge, that the said James H. has collected and received from the sale of a house and lot, in the Town of Rome, in said Slate, belonging to said estate5 in the early part of the year 1844, the sum of onethousand dollars, which is not accounted for in said returns.”</p> <p>33. Another ground of demurrer taken, was that the allegation of complainants, that “Ihey did not suspect anything improper, until a short time before the death of said James H. Shorter, and entertained but a suspicion, which accidental circumstances had created, and which induced them to look into his conduct; which examination was commenced, but mainly executed since his death, and the result of which is shown in the charges, in the original and amended bill.”</p> <p>34. “That the said James H. falsely represented to complainants the quantity and value of said Mississippi lands.”</p> <p>35. There is no offer in the bill to do equity.</p> <p>The Court, upon hearing argument on the demurrer, sustained the same, on each and all of the grounds therein taken, and on this decision error has been assigned.</p>

<p>[1.] When a party is surety on a bond given by a Deputy- Sheriff to hie principal, and has taken a mortgage on personal property for bis indemnity, and the High Sheriff and the Deputy have collected money, for -which the High Sheriff is sued, and the Deputy has departeeftho jurisdiction, and the mortgage property has come into the possession of athird person upon a pretended claim of right, who is charged with an intention to remove it beyond the j urisdiction of the Courts, a Court of Equity will restrain him by injunction, and require bond and security for its forthcoming, to answer to the claim of the mortgage.</p>