Volume 13 — Georgia Reports

Ejectment, in Meriwether Superior Court. Tried before Judge I-Iill. August Term, 1852. This action was brought by the defendant against the plaintiff in error for the recovery.of lot of land number 112, in the seventh district of Meriwether County. Several demises were laid in the declaration ; both parties, however, claimed title through one Howell W. Jenkins.

<p>[1.] Where a defendant takes possession of the property of a decedent’s estate, as an executor in his own wrong, and fraudulently removes and secretes the same for a number of years, and when found, after diligent search, within three months prior to filing the compilainant’s bill, admitting he had the property in his possession, and promised to account and pay to the complainant the one-half thereof: Held, that such claim of the complainant was not stale and barred by lapse of time.</p>

<p>[1.] It is error to proceed to a decree against a defendant in Equity who has failed to appear and answer the bill, unless an order to take the bill jjjv confesso is previously applied for and granted. '</p> <p>[•2.] A decree against an administrator who is discharged by a judgment of the Court of Ordinary, and a successor appointed pending the cause, is a nullity, so far as the estate is concerned,</p> <p>[3.] It is error to decree against an infant defendant in Equity, although served, without first appointing a guardian ad litem, and that whether he has a regularly appointed guardian or not.</p> <p>[4.] It is not sufficient in a bill of review to refer to the record of the decree sought to be revieived, as a paper of file in' the Court where the cause is pending, with a request that it be made a part of the bill. It must be fully set forth in the bill or appended as an exhibit.</p> <p>[5.] An order to enforce a decree in Chancery which transcends the decree, is void.</p>

Complaint fpr debt, in Twiggs Superior Court. Tried before Judge Powers. September Term, 1852. This was an action of debt, brought by James C. Burns against John Rozar as principal, and Joseph King security, on a promissory note for $1094 00, dated the 18th July, 1845, and due the 1st day of January following, and payable to the plaintiff. To this action the defendant Rozar filed the plea of usury.

Caveat on appeal, in Coweta Superior Court. Tried by Judge Hill. September Term, 1852. The issue in this case arose upon a caveat to the nuncupative will of, Martha Newman.

<p>[1.] The Act of 1830, (Cobb’s New Digest, 527) passed for the protection of the rights of remainder-men and reversioners in personal pi'operty, should be strictly construed, and its provisions fully complied with. The allegations in the bill, for a ne exeat, should conform substantially, if not literally to the requisitions of the Statute, and the oath of the complainant be positive as to the truth of the charges in the bill.</p>

Assumpsit, in Dooly Superior Court. Tried before Judge Powers. October Term, 1852. This was an action of assumpsit, brought by Dawson against Williams, on a promissory note, returnable to the May Term, 1851, of Dooly Superior Court. At the April Term, 1852, the defendant confessed judgment, and entered an appeal, having filed no plea.

Assumpsit, in NeAYton Superior Court. Tried before Judge Starke. September Term, 1852. This Ayas an action of assumpsit, brought by Doughty & Beall against Richard Byrne, for the recovery of eleven hundred and five dollars and forty-six cents, advanced by the plaintiffs for the defendant.

Debt, in Spalding Superior Court. Tried before Judge Starke. November Term, 1852. This was an action of debt, brought by John L. Moody, as administrator on the estate of John II. Ncwland, deceased, against the defendant in error, on the following note: “ On or before the first day of January, eighteen hundred and forty-two, wc or either of us promise to pay to administrators of estate of John II.

<p>[1.] Where P was charged as being the principal actor in procuring the destruction of a will: Held, that the party attempting to set it up, was not obliged to rely upon his testimony, but might prove his declarations as part of the res gestee, so far as the same constitute a part of the principal transaction, illustrate its character, and are cotemporaneous with it.</p> <p>[2.] Where a testator during his last illness is unduly induced by fear, favor or affection, or any other cause, unduly exercised in such manner as to take away his free voluntary mind and capacity, to destroy his last will and testament, duly executed by him — a copy of the same, upon due proof thereof, will be established.</p>

Award, in Bibb Superior Court. Tried before Judge Powers. November Term, 1852. On the 14th day of December, 1851, a negro boy was killed, and a carriage destroyed, property belonging to the estate of Willis Boon, by a train of cars running on the Macon & Western Railroad, in the County of Monroe.

In Equity, in Twiggs Superior Court. Tried before Judge Powers. September Term, 1852. In the year 1835, William Johnson sold lot of land number 112, in the 28th district of Twiggs County, to Wm. E. A. Wall, who afterwards, to wit, in 1840, executed a mortgage deed to the north-east half of said lot, to Ira Peck, to secure the payment of $300.00, and in drafting the mortgage, the said lot was described as being number 109, instead of 112.

Trespass, for false imprisonment in Bibb Superior Court. Tried before Judge Powers. November Term, 1852. Riley brought an action of trespass against Johnson, for falseymprisonment. When the plaintiff offered to read the declaration, the defendant demurred to said declaration, for that the action was misconceived, and should have been an action on the case; which demurrer the Court overruled, and sustained the declaration, and counsel for defendant excepted.

Complaint, in Crawford Superior Court. Tried before Judge Powers. September Term, 1852. This was an action of complaint, on open account, brought by the defendants in error against the plaintiff in error. On the trial, plaintiff introduced his original books of entry, and proved by a witness that he kept correct books.

<p>[1.] Asa Swift died in Massachusetts, testate; George P. Swift qualified in that State as executor to the will. Among the debts due to the testator, was an open account by his son, Alexander M. K. Swift, who resided in Georgia.- At the request of the executor, this claim was liquidated by note. Geo. P. Swift subsequently removed to Georgia, and sued on the note. ■ The defendant filed his bill, alleging the foregoing facts, and charging that the executor had received a large estate in Massachusetts; that the debts were all paid, and a considerable portion distributed to the other legatees, and praying that an account might be taken, and that if any thing was coming to him under the will of his father, that it might be allowed as a credit on his note, and that the action thereon in the meantime, he enjoined, <Ssc. Seld, that there was equity in the bill, and that where suit was brought under the Act of 1850, by a non-resident executor on a cause of action in this State accruing to the testator in his lifetime, that the defendant was entitled to the^same rights of defence as if the action had been instituted under local letters granted in Georgia.</p> <p>[2.] Where an injunction has been obtained on the filing of a bill, it is a general rule that on the comiog in of an answer denying all the equity of . the bill, the injunction will be dissolved.</p> <p>[3.] The continuance or dissolution of an i~njunction, after the coming in of an answer, depends upon the sound discretion of the Court, according to til? nature and circumstances of the case. " .</p> <p>[4.] If the answer is not full and satisfactory as to any one of the grounds of equity set up in the bill, or is deficient in frankness, candor or precision, or is illusory, the injunction will be continued till the hearing.</p> <p>[5.] The defendant’s ignorance is no excuse for not answering a material allegation in the bill, where the information is within his reach or control. It is his duty to procure and disclose-it in his answer.</p>

Motion to dismiss writ of error. The defendants in error joined issue, with a protestation, and moved to dismiss the writ -of error upon the ground that the seal of this Court was not attached to the writ of error.

In Equity, in Crawford Superior Court. Tried before Judge Powers. September Term, 1852. Tbis bill was filed by Morris and Ms wife, Rhoda Morris, formerly Rhoda Jenkins, against Allen Marshall. The bill alleges, that in 1837, complainants intermarried, previous to which they entered into a marriage settlement, by which certain negroes were settled upon complainat, Rhoda, and Matthew A. Marshall appointed trustee.

In Equity, in Upson Superior Court. Tried before Judge Starke, November Term, 1852. Mrs. Macbarine Bunldey executed ber will on tbe 18tb of January, 1850, leaving tbe larger portion of ber property to George W. Bunldey during his life, and after bis death, to bis children, tbe complainants in tbe bill; and also making bequests to tbe defendants in tbe bill. The will contains a legacy to James Anderson, who is in it nominated tbe executor.

Claim, in Crawford Superior Court. Tried before Judge Powers. September Term, 1852. A fi. fa. for $2,500 00 in favor of plaintiff against Richard Morris, was levied upon certain negroes, and a claim interposed by Rhoda Morris. • On the trial, the execution was offered in evidence, and it appeared from an entry thereon, that on the 11th of November, 1841, it was levied upon a negro woman Patty, and her two children, of which levy no disposition had been made.

In Equity, in Crawford Superior Court. Tried before Judge Powers. September Term, 1852. The complainants, ffm. Moody and wife, took out interrogatories for Baldwin M. Fluker. Counsel for defendant, Davis, filed written exceptions to the answers of the witness, on the ground that the witness had not fully answered the cross-interrogatories ; whereupon, complainants asked leave to withdraw the interrogatories for the purpose of having the answers thereto re-taken.

<p>[1 ] Scire facias is amendable at the trial term, so as to make it conform in the description to the bond upon which it issued.</p> <p>[2.] That amendment alone will not authorize a continuance by the defendant, nor can the defendant continue on the ground alone that he desires to plead.</p>

<p>In Equity, in Bibb Superior Court. Decision on demurrer, by Judge Powers. November Term, 1852.</p> <p>Joseph Bond filed his bill against George M. Logan and .others, alleging that in April, 1851, Logan having occasion to borrow money for the use of the firm of Logan & Atkinson, obtained from complainant his endorsement upon a note, of which the following is a copy:</p> <p>“ Macon, April, 1851.</p> <p>On or before the 20th day of January next, I promise to pay to the order of Joseph Bond, five thousand dollars, for value received, payable at either of the banks in Macon. Endorsed, GEORGE M. LOGAN.</p> <p>Joseph Bond.</p> <p>The bill further states that in March, 1852, the firm of Logan & Atkinson becoming embarrassed, proposed and actually did sell and convey to Asa Holt and others, their confidential creditors, their entire stock of goods, wares, and merchandise, and notes, books, accounts, &c. in full discharge of their indebtedness to said confidential creditors, amounting in the aggregate to $45,737 62. That Logan refused to sign the bill of sale, until complainant was allowed by said creditors to participate, and that said parties thereupon agreed that complainant should come in, and his name was directed to be inserted in'the bill of sale. But afterwards, upon the suggestion of counsel for said creditors, that the insertion of complainant’s name might render void the conveyance — he appearing as an individual creditor of Logan upon the face of the note of $5,000 00 — it was concluded to leave the name of complainant out of the bill of sale, but with the express agreement, that complainant should be allowed to participate rateably in the proceeds arising from the goods, wares, merchandise, &c. of the firm of Logan & Atkinson, and that without this agreement, Logan never would have signed the bill of sale.</p> <p>The bill prayed that said-confidential creditors be decreed to account for the proceeds of the assets transferred to them by Logan & Atkinson, and that each one contribute to complainant, so as to enable him to realize his pro rata share of said assets.</p> <p>To this bill, a general demurrer was filed, with specifications, among which was the following: “ That the bill seeks to en-graft upon a written deed a parol agreement.”</p> <p>At the hearing, the Court overruled the demurrer, and ordered the defendants to answer, and this decision is brought up for review.</p>

<p>[1.] Where a plaintiff institutes different suits upon separate’and distinct notes or demands, which are all due, against the same defendant, and which may be joined in the same action, and such defendant or his counsel, will make it satisfactorily appear to the Court, that the defence to all the notes or demands, is the same, or that there is no defence thereto: then, the plaintiff may be compelled to consolidate them into one action, for the purpose of avoiding unnecessary costs to the defendant; but where nothing was shewn to the Court in regard to the defence of the several notes sued on in different actions, the motion to consolidate was refused.</p>

Caveat, in Upson Superior Court. Tried before Judge Starke. November Adjourned Term, 1852. Motion to dismiss writ of error.

In Equity, in Houston Superior Court. Tried before Judge Irwin, presiding for Judge Powers. November Term, 1852. Philip A. Clayton, as trustee of Aurelia E. Rives, wife of John T. Rives, in 1849, commenced an action of trover, in Houston Superior Court, against Asa E. Thompson, for the recovery of certain slaves.

<p>Assumpsit, in Bibb Superior Court. Tried before Judge Powers. At Nov. Term, 1852.</p> <p>The action was founded on a note, given and made by Wyche to Winship, for $75 ; expressed to be for the rent of Winship’s YTare house in Macon'.</p> <p>Plea : — Total and partial failure.</p> <p>1st. That at and before the signing the note, it was agreed that Winship was to repair the ware house and premises, without which it was not tenantable, and that by reason of failure to repair, defendant sustained a total failure.</p> <p>■ 2d. Partial failure, for same reasons' — adding that cotton was stolen, &c.</p> <p>Plaintiff moved to strike out the said pleas, as seeking to add to, and change a written contract by parol, (defendant below admitting that he had only oral evidence to support his plea.) The Court sustained the. motion, and defendant excepted ; and on this ground solely, brings his bill of exceptions,</p>

Statutory action, in Bibb Superior Court. Tried before Judge Powers, at November Term, 1852. The action was founded on the original of this paper, viz: $80.00. Ceinton, Ga. January, 1849. Received of Samuel Griswold, one forty saw gin, with Reed’s Patent Boxes, and if on trial, it performs well, I promise to pay said Griswold, or bearer, eighty dollars, for value received, by the 25th day of December, 1850.

This was a certiorari from Bibb Superior Court. Heard by Judge Powers, at November Term, 1852. Blake was sued on this bill, or order, viz : “Macon, December 26, 1849. Please pay Roberts & Freeman thirty seven dollars and fifty cents, and oblige yours respectfully, SAMUEL R. BLAKE.

Motion to vacate judgment, in Bibb Superior Court. Tried by Judge Irwin. November Term, 1852. Assumpsit was pending by Beall, as executor, vs. Blake, in Bibb. The declaration having been lost at July Term, 1850, a copy was established, and at the same term judgment was confessed by Blake’s attorney and entered up by plaintiff. The established declaration had no process attached, or waiver thereof, nor any entry of service by the Sheriff, or waiver thereof.

<p>[1.] Where, by an agreement of the parties, a cause is submitted to the Court for its judgment and decision upon the facts, as well as the law, this Court will indulge the same presumption in regard to the facts, on a motion for new trial, as if the cause had been submitted to a Jury, and will not disturb the judgment when there is any evidence in the record to sustain it, or when there is a conflict of evidence: but if there is no evidence in the record to support the judgment, a new trial will be granted.</p>

In Equity, in Monroe Superior Court. Decision on demurrer, by Judge Starke. August Term, 1852. James Thompson and Martha J. Thompson, formerly Martha J. Hunter, intermarried. John T. Dunn died intestate, without issue, and leaving neither brother, sister, or wife, surviving him, and at the time of his death possessed of a large estate. Martha J. Thompson and her half-brother by the maternal side, David S. Walker, were the children of the only sister of Dunn.

In Equity, in Bibb Superior Court. Tried before Judge Powers. November Term, 1852. The bill alleges, that the defendant in error, who was the complainant in the Court below, was the son of Thomas W. Napier, who departed this life'in the year 183-, having previously made a will, thereby bequeathing the whole of his estate to certain legatees, and entirely cutting the complainant out of any interest in his estate.

Trover, in Spalding Superior Court. Tried before Judge Starke, November Term, 1852. This was an action of trover, brought by the plaintiff in eiror against the defendant in error, for the recovery of six negeoes, Priscilla and her five children. The defendant filed the pleas of general issue and the Statute of Limitations. There was much, and ■ conflicting testimony introduced.

<p>[1.] When an injury to a person is effected by a regular process of a Court of. competent jurisdiction, case is the remedy, and trespass is not sustainable, although the process may have been maliciously adopted.</p> <p>[2.] If the process is irregular, then the remedy against the Magistrate issuing it is trespass. But the remedy against the person who procures, upon insufficient information, a process to issue'to search the house of another, is case. And in an action for causing the warrant to issue, it is necessary that the plaintiff show the want of probable cause, and it is competent for the defendant to prove any fact or circumstance which will show the existence of probable cause, and which will rebut the presumption of malice.</p> <p>[8.] An attorney is not a competent witness to testify for or against his client, as to any matter or thing, the knowledge of which he derived from his client, or acquired during the existence of the relation of client and attorney, in the suit in which he is engaged.</p>

<p>-Affidavit of illegality, in Butts Superior Court. Heard and decided by Judge Starke, at Chambers.</p> <p>At March Term, 1840, Robert C. Mays obtained judgment against Pleasant M. Compton and Thomas C. Taylor, in Butts Superior Court, for the sum of $846.91, on a note made by Isaac Low, Pleasant M. Compton and Thomas C. Taylor. Low was not sued. At the time of the trial there was a special plea filed by Taylor, (which was the only one filed) that Compton was security for Low, and he, Taylor, security for both Low and Compton on the note. A collateral issue was ordered, tried and found in favor of Compton, or rather against them as joint securities. Execution was issued on the judgment in favor of Mays, and he collected one half of the amount from Compton, and sent the fi. fa. to the County of Pike, to collect the other half from Taylor. The Sheriff of Pike, Joseph H. Shivers, levied the fi. fa. upon eer-* tain personal property of Taylor, and after the levy Taylor filed his bill in Pike Superior Court, charging that Compton had received a large amount of assets sufficient to pay the debt, before the rendition of the judgment or commencement of the suit; that when suit was brought by Mays (who knew this fact,) Taylor employed counsel to file a plea of usury, which he was ready to sustain by proof that in consideration of withholding this plea, Mays agreed that he would not attempt to enforce the judgment against Taylor, until Compton proved insolvent. In consequence of wdiich agreement, the plea was not filed. Mays however, in violation of his agreement, it was alleged, had failed to enforce his judgment against Compton, who was able to pay it. The bill further charged fraud and collusion between Mays and Compton, to swindle and harrass Taylor. The bill prayed an injunction against Mays until he complied with the agreement.</p> <p>Mays in his answer denied the agreement and every other equtable circumstance charged, and thereupon the injunction was dissolved and the execution ordered to proceed.</p> <p>By a supplemental bill, and a subsequent amendment thereto, Taylor alleged that since the dissolution of the injunction, he had paid off the judgment, and prayed that the cause might be heard, and if the answer should be found to be untrue, that the money paid by him might be refunded. He further charged that the whole of the judgment was for usurious interest, and prayed that the judgment be opened and declared satisfied.</p> <p>Pending the appeal (a judgment having been confessed and appeal taken,) Mays filed a plea to the jurisdiction of the Court, alleging that he was not and never had been a citizen of Pike County.</p> <p>Upon the trial, the defendant, Mays, moved to dismiss the bill, upon the following, among other grounds :</p> <p>“ Because Pleasant M. Compton, should have boon made a party.”</p> <p>• “ Because the case made by the complainant’s bill did not entitle him to the relief prayed for.”</p> <p>The Court overruled the motion, and the cause was by a writ of error carried to the Supreme Court, at August Term, 1849, at Decatur. The Supreme Court reversed the judgment, on the ground that the Court below erred in “ charging the Jury that the jiidgment rendered in the County of Butts, in favor of Mays against Compton and Taylor, might be opened and impeached for usury,” and remanded the cause, with the following instructions: “ It is considered and adjudged by the Court, that the judgment of the Court below be reversed, on the ground that there was error in deciding that the judgment in'the County of Butts could be inquired into and impeached for usury in the note upon Avhich it was founded, and that a new trial be had in the cause.” “It is also the judgment of this Court, that the' complainant is entitled, according to the case made by his bill, to have the money paid by him on the execution in the pleadings mentioned refunded with interest, and that said execution be opened to the extent of such payment, so as to enable the defendant to proceed to collect the same out of Compton, provided that the same can be collected out of him, and if not, then to be collected out of the complainant, according to the agreement in the record mentioned.”</p> <p>At the February Term, 1851, of Pike Superior Court, a trial was had on the bill, and the Jury decided, “that the defendant, Mays, pay over to complainant, Taylor, $52,600, wiih interest from November 1st, 1842, and also that the execution obtained in the County of Butts, be opened against Pleasant M. Compton until all his means are exhausted, and then if not satisfied to return with full force against Thomas C. Taylor.”</p> <p>This decree was satisfied and paid off by Mays. The execution obtained by Mays in the County of Butts, carried no entry from November 1st, 1842, to July 29th, 1851, when it was then levied upon the property of Compton.</p> <p>To the execution Compton filed an affidavit of illegality, upon the grounds,</p> <p>1st. Because the fi. fa. is barred by the Statute of Limitations, as no return has been made on the same within seven years, by any officer legally authorized so to do.</p> <p>2d. Because, from the entries on the fi. fa. it appears that the same is satisfied, and that subsequently, the fi. fa. has been re-opened, re-instated, and ordered to be in operation against deponent without due and legal notice to deponent, or by making deponent a party in the cause.</p> <p>At Chambers, January 19th, 1858, by consent of parties, after argument had, Judge Starke sustained the affidavit of illegality, and this decision is brought up for review.</p>

Action for personal property, in Lumpkin Superior Court. Tried before Judge Irwin. October Term, 1852. The facts of this case are as follows: John Hollingshed, of Lumpkin County, departed this life, leaving a will, of which the following is the substance : The 1st clause contains only the pious wishes of the testator. “ 2ndly.

Ca. sa. from Whitfield Superior Court. Decided by Judge Lumpkin. October Term, 1852. The facts of this case are as follows: Jasper J. Trammell had been arrested on a ca. sa. in favor of Grenville & Battey and gave bond and security for his appearance at Court, to take the benefit of the “Act for the relief on honest and insolvent debtors.” This bond was made payable to Charles E. Grenville k William II. Battey, instead of to Grenville & Battey.

Ejectment, from Whitfield Superior Court. Decided by Judge Lumpkin. October Term, 1852. In 1847, William Henderson brought his action of ejectment against William P. Hackney and four others, for a lot of land, now in the County of Whitfield. Before the trial, Absalom Holcombe, on a showing of some privity of title, caused himself to be made a co-defendant.

<p>[1.] When a mortgage of personal property is foreclosed in the summary manner pointed out by the Judiciary Act of l’iOO, on application to one of the Judges of the Superior Court, or to one of the Justices of the Inferior Court, such mortgage must be foreclosed in the County in which the mortgagor resided at the time of the execution of the mortgage, if resident of this State, as required by the Act of 1839.</p>

Assumpsit, in Eloyd Superior Court. Tried before Judge Lumpkin. February Term, 1853. This was an action brought in 1851, against tbe Western Rank of Georgia, on sundry of their notes, or bank bills.. On the trial,, the plaintiff offered in evidence two twenty dollar bills, one of which read as follows: The Western Bank of. Georgia promises to pay Thos. Pullum or bearer, on demand, twenty dollars. Rome, Jan. 31. (Signed,) WM.

<p>Motion to dismiss writ of error.</p>

<p>[1.] The Honest Debtors’ Act of this State prescribes no form in which the schedule of the insolvent shall be rendered.</p> <p>[2.] If the inventory fairly apprizes the creditors of the nature of the effects so as to enable them to hunt them up, it would seem to be sufficient.</p> <p>[3.] It is not necessary that the schedule should state that it was filed under the ca. sa. issued at the iustauce of the plaintiff.</p> <p>[4. ] A party is an incompetent witness to increase a fund out of which he is to receive a dividend, especially when the witness is a creditor of a bankrupt who has already been discharged from arrest under a capias, at the instance of the witness, and where consequently his only hope of getting his demand paid was by fixing a fraud upon the debtor, by his own testimony.</p>

Ejectment, from Gilmer Superior Court. Tried before Judge Irwin. November Term, 1852. Tbis case was submitted on an agreed statement of facts. Jesse Berry and others, in March, 1846, brought their action of ejectment against Emanuel Rose, tenant in possession,' to which William Cox, as landlord, was made co-defendant. On the trial, which took place in September, 1849, the plaintiffs failed to prove Rose in possession, and dismissed their case.

<p>[1.] By the 3d section of the Act of lSil, “to simplify and curtail pleadings at law,” a form is provided to recover money on “a note, bill, bond, receipt, or written premise of any descriptionHeld, that where an individual affixes his signature on the back of a note, with a design of becoming liable in some mode thereon, either as an original joint promissor, or guarantor, or in any other capacity, that it is a written promise of some description, and that consequently the cause of action comes under the Statute.</p> <p>[2.] If the writ departs from the form prescribed, it is amendable, and may be made to conform to it; everythingjelse necessary to a recovery may be supplied by proof.</p>

Trover, in Thomas Superior Court.. Tried before Judge HAnsell. November Term, 1852. This was an action brought by Wm. B. Smith against Thomas McBain, for the recovery of a negro man, Martin. It appeared in evidence, that the negro was stolen from Smith in Alabama, brought to Georgia and sold to McBain.

Assumpsit, &c. in Appling Superior Court. Decision by Judge Love, December Term, 1852. Hall brought suit against Mobley, in Appling Superior Court, but failed to aver that he ivas a citizen or resident of- “ said County.” Mobley appeared and filed a plea of non est factum. The issue was found for the plaintiff, and Mobley appealed.

Ejectment, in Thomas Superior Court. Tried before Judge Hansell, May Term, 1852. The plaintiff in error brought suit for lot of land 145, in 14th district of Irwin, now Thomas County. He introduced a grant from the State, to James Jordan, to this lot; a deed from R. C. Hurst to Wm. N. Harrell; a mortgage fi. fa. against Harrell, and a Sheriff’s deed, (reciting a sale under tlie said fi. fa.) conveying the lot to the plaintiff.

Affray, in Baldwin Superior Court. Tried before Judge Johnson, March Term, 1853. Nathan Hawkins and William G. Bonner were indicted for an affray. The proof on the part of the State was, that Hawkins was in the public street in Milledgeville, when Bonner passed by; Hawkins accosted him, rising at the same time, “ I understand you said that you had made a contract with me about feeding your horses.

- In Equity, in Oglethorpfe Superior Court. Decision on demurrer, by Judge Baxter. April Term, 1853. James Bridges, Sr. died intestate, leaving as one of his distributees and heirs at law, Saleta Ann Matthews, who was a widow, with one child, (the ward of the plaintiff in error.) Mrs. Matthews, before any distribution of the estate, intermarried with Gabriel W. Grimes, making no marriage contract or settlement.

Manslaughter, in Hancock Superior Court. Tried before Judge Baxter, April Term, 1853. This was an indictment for the murder of George W. Young- . blood, and a verdict of guilty of voluntary manslaughter. A new trial was moved, on the ground that the verdict was contrary to the evidence, and refused by the Court. This refusal is the only error relied upon in this Court. The. following is the brief of the evidence returned in the transcript of the record : IT.

<p>[1.] As between attaching creditors, the attachment first levied, or the summons of garnishment first served, shall be first satisfied.</p> <p>[2.] As between attaching creditors and creditors who have obtained judgment by the ordinary process of the law, the date of the respective judgments determines the lien.</p> <p>[3.] "Where several suits were instituted by different creditors against the same defendants, pending which one of the creditors sued out a summons of garnishment, according to the provisions of the Act of 1822, by which a considerable sum of money was raised and paid into Court, and judgments having beenobtained in all the suits at the same term of the Court: Held, that the money raised by the garnishment should, according to the provisions of the 5th section of the Act of 1822, be paid over to all the judgments obtained against the defendants at the same term of ,the Court, pro rata.</p>

. In Equity, from Richmond Superior Court. Decided by Judge Starnes. January Term, 1853.

<p>Action, in Richmond Superior Court. Tried before Judge Starnes.</p> <p>For the facts of the case, see the decision of the Court.</p>

Certiorari, from Richmond Superior Court. The plaintiff in error was held to bail upon process issuing from the Court of Common Pleas of Augusta, in an action of assumpsit, upon the statutory provisions applicable to that Court, in November, 1852.

<p>In Equity, from Columbia Superior Court. Motion for new trial. Decided by Judge Starnes, at Chambers, 24th May, 1853.</p> <p>- The plaintiff in.error filed his bill in the Superior Court of Columbia County, against the defendant, the executor of Thomas Wilkins, averring that Thomas Laughlin, his intestate, departed life in Chatham County some time about the year 1794, leaving a considerable real and personal estate, and two sons, the complainant and one Thomas Laughlin, and his widow, Sarah II. L., his heirs at law; that about the year 1796, the said Sarah H. L. intermarried with Thomas Wilkins, and that the said Thomas took into his possession the estate of said Thomas Laughlin, consisting of negro slaves and other personal property, and removed to the County of Columbia, where he resided until his death, in .the use and enjoyment of said property, having sold certain portions of it, and invested the proceeds; that Wilkins died about the year 1847, and left a will, by which the defendant, Greene, was appointed executor, and that he was qualified and took into his possession, as part of the estate of Wilkins, certain slaves, (named in the bill,) who are averred to he the remnant of the negroes originally belonging to Thomas Laughlin, at the time of his death, or their issue and increase, or purchased with the proceeds of those sold; that no administration was ever taken out on the estate of Thomas Laughlin, until the year 1849, when administration was granted to the complainant; that the brother of complainant, the other son of Laughlin, has not been heard of for many years, and is dead; that during the life of Wilkins, complainant applied to him for some account of his father’s estate in his hands, but was told and put off with the promise, that he should have an equal share of all Wilkins’ estate with the children of Wilkins, at his death, but that this promise has not been complied with. The defendant is required to answer to the best of his knowledge, information and belief, “ when and where the said Laughlin died, what estate he left, and what' portion thereof, describing it, came into the hands and possession of Thomas Wilkins, upon his marriage with Sarah Ii. Laughlin, and what disposition he made of the same ?” &c. The bill contains the usual prayer for account.</p> <p>To this bill the defendant answered, and upon the trial of the cause, certain portions of the answer were objected to by complainant, as evidence, as not being responsive to the allegations of the bill. The Judge admitted them to be read for the consideration of the Jury, subject to the rules governing evidence in Chancery cases. The portions of the answer thus objected to, and upon the admission of which as evidence, error is assigned to this Court, are as follows : “ That as to the property left by said Laughlin at his death, this defendant can or does know nothing, only from the following circumstances : He was-well acquainted with Thomas Wilkins, who, after the death of. Thomas - Laughlin, married his widow; that for many years after this marriage, this defendant, of his own intimate and personal, knowledge, states that the said Wilkins and wife Were in the most indigent circumstances ; that said Wilkins used to carry his corn to mill on his back,, such was his destitution of means, that he was not able to own a horse ; that such was his abject penury, that he used to go from house to house through the community in which he lived, to work out by the day, at any and all kinds of labor; that he has known him to split rails by the day, work on farms, &c.; that there is no negro named in said will that Wilkins did not purchase with his own money, and that they were not purchased with moneys raised from the estate of Laughlin, as this respondent verily believes said Laughlin left no estate of any hind except old Sambo, that was sold as above mentioned, to pay the debts of said Laughlin, deceased, and that the proceeds of the sale were not sufficient for that purpose, and that the estate of said Lauglilin, deceased, was in fact reputed to have been insolvent, and to the best of respondent’s information, was insolvent at his death.” Other portions1 of the answer admitted to be responsive, and included within the lines marked by the Judge, own that to the best of the information and knowledge of respondent, none of the estate in his hands ever did belong to Thomas Laughlin, or was purchased with funds derived from that estate.</p> <p>The complainant introduced testimony as follows:'</p> <p>1st. The letters of administration on the estate of Thomas Laughlin, deceased, granted on thev 5th November, 1849, by the Court of Ordinary of Chatham County.</p> <p>2d. The admissions in defendant’s answer, as to the place and time of the death of Thomas Laughlin, and of its being “ well nigh a quarter of a century since a man bearing the name of complainant was last heard of.” -</p> <p>3d. The testimony of Sarah II. Wilkins, who proved — that Thomas Laughlin died on Gov. Telfair’s plantation, Back river, S. C., in the year 1796 ; that she (widow of said Thomas) married Thomas Wilkins in 1798that compla of Thomas Laughlin; that he has lived in Cq Hancock and Chatham; has led a roving life," at one time about eighteen years. That he^ Thomas Laughlin, left three negroes, Sambo, which came to the possession of her second hlj Wilkins; also, household and kitchen furniture worth about fourteen hundred dollars — the girls hirec^ft one dollar per week each, and the man at ten dollars per month. That her second husband disposed of said slaves, as well as the other property left by the said Thomas Laughlin.</p> <p>4th. The testimony of John Bynum, who proved — that in 1826 or 1827, Thomas Wilkins told him that John O. Laughlin had been to see him and threatened to sue him for said John’s portion of his father’s estate; that he (Wilkins) thought he and his wife had compromised with said John, by agreeing to put him on equal footing with his (Wilkins’) two children, at his death ; that in 1845 Wilkins spoke to witness, and asked him if he remembered what he told him (in 1826 or 1827,) repeating it. Witness said ho did, and asked him (Wilkins) if he intended to stand up punctually, as Laughlin had done. Wilkins answered that he would, that he was a punctual man. Wilkins stated in the first conversation that there had been no administration on the estate of Thomas Laughlin.</p> <p>5th. The last will and testament of Thomas Wilkins, proved in 1847, in which no provision was made for complainant.</p> <p>The defendant offered no evidence, but relied on certain portions of his answer, (marked with ink by the Judge,) decided by the Court to be testimony for him, to be received subject to the rules of evidence in Equity cases, to which the attention of the Jury was called in the charge. This charge was, “ that the answer of the defendant, responsive, &c. was evidence for him, unless contradicted by two witnesses, or one witness with corroborating circumstances, but this rule was applicable to what the defendant states of his own knowledge. If he states what, in the nature of things, he could not know, he must do it upon information or report, and this need not be so contra- ' dieted. If he so answer, as it is insisted he does answer in this case, that from his own knowledge, no property came to the possession of Wilkins from the estate of Laughlin, in 1796, and, in the opinion of the Jury, this could not be known to him, and he must only have information thereof, then they cannot give weight and credit to the answer, as responsive to the bill, but must look to the other evidence to this point.</p> <p>The Jury having found a verdict for the defendant, counsel for complainant moved for a new trial, upon these grounds:</p> <p>1. That the verdict was contrary to law.</p> <p>2. That the verdict was contrary to evidence.</p> <p>3. That the Court erred in deciding and charging the Jury, that the portions of defendant’s answer marked with ink, were responsive to complainant’s bill, and evidence for defendant.</p> <p>Upon the argument of this motion, Judge Starnes refused to grant a new trial upon this, among other reasons: that there was evidence on both sides of the case, and even, ex gratia, conceding that some evidence had been improperly admitted, it did not materially affect that which had been (confessedly) properly admitted.</p> <p>Upon this refusal to grant a new trial, error is assigned to this Court.</p>

Debt and certiorari, in Richmond Superior Court. Decision by Judge Starnes, in Chambers, May 4th, 1858. William Andres, suing for the use of the Bank of Brunswick, brought an action of assumpsit, in the Court of Common Pleas for the City of Augusta, against Thomas W. Miller, as the administrator of Francis Spears, deceased, upon an instrument, of which the following is a copy: “$102.24.

Bill for account and relief. Verdict on appeal, for Samuel Warner, tbe plaintiff below..

<p>Debt, in Marion Superior Court. Tried before Judge Iverson, March Term, 1853.</p> <p>Benjamin J. Holly, the Sheriff of Marion County, appointed Zachariah Wallace his Deputy, taking bond with security from him, for the faithful discharge of his duties. A mortgage fi. fa. in favor of Dowd & Wells vs: F. M. Collins, directing the Sheriff to sell certain lands therein described, was placed in the hands of Wallace to be executed, who, having failed so to do, a rule was taken against Holly, the principal Sheriff, to show cause why he should not pay over the amount due on the fi. fa. The return to this rule was made orally by Wallace, or under his direction, he being present in Court, and it being proven that Wallace admitted he had, by accident, mislaid the fi. fa. until it was too late to levy and sell, the rule was made absolute against Holly, and he was forced to pay the amount of the value of the mortgaged property.</p> <p>Holly then commenced suit against Wallace and his securities upon his bond.</p> <p>The defendants pleaded, among other things—</p> <p>1st. That at the time of the making of the mortgage by Collins, he (Collins) had no title, claim or interest in the lands he mortgaged, .nor were they in his possession, or in the possession of any tenant of his; but were held, adversely, by a third person to said Collins, at the time the mortgage fi. fa. was placed in Wallace’s hands.</p> <p>2d. That the mortgage on which the fi. fa. was founded, was not recorded within three months from its date ; that after its execution, other creditors of Collins’ obtained general judgments against him, which were levied upon the lands so mortgaged; that under this levy the land was sold, the purchaser at which sale was in possession thereof at the time the said mortgage fi. fa. came into the hands of Wallace; and that no indemnity was tendered to Wallace by the plaintiffs in said mortgage Ji. fa.</p> <p>On the trial at March Term, 1853, counsel for plaintiffs demurred to said pleas.</p> <p>The Court sustained the demurrer, and to this decision counsel for defendant excepted.</p>

<p>[1.] Playing and betting with cards for money, or other”things of value, at any one of the games designated in the 11th section of the 10th division of the Penal Code, will constitute an entire offence; and for every such game, unconnected with the other, an indictment will lie; yet when all are perpetrated by the same person, at the same time, they constitute but one of-fence, for which but one count is sufficient, and for which but one penalty can he inflicted.</p> <p>[2.] The objects specified, for requiring particularity in setting out an of-fence in an indictment.</p> <p>[3.] An indictment which charges the crime to have been committed on a particular day and County, is sufficiently ^certain as to time and^place.</p> <p>[4.] The proof of guilt is not confined to the day mentioned in the indictment. It mayfcextend to any period previously to jthe finding of the bill, and within the statutory limit for prosecuting t he offence.</p>

Motion, to dismiss the writ of error. Counsel for defendant in error moved to dismiss the writ of error, upon the grounds : 1st. Because there was no service of the original citation. 2d. Because there was no service of the original bill of exceptions, as contemplated by the Act of 1851. • The facts were these : Upon the original citation was endorsed the following acknowledgement of service : “ April 28th, 1858.

Trespass, in Baker Superior Court. Tried before Judge Perkins, April Term, 1853. Luke Bliss brought his action of trespass against Seth C. Stevens, in Baker Superior Court.

<p>[1.] After the pleadings are made up, and the cause set down for trial, the bill is Dot amendable, but within the discretion of the Court, upon special cause shown, and that, whether it be a sworn bill or not.</p> <p>[2.] An amendment made after issue joined, without cause shown, without an order on the minutes allowing it, and without verification to a sworn bill, stricken out, upon motion, as being irregular.</p> <p>[3.] Before secondary evidence of a paper can be admitted, the party proposing it must, in good faith, and in a reasonable degree, have exhausted all the sources of information and means of discovery accessible to him, in efforts to account for the original.</p> <p>[4.] Confidential overtures of pacification, or any other offers or propositions for a compromise, expressly stated to be made without prejudice, or made under the faith of a pending treaty, and into which a party is led by the confidence of a compromise taking place, are not admissible in evidence Without this, admissions of a debt duereven 'tacitly made, are good evidence, unless accompanied by a caution that the offer to pay, is confidential.</p> <p>[5.] A security on the appeal after judgment, is called to prove the non-existence of an agreement between the plaintiff in execution and his co-defendaut, who is also the principal in the debt, by which the principal was to be released upon the payment of on e-third of the' judgment: Held, to bo . called to testify against his interest, and coriipetent to testify, if consenting to do so.</p> <p>[6.] Insolvency is a personal condition, and whether* a party Í3 insolvent, is a conclusion to be drawn from facts proven, and cannot be proved by general reputatiou.</p> <p>[7.] One of three defendants seeks to enforce 'an agreement between himself and the plaintiff, by which he is to be released upon payment of one-third of the judgment. Upon the trial, the existence "of such an agreement being in issue, Held, that the solvency of the other defendants is a fact which the Jury may consider, as going to disprove the making of the agreement.</p> <p>[8.] It is not error in the Court to decline giving a charge to the Jury, not warranted by the facts of the case.</p> <p>[9.] In a suit to enforce an agreement entered into by one of three joint defendants to a judgment, and the plaintiff in execution, in which it was agreed that he (the defendant) should be released from the whole debt, upon payment of one-third : Held, that a receipt of a paymentmade upon the judgment by others, anterior to the date of the agreement, may be given in evidence, to show what was due on'the judgment, and thereby what was the amount of the one-third agreed to be paid.</p> <p>[10.] The case of Cumber vs. Wane, (1 Strange, 425,) reviewed, and its authority sustained.</p> <p>[11.] Agreements to settle an existing debt, by paying a part, are void for want of consideration, unless some advantage or benefit accrues to the creditor, or detriment to the debtor, from the agreement, other than what springs out of the original contract.</p> <p>[12.] Where such agreements are executory, they do not avail to discharge the debt, until they are executed, unless it is clear that the promise, and not the performance, is agreed to be the satisfaction.</p> <p>[13.] An agreement to accept one-third part of a debt, in discharge of an insolvent debtor, from the yearly proceeds of his personal labor, held to be on good consideration and valid.</p> <p>[14.] An agreement toacceptone-thirdpartofajudgment against three, from one who is insolvent, in the yearly proceeds of his labor, in discharge of hisliability, Held to be void for want of consideration, unless at the time when the agreement was entered into, the other two defendants were also insolvent-.</p>

In Equity, in Baker Superior Court. Decision on demurrer, made by Judge Perkins. April Term, 1853. Felix Calloway, of Baker County, died intestate, leaving a widow and two children, Mary Frances Calloway, who intermarried with Cyrus A. Royston, and Margaret Ann Calloway, who intermarried with Edward T. Swain. He also left a large plantation, consisting of several hundred acres of land, in Baker County, to which his widow and two children succeeded, as tenants in common.

Counsel for defendant joined issue, protestando, on the following grounds: 1st. Because the bill of exceptions is uncertain and insufficient, in specifying the points of error and the grounds of error, in this, to wit: that all the errors there complained of, are matters of practice in the discretion of the Circuit Judge, and this Court cannot pass upon the exercise of that discretion, unless the bill of exceptions shall show the ground, or the special cause shown, upon…

In Equity, in Baker Superior Court. Tried before Judge Perkins, April Term, 1853. To the June Term, 1850, Thomas Garner, in right of his wife, Stella Garner, formerly Stella Howard, and others, filed their bill for account and distribution, against James Keaton, administrator of William G. Howard, deceased. At the December Term, 1850, the usual rule was taken.

<p>" Indictment for retailing spirituous liquors without license. Tried before Judge Iverson, in Taylor Superior Court, May Term, 1853.</p> <p>The indictment in this case charged, “ that the said Elkins, on the fifteenth day of February, in the year eighteen hundred and fifty-two, in the County and State aforesaid, did sell, by retail, .spirituous liquors in quantities less than one quart, to one Cornelius Brantly, to wit: one gill of whiskey, without license from the Inferior Court of said County,” &c.</p> <p>On the trial, counsel for defendant demurred to the bill of indictment, upon the ground that it did not charge, “ that the defendant had not been licensed to retail spirituous liquors by the corporate authority of any town or city, where, by law, authority to grant license is vested in the corporate authorities of such town or city.” The Court overruled the demurrer, and counsel for defendant excepted.</p> <p>The Solicitor General then proved, by the Clerk of the Inferior Court of Taylor County, that no license had been issued to defendant, authorizing the defendant to sell, by retail, spirituous liquors.</p> <p>To which evidence counsel for defendant objected, upon the ground,</p> <p>That the record of such license was the highest evidence.</p> <p>The Court overruled the objection, and counsel for defendant excepted, and upon these exceptions has assigned error.</p>

<p>Attachment, in Stewart Superior Court. Tried before Judge Powers, April Term, 1853.</p> <p>On the 10th day of May, 1852, William A. Rawson, a Justice of the Inferior Court of Stewart County, issued an attachment in favor of Anthony A. Wanet, against James A. Cor-bet, returnable to the October Term, 1852, of Stewart Superior Court.</p> <p>At the April Term of said Court, 1853, counsel for defendant moved the Court to dismiss the attachment, upon the grounds:</p> <p>1st. Because the attachment was tested and issued by a Justice of the Inferior Court of said County, and made returnable to the Superior Court of said County.</p> <p>2d. Because the said attachment, being issued more than thirty days before the July Term, 1852, of the Inferior Court of said Gounty, was made returnable to the Superior Court of said County, October Term, 1852, when it should have been made returnable to the July Term, aforesaid, of said Superior Court.</p> <p>Judge Powers presiding for Judge Iverson, sustained the motion and dismissed the attachment, and this decision is assigned as error.</p>

Claim, in Marion Superior Court. Motion for a new trial. Decided by Judge Iverson. February Term, 1858.

Assumpsit, in Muscogee 'Superior Court. Tried before Judge Iverson, December Term, 1853. The defendant in error, John Banks, was a member of the Columbus Wharf Company, and owned one-fourth part of the property of said company. It was the custom of the members of the company to rent out their property, and each one collect his portion of the rent from the lessees.

Assumpsit, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1853. This was an action of assumpsit, brought by Lawson against Wright, on promissory notes. To which, defendant filed the plea of usury, under the Statute of 1842.' The plaintiff answered the plea under oath. ' On the trial, the defendant read the answer of the plaintiff to the Jury, and then proposed to place the plaintiff on the stand, for the purpose of cross-examination.

Debt and bail, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1858. This was an action of debt and bail, brought by Sackett, Davis & Potter, a mercantile firm of the City of New York, against Goodman Sugar & Brother, merchants residing in the Town of Lumpkin, Stewart County, on a note and open account.

Complaint, in Stewart Superior Court. Tried before Judge Iverson, April Term, 1853. Mary A. Nelms, before sbe intermarried with Duncan L. Nicholson, contracted an account with Wilborn & McWhorter, merchants in the Town of Lumpkin, Stewart County. After ¡her marriage, Wilborn & McWhorter brought their action against Duncan L. Nicholson and his wife, for the amount of the account.

In Equity, in Stewart Superior Court. Decision on demurrer, made by Judge Powers. April Term, 1853. Henry Audulf died in 1844, intestate, leaving a large estate. David C. Rogers and John Audulf, took out temporary letters of administration on the estate, under which they took the same into possession.

<p>[1.] An interrogatory for which no foundation is laid in the allegations of the bill, constitutes no part of the bill which the" defendant is called upon to answer, and presents no equity.</p> <p>[2.] Where several fi. fas. and a distress warrant had been levied on various property of a defendant, consisting of cotton, corn, household and kitchen furniture, horses, hogs, and cattle, die. by the Sheriff and before the day of sale appointed by law, and before the same had been advertised according to law, the creditors came together and entered into an agreement íd writing, together with the defendant, by which it was stipulated that the property should be sold by the Sheriff at public outcry, on a day within the time prescribed by law, and without the advertisement of the same, according to law, except as to the live stock,'and that the Sheriff retain the proceeds until the termination of the litigation between the creditors; and the Sheriff by virtue of such agreement, proceeded to sell the said property at the plantation of the defendant, without any order of Court, advertising the same for ten days only: Held, that such sale was not, as a whole, in the eye of the law, a Sheriff’s sale ; and that officer in making -it, was not the ministerial officer of the Court, but the agent or trustee of the parties; that the Court had no right to treat the fund so raised, and in the hands of the Sheriff, as proceeds of the defendant’s property, raised by Sheriff’s sa!e, except that portion of it which was the avails of the horses, hogs and cattle; and that the whole, by the order of Court, on the usual money rule, could not be distributed among the judgment creditors of the defendant: Held, also, that where the Sheriff’s return doos not separate the fund raised by the sale of the live stock from the proceeds of the other property, and though the law allows this species of property to be sold at the residence of defendant upon ten days advertisement, and the sale by the Sheriff as to this live stock was in due form of law, yet oo order of distribution could be granted as to it, until the two funds were separated by an amended return, if this could be made by the Sheriff: Held also, that under the term horses, mules should be included, and sheep under that of cattle.</p> <p>[3.] Where a party, by deed of lease, demised a plantation, negroes, stock, Ac. to another, for a term of years, and covenanted for a certain yearly rent, to be secured by lien on the annual crops to be made by the lessee’ and after one or more of the annual sums of rent became due sued out his distress warrant against the lessee for the recovery thereof, and had the same levied on the property of the lessee, consisting of the crop, stock, Ac. on such lease hold estate, at the same time that other y?./«s. in the names of other judgment creditors of such lessee were levied on said property, and afterwards brings his bill in Equity, and sets up his equitable lien on said fund and dismisses the levy of the distress warrant: Held, that he is not estopped by the suing out, or the levy of said distress warrant, from thus setting up and urging his equitable lien.</p>

<p>Rule against Sheriff, in Baker Superior Court. Heard and^decided by Judge Perkins. April Term, 1853.</p> <p>Waller D. Whaley was tried and convicted.in Baker Superior Court, of the crime of larceny. At the time of his arrest, the Sheriff, George W. Collier, seized certain property belonging to Whaley, for the purpose of paying the cost which might accrue in the prosecution of the case. The property was subsequently sold by the Sheriff. Before the trial and conviction of Whaley, he transferred the property seized by the Sheriff, to Henry Morgan, attorney at law.</p> <p>Morgan, after the property was sold by the Sheriff, filed a rule against that officer to compel him to pay over the money arising from the sale of the property, to (him) Morgan.</p> <p>•At the hearing, the Court dismissed the rule, upon the ground, “ that all the property owned by Whaley at the time of his arrest, was liable and bound for the payment of costs, in the event of a conviction, and that a sale of any property so situated, after arrest, would not remove the lien created by Statute.”</p> <p>To which decision Morgan excepted.</p>

Motion, to dismiss writ of error. Issue was joined in this case, under protestation, and a motion made to dismiss the writ of error, upon the following grounds: 1st. Because the brief of testimony is not embodied in the bill of exceptions. 2d. Because it does not appear by the Clerk’s certificate, or in any other way, that the entire bill of exceptions was filed in the Clerk’s office within ten days after the Judge’s certificate, or that it ever was filed in said office. 3d.…

Assumpsit, in Leo Superior Court. Tried before Judge Perkins, April Term, 1853. William E. Collier shipped 57 bales of cotton, through J. Day & Co. commission merchants at Apalachicola, Florida, to the house of Fielder, Brothers & Co. Liverpool, England, and received as an advance thereon, in money, drafts, interest, postage &c. the sum of $1453.81 cts. The cotton was sold in Liverpool by Fielder, Brothers & Co. for the net amount of $1066.48 cts.

<p>Debt on bond, in Lee Superior Court. Tried before Judge Perkins, May Term, 1853.</p> <p>This was an action of debt, upon the following bond:</p> <p>“GEORGIA, Lee County:</p> <p>Know all men by these presents, that we, James A. II. Macon, and Britton G. Smith, and Zadock Jackson, are held and firmly bound unto Ashly Philips, Griffin Smith, George C. Ticknor, Bennett II. Ely and Edward Y. Munroe, Justices of the Inferior Court of said County, for the time being, and their successors in office, in the penal sum of fifteen hundred dollars, for the payment whereof, we bind ourselves and heirs, executors and administrators, jointly and severally, firmly by these presents, sealed with our seals, and dated August 25th, 1845.</p> <p>The condition of the above bond is such; that whereas the said James A. H. Macon, hath been appointed Clerk and Treasurer of the poor school fund of said County. Now, if the said James A. II. Macon should faithfully perform his duties of his office and appointment, then the above bond to be void, else to remain in full force.</p> <p>JAMES A. H. MACON, [L.S.]</p> <p>B. G. SMITH, [L.S.]</p> <p>ZADOCK JACKSON, [L.S.]</p> <p>The cause came on to be tried on the appeal — James A. H. Macon, the principal, having since the commencement of the suit, departed this life ; when counsel for the defendants moved the Court for a nonsuit.</p> <p>The Court sustained the motion and awarded the nonsuit, upon the ground that there was no sufficient cause of action set forth in plaintiff’s declaration — the bond sued on, being illegal and void.</p> <p>To which decision, counsel for plaintiffs excepted.</p>

<p>[1.] A writ of error does not lie to a decision on tlie trial at Common Law, in favor of the party appealing from the judgment rendered at that trial.</p>

Assumpsit, in Decatur Superior Court. Tried before Judge Perkins. April Term, 1853. . This was an action of assumpsit, brought by the plaintiffs in error against the defendant in error, as surviving executor of Bennett Crawford, deceased, for the recovery of .$354.80 cents, as a balance due on account.

Indictment for simple larceny, in Lee Superior Court. Motion for a new trial, decided by Judge Taylor, May Term, 1852. At the May Term, 1852, of Lee Superior Court, Joshua Levining was tried and convicted of stealing a cow, the property of one Alfred Kersey.

<p>Trover, in Sumter Superior Court. Tried before Judge Brown, February.Term, 1858.</p> <p>This was an action of trover, brought by Francis M. Jones and his wife, Julia A. Jones, (formerly Julia A. Morgan, daughter of Charlotte Morgan, deceased, who was the wife of the defendant in error,) for the recovery of one-fifth part of two negro slaves, Caty and Binah, and their offspring, nine in number. On the trial, it appeared in evidence that Mrs. Charlotte Morgan died in 1840,- leaving five children; and that Julia.A. Jones, one of the plaintiffs, was one of the children, and that she intermarried with Jones in 1848, being a minor at the time of the marriage.</p> <p>The plaintiff read in evidence the following deed:</p> <p>GEORGIA, Laurens County:</p> <p>Know all men by these presents, that I, Ann Gibbons, of this County and State aforesaid, for, and in consideration of the good will and affection that I have towards my daughter, Charlotte, now wife of Charles W. Morgan, of this County, do hereby give and bequeath to her, the said Charlotte Morgan, and to her heirs forever, a certain negro girl, named Bi-nah, about sixteen years of age, &c. that is to say, to be and remain hers during the period of her natural life, not subject to. the control of her present husband, nor any other person whatsoever, or subject in anywise to the said Charlotte Morgan, nor her present husband, so far as to be entitled to sell or'dispose of the same, or in anywise subject to any contracts, dues, or demands against the said Charlotte, or her husband Chas. W. Morgan, but to be and remain hers during her natural life, and at her death to belong to her children; that is to say, the said Binah with All her increase. In witness whereof, I have hereunto set my hand and seal, this 22d day of April, 1826. -ANN GIBBONS. [L.S.]</p> <p>Witnesses, Mary Saltenstall, Joseph Joiner.</p> <p>Whichjdeed was duly probated and recorded in the Clerk’s office of the Superior Court of Laurens County, on the 24th day of April, 1826.</p> <p>Plaintiff then proved by William Morgan, a son of the defendant in error, the admissions of his mother, Mrs. Charlotte Morgan, to the effect, that Caty and Binah, and their issue, were the property of herself for life, and then it went to her children.</p> <p>Plaintiff then proposed to prove by the same witness that the defendant had always disclaimed title to the negroes sued for, and admitted that they were secured to his wife and children, both before and after the death of Charlotte Morgan, and while the defendant was in possession of the negroes.</p> <p>. . The Court rejected the evidence, and counsel for plaintiff excepted.</p> <p>Plaintiff then read in evidence a bill of sale, made by Ann Gibbons, on the 31'st July, 1826, conveying to one Louis Linder and Henry Gibbons, in trust “ for the sole use and purpose of Charlotte Morgan, and her heirs and assigns,” certain property, among which, was Caty and her child, Prince. Upon the reading of which, the Court ruled in the admissions of the defendant, which had been previously rejected.</p> <p>. Plaintiff, then proved by James Glass and Elias Clark, that defendant, after the death of his wife, and while in possession of the property, admitted that the negroes sued for belonged to his five children, of whom Mrs. Jones was one, and that he was willing to turn it over to them at any time — plaintiff having closed. .</p> <p>■ The defendant offered in evidence the following exemplification. from the records of the Superior Court of Laurens County:</p> <p>“ GEORGIA, Laurens County :</p> <p>Know all men by these presents, that I, Ann Gibbons, of said County, do hereby give and bequeath to my daughter, Charlotte Gibbons, and her heirs forever, a certain negro girl named Binah, about eight years old, &e. In testimony whereof, I have hereunto set my hand, this the 6th day of June, 1820. ANN GIBBONS.</p> <p>Witness, Joseph Saltenstall.</p> <p>“GEORGIA, Laurens County:</p> <p>Personally came before me, R. B. Hind and James Glass, who, being duly sworn, deposeth and saith, that he was well acquainted with the handwriting of Joseph Saltenstall, -and believes the above to be his handwriting, from having seen his subscription. . JAMES GLASS.”</p> <p>Sworn to and subscribed before me, July 20th, 1827.</p> <p>W. M. MOORE, J. P.</p> <p>To which plaintiff objected. The Court overruled th.e objection, and counsel for plaintiff excepted.</p> <p>The defendant then proposed to prove by James Glass, that he knew the negro girl, Binah, in 1819-’20,-’21-’22, in the possession of Mrs. Gibbons; that defendant and Charlotte Morgan were married in 1820, and that in 1821, he saw the negro girl Binah, in possession of Morgan, and that he never knew her to be "in the possession of any other person from then until the present time. To which evidence, the counsel for plaintiff objected. The Court overruled the objection, and plaintiff excepted.</p> <p>The defendant then read in evidence letters of administration on his wife’s estate. Plaintiff objected. The Court overruled the objection, and plaintiff excepted.</p> <p>Counsel for the plaintiff requested the Court to charge the Jury, “ that the admissions of defendant for twelve years, being in possession of the property, with dr without title, that said property belonged to his children,- entitled plaintiff to a recovery; and that if they believed from the evidence that defendant had been holding said property for his children for ten years, it created in plaintiff a statutory title, which would entitle them to recover; and that defendant was estopped from setting up title in himself .against plaintiff, Jones, who married one of the children — marriage'being a valuable consideration.”</p> <p>Which charges the Court refused to give, and counsel for plaiqtiff excepted, and upon these several exceptions have assigned error.</p>

<p>This was an application on the part of Andrew Y. Hampton, for an order to compel Francis Thomas, Clerk of the Superior Court of Laurens County, to send up the record, bill of exceptions, writ of error and citation, to the next November Term of this Court, at Milledgeville, in a cause tried in the Superior Court of Laurens County, at March Term, 1858, wherein Louisa Hampton was complainant, and Andrew Y, Hampton, defendant.</p>