Volume 15 — Georgia Reports

<p>[1.] An action of assumpsit upon a foreign judgment, is barred, in our State, by virtue of the second section of the Act of December 7th, 1805, passed for the limitation of actions, if not brought until five years have elapsed, from the time the judgment was obtained.</p> <p>£2.] If such action of assumpsit upon a foreign judgment, be not barred by the second section of this Act, it is barred by virtue of the fourth section; or, if that bo repealed by the fifth section of the Act of 1707, if suit be not brought within four years from the time the judgment was obtained.</p> <p>t£3.j As the Statute of Limitations is “ one passed for quieting men’s estates,” Courts do not now apply a forced construction, which, by bringing a party within an exception, may enable him to evade the force of the Statute j hence, a defendant residing beyond the limits of the State, is not within the exceptions to the Statute of December 7th, 1805.</p>

Certiorari, from Troup Superior Court. May Term, 1858. For the facts of the case, and the questions made and decided in the Circuit Court, see the opinion delivered by the Supreme Court.

<p>In Equity, in Pike 'Superior Court. Tried before Judge: Stark, April Term, 1853.</p> <p>This bill was filed by tbe Justices of tbe Inferior Court of' Pike county, for tbe use of tbe people thereof, against the-Griffin & West Point Plank Road Company.</p> <p>Tbe bill alleges, that the Company bad seized and appropriated to their use, tbe public high-way, leading from tbe City of Griffin to the Flat Shoals, on Flint River, passing through three Militia Districts in the said county of Pike, and known as the Flat Shoals Road; that by fraud, and combination with the Commissioners of Roads in said districts, the Company had procured the appointment of Commissioners,, as provided by the terms of their Charter, who had assessed, in one of the districts, no damages or compensation, and in the others, merely nominal compensation, for the use of the public road, as the site to be occupied by the plank road; that the Commissioners of Roads, intwo'of the districts, had, in accordance with the award of the arbitrators appointed, proceeded to execute a fee simple title to the public road, sixty feet wide, to the said Company.</p> <p>The bill charges, that there was no necessity for the said Company to appropriate and occupy any part of the said public road with their plank road; and that by so doing, they have violated the provisions of their Charter, which, the bill alleges, confers no such right.</p> <p>The bill charges, in order to show that no such necessity exists, that Mr. Heely, the contractor, had proposed to build the road for fi300 less, per mile, if they would allow it to be laid’ down in a site different from that of the public road.</p> <p>The bill charges, that the acts and doings of the Company, in appropriating the public road, &e., tend to the injury of' complainants, as guardians of the interests of the people of Pike county, inasmuch, as if said Company shall be allowed so to do, they will be compelled, in compliance with the wishes of a large majority of the people of the county, to open a new road, along and near the site of the Flat Shoals road, thus, occupied by the Plank-road, and that such public road, will cost the county of Pike, not less than f6000.</p> <p>The bill prays that the Company may be enjoined, until security is given for such damages as may be recovered against them; that a perpetual injunction be granted, the deeds can-celled, and that the Company be decreed to pay such damages as complainants may have sustained, as the guardians of the pecuniary interests of the people of Pike county.</p> <p>The defendants filed answers, denying all fraud charged in. the bill, and alleging the perfect fairness of the whole transactions.</p> <p>They also filed pleas, setting up the awards, with answers supporting them, denying all fraud. Also, a plea stating that since the commencement of the suit, the General Assembly of Georgia had laid out and established a new county, viz: the county of Spalding, in which new county, was included a large’ portion of the highway stated in the bill.</p> <p>At the trial, the Court ordered the issues upon the pleas, to be tried at the same time with the main issues made by the bill and answers.</p> <p>Counsel for the Plank Road Company, moved the Court to have the Grand Jurors in attendance and sworn, brought into Court, for the purpose of placing them upon the voir dire, to see if they, or any of them, were liable to challenge for cause. The Court granted the motion, and the Grand Jurors were-each placed upon his voir dire, and various questions asked by the Court, as to “ the formation and expression of an opinion as to which party ought to prevail in the cause” ; and farther,, “have you any wish or desire as to which party ought to succeed in this causo” ; and those Jurors answering in the affirmative, were excluded, for cause.</p> <p>By this means, the Jury were reduced below eighteen.—The Court then ordered talesmen to be summoned, who were sworn simply as Special Jurors, and not impanneled regularly as Grand Jurors. To this whole proceeding, the counsel for complainants objected; and the Court overruling the objection, they excepted thereto.</p> <p>Counsel for the Plank Road Company objected to the whole array, on the ground that they were all citizens of Pike county; and that if the complainants succeeded in recovering damages for the obstruction of the highway, those damages would, by increasing the county funds, diminish the necessity for taxation, for the repair of the highways. The Court overruled this objection, and this is assigned as error by the Plank Road Company.</p> <p>The complainants offered to read an exemplification of the order passed in 1830, by the Inferior Court, opening the Elat Shoals Road. The Court refused to allow it to be read, because the fact was not denied. To this decision, complainants excepted.</p> <p>The complainants then offered to read certain letters of his Honor; Judge Stark, to show at what time the application was first made to his Honor, for an injunction. The Court rejected this evidence, and complainants excepted.</p> <p>The complainants then proposed to prove, by certain of their counsel, that the bill was presented to his Honor in August, 1850, and kept by him until 15th of Sept. 1850, when it ivas returned, with his sanction refused. The Court rejected the evidence, and complainants excepted.</p> <p>The complainants then tendered in evidence, a notice, served on the 22d of July, 1850, upon the Plank Road Co., of their intention to resist the Company’s usurping the highway ; and requesting the Company to desist from its designs and acts, in taking, appropriating and obstructing the highway. The Court rejected this testimony, and complainants excepted.</p> <p>The complainants then proposed to-prove how much the Elat Shoals Road, occupied by the Plank Road, was worth per mile; and how much it would cost the county to obtain the right of way and build another road—all which the Court rejected, and complainants excepted.</p> <p>Complainants then proposed, in various ways, to introduce proof, as to the necessity existing for the Plank Road Company to occupy and take the public highway. Eor instance, they proposed to prove, that the Plank Road Company could have got the right of way over a route off the Elat Shoals road; and one passing through a country not obstructed by mountain barriers, ravines, &c. The Court refused to let them introduce the proof, and they excepted.</p> <p>Complainants then required defendants to produce their books, under a notice, for the purpose of showing the amount of tolls they had received. , The Court refused to compel the defendants to respond, and complainants excepted.</p> <p>Defendants then, in response to a notice from complainants, produced the book containing the Minutes of their Board of Directors. Complainants examined it, and then declined to introduce it. Defendants insisted the book was then evidence for either party, and offered it as such, which was objected to by the complainants, and the objection over-ruled by the Court; to which decision, the complainants except, and say it is error. The defendant then read, as evidence, from the Company’s Minutes, a By-Law of the Company, as follows : “Passed 12th April, 1850—19th Sec. All travel over the Plank Road for neighborhood purposes, shall be free of toll, to wit: such as going to church, funerals, mill, muster, Courts, elections, blacksmith shops, after physicians, medicines, and neighborhood visits of every kind. Notwithstanding, it was objected to by complainants—to which decision complainants except, and say it was error. Complainants then .closed. Defendants introduced no other evidence. After argument of counsel, the Court charged, in substance, as follows 3</p> <p>The Justices of the Inferior Court' of Pike County, vs. > 'The Griffin and Wiest Point Plank Road Company.</p> <p>Bill, ¿•c. 'Tried at Pike, April Term, 1853.</p> <p>CHARGE.</p> <p>(After a brief summary of pleadings,) charged as follows: This bill is filed to restrain the usurpation of a franchise by the Plank Road Company, and to recover damages for the injury done to the county thereby. Since the filing of the bill, a portion of the public road alleged to have been illegally and fraudulently seized by the defendants-, has been, by an Act of the Legislature, included in the county of Spalding, and with that portion of the road, you have nothing to do. Pike county has no interest in it, as is conceded by the complainants.— A right of way, is a right to pass over the lands of another— over a public road—every one has this right to pass, free.— ' The Elat Shoals road, a portion of which is alleged to be frau- •- dulently occupied by the defendants, to the exclusion of the ■, public, is admitted to be a public road, duly established by express authority o‘f law, or by proscription; in either case it is, - or was, before its occupancy by the defendants, to all intents and purposes, a free public road. When this bill was first pre- •• sente'd for my sanction, I refused to sanction it, chiefly because I thought the Judges of the Inferior Court were not the > proper parties. Previous to the American Revolution, the public roads were parts and parcels of the royal prerogatives— they appertained to the CroAvn, and were called the King’s “Highways. By the Revolution, -the State of Georgia succeeded to all the sovereign rights of the Crown: and hence, I '.thought all the public highways belonged to the State ; and ■that this bill should have been brought by the State, or an in-'formation, at the instance of the Solicitor, for and in behalf of •the citizens of the State. Besides this, I thought I saAV a • manifest impropriety, in the Inferior Court embarking in lawsuits in other Courts, except in cases expressly authorized by law; or, in cases where its right to do so, arises by necessary implication, from the exercise of some well, defined right or duty. I also thought I saw an impropriety in their entering into a law-suit as parties, when they would, by law, have to select ’the Jurors to try the cause—not that I apprehended, or do now apprehend any abuse of power, in the selection of Jurors by that Court; but the course proposed to be adopted, I thought •wrong in principle ; and that the bringing of the case in the name of the State, would obviate all difficulties on that score. Eor these, and other reasons, I withheld my sanction from the bill. The decision Avas excepted to, and the Supreme Court • have thought, that from the interest which the complainants '■have in the fund, under the awards mentioned in the bill, (a matter which has escaped my attention,) the Inferior Court have the right to institute this suit. The Supreme Law interpreting power of the State has so adjudged; and the judgment must be obeyed and respected. You are, therefore, to consider all objections to the parties as removed; and that the complainants are properly in Court. In behalf of the complainants, it is insisted, that in procuring the right to a portion of the Flat Shoals Road, there have been numerous violations of the defendants’ Charter; and that thereby, the public has been defrauded out of the right of way, and they insist on a restitution of that right, and damages for its violation. It is the duty of the Court to instruct you in matters of law; and by these instructions you are absolutely bound. Fraud is-usually a mixed question of law and of fact. For instance, a bill is filed to set aside an award—the complainant -alleges that the award was procured by fraud, in this—that one of the referees took a bribe from the prevailing party. In such a case as that, the Court would instruct you, that an award obtained by bribery, must be set aside, leaving the Jury to determine, from the evidence, the question of fact, whether, in truth, a bribe was given. So, in the case before you, it will be the duty of the Com’t, to instruct you what fact or facts amount to such a fraud as will bo sufficient to set aside the proceedings under which the defendants claim the right of using and occupying, with their Plank Road, certain portions of the- Flat Shoals Road in this county. It will be exclusively your province to determine whether or not these facts have been proven, either positively or by circumstances. The 6th, 7th, 8th and 14th sections of the defendants’ Charter, repeatedly read in your hearing, point out the mode by which this defendant may obtain the right to use and occupy with their Plank Road, certain portions of the public road. Now if, in the various departures from the Charter, you find to exist, in the proceedings under which the defendant relies, or-in any of them, the defendants have obtained any advantage over the public, unfairly, or fraudulently, or without agreeing to render a fair equivalent, or fair consideration, after all these proceedings, under which they claim to have obtained the right of way over portions of the public road, must be set aside and treated as nullities—and all such portions .of the Flat .Shoals Road, as have been thus fraudulently appropriated to the defendants’ use, must be restored to the use of the public, by the grant of a perpetual injunction. The irregularities admitted to exist in the proceedings, will authorize you to look scrutinizingly into the whole of them; and if you discover that this Company has, by any trick, artifice or device, procured any advantage to itself, without a fair equivalent, then treat those awards and ratifications .as nullities; and let the parts of the road, which have been fraudulently usurped by the Company, be re-appropriated to :the use as free roads.</p> <p>The defendants, by their plea, claim title to the portions of the public road occupied by them, as having been obtained ■without fraud, under the Charter, by purchase, for a fair and ■valuable consideration. By their answer,' in support of the plea, they deny all fraud, combination and collusion, and insist on the right to the occupation of -portions of the public ■road, by virtue of the award, in one of the districts, and by •.virtue of the awards and ratifications, by the Road Commis- • sioners in the two other districts. They further contend, that ’the compensation paid, and to be paid by them, for the use and occupation of portions of the public road is: First. ‘The general benefit and advantage accruing to the public, from the erection and establishment of the Plank Road. 2d. The pecuniary compensation set forth in the awards,1 and 'which they say have been paid or tendered. 3d. The exemption from labor, in keeping the public road in repair, by the road hands of the different districts. 4th. The exemption from damage and inconvenience, to individuals, land-holders, from having a Plank Road and public road, both running in the same direction and in close proximity to each other. 5th. They insist, 'that the following By-Law of the Company, entered into, and constituted a portion of the consideration, for which the use of certain portions of the public road were conceded to them: 12th April, 1850, 19th Sec.—All travel over the Plank Road, for neighborhood purposes, shall be free of toll, to-wit: such as going to church, funerals, mill, muster, court, elections, blacksmith shops, after physicians and medicines, and neighborhood visits of every kind. The complainants reply to this portion of the defence, that this by-law is the act of the defendants, and may be repealed at the pleasure of the Company. But in the opinion of this Court, if the Company, or its agents, used the by-law as a means of procuring the right of way along a portion of the public road, and the use of the public road was conceded to them, partly on account of the existence of the by-law, then the perpetual right to the benefit of the by-law vested in those for whose benefit it was passed, and it is irrepealable. The Company, by repealing it, cannot deprive the public of the benefits arising under the repeal4 after having used it, in obtaining an advantage. This would be such a fraud by the Company, as the Courts would be bound to prevent. But it is contended by’complainants, that the following objections exist to those awards ; and that they constitute such fraud, per se, as to vitiate the awards : 1st. That some of the appraisers had signed the petition presented to complainants, and were, before they entered on the duties of" their appointment, in favor of conceding to the defendants the use of the public road, and had so expressed themselves in the petition. 2d. That the names of the appraisers, appointed by the Judge of the Superior Court, were suggested to the Judge by the defendants. 3d. That the compensation to be assessed by the appraisers, must be a pecuniary compensation, and that, the want of such compensation, vitiates the awards. ' 4th.. That the want of five days’ notice, of the time and place of trial, vitiates the awards. 5th. That the failure of the appraisers to state in the awards, particularly the nature and amounts of benefit a.nd advantage from the erection of the-road, as well as the loss or damage from the obstruction of the> right of way &e., vitiates the awards. As regards the objection, that some of the appraisers may have been, before the trial, in favor ‘ of conceding to the defendants the use of the public road, and had so expressed themselves in the petition, might be an objection to the competency of an arbitrator or Juror, if made known before trial, and would constitute a circumstance proper for consideration, in determing the ground of an award'; but a just award, untainted with fraud, or urn-assailed by other evidence of corruption and partiality, in my opinion, should not be set aside, on such a ground1 as this alone-An award or verdict, rendered by an arbitrator or Juror, whose previous opinions are ascertained to be strongly in favor of the prevailing.party, before trial, ought to-, be the more narrowly looked into- on that account; and yet,, if the award or verdict were clearly just and righteous, and obtained without fraud, it ought not to be shaken, merely on account of thepreposessions or prejudices of the Juror or arbitrators; for his preposessions may have been on the right side, and may have extended no further than law and justice demands. As regards the second objection, that the.names of a portion of the appraisers were suggested to the Judge by the defendants, I am of opinion that these awards and ratification^, 'if free from fraud and collusion, cannot be set aside on that account. And again, it is contended, that the compensation to be awarded by the appraisers, must be a pecuniary compensation, and the absence of such pecuniary compensation, renders the awards a nullity. The appraisers or commissioners must, before they act, take an oath, faithfully and impartially to discharge the duties assigned them. These duties are, to take into oonsidertion the loss and damage which may occur, in consequence of the public road being taken, or the right of way being obstructed ; also, the- benefit and advantage the owners of the public road may receive, by the construction of the> Plank Road. Now, if these appraisers were honestly of opinion, that the benefits arising from the road, exceeded the damage and ibjury; that the public interested in the old road, were getting the better end of the bargain, on account of the free travel to be allowed on the Plank Road, and the other public benefits arising therefrom, and the exemption of the citizens from road duty; if these are their honest convictions, they could not render a pecuniary consideration into the bargain, without doing violence to their oaths; and in the absence of fraud or collusion, you will not distrust these awards, on aceountof the want of pecuniary compensation. It is further sought to set aside these awards, because five days’ notice of the time and place of trial, was not given to the Road Commissioners. The object of giving the five days’notice is, that the parties may have the opportunity of preparing for trial; and the want of this notice would be a serious objection to these awards, and alone sufficient to set them aside, if it were shown that for the want of notice, the Road Commissioners were hurried into the trial, without opportunity for preparation, or were not, in fact, ready for trial. It is not, however, stated, or in the bill, that they were less ready for trial, for want of the notice; or that they insisted on the Want of notice, before going into the trial.— You have before you the answers of a portion of the Road Commissioners on this point. Another ground on which it is sought to assail these awards and ratifications is, that there was no necessity for the occupation of any portion of the Flat Shoals Road; and that the question of such necessity should be inquired into by yourselves; and if no such necessity existed, then it is contended thpf the awards should be set aside.;—. This Plank Road passes through a portion of three districts in the county of Pike—the 545th, 580th and the 505th districts. From the county line to Driver’s, it occupies a portion, of the Flat Shoals Road; from Driver’s, for some distance, it occupies the Zebulon Road—about which there is no complaint" in the bill; from the Zebulon Road, it diverges towards the Flat Shoals Road; and at Reid’s late residence, it intersects with and occupies considerable portions of the Flat Shoals Road, to its present terminus—all these facts are conceded.— In two of the foregoing districts, the Commissioner^ of Roads, have ratified the awards. The Commissioners of Roads had the right, under the Charter, to agree with and convey to the defendants, by fair bargain and sale, the use of such portions, of the public highway, as might be agreed upon as rea-, sonably necessary to be occupied by the defendants, in the construction of their Plank Road. Now, although the Road Commissioners may have refused to treat with, or make such conveyance to the Company in the first instance, until the judgment of arbitrators, indifferently appointed, might be had on the subject, under oath ; yet, if the awards, made without fraud, they, without fraud-or collusion, in good faith to the ' public interest, ratifies the awards, in the opinion- of this Court, the ratifications and awards are equivalent to an agreement and conveyance in the first instance. It. being no where alleged, in the bill, that the defendants do occupy or intend to occupy any more -of the Elat Shoals Road, than was meant or .-intended to be conceded to them in the awards, these ratifications and awards, if free from fraud or collusion, settled the question of necessity in these districts. As regards the 580th district, there is no ratification of the award by the Road Commissioners—only one of them agreed to the award, and ratified it when- made. The other two protested against it, solely, however, on the ground of the inadequacy of the amount awarded against the Company.</p> <p>In looking to the award itself, we find it awards against the Company twenty-five cents per mile, if it shall think proper to take either the Eayetteville or Thomaston Road; and whenever they may think proper to take the Elat Shoals Road, they shall pay fifteen dollars per mile. Now, in the opinion of this Court, this award, if fairly obtained, without fraud, settled the question of necessity, and has given the Company their election, to take the Elat Shoals Road, or either of the others, if they thought proper. The record shows no- dissent of the Road Commissioners, except as to the amount of compensation. If the amount awarded was insufficient, their plain and adequate remedy was at law, by appeal, to a Special Jury—a failure to appeal, in the opinion of the Court, precludes them or others from opposing the awards, except for fraud or fraudulent collusion. And finally, it is sought to set aside these awards, because the appraisers have not stated in the award, particularly, or with sufficient particularity, the amount and nature of the loss and damage, and the nature and amount of benefit and advantage.</p> <p>The awards are.irregular, in this respect, and not in conformity to the Charter; but, in the opinion of this Court, neither this objection, nor either of the others, nor all of them together, are sufficient to overturn these awards and ratifications, if they were fairly obtained; and if the public has not been defrauded, and if the public has not been deprived ©f some important and valuable right, without a fair consideration. The provisions of the Charter, the violation of which are here complained of, are all directory, and intended to guard the rights of the parties against wrong—they,are intended as land-marks, for the guidance of the parties, .and those entrusted with the care of the public interests, in the attainment of right, and in the avoidance of error and fraud. Now, if the public, by reason of any of the irregularities complained of, has been defrauded; that is, wrongfully deprived of any valuable or important right, in procuring these awards and ratifications, or either of them, then set them aside, and restore to the public all the rights it has been deprived of, by awarding a perpetual injunction.— But if the public interest has suffered no detriment—if it has been deprived of no important or valuable right, without % fair equivalent; if there has been no fraud proven to your satisfaction, positively or by circumstances, all the provisions of the Charter should be construed, so as to uphold the right and prevent the wrong ; if there has been no wrong or fraud, you will not allow the complainants to perpetrate a wrong, by a re-appropriation of this road to public use.</p> <p>The defendants had the right, so far ’as portions of the public road were necessary for the construction of their plank road, to obtain its use by fair bargain and sale, from the Road Commissioners, in the first instance; and failing to do so, they had the right to obtain it by fair arbitration. In either instance, they had the right to obtain what is called a good bargain, if they could do so without fraud. The Road Commissioners had the right to obtain a good bargain for the public, if they could do so without fraud. Courts of Equity ought to relieve against contracts procured in fraud, but a Court of Equity cannot relieve against a fair bargain or a fair award, untainted with fraud.</p> <p>It is again insisted, that through fraudulent collusion between the Road Commissioners and the defendants, the directions and requirements of the Charter have been dispensed with, in obtaining possession of the public road; and that, therefore, the whole of the proceedings should be annulled. And the Court here instructs you, that such fraudulent collusion as this must annul the whole proceedings, under which the-defendants claim the title. You are to inquire whether or not the directions and requirements of Charter have been.dispensed with, through any fraudulent collusion or design, between the the Road Commissioners and the defendants; if so, the whole of the proceedings are to be annulled. It must, however, be a fraudulent collusion, established by proof or circumstances to your satisfaction. Fraud is never to be presumed; it must eiither be proven positively or shown by strong unequivocal cir■-cumstances.</p> <p>The evidence is all before you:. the answers of the defendants, so far as they are responsive to the allegations in the bill, ¡are evidence, unless overcome by other testimony, and are to 'be taken as true. The answer of a defendant in Equity, im-mediately responsive to the allegations in the bill, must be ta;ken as true, unless overcome by the testimony of two witnesses,-or one witness and circumstances corroborative of the testimony of that witness, sufficient to cast the balance against the answer.</p> <p>Regulate your verdict by the principles of law, as laid down 'by the Court—find the facts for yourselves, of which you are .exclusively the judges.</p> <p>To this charge complainants excepted, and have assigned -numerous errors thereon.</p> <p>In addition to the exception, as to the pannel of the Jurors, ■defendants also excepted to a decision of the Court, over-ruling a similar objection to the witnesses of complainant, on the ¡ground that they were interested, being citizens of Pike county.</p> <p>On these exceptions they assigned error. ,</p> <p>Both causes were heard together in this Court.</p>

<p>Rule nisi, to discharge securities, on guardian’s bond..—■ Heard and decided by Judge Hill, May Term, 1853.</p> <p>At the July Term, 1852, of the Court of Ordinary of Troup county, plaintiff’s in error filed the following rule nisi :</p> <p>“ It appearing to the Court, that heretofore, to wit: at the May Term of this Court, 1846, Jeremiah Scott was appointed guardian of Leroy C. and Sarah J. Scott, Ms own minors, and gave bond, in the sum of two thousand dollars, with George W. McGehee and Thomas Scott, as his securities; and it further appearing, that said McGehee and Scott became security on said bond, under a promise, by agreement with said Jeremiah Scott, that he would give another bond, with new security, and relieve the said McGehee and Scott. And it further appearing, that at November Term, 1851, of said Court, Jeremiah Scott did give another bond, with other securities, as guardian for said minors; and no order having been passed, releasing the said George W. and. Thomas, it is ordered by the Court, that said Jeremiah Scott and his securities, show cause, at the next Term of this Court,, why an order discharging the said George W. McGehee and Thomas Scott, should not be passed, nunc pro tunc”.</p> <p>At the hearing, the Court of Ordinary refused to make the rule absolute; from which decision, an appeal was taken to the Superior Court, and the judgment of the Ordinary affirmed.—. To which decision, counsel for plaintiffs excepted.</p>

In Equity, in Troup Superior Court. Tried before Judge Hill, May Term, 1853. At the May Term, 1850, of Troup Superior Court, Benjamin. S. Jordan of Baldwin county, commenced his action of debt, against Mary J. Jordan, as administratrix of Warren Jordan, •on a promissory note, made by the said Warren to him, the said 'Benjamin S. in 1841, for $4,360.

Claim, in Fayette Superior Court. Tried before Judge Hill, March Term, 1853. A preliminary motion was made to dismiss the writ of error, upon the ground, that no notice of the certifying and filing the bill of exceptions, had been given to the defendant in error. The facts were, that a, fi. fa., issued in favor of Thomas- Mi. Jones, against John T. Davis, had been transferred, in writing; by Jones, to William J. Russel.

Trover, in Coweta Superior Court—motion to enter up judgment. Decided by Judge Hill, September Term, 1853. In this case, the following statement of facts was agreed upon by counsel for the parties, in the Court below: “At the March Term, 1847, of the Superior Court of Coweta county, John Bigby instituted an action of trover, against John B. Russell, for the recovery of three negroes.

In Equity, in Twiggs Superior Court. Application for ali-. mony. Decided by Judge Powers, September Term, 1853. Mary a Methvin commenced her libel for divorce against her husband, William Methvin, in Twiggs Superior Court,, pending which she filed a bill of ne exeat, and made application for temporary alimony and counsel fees.

Tried before Judge Irwin, September Term, 1853. Christopher C. Bowen sold to Paschal E. Collins, a settlement of lands in Fayette county, for $4000. Notes were given 'for the purchase-money, and bonds for title, upon the payment of the same, executed. Collins died in posession of the land, having paid but a part of the purchase-money.

In Equity in Dooly Superior Court. Decision on demurrer, made by Judge Bowers, October Term, 1853. Hugh F. Rose drew lot of -land No. ninety, in the 10th district of Dooly county, for which he received a plot and grant from the State. In 1841, Rose sold the land to Eli Benson,, the latter giving his notes for the purchase-money.

<p>[1.] Where, in an action of assumpsit, on a promissory note, to which no plea of set-off was filed, the plaintiff confessed judgment and appealed, and on the appeal, gave bond with security, “ for all costs which may accrue in said case” : Held, that in such a case, this was a substantial compliance with the Statute, and the case was carried to the appeal.</p> <p>£2.] The case being appealed, and there being a good cause of action, proper service, &c., every irregularity may bo amended, upon motion, without delay.</p>

Distress Warrant. Affidavit of illegality, in DeKalb Superior Court. Decided by Judge Hill, October Term, 1853.

Indictment for stabbing, in Dooly Superior Court. Tried -before Judge Powers, October Term, 1853. At the October Term, 1853, Henry Hodges was put upon .his trial, on an indictment for stabbing one James Holt. The defendant pleaded “not guilty”.

In Equity, in Houston Superior Court. ' Decision on demurrer, by Judge Powers, October Term, 1853. Jacob Wood, of the City of Darien and county of McIntosh, departed this life in the year 184-, haying first made and published his last will and testament, bearing date the 11th day of January, 1840, as follows: Geor&ia, McIntosh County. In the name of God, amen.

<p>In Equity in Troup Superior Court. Decision by Judge Irwin.</p> <p>Nicholas Lewis died, leaving the following will:</p> <p>I, Nicholas Lewis, of LaGrange, Troup county and State of ‘.Georgia, being of sound mind, do make this, my last will and testament, as follows:</p> <p>Section 1st. I do hereby appoint my wife, Harriett W. Lewis, Howell Lewis, my son, and James K. .Redd my executrix and executors. ' . .</p> <p>Section 2nd. It is my will that those of my children that I have heretofore given portions to, shall have no part or portion in the estate that Lmay die possessed of, viz: William H. Lewis, Nicholas M. Lewis, John S. Lewis, Caroline M. Haralson, Lemuel J. Lewis, Mary E. Redd, Howell Lewis and Franjéis S. Early, in right of his deceased wife, Frances Sarah, my daughter, Cornelia Culberson and Helen M. Ferrell, except what shall be especially pointed, hereafter, out.</p> <p>Section 3d. It is my will that all the property that I may die possessed of, both real and personal, shall be divided between Harriett W. Lewis, my wife, Robert Lewis, Oscar F. Lewis, Pauline Lewis, Warner Lewis and Charles Lewis, at the following time and in the following portions; that is,-.when■ever any-of my unportioned children, just mentioned, becomes of age or marries. As soon thereafter as the crop on hand may be gathered or finished, the one becoming of age-or married, shall have her or his portion allotted to her or him, in the following manner: If a daughter, she shall have an equal portion of all the estate, lands or lots excepted, between my wife and the latter children, just mentioned; and the rest or residue of the property shall be continued on the plantation until the next becomes of age or marries, when the like division shall ■take place, in the same way and manner as tb$ first, only with this difference: should one of my sons become of age, then the personal property shall be divided in the same way as before pointed out; but the lands shall be equally divided between •my wife and my younger sons, Robert, Oscar, Warner and Charles; and should any of my children die, viz : Robert, Oscar Eitzallen, Pauline, Warner and Charles, the property shall 'be divided among those children last named, equally, in the manner and on the same principles before pointed out; and the •residue or balance of the property shall continue on the plantation, as though I was living, for the benefit of my wife and the children, equally, that have not had their portions allotted to them; but should my -wife think proper to marry again, it is my will that she bo dismissed from being executrix of my estate, and Robert be substituted in her place, as one of my ex-ecutors, and that my house and lands be sold on reasonable time of payment or payments, for the benefit of herself and my younger boys, viz: Robert, Oscar Eitzallen, Warner and Charles; and the money accruing therefrom, put at interest for their benefit. The portion allotted to my wife she is to have her natural life, and give or will to any of my children .that she may think proper.</p> <p>Section 4th. I do solemnly request that my wife would keep my house open to any of my children that may be or have been indigent or unfortunate.</p> <p>Section 5th. It is my will that my little children be raised in .the principles of the Christian Religion, and in the fear and admonition of the Lord; and as soon as I am absent, in - death, .that my wife will personally set up family worship, and pray with and for my children.</p> <p>Section 6th. It is furthermore my will, that my executrix and executors, may, with the profits arising from the estate, purchase property, if they may think it advantageous to the estate, for the benefit of my younger children, viz: Robert, Oscar E., Pauline, Warner and Charles. Should any purchase be made, prior to any division, then, for the benefit of all just named. If, after any division, those that may have drawn their portions, shal^have no interest in the property thus acquired; and also for the benefit of my wife, equally with the before-mentioned children.</p> <p>Section 7th. It is my will, that my children may have their option, whether they will draw their part in the negroes, or let them work upon the plantation, and draw their proportion; and it is further my will, that my wife shall have the house and lot in LaGrange, furniture, &c., her natural life or widowhood. It is further my will, that my lands shall not be divided until the youngest becomes of age.</p> <p>Signed, &c.</p> <p>The widow, Harriet M. Lewis, died without disposing, in any way, of the property left her in the 3d clause of this will.</p> <p>After her death, the executor, Redd, filed his bill for construction and direction, as to this share—the other legatees named in that clause, claiming it absolutely, on the one hand, and the children by the first marriage, claiming on the other hand, that it reverted to the estate; and that as to this reversionary interest, there was an intestacy.</p> <p>Upon the hearing, the Court held, that the legatees named in the 3d item, took this share in remainder, absolutely; and this decision is assigned as error.</p>

<p>[1.] A new trial will not be granted, if the verdict of tlio Jury was right, although the charge of the Court may have been wrong.</p>

In Equity, in Crawford Superior Court. Tried before Judge Powers, September Term, 1853. This bill was brought by Wright, as the administrator of Jemima Culpepper, against Hicks, as general administrator, and as administrator de honis non, cum testamento annexo, of Daniel Culpepper, deceased.

In Equity, in Crawford Superior Court. Tried before Judge Powers, September Term, 1853. This bill was filed by William Moody and his wife, against Lewis Davis, for “discovery, relief and account”.

<p>Motion in Bibb Superior Court. Decided by Judge Powers, November Term, 1853.</p> <p>At May Term, 1853, a rule nisi was granted against David J. Davis, as Sheriff, requiring him to show cause why he should not pay to Dermod Dempsey, the amount due on a mortgage f,. fa. against one Thomas Williams. No cause being shown, the rule was made absolute.</p> <p>At November Term, 1853, the Sheriff moved to set aside the rule absolute, upon the following grounds :</p> <p>1st. Because plaintiff was himself, a purchaser of the property sold, to the amount of $524 upon which purchases, no money was paid; but, by agreement, it was to be allowed as a credit on the plaintiff’s fi. fa. while the rule absolute is for the whole amount—not allowing this as a credit.</p> <p>2d. Because there were two mortgages, the other being in favor of Scott, Carhart & Co. and the mortgagees, or their agents, were both present at the sale; and when the property was put up for sale, it was bid off by the mortgagee in whose mortgage it was included, and the price was to be credited on his mortgage. This was by agreement of parties; no money was paid.</p> <p>3d. That when the rule nisi was served upon him, he supposed, and so learned from the parties in interest, that the object was simply to adjust their respective rights under said agreement, and not to require the defendant to pay over money which he had never received. For this reason, he failed to make return, and did not know of the existence of the rule absolute, until after the adjournment of the Court.</p> <p>4th. That the sales amounted to $3034,85</p> <p>D. Dempsey’s purchases, $524,34</p> <p>Scott, Carhart & Co. 140,65</p> <p>T. A. Goodwin, on mortgage, 2179,54</p> <p>Sales for cash 190,32</p> <p>Commissions, $37,93</p> <p>Expenses, &c. 60,75</p> <p>Advertising, 270,00</p> <p>leaving in his hands, nothing.</p> <p>5th. That the goods purchased by Goodwin, and Scott, Car-hart & Co., were not embraced in the mortgage to Dempsey. The goods sold for cash, were embraced partly in both mortgages.</p> <p>This motion was made under oath. The Court refused the motion, and this decision is assigned as error.</p>

Garnishment, in Bibb Superior Court. Tried before Judge Powers, Nov. Term, 1853. Ross & Co., on tho 21st day of March, 1853, sued out an attachment against Ptolemy Watkins, for $300, returnable to May Term, 1853, of Bibb Superior Court. The attachment was le.vied on 9' boxes of tobacco; and summons of garnishment served upon Elijah H. Carhart and Aaron A. Ross, both as individuals, and as partners, on the day the attachment was issued.

Trover, in Bibb Superior Court. Tried before Judge Powers, November Term, 1853. This was an action of trover, brought by the plaintiff against the defendant in error, for the recovery of ten negroes and a ■horse. The defendant pleaded the general issue. On the trial, plaintiff read to the Jury the testimony of Thomas S. Hays, Overton Segó and Joseph M. Cooper.

Ejectment, in Bibb Superior Court. Tried before Judge Pqwers, November Term, 1858. The errors assigned in this case, arose upon the refusal of the Court below to grant a new trial. It appears that George Osborne, as the administrator of Nancy Johnson, (who was the drawee of lot No. 206, 4th district of Bibb county,) brought an action of ejectment against John Berry, who was the tenant of William Bailey, for said lot. The defendant relied upon the Statute of Limitations.

<p>Attachment, in Bibb Superior Court. Tried before Judge Bowijra, November Term, 1853.</p> <p>This was an attachment, sued out by tbe plaintiff in error Against John B. Hines, as tbe surviving partner of tbe firm of “R. K. & John B. Hines, on .the following receipt:</p> <p>££ Received of W. II. Miller, Clerk, twelve hundred dollars in cash, to bo deposited in Marino and Eire Insurance Bank, •in Macon, Ga.</p> <p>November 16th, 1850. R. K. & J. B. HINES ”.</p> <p>Among other pleas, tbe defendant pleaded specially, that 'the late firm of R. K. & J. B. Hines, was formed and conducted alone for tbe practice of law; and that the said money was received alone by-It- K- Hines, as agent for the plaintiff, without any fee or compensation to said firm, and that from the nature of the transaction, plaintiff had notice that the firm was •not liable upon said receipt.</p> <p>On the trial, plaintiff read in evidence the receipt specified. Plaintiff then read in evidence, the record of a rulo nisi, and ; subsequent proceedings thereon against the Sheriff of Houston 'county. The rule was drawn in favor of L. M. Wiley & Co. and other creditors calling upon the Sheriff to pay over money raised from the sale of T. & S. Williams’ property. The .rule nisi was in the hand-writing of John B. Hines, and the rule absolute impounding the money in the hands of Fin. II.. Miller, the Clerk of the Superior Court of Houston county, and directing him to invest it in the bonds of the Stale, until the further order of the Court was in the hand-writing of Richard K. Hines.</p> <p>Plaintiff then proposed to prove by John Rutherford, that John B. Hines had represented to him, that they, the firm of R. K. & J. B. Hines, had a large conditional fee in said fund.</p> <p>To which counsel for defendant objected. The ('ourl sustained the objection, and plaintiff excepted.</p> <p>Counsel for plaintiff asked the Court to charge the Jury, 1st. That if they believed the evidence, they must find for the plaintiff. 2d. That the plea of non est factum jiot having been filed to the receipt, the same is the instrnmeni of the firm. 3d. That there being no evidence as to who signed the receipt, the law presumed it was done by both partners, and the Jury cannot supply the omission by their own personal knowledge ; (which charges the Court refused to‘give, but did charge “that it was incumbent on the plaintiff to prove that the receipt was signed by both partners”.) -Il.h. That although the business, in this case, was outside the parlncvship, still, it was competent for the partners thus to undevrnke, 'and in the absencc*of proof, (as in this case,) that this business was executed by one only of the firm, the presumption of law was, that it was undertaken by both partners. The Omni refused to give this charge, hut did charge, that being outside of the partnership, the onus vras upon the plaintiff to prove ike concurrence of both”. 5th. Counsel for complainant asked the Court to charge further, “that only one partner being sued, and he not denying the signature, the Jury wouldpresume that the defendant sued was the one who signed the receipt", 6th. If the Jury believed, from the evidence, that the business out of which this fund of $1200 sprung, was a partnership business, then they had such an interest therein as would bind both partners upon the receipt.</p> <p>Which charges the Court refused to give, but did charge, that it was incumbent upon tbe plaintiff to show the assent of both partners to the execution of the receipt, the business being outside of the partnership.</p> <p>To each and all of which charges and refusals to charge, counsel for defendant excepted.</p>

Ejectment, in Bibb Superior Court. Tried at December Term, 1853, before Judge Powers. The plaintiffs below, L. M. McGuire and others, claimed, as the children of Milly McGuire, under the will of Thomas Rainey, by which he devised the land in dispute, to “ Milly McGuire’s children, their heirs and assigns forever”. Four of the plaintiffs were born since the death of testator.

Larceny, after trust reposed. Tried before Judge POWERS, in Bibb Superior Court, November Term, 1853. ■' The indictment in this case, charged that the defendant, on 1st September, 1853, was intrusted, by Davis Smith, Jr. with, a certain bay horse, for the purpose of selling and paying over the proceeds to Smith; that tho defendant disposed of the horse for $96, and fraudulently converted the money to his own use, “the said Daniel S. McCoy not having paid to the said Davis…

In Equity, in Bibb Superior Court, Decisions by Judge Powers, November Term, 1853.

<p>[1.] When the Court is asked to give a charge, in words which are not apt and appropriate, it is proper for it to modify the charge, so as better to convey instruction to the Jury.</p> <p>£2.] The formation and expression of an opinion by a Juror, from rumor, as to the guilt or innocence of the prisoner, i?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 present a ground for new trial, if not discovered until after verdict. The Juror will be heard in his own vindication.</p> <p>[3.] When the Juror is so heard, the Court should, as it were, place itself in the position of triors; and if the explanation of the Juror be such as, in its opinion, should render him competent, if he were before triors, the Court should so pronounce him.</p> <p>[4.] When, upon a trial for murder, the evidence shows that there was considerable provocation oh the part of the decedent—that there was great heat of blood between the parties, and mutual intention to fight, the crime may be reduced to voluntary manslaughter.</p> <p>[ñ.] Our law requires, that there should besóme assault, by the person killed, upon the person killing; but evidence of such assault, may be found in a mutual intention to fight, and in the fact of an approach, by the*'decedent, to the prisoner, in furtherance of this design, when it was not necessary for him to do so, in self-defence.</p> <p>[6.] The fact that a prisoner had accidentally and hastily taken up a board, with which, in a conflict, he inflicted blows that produced death, and had not provided the same, or any other deadly instrument bofore-hand, is a circumstance which does not favor the conclusion that malice should be implied, because a weapon was used, likely to produce death.</p>

<p>£1.] In all cases of presentment or of indictment, the only lawful oath which, can be administered to witnesses, to be sent before the Grand Jury, is the following: “ The evidence which you shall give to the Grand Jury, on this bill of indictment, (or presentment) as the case may be, (here state the case,) shall be the truth, the whole truth, and nothing but the truth, so help you God”.</p> <p>■[2.] If the oath of the witnesses be materially different from this, the indictment ought to be quashed or dismissed.</p>

Possessory warrant. Issued by Judge Poivers, October, 1853. This issue arose upon a possessory warrant, issued by Judge Powers, upon the following affidavit: “Georgia, Bibb County: In person appeared before me, Dermod Dempsey, who being sworn saith, that he is the owner of a certain hotel, garden and appurtenances in the City of Macon, and said county, known as the “Eloyd House”; that he rented the same to John C. Ashburn and George W. Ashburn, both of said county, partners,…

Assumpsit, &c. in Bibb Superior Court. Tried before Judge Powers, November Term, 1853. This was an action by A. R. Ereeman, as indorsee, against Thomas L. Ross, as survivor of the firm of Ray & Ross, as acceptors upon the following draft: Macon, Feb. 28th, 1851. Messrs. Ray Ross— Will please pay to the order of Charles H. Freeman, one hundred dollars, and charge to account of y’r ob’t ser’t, T. C. HOWARD. Indorsed, pay to A. R. Freeman or order. C. H. FREEMAN.

<p>Assumpsit, &c., in Troup Superior Court. Tried before Judge Irwin, November Term, 1853.</p> <p>This was an action by Wm. B. Pryor against Aaron Form-by, for professional services, in procuring the pardon of George W. Formby, the son of defendant, who was imprisoned in the penitentiary. Upon the trial, it was proven by plaintiff below, that defendant agreed to give him §>500 for his services. Defendant below proved, that Pryor said he intended to charge nothing.</p> <p>The Court charged the Jury, that “ if they believed that a contract had been proven between the parties—that the declarations of Pryor to third persons, (after the contract was made between himself and Formby,) without consideration, saying that he would not charge defendant, was a nudum factum</p> <p>To this charge, defendant below excepted, and assigned error.</p> <p>Defendant farther excepted, and assigns as error, the failure of the Court, upon its own motion, and without request, to charge the Jury, that the contract sought to be inforced was void, being contrary to- public policy, and immoral in its tendency.</p>

<p>Indictment for burglary, in Monroe Superior Court. Tried before Judge Starke, September Term, 1853.</p> <p>At the March Term, 1853, of Monroe Superior Court, bills of indictment for burglary and robbery, were found against Gideon Copenhaven and others. Copenhaven, who severed, was placed on trial on the bill for burglary, first. He moved the Court for a continuance, on the ground of absent witnesses; the Court over-ruled the motion, and he was found guilty by the Jury. Erom this decision of the Court, a ívrit of error was taken to the Supreme Court, at Decatur, August Term, 1853. The Supreme Court reversed the judgment of the Court below, and ordered a new trial.</p> <p>To . the bill for robbery, Copenhaven filed the plea of “ autre fois convict ”, alleging that the two crimes for which lie was indicted, sprung out of the same transaction, and were, therefore, one and the same.</p> <p>On the trial, the Court over-ruled the plea and he was convicted. To this decision of the Court, a writ of error was taken to the Supreme Court at Decatur, at August Term, 1853'.' The Supreme Court reversed the judgment of the Court below, and sustained the plea of “ autre fois convict”.</p> <p>At the September Term, 1853, Oopenhaven was again put on. trial on the bill for burglary, when his counsel asked leave of the Court to withdraw the plea of not guilty, YYhich was granted. Whereupon counsel for defendant filed the plea of “ autre fois acquit ”, alleging that he had been acquitted on the bill for robbery, by the judgment of the Supreme Court, &c. To this plea, the Solicitor General demurred. The Court sustained the demurrer and dismissed the plea, and counsel for defendant excepted.</p>

Attachment and claim, in Houston Superior Court. Tried before Judge Bowers, October Term, 1858. Williarh J. Thomas sued out an attachment, returnable to Crawford Superior Court, against Jno. A. Lavender. The attachment was directed, “ to all and singular, the Sheriffs and Constables of this State, of said county”. A second original was issued, under tlic Statute, for the county of Houston, which was directed, “to all and singular, the Sheriffs and Constables of this State”.

Superior Court. Decision by Judge Powers, November Term, 1853. The errors assigned in this cause, arose upon a motion for the appointment of commissioners, to assign dower to Malinda A. Hoskins. Counsel proposed to prove the service of notice of the application for dower, by P. S. Humphries, one of the attorneys for the applicant.

<p>[1.] Where issue is joined upon the question, whether certain cotton receipts were deposited with a bank, by the drawer of a draft, as collateral security, and to enable the bank to dispose of the cotton, ¡and apply the proceeds to the payment of the draft, when due; -or whether the receipts were so deposited, as security only, for the acceptance of the draft by the .consignees of the cotton : Held, that it was error in the Court so to charge the Jury, as to lead their minds from the true issue, and to leave them impressed with the instrtiction, not properly qualified, that if the bank did require the cotton! receipts, it became responsible for the cotton”.</p>

Motion, in Eibb Superior Court. Decision by» Judge Powers, November Term, 1853. . ; • ,. The case of the State vs. Jno. D. Dacey being called, defendant announced himself “ready,” and the same was continued by the State. Defendant then moved to place a demand for trial on . the minutes. Some discussion arising upon the sufficiency of the. bond, the motion was, postponed for the present.

Motion, in Monroe Superior Court. Decision by Judge Starke, August Term, 1853. Upon a supplemental bill in Equity, in which Wm. G. Morgan, as administrator, was complainant, and Mary Morgan and others were respondents, a trial was had and verdict rendered for defendants. To the rulings of the Court upon this trial, a writ of error was sued out, and a new trial awarded by the Supreme Court.

Proceedings against tenant holding over, in Murray Superior Court. .Tried before Judge Jojin H. .Lumpkin, October Term, 1853. James Edmondson, as the administrator of Wm. II. White, sued out a warrant to dispossess one William White, who, he alleged was the tenant of his intestate, .and held-over after the expiration of the lease. The -defendant, White, denied the tenancy, and the issue was returned to the Superior Court.

<p>Forcible Entry and Detainer, and certiorari thereto, in Walker Superior Court. Tried before Judge John H. Lump-kin, December Term, 1853.</p> <p>This was a certiorari, sued out to the proceeding before a Justices’ Court, upon a warrant for forcible entry and detainer. The error complained of was, that'the Justices refused to dismiss the warrant,1 upon the ground, that the affidavit to obtain it, was sworn to before a Justice of the Peace of Oobh county, and not of the county where the land was located. The presiding Judge sustained .the certiorari, and ordered the proceedings in the Court below to be dismissed. This decision is assigned as error.</p>

<p>[1.] Before a notice, under tlie 57tb Common Law Rule,' can be made available, the party giving it, or Iris agent, should previously make oath, (or his attorney state in his place,) that the deponent, or attorney, lias reason, to believe that the paper required to bo produced, is material .to the issue; and that the saméis in the possession, power, or controlpf the person notified.</p> <p>[2.] Mortgage/i. fas., after they have been executed and returned to the office from which they issued, are not, in legal contemplation, in the ’ possession, power, or control of the plaintiff.</p> <p>[3.] When, in the progress of the trial, the cause, if ordered on, will suffer injustice from the honest mistake of the party or his counsel, against whom no laches is imputable-, relief will be afforded, by granting a continuance.</p>

. Case in Clark Superior Court. Tried before Judge Jackson, at February Term, 1854.

In Equity, in Clark Superior Court. Decision on demurrer, by Judge Jackson, February Term, 1854. The only question made by the demurrer in this cause, was the legality of appointments of trustees, by the Court of Chancery, upon petition of the cestui que trust, and the trustees, appointed by the will, creating the trust fund, refusing to act. The Court below held the appointments to be valid, and this decision is assigned as error.

<p>Assumpsit, in Jackson Superior Court. Decision by Judge Jackson, February Term, 1854.</p> <p>On the 25th December, 1847, H. S. Butler gave the fol-Joying guaranty:</p> <p>Mr. Charles Cooke,</p> <p>Sir—After my compliments to you, you will please to' let Nash Butler have a small stock of such clothing as he wants, and I will see it paid.</p> <p>(Signed,) H. S. BUTLER.</p> <p>On the 4th January, 1850, he executed the following :</p> <p>I, Henry -S. Buttler, hereby engage to become security, and do hereby become security and guarantee, for the full and just payment of all dues, debts, demands and contracts, made between E. N. Butler and Charles C. Cooke ; that the said E, N. Butler will faithfully pay, or cause to be paid, to said C. C. Cooke, the debt now due from said Butler to said Cooke; .and also, all further liabilities for goods purchased of said C. •C. Cooke by the said E. N. Buttler, whether in person, or by ■order of said Buttler; and this guaranty is to be considered •in full force and virtue against me, for the term of one year from this date. And also, it is understood the amount Mi’ll. S. Butler hereby guaranties for his brother, E. N. Butler, is as a balance of account, not to exceed $2500 at the termination of the year.</p> <p>(Signed,) I-I. S. BUTLER.</p> <p>E. N. Butler became insolvent, and H. S. Butler died, and suit was brought by Cooke, upon these guaranties. On the trial, he showed and proved an account current between himself and E. N. Butler, commencing the 8th January, 1848, with an item of $737, and ending in August, 1850, on which a balance was due of $2078 T2^. The larger portion of the account was created between 8th January, 1848, and the 4th January, 1850. There were various items of cash paid on the credit side of the account current.</p> <p>Upon the trial in the Court below, the presiding Judge decided—</p> <p>1st. That the guaranty of 4th January, 1850, was good as to prospective credit, but void under the Statute of Erauds, as to debts due at the time of its execution ; and that the liability of the guarantor, upon the first guaranty of 25th December, 1847, for a portion of the existing liability, was not a sufficient consideration appearing upon the face of the second guaranty, to sustain the same as to past liability.</p> <p>To this decision Cooke excepted.</p> <p>2d. That in the application of the payments made, (no appropriation having been made by either party,) the Court would apply the payments, first, to the oldest items in the account.</p> <p>To this decision, both parties excepted; counsel for Cooke insisting that they should be applied to those items for which he had no security, (the debtor having no interest therein); counsel for Hargroves, administrator, insisting that they should be applied to those items on which Butler was surety. '</p> <p>3d. The Court decided, that the liability of Butler, upon the guaranty ranked in the distribution of his estate, among “ bonds and other obligations”.</p> <p>To this decision, counsel for Hargroves excepted, insisting that the same ranked only as an “open account”.</p> <p>Upon these several exceptions, error has been assigned.</p>

<p>Appeal. Superior Court- of Gilmer county. Decision by Judge Irvin, December Term, 1853.</p> <p>James R. Findlay, as administrator with the will annexed, of Wm. Whitmire, deceased, applied to the Court of Ordinary of Gilmer county, for an order to sell the land and negroes of the ■estate. A caveat was entered to this order, hy two of the legatees. The Ordinary refused the order, and the administrator entered an appeal to the Superior Court.</p> <p>A motion was made to dismiss the appeal, on the ground that an appeal did not lie from such a decision.</p> <p>The Court granted the motion, and this decision is assigned as error.</p> <p>There being no appearance for the defendant in error, the case proceeded ex parte.</p>

Ejectment, in Cobb Superior Court. Tried before JudgeLItll, October Term, 1858. This was an action, on the demise of Sam’l Gittens and Thomas Byrne, against Amos Lowry, for a lot of land. On the trial, it appeared that the land was granted to Gittens; that, on the 28th May, 1838, a fi. fa. from a Justices’ Court, issued against Samuel Gideon. On 27th March, 1847, this fi. fa. was levied upon this lot of land, and Thomas Byrne became the purchaser, at Sheriff’s sale.

Ejectment, in Cobb Superior Court. Tried before Judge Irvin, March Term, 1854. In the progress of this cause, a Sheriff’s deed was offered! in evidence, and to support the same, a fi. fa. from a Justices’ Court, under which the land was sold, was offered in evidence, to which counsel for plaintiffs below objected— 1st. Because the judgment on which it issued, was not produced. 2d. Because it did not show, upon its face, that the Court issuing it had jurisdiction.

Misdemeanor, in Cass Superior Court. Decisions by Judge John H. Lumpkin, March Term, 1854. Henry Hately and Clement Turner were indicted jointly, and as principals, for furnishing spirituous liquor to a slave. Hately, alone, was arrested and placed upon his trial. The proof was, that Turner was the Clerk of Hately, and that Turner furnished the liquor to a slave, in the absence of Hately. The Court charged the Jury that upon this -evidence, Hately might be convicted.

Oasc, in Whitfield Superior Court. Decision by Judge Jno. II. Lumpkin, April Term, 1854. This was a suit by George Shields, against George Yonge, as Superintendant of tho Western & Atlantic Railroad, for the death of a minor son of the plaintiff, caused by the negligence of employees of the Western & A. R. R. One count in the declaration, alleged that tho son was upon the train as a passenger, by contract for safe-carrying, with the father.

Assumpsit, &c. in Gordon Superior Court. Decision by Judge John H. Lumpkin, September Term, 1854. This was an action by Jesse A. Bean, against Nancy Waters, upon a note. It appeared that the note was given while the maker was a feme covert '. She was subsequently declared a free dealer, by Act’ of the Legislature; and after that time, promised to pay the nóte. The question was submitted to the Court below, upon these facts, whether Bean was entitled to recover.

Motion, in Cass Superior Court. Decided by Judge John H. Lumpkin, March Term, 1854. This was a motion to distribute money in the Sheriff’s hands. An attachment, at the instance of Erwin, was levied upon the effects of John A. Williams, on 7th December, 1853. Another attachment, in favor of Beach, and one in favor of Farrar & Brothers, were levied the same day. On the 9th of December, 1853, one in favor of Nancy Frix, on a note for rent, was levied on the same effects.

Ejectment, in Cass Superior Court. Tried before Judge John II. Lumpkin, March Term, 1854. This was an action of ejectment, brought in the name of Doe ex dem. Noah Shadwick et al. vs. Roe and Mary McDonald, tenant in possession. The declaration contained' a count for mesne profits, in favor of John Doe against Richard Roe.

Assumpsit, &c., in Cass Superior Court. Tried before Judge Jno. II. Lumpkin, March Term, 1854. This was an action upon an account. The Statute of Limitations was pleaded, and a new promise relied upon. The proof was, that in 1849, the witness heard the defendants’ intestate acknowledge the justice of the account, and promised to pay it at that time, if the plain tiff would take a certain piece of land, at $1200.

iSci. fa. on bond, from Cobb Superior Court—consolidated! in Supreme Court. Decisions by Judge Hill. A motion ivas made to dismiss the writs of error, in these-causes: 1st. Because no original notice was filed or served, of the-signing and certifying of the bill of exceptions.

Motion, in Hall Superior Court. Decided by Judge Jackson, September Term, 1853. Ephraim S. Johnson, an attorney at law, brought suit in favor of Isaac Mackey, a non-resident plaintiff, against Allen Blake, in Hall Superior- Court. Tho defendant filed a plea of set-off, larger than the plaintiff’s claim, and recovered a judgment for the overplus, and issued a fi. fa. thereon.

Divorce, in Elbert Superior Court. Tried before Judge Gibson, September adjourned Term, 1853. Sarah Cason commenced her libel for divorce, against John Cason. Pending the suit, she applied for temporary alimony, which was granted by the Court. John Cason failed to comply with the order; and refusing to excuse himself therefor, was at-, tached by the Court, for a contempt, and the Sheriff ordered, to arrest and imprison him.

<p>Mandamus, &c. in Morgan Superior Court. Decision by Judge Hardeman, March Term, 1854</p> <p>Lester Markland applied to tho Inferior Court of Morgan county, for an order for a license to retail spirituous liquors in that county, having paid for such license, and being ready .to give the bond and security required. Tho Court refused to grant the license, on the ground that the applicant was an unfit person to be so licensed—having been twice convicted of selling spirituous liquor to slaves, contrary to law.</p> <p>On hearing this return to a mandamus nisi, Judge Hardeman refused to make the- mandamus absolute. This decision is* assigned as error.</p>

Tried before Judge Hardeman, March Term, 1854. John Darden, the paternal uncle, applied to the Ordinary of Morgan county, for letters of guardianship for the minor orphan children of Stephen J. Darden, deceased. Thomas Wyatt, the maternal grand-father of these children, caveated the application, on the ground that the jurisdiction for granting letters of guardianship, was in the Ordinary of Jasper county, and not in the Ordinary of Morgan county.

Indictment for trading with a slave, in Richmond Superior Court. Tried before Judge Holt, January Term, 1854. Held: that it was not such a case, and this decisión'is assigned as error.

<p>Debt, on Sheriff’s bond',, in Baker Superior Court. Tried’ before Judge Perkins, April Term, 1853.</p> <p>This was an action against tbe sureties upon a Sheriff’s bond, for the escape of a prisoner, in final execution for debt.</p> <p>Defendants pleaded, among other things, 1st. That the defendant in ea. sa. was insolvent, ■ at the time of the arrest and escape, and plaintiff was not damaged thereby. 2nd. That plaintiff should have.sued the Sheriff first, before proceeding against his sureties. 3d. That the Acts of 13 Edw. I, and 1st Rich’d II, in reference- to escapes, were not in force in.Georgia.</p> <p>The Court, on motion, struck out these pleas, as insufficient, in law, and this decision is assigned as error.</p> <p>The bond offered in evidence, did not bind the sureties for the acts of the deputies of the Sheriff. It had more than two sureties, and was attested by only two Justices of the Inferior Court. The counsel for defendant insisted that the same' was. not a Statutory bond; and as a common law bond, its execution and assignment must be proved. The Court admitted it in evidence, without proof, and this is assigned as-error.</p> <p>The plaintiff offered in evidence, the original ca~ sa. without offering a return, which it was insisted should be entered thereon. . Defendant objected, unless the whole went into- evidence.. And farther—that it differed from the judgment, in the amount of the costs, there being no sum mentioned in the judgment, as amount of costs.</p> <p>The Court over-ruled both the objections, and this is assigned as error.</p> <p>The evidence showed that the jailer, on several occasions,, took the prisoner to his house to take his meals, carrying him back to the jail, immediately thereafter. ' The final escape was made by means of a key, furnished to the prisoner from without, together with other aid, given by persons from without.</p> <p>The Court charged the Jury, that if they believed the jailer permitted the defendant in oa. sa. to depart from the jail, for' any purpose whatever, without the consent of the plaintiff in ca. sa. or the order of the Court, it was a voluntary escape, and defendants were liable; and that no recaptime by the jailer or Sheriff, would excuse or return them; and they must find for the plaintiffs the amount of the debt, unless it exceeded the bond. In that event, they must find the amount of the penalty on the bond. And farther, that the insufficiency-of the jail, .was no excuse for the Sheriff or his sureties.</p> <p>.To all of this charge,, defendants excepted, and have' assigned error thereon.'</p> <p>Other errors were assigned, on points not very material, which will appear in the opinion of the Court.</p>

<p>Certiorari, from Marion Superior Court. Decision by Judge Craweord, March Term, 1854.</p> <p>Objections were made to the revival of a judgment in a-Justices’ Court, in Marion county, on the grounds:</p> <p>1st. That not being an enrolled judgment, it could not be revived by scire facias.</p> <p>2d. That if it revived at all, it must be done by the Justice who issued it.</p> <p>3d. That before it can be done, the plaintiff must make affidavit that it has not been paid.</p> <p>4th. That while dormant, the judgment did not bear interest.</p> <p>The Justices’ Court over-ruled the objections. The Superior Court, on certiorari, affirmed the decision, and this is here assigned as error.</p>

In Equity, in Muscogee Superior Court. Decisionby Judge Crawford, February Term, 1854. Id 184-, James C. Watson died, leaving a considerable estate, both real and personal, including a claim against the Government of the United States, at that time unadjusted. He was largely indebted^ at the time of his death, by judgment and otherwise. Two of the executors named in his will, viz: John A. Watson and Benj. W. Walker, qualified as such, and became possessed of the large estate.

In Equity, in Marion Superior Court. Decision on demurrer, by Judge Crawford, February Term, 1854. The bill filed by Robert C. Black, in this case, alleged, that in 1849, E. G. Cabaniss purchased certain parcels of land, on behalf of himself, Wm.

In Equity, in Talbot Superior Court. Tried before Judge ’Crawford, March Term, 1854. This suit was by Lucius Rolfe against R. W. Rolfe, his guardian, for an account, as such.

<p>[1.] By tlie Common. Law, tlie word “ heirs" is necessary to be employed in a grant, in order to pass an inheritable foe: but, under the Act of 1821, words of restraint must be added, in order to carry a less estate.</p> <p>[2.] Whenever an estate is given, in Georgia, either' by deed or will, to a person, generally or indefinitely, with the unlimited power of disposition annexed, it invariably vests the absolute fee in the first taker; and neither a remainder, nor an executory devise, can be limited over, upon such au estate.</p> <p>[3.] Where the donor or testator, gives to the first taker an estate for life only, by certain and express words, and annexes to it a power of disposal, in that particular and special case, it has been held, that the donee or devisee for life, will not take the fee, notwithstanding the distinct gift of the power of disposition. Wherever a fee simple is given, by apt and appropriate words, to the first taker, with the addition of the absolute power of disposal, in such case, the fee will never be cut down or restricted to a life-estate, by implication.</p> <p>[4.] 11 When a principle is settled, no conjecture or private imagination, can shake a rule of law, which.must govern.” (Per Lord Mansfield, in Gowper, 355.) No intention, however manifest, can contravene the positive rules of law—technical though they' majrbe., :</p> <p>[5\] Supplemental bills may be sanctioned by the Judges of the Superior Courts, at Chambers and during vacation—reserving to the opposite parly the benefit of exception.</p> <p>[6.] On an ex parle application, to file, a supplemental bill, the Chancellor will examine the question, so far as to see that the privilege is not abused, for the purposes of vexation and delay to the defendant; and in a doubtful case, he may require notice to bo given beforehand, of the application, to the defendant.</p> <p>[7.] It is not competent for the Judge of the Superior Court, to compel a defendant to appear before him at Chambers, out of the county of the defendant’s residence, and where the cause is pending, to answer interrogatories, with a view to take the property in controversy, out of his hands, and place it in the possession of a receiver. ,</p> <p>[8.] The Chancery powers of the Superior Courts considered.</p> <p>[9.1 Rule of Equity Practice, adopted by the Judges, in Convention, in July, 1.796, at Louisville, prescribing the mode in which their Equity powers were to bo carried out.</p> <p>[10.] The records of the older counties in this State, establish the fact, that both before and subsequent to the Judiciary Act of 1799, the Superior Courts of Georgia wore in the constant habit of exercising all the Chance- ■' ry powers, which appertained to Courts of Equity, in England, so far as the same were suited to our circumstances and form of government. The same proof is furnished, by the Reports ofthe Messrs. Charltons, father and §on—the volume of decisions made by the Superior Courts of this State, and published by authority of the Legislature ; as well as by Dudley’s Reports, of the cases decided by the Judges, in Convention. The fact, as to the extent of the Equity powers exercised by our Courts, is verified by the experience and practice of the bar, throughout the State. .There are numerous Acts, in our Statute Book, which recognize the existence of Equity powers, in our Superior Courts, which have no where boon conferred expressly by the Legislature.</p> <p>[11.] Acts have been passed by the General Assembly, regulating the Equity Jurisdiction of the Superior Courts, in certain cases j but they were not designed to delegate any new power, but were either declaratory of the law as it already existed, or directory, as to the mode of its application.</p> <p>[12.] No Act has been passed, prohibiting the exercise of any Equity power, ' by the Superior Courts. All has been conceded or acquiesced in, in this respect, which has been claimed.</p>

Mandamus, in Talbot Superior Court. Decision by Judge Craweord, March Term, 1854. Abner M. House contracted with the Inferior Court of Talbot county, to build a bridge across Lazer Creek, upon the consideration of f> 100 paid; and at the completion- of the bridge, the payment of “ whatever the bridge should be reasonably worth, or the assessed value of the same, hy John, Gfodioin or Asa Bates.

Murder, in Harris Superior Court. Tried before Judge 'Craweord, March Term, 1854. Upon the trial of this cause, a Juror being placed on his ■voire dire, and pronounced competent, triors were demanded by the defendant. The Court charged the triors as follows: “ if the Juror has, from rumor, formed but not expressed, any opinion as to the guilt or innocence of the prisoner, you may find him competent”. This direction is assigned as error.

Rule, &c. in Randolph Superior Court. Decision by Judge Perkins, April Term, 1854. The recognizance of James Morris, as bail for J. A. Satterwhite, was forfeited, and judgment rendered in favor of the State, for the amount thereof. The Legislature of 1853-4, passed an Act discharging Morris from liability thereon, and ordering the proper officers to enter the same satisfied.

Decision by Judge Perkins, April Term, 1854. Counsel for Peterson and others moved, in the Court below, to discharge a rule nisi, for a new trial, granted at March Term, 1852, on the ground that no brief of the evidence was filed in the Clerk’s office, as required by the rule. The brief of evidence was agreed upon by the counsel, in writing, and this agreement entered on the minutes.

Assumpsit, &c. in Dougherty Superior Court. Decision by Judge Perkins, May Term, 1854. , 1 The first question made, is one of practice ;• and- that is, at what time a party is required to respond to a notice to produce papers, material to the cause. The Court below held,- that such response was not requisite, prior to the announcement by the party, notifying of his readiness for trial.: This is the first error assigned.

Ejectment, in Baker Superior Court. Tried before Judge Perkins, May Term, 1854. This was an action of ejectment, upon the demise of Jacob Tison, and also of the heirs of Joab Tison vs. Anthony Yawn, for a lot of land. Defendant’s counsel filed interrogatories for Jacob Tison, to prove: 1st. That there never was any such man; and, 2d. That if there ever was such a man, ho was dead.

<p>Claim, in Marion Superior Court. Tried before Judge CrawEgBB, March Term, 1854.</p> <p>A fi. fa. in favor of Lockhart & Threewits vs. James Norris, was levied on a lot of land; Tinley interposed a claim. The land belonged to Norris, the defendant in 1i. fa. subsequent to the judgment. Tinley was a bona fide purchaser from him, without notice, and had possession more than four, but less than seven years before the levy. Under the Act of January 22d, 1852, he was protected' ,* under the law prior to that Act, ho was not protected. The sole question was, whether that Act had a retroactive operation, so as to effect cases where the four years had expired. The Court below held that it did, and so charged the Jury. This decision is assigned as error.</p>

High misdemeanor, in Marion Superior Court. Tried before Judge Oraweord, March- Term, 1854. Consolidated and heard together in the Supreme Court. T. Sheffield and R. Baker, were indicted for aiding a prisoner, a negro slave, to escape from jail; Sheffield was placed upon his trial.

Decision by Judge -Crawford, April Term, 1854. Counsel for S. Dorrell moved to discharge the rule nisi for a new trial, granted in this cause, on the grounds— 1st. That there was no written approval of the brief of evidence by the Court, nor entry of such approval on the minutes. 2d. That there was no written entry, by the Clerk, of the filing of the brief of the evidence, in his office.

Motion to dismiss the writ of error. The ground stated in this motion was, that it appeared from the record, that both the plaintiffs in error, James C. Neves and William Neves, were dead, at the time of the filing and suing out of the writ of error, and that their legal representatives have never been made parties, ip the Court below.

<p>Ejectment, in Dougherty Superior Court. Decision by Judge Parkins, May Term, 1854.</p> <p>This action was brought by S. Faireloth and others vs. Jordan, for a lot of land. Jordan filed a petition to the Court, stating, that both plaintiff and defendant claimed theUand, by deeds, from one John Baugh; and that he expected to prove, by the depositions of Baugh, that plaintiff’s deed was a forgery—that Baugh lived in Newton county. He prayed that the original deed be delivered to the Clerk, to be attached to interrogatories—the Clerk keeping a copy. This petition was supported by the statement of counsel, in their place, that they expected to make this proof.</p> <p>The Court granted the order prayed for, and this decision is assigned as error.</p>

<p>Mandamus. Dougherty Superior Court. Decision by Judge Perkins, May Term, 1854.</p> <p>Phillips, as Sheriff, levied a fi. fa. on four negroes, as the property of one James S. Miller, who had them in possession. The defendants in error interposed a claim to the negroes, and tendered, at the same time, a forthcoming bond, and demanded the possession of the negroes. The Sheriff refused to transfer the possession to claimants; whereupon, an alternative mandamus was sued out, directed to the Sheriff. Two questions were made on its return—</p> <p>. 1st. As to the right of claimants to the possession of the negroes.</p> <p>2d. As to mandamus being the proper remedy.</p>

Ejectment, in Dougherty Superior Court. Tried before Judge Perkins, May Term, 1854. The only question in this cause, arose upon a deed offered in evidence, from the grantee to the defendant in the Court below. The date of the deed was prior to the issuing of the grant. The other party claimed under a younger deed from the same party. The Court below rejected the deed as evidence of title, and this decision is assigned as error.

Certiorari. ' Dougherty Superior Court, May Term, 1854. Decision by Judge Perkins. This was originally an action in a Justice’s Court, brought by the bcarer, the plaintiff in error, upon a promissory note, under seal, made by the defendants in error, and payable to “Nancy Kelly or bearer”. That Court dismissed the action, on the ground that such an instrument was not transferable by delivery.

<p>In Equity, in Dougherty Superior Court. Decision by Judge Perkins, May Term, 1854.</p> <p>Josiah McLendon, as the administrator of Hillory Hooks, filed his bill against Simon Hooks, alleging that his intestate and defendant owned, jointly, a lot of land. That Simon had exclusive possession of the lot of land, since 1845 ; and that he was indebted, for the use and occupation of the same, to the complainant, the sum of $600. That Simon had obtained judgment, at Law, against complainant, as administrator, for $250, with interest and costs, and was proceeding to collect the same, by levy and sale, of the undivided half of said lot of land. That Simon was “insolvent, as he was advised and believes—at least, the said Simon had declared that he would be so”; and had threatened, that no part of the amount complainant might recover of him, should ever be paid. The bill prayed an injunction, and that there should be an account and sett-off of the demand against Simon, and the judgment in his favor, as far as the same might go.</p> <p>On motion, the Court below dissolved this injunction, pnd this decision is assigned as error.</p>

Indictment for murder, in Lee Superior Court. Tried before Judge Perkins; Juno Term, 1854. Jim, (a' slave) stood indicted for the murder of a white man, Ms overseer. A motion was made for a continuance, on the ground that the excitement and prejudice in the public mind was so great that he eould not go safely to trial; this being the first term of the indictment, and the alleged offence being committed in January, 1854.

Ejectment, in Marion Superior Court.' .Tried.before Judge Crawford, February Term, 1854. The lessee of H. Lisle, brought suit against Asa Royall,. for a lot of land. On the trial, the plaintiff introduced a grant to H. Lisle, in 1887—proved possession in Asa Royall, from 1st January, 1849, and the value of the rent.

In Equity, in Baker Superior Court. Decision by Judge Perkins, May Term, 1854. This bill was filed by Henry A. Tarver, for a new trial, upon the following state of facts: Eliza McKay brought her action, to recover of Tarver a lot of'land and mesne profits, which whs pending on the appeal, in Baker Superior Court.

<p>[1.1 A judgment dissolving mx injunction, will not be disturbed, unless rendered in the flujrrsmt abuse of discretion.</p>

<p>Rule, to distribute money, in Dougherty Superior Court» Decision by Judge Perkins, June Term, 1854.</p> <p>The questions- in this case, arose upon a motion to distribute a fund in the hands of the Sheriff. Objection was made td a fi. fa. in favor of John Jaclcson:</p> <p>■ 1st. Because the judgment on which it was founded, was.in a suit against two joint-contractors, and judgment was confessed by one for both of them, and the party confessing judgment, Was not the one whose money was now being distributed by the Court.</p> <p>2d. Because there was on the fi. fa. a levy on the tract of land, which levy has been dismissed.</p> <p>3d. Because the money was brought into Court by another fi. fa., after the litigation of a claim interposed to the property levied on.</p> <p>4th. Because John Jackson has a mortgage on certain lands, to secure his debt. The mortgaged lots had been sold- under other fi. fas.—whether older or younger than the mortgage, did not appear.</p> <p>The Court determined that the fi. fa. in favor of Jackson should not take any part of the fund—upon which of the above stated grounds, dotes not appear from the bill of -exceptions'.</p> <p>This decision is assigned as erroi’.</p>

Motion. Dougherty Superior Court. Decision hy Judge Perkins, May Term, 1854. This was an appeal from the Ordinary, on a motion to dismiss Nancy Harrington, as administratrix of Robert Harrington, deceased. The facts were agreed on, as follows: “ The charge against her was, that she had not returned, as a part of the estate, a negro woman named Irena, in the possession of intestate at his death.

Indictment for murder, in Lee Superior Court. Tried before Judge Perkins, June Term, 1854. ' This was a motion to discharge the prisoner from farther attendance upon this indictment, upon the following state of facts: The prisoner was placed upon his trial, at November Term, 1853.

<p>Trover, &e. in Sumter Superior Court. Tried before Judge Perkins, August Term, 1858.</p> <p>The questions arose, in this cause, upon the trial of an action of trover, brought by Joel Butler against W. Livingston, for the recovery of three negroes. Tho defendant claimed them as a gift from the plaintiff, his father-in-law. On tho trial, ho proposed to prove the valuó of plaintiff’s property, which ■being allowed by the Court, is the first error assigned in the record.</p> <p>Tho following cross-intcrrogatories were propounded to L. L. Harrison, a witness for the plaintiff: “ Did you not threaten to kill, or use violence to W. Brady, if he went into the field to see the negroes—and did you not stand in front of Brady, with a stick in your hands, when he, as defendant’s agent, tried to get sight of tho grown negroes ? Did you not go, yourself, to Wilkinson county, for tho plaintiff, that he might make an effort to get the negroes ? Have you not said, in the presence of Frank Lewis, at your house, when Livingston came for the negroes, that these negroes were neither Butler’s nor Livingston’s, hut your own, or words to that effect ” ?</p> <p>Defendant afterwards proposed to prove by F. B. Lewis, that ho heard Harrison say, as Brady drove up to his house, in 1849, that the ' negroes wrnre his, and that neither Livingston nor Butler should have them; but, that he intended to keep them. Harrison objected to Brady and Livingston’s going into tbe field to see the negroes. Harrison said that Brady never should live to get there. Brady said he would go, and started; Harrison walked after him some fifty yards, and then sent young Butler to load up the gun. Brady still walked on, and after following him two hundred yards, Harrison stepped before Brady, and told him if he went farther, he would wear out his stick over him. When Brady got near the negroes, Harrison said ho would kill Brady if he attempted to move them. Witness heard Harrison claim the negroes as his, several times. This testimony was offered to impeach L. L. Harrison, and was objected to, because a sufficient foundation was not laid. The Court over-ruled the exception, and this is the next error assigned.</p> <p>Defendant also offered in evidence, to impeach Harrison,, his own depositions, taken by the plaintiff in this case, and ruled out by the Court on a former trial, at the instance of defendant, on the ground that one of the cross-interrogatories was not sufficiently answered. Plaintiff objected to their admission, which being over-ruled by the Court, is the next error assigned.</p> <p>Counsel for defendant requested the Court to charge the Jury, “that the admissions of the defendant, made to several witnesses, (if the Jury believed they were made with a full knowledge of all the facts,) that the property was not his, but Butler’s, are binding upon him”. The Court charged, that if these admissions were made with a full knowledge of all the facts, and his rights growing out of these facts, they were evidence against the defendant, but not conclusive; which charge and refusal to charge, are assigned as error.</p> <p>The Court charged the Jury, “ that if a witness was discredited in a material point, they were not bound to believe any of his testimony, unless corroborated by another witness or cir-cumstances, and then the Jury were authorized to receive his evidence, more from the facts and circumstances of corroboration, than from anything that he had sworn”. This charge, ■also, is assigned as error.</p> <p>A motion was made for a new trial, on several grounds; among others, that the verdict was contrary to the evidence, and contrary to the charge of the Court. The refusal to grant a now trial, is also assigned as error. There was conflicting evidence, as to the terms on which the negroes were placed in defendant’s - possession. The weight of testimony and number of witnesses, was against the verdiet.</p>

<p>[1.] Every release must be founded on some consideration; otherwise, fraud, will be presumed.</p> <p>[2.] Semble, that the seal does not, necessarily, import a consideration, when the release is relied upon, by way of plea in Chancery, but the consideration must be set out, and its fairness averred.</p> <p>[3.] At all events, when the instrument sets forth a consideration, the seal cannot import a consideration different therefrom.</p> <p>[4.] The delivery, by an executor to a legatee, of certain slaves, to which he was entitled under the testator’s will, cannot constitute a legal consideration for a release of all other demands, and especially of hire due for them by the executor.</p> <p>[5.] The doctrine has been recognized and sustained, in manymodern cases, that where there is a particular recital in a deed, and general words follow, the latter shall be qualified by the particular recital.</p>

Scire Facias, in Stewart Superior Court. Tried before .Judge Crawford, April Term, 1854. . This was a sci. fa. against bail, on the civil side of the Court. At the return term, the counsel for the bail moved to dismiss the proceeding, on the grounds— 1st. That the condition of the bond is not conformable to law, in this—that it does not bind the bail to pay the amount of plaintiff’s demand, on failure to produce the bodies of defendants.