Volume 12 — Georgia Reports

Indictment for carrying concealed weapons. Motion in arrest of judgment, in Coweta Superior Court. Decided by Judge Hill, March Term, 1852. The plaintiff in error was placed upon his trial, and found guilty of “ carrying concealed weapons,” at the March Term, 1852, of Coweta Superior Court.

In Equity, in Coweta Superior Court. Motion to dissolve injunction. Decided by Judge Hix.l, March Term, 1852. The bill charges, that Albert Sears, in the year 1844, in Heard Superior Court, obtained judgment and execution against the complainant, Michael C. Summerlin, and the defendant, William B. W. Dent, as his security, for the sum of $2500 as principal. Property of Summerlin was sold under the fi. fa. to the amount of $929 12 cents, and credited on the same.

<p>In Equity, in Coweta Superior Court. Decision on demurrer, made by Judge Hill. March Term, 1852.</p> <p>This was a bill for “ discovery, account and relief,” brought by John C. Johnson, as the administrator of Josiah Woods, against John and Thomas M. Bowen, as executors of Christopher Bowen, deceased, returnable to the September Term, 1850, of Coweta Superior Court.</p> <p>The bill alleges that in the year 1821, Josiah Woods, of Franklin County, in the State of Virginia, made and executed to Christopher Bowen, then of Oglethorpe County, a power of attorney, to sell, dispose of, and convey, in the name of said Woods, and for his special use, a certain tract of land in the Count} of Clarke, containing one thousand acres, which had been granted to the said Woods and one Early — it being the tract of land whereon the Town of Watkinsville, in the said County of Clarke, is situated. Under the powmr of attorney, Bowen went on to sell lots to various persons, executing deeds therefor, running from the year 1821 to 1843, and received the purchase money therefor, amounting in the aggregate to a large sum. The bill alleges that Bowen departed this life in the year 1845, without having accounted to the said Woods for the moneys received by him, in the sale of the land.</p> <p>Woods died in the year 1849, in the State of Virginia, and complainant was appointed his administrator, on that part of his estate lying within the limits of the State of Georgia. The bill prayed that the defendants, as the executors of Christopher Bowen, might be decreed to account to the complainant, for the money received by Bowen in his life time, from the sale of the lands of Woods.</p> <p>To this bill, the defendant filed a demurrer, with specifications, among which was that of the Statute of Limitations.</p> <p>Upon the hearing of the demurrer, the Court overruled the same, and counsel for defendant excepted, and assigned that decision as error.</p>

Assumpsit, in Coweta Superior Court. Tried before Judge Hill. March Term, 1852. This was an action of assumpsit, brought by John M. Dorsey against James L. Alexander, on a note given for the rent of a storehouse. The defendant filed the plea of “eviction.” On the trial, it appeared in evidence, that Dorsey was the owner of a brick building, containing various rooms, both below and above stairs, situate on Hill street, in the City of Griffin, Spalding County.

In Equity, in Twiggs Superior Court. Tried before Judge Powers, March Term, 1852. James R. Lowry died, and Thomas J. Perryman became administrator — Hardy Durham being the surety upon his bond.

Debt, in Coweta Superior Court. Tried before Judge Hill. March Term, 1852. This was an action of debt, brought by Henry Henderson, against Hillsberry R. Harrison, and Britain Sims, sen. as security, on a promissory note for $>800 principal, dated the 15th day of January, 1842, and due “ one day after date.” The defendant filed the plea of set-off and payment. On the trial, the plaintiff introduced the note in evidence, and closed his case.

<p>[1.] The person having the highest number of legal votes, is entitled to hold the offices of Clerk and Treasurer of a Municipal Corporation, whether a resident within the City at the time of hia election and qualification or not, provided the charter contains no limitation or restriction to the contrary.</p> <p>[2.] A person receiving a minority only of the legalvof.es polled, is not entitled tobe installed into an office, notwithstanding the incumbent be removed, on account of some personal disqualifications. Under such circumstances, a new election will be ordered.</p> <p>[8.] Municipal Corporations should not be interfered with in their internal police and administrative government, unless some clear right has been withheld, or wrong perpetrated.</p>

<p>Indictment, in Dooly Superior Court, for an assault with intent to commit a rape. Tried before Judge Powers. April Term, 1852.</p> <p>At the April Term, 1852, of Dooly Superior Court, Elisha Wade was tried and convicted of an assault with intent to commit a rape.</p> <p>Counsel for the defendant moved for a new trial, upon the following grounds.</p> <p>1st. Because John Lashly, one of the Jurors who tried said cause, since the trial of the same, has said to John D. and William R. Dawson, and various other persons, that before the trial his mind was fixed and made up as to the guilt of the defendant, and which was not known to the prisoner till after the trial.</p> <p>2d. Because the Court erred in allowing the Solicitor General to lead the witness by asking her if the defendant attempted to strip up her clothes, after prisoner’s counsel had objected, no objection being made by prisoner.</p> <p>3d. Because the Court erred in this, that after the Jury had retired to their room to make up their verdict, and after having remained there sometime, to call them back into Court, and reading over the written testimony as taken down by the Court to the Jury, and without the consent of prisoner’s counsel, and while prisoner was absent.</p> <p>The following affidavits were read, in support of the first ground:</p> <p>GEORGIA, Dooly County.</p> <p>Personally came before me, John D. and Wm. R. Dawson, who, after being duly sworn, saith that on yesterday in a conversation with John Lashly, one of the Jurors who set upon the case, and after the trial and conviction of Wade, they heard the said John Lashly say that he was sorry he set on the case, and that if he had been put upon triors he would not have set upon said cause, because his mind was made up before, against the prisoner. JOHN D. DAWSON,</p> <p>WM. R. DAWSON.</p> <p>Sworn to before me, April 18, 1852.</p> <p>H. H. Bostwick, J. P.</p> <p>GEORGIA, Dooly County.</p> <p>Personally appeared before me, Stephen W. Pearce, who being sworn, saith that as well as he recollects, that on Tuesday of the first week of the present session of the Superior Court of this County, and before the impannelljng of said Jury to try said cause, he heard John Lashly say, that he, from what he understood, believed the defendant, Elisha Wade, was guilty, and that there was no chance but for him to go to the penitentiary.</p> <p>S. W. PEARCE.</p> <p>Sworn to in open Court, this</p> <p>the 22d day of April, 1852.</p> <p>Robert B. Davis, Cl’k.</p> <p>The Court refused to grant the motion for a new trial, and this decision is assigned as error.</p>

Assumpsit, in Houston Superior.Court. Tried before Judge Powers, April Term, 1852. To the July Term, 1847, of Houston Inferior Court, John B. Ross commenced his action against James A. Everett, and one William H. Lee, as partners, on a promissory note for ‡206 67. Everett alone was served, “ non est inventus” being returned as to Lee. The defendant pleaded the general issue, and also that no partnership existed between himself and Lee.

Debt, on Sheriff’s bond, in Pike Superior Court. Tried before Judge Stark. This was an action of debt brought by Prothro & Kendall, against Matthew Orr'and his securities, upon the official bond of Orr, as Sheriff of Pike County, for money alleged to have been collected by him on a fi. fa. in favor of Prothro and Kendall, against one Joseph B. Askew.

<p>[1.] A writ of error will not lie to the judgment of the Court granting a rule nisi for a new trial; such judgment not being final.</p>

<p>Complaint, in Dooly Superior Court. Tried before Judge Powers. April Term, 1852.</p> <p>This was an action brought by the plaintiff in error, against the defendant, upon an open account, under the form prescribed by the Act of 1847.</p> <p>On the trial, it appeared in evidence, that the plaintiff taught school in the year 185 — , and the defendant, as executor, had the management of the minor children of James Buckalew, and sent them to school to the plaintiff. It also appeared that the defendant signed “ school articles,” and that the plaintiff was prevented from teaching the whole time stipulated, by reason of sickness, which latter evidence wras rejected by the Court; and the Court allowed the defendant to take a verdict, on the ground that in Georgia, “where there is a contract either verbal or written, and where the contract has been broken by either of the parties or by providential causes, neither of the parties can treat the contract as null, and sue on a quantum meruit, but must sue on the contract, and set out in the pleadings the facts as they exist.” Which decision and rulings are assigned as errors.</p>

Trover, in Upson Superior Court. Tried before Judge Stark, May Term, 1852. This was an action of trover, brought by George W. Cook, against Travis A. D. Weaver, for the recovery of a negro man slave named Ben.

Rule against Sheriff, in Heard Superior Court. Decided by Judge Hill. April Term, 1852. Wilson W. Brooks, as administrator of George M. Smith, brought an action of trover, for certain slaves, against Charles Foster and Nicholas Tompkins, as his security on the appeal, for the negroes in controversy and for $3500.00 hire. Foster was insolvent. William Philips held executions against Foster, amounting to some $900.00.

<p>Action on the case, in Heard Superior Court. Tried before Judge Hill, April Term, 1852.</p> <p>Wilson W. Brooks, as administrator of George M. Smith, brought an action of trover, against Charles Foster, for the recovery of seventeen negroes.</p> <p>Nicholas Tompkins became the security in said case, of Foster on the appeal, pending which, Tompkins, becoming alarmed, took steps to require Foster to give bond and security for the forthcoming of the negroes, to answer the final judgment of the Court, in the said action of trover.</p> <p>In order to induce Pleasant H. Whitaker and Archibald M. Wood, to become his securities, he entered into, and executed with them, the following agreement:</p> <p>“ GEORGIA, Heard County.</p> <p>This agreement, entered into this the 23d day of December, 1846, between Pleasant H. Whitaker and Archibald M. Wood, of said State and County, of the onepart, and Charles Foster oflhe same place, of the other part, witnessed) that the said Whitakerand Wood on their part, agree to become securities on a bond for the said Foster, to the amount of $10,700.00; said bond conditioned for the forthcoming of certain negroes, seventeen in number, named in said bond, to answer a-judgment, which may be obtained in an action of trover pending in the Superior Court of said County, in favor of Wilson W. Brooks, administrator of George M. Smith, against said Foster; and the said Foster agrees on his part, that for and in consideration of the said Whitaker and Wood becoming his securities as aforesaid, that he will deliver into their immediate possession, the following named negroes, to wit: Anthony, Daniel, Ben,Dean, Abner, Watt, Wesley, &c., &c. The said Whitaker and Wood, to have and to hold the said negroes, and to have the full power, control and profits of said negroes, until the termination of the action of trover aforesaid ; and the said Foster further agrees on his part to deliver into the possession of the said Whitaker and Wood, a negro girl, Jane, mentioned also in said bond, in case B. D. Thomas-son does not give bond and security for the forthcoming of said negro, on the same conditions, for the consideration, aforesaid, and that on his failure to do so, that he will, at the expiration of two months from the date aforesaid, deliver into the possession of the said Wood and 'Whitaker, a negro man named Jordan, on the same conditions.”</p> <p>Under this agreement, Wfhitaker and Wood took possession of the negroes, and held them for several years, and received a large amount of money for their hire.</p> <p>Foster was cast in the action of trover, and judgment was rendered against Foster and Tompkins, as security, for the negroes, and $3500.00 for hire. Foster being insolvent, Tompkins was compelled to pay the hire. Whitaker and Wood delivered up the negroes, but refused to pay over the hire received by them.</p> <p>The agreement entered into between Foster and Whitaker and Wood, was assigned to Tompkins, arid this action is brought on that agreement, in the name of Foster, for the use of Tompkins, against Whitaker and Wood, to recover the hire of the negroes.</p> <p>On the trial, the plaintiff offered in evidence the “ agreement,” between Foster and Whitaker and Wood.</p> <p>The defendants objected to its introduction, on the ground— “ That by its terms, the hire of the negroes accruing pending said action of trover, vested absolutely in the defendants, and they were not liable, under any circumstances, to account for the same, or have it forthcoming to answer the judgment in said action of trover.”</p> <p>The Court sustained the objection, and ruled out the agreement, and this decision is assigned as error.</p>

In Equity, in Houston Superior Court. Decision on demurrer, by Judge Powers. April Term, 1852. The bill alleges that on the 6th day of January, 1849, Kendrick purchased of Means, lot of land number 176, in the 13th district of Houston County, for which he agreed to pay #1200. 00, and received his bond for titles.

[1.] To i’ender a witness incompetent, on the ground of interest, it must be shown that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action.

In Equity, in Troup Superior Court. Decided by Judge Hill, May Term, 1852. Benjamin S. Jordan had sued Mary J. Jordan, administratrix of Warren Jordan, in an action of debt on a note, in the County of Troup. This bill was filed to enjoin said action, and also to compel Benjamin S. Jordan and Parish Carter, to account, as to sundry transactions, in which it was alleged, that they, as confederates, had injured Warren Jordan, when living, and his estate since his death.

<p>Motion to enter an appeal, in Henry Superior Court. Decided by Judge Stark. June Term, 1852.</p> <p>At October Term of the Superior Court of Henry County, 1851, the case of Wm. F. Crew vs. John Neal and others, was tried, and a verdict found for complainants. The Court adjourned on Friday, the 17th of the month. Between the hours of 12 o’clock on the night of the 21st, (Tuesday,) and one o’clock, of the morning of the 22d of the same month, the Clerk was aroused by a messenger, sent by defendant’s solicitor, who presented the affidavit of one of defendants, to procure an appeal, as a pauper. It appeared that the messenger had some difficulty in finding the Clerk, and lost some time in the search.</p> <p>Defendants’ counsel insisted that the appeal should be entered:</p> <p>1st. Because it was made and sent to the Clerk, before the expiration of four days.</p> <p>2d. Because Sunday should not be counted in estimating the four days allowed by the Statute.</p> <p>The Court refused the motion, and the decision is assigned as error.</p>

<p>[1.] Where a bill was filed against a defendant to account and pay over a certain sum of money in his hands, who admitted he received the money, but claimed to retain it under a contract or agreement made between himself and his testator in his life time, in consideration of certain valuable services to be rendered by him, which he alleged had been performed; and on the trial of the cause, the Court instructed the Jury, as to the law applicable to voluntary parol gifts, and not as to the law applicable to contracts or agreements; field, that this was error; that the parties were entitled to have their cause tried according to the law applicable to the issue made by the pleadings, and a new trial must be granted.</p>

Debt, in Bibb Superior Court. Tried before Judge Powers, May Term, 1852. This was an action of debt, brought by the plaintiff in error against the defendants, as directors of the Commercial Bank at Macon.

Ca. Sa. in Bibb Superior Court. Motion to continue. Decided by Judge Powers. May Term, 1852. Samuel Dawson having been arrested by virtue of a ca. sa. in favor of Wm. H. May & Co. gave bond and security to appear and take the insolvent debtor’s oath, and gave plaintiffs notice, and filed for his schedule the following paper: W Sa. and arrest, in Bibb Superior Court.

<p>[1.] Where L, as the guardian of]?, on a settlement with J, for certain negroes named in a trust deed, and one of the negroes named therein was missing, about which there was, however, some controversy, and to settle the matter, another negro was given up in the place ofthe one alleged by the guardian to be missing: Held, that the party giving up such negro, could not afterwards recover him from the guardian’s ward, in an action of trover; provided, he gave him up to the guardian on the settlement, by way of compromise, for the one named in the deed of trust, which was alleged to have been missing.</p> <p>[2.] The Courts will favor family compromises of even doubtful rights, when fairly made.</p>

<p>Trover, in Houston Superior Court. Tried before Judge Johnson, presiding for Judge Powers. April Term, 1852.</p> <p>The record discloses these facts. In 1836, James Hudson intermarried with Sarah Walden. She was a widow, with two sons, by a former marriage, to wit: Joseph Harper and Jesse Harper, and possessed thirteen slaves and several lots of land. Prior to their marriage, they entered into an agreement in reference to her property, of which the following is a copy :</p> <p>“ GEORGIA, Houston County :</p> <p>Know all men by these presents, that whereas, James Hudson and Sarah Walden, both of the State and County aforesaid, agree to marry; and the said James Hudson, do agree on his part, that all the negroes, thirteen in number, and four lots of land, Nos. 49, 50, 29, and 30, be hers her lifetime, and then to belong to her two sons, Joseph Harper and Jesse Harper, in case there is no issue between them; if there is, then all to belong to it. And I, Sarah Walden, do agree on my part, that James Hudson, do have all that he can make off of them her lifetime, if he survives her; and she, the said Sarah, further agrees not to claim any part of the property belonging to said James Hudson.”</p> <p>The above agreement, entered into on the 10th day of January, 1836, and signed by the above named parties, and witnessed by the Rev. Samuel Anthony. Witness, we do both agree that the above is a true copy of the original, which is lost or mislaid, and cannot be found.</p> <p>JAMES HUDSON.</p> <p>her</p> <p>SARAH X HUDSON.</p> <p>mark.</p> <p>In 1837, at the instance of Mrs. Hudson and the defendant, Joseph Harper, this marriage agreement was revoked; and in lieu thereof, all the parties in interest, agreed that the property should be divided into three equal parts — one-third to each of the two Harpers, Joseph and Jesse; and the other third to James Hudson, to wit: a negro man, woman, and her increase (which are subject-matter of this action,) in fee simple.</p> <p>In 1842, James Hudson executed the following instrument. After giving-a copy of the original agreement between himself and his wife, Sarah Hudson, he proceeds:</p> <p>“ My beloved wife, having (many, some or from,) just causes become afraid that she will be deprived of her just dues and support, out of her property, above named, I, James Hudson, do hereby relinquish to her, all my claims to her property, as above named, that [may be, was left,] in my hands, and all that part of the stock and household furniture that was hers.</p> <p>Signed and sealed, this 23d April, 1842.</p> <p>JAMES HUDSON.”</p> <p>On the 20th February, 1849, James Hudson sold the negroes in dispute, and which- had been awarded to him under the agreement of 1837, to John Scott.</p> <p>Subsequently to this sale, Thomas J. Harper, as the “ prochien ami,” of Mrs. Hudson, sued out a possessory warrant against Scott; at the hearing of which, the Justices awarded the possession of the negroes to Thomas J. Harper, as the next friend of Mrs. Hudson.</p> <p>Scott then brought an action of trover, for the recovery of the negroes, against Joseph Harper, in whose possession he found them.</p> <p>On the trial, plaintiff, in order to lay the foundation for introducing secondary evidence as to the agreement between James Hudson, Mrs. Hudson, and the Harpers, by which one-third of the property was given to James Hudson, in fee simple, examined Charles F. Hudson and Henry A. Scott, as witnesses.</p> <p>Charles F. Hudson, sworn — “ There was a settlement between James Hudson and wdfe, and Joseph and Jesse-Harper, made at the instance of-Mrs. Hudson and-the Harpers; the trunk containing the instrument -was broken open; I heard Mrs. Hudson say she had the instrument taken out of the trunk, and that her husband would never see it again.”</p> <p>Henry A. Scott, sworn — “He was son of the plaintiff; did much of his writing; examined his papers frequently in the general course of his business;, never had seen such a paper; his father is now7 sick, and unable to attend Court; Mrs. Hudson after her separation from her husband, went to defendant’s house, and carried her trunks and clothes ; she died at defendant’s house, since the suit was brought.”</p> <p>The Court then overruled the objection made by counsel for defendant, and allowed the evidence of Charles F. Hudson,-including the sayings of Mrs. Hudson, to go to the Jury, and defendant excepted.</p> <p>In the progress of the trial, the defendant offered Thomas J. Harper as a witness, “to prove that defendant was not in possession of the property at the time the demand was made, but that it w7as in the possession of Sarah Hudson or of himself, as' the next friend of the said Sarah Hudson.”</p> <p>Plaintiff objected to the witness, on the ground that he was interested in the result of the suit.</p> <p>The Court sustained the objection, and defendant excepted.</p> <p>The defendant moved the Court to permit him to give other bail, in lieu of Jacob N. Goff, one of his securities on the bond for the forthcoming of the negroes, who was a material witness for the defendant — there being two other securities to said bond.</p> <p>The Court refused to allow the substitution to be made, unless the assent of the other securities was first obtained. The Court offered, at the same time, to allow the defendant to substitute a new bond; the defendant failed to obtain such consent or to substitute a new bond; and defendant excepted to the ruling of the Court.</p> <p>Exceptions were filed by the defendant, to the charge and refusals to charge of the Court, which the decision of this Court renders it unnecessary to set out in full.</p> <p>Upon these several exceptions, errors are assigned.</p>

Heard and decided by Judge Powers. May Term, 1852. The application set forth, that the petitioners, A. J. and D. W. Orr, are the bona fide holders of twenty-six orders, drawn by the Clerks of the Superior and Inferior Courts of Bibb County, on the Treasurer of said County, in favor of various Jurors, therein specified, or bearer, amounting in the aggregate, to the sum of $264.92; that they were issued in obedience to an Act passed by the Legislature, in the year 1841; that…

Indictment for murder, in Bibb Superior Court. Tried before Judge Powers. May Term, 1852. At the May Term, 1852, of Bibb Superior Court, James Crawford was put on trial for the killing of Evan Moore. It appeared from the evidence, that the killing for which the defendant was indicted, occurred about night-fall on the 23d December, 1851, at a grocery in the city of Macon.

<p>Covenant, in Henry Superior Court. Motion for a non-suit. Decided by Judge Stark. April Term, 1852.</p> <p>On the 10th day of July, 1846, John M. Weems executed his bond, to James Y. Baynes, conditioned upon the payment of a note given by Baynes, for two hundred dollars, to execute good and sufficient titles, to and for the undivided half of lot of land, No. 195, in the 9th district of originally Troup, now Meriwether County. Weems subsequently died, and Bernhard was appointed administrator of his estate.</p> <p>This was an action of covenant, brought by the plaintiff in error, against Bernhard, as administrator, for a breach of the said bond.</p> <p>It was averred in the declaration, “ that Weemsin his life time, and when he executed and delivered to your petition or the said bond, had not and never did have good and sufficient titles in fee simple, to and for the said undivided half of said lot of land, and that Bernhard, administrator as aforesaid, never has had, as such administrator or otherwise, since the death of Weems, good and sufficient titles in fee simple, to the said undivided half of said lot of land; and therefore your petitioner avers that it was, and ever has been wholly and entirely out of the power of Weems in his life, and Bernhard as his administrator, since his death, to keep the covenant of the said Weems, in the condition to said bond mentioned, by making or causing to be made, good and sufficient titles to your petitioner, in and to the said undivided half of said lot of land.”</p> <p>On the trial, plaintiff introduced in evidence a plot and grant from the State, to George Prothro and the plaintiff, for and to the lot of land mentioned in the bond, dated the 5th day of August, 1848, on which there was an acknowledgment,by Wm. B. Tinsley, treasurer, of the receipt of $250.00. This grant issued in pursuance of the Act of 1843, and an Executive order of the 16th of March, 1848, authorizing any citizen of this State, upon certain conditions in said Act mentioned, and after certain dates specified, to take out a grant for certain lots of land, in the Counties of Lee, Muscogee, Troup, Coweta, and Carroll, which shall remain ungranted.</p> <p>Plaintiff then introduced in evidence an exemplification of an action of debt, brought by Bernhard, as administrator, against the plaintiff, to the Inferior Court of Meriwether County, upon the note given for the land; from which it appeared that a recovery had been had by Bernhard, of the full amount of the note, and the same had been fully paid oil by Baynes — the last payment having been made on the 2d day of March, 1850.</p> <p>Plaintiff then proved the value of the land, and closed his case.</p> <p>The defendant moved the Court for a non-suit, which was awarded, upon the ground “ that no demand for titles was alleged and proved, and no sufficient excuse for not demanding titles, was alleged and proved.”</p> <p>Which decision is assigned as error.</p>

<p>[1.] The doctrine of adulterine bastardy, new in our Courts, and has fluctuated in England.</p> <p>[2.] The law now is, that although the birth of a child, during wedlock, raises a presumption that such child is legitimate, yet that this presumption may be rebutted by evidence; and it is the duty of the Jury to weigh the evidence against the presumption, and to decide, as in the exercise of their judgment, the truth may appear to preponderate.</p> <p>[3.] Either in a civil suit, or on a criminal prosecution, by the evidence of non access, or other testimony, the presumption of the legitimacy of the offspring, may be rebutted.</p> <p>[4.] The same rules apply, whether the bastardy originates before or after marriage. In both cases, the law says ¡presumptively, it is the child of the husband.</p> <p>[6.] The question of legitimacy may be made by any one whose right it is to contest it.'</p> <p>[6.] The heir at law can only be disinherited by express devise or necessary implication.</p> <p>[7.] Per Lord Pidón, (1 Ves. <$• Beame, 466,) “ With regard to that expression —necessary implication — it means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed to the testator, cannot be supposed.”</p> <p>[8.] The intention to disinherit the heir, is always necessary to raise an estate by implication.</p> <p>[9.] Courts are not permitted to give effect to the will of the testator, contrary to the plain and obvious terms used by him, upon a mere conjecture as to his intention.</p> <p>[10.] In the absence’of anything in the will to the contrary, the law will presume that the testator intended his property to go where the law casts it; and to disturb this natural coui-se of deseent, should require plain words to that effect.</p> <p>[11.] If the estate is not devised to some other person, though the intention of the teststor be ever so manifest, to disinherit the heir, still the law casts the estate upon the heir. Per Lord Mansfield and Mr. Justice Ashurst on Lem. ex dcm. Goskin vs, Goskin, Oowper, 657.</p>

Ejectment, in Pike Superior Court. Tried before Judge Stark. April Term, 1852. This action was brought in January, 1848, for the recovery of a lot of land in the County of Pike, and also for mesne profits.

Mandamus, in Bibb -Superior Court. Decided by Judge Powers. May Term, 1852.

<p>Debt, in Crawford Superior Court. Tried before Judge Powers. March Term, 1852.</p> <p>This was an action on a Sheriff’s bond, brought under the following state of facts:</p> <p>In November, 1842, the plaintiff, Moore, obtained a judgment against one Sawyer, for nine hundred dollars and upwards ; and at the same time, the plaintiff, Myrick, obtained a judgment against the same person, for about seven hundred and forty dollars. These/, fas. were obtained in the Inferior Court. After-wards, Moore and Myiick jointly became the purchasers of a Superior Court /. fa. against Sawyer, which had been obtained by another party in August, 1842.</p> <p>The defendant, Hicks, being Sheriff of the County, sold property of Sawyer, under these several/, fas. Upon a rule against him for the payment of the money, and a collateral issue made up thereon, the Jury found that the sum of one thousand and twenty-six dollars was in hs hands, raised by sale of defendant’s property; upon which a rule absolute was granted, ordering him to pay over that sum. This action was brought on said rule, in the joint names of Moore & Myrick, against the Sheriff, Hicks, and Webb, his only surviving security.</p> <p>The declaration was demurred to, on the ground that it was stated in one part, that Hicks & Webb and another, were bound, &c., and in another place, it was alleged that Hicks and Webb were bound, without naming the other; and also, on the further ground that three different plaintiffs, between whom no privity existed, to wit: Moore, Myrick, and Moore & Myrick, each claiming under separate judgments, had joined in bringing the action. The Court held, that the first defect was amendable, and that the plaintiffs might also amend the second, by striking out the names of all but one of the parties suing. This the plaintiffs declined to do, and the action was dismissed.</p> <p>To this decision of the Court exception is taken.</p>

<p>[l.] Where a testator by his will devised to his sou Henry the plantation whereon he lived in fee, and after bequeathing a negro woman to his wife, during her life, used the following words, “ and I also allow my son Henry to give her a support off my plantation during her lifetime: ” Held, that the testator used the word “allow” as expressive of his intention that his son Henry should support his wife during her life, off the plantation, and that Henry took the same under the will, subject to that charge, which a Court ol Equity will enforce.</p> <p>[2.] When the words of a will are those of.recommendation, or precatory, or expressing hope, or that the testator has no doubt, <fcc. — if the objects in regard to whom such terms are used are certain, and the subjects of property to be given are also certain, the words are considered imperative, and create a trust.</p>

In Equity, in Troup Superior Court. Tried before Judge Hill, ' June Term, 1852.

In Equity, in Troup Superior Court. Decided by Judge Hill. June Term, 1852.

In Dooly Superior Court. Tried before Judge Powers. April Term, 3852. This was an action to recover back money, advanced by the plaintiffs, Hardeman & Hamilton, as cotton factors, to Ford, the defendant. Plaintiffs proved-the advancement of the money as charged in their account, and that they had sold twenty-three bales of cotton for defendant, at 7|-cents, which left a balance due them from defendant. They had sold the cotton in New York, March 13, 1848.

<p>[1.] A dies before B, his father, leaving children.' Upon B’s death, the children of A can sue in their own right for his portion of B’s estate.</p> <p>[2.] The children of A filed a bill against the administrator of B, for their distributive share, averring advances to the other distributees, and calling them to account in hotchpot; to which bill those distributees were made-parties defendants: Held, that they were properly made parties.</p> <p>[3.] Held, that in such a bill, it is not necessary to aver notice to the administrator that the complainants would claim the right of calling the other distributees into hotchpot.</p> <p>[4.] Held, farther, that in such a bill, it is not necessary for the complainants to aver that they have not been advanced, and that if the bill admits that they have been advanced, it is then necessary to aver their readiness to account in hotchpot.</p>

Rule, in Dooly Superior Courl. Decided by Judge Powers. April Term, 1852. This was a motion to have a fi. fa. returned to office satisfied. The fi. fa. was in favor of Huntington & Holcombe vs. Daniel McLeod; and it appeared by the statement of the attorney for the motion, that the real party moving, was Irvin Bullock; who it was shown, had been a claimant in a case in which the question in issue was, whether or not this fi.fa. was still unsatisfied.

Indictment, in Bibb Superior Court. Tried before Judge Powers. June Term, 1852. This was an indictment for unlawfully carrying a deadly weapon.

<p>Case, in Bibb Superior Court. Tried before Judge Powers. June Term, 1852.</p> <p>This was an action to recover the value of a trunk of plaintiff, which was alleged to have been lost by the default of defendants, as omnibus proprietors, in the City of Macon.</p> <p>The interrogatories of Mrs. Margaret Dibble, the wife of plaintiff, were offered to prove the contents of the trunk, (the loss of it having been previously proven by other witnesses) which were objected to by defendants.</p> <p>The Court sustained the objection ; holding that the witness was not competent to testify.</p> <p>The Jury having found for defendants, plaintiff’s counsel excepted to said decision of the Court.</p>

Assumpsit, in Pike Superior Court. Tried before Judge Stark. May Term, 1852. This action was brought by King vs. Rogers, on anote dated February 7, 1838, and due the 25th of December, thereafter. It was credited by eight dollars thirty-seven and half cents, February, 1846. The action was brought in 1851. The defendant relied on the Statute of Limitations. For the plaintiff the testimony of Cary King was read as follows : Witness is the son of plaintiff.

Ejectment, from Bibb Superior Court. Tried before Judge Powers. May Term, 1852. This case was made on an agreed statement of facts. The plaintiffs were heirs at law of certain land, which was held by the widow (or her lessee) by right of dower.

In Equity, in Bibb Superior Court. Tried before Judge Starke. May Term, 1852. This bill was filed to restrain the City authorities of Macon, from selling a certain lot of land in the City, which, it was alleged, had been perpetually set apart and dedicated to the use of the public, when the lots in that part of the City were originally surveyed and sold. A demurrer for want of equity, and because the dedication was not charged to have been in writing, was overruled.

<p>In Equity, in Bibb Superior Court.- Tried before Judge Starke. May Term, 1852.</p> <p>This was a case very similar to the preceding, being a bill to restrain the City Council from selling another lot, alleged to be public property, under the same state of facts, as in the former case. Among other testimony, the complainant introduced the answers of Isaac B. Rowland, who stated that he had been several times a member of Council, though he could not recollect exactly tire-years; that h.e knew the lot in dispute, and that “ the impression resting on hi§ mind was, that it was to remain a perpetual reservation ; or such was, as he conceived, the implied understanding, at the time of lease of some of the surrounding grounds.” Objection being made to this answer, it was rejected by the Court.</p> <p>The answers of Jerry Cowles were likewise offered by complainant, who stated, that when witness was a member of Council, the subject of this lot was brought up. Witness had bought lots in the vicinity, and wished to buy this, if it was to be sold; that every member gave his opinion, and the Board was unanimous, that this lot was to be kept for the public; that the Council, so far as witness knows or believes, have always so considered, and that it has been so used, ever since the sajle of lots, in 1834 or 1835, to witness, and that he so understood when he purchased lots.</p> <p>In another answer, the witness stated that he applied to the Council to buy all the land that they were then offering for sale, in that part of the city ; that a committee of citizens was appointed to appraise all that they would sell; and that witness’ application, in writing, covered all the ground they would sell, as the balance was to be kept for streets and a public square, forever.”</p> <p>These answers being objected to, were ruled out by the Court.</p> <p>The Jury found for defendant; whereupon complainant excepted to the several decisions of the Court herein stated.,</p>

<p>Claim, in Twiggs Superior Court. Tried before Judge Powers, March Term, 1852.</p> <p>The facts in this case are as follows: Gragg, as administrator of William E. Dennard, had caused sundry Justices Courty?. fas. of Dennard against Henry T. Gee, to be levied on a negro named Lucinda and her child, as the property of said Gee. The negroes were claimed by James Jessup, executor of Samuel Jessup, to belong to the estate of said Samuel.</p> <p>On the trial of the claim, thefi-fas. and the levies thereon were introduced by plaintiff, when the levies were excepted to by claimant, as not sufficiently descriptive of the property levied on, which objection was held good by the Court; but the plaintiff was permitted to call in the Constable who made the levies, and who in the mean time had gone out of office, and to have the entries amended by him. The plaintiff then proceeded to prove by many witnesses that the negroes had been in possession of Gee since the rendition of the judgments, and until the death of Samuel Jessup, when they got back into the possession of James, his executor.</p> <p>Gee was the son-in-law of Samuel Jessup, deceasd, and had received the negroes from him about the time of his marriage.</p> <p>The claimant then offered in evidence, a bill in Equity, filed and then pending in the Superior Court of Twiggs County, at the instance of William E. Dennard, the plaintiff’s intestate, against the cláimant, as executor, and the defendant in fi.fa.</p> <p>This bill was in relation to the property now in controversy, and was introduced to show an admission therein on the part of complainant, that Lucinda and her child did belong to the estate of Samuel Jessup. Objection being made, the Court admitted the testimony; remarking, however, in hearing of the Jury, that “it was not intended in the bill to admit that Lucinda and her child were the property of Samuel Jessup; ” which is alleged as error. The claimant then introduced the answers oi Henry S. Ray, who proved that the negroes were in the possession of Samuel Jessup at the time of his death.</p> <p>The Court charged the Jury, among other things, that the testimony of Ray was not material, inasmuch as the question was whether Jessup had given the property to his son-in-law or not; and that if he had, then Gee’s sending it back would not defeat the lien of the f.fas.</p> <p>The Jury found the property subject, and the claimant excepted to the above stated decisions and charges of the Court.</p>

Complaint, in Troup Superior Court. Tried before Judge Hile. May Term, 1852. This was an action of complaint; the declaration being in the form prescribed for action on account, by the Act of 1847, commenced in the Inferior Court of Troup County, for rent. An appeal was taken to the Superior Court, and by that Court, a non-suit was awarded; which judgment was reversed' by the Supreme Court, at Decatur, August Term, 1851, and the cause reinstated.

In Equity, in Troup Superior Court. Tried before Judge Hill. May Term, 1852. This bill set forth the following facts: In 1798, Sion Smith, of Washington County, died testate; leaving a negro woman, named Jane, to his wife for life, and at her death, the negro and her increase, to be equally divided among his five children, or among such of them as should survive their mother, and the children, if any, of such as should die before her.

<p>Motion to dismiss the writ of error. The decision of the Court shows all the necessary facts.</p>

' In Equity, in Pike Superior Court. Tried before Judge Starke. August Term, 1851.

In Equity, from Monroe Superior Court. Tried before Judge Stark. February Term, 1852. Newman Pound and Wife filed their bill, alleging that Mrs. Horne, the grand-mother of Mrs. Pound, had departed this life leaving a will, bequeathing her whole estate to be equally divided among four persons, one of whom was Mrs. Pound. William R. Murphy was appointed executor of this will, and had it offered for probate and established, but never qualified as executor.

In Equity, from Floyd Superior Court. Tried before Judge J. H. Lumpkin. August Term, 1852. In 1838, Marshall' Ligón brought his action against Job Rogers and Zachariah B. Hargroves, for the loss of a negro man, a team of horses, and a wagon, alleged to have been lost by the sinking of,, a ferry-boat, belonging to the defendants. Before trial in this suit,, the plaintiff died, and Robert Atkinson, his administrator, became a party.

<p>Indictment for robbery, in Gwinnett Superior Court; Tried before Judge James Jackson. March Term, 1852.</p> <p>The Grand Jury of Gwinnett County found the following bill of indictment against Elias Long and others.</p> <p>Georgia, Gwinnett County.</p> <p>The Grand Jurors sworn, chosen and selected for the County of Gwinnett, to wit, &e. in the name and behalf of the citizens of Georgia, charge and accuse Jesse F. Dishough, Williamson Cruse, Elias Long, Henry R. Swinford Lmd Charles N. Johnson, of the County and State aforesaid, with the offence of robbery.</p> <p>For, that the said Jesse F. Dishough, Williamson Cruse, Elias Long, Henry R. Swinford and Charles N. Johnson, on the ninth day of October, in the year eighteen hundred and fifty, with force and arms, in the County aforesaid, in and upon one George Braswell, in the peace of God and said State, ■then and there being, wrongfully, fraudulently, feloniously and violently did make an assault; and him, the Said George Bras-well, in great bodily fear and danger of his life, personal liberty and reputation, then and there, by force, intimidation, feloniously did put; and one negro girl, Lucy, of the value of seven hundred dollars; one set of blacksmith tools, of the value of ten dollars; one two-horse wagon of the value of fifteen dollars; five barrels of corn, of the value of sixteen dollars, and one bill of sale for said negro girl, Lucy, of the value of seven hundred dollars, of the goods and chattels of the said George Braswell; and from the person of the said George Braswell, by force and intimidation, wrongfully, fraudulently, feloniously, violentlj, and without consent of the said George Braswell, did take and carry away, with intent to steal the same, contrary to the laws of said State, the good order, peace and dignity thereof.</p> <p>On this indictment, the defendant, Elias Long, was put upon his separate trial, and the following testimony was introduced for the State and the defendant, and the several points of law made and decided, as set forth.</p> <p>George Braswell being sworn, said, that about the ninth day of October, in the year eighteen hundred and fifty, he was going from his house, in this County, towards the house of Jesse F. Dishough, with his wagon, having on board a pair of buggy wheels, which, according to promise, he was taking to Dishough; and when he reached the woods beyond Charles N. Johnson’s house, his horses appeared frightened, and seeing something white out on one side of the road, he drove his horses out one side of the road, and got down to see what it was. About this time, some person near him, said in a loud tone of voice — don’t shoot, boys, don’t shoot; at the same time some person came up behind him, and clasped him tight around the waist; did not know who it was ; Williamson Cruse came up and caught hold of him by the arm; the person who first caught hold of him, who he ascertained to be prisoner, Long. Long said — God damn you, I have got you, and I intend to send you to the penitentiary. Cruse said, if you attempt to escape, I will blow a ball through you. Long said, have you got any weapons ? and then proceeded to examine witness, and found no weapons upon him, Witness then commenced telling them all about it; said he knew if Dishough was present, he wouldlethimgo. Longsaid damn you,Ihave got you, and I intend to send you to the penitentiary for stealing my buggy wheels. Witness again said if Dishough was there he would let me go. He promised me, if I would bring the wheels and put them in the corner of his field, he would not prosecute me. About this time, Charles N. Johnson came up, and witness appealed to Johnson; began to tell him all about it; and said if Dishough was here all would be right. Johnson then said he would go and see Dishough, if witness wished. Johnson then left, and after being gone some little time, Johnson and Dishough came, and about the same time, Henry R. Swinford came. While Johnson was gone, Long, said, God damn you, if you attempt to escape, I will kill you. I intend to send you to the penitentiary. When Dishough came back, witness appealed to him, and stated over the agreement about returning the wheels. Dishough said, boys that’s right; said Long was too hard upon witness, and to let him go. Long-said no, I will not; I have got him, and I intend to prosecute him. Witness then asked Dishough to beg Long for him. They then went off, and talked awhile, (Cruse having hold of him ;) when they came back, Dishough said, I cannot do anything with him ; it only makes him worse. Something was then said by some of the party, about making it up. "Witness asked Long if he would take fifty dollars, and make it up ? Long said he would not make it up for all witness was worth, for he intended to send witness to the penitentiary. Dishough then said to witness, you had better make it up. Johnson and Long went off, and talked awhile, and came back; when witness said to Johnson, they have got me in a bad fix, and asked Johnson what he had better do ? Johnson said he thought he had better pay Long-something, and make it up.</p> <p>Witness again asked Long what he would take and make it up ? Long said he. would not take a thousand dollars. Dishough and Johnson told Long he was too hard on witness. Long said he had taken his advice once in a case, and had lost three hundred dollars, and he would not settle it. Dishough persuaded Long not to prosecute, and Long swore he would, and send him to the penitentiary. After some talk, Long said, what property have you got ? Witness said — some land, some stock, his wragon and horses, and some corn and fodder. Long said he did not w-ant that ;'and asked witness if he did not have a negro girl? Witness-said he had; but did notwantto part with her,as he was a ruined man, and he wanted to take her away with him.</p> <p>Long said, he did not want any of his property, and intended to prosecute him, and take him before a Justice of the Peace. After some consultation, witness offered him his negro girl. Long said he would not take her. Witness then offered the girl and his wagon ; then his blacksmith tools, in addition ; and then a load of corn. Long said, if you will make it five barrels, I will agree to it. Witness then agreed to it. After Dishough talked awhile, he said to Cruse and Long, who were holding witness, boys let him go ; he won’t run off; when they let him go ; and Long said, if you attempt to run, I will kill you. Something was said about a bill of sale for the negro, and Dishough went off, and came back with a bill of sale. Witness signed it, and agreed to give up his other property before stated, and leave the country in a few days.</p> <p>Long said witness must leave the country and never comeback. And asked witness about the titles to his negro, and if there were any executions against them ; said if there was any, and he lost the property, he would have witness if he was on land, or out of hell. Long said we had better go and get the property. Witness agreed to it. Long said, we had better go before day, as you are a ruined man,' and will have to leave the country; and when it gets out, your creditors will be on you.</p> <p>Long and Dishough then promised to aid hitn in getting off; and to get persons to come and buy him out. Dishough said he would take care of the wagon. It was then proposed to keep the whole matter a secret; to which witness agreed.</p> <p>And Dishough said he would put out the tracks in the road. It was then agreed that witness, Long and Cruse, should go to witness’ house after the negro. About the time they were going to start, Johnson said he would give witness a way-bill to Florida, as he bad to leave the country.</p> <p>Witness, Long and Cruse then went off together, on horseback, each on his own horse; witness being at liberty, went on to witness’ own house; got there about day. Witness, Long and Cruse went into the yard; bis wife "was not up. They then went into the kitchen. Witness delivered the negro girl. Long took her up behind him and then went off. Witness bought wheels of Bolls, all finished but boxing.</p> <p>Bolls left the country before October election, 1849. Dishough and Long bought his shop, and claimed it; were in possession, after Bolls left. Witness contended he had two titles to the wheels. Bolls gave them to his wife, one time when he came over and got him to go his security. Witness could not go his security • went in to consult with his wife. Bolls said if she would let witness go his security, he would give her a pair of buggy wheels. She agreed to it. Witness then went his security on a note for $100. Got up a fuss about its being forged ; and witness went over to see Bolls. Bolls agreed to settle it. Got Dishough to give him a note for $30.00; to give him a note on Todd, and the buggy wheels. Witness set the wheels aside by the bellows, in the shop. Negro girl was -worth about $700 ; wagon was worth $15 or $20; corn was worth fifty-five cents a bushel.</p> <p>Cross-examined. — Was over at the shop on Tuesday evening, when it was found out that Bolls had run away. Dishough, Long, old Mr. Shamble, old Mr. McGinnes and several others, were there; wheels were in the shop; witness waited till they all went to the house; took the wheels out; carried them about fifty yards into the woods, and set them up by a tree. It was about sun-down when he t< ok them; no one was present when he took them; came early next morning, before breakfast, with a two-horse wagon, and took the wheels home; put them in his barn ; covered them with fodder ; kept them there secreted about a year; told Swinford be had the wheels; offered to sell them to Mr. Crowell, at the Stone Mountain. Never told any one else; witness never told Rans. B. Martin, two or three days after this transaction, about one-half mile from witness5 house, that he went to the shop one night; saw Cruse and Bailiffs in the shop, with a light; waited till the light went out, and they went off, and then went and took the wheels; carried them off about one hundred yards ; hid them ; went home, and got his lizzard, and carried them home before day; was out in the woods a little when he was arrested by Loug; Dishough said Long should not prosecute witness; witness signed the bill of sale; Dishough wrote it; did not ask Cruse to go with him and see the negro delivered; Dishough said he would fight for witness, before he should give up more than the negro girl; did not ask Dishough to write the bill of sale ; did not go to his brother Harrison’s to tell him about it; did not tell any one about the transaction, till he saw Geo. R. Smith, at the Mountain; did not ask Cruse to tell Bird Martin to come to his house and buy his cotton, nor anything else; did not tell R. B. Martin, a day or two after the sale, that he had sdd a negro girl to Long, and signed a bill of sale, and that he hoped Long would be pleased with her; saw Martin that day; Cruse was with him ; supposed Cruse had told Martin all about it.</p> <p>From the beginning to the end of the transaction, none of the parties treated him ill-naturedly; did not abuse or threaten him in any way, except to hold him, as before stated. Couch got the land; he (witness) threatened to prosecute him, and he gave him up his deeds; Dishough, Court before last, up strairs, in the Court House, hadhisknife out, and said, to'witness : my life for yours, if you testify anything against me ; threatened him also, in the grocery, in Lawrenceville. Witness told Musgrove, tw7o days after the transaction, all abhut the difficulty, and their cheating him ; made a bill of sale to the negro to Musgrove; ante-dated it a month, so as to make it older than the one he had given to Long, so as to enable Musgrove to get the negro ; Couch got his cattle, and Bird Martin got his cotton; promised to pay him $3 per hundred for it; paid ‡3 for a part, and $2.50 for the balance ; never saw the negro afterward; Cruse got part of his corn and blacksmith tools; witness did not acknowledge the night of the difficulty, that he had stolen the wheels; does not recollect what he told R. M. Martin, Wednesday or Thursday after the difficulty.</p> <p>Witness testified, on the direct examination, that on the night of the difficulty, when Johnson came up, Long said, who is that? Johnson spoke. Long said, it is well you spoke; if you had not, I would have shot you; I thought it was some of Braswell’s friends coming to rescue him. State’s counsel asked witness if he was not in great fear? Defendant objected. Overruled. Witness answered, he was.</p> <p>William B. Brown, sworn, says : saw Cruse take oil the corn, next day after the difficulty, and the smith tools; prosecutor came up, and said he wished he had left them till he had shod his horses. About the 10th October, two years ago, Dishough bought the girl from Long; witnessed bill of sale from Long to Dishough for the girl. State’s counsel proposed to prove what Dishough had done with the girl; to which' defendant objected — overruled by the Court — and defendant excepted.</p> <p>Dishough carried off the girl about two hours afterwards, in a barouche; part of the curtains were not down ; went along the public road, in the day time.</p> <p>State’s counsel proposed to prove that Bolls was greatly indebted ; to which, defendant’s counsel objected. The objection was overruled by the Court, to which defendant’s counsel excepted. Bolls was a great deal in debt; thinks he was insolvent; his property was seized, after he left, by his creditors ; witness went with Cruse after the corn and smith tools.</p> <p>William Hazelrigs sworn, says: Mr. Long and Mr. Cruse came to the house of witness one night, to stay all night; Long said Braswell had stolen some wheels from him and Dishough ; and he came in and passed as the Sheriff of Paulding; that he got a negro from Braswell, and had administered on him pretty well; got the negro to keep him (Long) from prosecuting Braswell for stealing the wheels. Cruse got the corn, and Couch the land. This was a short time after the difficulty; Long had been removed from Gwinnett County about a year; lived in Paulding County; Long kept the matter no secret.</p> <p>Joseph J. Turner sworn. — Saw Mr. Long and Cruse about the time of the difficulty, coming from towards Braswell’s and going towards Dishough’s, about day-light, one morning. Long had a negro girl behind. It was a public road.</p> <p>George Braswell re-introduced. — Long did not pay him anything for the negro and other property; did tell Robert Waters, about two weeks after the difficulty, he was not scared at the time he gave up the property; when Waters told him he ought not to talk so ; it would injure his case; he then said he was scared; went to Bishough’s house late one night, to make arrangements about taking back the wheels; asked Dishough if anyone was near, that could hear them talk; Dishough said no; then promised to bring the wheels, and put them over into Dishough’s field; Dishough agreed if he -would, he would not prosecute him ; did not tell Elijah Sanders, by the side of the Court House, two Courts ago, he gave up part of the property to get the advantage of Long and Dishough; did not say to Berry Bagwell, he had got into a scrape, and wanted to leave the country, and get rid of his property ; never told Berry Bag-well, at Bagwell’s mother’s, a few days after the difficulty, that Bolls had given his wife a set of buggy wheels, and these he took for them. The reason he covered the wheels in the fodder was, that he feared they would be taken by executions against Bolls.</p> <p>C. H. Smith — Went to attach Boll’s goods after he run away: our firm had debts against him; Bolls was considered insolvent.</p> <p>George K. Smith — Solicitor General, proposed to prove how Braswell looked, three days after the difficulty, when Smith met him at the Mountain; objected to by defendant’s counsel; overruled by the Court; and defendant excepted. Braswrell came to my house, early on Friday morning, bare-footed; looked very much fatigued; looked as though he was expecting some one to come after him ; was confused ; looked like he was not in his right mind; thinks he has a frightened look to-day; Smith told prosecutor he ought not to run ; that Long and Dishough ought to be running; and for him to go back; to which defendant’s counsel excepted.</p> <p>Testimony of Defendant. — Berry E. Bagwell — Saw prosecutor at his (witness’) mother’s, a few days after the difficulty; prosecutor said he had got into a bad scrape, about some buggy wdreels ; said Bolls had promised his wife some wdieels ; Bolls had some buggy wheels finished in his shop ; and he took these in place of them.</p> <p>Rans. B. Martin — Braswell told wutness, about half a mile from prosecutor’s house, two or three days after the difficulty, that the night he took out the wheels, he saw Cruse and the bailiffs in the shop with a light; waited till the light went out and they went off; then went to the- shop; look out the wheels; carried them off about one hundred yards into the woods; went home and got his lizzard, and took home the wheels on the lizzard, before, day ; hid them in his barn, under the fodder; and kept them about a year.</p> <p>Witness went to Braswell’s house, morning after the 'difficulty ; Cruse and Swinford and Mrs. Braswell were there measuring corn; Braswell was not there ; started back to find him; Cruse went with him; met him about half a mile from the house; Braswell asked Cruse how Long was pleased with his negro; Cruse said very well; prosecutor said he hoped he wmuld be pleased with her; heard nothing of any robbery, or any complaint; did not hear the bargain about the corn; thinks prosecutor made the offer to sell; prosecutor said he gave two hundred dollars for his land;. asked witness three hundred and fifty for it; witness bought his cotton; gave him three dollars per hundred for part and two dollars and fifty cents for part — that being damaged; Cruse bought his corn; did not speak of Long’s getting the negro as a difficulty; said he had done wrrong in taking the wheels, and was sorry for it; witness had no interest or connexion with the scrape about the negro ; got no part of prosecutor’s property that he did not pay him for; never heard anything of his being a person sent to buy prosecutor’s property until to-day.</p> <p>Did not take out proceedings against Bishough and Long’s property, bought of Bolls, because he thought they had a good title to it; thinks he did not tell Charles Smith and Oliver Strickland, that it was a fraudulent concern.</p> <p>Elijah Sanders — Saw prosecutor near the Court House door, two Courts ago; said he had a case in Court against Dishough, Long and Cruse; asked him how it got up ; he said it got up about some buggy wheels; that he had given up part of his property to get the advantage of them.</p> <p>Charles N. Johnson — Was present wffien this prosecution commenced; was recognized as a witness, on"the part of the State; when he came to Court, he was told, by the Solicitor General, that his testimony went to clear others, and unless he could swear differently, he must put him in the bill of indictment, and he must run his chances with the rest; recollects the night of the difficulty; late at night, about 12 or 1 o’clock, heard a rattling of a wagon; got up and went out; saw a man passing by, with a two-horse wagon; went back in the house, and kindled a light; heard talking down at the end of the lane, three or four hundred yards from witness’ house ; got up and -went out; went down there; when he got near, Long said to him — who’s that ? witness answered ; Long said it’s well you spoke, or 1 would have shot you, for I thought you were some of Braswell’s friends, coming to rescue him; Braswell then commenced telling the witness about the difficulty; when he first went up, Braswell was offering Long fifty dollars to settle it; said he had brought them wheels, and that Dishough had promised not to prosecute him; Long insisted upon carrying him before a Justice of the Peace ; said he would prosecute him, and carry him before Esquire Brooks ; refused to settle it; prosecutor said he wanted to settle it; proposed to witness to talk to Long, and beg for him; told prosecutor he had no influence with Long; that they had had a difficulty; witness told Long not to be so hard with him; Braswell then said Dishough had agreed to settle the matter, if he would bring the wheels ; witness proposed to go for Dishough, if it would be any satisfaction ; and he requested witness to go; witness went to Dishough’s house and hailed ; Dishough came out, and went with witness to them; prosecutor began to tell the difficulty, and Dishough said that was right, and told Long he ought not to prosecute him; Long said he would, and intended to send him to the penitentiary; Dishough then went off with Long and talked awhile, and came back, and said he could do nothing with him, and said they had better make it up; prosecutor then asked Long what he would take; Long said he would not settle it for all prosecutor was worth: he intended to send him to the penitentiary ; prosecutor proposed to Long to give him some of his property; Long said he didn’t want his property; after talking for some time, Long said to prosecutor, he wouldn’t settle it; prosecutor and Long went off and talked awhile, and when they came back, prosecutor was offering him his negro girl, which Long refused to take; he then offered his wagon in addition, and his blacksmith tools, and then a load of corn also; Long said, if you will make it five barrels, I will take it; Dishough said he would fight for prosecutor, before, he should give any more than the negro ; prosecutor and Long then agreed to settle it; and all appeared consentive and friendly; prosecutor proposed to Dishough to write the bill of sale; prosecutor said he wanted all done that night; at his request, Dishough went and got pen, ink and paper, and wrote the bill of sale ; prosecutor did not want his wife to know that he had sold the negro girl; he was afraid for it to get out; if it was put off till day, he would be prosecuted; Long' and Cruse went with him; Cruse went at the request of prosecutor to see the negro delivered ; about the time they were going to start, prosecutor said he had to leave the country, and wanted witness to give him a way-bill to Florida; witness said he would do so at anytime he wished; Braswell requested that the whole matter should be kept a secret; was the first one who proposed it should be kept a secret; Long and Cruse had let him go before Long accepted his proposition; and all were standing about together; the wagon was about eight yards out of the road; Dishough said he would put out the tracks and take care of the wagon, at the request of prosecutor; no one offered prosecutor any violence; heard no talk of weapons; heard no threats of violence by anybody, except that Long said if prosecutor attempted to escape he would shoot him; prosecutor at first said he took the wheels home before breakfast; Long was not satisfied with this; he then said he took them home before day ; Dishough, Long and Cruse were at witness’ house till 10 o’clock on the night of the difficulty-; don’t recollect whether Braswell was scared much or not; does not recollect that they made prosecutor promise not to come back; has no recollection of hearing Long say, he would have him, if he was out of hell; Dishough carried the girl off along the public road in a barouche, in the day-time, curtains not down; Wells was with Dishough when he carried off the negro ; don’t think Wells lived with Dishough at that time ; at the time of the difficulty, Braswell asked witness what he thought he ought to do; witness said he thought he ought to settle it, if he could, for a small sum; but told Long he thought he was asking too much ; witness told prosecutor be had no influence with Long, because he had had a difficulty with him; the parties did not talk loud at the time of the difficulty; it was in a common conversational tone.</p> <p>By the State — D. H. Walker sworn, says : had a conversation with Johnson, before filing the bill of indictment, about the facts of the case ; told Johnson if that was all he could swear, he would have to put him in the bill of indictment, and he must take his chances with the others; did not insert his name in the bill originally, but did so after the Grand Jury had heard the testimony, at their request.</p> <p>Samuel F. Alexander sworn, says : he was one of the Grand Jury that found the bill; after the Jury had heard the testimony, the Jury instructed the Solicitor General to insert the name of Johnson, in the bill.</p> <p>N. L. Hutchins .sworn, says: he was of original counsel for the prosecution ; had a talk with Johnson about the difficulty; after a consultation with Solicitor General, determined not to put Johnson in the bill; it was done at the request of the Grand Jury.</p> <p>Here the evidence closed. Counsel for defendant requested the Court to charge the Jury as follows:</p> <p>1. That to constitute the crime of robbery, the property must have been taken wrongfully, fraudulently and violently,.or by intimidation, without the consent of the owner.</p> <p>2. That to constitute the crime of robbery, by force, the State must show that some actual force was used by defendant, in taking the goods.</p> <p>3. That to constitute the crime of robbery, by intimidation, the person robbed must be put in fear of some personal or bodily violence or injury, or in fear, by a threat, of charging the prosecutor with an unnatural crime.</p> <p>4. That if the charge has been made, and the property given up, on consideration not to prosecute the party further, that will not amount to robbery, by putting the party in fear of a charge of an unnatural crime.</p> <p>5. That if the prosecutor was guilty of stealing the property of prisoner, and he caught him with it in possession, he (the prisoner) had the right to way-lay, ar.d arrest, and secure him, and take him before a Magistrate ; and if, after the arrest, the prosecutor agreed to give up the property, to settle the case, and stop the prosecution, and in accordance with such agreement, gave up the property, it will not be robbery in prisoner.</p> <p>6. That whether the taking was either by force or intimidation, it must be with intent to steal the same.</p> <p>7. That to maintain this indictment, the State must prove a larceny, and prove it to have been committed under the circumstances which, together with it, constitute the offence of robbery.</p> <p>8. That if the Jury believe, from the evidence, that the defendant did not intend to steal the property, then it is not robbery.</p> <p>9. That the bill of sale, if procured by force, is of no value, and, therefore, signing that did not constitute robbery ; that the violence or force must exist and operate at the time the property is taken by the prisoner.</p> <p>10. The property must be taken, animo furandi, as in other cases of larceny.</p> <p>11. That if the Jury believes, from the evidence, that the property was given up on' the promise to stop the prosecution, and not from fear of bodily harm, then it is not robbery.</p> <p>12. That if the Jury have any reasonable doubts of the existence of any fact necessary to constitute the crime of robbery, they must give the prisoner the benefit of such doubts, and acquit.</p> <p>Charge of the Court. — That in this, as in all other criminal cases, they were judges both of the law and of the facts; yet it is the duty of the Court to give them his views of-the law governing the case; by which views, whilst they should respect them, they would not be absolutely controlled, but would judge the law for themselves; that growing out of this duty of the Court to charge the law, was the right of defendant’s counsel to request of him to charge the Jury upon specific points, and in a particular way. In accordance with this right, defendant’s counsel had requested the Court to charge: First — The Court then read directly to the Jury, the first charge requested, and said to them, it is the law. Second — The Court chargedin the same way. Third — The Court chargedin the same manner the first clause of this number, but said to the Jury as to the latter, that there was no charge in this case, of an unnatural crime, and hence that had nothing to do with the case. Fourth — This related also to unnatural crime, and the Court did not charge it. Fifth — The Court declined to charge the Jury, as requested under this head, stating to the Jury as his reason, that he recollected no testimony in reference to the prosecutor being taken before a Magistrate. Sixth — The Court, after reading it to the Jury, charged it to be the law. Seventh — Under this head, the Court charged that the distinction between lacreny and robbery was this : in the first, the property is taken privately and without the knowledge of the owner; in the other, forcibly with his knowledge, but against his will; in other respects the two offences agreed. Eighth —On this head, the Court thought the broad language used, calculated to mislead the Jury as to the law, and said to them, that in this case, the other ingredients constituting robbery, being proven to their satisfaction, if they were satisfied as to them, the intention to steal would be manifested by the appropriation of the goods to the use of the defendant; his taking and carrying them off as his own. Ninth — Under this head, the Court charged, after reading it to the Jury, that it was the law; but that if they believed that this bill of sale was extorted by force or intimidation at the time it was signed, and afterwards, the same night, though 4 or 5 miles distant, the force or intimidation still continuing, and the prosecutor still operated upon by it, gave up the negro; all taken together, it amounted to one transaction, and was robbery. Tenth — The Court charged, as requested, but said to the Jury, that in this case, the other ingredients upon which the Court would charge them presently, being proven to their satisfaction, the animus furandi, in this case, would be manifested by taking ofi the goods, and appropriating them as defendant’s property. Eleventh — The Court read it to the Jury, and charged as requested. Twelfth — The Court read it to the Jury, and charged as requested.</p> <p>After charging the foregoing upon the points requested by defendant’s counsel, the Court said to the Jury, to apply these principles of law to this case: if you believe, from the testimony, that the prosecutor gave up his property, solely from the fear of a criminal prosecution and its consequences, it amounts, in law, to extortion by duress, or at farthest, compounding a felony, and the defendant, in this case, is not guilty of robbery ; but if you believe, from the testimony, that the defendant, Long, together with Dishough and others, knowing that the prosecutor had taken the buggy wheels — whether he stole them or not, in the judgment of the Court is immaterial — entered into a conspiracy to plunder him of his property, and in pursuance of such conspiracy, instead of taking out a warrant against him, induced him, in the dead hour of the night, to return the wheels to a particular place, and there lay in wait for him, and rush out upon him with cries of don’t shoot, boys, and threats to shoot; seize him and hold him, and extort from him, through fear of personal violence, terror and alarm, produced by the surrounding circumstances united, and in addition to the threats to prosecute and send him to the penitentiary, take his wagon and the bill of sale on the ground, and the negro, the same night, the defendant, Long and another, still accompanying him for the purpose, and run off the negro the next day to parts unknown — the defendant is guilty of robbery, and it is the duty of the Jury so to find him.</p> <p>The above is the substance of the charge to the Jury.</p> <p>To which charges and refusals to charge, defendant’s counsel excepted.</p> <p>The Jury returned a verdict of guilty. Whereupon, the defendant’s counsel moved in arrest of the judgment, and for a new trial, upon the following grounds, to wit:</p> <p>Robbery, in Gwinnett Superior Court. Verdict — Guilty.</p> <p>And now comes the defendant by his attorneys, and moves in arrest of judgment in the above case, upon the following ground:</p> <p>1. Because the indictment charges two separate and distinct offences in one count, to wit: Robbery by force, and robbery by intimidation.</p> <p>On motion of counsel for defendant, it is ordered that the Solicitor General show cause instanter, why the verdict in the above case should not be set aside, and a new trial ordered, upon the following grounds, to wit:</p> <p>1. Because the Court erred in permitting the prosecutor to state that he gave up his property through fear.</p> <p>2. Because the Court erred in permitting the prosecutor to state why he returned, when he had left home with the intention of quitting the country ; and also the conversation with George K. Smith, at the Stone Mountain.</p> <p>3. Because the Court erred in permitting George K. Smith to state his directions to prosecutor at the Stone Mountain, and to testify as to what was the appearance of prosecutor at the time.</p> <p>4. Because the Court refused to require the Solicitor General to read the authorities upon which he relied, or to furnish them to defendant’s counsel before the opening of the argument to the Jury; but stated that the authorities should be furnished before the argument of the concluding counsel for the defendant, and read, if counsel desired to consume another hour of the time of the Court.</p> <p>5. Because the Court erred in refusing to charge the Jury as requested, in the fifth ground taken by defendant’s counsel; but on the contrary, said he recollected no evidence that the prisoner offered to take prosecutor before a Magistrate.</p> <p>6. Because the Court erred in charging the Jury, that if four or five men get together, and way-lay a man, even who has stolen property in his possession, and by putting him in fear, obtain property from him, intending to appropriate the same to their own use, it is robbery.</p> <p>7. Because the Court erred in charging the Jury, that if the defendant in this case, received the property with an intention wrongfully to appropriate the same to his own use, it was robbery.</p> <p>8. Because the Court erred in refusing to charge the law in the language requested by defendant’s counsel.</p> <p>9. Because the Court erred in charging on the tenth ground, as requested by counsel, that the property must be taken animo Jurandi, as in other cases of larceny; said that that was true, but if the defendant in this case took the property with an intention to appropriate the same to his own use, it was robbery.</p> <p>10. Because the Jury found contrary to the evidence.</p> <p>11. Because the Jury found contrary to law.</p> <p>Counsel for the defendant then asked for a short time to be heard upon the several "grounds in arrest of judgment, and for a new trial before the Court, by argument and the production of authorities, which the Court refused, and said the grounds were overruled, and any other which you may see proper to put; the defendant’s counsel have their remedy. To which defendant’s counsel then and there excepted.</p> <p>During the argument of concluding counsel for the State, he went on to say that Johnson did not state in his testimony that he went to Dishough’s house on the night of the difficulty, and hailed ; but that he went after him; but there was no proof of his going to Dishough’s house, and that he went after him, but found him secreted in the woods, near the place. Prisoner’s counsel called State’s attorney to order, and said Johnson did swear he went to Dishough’s house, and appealed to the Judge’s notes and the witness who was in Court, for proof of his correctness. The Court said his notes were a mere private memorandum that he was required to keep, and ordered defendant’s counsel to take his seat; that the Jury would decide; to which defendant excepted.</p> <p>And the counsel for the defendant, on this nineteenth day of March, 1852, being within thirty days from the adjournment of said Court at said Term, tenders his bill of exceptions, and says:</p> <p>First. — That the Court erred in admitting the prosecutor to answer the question, “ whether he was not in great fear?”</p> <p>Second. — That the Court erred in admitting testimony to show what Dishough did with the negro girl.</p> <p>Third. — That the Court erred in admitting evidence as to Bolls’ indebtedness.</p> <p>Fourth. — That the Court erred in allowing George K. Smith to describe the appearance of prosecutor, three days after the difficulty; and to state also his directions to prosecutor.</p> <p>Fifth. — That the Court erred in saying before the Jury, when defendant’s counsel asked to be furnished with the authorities intended to be relied upon by the prosecution, before the argument to the Jury commenced, “ You shall be furnished with them before your concluding counsel commences his argument, and they shall be read too, if you desire to consume another hour of the time of the Court.”</p> <p>Sixth. — That the Court erred, when the concluding counsel on the part of the State was misrepresenting the evidence to the Jury in a material point, in refusing to permit defendant’s counsel to correct him or to permit it to be done by reference to the testimony, as taken down by the Court, or by calling upon the witness, who was present in Court.</p> <p>Seventh. — That the Court erred in refusing to charge the Jury as requested by defendant’s counsel, under the 3d, 4th, 5th, 7th, 8th, 9th, and 10th heads.</p> <p>Eighth. — That the Court erred in merely reading to the Jury, the charges under the 1st, 2d, 6th, 11th, and 12th heads, as prepared by defendant’s counsel, and saying to them, “it is the law;” but without explanation or application of those general principles to the case at bar.</p> <p>Ninth. — That the Court erred in charging the Jury, under the ninth head, “ that if they believed that this bill of sale was extorted by force or intimidation at the time it was signed, and afterwards, the same night, though four or five miles distant, the force or intimidation still continuing and the prosecutor still operated upon by it, gave up the negro; all taken together it amounted to one transaction, and was robbery;” there being no evidence in the case, upon which to base such charge.</p> <p>Tenth. — That the Court erred in charging the Jury, under the tenth head, in assuming that the ingredients from which the animo furandi would be presumed, had been proven in this case.</p> <p>Eleventh. — That the Court erred in the conclusion of charge to the Jury, by saying to them, that if they believed from the testimony, an assumed state of facts, to some of which there was no proof, and especially of unqualified “ threats to shoot,” and upon others, it being contradictory, that “ the defendant is guilty of robbery, and it is the duty of the Jury so to find him.”</p> <p>Twelfth. — That the Court erred in refusing to arrest the judgment, upon the ground taken above.</p> <p>Thirteenth. — That the Court erred in refusing to grant a new trial, upon each of the grounds stated above.</p> <p>Fourteenth. — That the Court erred in refusing to hear argument or authority from defendant’s counsel, in support of their motion in arrest of judgment, or for a new trial.</p> <p>Fifteenth. — That the Court erred in refusing to grant a new trial, upon the grounds that the finding of the Jury .was contrary to law and contrary to the evidence.</p> <p>On which several rulings and decisions of the Court, the defendant took his bill of exceptions.</p>

<p>In Equity, in Cherokee Superior Court. Decision on demurrer, by Judge Erwin. April Term, 1852.</p> <p>The complainants in this bill, were the half-brothers and sisters, by the mother, of the intestate of the defendant. The intestate was an illegitimate child. The complainants were legitimate children. There were in existence two other illegitimate children of the same mother. The only question made by the demurrer, was whether the legitimate children, under the Statutes of Georgia, were co-distributees of the estate of the deceased illegitimate half-brother.</p> <p>The Court held that they were not, and this decision is assigned as error.</p>

In Equity, in Cherokee Superior Court. Decision on demurrer, by Judge Erwin. April Term, 1852. This was a bill filed to obtain a new trial, in a cause which had been tried in the Superior Court of Cherokee County. The bill charged, that complainant, Scudder, placed in the hands of William Daniel, a practising attorney at law, for collection, a negotiable promissory note, made by one Wm.

Ejectment, in Floyd Superior Court. Tried before Judge John H. Lumpkin. August Term, 1852. This was an action of ejectment, brought by the lessee of Edgar Garlick, against John Robinson. The defendant claimed under a Sheriff’s deed.

<p>[1.] Independent of the moral obligation of the father to support his bastard child, his statutory liability to maintain and educate it, until it arrives at the age of fourteen years, constitutes a sufficient legal consideration to enforce the payment of a promissory note given for that purpose.</p>

Indictment, for assault with intent to murder, from Habersham Superior Court. Decided'by Judge James Jackson. October Term, 1852. This was an indictment for an assault with intent to murder, in the usual form, charging the offence to have been committed on the 6th day of November, 1845. The bill was found October Term, 1848.

Motion, in Habersham Superior Court. Decision by Judge James Jackson. October Term, 1852. The questions in this case arose upon a rule to distribute money raised by a fine imposed by the Court. The rule was moved by D. H. Walker, the former Solicitor General, against W. J. Peeples, the present Solicitor, and the Clerk of the Court. The points made were, 1. That the present incumbents are entitled to be preferred to the claims of the former Solicitor. 2.

Ejectment, in Baldwin Superior Court. Tried before Judge Johnson. August Term, 1852. The lessee of the plaintiff in this case, claimed the premises in dispute, as the surviving executor of the last will of Charles S. Hurt, deceased, and also, in another count, as trustee under the said will. The defendant claimed, as the widow and administratrix of Spencer Hurt, deceased.

<p>In Equity, in Wilkes Superior Court. Tried before Judge Baxter. September Term, 1852.</p> <p>Mariah Randolph, as the executrix of Dorothy Randolph, deceased, fled a bill of interpleader, and for instruction as to the interest of the various legatees under the will of said deceased.</p> <p>This will gave certain specific legacies to two grand-daughters, and then provided, that “the above and foregoing specific legacies to my said grand-daughters, is not in any way to vitiate the right to an equal portion of'my estate, both real and persona], with the other legatees named with them in this my last will, but as an additional portion to them individually.”</p> <p>After other specific legacies, the seventh item was: “It is my will and desire that after the foregoing provisions and requirements of this my last will, shall' have been complied with and executed in accordance therewith; that the residue and balance of my estate, both real and persona], shall be distributed and divided among the hereafter named legatees, in manner and form as follows, (to wit,) whereas at a division of the estate of Richard Randolph, deceased, which took place on 27th November, 1844, there was a portion of the property of said estate set-off to each individually, differing in amount, and subject to an equalization at a subsequent and final division of said estate: This fact is recorded in a small memorandum book, to which this refers, and which is now in my possession; that Thomas P. Randolph, then received property valued at $2,250; that Martha P. Triplett, received property valued at $2,050; that Richard H. Randolph, received property valued at $2,100; that Robert R. Randolph, received property valued at $2,928— making in the aggregate, the sum of $9,328 — the one-fourth of which being$2,332, is a distributive share: The individual receiving more than a share, shall receive that much less, and those receiving less than a share, as much more as shall equalize them all, when the final division shall be made.</p> <p>It is my will and desire, that the following named legatees shall receive share and share alike, under the provisions of the foregoing items in this pay will, (to wit,) Martha P. Triplett, Robert R. Randolph, Isabella Randolph, Louisa Maria Randolph, Janeintha Dorothy Randolph, Edmund Randolph, Thomas Randolph, Richard Randolph, the children of my son Thomas P. Randolph, deceased; and Eliza Bullock Randolph, Eugenia Randolph, Richard Randolph, Anne Randolph, the children of my son Richard H. Randolph, deceased.”</p> <p>On the trial, it was admitted, that Martha P. Triplett and Robert R. Randolph, were the children of the testatrix, and the other legatees named were the grand-children; and it was also admitted, that the property divided in 1844, was the property of testatrix, and not the'property of Richard Randolph, her deceased husband; and it was proved at the trial, that Martha Triplett the daughter of testatrix, had two children living when the will was made, and at testatrix5 death; also, that Robert R. Randolph had one child living at the death of testatrix. The memorandum book containing the items referred to by the testatrix in her will, was also read in evidence.</p> <p>The question submitted to the Court below was, whether the distribution under this seventh item, should be per stirpes or per capita.</p> <p>The Court decided and so charged the Jury, that the children and grand-children, tookper capita the residue, after equalizing the division of 1844. That in order to equalize that division, the executrix should retain from Robert R. Randolph’s part, the excess he received in the division of 1844, and pay therefrom to Martha P. Triplett, the deficiency of her share; to the children of Thomas P. Randolph, the deficiency of his share, and to the children of Richard H. Randolph, the deficiency of his share.</p> <p>This decision and charge are assigned as error.</p> <p>Pending the trial, counsel for Robert R. Randolph and Martha P. Triplett, offered in evidence a deed from the testatrix, conveying to the children of Thomas P. Randolph, that property which was set apart to Thomas P. under the division of 1844, as appeared by the memorandum book. The Court rejected the evidence, and this also is assigned as error.</p>

<p>[I.] A defendant in attaclimeut has the right to appear and defend, whether he enters special bail or gives bond and security or not, whether he be a citizen of this or a foreign State.</p> <p>[2.] An appeal entered by counsel for defendant in attachment, held to be valid.</p>

Case, &c., in Columbia Superior Court. Tried before Judge Starns. September Term, 1852. This was an action on the case, for a deceit. The alleged deceit was in trading to plaintiff a note tainted with usury, and concealing the fact. It appeared, on the trial, that plaintiff brought suit on the note, and upon á plea of usury, judgment was obtained against him. An exemplification of the proceedings in that cause, was in evidence.

Certiorari, in Richmond Superior Court. June Term, 1852. Decided by Judge Starns. The defendant in error, on the 10th of January, 1852, applied to the Judge of the Court of Common Pleas, of Augusta, for an order to be brought before the said Judge, on a day to be appointed, and to notify his creditors of such day, that he might take the benefit of the several Acts of this State, for the relief of insolvent debtors, upon his compliance with the terms of those Statutes.

<p>[1.] A defendant in ejectment, where the relation of landlord and tenant is established between himself and the plaintiff, is estopped from denying the title of the plaintiff, and the plaintiff may recover upon the admission of title which grows out of that relation.</p> <p>[2.] A parol lease of lands for more than three years is void by the Statute of Frauds, and has the force and effect of an estate at will, which for the purposes of notice to quit, and some other purposes, has been by Judicial construction converted into a tenancy from year to year.</p> <p>[8.] An estate at will, made so by the operation of the Statute of Frauds, is assignable ; not so of an estate at will at Common Law, created by the act of the parties.</p> <p>[•!.] An estate at will, by the operation of the Statute of Frauds, determines upon the death of the tenant, but if lie die within the year, the interest in the tenancy for the remainder of the year passes to his legal representatives.</p>

<p>Ceitiorari, from Chatham Superior Court. Decided by Judge H. R. Jackson. 28th December, 1852.</p> <p>Alfred Haywood was fined the sum of thirty dollars with costs,by the City Counsel of Savannah, for the violation of an ordinance prohibiting the purchase of a larger quantity of fish in the market, than was necessary for the use and consumption of his family. A ceitiorari was applied for to the Judge of the Sup.erior Court, whose refusal to grant the writ is assigned as error.</p>

In Equity, in Dooly Superior Court. Decision on demurrer, by Judge Warren. At Chambers, January, 1852.

Assumpsit, &c. for use and occupation, in Sumpter Superior Court. Tried before Judge Warner. February Term, 1852. Mary E. Mercer, as the administratrix of William Mercer, brought suit against Addison Mercer, for the use and occupation of a lot of land.

<p>Assumpsit, See. and motion for new trial, in Marion Superior Court. Decision by Judge Iverson. August Term, 1852.</p> <p>Neal Lary placed in the hands of Vincent T. Hart, for collection, a note ón L. L. Curry, for one hundred dollars. He afterwards brought this action for money had and received, against Hart, for the amount of this note. On the trial, it was proved that Hart placed this note in the hands of Zachariah Conner, to be sent to plaintiff. Conner collected the amount of the note from Curry. Conner was considered, at the time, responsible, but afterwards absconded.</p> <p>The Jury found a verdict for plaintiff. On motion, the Court below granted a new trial, on the ground that the verdict was not authorized by the evidence.</p> <p>This decision is assigned as error.</p>

<p>[1.] It is a well settled principle of the Common Law, that the judgments of a Court of special and limited jurisdiction, must show upon their face such facts, as are necessary to give to the Court rendering such judgment, jurisdiction of the person of, the defendant and the subject-matter of the debt.</p> <p>[2.] It may be stated, as an incontrovertible legal proposition, that every power exercised by any Court, must be found in, and derived from the law of the land, and also be exercised in the mode and manner that law prescribes.</p> <p>£3.] Whenever such jurisdiction appears on the face of the proceedings up on which the judgment is rendered, everything will be intended in favor of the judgment; but when nothing appears on the face of the proceedings on which such judgment is founded, to give to such Court jurisdiction, as required by law, either of the subject-matter or the parties thereto» the whole proceeding is coram nonjudice, and void.</p> <p>£4.] The question as to the application of this Common Law principle to Courts of limited jurisdiction, discussed.</p> <p>[5.] Where a judgment, obtained in a Justices’ Court, in this State, was offered in evidence, to establish the plaintiff's demand, and there was no evidence that the defendant had ever been served with a summons, as required by the Statute: Held, that the Court rendering the judgment, had no jurisdiction of the person of the defendant, and that such judgment was not even prima facie evidence of indebtedness.</p> <p>[G.] When the defendant demurs to the plaintiff’s evidence — about which there is no dispute — and admits the same to be true, he has the right to do. mand the judgment of the Court, as to the law arising upon such facts, and if, in the opinion of the Court, the same are not sufficient in law to authorize the plaintiff to recover, it is in the power of the Court to award a non-suit.</p> <p>p.] The docket of the Justice of the Peace, in whose Court a judgment is rendered, ought to furnish the evidence of the service of a summons on the defendant, as required by the Statute; but the next best evidence, is the production of the summons, if that can be found; but if that cannot be found, after due search and inquiry, then, parol evidence of proof of service, is admissible,</p>

In Equily, in Harris Superior Court. Tried before Judge Iverson. September Term, 1852. Celia Murphy and Abigail Murphy filed a bill against John G. Andrews, showing that they were, joint tenants with one George H. Booker, in a house and lot of land, lying in Harms Count}'.

Debt, &c. in Talbot Superior Court. Decision by Judge Iverson. September Term, 1852. Scott Cray, as the receiver of the Ocmulgee Bank of the Stale of Georgia, brought an action of debt against Benjamin R. Searcy. Scott Cray died, and Thomas P. Stubbs was appointed receiver in his stead, by the Superior Court of Bibb County.

<p>Debt, in Baker Superior Court Tried before Judge Taylor, December Term, 1852.</p> <p>George W. Collier, as Deputy, Sheriff of Baker County, levied a mortgage fufa, on “ eight lots in the City of Albany, and in the first district of Baker County, Nos. 14, 16, 18 and 20, oil Commerce Street, and 13, 15, 17 and 19, on Stale Street, levied on as Joseph B. Shore’s property, &c.”</p> <p>At the sale, David A. Vason became the purchaser, and refusing to comply with the terms of.sale, the Sheriff, Collier, advertised and sold the property again, at the risk of Vason, the purchaser. The property sold for three hundred dollars less than Vason’s bid, and suit was brought by Collier, as Sheriff, against Vason, to recover this difference. On the trial of this cause, plaintiff offered in evidence, the second advertisement, describing the property as “ eight City lots, in the City of Albany, numbers not recollected, but known in said City, by the name of Joseph B. Shore’s property. The same was sold on the first Tuesday in February last, at #1145, and David A. Vason being the highest bidder, the same was knocked off to him, and he refusing to comply, the same is now sold at his risk.”</p> <p>Counsel for defendant objected to the admission of this evidence, on the ground that this advertisement was uncertain in its description of the property, and did not describe the same property with the first advertisement.</p> <p>The Court rejected the evidence, and this decision is assigned as error. *</p>

Indictment for Murder, in Decatur Superior Court. Tried before Judge Taylor. October' Term, 1852. Joshua P. Willis was placed upon his trial upon an indictment for the murder of Isaac Dean.

<p>[1. i A Sheriff in his levy of land under a fi. fa. having misstated the number of the lot, can the error be corrected at Law ? Quere.</p> <p>[2.] In the cross-examination of a witness, as to the contents of a letter or other paper written by him, with a view to impeach his credit, counsel will not be permitted to represent in the statement of a question, the contents of the writing, aud to ask the witness whether lie wrote it, without having first exhibited the letter itself to the witness.</p> <p>[8.) The proper course is to put the writing into the hands of the witness, or to attach it to his interrogatories; and to ask him whether it is his writing.</p> <p>[4] The rule in Philips and Greenleaf that where evidence of contradictory statements by a witness, is offered by way of impeaching his veracity, general evidence that he is a man of truth aud veracity, may be admitted, controverted and denied.</p> <p>[6.] Evidence as to general character, can be introduced only where the general character is impeached; but not where the witness is discredited as to a particular fact.</p> <p>[(>.] Tile jndf/ment in Fain and Garthriffht, (5 Geo. Rep. fi,) re-affirmed.</p> <p>'/.] A. veudeo who enters into possession of land, under a contract of purchase, ■with an unconditional bond for titles, to be executed at a time stipulated, does not hold adversely as against the vendor, until the purchase money is paid.</p>

Debt, &c. in Stewart Superior Court. Decision by Judge Iverson. October Term, 1852.

Trespass, &e. in Randolph Superior Court. Motion for new trial, and decision by Judge Taylor. September Term, 1852. Augustus Anderson and Wife brought an action of trespass, &c. against James Suggs, for an assault and battery upon the wife of Anderson. The Jury returned a verdict for the plaintiffs, for $345.

<p>In Equity, in Randolph Superior Court. Decision by Judge Taylor.</p> <p>For the facts of this case, see the decision of the Court.</p>

<p>[1.] Where a defendant in ca. sa. had given bond and security to appear at Court, and comply with the provisions of the Act for the relief of honest debtors, and had failed to file his schedule, and give notice to his creditors in terms of the Act, and an order was granted by the Court, ordering that said defendant be taken into immediate custody by the Sheriff, and be detained without bail or mainprize, until he pay off and discharge the full amount of principal, interest, and costs, due on said ca. sa: Held, that the order of the Court was sufficiently full and explicit, to authorize the Sheriff to take the defendant into his custody and confine him in the common jail of the County ; and that it was error to reject said order, when offered in evidence to the Jury, on the ground that it was not sufficient authority for that purpose.</p>

<p>Ejectment, in Sumpter Superior Court. Tried before Judge Taylor.</p> <p>This was an action of ejectment, brought by plaintiffs, to recover a lot in the Town of Americas, upon the following state of facts: Plaintiffs introduced Lott Warren, who testified that he (witness) purchased the lot on which is situate the premises in dispute, in the year 1835, of one Kenny, and thereupon went into possession of the premises. While in possession, he sold to Harrison Jones, the administrator; that after that, one James Bassey went into possession of the lot, under a contract for purchase and held the same under Jones for several years, making improvements, and erected a dwelling house, and other houses, then moved away; the premises remained unoccupied for several years, say four or five. The plaintiffs then proved by one Ronald-son and others, that one Edmnod Nunn, the father of the defendant, several years after the vacation, of the premises by Bassey, went into possession thereof, and resided thereon for several years ; also rented out the place, and made improvements thereon to the value of seven hundred dollars; then sold premises to witness, but subsequently rescinded the trade, saying that he had taken advice of counsel, who informed him he had no title to the lot. That the said Nunn held possession four or five years, and that defendant moved into possession soon after, and that Edmond Nunn said he was willing to abandon the premises, “ if Jones would charge him no rent; ” and also by W. Harris, that the lot had bfeen sold at Sheriff sale, as he understood; that defendant was still in possession. Plaintiffs also introduced letters of administration on the estate of Harrison Jones, deceased. Also, deed from Warren to Jones, dated 7th March, 1836, and then closed their ease. Upon this state of facts, his Honor Judge Taylor then charged the Jury,</p> <p>That the possession of Jones was not such as would entitle the plaintiffs to recoveras his representatives ; that the deed from Warren to Jpnes, was not sufficient evidence of written title to authorize the plaintiffs to recover; that the possession of Warren and Jones at so remote a period, was not such a possession as would entitle the plaintiffs to recover, or establish a color of title, unsustained by a possession immediately preceding the commencement of this action, and of which plaintiffs had been ousted by the trespass of defendant; and that such possession might have made Warren’s deed to Jones a good title, and such an one as they could recover upon, under the deed; and that the Jury could not regard defendant as a trespasser, until plaintiffs proved themselves entitled to recover. To which said several charges, the plaintiffs excepted, and all the points in this charge are assigned for error.</p>

<p>[1.] An informer who commences a qui tarn action under a penal Statute, , does not acquire thereby a vested right to the forfeiture; his claim to the ' penalty is inchoate only, and cannot be fixed, except by judgment.</p> <p>¡2., No judgment can be rendered on a repealed Statute; the repeal prevents the imperfect right from being consummated; and it is competent for tlie Legislature to pass such repealing Statute at any time before final judgment; and it matters not whether the whole penalty, when reovered, is given to the public or to the prosecutor, or it is divided between them.</p> <p>[S.! In civil cases, the Jury are bound to find the law as it is propounded to them by the Court.</p> <p>[4] Acts of the Legislature in undoubted collision with the Constitution of the State, or of the Umted States, are, ipso facto, void ; and the Courts have the power, and it is their duty, however irksome the performance, to declare them a nullity.</p>

<p>[1.] The affidavit of a Juror cannot be received to impeach his verdict, or to show that he misapprehended the testimony, or what were his impressions as to the’effect of his finding, or that the Jury intended something different from what they found by their verdict.</p> <p>[2.] Where by agreement before the trial, the plaintiff was to make certain admissions at the trial of the cause, and he did make admissions, to which the defendant did not object, at the time the same were made, on the ground they were not as full as the plaintiff promised to make: Held, that it was too late, after verdict, to move for a new trial, on the ground of surprise, after having acquiesced in the sufficiency of the admission, at the trial.</p> <p>[8.] Applications for new trials, on the groundof newly discovered evidence, are not favored by the Courts; but when the affidavit of the witness is produced, stating what he will swear, and it is shown that the knowledge of the newly discovered evidence, was acquired by the party app-ying, since the trial; that it was not owing to the want of due diligence that he did not obtain it sooner ; that it is not cumulative only, and that it is material, and might probably produce a different verdict, a new trial will be granted.</p>

<p>[1.] The sayings of the defendant in execution are not admissible in favor of the claimant; nor are the sayings of the claimant admissible, in his own behalf, exceptso far as they are a part of the same conversation, proven by the plaintiff in execution. They are good in favor of the plaintiff in execution.</p>

In Equity, in Stewart Superior Court. Decided by Judge Iverson.

Case for words, in Marion Superior Court. Tried before Judge Iverson. This was an action of slander, from Marion, for words spoken by the defendant, charging beastiality upon Andrew J. Perdue, who sued by his natural guardian or next friend, he being a minor.

<p>Traverse of answer of garnishee. Tried in Muscogee Superior Court, before Judge Iverson. November Term, 1852,</p> <p>This case was tried on the answer of the garnishee, the defendant in error, and the traverse of the plaintiff in error. The defendant in error proved that Lively & Clapp were indebted to him, by notes, for borrowed money, for the sum of thirty-nine hundred and twenty-one dollars and 8 cents. The plaintiff in error, by cross-examination, proved that Lively & Clapp had failed and closed doors, and were unable to pay their debts ; that the conveyance or assignment executed by Lively & Clapp to defendant in error, contained all the property of Lively & Clapp, at the time of the execution of the same, except some goods, which were, a few days thereafter, transferred to Hall & Deblois, to secure a debt due them ; that Lively and Clapp were indebted to the plaintiff in error, at the time of the execution of said conveyance, some seven or eight thousand dollars, and various amounts to divers other persons.</p> <p>The defendant in error then introduced and read in evidence, a deed of assignment or conveyance, by Lively & Clapp, to him, dated the 6th day of August, 1851, transferring and assigning open accounts due the said Lively and Clapp, amounting to the sum of three thousand seven hundred and seventy-jive dollars, and certain promissory notes and due-bills, due said Lively & Clapp, for about the sum of nine hundred and seventy-one dollars, “ with full power and authority to collect, in any manner he may see proper, the said notes and accounts, and to receipt for the same, and to have possession and control of the books which contain the said accounts, at large, and to enter said credits on said books, for any amount received by him, in collecting said accounts, which shall be good and valid, to all intents and purposes whatever.</p> <p>In trust that all amounts which may have been collected and received by the said J. R. Clapp, on said accounts and notes, shall go to the credit of the said demands above specified, as due by said Lively & Clapp, to said J. R. Clapp; and when the said J. R. Clapp shall have collected an amount sufficient on said notes and accounts to pay off and discharge the principal and interest of said demand due by said Lively & Clapp to J. R. Clapp, and to pay- all expenses, fees and costs which may accrue or be incurred by the said J. R. Clapp, in the collection of the same; then, if there shall any money remain in his hands, or any of said notes and accounts remain uncollected, the same shall be subject to the order of said Lively & Clapp.”</p> <p>It also appeared by the answer of garnishee, which was not disproved, that Lively & Clapp had drawn orders on him for more than the amount of such balance, which orders he had accepted before the service of the summons of garnishment.</p> <p>The testimony having closed, the counsel for plaintiff in error requested the Court to charge the Jury that the conveyance of Lively '& Clapp to Julius R. Clapp, was null and void ; which charge the Court refused to give, and on the contrary, charged the Jury that the said conveyance was not contrary to the Act of 1818, and good and valid .in law, if not made to hinder and delay creditors. To which refusal and charge as given, the counsel for plaintiff in error excepted, and assigned the same as error.</p>

<p>Motion, in Muscogee Superior Court, on appeal from Ordinary. Decision by Judge Iverson. November Term, 1852.</p> <p>For the facts of this case, refer to the decision of the Court.</p>

<p>[1.] Where a party is the holder of the bills of an incorporated bank in this State, to the amount of $160,00, be may divide the bills so held by him;, that is to say, he may select three ten dollar bills, or six five dollar bills* and maintain suit tbereon in a Justice’s Court, according to the provisions of the Act, of 1842.</p> <p>[2.] A Justices Court, iu this State, has jurisdiction to award judgment against a bank, for the non payment of its bilis in specie, to the amount of thirty dollars, with interest thereon, and ten per cent, damages, as provided by the Act of 1832.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Iverson. November Term, 1852. The complainants having made various and lengthy amendments to their bill, and there being numerous defendants, at May Term, 1852, the Court passed an order requiring service of the amendments to be perfected on the defendants within sixty days, and that the defendants appear, and plead, answer or demur, on or before the next term of the Court.

<p>In Equity, in Muscogee Superior Court. Decision by Judge Iverson, November Term, 1852.</p> <p>Thomas Stocks, for himself and other creditors of the Chattahoochee Railroad and Banking Company, on 25th March, 1848, filed in the Clerk’s office, a bill in Equity against Van Leonard, James Bethune, and others, stockholders in the said corporation, to make them liable for the redemption of the bank bills issued by the corporation. On 27th December, 1848, important amendments to the bill were filed. Henry Crew and John Sutlive, two of the defendants, died pending the litigation.</p> <p>At November Term, 1852, complainant’s solicitor moved an order dismissing the bill, as to Henry Crew, John Sutlive, and twenty-two others of the defendants ini’the bill, without prejudice. The Court granted the order, and the other defendants, by their solicitors, excepted.</p> <p>Complainant’s solicitor also moved an order that the remaining defendants be served within sixty days with a copy of all the amendments made to the bill, and that they appear and answer the bill as amended, on^or before the first day of the next Term of this Court, with the liberty of pleading or demurring, or both, at the option of defendants.</p> <p>The Court granted the order, and defendant’s solicitor excepted. Defendant’s solicitor then moved the Court to dismiss the bill for want*’of prosecution with due diligence by the complainants, and for the reason that the Court had not so ordered the proceedings in the case, as that it should be then ready for trial, although more than four terms had elapsed from the filing of the bill to the time of making the motion.</p> <p>The Court refused to grant the motion, and defendant’s solicitor excepted.</p> <p>Upon these several exceptions, error has been assigned.</p>

<p>In Equity, in Muscogee Superior Court. Decision by Judge Iverson. November Term, 1852.</p> <p>Edward Carey, as assignee of the Bank of Columbus, by bill in Equity, complained to the Superior Court of Muscogee County, in hehalf of himself and all the other creditors of the late Daniel McDougald, who might choose to come in and be made parties complainants to the bill, and alleged that he was a creditor of the late Daniel McDougald ; that he annexed copies of his claims against McDougald to the bill, being copies of a bill of exchange, a promissory note, and two certificates of deposit in the Planters’ and Mechanics’ Bank of Columbus.</p> <p>Th.atin September, 1849, McDougald died, leaving an estate in Georgia, according to the best of his information, worth $60,-000, or some such large sum ; that McDougald died indebted to various persons besides him, the complainant, and in large amounts; that his estate was insolvent, with a prudent and faithful administration of it; that although McDougald left a widow, Ann E. McDougald, and several brothers and brothers-in-law, no steps were taken by them to administer the estate, until about June following his death; and none would have been taken then, had not a portion of bis creditors taken steps to have the estate administered by the Clerk of the Court of Ordinary; that at the July Term of the Court of Ordinary, 1850, at whieh it was expected authority wrnuld be conferred on the Clerk, Mrs. McDougald objected to the administration being conferred on the Clerk, and claimed it for herself; that letters were then granted to her. That R. B. Alexander, her brother, and A. Mc-Dougald, the brother of Daniel, appeared in the Court for her, and in reply to the inquiries of the Court, as to the value of the estate in Georgia, represented Daniel McDougald to be insolvent, and his estate in Georgia to be worth not more than $15,-000; that upon this, the Court required her to give bond and security in the sum of $36,000; which she did, with R. B. Alexander and Duncan McDougald, as sureties.</p> <p>That he, Carey, believed the statements to have been made with the approbation of Mrs. McDougald, for the purpose of reducing the amount of the bond, with a view to the waste of the estate; that the statements were not true.</p> <p>That the administratrix did not make out and return an inventory or cause the estate to be appraised, until about the 11th of January, 1851; when there was returned to the Clerk of the Court, a paper purporting to be an inventory and appraisement.</p> <p>That this is not verified by the oath of Mrs. McDougadl, nor is" it under her proper hand, but was made out and returned by R. B. Alexander, who acted as her agent.</p> <p>That Daniel McDougald had in cash at the time of his death, $9,000 ; that he was then in possession of a plantation, on the east side of the Chattahoochee river, with the negroes on it, of the value, with the stock, &c. of $25,000; that Duncan McDougald claimed to have the title to the plantation and negroes, but if he had the title, it was the result of fraud between him and Daniel McDougald, to injure the creditors of Daniel; thatDaniel bought the plantation at Sheriff’s sale, and paid for it; that he bought or raised most, if not all the negroes; that if title was transferred to Duncan, it was done without a sufficient consideration.</p> <p>That Daniel had at his death a large amount of choses in action; that these and the other specified chattels, had been removed by Mrs. McDougald or R. B. Alexander, or Duncan Mc-Dougald.</p> <p>That Daniel McDougald in his lifetime, recovered a judgment against Tomlinson Fort; that on the 28th of December, 1850, the proceeds of the judgment, $5173.50, wmre paid over to Mrs. McDougald, administratrix, who then receipted for the same.</p> <p>That none of the before-mentioned property or money, is mentioned in the inventory.</p> <p>That Daniel McDougald had title to a tract of land, lying partly in Bibb and partly in Twiggs, worth $8000 or $9000; that ft. B. Alexander, as agent of the administratrix, in December, 1850, directed the attorney of the estate to sell the tract of land at private sale, promising to procure an execution against Daniel McDougald, and have it levied on the land, and have the land sold to perfect a title in the purchaser, with a view to the waste of said land, as part of the estate ; that in pursuance of the arrangement, R. B. Alexander, as her agent, procured an execution in favor of the Mechanics’ Bank vs. Daniel McDougald, which, as complainant had been informed, had been paid off, and caused it to be levied on the land, and a sale to be nadvertised for the 1st Tuesday in April, 1851; that this sale would have taken place, but for the interference of the Superior Court of Muscogee County, on a bill filed by William Dougherty; that the application by this'bill was, after argument, refused ; and that he, Carey, feared and believed that the administratrix would carry out her fraudulent purpose, and sell the land, unless prevented by the Court.</p> <p>That the bond of the said Ann E. afforded the creditors little security, she being worth nothing, apart from her interest in the estate, and the estate of R. B. Alexander, one of her sureties, being insolvent, and the other surety,.Duncan McDougald, not being worth more than $5000.</p> <p>That he, complainant, feared the estate would be wasted, so as to defeat the collection of his demands.</p> <p>The bill then prayed the Court to interfere in the premises, and by the appointment of a receiver, &c. and the adoption of such other orders, writs, or decrees, as would repair the waste committed, and prevent that apprehended, and save the estate for .those entitled to it; and it prayed for such other and further relief, as to the Court should seem reasonable and just. It prayed an injunction to prevent the sale of the said tract of land; and it prayed subpoenas to be directed to Ann E. McDougald, Alexander McDougald and Duncan McDougald.</p> <p>The bill was sworn to by Carey, on the 25th of December, 1851. A subpoena as prayed for, was annexed to the bill, dated the 29th of November, 1851. The bill is marked, “filed in office, this 25th November, 1851. E. S. Harden, Clerk.”</p> <p>On the 1st of December, 1851, the bill was served on Ann E. McDougald ; on the 13th, it was served on Alexander Mc-Dougald, and on the 17th, on Duncan McBongald.</p> <p>To this bill the defendant, Ann E. McDougald, filed her answer, on the 10th of May, 1S52, and the other two defendants filed theirs on the 13lh of November, 1852. ‘These answers are at great length, and for the most part they deny the allegations in the bill. They also set up against the complainant several defences ; amongst others, a set-off, ánd a full settlement.</p> <p>On the 1 lib of May, 1852, the complainant obtained leave of the Court to amend his bill; and on 13th he filed an amendment.</p> <p>By this amendment, he alleged that payment of his note, draft and certificate of deposite, had been demanded at the time when they respectively fell due ; that payment was refused, and that Daniel McDougald was duly notified of such refusal. '</p> <p>it also alleges, that at May Term, 181-9, James S. Watson and William C. Watson, obtained a decree against the estate of James C. Watson, for !¿13,208.95; that this decree, about the first of the year after it was rendered, was purchased by Daniel McDougald and paid for; that since his death, Ann E. McDougald, with the view of keeping this decree out of the regular administration, and of appropriating it to her own use, had procured a transfer of the decree to herself individually, and had the same levied.</p> <p>He also alleged, that she had collected money on the notes given Daniel McDougald in his lifetime, for land.</p> <p>On the 30th of November, 1852, the defendants all filed their joint answer to the amended bill. In this answer, they denied the greater part of the allegations contained in the amendment to the bill.</p> <p>On the 23d day of December, 1852, the complainant obtained from the Court, an order that the amendment that day filed to the bill, should be allowed ; that the defendants or their counsel, should be served within thirty days from that date, with a copy of said amendment, and the said Henry J. Devon, Seaborn Jones and Samuel A. Billing, administrators of R. B. Alexander, deceased, should also be served within the time aforesaid, with a copy of said original bill, and the amendments theretofore made thereto, as well as the amendment that day allowed; that all said defendants should be served with a copy of that order, and that they should appear and answer said bill as amended on or before the first day of the then next term of that Court, with the liberty of pleading or demurring thereto, or both, if they thought proper to do so.</p> <p>On the same 23d of December, 1852, the complainant filed the said amendment to the bill.</p> <p>By that amendment, he made a number of allegations, and amongst others, certain material allegations against persons not parties to the bill, namely: Henry J. Devon, Seaborn Jones and Samuel A. Billing, as administrators of Robt. B. Alexander, and it prayed that these persons might be made parties defendants to the bill as amended, and that they might answer the charges and allegations of the same.</p> <p>The defendants objected to the granting of the last mentioned order by the Court, but the Court overruled the objection and granted it.</p> <p>To this decision they excepted.</p> <p>Mrs. McDougald then presented her petition to the Court, to compel the complainant to elect whether he would proceed against her for the matters contained in the bill, in Equity or at Law.</p> <p>At the time when the bill was filed, suits were pending in the said Superior Court on its Common Law side, in favor of the complainant against the defendant, Ann E. McDougald, as administratrix of Daniel McDougald, deceased, founded on the same note, draft and certificates of deposite aforesaid.</p> <p>The Court below refused to grant her petition, and to this refusal she excepted.</p> <p>The defendants then moved to dismiss the bill for want of a due and diligent prosecution of the case, and for the reason that the proceedings in the case had been so ordered, that the ease could not be ready for trial at the third term from the filing of the bill inclusive. This motion the Court overruled.</p> <p>And to this decision the defendants excepted.</p>

Attachment, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852. This was an action founded on an attachment from Muscogee Superior Court, upon the following state of facts: In the year 1836, the plaintiff in the Court below, shipped through Harper & Holms, at Apalachicola, Florida, five hundred bales of cotton.

<p>Claim, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852.</p> <p>This was a claim case in Muscogee Superior Court. Dexel & Co., creditors of E. & B. Mendhime, sued out an attachment and had it levied upon certain goods in the possession of the said E. & B. Mendhime, which goods were claimed by one Morrely Herschfeld, under and by virtue of the following instrument, the construction of which was brought up for the consideration of this Court.</p> <p>This indenture, made at the City of New York, this 13th day of March, 1852, between Ernil Mendhime, of the first part, and Morely Herschfeld, of the second part. Whereas, the ■ said party of the first part, is embarrassed in his business, and unable to pay his indebtedness in full, and is desirous of providing for the payment thereof, in such order of priority as shall be just. Now, therefore, this indenture witnesseth, that the said party of the first part, in consideration of the premises and one dollar to him in hand paid, hath sold, assigned, transferred and set over unto the party of the second part, all the estate, both real and persona], of him, the said party of the first part, including his stock of merchandize, in his store at Columbus, Georgia, and all his bills receivable, notes outstanding, credits, accounts, claims and demands, and all other of his estate, both real and personal, of every name and kind, wheresoever the same may be; to have and to hold the same unto the said party of the second part in trust, to take possession of the same, and to collect in all bills receivable, notes outstanding, credits, accounts, claims and demands, and to turn the said hereby assigned estate, into cash, and out of the proceeds thereof, after paying all the just and proper expenses in executing the herein contained trusts, to pay, in the first'place, the expenses of preparing this assignment, and to retain for himself, the said party of the second part, the just and legal compensation, for executing the herein contained trust, and after paying the above in full, then to pay in the second place, unto Benedict and Boardman, the amount which the party of the first part is indebted unto them for professional services, and which does not exceed one hundred dollars; and after paying the above in full, then to pay in the third place, unto Morrely Mendbime, the sum of two thousand dollars, in which amount the said party of the first part, is indebted unto him, in part for his salary as a clerk in the employ of said party of the first part, and the residue for cash, which he loaned unto the said party of the first part, and for which said amount he holds, the promissory note of the said party of the first part, and also to pay in full unto Simon Lesserman, the sum of nine hundred and eighty-seven dollars and fifty cents, in which sum the said party of the first part, is indebted unto him, for so much money paid by him for the said party of the first part, having endorsed the promissory note of the said party of the first part for that amount, at his request, which notes the said Lesserman paid and still holds, and also to retain for himself, the said party of the second part, the sum of two thousand dollars, in which amount the said party of the first part, is indebted unto him, in part for cash paid for on account of, and at the request of the said party of the first part, having endorsed the promissory notes of the said party of the first part, at his request, and having paid the same, which he still holds, and the residue for cash loaned by him to said party of the first part; and after paying the above in full, then out of what may remain of the said net proceeds of the hereby assigned estate, to pay, in the fourth place, in full if sufficient for that purpose, unto all the other creditors of the said party of the first part, the amount in which the said party of the first part is indebted unto them, respectively ; but if not sufficient to pay the same in full, then to divide such last mentioned creditors, pro rata according to the amounts in which said party of the first part is indebted unto them respectively, and the said party of the first part does hereby constitute and appoint the said party of the second part, his true and lawful attorney for him, and in his name, to do and perform every act, deed and thing, in order to carry into full force and effect, the provisions of this assignment. And the said party of the second part, in consideration of the premises, and of the one dollar to him in hand paid, by said party of the first part, does hereby accept of of this assignment, and become a partj; thereto, and covenants and promises to and with the said party of the first part, that he will perform and fulfil the trusts herein contained, according to the true intent and meaning thereof; and that he will, with all convenient speed, cause a just, true and correct inventory of all of the hereby assigned estate, to be made and annexed to this assignment. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first herein written. '</p> <p>Signed, E. MENDHIME.</p> <p>J. W. Benedict. M. HERSCHFELD.</p> <p>The Court below charged the Jury that the instrument above recited, was contrary to the Act of 1818, and consequently void; to which decision the counsel for the complainant excepted, and upon that point this case is brought to this Court for review.</p>

<p>Assumpsit, in Harris Superior Court. Tried before Judge Iverson. September Term, 1852.</p> <p>William Wiley commenced suit against Samuel Truett, as executor de son tort, of Catherine Harrington, for the distributive share of the plaintiff, of $287, in the hands of defendant. The facts were, that Mrs. Catherine Harrington died in 1848, intestate. At the time of her death, the defendant, a neighbor, and others, being preseht,in examining the intestate’s effects,” found a roll of money in a trunk, amounting to $287. By agreement of those present, it was taken home by defendant, to be kept for the benefit of the heirs and distributees. Defendant a few weeks afterwards, paid over to some of the heirs, this identical money — the plaintiff, who was one of the heirs, being absent in Mississippi. The following receipt was also in evidence :</p> <p>“ Georgia, Harris County.</p> <p>Received, June 27th 1848, of Cyrus Harrington, actor for us, late of said County, seven hundred and thirteen dollars and ninety-one cents, each of us, in full and complete satisfaction of all my right, title, or interest, in and upon the estate, real and personal, of my mother’s estate, Catherine Harrington, deceased. In testimony whereof, &c.”</p> <p>This receipt was under the hands and seals of William Wiley, and the other heirs.</p> <p>The Court charged the Jury, that the proof did not establish such an intermeddling on the part of Truett, with the estate of Catherine Harrington, as to make him an executor de son tort; that even if chargeable as .executor, the receipt was prim.a facie evidence that the plaintiff had received his part of the money so received by the defendant, and that therefore the plaintiff could not recover, unless he couldrebut this presumption.</p> <p>To all and each part of this charge plaintiff excepted.</p>

Assumpsit, &e. in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852. John C. Blackman brought suit .against John J. Boswell and George H. Sims, jointly, upon an account for one hundred days’ work and labor, at $2 per day.

In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Iverson, November Term, 1852. Thomas Fleming died testate, leaving a considerable estate; James Sullivan qualified as the executor of the will, and took possession of the estate.

<p>[1.] Where a bill was filed by a judgment creditor of a bank against the assignee thereof, to account for the assets of tire bank, which came into his hands as such assignee: Held, that when the defendant has in his power, the means of acquiring the information necessary to make the discovery called for, he is hound to make use of such means, whatever pains or trouble it may.cost him.</p>

<p>[l.| If the writ of error and citation are not filed within the time prescribed by law, the case will be dismissed.</p>

<p>Motion, in Muscogee Superior Court. On appeal from Ordinary Decision by Judge Iverson. November Term, 1852</p> <p>For the facts, see the decision of the Court.</p>

Certiorari, in Muscogee Superior Court. Decision by Judge Iverson. November Term, 1852. This was a certiorari sued out to a decision of the Inferior Court of Muscogee County.

<p>Trespass, in Muscogee Superior Court. Tried before Judge Iverson. November Term, 1852.</p> <p>William Dougherty, as an attorney, directed the Sheriff of Muscogee County to levy a fi. fu. in favor of Edward T. Taylor, administrator, &c. vs. M. Torrance, administrator, &c. of Jas. C. Walson, deceased, on several lots of land, known as the “Watson place,” and in the possession of Duncan McDougald; which levy was made by the Sheriff. McDougald interposed a claim thereto, which is still pending; and commenced a suit against Wm. Dougherty, for a trespass, in causing the levy to be made.</p> <p>On the trial, the above facts were given in evidence, and the further fact that Watson was in possession of these lands a short time before his death.</p> <p>When Mr. Dougherty arose to address the Jury, the Court remarked that it was unnecessary, as the Court would charge the Jury that there was no evidence to authorize a verdict against the deiendant; and that if he had asked for anon-suit, the Court would have granted it.</p> <p>The Court charged the Jury as intimated above ; and to this charge, and the previous remarks of the Court, exceptions were filed, and error has been assigned thereon.</p>

Action on a note, in Muscogee Superior Court, Tried before Judge Iverson. November Term, 1852. The plaintiffs in error brought suit upon a note made by the defendants in error, in the form prescribed by the Act of 1847, entitled, “An act to curtail and simplify pleadings at Law;” adding thereto an averment of a subsequent promise to pay the note, for the purpose of avoiding the plea of the Statute of Limitations.

This was an application for a mandamus, to be directed to the Clerk of the Superior Court of Muscogee County, requiring him to send up the transcript of the record in this cause, which he refused to transmit until the costs of making out the transcript were paid. The single question involved, was the right of the Clerk to demand these costs before transmitting the record.