Volume 14 — Georgia Reports

In Equity from Meriwether Superior Court. Decided by Judge Hill, February Term, 1853.

Indictment for Burglary, in Monroe Superior Court. Tried before Judge Stark, March Term, 1853. The defendant in this case being arraigned, and having pleaded not guilty, moved for a continuance on the following grounds: 1st. That by reason of his close confinement in jail since his arrest, (a space of five months) and his inability to employ counsel, he had been unable to prepare his defence. 2nd.

<p>[1.] In a prosecution for robbery, where the prisoner relied upon a plea of autre fois convict, on a charge of burglary, the indictment in that case, having charged the breaking and entering with intent to commit the robbery, which by demurrer to the plea, was admitted to be the same as that charged in the second indictment: Held, that the plea of former conviction was sufficient in Law, because the record shows the second case to be the same transaction with the first: Held also, that the plea of autrefois convict is sufficient, where the prisoner might have been convicted on the first indictment, by the evidence necessary to support the second.</p> <p>£2.] In all applications for a continuance, on account of not having subpoenaed witnesses, by reason of the recent finding of the bill, the party moving, must show by giving their names, that he has such witnesses; and must state what he expects to prove by them, in order that the Court may judge of its materiality.</p> <p>£3.] Where upon motion for continuance, on the ground of popular excitement against the prisoner, five months have elapsed from the time the offence was committed, and the Judge to whom application is made, refuses it, because in his opinion, this period is sufficiently long for such popular feeling, if it had-been aroused, to have subsided: Held, that this is a matter which is necessarily very much in the discretion of the Court below, whoso duty it is to look into all the circumstances ; and where there appears no evidence of the abuse of such discretion, this Court will not disturb the decision.</p> <p>£4.] Where a jury after being sworn to try a prisoner, (the Judge having for a short time left the Court room,) by inadvertance separate, pass out of the Court-house through a group of by-standers, and the Court after returning and discovering their absence, by a careful examination, (in part of tho jurors on oath) satisfies himself, that they have had no intercourse with any one, improper or injurious to the prisoner, and so announces: Held, after conviction, that the Court was right in not disturbing the verdict on this account.</p> <p>£5.] Where there are two counts in an indictment, and the second is decided to be defective, the jury may properly return a verdict of “ guilty on the first count.” And this is a general — not a special verdict: Held also, that if the jury by mistake write the verdict “guilty on the first account, ” the Court may direct a correction of this false orthography, and cause the first syllable of the last word to be erased.</p>

<p>Indictment for being a rogue and vagabond, in Monroe Superior Court- Tried before1 Judge Starke, March Term', 1853.</p> <p>The facts in this ease are as follows: The defendant being indicted, and having plead, and being put upon his trial;' during the progress of the cause, a witness of the State, named Simpson, being on the stand, and having been cross-examined by defendant’s counsel, the defendant himself asked leave to cross examine him further, which the Court refused-, and which is excepted to.</p> <p>The case having been submitted to the jury, they retired to consider it. When they returned into Court, the list was called by the Clerk, and each juror answered to his name. They then handed in the following yerdict: “We, the jury, find Ezekiel A. Roberts guilty.” Not signed by any one; The indictment, with the verdict, was handed to- prisoner’s counsel, who were asked if they wished to poll the jury, and answered in the negative. The jury were then discharged and the verdict recorded.</p> <p>Motions were tiren made, first in arrest of judgment, and afterwards for a new trial, on the ground, that no verdict had been rendered; and for a new trial, also, on the ground of error in the Court in refusing to permit the prisoner to cross-examine the witness, Simpson. Both which motions were overruled by the Court, to which defendant excepts and assigns error therein.</p>

Indictment for Burglary in Monroe Superior Court. Tried before Judge Starke, March Term, 1858. The defendant in this case being arraigned, and having plead not guilty, moved a continuance on the same grounds as those taken in the case of Roberts vs. The State (No. 4 suprie) with the additional ground that he had absent witnesses residing in Murray county, by whom he could prove an alibi.

Claim, in Coweta Superior Court. Tried before Judge Hill, March Term, 1853. The facts of this case are as follows: Nicholas Dyer had given a mortgage to Sarah Backus as natural guardian of her minor children, covering a certain lot of land. This land was afterwards levied on by a jifa, (younger than the mortgage) against Dyer and sold, and John C. Perkins and Bennett H. Conyers became the purchasers.

<p>Certiorari in Fayette Superior Court. Decided by Judge Hill, April Term, 1853.</p> <p>The record in this case presents the following facts: Philip Fitzgerald had sundry Justice’s Court fi. fas. against Bennett Youngblood and Sanford Adams as endorser; which were levied on property of said Adams, who made his affidavit of illegality on the ground, among others, that no summons had ever been issued, or any copy served on him in the suit by which the fi. fas. were obtained, nor had he ever acknowledged service nor confessed judgment in that suit. At the hearing of this illegality, the defendant proposed to amend by adding, as a new ground, that the judgments were void, not being signed by the Magistrate. Before the amendment was made, the defendant made oath that he was not aware of these facts at the time that he had made his original affidavit. The defendant then went on to show by the testimony of the Justice of the Peace, who should have issued the summons, and by the Bailiff of the district, that no such summons was ever issued or served. He also proved that the papers of all the Magistrates since that time had been examined, without finding any such document, except the papers of the present incumbent, and of the Magistrate who should have issued it, if issued at all. The jury returned a verdict for defendant, and the plaintiff sued out a certiorari from the Superior Court. On hearing argument, the Superior Court sustained the certiorari, and ordered the case to be remanded for a new trial.</p> <p>To which decision the defendant excepts.</p>

Trover, &c., in Coweta Superior Court. Tried before Judge Hill, March Term, 1853. This was an action of Trover to recover certain negroes, brought by John Bigley against John B. Russell, since deceased, and whose administrator is the plaintiff in error. Russell had intermarried with the daughter of the plaintiff, and the negroes in question, had been sent to the house of defendant, and remained until his wife’s death, when this action was brought.

Indictment for murder, in DeKalb Superior Court. Tried before Judge Hill, April Term, 1853. This cause came up on exceptions to the decision of the Court on a motion for a new trial. The defendant having been tried and convicted of the offence of murder, moved for a new trial on the following grounds: 1st. Because no venire facias had been issued to the Sheriff to summon the grand jury who found the bill, or the regular panel of the petit jury who tried it.

Indictment for rapo, in Heard Superior Court. Tried before Judge Hill, April Term, 1853. This was an indictment, containing two counts: The first in the usual form, for the offence of rape on Susan Stallings.

<p>[1.] A Sheriff’s deed, though defective, may be proper testimony, as color of • title, in aid of possession.</p> <p>[2.] Tlio testimony of a witness, executed by commission, going to show when a bond for titles was taken, that the purchase money had not been paid, is proper evidence upon a trial where the bond is relied upon, as color of title, as between vendor and vendee; for in such case, tlio bond cannot so operate, when the purchase money is not paid.</p> <p>[3.] Whore a person acting “ as agent generally to take interrogatories in a case”, was present at the execution of "a commission, though he took no part in it: Held, that his presence rendered the proceeding invalid, and the testimony should be rejected: Held, also, that such testimony is precluded by the rule that there must be no circumstances of unfair advantage obtained by one party over the other, in having testimony taken by deposition.</p> <p>[4.] It is not error for the Court to say in the hearing of the jury, that the declaration of a tenant, that he did not hold under one claiming to be his landlord, in tlio absence of that person, and without his knowledge, was “the weakest sort of testimony”, when there was proof of a contract between them as to the tenancy.</p>

<p>£1.] A levy upon lands is not a satisfaction of an execution, and a dismissal, by order of the plaintiff’s attorney, is a sufficient disposition of it.</p> <p>[2.] The Act of 1811, which directs that sheriffs shall not levy upon property, in the hands of persons not parties to the judgment; if there is property enough in the hands of the defendant to satisfy the execution: Held, to be for the benefit of plaintiffs in execution, and to be limited in its application to cases when the defendant points out the property.</p> <p>[3.] The Act of 1850, relative to attorneys testifying, is prospective, and does not apply to cases instituted before it was passed.</p>

Assumpsit in Heard Superior Court. Tried before Judge Hill, May Term, 1853. The Franklin Bridge Company was incorporated under the Act of the Legislature of 1843, to prescribe the mode of incorporating companies for certain purposes, by an order of the Inferior Court of Heard county. The Company sued the defendant, Wood, for his subscription to their stock.

Rule, in Hoard Superior Court. Decided by Judge Hill, April Term, 1853. At October Term, 1852, of Heard Superior Court, a rule was moved by Tompkins, against Hendrick, requiring him to account for tbe hire of certain negroes, which Hendrick, when Sheriff of the county, had levied on, and kept a long time in his possession, and hired out.

Assumpsit, in Bibb Superior Court. Tried before Judge Johnson, May Term, 1853. These two writs of error, being both taken from the same judgment in the Court below, were consolidated by consent of parties, and argued together.

<p>£1.] Executions are levied upon land, as the property of the defendant, Avhich is claimed by B., and a verdict rendered, finding it subject. AfterAvards B. conveys it to 0., and it is levied upon as the property of 0., .by executions in favor of D. and D..becomes the purchaser at Sheriff’s sale, Avith actual notice, of tlie litigation betAveen the jjláiüCiff íti ekecufioii, and B. D. puts in his claim to the land when offered for sale under the original levy: Held, that his title derived from B., through 0-, yields to the lien of the judgments, and that his title, thus derived, is concluded by the judgment on B's, claim.</p>

In Equity, in Heard Superior Court. Tried before Judge Hill, April Term, 1853. The facts in this case are as follows: In October, 1839, Nicholas Tompkins sold to Wm. J. Garmany, a tract of land, for the sum of $16,000; for the purchase money of which he took Garmany’s notes, due as follows: $3,000, January 1, 1841; 3,000, January 1, 1842 ; $3,000, January 1, 1843; $4,000, January 1, 1844; besides $3,000, which was paid in cash.

A motion was made to dismiss the writ of error in this cause, on the ground that the bill of exceptions was not signed by the Judge within thirty days from the adjournment of the Court below.

Garnishment, in Bibb Superior Court. Tried before Judge Powers, May Term 1858.

<p>Action for rent, in Bibb Superior Court. Tried before Judge Powers, May Term, 1858.</p> <p>This was an action, brought by Sbinholster, to recover of Barnes, for the use and occupation of a house and land of plaintiff near Macon, which the defendant had occupied about a year. The defendant plead, that he had gone into possession of the land, on a contract of purchase, and not as tenant. He likewise pleaded, by the way of set off, that he had put certain improvements on the premises. The last plea was ruled out by the Court. Absalom Jordan, testified for plaintiff, that he heard a conversation between plaintiff and defendant, about the premises. Defendant said he wished to buy, and had the money, and would pay what plaintiff asked, ($!80Q) whenever he could get a Avarranty title. Plaintiff replied, that he might lose the place, and ayouM not give a Avarranty title. Defendant said he would like to go into possession. Plaintiff ansAvered, that he might do so; and if he lost the place, he must pay rent at the rate of the last year. Defendant then went into possession, and has been there ever since. Mr. Stubbs testified, “ that during the present term of the Court, plaintiff had withdrawn his claim to said land.” Interrogatories of Allen Johnson and Leyman H. Barnes, offered; by the defendant, to prove a positive parol contract, for the sale of the land, vvere rejected by the Court, as being excluded by the Statute of Frauds.</p> <p>The testimony being concluded, the defendant’s counsel requested the Court to charge, that if defendant went into» possession, under a contract to sell it to him, the plaintiff had mo right to change the contract without his consent; and could mot recover from, him as a. tenant.</p> <p>And also, that if the defendant took the house as a purchaser, on condition that he was to pay rent if the plaintiff lost the land, then the plaintiff cannot recover in this action; as there is no evidence that the land was lost before the commencement of the suit.</p> <p>Which charges the Court refused; but told the jury, that there was no evidence of a purchase of the land by defendant ; and that they should find what rent ivas proven to be due.</p> <p>To AA’hieh refusals and charges of the Court, defendant excepts.</p>

Assumpsit in Bibb Superior Court. Tried before Judge Powers, May Term, 1853. This was an action brought by Henderson against Stiles, to recover wages as an overseer. The plaintiff declared upon an agreement, and also upon a quantum meruit.

Case' in Bibb ¡Superior Court. Tried before Judge Powers? May Term, 1853. This was an action to> recover the- value of a negro man named London, whom the plaintiff’Gorman had hired to Campbell? the defendant, as a steamboat hand, on the Ocmulgee and Altamaha rivers, and who had been drowned while so hired. The testimony exhibited the' following state of facts r The negro was employed on board the steamboat Sam Jones.

<p>Ejectment, in Houston Superior Court. Tried before Judge Powers, April Term, 1853.</p> <p>This was an action brought by Thomas Pollock, as administrator of Risdon Smith, deceased, against Goo. W. Jordan, for the recovery of real estate, and to which George Walker was made co-defendant. Both parties claimed title under Wm. Smith, the father of the plaintiff’s intestate. The plaintiff, after the usual affidavit, introduced as witnesses, Tlaomas Spaight, Lewis S. Spaight and Samuel Woodard, who testified that they were present when William Smith executed a deed to his son, Risdon Smith, for the land in dispute; that at the same time, they saw him execute similar deeds to his other children, for other portions of his estate. That after said deeds were duly executed and witnessed, they were handed by Wm. Smith to Risdon Smith, with instructions, “ to take them, and put them away until he called for them, for he was not ready to turn over the property they conveyed — not at that time, for the crop was not all housed.” This was in November, 1847. The plaintiff then introduced Joseph Tooke, who stated that in the fall of 1850, he had met Walker, the defendant, who told him he had bought that land, (meaning the premises in dispute.) Witness asked him if he did not expect a difficulty about it; he said no, that he had taken legal advice before he went into it; he told witness that he had given about five thousand dollars for it, and thought he had bought a good bargain. Plaintiff then offered Garrett Smith, as a witness, who being objected to as being one of the heirs at Law, of Risdon Smith, the witness executed a release of all his interest in the estate of said Risdon, so far as related to the property now in dispute. The defendant still objected to his competency, because he still had an interest in the general estate of Risdon Smith, and the estate was liable for the costs of suit. This objection was overruled by the Court, and the witness was admitted. He testified, that ho saw Wm. Smith make the deed spoken of by the other witnesses; that he saw' Risdon in possession of the deed, and of the land, in March or May, 1848; that ho died in July, 1849. The plaintiff having closed his testimony, the defendant moved the Court for a non-suit on the following grounds:</p> <p>1st. Because there was no evidence of a delivery of the deed, alleged to have been made by William Smith to Risdon, for the premises in dispute.</p> <p>2nd. Because the plaintiff had shown no order of the Court of Ordinary to sell the land, or to divide it among the heirs and distributees.</p> <p>3rd. Because there was no evidence of actual notice to Walker, of the deed from William to Risdon Smith before he purchased.</p> <p>The motion for non-suit was refused by the Court.</p> <p>The plaintiff after having closed, and the Court having adjourned until the next day, then moved to re-open the case, for the purpose of introducing the several deeds which the witnesses had mentioned, as having been executed by Wm. Smith, at the same time with the deed to Risdon; to which defendant objected, but the Court allowed it to be done; and the said deeds, with, testimony identifying them, were submitted to the jury, the defendant objecting to it all as irrelevant.</p> <p>The defendant then offered the testimony of William Smith, to show that the deed to Risdon was never delivered; but the witness, on objection made, was held incompetent by the Court. He then introduced a deed from William Smith to George Walker, the defendant, conveying the land in dispute dated 8th April, 1850. The defendant then introduced the interrogatories of James McKinney, who stated, that in the summer of 1848, Risdon Smith had told witness, that his father had paid him in mules and negroes for the land in dispute.</p> <p>The testimony being concluded, the defendants, by their counsel, requested the Court to charge the jury, that if the deed from William Smith to Risdon Smith, was directed by William Smith to be handed to Risdon Smith, to bo locked up or put away until called for by him (the donor,) the possession of Risdon Smith* of the deed is nó ffoicU’nM óf its delivery, until the character of the possession is shown to have been changed. Which charge the Court declined and refused to give as requested, because it was some evidence, coupled with other evidence, such as possession of the land under the deed, and other facts that might appear, to which refusal defendants except.</p> <p>The defendants also requested the Court to charge the jury, that in order to charge a subsequent purchaser for value, with notice of a prior voluntary deed proof that such purchaser had heard of a difficulty, without showing what difficulty was referred to, is. not sufficient; but it must be shown, that such a purchaser had actual notice of the prior voluntary deed— which charge the Court refused, and declined to give as requested; but charged the jury, that they might infer actual notice from such facts, in connection with other circumstances, which would or might be sufficient to convince them, that defendant had actual notice, as proof in any other material facts, in a cause might produce conviction — to which refusal to charge as requested, and to which charge as given defendant excepts.</p> <p>The Court charged the jury, that if they should believe that the deed from William Smith was delivered to Risdon, though never recorded, it was not competent for him and William Smith to re-vest the title in William, by tearing up of said deed or its destruction otherwise, so as to enable William Smith to sell to Walker; but that the title could only be re-vested by a deed of conveyance of equal solemnity, from Risdon Smith to William Smith — to which charge the defendants except. After the charge of the Court the jury retired, and returned with a verdict, in favor of the plaintiff for the premises in dispute, and $2,333 for mesne profits with costs of suit.</p> <p>Whereupon the defendants, by their counsel, during the term aforesaid, after said verdict was returned, moved the Court for a new trial in said cause, on the following grounds, to wit:</p> <p>1st. That the Court erred in opening the case, after the plaintiff had closed his case, and a motion to non-suit had been disposed of; and a night intervened, to allow plaintiff to introduce the deeds of William Smith, for negroes to his children, the plaintiff not having the deeds in Court the day before.</p> <p>2nd. The Court erred in admitting the said deeds for negroes from William Smith to his children.</p> <p>3rd. The Court erred in admitting the evidence of Joseph Tooke, to go to the jury as evidence, to authorize the jury to find that George Walker had actual notice of the deed of gift, from William Smith to Risdon Smith, for the premises in dispute, before he purchased the promises of William Smith, for a valuable consideration.</p> <p>4th. The Court erred in ruling, that it was not competent for Risdon Smith to have delivered back the deed to the premises in dispute, (after delivered though not recorded) to William Smith (the donor), and thus re-vest the property given in William Smith, so as to enable him to sell and convey to Walker; but that it must be done by deed of conveyance.</p> <p>5th. The Court erred in refusing to grant the motion of defendants, (made when the plaintiff had closed his case) to non-suit said plaintiff.</p> <p>6th. That the Court erred in refusing to charge the jury, that when the deed for the premises in dispute, had been proved to have been handed to Risdon Smith by William Smith to be locked up, or put arvay till called for by him; the possession of Risdon Smith is no evidence of its delivery, until the character of that possesion is shown to have been changed.</p> <p>7th. The Court erred in refusing to charge the jury as requested, that in order to charge a subsequent purchaser, for valuable consideration with notice of a former voluntary ■deed proof, that he had heard of a difficulty, without showing what difficulty was referred to, is not sufficient. But it must be shown, that such a purchaser had actual notice of the prior voluntary deed; but charged the jury, that they might infer actual notice from such facts, in connection with other circumstances, which would convince them that defendant had actual notice as in any other material facts in a cause.</p> <p>8th. That the jury found contrary to law.</p> <p>9th. That the jury found contrary to evidence.</p> <p>10th. That the jury found contrary to the justice and equity of the case.</p> <p>11th. Because the Court erred in deciding, that Garrett Smith, one of the heirs at law of Risdon Smith, was a competent witness; he being objected to on the ground of interest; the release of the witness being before the Court, as exhibited in the brief of testimony, and also the agreement of the heirs being before the Court.</p> <p>Which motion was overruled and refused by the Court, on the several grounds therein contained and set forth, and defendants except and say, that the Court erred in refusing said motion for a new trial, and in overruling all the grounds therein contained.</p> <p>submitted the following brief:</p> <p>1st. To the first point the following authorities are cited.— Stewart vs. Grimes (Dudley Rep. 209.)</p> <p>. 2nd. To the second point, we contend that the delivery of the deed for the negroes is not a circumstance tending to show that the deed for the land was delivered, and more especially when it is shown that Risdon Smith repudiated the gift; and the covenant between the heirs proves that the land was restored to the estate of Wm. Smith.</p> <p>3d. To the third point we cite the following authorities: 6 Geo. Rep. Fleming vs. Townsend, 107, 110. 8 Geo. Rep. Golquitt vs. Thomas et al. 268, 269.</p> <p>4th. To the fourth point we cite the following authorities: 1 Shep. Touch. 70. 10 Mass. Rep. Gommonwecdth vs. Dudley 403, 406. 9 Pick. 105, Holbrook vs. Trywell.</p> <p>The distinction here taken by Judge Parker, in which he sustains the case of Com. vs. Dudley as directly applicable to this case.</p> <p>5th. The fifth point will be sustained if the 3d and 4th objections are maintained, for it leaves the plaintiff without any course of action.</p> <p>6th. The Court clearly erred in refusing to charge as requested in the 6th assignment, because the deed for the land was not delivered to Risdon Smith as an escroto, but to keep for the donor until he called for it. And the fact (if any such existed) that Risdon Smith was in possession of the land, does not euro the error of the Court below' in thus refusing.</p> <p>7th. To the seventh point, w'e contend that the Court erred in refusing to give the instruction asked, and in charging the jury that they might infer actual notice from the facts proven by Tooke, and other circumstances.</p> <p>We cite the following authorities in support of the error in refusing to charge as above requested: 6 Geo. Hep., Fleming vs. Townsend, 107.110. 8 Geo. Rep. Colquitt vs. Thomas et al. 268, 269.</p> <p>And that he erred in charging as he did, see 7 Geo. Rep. 503, Butt vs. Maddox § 3. 8 Geo. Rep. 117, Bethune vs. McCray §2. 8 Geo. Rep. 183, Montgomery vs. Evans §4. 9 Geo. Rep. 313, Harrison et al. vs. Thompson § 2. 10 Geo. Rep. 367, Perry vs. Hudson, § 3.</p> <p>No other facts or circumstances going to show actual notice having been proved.</p> <p>8th, 9 th, 10th. The eighth, ninth and tenth exceptions depend for their support on the foregoing.</p> <p>11th. To the 11th point we cite 1 Greenleaf Ev. Sec. 401, 402.</p> <p>The deed having been delivered in this case by the grantor to the grantee is not an escrow, but the delivery is absolute. Comyn’s Dig. Tit (A. 3) Fait p. 158. 2 John’s R. 247, 248. 2 Black. Comm. 248 (top). 2 Stark, on Ev. 447-. 23 Wend. 43. 2 Kent’s Comm. 453, 454, 455. 5 Cranch. 351, (2cZ cond. 277). 1 Sug. Vendor, 312 (note) 18, and 14. 10 Wend. 310. 18 John’s B. 285. U. S. Big. 30, Nos. 90, 93, 95. 7 Cain. B, 143.</p> <p>Delivery of deed question of fact for the jury: 10 Wend, et Supla. 2 I bid, 308. 2 Peter’s Big. 30. 3 Ma. C. C. B., 398. 11 Geo. B. 636. 6 Peters, 124. 1 Watts, 279. 9 Mass. B. 307.</p> <p>Destruction of deed by grantor and grantee, or a return of it by the latter to the former, will not divest the grantee of title to the estate granted and re-vest it in the grantor. 13 Mass. B. 500. 4 Wend. B. 474. Ibid 585. 9 John’s B. 55. 12 Ibid 73, 488, 355. 2 K. Black B. 260. 1 John’s Ch. B. 240. 6 Bast, 86.</p> <p>That notice to Walker was sufficient see 6 Ga. B. 108, 10 lb. 350. 2 Sugden on vendors pip. 335, 336, 337 and note. lsí. Atk. 489. 2 White and T’s leading ca. Bqi. pt. 1 pp. 145,132, 133, 174.</p> <p>As to notice see further, 1 Baña 71. 4 John’s Ch. B. 46. 15 John’s B. 555.</p> <p>That plaintiff’s suit should not have been dismissed, for want of order of Court to sue for the land (no order being necessary to enable administrator to do his sworn duty in collecting intestate’s estate) see 3 Ga. B. 105.</p> <p>That there was no error in allowing the plaintiff to introduce evidence after the motion of non-suit, see 10 Ga. B. 143. 12 Ibid 257.</p> <p>As to motion for non-suit, see 5 Ga. B. 171.</p> <p>As to the finding of the jury, 3 Kelly 322. 6 Ga. 276. 715.283. 8 15.306. 10 Ib. 37.</p> <p>■ As to Garrett Smith’s interest and competency, see 1 Kelly 403. 3 lb. 527. Ibid 280. 8 Geo. B. 460.</p> <p>Even though error in charge, justice having been substantially attained by the verdict, it will not be disturbed. 1 Kelly 580. 10 Ga. B. 209, 253, 429.</p>

<p>[1.] A writ of error does not lie to this Court, on the order of the Judge, allowing a certiorari ; but when, the Mayor and Council of the City of Macon, upon charges made against the Marshal, had removed him from office, and ordered a new election; and upon granting a Certiorari, the Judge passed a farther order, re-instating the Marshal, and restraining the Council from proceeding with the election: Held, that upon that order, writ of error lies.</p> <p>[2.] Held, that the allowance and return of a writ of ccrliorariis a supersedeas to any further proceedings on the record below; but do not operate as a reversal of a judgment executed, or supercede one in process of execution; and that a special order of the Judge, when he grants the certiorari, cannot enlarge its powers.</p> <p>[3.] Held, that the order of the Judge, reinstating the Marshal and restraining the Mayor and Council from proceeding with the election, as above, was erroneous.</p>

Decided by Judge Powers, April Term, 1853. Harrison D. Hoskins, of Houston county, having departed this life, his widow, Malinda A. Hoskins, made her application to the Superior Court of the county, for the assignment of dower. The notice to the executors was objected to, because it did not state the name of the person in whose behalf the application was to be made ; and also, that it was served on but one of the two executors of the deceased.

In Equity, in Dooly Superior Court. Decided by Judge Powers, October Term, 1852.

<p>Ejectment in Crawford Superior Court. Tried before Judge Johnson, March Term, 1853.</p> <p>This was an action to recover possession of land, brought by William G. Little against Bryan Ingram and others. The plaintiff introduced a grant from the State to John B. Adair for the land in question; and a deed dated 19th Dec. 1833, from Adair to himself. The deed was objected to as showing on its face that several portions of it, viz: the name of the grantee ; the amount of the consideration; a part of the date and the county when executed, were written in different ink and hand-writing from the body of the deed. The deed purported to be “signed and sealed” in the presence of three witnesses, to wit: Wm. Adair, James Anderson J. I. C., and Whitman H. Adair.</p> <p>To explain the insertions in the deed, the testimony' of Whitman H. Adair was introduced, who stated that the paper had been sent to him at Milledgeville with the several places in question left blank; that it was brought by Mr. James Anderson, one of the witnesses to the execution, with a letter from John B. Adair, requesting that Anderson and the witness would consummate the bargain for the sale of the land, and fill up the blanks, which they did, and W. II. Adair then signed it himself as a AYitness, and the deed was delivered to Wm. G. Little ■by James Andersen, as ,the agent of John B. AdfflB.’. The witness fíirthei' 'státód^'thatlie had heard John B. Adair, some years afterwards when tho deed had been sent witness, attached to some former interrogatories, acknowledged on seeing the document, that the same was his act and deed.</p> <p>To this testimony, and to the deed itself, defendants objected on the ground that the authority to the witness and Anderson to fill up the blanks was in parol, and that consequently their action was unauthorized by Law. The Court admitted the testimony and held the deed to be good-as part of the chain of title, and also as color of title to support adverse possession.</p> <p>The plaintiff then introduced as a witness Joshua Tennison, who testified'that in 1833, Thomas Little, the father of plaintiff, went into possession of the land, claiming no title, but professing to hold under Wm. G. Little; that ho continued in possession until he was dispossessed by the Sheriff in 1842. To this testimony defendants objected, on the ground that the same was illegal, which was overruled by the Court.</p> <p>The plaintiff having closed, the defendants introduced sundry Justice’s Court fi. fas. against Thomas Little, under which the land had been levied on as his property and sold; and also the Sheriff’s deed to E. Webb, and deeds from Webb down to Ingram, the defendant, now in possession. Defendant then offered the evidence of James Hobbs and E. Evans, to the effect that Thomas Little had told them, while in possession of the land, that it was his, and that his son had bought it for him, rvhich was objected to by plaintiff and ruled out by the Court. The testimony being concluded, counsel for defendant requested the Court to charge the jury:</p> <p>That the deed from John B. Adair to W, G. Little, although it might have been good at first, might become fraudulent as against creditors of Thomas Little, by being concealed, and not recorded within a reasonable time; and if the jury believe from the evidence that the deed was not recorded in a reasonable time, then the deed is fraudulent and cannot be made the foundation of a recovery in ejectment. Again, if W. G. Little failed to give notice of his title, by recording the same, or in some other public manner, until the judgments under which the land was sold were obtained, that he cannot now set up his title against a purchaser at Sheriff’s sale of the land in dispute, without actual notice of the title of W. G. Little, provided more than twelve months intervened between the taking of said deed and the sale by the Sheriff:</p> <p>That if the land would have been found subject to the executions under which the defendants purchased, had W. G. Little claimed it (the land) under the levy, that the purchaser took a good title:</p> <p>That if the jury believe that W. G. Little was guilty of any fraudulent conduct, by failing to spread his deed upon the records of the county, or othfjrwise, he cannot recover:</p> <p>That if Thomas Little had seven years adverse possession of the land before the sale by the Sheriff, that the defendants took a good title at the Sheriff’s sale, and plaintiff cannot recover; and the question of adverse possession is a question for the jury: If John B. Adair was not in possession of the land at the time he sold to W. G. Little by deed, and any other person was in possession holding adversely, or not holding under Adair, that the deed to W. G. Little is void, and cannot be made the foundation for a recovery in this case; and the question of adverse possession is a question for the jury:</p> <p>That if W. G. Little, by his neglect to record said deed, or otherwise enabled Thomas Little to perpetrate a fraud by getting credit on the faith that the land belonged to Thomas Little, they should find for the defendants; and in considering this question of fraud, the fact of Thomas and W. G. Little being relations, is a badge of fraud :</p> <p>That the judgment under which defendants purchased, bears date February, 1841; and the deed was not recorded until January, 1842; and this is a badge of fraud:</p> <p>That defendants can only be charged with rent from 1846 ; the time at which, according to the proof, defendants went into possession of the land.</p> <p>The Court declined to give these instructions, as prayed for, and charged the jury as follows :</p> <p>This is an action of ejectment, and is instituted to try the title to real estate. In this action, it is a settled rule of law, that the plaintiff must recover by the strength of his own titlo, ■and not by the weakness of that of the defendant. The Law favors the party in possession, and will not oust him unless the plaintiff shows a paramount title in himself. The defendants’ title may be defective, and yet the plaintiff cannot recover unless he proves in himself a perfect and complete title.</p> <p>In view of this stern rule, let us now address ourselves to the investigation of the respective titles set up by the parties to this -case. The plaintiff in this case sets up a two-fold title. He insists First, That he has a perfect documentary title, and Secondly, That if this should be defective, he has a good possessory or statutory title. This documentary title is this: First, A grant from the State to Adair, of the premises in dispute, and Secondly, A deed of conveyance from Adair to W. G. Little. If the jury believe from the evidence, that the grant and the deed are genuine, they constitute a perfect title in the plaintiff, and must have a recovery, unless it be successfully attacked by the defendants. His possessory title, as insisted on by the plaintiff, is in this: He maintains that his deed from Adair, however defective in itself, it may be (for the sake of argument) is color of title; that Thomas Little went into possession of the land as the tenant of the plaintiff, and that his possession was therefore the possession of W. G. Little; that that possession was unbroken, and continued from 1833 te the date of the sale by the Sheriff, under which the defendant claims, I charge you, gentlemen, that the deed from Adair to W. G. Little is color of title at the least; and if you are satisfied, from the evidence, that Thomas Little was in possession as the tenant of the plaintiff — subordinate to his title — and that that possession continued from 1833 down to the date of the said Sheriff’s sale, or for the period of seven years, it does constitute a perfect statutory title in W. G. Little, and he must have a recovery, unless it be successfully attacked by defendants. Let us now look into the grounds on which the defendants seek to attack the title of the plaintiff, as thus divulged. They insist that the deed from Adair to W. G. Little is fraudulent. 1st. Because of the relationship between the Messrs, Little — that of father and son.</p> <p>2nd. Because the deed was not recorded until 184'2.</p> <p>3d. Because he gave no notice of his deed by recording, or otherwise, prior to the rendition of the judgment, under which the premises in dispute was sold ; and that it was incumbent on him to have-given actual notice to the defendants, the-purchasers at Sheriff’s sale -of the existence of his title.</p> <p>Let us look at each of these points in their order.</p> <p>1st. 'It is urged that Thomas Little being the father of W. G. Little, and continuing so long in the possession of the land from the time of his purchase from Adair, is a badge of fraud. In some cases, gentlemen, this relationship, accompanied with possession, is a badge of fraud, as for example, when the parties, in addition to the near relationship, are vendor and vendee. If Thomas-Little were the vendor of W. G. Little of this land, either at private or public sale, then would tho rule contended for be applicable. Under such circumstances, the relationship of father and son Avould be a badge of fraud. But do the facts of this caso come-within this principle ? You must be satisfied from the evidence, that they do; and even if they do, you must go further, and inquire 'whether the possession of Thomas Little is not satisfactorily explained. Was he tho tenant of W. G. Little ? Did he hold in-subordination to the plaintiff, and was his possession consistent'-wi'th a fair and bona fide title in W. G. Little ? If the testimony- answers these questions affirmatively, then you cannot infer; the least iota of fraud from the relationship of the Messrs. Little.</p> <p>The 2d and 3d grounds of attack by the defendants upon the deed of Adair to the plaintiff,-will be considered together. In their support, they insist:</p> <p>That the deed from John B. Adair'te’W. G. Little, although it might have been good at first, might become fraudulent as against creditors of Thomas Little, by being kept concealed, and not recorded within a reasonable time ; - and that if the jury believe from the evidence, that this deed was mot recorded within a reasonable time, it is fraudulent, and cannot be ¡made the foundation of a recovery in ejectment:</p> <p>That if W. G. Little failed to give notice of his ti't-le, by recording the same, or in some other public manner, until the judgments under which the land was sold were obtained, he cannot now set up his title against a purchaser at Sheriff’s sale of the land in dispute, without actual notice of the title to W. G% Little, provided more than 12 months intervened between the taking of said deed and the sale of the Sheriff.</p> <p>That the judgments under which defendants bought, bearing date Feb. 1841, and the deed not being recorded until Jan., 1842, is a badge of fraud. That if the jury believe that W. G. Little was guilty of any fraudulent conduct, by failing to spread his deed upon the record, or otherwise^ he cannot recover. The Law, applicable to these points, may be given in much fewer words. The failing to record' a deed is not per se evidence of fraud. It matters not that ¡it was not recorded at the rendition of the judgments- under which the land was sold. If it was recorded-prior to -the Sheriff’s sale, it was notice to the defendants of an outstanding title, and they purchased at their peril. W. G. Little was not bound to give actual notice of his title. A purchaser at Sheriff’s- sale, takes nothing but the title of defendant in execution, and he buys under the maxim caveat emptor. It is ■ further argued by the defendants, that if W. G. Little, by his neglect to record said deed, or otherwise enabled Thomas Little to perpetrate a fraud by getting credit on the faith. that this land belonged to him, the jury should find.for the.defendants. On this point, I charge you, gentlemen, that W* G» Little cannot be injured by the fraud of Thomas Little; .L.e., if Thomas Little pretended that this land was his, and .thus obtained credit, without the knowledge or consent of "Wv G.. Little, the latter is -not to be affected by it; he cannot be made responsible for the fraud of Thomas Little, unless he was cognizant of it, and aided in its perpetration.— The counsel for defendants further contends, that if the land would have boon found subject to the executions under which the defendants purchased, had W. G. Little claimed the land under the “ levy, that the purchaser took a good title.” This, gentlemen, is correct; but the defendants are now in no better condition than they would have been in under such an issue. It would have been incumbent on them, as it is now, to have successfully attacked the title of the' plaintiff, as now developed, and to show that Thomas Little had a good title. That litigation would’ have presented' the same questions that arise' in the case as now disclosed'.. Little would have had the same-rights that he now has, and the case would have required the same process. Let us then- examino the title on which the defendants now rely7, and would then have to rely,. This involves-the possessory or statutory title in Thomas Little, which is here-sought to be set up. Hence the defendants insist that if Thomas Little had seven years adverse possession of the land before the sale by the Sheriff, that the defendants took a good title at the Sheriff’s sale, and cannot recover; and that the-' question of adverse possession is a question for the jury. This,, gentlemen, is the- law, and I am now to explain to you what constitutes adverse possession,. If the quo animo, tho mind of the tenant,, is to. hold' the- property in his own right, against the claim of others,, it is adverse possession. Examine then, closely,, tho testimony on this point, as to the character of the possession of Thomas Little. Are you satisfied from the-evidence, that Thomas Little held possession of tho land with a mind to hold it in his own right or as his own, against the claim: of W. G. Little 2 If yon. believe that he didj. then, the Statute-attaches, and seven years of such possession would have perfected in Thomas Little a good Statutory title against the claim of W. G. Little; and then defendants-took a good title by their purchase at the Sheriff’s sale. But if from the evidence, you believe that Thomas Little never claimed the land as- his own, but held in subordination to W.. G. Little, then the Statute of * ^ 3 Limitations did not attach,, and' the possessory title- set up by defendants fails.</p> <p>Defendants further insist that if J., B. Adair -was not in the possession of the land' at the time he sold- it to W. G. Little, and any other person was in possession, holding adversely or not holding under Adair, the deed to Little is void and cannot fee made the foundation, of a recovery.</p> <p>This gentlemen, is tho- law; but here again it is necessary for you to examine closely into the character of Thomas Little’s; possession. If you find from the evidence', that although in possession before the sale by Adair to W. G.- Little, that he never claimed it as his own, then his possession was not adverse even to the claim of Adair, and the case- does not fall within the rule contended for by defendants, and the Statute of ’32, Henry VIII. dees not apply. In the progress- of this case, much has been said about fraud. It is proper for the court to instruct you on this subject. Fraud is never to be presumed. It must be proven, or facts must be proved, from which it may be legitimately inferred. If you should find' for the plaintiff under the law and evidence, it is insisted by defendants that rent can only be charged from 1846, the time at which,, according to the proof, the defendants went into- possession of the land — by way of mesne profits, the Court is of the opinion, gentlemen,, that the rent is chargeable from the date of the Sheriff’s sale under which the defendants purchased. They become entitled to the rents and profits of the land from that time; and if they did not receive them, it is incumbent on them to show that it was in consequence of some act for which the plaintiff is responsible in order to discharge them from liability.</p> <p>And the jury having found for the plaintiff, counsel for defendants except to said decisions and charges of the Court, on the following grounds:</p> <p>1st. That the Court erred in admitting so much of the testimony of Joshua Tennison, as proved a conversation between himself and Thomas Little, in January, 1833-, in relation to the ownership of said land, and the intended purchase of it by W. G. Little; and so much of it as- proved that Thomas Little had frequently told witness that the land belonged to W. G. Little.</p> <p>2d. That the- Court erred in permitting the answers of Whit-mill H. Adair and James Ware, and the original deed thereto annexed from John B. Adair to W. G. Little to be read in evidence to the jury — objections being made to the reading thereof by defendants’ counsel, on the grounds already stated herein..</p> <p>8d. That the Court erred in rejecting the answers of James Hobbs, tendered in evidence by defendants as herein set out.</p> <p>4th. The Court erred in rejecting the answers of Elijah Evans to certain interrogatories as herein set out; and in refusing to permit defendants to read them to tho jury.</p> <p>5th. The Court erred in refusing to charge the jury as requested by defendants’ counsel, and in giving the instructions which it did, except so far as the same may monform to the request to charge.</p>

<p>[1.] The appointment of a guardian of a free person of color, being a matter of record, cannot be proven by parol testimony.</p> <p>[2.] Where a person has acted notoriously as a public officer, it is prima facie evidence of the official character which he assumes; and his commission need not be produced. The same rule does not apply to a private trust.</p> <p>p.J Where one represents himself to act as the guardian of another, and induces others to contract with him in that capacity, he is thereby estopped from denying to the prejudice of -such persons, that he is what he claimed to he.</p> <p>[4.] But where the rights of other's are concerned, the best evidence of which the nature of the case is susceptible, must be produced.</p> <p>[5.] Before a notice, under the 57th Common Law Buie, 'em bo made avail-able, the party giving it, or his agent, must previously make oath, (or his attorney state in his place) that the deponent or attorney, lias reason to believe that the paper required to be produced, has been in existence— that it is in the possession, power or control of the person notified, and that it is material to the issue.</p> <p>[6.] Before secondary evidence is admissible, as to the contents of a writing, all the sources of information must be exhausted, which are accessible to the party in search for the paper.</p> <p>[7.] A will cannot be read in evidence to the jury as conveying title to personal property, in a Court of Common Law, until it has passed to probate before the Ordinary.</p> <p>[8.] If a paper is sought to be introduced as an ancient document, the paper itself must be produced to establish its age, and the presumption arising therefrom of its proper execution and probate.</p> <p>[9.] When a will, which is relied on as conveying title to personal property, is lost or destroyed, the proper course to be pursued is to establish the instrument, either at Common Law under our judiciary act, or by a proceeding in Chancery; and then go before the Ordinary and have the copy thus established in lieu of the original, proven and admitted to record.</p> <p>[10.] The rule, that in order to impeach a witness by proof of contradictory Statements, the foundation must first be laid, by asking the witness whether or not he has made the declarations, intended to be proved, does not apply when the evidence to impeach the witness, is his sworn depositions previously taken in the same cause.</p> <p>[11.] Where administration has been granted by the Ordinary, the order conferring the appointment, cannot be collaterally impeached; but it will be presumed, that the judgment of the Ordinary was regular and proper.</p> <p>[12.] If one, under a legal disability to dispose of his property, give it away to another, who sells to a third person, without notice of the incapacity of jhe donor, the ignorance of the vendee will not protect his title.</p> <p>[13.] A free person of color in Georgia, cannot dispose of slaves, directly by deed of gift.</p> <p>[14.] A free negro in this State, has no civil, social, or political rights, except such as are conferred on him by Statute.</p> <p>[15.] The mere act of manumission, confers no other right, but that of freedom from the dominion of the master,; or exemption from involuntary service. It does not confer citizenship, nor any of the privileges incident to citizenship.</p> <p>[16.] No analogy between slavery in this country and villenage; the former resembles, in many of its features the slavery of the Ciyil Law.</p> <p>[17.] The etymological meaning of manumission.</p> <p>[18.] To adopt a new member into the body politic, is an act of sovereignty, just as much as naturalizing a foreign subject.</p> <p>[19] This State, when a Province, was settled by a community óf free white citizens. The blacks were subsequently introduced as slaves; to whom parity of rank and privilege has never been accorded.</p> <p>[20.] The free person of color, is associated with the slave in this State, in most of the humiliating incidents of his degradation.</p> <p>[21.] The analogy between an infant and a free person of color fails in this, that at maturity the former can affirm or disannul his contracts, which are, therefore, voidable only; whereas the wardship or pupilage of the free person of color, and the disability consequent thereon, is perpetual, and hence his contracts are absolutely void.</p> <p>[22.] Slavery, as compared with the various schemes of emancipation— domestic and foreign considered.</p>

In Equity from Macon Superior Court. Decided by Judge Powers, March Term, 1858. This was a bill filed by Allen H. Greer, executor of Milton Templeton, deceased, against James S. Caldwell, administrator de bonis non of the estate of John J. Hougabook, deceased, and Harriet, his wife, who' is the widow and former administratrix of said Hougabook, praying discovery, relief and injunction.

In Equity, from Macon Superior Court. Tried before Judge Powers, March Term, 1853. This was a bill filed by Wiley Webb against Edward A. Robinson, Osborn Wiggins, John J. Ohewning and Anderson Stembridge. The object of the bill was to enforce the lien of Webb as vendor, on a certain lot of land, which he sold to Stembridge, for one thousand dollars, taking Stembridge’s-note therefor ; and one of which notes for two hundred dollars, was still in his hands unpaid.

Attachment, from Bibb Superior Court. Tried before Judge Powers, May Term, 1853. This was a motion to set aside a Judgment on Attachment, which Robert Eindlay had sued out against Daniel S. Mills, returnable to Bibb Superior Court, and on which he had obtained a judgment.

Trover, in Bibb Superior Court. Tried before Judge Powers, May Term, 1853.

In Equity, in Bibb Superior Court. Decided by Judge Powers, May Term, 1853.

Caveat in Upson Superior Court. Tried before Judge Starke, May Term, 1853, This was an issue of “ devisavit vel non,” made upon tbewill of Mrs. Charity Walker; propounded by Nathaniel Walker, executor named therein, and to which a caveat was filed, by Benjamin Walker, on the ground of weakness and imbecility of mind in the testatrix, arising from age and infirmity; and of undue influence and artifice and deceit on the part of the propounder, in procuring said will to be made.

<p>Ejectment in Dooly Superior Court. Tried before Judge Powers, April Term, 1853.</p> <p>This cause being before the jury for trial, the plaintiff tendered in evidence a copy grant from the State to Michael Smalley, Jr. covering the premises in dispute. The copy was tendered for the purpose of laying a foundation to enable Andrew Scott, one of the lessors of plaintiff, to make an affidavit touching the mutilation of the original, which wanted the Great Seal of the State.</p> <p>Scott then stated on oath that he received the original avant (which was produced in Court) from Michael Smalley, Jr.; that the Great Seal was then wanting to said grant, and that he had made search for it and could not find it, and that said Smalley, on inquiry, had told him that the Seal was lost or destroyed. The original plot and grant were then tendered by plaintiff, which being objected to, the Court required the copy to be tendered at the same time, to which plaintiff objected.— The original and copy being then offered together, were objected to by defendant, on the ground of variance between them in this : that the original was attested by E. IT. Pierce, Secretary of the Executive Department, while the copy purported to have been attested by E. Wood, S. E. D. The objection was sustained by the Court, and the plaintiff suffered a non-suit and excepted to said rulings of the Court.</p>

<p>[1.] The looser at gaming cannot file a bill in his own right, under the Act of 1T64, to have the property lost settled upon Ms wife and children; but a bill brought by him for that purpose, may be amended, by making him next friend and guardian, and the cause proceed.</p> <p>[2.] The proper remedy under that Statute, is a bill in equity.</p> <p>[3.] At Common Law, and in Chancery, no person can be compelled to testify against himself. In equity, he is not compelled to answer to any question which has a tendency to criminate him, or expose him to a penalty or forfeiture; or any question which may form a link in the chain of evidence by which crime, penalty or forfeiture is to he established.</p> <p>[4.] I-Iis privilege in this regard, cannot be waived and may be set up by demurrer, plea, or in his answer. A demurrer on this ground, does not go to the jurisdiction; but complainant has the right to proceed and make out his ease by other testimony.</p> <p>[5.] These privileges do not extend to cases under the Statute of Ann, as regards property and securities won at gaming; nor to cases under our Act of 1164, upon the same subjects — those acts, by express enactment, requiring the defendant to answer.</p> <p>[6.] Our Act of 1Í64 is not in conflict with the Federal Constitution; because the defendant’s answer, in eases originating under it, cannot he read in evidence against him, in any criminal proceeding whatever.</p>

Assumpsit, in DeKalb Superior Court. Decided by Judge Hill, April Term, 1853. The facts of this case were as follows: The plaintiff in error had hired a negro man to Joseph Thompson, in the City of Atlanta, for a year. During that period, and while the negro was in the possession of Thompson, he was attacked with small pox.

Indictment from Fayette Superior Court. On motion to dismiss the writ of error in this case, on the ground that a copy bill of exceptions had been sent up and not the original: Ordered, that the writ of error be dismissed,

In Equity, from Union Superior Court. Decided by Judge Irwin, April Term, 1853.

Illegality in Floyd Superior Court. Decided by Judge Jno. H. Lumpkin, August Term, 1853. The City of Rome was incorporated in 1847.

Trover in Floyd Superior Court. Tried before Judge John II. Lumpkin, August Term, 1853. The facts of this case are as follows: Messrs. Sullivan, Cabot & Co., merchants in Rome, had purchased in Augusta a quantity of rope, which was shipped on the Rome Rail Road, and arrived at the depot in Rome, Oct. 28th, 1852.

A motion was made to dismiss the writ of error in this cause, because it bore test in the names of Hon. Joseph Henry Lump-kin, Hiram Warner and Eugenius A. Nisbot, Judges; Judge Warner having ceased to be a Judge of this Court at the time said writ was issued.

<p>[1.] Parol evidence of a testator’s previous declarations, is admissable when offered, not to explain, alter, or contradict the will, but simply to show, as presumptive evidence of testamentary capacity, long continued expressions of a purpose to dispose of his property in a particular way. Por the same reason, such evidence of repeated declarations, manifesting a long continued purpose, is admissible, to rebut the presumption of undue influence.</p> <p>[2.] The admissions of an executrix, who is a legatee to the extent of a life interest in the whole of testator’s property, and the propounder of the will, are competent evidence upon the trial of a caveat to that will.</p> <p>[3.] Whore the Court was asked to charge, “That the absence of proof is evidence that the fact does not exist; and consequently, that if the jury believe that no testimony has been produced to show that W. was prejudiced against her older children,‘the jury cannot believe that any such prejudice existed;” and the Court declined to give the latter portion of the request in charge: Held, that, though the latter part of the request should have been given in charge, as submitted; yet, as in effect, the Court did charge the jury, that in the absence of proof, the fact referred to, did not exist for the jury; this was substantially a compliance with the request, and no injury was done by the refusal.</p> <p>[4.] The Court should not grant a now trial, merely because the verdict is manifestly against the weight of evidence; and never because of this, unless the preponderance is so great as to shook the understanding and moral sense.</p>

Claim in Cherokee Superior Court. Tried before Judge Irvin, April Term, 1853. This cause arose out of a levy by the Sheriff on a lot of land, by virtue of a fi. fa. issued in 1842 in favor of Eli McConnell ■ vs. Ira Ragsdale deceased. The land was claimed by Mary Rhodes, who was in possession at the time of the levy.

<p>In Equity, in Murray Superior Court. Decided by Judge Jno. H. Lumpkin, April Term, 1853.</p> <p>The facts of this case are as follows:</p> <p>James Nix had been the owner of a lot of land in Murray county, which he had sold to one Bryan, giving bond for titles. Bryan subsequently transferred the bond to Hargroves and others, who took possession, and let the land to Wm. N. Bishop, as their tenant.</p> <p>Nix subsequently commenced his action of ejectment against Bishop; and Hargroves and others filed their hill in Chancery, setting up their equitable title, praying that the ejectment suit be enjoined, and that Nix be decreed to make to them a deed, in conformity with his bond which they held. Upon the trial of this bill, the jury decreed for defendants.</p> <p>The executors of Hargroves, who is deceased, and the other parties complainants in the aforesaid bill, then filed a bill in the nature of a Bill of Review, to set aside the decree rendered in the former cause, on the ground of fraud in the procurement thereof; and, for specification of fraud, they charge, that Wm. N. Bishop, who was their tenant, and who acted as their agent in the preparation and trial of the former cause, and on whom they relied, had colluded with the defendant, and had agreed with him, in consideration of receiving one fourth part of the land in dispute, to withhold testimony of complainants ; and to operate on the public mind in the county, to the prejudice of complainants, and to help defendant strike the jury, &e. The bill did not, however, aver any act or omission of Bishop, in pursuance of this agreement; nor did it state any specific injury which had been done their cause by him.</p> <p>A demurrer being filed to the bill, as not showing any sufficient ground for the interference of a Court of Equity, was sustained by the Court, and the bill dismissed.</p> <p>To which decision, complainants excepted.</p>

Action on Note, in Eloyd Superior Court. Tried before Judge Jno. H. Lumpkin, August Term, 1853. This was an action brought by Blackman against Simmons, on a promissory note, given for the hire of two negro women. The defendant filed a plea of total, and also of partial failure of consideration, as to one of the negroes.

In Equity, in Floyd Superior Court. Decided by Judge John H. Lumpkin, August Term, 1853. In 1840, Robert Atkinson, administrator of Ligón, obtained a judgment in Floyd Superior Cornt, against Job Rogers, and the executors of Z. B. Hargroves, from which defendants appealed ; and pending the appeal, a written agreement was entered into by the attorneys on each side, to the effect that the appeal should be dismissed, and a certain credit entered on the judgment.

Ejectment, in Whitfield Superior Court. Tried before Judge John H, Lumpkin, April Term, 1853. The facts of this case are as follows : Joseph Collins was the drawer of a lot of land, in the County of Whitfield, which he sold to Thomas Glascock, late of Richmond county. Glascock died, and, in 1841, Andrew McLean was appointed his administrator.

In Equity from Murray Superior Court. Decided by Judge John H. Lumpkin, April Term, 1853. The following is the Bill of Exceptions which sets forth the facts in this case. The assignment of error as to the decision of the Court in sustaining the plea, and dismissing the bill, only was relied on before this Court. Georgia, Whitfield County.

In Equity, from Carroll Superior Court. Decided by Judge Irvin, August Term, 1853.

<p>[I.] Under the Laws of Georgia, giving “ Head rights”, a warrant containing no description whatever of the land intended to he surveyed, except “ 50 acres lying in Wilkes county” is insufficient.</p> <p>[2.] Such a warrant cannot he amended when the Caveat comes up to be heard in the Superior Court.</p> <p>[3.] The Superior Courts have original and exclusive jurisdiction in the trial of land caveats, as they have in all other cases respecting the titles to land.</p> <p>[4.] The proper procedure prescribed for the trial of caveats to land-warrants in this State.</p>

<p>Certiorari in Putnam Superior Court. Decision by Judge Cone, September, Term 1853.</p> <p>The following is the statement of facts agreed upon by the parties in this case :</p> <p>The Town of Eatonton ivas incorporated by an act of tho Legislature, December 12th, 1809 ; which charter was amended by acts dated 1816, 1819, and January 22d, 1852. By the 3d Section of the last act, the power of granting licenses for tho retail of spirituous liquors within the corporate limits of the said Town is vested in the Commissioners thereof, under such regulations as they may prescribe, “ provided that persons to lvhom license may be granted shall take the oath now required -by law”. On 13th February 1853, the Commissioners passed an ordinance on this subject, providing among other things, that “ the clerk or assistant of any such person applying for license as aforesaid, shall take the same oath, with the applicant” and on failure the license was forfeited. The ordinance further prescribed a penalty of twenty-five dollars for retailing within the said Town without a license. Thomas Floyd obtained a license from the commissioners, which was afterwards forfeited, by reason of his employing a clerk who had not taken the oath prescribed. Floyd- continued to retail after his license was forfeited, until the aggregate fines imposed upon him amounted to the sum of three hundred dollars. ' By agreement of the parties, the questions at issue upon this statement of facts, were submitted on argument to the presiding Judge of the Superior Court, with leave to sue out a writ of error to his decision thereon.</p> <p>The presiding Judge sustained the authority of the Commissioners to impose these fines ; and Floyd by his counsel assigns for error,</p> <p>1st. Because the Commissioners had no authority to require the clerk or assistant to take the oath.</p> <p>2nd. Because the grant of power to the Commissioners, to pass ordinances, and impose penalties for the violation thereof, is unconstitutional and void.</p> <p>3d. Because the act of the Commissioners deprived the de- ' fendant of the right of trial by Jury.</p>

Manslaughter and motion for new trial, in Hancock Superior Court. Decision by Judge Baxter, April Term, 1853.

Caveat to Will, on appeal, in Oglethorpe Superior Court. Tried before Judge Baxter, April Term, 1853. Jesso Finch, one of the legatees under the alleged will of William Finch, deceased, propounded the same for probate, and gave notice thereof to the next of kin.

<p>Claim in Taliaferro Superior Court and motion for new trial. Decision by Judge Baxter, February Term, 1853.</p> <p>. The 4th clause of the will of Alexander Norris, dec’d, was as follows:</p> <p>“ It is also my request, that after the death of my beloved wife, that Frances B. Billingslea has the tract of land whereon I now live, lying west of the road loading from Phillip’s bridge to Crawfordsville; also, that the said Frances B. Billingslea have the sum of five hundred dollars paid as his fees for doing the business of the within named.”</p> <p>Frances B. Billingslea was appointed executor, but never qualified; and administration, with the will annexed, was granted to W. B. Moore. After the death of Norris’ wife, Moore as administrator, advertised the above named tract of land for sale — and a claim thereto was interposed by Billingslea.</p> <p>Upon the trial of this claim, the Administrator offered to prove the value of the estate of Norris, for the purpose of showing that the jive hundred dollars was an inadequate compensation, as fees for the Executor named, in order to strengthen the presumption that the devise of the land was a part of the compensation, intended by the Testator. Tho Court rejected the evidence. The presiding Judge charged the jury as follows: that “ Whore a legacy is loft to a person by will, and the same person is appointed executor of the will, the Law presumes the legacy to be in consideration of tho appointment as executor, even where the will is entirely silent as to the consideration of the legacy; and the presumption of Law must prevail, unless there are words in the will to show that the legacy is founded on a different consideration. And further, that where a legacy is given in consideration of such appointment as executor, the legacy must fail, if the person so appointed does not qualify as such within the legal period.”</p> <p>The jury returned a verdict for the claimant; whereupon the plaintiff below moved a new trial, on the ground</p> <p>1st. That the jury found contrary to the charge of the Court.</p> <p>2d. That the Court erred in rejecting the evidence offered.</p> <p>A now trial was granted upon both grounds, and this decision is assigned .as error.</p>

In Equity in Greene Superior Court. Decision by Judge R. V. Hardeman, Oct. Term, 1853. This was a bill to marshal asset.

Action for Land, in Thomas Superior Court. Decision by Judge Love, May Term, 1853. When this cause came on to be heard in the Court below, the counsel for defendant below, and the plaintiff in error, moved to strike out two amendments which had been filed to the complaint, on the ground that the action was brought under the Act of 1847, “ To curtail and simplify pleadings at Law”, and in conformity thereto, and was therefore not amendable.

The .application of Henry Hodges in this case, showed that he was the defendant in a cause tried in Dooly Superior Court. That to the decisions of the Court in that case, he had filed a bill of exceptions, which was duly signed and certified by Son. A. P. Powers, the presiding Judge.

<p>[1.] The power by contract, to repair bridges across the Savannah, Ogeechee & Altamaha Canal, was not conferred on the Commissioners of Roads and Bridges of Chatham County, by the Act of 1833, to amend the fourteenth section of the Act to incorporate tire Canal Company; or the Act of 1803, to amend the Act of 1799, to empower the Inferior Courts to order the laying out of roads, and the building and repairing of bridges; or the Act of 1834, to authorize the Commissioners of Roads of Chatham, to “ Audit its own accounts,” &c.</p> <p>[2.] But oven if it was by these Acts conferred on those Commissioners, it was withdrawn from them by the Act of 1846, to repeal a part of the eleventh section of the Act aforesaid, of 1799; and further to extend and define the power ol' the Inferior Courts of the several counties of the State.</p>

In Equity in McIntosh Superior Court. Tried before Judge Henry R. Jackson, May Term, 1853. In 1801, John McIntosh departed this life testate. His will was recorded in 1826. By it, he gavo his entire estate to his wife, Ann McIntosh during her life; allowing a reasonable maintenance to his son, John L. and daughter Margaret; and at her death, he disposed of his property to his children respectively.

In Equity, in Chatham Superior Court. Decision on demurrer, by Judge Fleming, at Chambers, Dec. 30th 1853.

Indictment for Larceny in Columbia Superior Court, and motion for new trial. Decided by Judge Holt at Chambers, January 2nd, 1854. Eldridge A. Tippins was placed upon trial under an indictment for the Larceny of a bale of cotton in the County of Collornbia.

<p>Application for discharge on Habeas Corpus. Decided by Judge Fleming, at Chambers, January, 1854.</p> <p>Lorine Lancton was indicted in the Superior Court of Glynn county, for the offence of murder. At November Term, 1853, he was placed upon his trial under this bill, and a jury regularly impannelled. The minutes of that term showed the following entry: “ The State vs. Lorine Lancton. Murder. Juror withdrawn and a mis-trial declared.” In January, 1854, Lancton applied for his discharge under a Habeas Corpus, on the ground that he could not be again legally placed upon trial for this offence. Judge Lleming refused the application, and this decision is assigned as error.</p>

In Equity in Chatham Superior Court. Tried before Judge Henry R. Jackson, May Term, 1853. Patrick K. Shiels filed his Bill on the Equity side of' the Superior Court of Chatham county, alleging, that Wyatt W. Stark and bimself became the purchasers of a tract of land at the upper or Western extremity of Eig Island, containing about forty acres. The deed was made to Starke, who subsequently, by proper deed, conveyed one undivided half to Shiels.

Certiorari in Chatham. Application refused by Judge Fleming, at Chambers, Dec. 21st, 1853.

<p>[1.] In a bill for partition, it is not necessary that the complainant's title to the property should be fully set out.</p> <p>[2.] The defendant may, by plea or answer, controvert the complainant’s title to the whole or any part of the property, or deny the co-tenanCy; in which events, a preliminary trial should be had, to settle these issues.</p> <p>[3.] Ordinarily, in this State, Equity does not possess concurrent jurisdiction over partitions; if the remedy at Law be full and complete, resort must be had to that forum.</p> <p>[4.] Where there are various lots or parcels of land belonging to co-parceners, joint-tenants or tenants in common, the Act of lie1? authorizes the part-itioners to divide them by entire tracts, or to sub-divide them into paveéis.</p> <p>[5.] Dnder the general prayer for relief, it is the duty of the Chancellor io look through the bill, to see whether the facts charged do not authorize other and further relief than that which is specially asfeed.</p> <p>[6.] Courts of Equity, alone, can decree pecuniary compensation, in cases of partition; Courts of Law have no power to equalize the allotments in this way.</p> <p>[7.] If the Chancellor, in looking through the bill, can foresee that contingencies may and probably will arise, which Equity alone can adjust, he will retain the bill.</p> <p>[8.] You cannot, under the same writ of partition, at Law, allot some of the land by entire tracts, sub-divide some and sell others.</p> <p>[0.] In Equity, a receiver may be appointed, to rent the property and pay over the profita to the co-tenants, according to their respective interests, or decree that any portion thereof may be held and enjoyed for a certain length of time, by one of the co-tenants, and then by the other. And so on, successively. A Court of Law can exercise none of these discretionary powers.</p> <p>[10.] Where a bill is filed against the administratrix of a deceased co-tenant, who is entitled to dower in. the real estate sought to bo partitioned, a sale maybe decreed, directing one third of the proceeds coming to the estate of her husband, to be retained by the wddow, to bo held and enjoyed by her during her natural life.</p> <p>[11.] So, if the property sought to be partitioned, is involved in litigation, and a receiver has been appointed to superintend the interest of one of the co-tenants, in a bill for partition, the fund, if any, arising by sale or rent, may be protected by the order of the Chancellor.</p> <p>[12.] Courts in this State are more reluctant to oust Equity of its jurisdiction, in cases where, in England, it possesses original concurrent jurisdiction with Courts of Law.</p>

Attachment and claim in Baker Superior Court. Tried before Judge Perkins, October Term, 1853. The attachment, sued out by Edward O. Sheffield, against Francis D. Key in this case was levied as follows by the Sheriff. “ Levied on one stock of cattle as they now run, marks and brands not known, but known as the Sheffield stock of cattle as they now run.” A claim was interposed to this property by Thomas J. Cox.

In Equity in Sumter Superior Court. Tried before Judge Perkins, Aúgust Term, 1858. . Benjamin Carlisle sold to Cornelius, his chances in the Land Lottery of 182-, and gave him a bond to make titles to whatever lots he might draw. He drew lot No. 874, 28th district of Lee, now Sumter county, but died before making titles to Sullivan. Jane Carlisle, his widow and sole heir, afterwards executed a deed to Sullivan, which deed was never recorded.

Attachment and Claim, in Baker Superior Court. Tried before Judge Perkins, October Term, 1853. The affidavit for Attachment in this case, stated that “Francia D. Key was justly indebted to Edward O. Sheffield, in the sum of fifteen hundred dollars.” The declaration filed upon this attachment, showed the liability to be by Francis D. Key, surviving partner of the firm of Lewis & Key.

Trespass, &c., in Lee Superior Court. Decision by Judge Love, November Term, 1853. William N. Batts brought his action for trespass &e. vs. William N. Bartlett.

Assumpsit in Baker Superior Court. Tried before Judge Perkins, October Term, 1853. This action was against Leroy Sneed, as the endorser upon a promissory note, made by Dudley Sneed, Jr., and payable to E. P. Sneed or bearer. The endorser pleaded non est factum ; and on the trial of tins issue, it appeared that Leroy Sneed transferred the note to James R. George; and that George transferred it, with the endorsement upon it, to Hughes, the plaintiff in the action.

Ejectment in Baker Superior Court. Tried before Judge Perkins, October Term, 1853. S. Eaircloth brought suit against Benj. S. Jordan, for a lot of land. Both parties claimed under deeds from John Baugh, the grantee, with regular chains of title to the present claimants.

<p>In Equity, in Sumter Superior Court. Decision on demurrer, by Judge Perkins, August Term, 1858.</p> <p>In 1806, William Nelson 'made a deed of gift to his daughter Elizabeth and her husband, John Adams, conveying a negro woman, Judah, and her increase, “For and during their existence in this world, to use and make use of their labor, in any manner, whatever, which they may think conducive to their interest, except that of selling said negro or any part of her increase, to defraud their proper heirs or my intention, by this deed of gift. That is, at the death of the above-named Elizabeth, my daughter, and of John, my son-in-law, then, the said negro Judah and her increase, to be equally divided among and between the lawful heirs of the body of the above-named Elizabeth, my beloved daughter, as their own right and property, and for their own proper use and benefit, forever, in fee simple”.</p> <p>John Adams died, leaving two children by his wife Elizabeth. These children filed their bills against Eli Tucker and Reuben Tucker, alleging that they had possession of certain of these negroes, the increase of Judah, and praying a writ of ne exeat. To these bills defendant demurred, on the ground that the children, under this deed, did not take as purchasers, but as heirs; and consequently, were not entitled to the relief prayed. The Court overruled the demurrers, and these decisions are assigned as error. Both causes were heard together in the Supreme Court.</p>

Debt on bond. In Marion Superior Court. Tried before Judge Ivbrson, August Term, 1858. Cullen R. Lockett, as Sheriff of Marion county, gave bond, with Jeremiah Wyche, as one of his sureties. Matthew II. Myrick brought suit and obtained judgment and execution against Sarah Estes, in the Inferior Court of Marion county, which execution was placed in the Sheriff’s hands for collection.

Motion to setaside judgment-. Stewart Superior Court. l)eeision by Judge Iverson, October Term, 1853. In March, 1840, John N. McRae brought suit in Stewart Inferior Court, against James H. Ranoy and William Y. Raney, npon a joint contract. The declaration did not allege that cither of them resided in the county. The Sheriff returned service upon James II.

<p>[1.] A ward, in Georgia, has the rght to choose his own guardian, on arriving at the age of fourteen — subject to the right of the Ordinary to refuse his sanction, if the selection bo unwise and improvident.</p> <p>[2.] The new guardian, however, cannot be appointed until the letters of the former guardian are revoked.</p> <p>[3.] To sustain a suit by the newly appointed guardian, upon the bond of the former guardian, in which a breach of the bond is alleged, in not paying-over and delivering the property of the ward to the plaintiff, some demand, ' by nim, should be proven.</p>

Caveat to will. Tried before Judge Iverson, in Muscogee Superior Court, May Term, 1853. Held: and the proceedings at said trial had, were void for this, to wit: that on Saturday, the 14th •day of May, 1853, said Court, being then in session, was adjourned over till Monday, the 23d day of said May, that on Sunday, the 22d day of May, 1853, John R. Sturgis, the Clerk of said Court, died; that Monday, the day following, .His…

In equity, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1853. This was a bill filed against the administrators of William Boyd, for an account of his acts as guardian of Sarah P. Clements. It appeared, on the trial, that the guardian had transferred from himself, individually, to himself, as guardian, fifty shares of the stock of the Planter’s and Mechanic’s Bank, and claimed a credit therefor.

Suit upon notes in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1853. This action was upon three notes — all dated January 1st, 1845 — one for $300, due at sixty days ; one for $304, due at four months ; and one for $615 T!i0%y. due at six months, and all signed by O. P. Tillinghast and P. J. Tillinghast. Upon each of the said notes was a credit for $28 dated Dec. 16, 1850.

<p>Action on notes, in Muscogee Superior Court. Decision by Judge Iverson, at May Term, 1853.</p> <p>Jobn Butt and Willis D. Banks became partners in mercantile transactions, in Columbus. Oliver P. Tillinghast was their clerk and agent, with an agreement that he should share equally the profits, nothing being said about the losses. In the winter of 1850, Tillinghast stated to Butt & Banks, that he had made an arrangement with Nourse & Brooks, of Apalachicola, to purchase cotton on joint account with them. Thereupon, Butt & Banks consented; and Tillinghast proceeded to purchase and ship several lots of cotton to N. & B. Afterwards, N. & B. drew a draft on Butt & Banks for $3,000, which they said was the loss sustained on the cotton shipped. They determined not to accept, because it was for the entire loss, and not for one half. Tillinghast, when called on to explain it, insisted “ that the draft should be accepted — that it would never do for it to be protested, and that all would be right;” and agreed, as he had induced Butt & Banks to go into the speculation, he would sustain an equal portion of the loss, and pay one-third of the draft, if he could raise the money. When the draft became due, John Banks, the father of Willis I). Banks, after much persuasion, agreed to lend to each of them, Butt, Banks & Tillinghast, $1,000 a-piece, to meet the draft, provided Tillinghast would give him security — which arrangement was made; and Tillinghast, with his father as security, gave to John Banks a due bill for $1,000. The money was advanced by John Banks, and the draft paid. Afterwards, Butt & Banks complained to N. & B. of their not paying one half of the loss. In reply, they denied the arrangement with Tilling-hast, and sent a copy of a letter directed by them to Butt & Banks, in which they declined such an arrangement. This letter, Tillinghast admitted he had received, and never exhibited it to either Butt or Banks.</p> <p>John Banks sued Oliver P. Tillinghast and Paris J. Tilling-hast, on the due bill for $1,000. Defendants pleaded, that at the time they gave the said due bill, all the parties supposed that Oliver P. Tillinghast was, in fact, a partner of Butt Banks; and as such, liable for one third of the loss on the cotton. That it has turned out, on investigation, that he was not a partner, and consequently not liable; that John Banks was aware, at the time he advanced the money, that Tilling-hast was not liable, and took the due bill in fraud. The plea, under these facts, set up a failure of consideration.</p> <p>Upon the trial, the facts proven were as stated above.</p> <p>Counsel for defendant, requested the Court to charge, that “If the Jury believed Tillinghast was no partner in the firm of Butt & Banks, (but supposed himself to be one,) and was not liable to pay the $3,000 draft, and John Banks knowing this, agreed to pay up said draft, and did pay it up, in consideration that Butt, Banks & Tillinghast would each give a note or due bill, for $1,000, which they did, they must find for the defendant”.</p> <p>The Court declined so to charge, aiid this is assigned as error. /</p>

Motion, in Muscogee Superior Court. Decided by Judge Iverson, May Term, 1853. At February Term, 1853, of the. Court of Ordinary of Muscogee county, letters of administration, pendente lite, were granted to William Dougherty, upon the estate of James C. Watson, deceased. The order granting the letters recited, “ That John H. Watson and Benj.

Decision upon habeas corpus, by Judge Iverson, in Superior Court of Muscogee county, May Term, 1858. John A. Lindsey, by petition to the Court, showed that he married Sarah A. Jeffries in 1844, by whom he had one child, a female. That his wife had abandoned him, against his consent, and was now living in a state of adultery, with another man. That she had possession of his child, and prayed a writ of habeas corpus.

Complaint, in Baker Superior Court. Tried before Judge Piorkins, October Term, 1858. This was an action brought 30th March, 1848, by John Dupree, bearer, against Daniel B. Rich, on a promissory note, dated March 27,1841, due on demand, for $700, and payable to Nathan G. Christie, or bearer. The suit was brought under the Act of 1847, “ to curtail and simplify pleadings at Law” ; and a copy of the note was annexed, with a credit of $200, dated October 15, 1842.

<p>[I.] It does not follow, necessarily, that because the statements in the original and the amended bill are contradictory, that the latter -will be rejected. The facts, as originally set forth, may be wrong, and it may be the purpose of the amendment to rectify the error. In that event, the amendment will be substituted for the original.</p> <p>[2.] Mispleading should never be allowed to defeat substantial rights ; but every case should ultimately be heard and determined, upon its real merits.</p> <p>[3.] A bill may be amended for many purposes — among which, are the correction of mistakes in the original bill.</p> <p>[4.] To make the amendment objectionable, on the ground of repugnancy to the original bill, the contradiction must be such, that retaining both, no decree could be rendered.</p> <p>[5.] Where the matter in the bill has not been put forth with sufficient precision, the Court will always give liberty to amend the bill, for the purpose of making the necessary alterations.</p> <p>[6.] Great latitude is allowed in amending bills.</p> <p>[1.] Not only the discovery of new matter, existing at the time the original bill was filed, will authorize an amendment; but the fact, also, that counsel, by mistake or misapprehension, did not think the new matter necessary to be stated.</p> <p>[8.] The doctrine of amendments, is now more a question of cost than any thing else.</p> <p>[9.] One acting representatively, is entitled to more indulgence than the original party.</p> <p>[10.] Where heirs at law sue in ejectment as such, to recover land, which has not been paid for by their ancestor, equity will compel them to discharge the vendor’s lien, for the purchase money — the ancestor having died insolvent, and there being no representation upon his estate.</p>

<p>n.J A tender cannot bo made by one who is not a party to a bill in Equity, so as to constitute a valid objection to the reception of a ¡material amendment.</p> <p>f2.j A cross-bill is a bill brought.by a defendant against a complainant or other parties in a former, bill depending, touching the matters iu question in that bill. And the- bill should be so framed, that both causes may be beard together, and on» decree cover both.</p> <p>[3.] Where no decree- is prayed against a, new pp.rty to a bill, brought in by amendment, it is not requisite to extend to such party, the time allowed to an original defendant, for the purpose of filing answer. And it is competent for the.Com-t to prescribo the timo in which an original defendant shall answer a,u,amendment.</p> <p>{4.'j A Court of Equity, as a general rule, is Hbcrál'in allowing amendments addingyparties to a creditor’s bill; and such creditors may be raudo parties, even'at. the hearing.</p> <p>,{5.] -A Statute must.be construed with reference to the whole system of which, it forms a part.</p> <p>jhi. ] ji’hat portion of our Judiciary Act of 1799, which declares that in Equity 1. causes,-the Courts “ shall order the proceedings in such manner as that the same rhaH.ho ready for trial, at. farthest, at the third term from Cling the ^bill, inclusive, unless very special cause bo shown, to induce the Court to continue the same, which shall not, extend to more than four terms", must bo oons.truod to mean,'that the term within which the cause is to be tried, is to bp computed from that term of the Court in which the bill is filed, after which service had been perfected on all necessary parties thereto,</p> <p>ft.] Semble, that in England, previous to May, 177G, the doctrine prevailed, that a sjirety who paid a debt for .liis principal, might be subrogated to the rights- of the creditor, in a Court of Equity ; and such Court would compel the creditor to assign the debt to the surety. If so, tills rulo veas, of course, adopted as the law of Georgia. But.whether so or not, in the light of our legislation on this subject, a Court of Equity may, upon a proper case made, direct such assignment.</p>

in Equity, in Leo Superior Court. Decision on demurrer, by Judge Love, November Term, 1853.

Ejectment, in Muscogee Superior Court. Tried before Judge Iverson, May Term, 1853. In 1834, a grant issued to Eliza Ann Hays to a. tract of land. In 1841 she maried Win. J. Bush, being still a minor— she arrived at ago in 1847. Bush and Wife commenced suit against Lindsey for this tract of land in 1847. The defendant relied on the Statute of Limitations.

<p>[1.] Where the writ is on two promissory notes, and the verdict is for the aggregate amount of the principal, with interest, it is sufficiently certain.</p> <p>[2.] In order to charge the indorser of a note, payable at the agency of one of the chartered Banks of this State, a demand of the maker 'and notice to the indorser, are necessary.</p> <p>[3.] The maker and indorser of a note, payable at one of the Banks of this State, cannot he sued together in the same action.</p>

<p>Claim, &c., in Muscogee Superior Court, July Term, 1853. Tried before Judge Iverson.</p> <p>The following proceedings were had in this cause :</p> <p>R. & Gr. Barker, plaintiffs in fi. fa.' vs. Moore & Tarver, defendant, and James N. Bethune and Ann E. McDougald, Adm’x, &c., Claimants. Claim, <fc.</p> <p>“ It appearing to the Court, that there has been a verdict of condemnation of the property levied on in the above case, from which an appeal was entered by the claimants; and it appearing further, that the claim in said case has been withdrawn by the claimants, and the plaintiffs in fi. fa. now in Court, offering to relinquish his right to damages, on account of said claim and appeal, provided said appeal be now dismissed: It is therefore ordered, that the claimants show cause why said appeal should not bo dismissed”.</p> <p>The cause shown was, that the claimants had attempted to withdraw their claim, and supposing it withdrawn, Bethune had 'entered another claim to the property, which second claim had been dismissed by the Court, on the ground that the first claim was still pending. Farther, that Daniel McDougald, one of the claimants, was dead, and his death suggested of record, at November Term, 1852; and that Ann E. McDougald, administratrix, had never been made a party; nor was she served with a copy of the above Rule.</p> <p>The Court granted the order, dismissing the claim ; and this decision is assigned as error.</p>

Assumpsit, &c. in Stewart Superior Court. Tried before-Judge Iverson, October Term, 1858. James Bond brought suit against William Carter, as the surviving partner of Beall & Carter, upon a promissory note made by the firm and endorsed by Jeremiah Beall.

Complaint, in Muscogee Superior Court. Tried before Judge Iverson, August Term, 1853. Butt & Banks sued William Perry, on a promissory note, 'for $419. The defendant pleaded, as a set-off, an account for the board of Oliver P. Tillinghast, alleging that he was a partner of the firm of Butt & Banks.

<p>£1.] Where, upon trial of a prisoner for murder, the Court, in his charge, mentions that the counsel for the prisoner had admitted that he was guilty of either murder or voluntary manslaughter, and that they must find him guilty of voluntary manslaughter, but the Court adds, that it was a ’question for them to decide from the evidence, and that if, from a review’ of all the testimony, they were not satisfied of his guilt, they must acquit: ‘ Held, that the effect of such a charge, taken as a whole, was to leave the guilt or innocence of the prisoner with the Jury, to be determined by the evidence.</p> <p>[2.] The formation and expression of an opinion by a Juror, from rumor, as to the guilt or innocence of the prisoner, is good cause of challenge for favor. Wherever the objection to a Juror would constitute a sufficient cause of challenge for favor, if discovered before trial, it will prevent. a ground for new trial: if not discovered until after verdict, the Juror will be heard in his own vindication.</p> <p>[3.] Where a motion for a now trial is based upon affidavits, showing ihat a Juror who had tried the case, had expressed opinions unfavorable to the prisoner, and that his declarations had not been known to the prisoner until after the trial, it is proper that such showing should be accompanied by a similar statement, on oath, made by prisoner’s counsel.</p> <p>£4.] Where such motion is made, on the ground above stated, and the Juror being hoard in his vindication, states upon oath, that what he had said was-from report, .and that, notwithstanding, if .the evidence had shown the prisoner justifiable, he would have acquitted him, or if it had shown him guilty óf a less offence, included in the greater crime with which ho was charged, he would have found accordingly; and that his verdict was wholly uninfluenced by the expressions used, but was his solemn and honest conviction under the evidence : Held, that such statements and explanations are sufficient to show that he was a competent Juror.</p> <p>[5.] A declaration by a Juror, brought to the attention of the Court, after trial and conviction, that from the general bad character of the prisoner, ho had an unfavorable opinion of him, will not be regarded as an acknowledgement of such bias or prejudice as disqualifies, if it be accompanied ■with explanation, on oath, which shows that the Juror, notwithstanding, was capable of trying the case by the evidence. Such explanation will be received more favorably by the Court if, in its opinion, there is strong and conclusive evidence of the prisoner’s guilt in the record.</p>

In Equity in Sumter Superior Court. Decision on Demur-. rer, and on motion to dissolve Injunction, at, August. Term, 1853, by Judge Perkins. James P. West and Josiah Scrutchins bought of John R. Rouse and John J. Hodges, two lots of land in Sumter county— Nos. 118 and 101, of 3d District, for the sum of $4,000. Each, of tbe purchasers paid 11,000 cash; and ’gave their sevefaT notes, one to Hodges and tlio other to Rouse, for $1,000 each.