Volume 16 — Georgia Reports

In Equity, in Bibb Superior Court. Decided by Judge Powers, November Term, 1858. In this case, the original bill having been answered, and afterwards, an amended bill filed but not answered, the cause was-proceeding before the Jury, when defendant moved to arrest its further progress, on the ground that the case was not ripe for trial; the amended bill not being answered and complainant having not taken any order to have the same taken pro con- ■ fesso.

<p>[1.] The reputation of witnesses among- their neighbors, for truth, is impeached. The testimony of witnesses, to the effect that they are acquainted with the character of the impeached witnesses for truth in their neighborhood, and that from this acquaintance thus derived, they would believe those witneses on their oath, although as they said, they had never heard that character spoken of, is then received. And the Court charges the Jury that they may weigh this testimony, in their estimate of the credibility of the impeached witnesses : Held, that this charge is not erroneous.</p> <p>p.] A motion to amend, made after “ a case has gone to the Jury,” ought, on payment of costs by the movant, to be allowed, unless the party opposing the motion “ will state on oath,” or his Attorney at Law will “ state in his place," that such party will he 11 taken by surprise,” aud will he “ less prepared for trial in consequence of the amendment” if allowed.</p>

Mandamus, in Upson Superior- Court. Decision by judge Starke, at Chambers, February 22d; 1854. The petition for mandamus set forth that Mrs. Maeharine Bunckley departed this life in Upson county, in the year 1850. That a paper purporting to be the will of Mrs. Bunckley had been.propounded for probate in the Court of Ordinary of said County, to which a caveat had been filed, and that the issue made thereon was now pending on the appeal in Upson Superior Court.

In Equity, in Meriwether Superior Court. Tried- before Judge Starke, February Term, 1854. ' This was a bill in Equity, filed by the defendant in error against the plaintiffs in error, as administrators on the estate of James Hopkins, deceased, for his ward’s distributive share of said estate.

Trover, in Newton Superior Court. Tried before Judge Starke, March Term, 1854. This was an action of trover brought by John P. Booth and his wife, Martha Booth, against Richmond Terrell, for the recovery of eight negro slaves, to-wit: Letty and seven children, named in the declaration. Pending the action John P. Booth died, and the same proceeded in the name of the wife. The defendant pleaded the general issu,e and the Statute of Limitations.

<p>Attachment, in Newton Superior Court. Motion for a new trial, in Newton Superior Court. Decided by Judge Starke, March Term, 1854.</p> <p>This was an attachment, issued at the. instance of the plaintiff sin error, against the defendant, on an open account, for board, washing and lodging of the defendant, for five years and-eleven months, at $100 per annum.</p> <p>The defendant appeared, and pleaded the general issue and set-off, alleging that the plaintiff was indebted to defendant in the sum of $800 for her own services, and for the service of two ■■negro boys, use of horse, oxen, stock, &c., &c.</p> <p>On the trial, the plaintiff proved by three witnesses, that the ‘defendant lived with plaintiff during the time alleged, and that her board, lodging, &c. was worth the amount charged.</p> <p>The defendant then proved by some three or four witnesses, that the services of the defendant, and the la.bor of the two negro boys, and the use of the cart and oxen, and horse and ■-stock, carried by the defendant with her to the plaintiff’s, were •worth as much, or more, than the board and lodging, &c. of the ■defendant. It appeared from the testimony, that plaintiff and ■defendant bought and used necessaries in common, during the -time she lived with him.</p> <p>The defendant also proved by John M. Benson “that plaintiff told him (witness) that defendant was to live with him as one of the family, and he never expected to charge her any thing.”</p> <p>The defendant also read in evidence the following letter, written after the commencement of the action.”</p> <p>“ Georgia, Newton County, July 29th, 1853. Dear Mother:</p> <p>I take the opportunity to write to you; we are all well. * * I want you to come back if you can forgive what has been done. If you will come back, I will stop the suit and let it go no fur"ther. If you will come and live as you did before, I will treat you as well as I am able. If you had rather leave one of the boys with Milton I am willing — if you had rather bring them hero and hire thorn out, I am willing. I do not want the boys work, without you had rather keep them at home — all I want is peace and friendship. I am truly sorry for what has past. I beg you to forgive me. * * * If you will not comply with none of these propositions, you must do as you please, and I will do as I can. * * *</p> <p>H. J. PARKER.”</p> <p>The Jury found a verdict for the plaintiff for ¡$453. Whereupon, Counsel for the defendant moved the Court for a new trial, upon the grounds—</p> <p>1st. Because the Jury found contrary to Law and the charge of the Court.</p> <p>2d. Because the Jury found contrary to evidence.</p> <p>3d. Because the verdict is contrary to and against the evidence, and without any evidence to support it.</p> <p>The Court sustained the motion, and awarded a new trial; and Counsel for plaintiffs excepted.</p>

In Equity, in Eayette Superior Court. Demurrer. Decided. by Judge Warner, March Term, 1854. Everett Noland drew lot of land No. 48, in the 13th district of originally Henry, now Fayette county. Noland died in 1823 or ’24, without heirs, distributees or creditors. Mason Gentry purchased said lot of land, in 1836, from Samuel Smith, 'taking his bond for titles and paying a part of the purchase-money — Smith being in possession at the time and claiming •the land as his own.

Debt, in Eayette Superior Court. Motion for a new trial. Decided by Judge Irwin, at Chambers, 9th March, 1854. This was an action of debt, brought by William W. Carlisle, against Mial M. Tidwell, as' administrator on the estate of ’ Josiah C. Berry, deceased, on the following note: $581t%V Twelve months after date, I promise to pay William WCarlisle, or bearer, Five Hundred and Eighty-one -^¶ dollars, to bear interest from the 25th day of December last, for value received.

Debt, in Bibb Superior Court. Tried before Judge Powers, November Term, 1853.

<p>£1.J Where there are two defendants to a bill, both of whom answer, and leave is subsequently granted to amend the bill: and one appears and demurs to-the amended bill, before the other has been served with a copy: Held, that in a writ of error to reverse the judgment upon demurrer, it is not necessary to join the defendant not served ; and that his rights, neither in the Court below, nor in this Court, are impaired by such omission.</p>

<p>[1.] The interposition of a Court of Equity to correct mistakes, both as to law and fact, by ordering a proper deed to be executed, according to the true intent of the parties, is a very ancient doctrine.</p> <p>£2.] Case of Lansdownevs. Lansdowne approved.</p> <p>£3.'] It has always been a familiar branch of Equity jurisdiction, to grant re- . lief to parties, against agreements made under a ■ misconception of their rights.</p> <p>£4.] In every case under this head of the law, the only inquiry is, does the instrument contain what the parties intended it should and understood that it did ? Is it their agreement ? If not, then it may be reformed by aliunde proof, so as to make it the evidence of what was the true bargain between the parties. And it is wholly immaterial from what cause the defective execution of the intent of the parties originated.</p> <p>£S.] Questions on demurrer, amendments to pleadings, &e. are constantly brought up for review before this Court, which have not been distinctly presented to and actually passed upon bjr the Superior Court. This is a growing evil, and one which ought to be corrected.</p> <p>£G.] A Court of Equity will not aid one volunteer against another: neither will it enforce a voluntary contract.</p> <p>£7.] If a voluntary contract, however, be actually executed, then a Court of Equity will enforce all the rights growing out of the contract, against any body.</p> <p>£8.] If the most unequivocal testimony is required, before Courts of Equity will grant relief against written contracts, the antiquity of the transaction, as well as the fact that the donor, himself, was the draftsman of the instrument, increases the difficulty as to the satisfactoriness and sufficiency of the proof.</p>

In Equity, in Coweta Superior Court. Demurrer. Decided by Judge Warner, March Term, 1854. This hill was filed by Sargent, against Robert and John Caldwell, and Winthrop B. Williams, as partners, and Adam B. Dulin.

In Equity, in. Coweta Superior Court. Tried before Judge Warner, March Term, 1854.

Claim, in Heard Superior Court. Tried before Judge Warner, May Term, 1854. In April, 1845, Elizabeth Strong filed her libel for a divorce, “ a mensa it thoro”, against her husband, Creed T. Strong, in Heard Superior Court, alleging, as the ground therefore, cruelty towards plaintiff, on the part of the said Strong. No schedule of property was filed with t-ho-declaration.

<p>[1.] A'bastardy bond is intended for tbe protection of a county, as a county; and there is no breach of it until the child has become chargeable to the county.</p> <p>[2.] By our Poor Law system, the Justices of the Inferior Court have the right to inquire into the circumstances of the poor, to elect whom they will treat as a pauper, and who shall become chargeable to the county; and until it has done so, by some act or order, no person can properly be said to be thus chargeable.</p> <p>[3.] The proper evidence that a bastard child has become chargeable to the County, is to bo found in the payment, by the1 Inferior Court, of expenses, after refu'-al or failure of the putative father to pay the same, on aecount'of the lying in of the mother, or the maintenance of the child; or the granting of rn order for suoli payment.</p>

Decision on demurrer, in Upson Superior Court, by Judge Starke, May Term, 1854.

Claim, in Spalding Superior Court. Tried before Judge Starke, May Term, 1854. This was a case, in which certain fi. fas. in favor of Boston & Gunby, against Francis D. Cummins, had been levied on certain negro property, as the property of Cummins; to which a claim was interposed by said Cummins, as trustee for his wife, Yalinda Cummins. The plaintiffs introduced their fi. fas., proved the levies, and that the property was in possession of defendant.

Trover, in Coweta Superior Court. Tried before Judge ■Starke, March Term, 1854. This was an action of Trover for negroes, and plea of the .■Statute of Limitations. When the plaintiff had made out his case, the defendant introduced proof that she had denied plaintiff’s right, and asserted title in herself in 1848, and had given notice thereof to .plaintiff at that time. The action was commenced in 1849.

In Equity, in Houston Superior Court. Decided by Judge Hardeman, April Term, 1854. Tbe facts of this case, are as follows: In 1834, Mrs. Eebecca Bostwiek died testate, leaving a large estate. Her will contained sundry specific legacies, and the remainder was bequeathed to certain residuary legatees, of whom Mary Adeline Beall, who afterwards married Blake, the defendant in error, was one. Nathan H. Beall was her executor.

In Equity, from Bibb Superior Court. Decided by Judge Powers, May Term, 1854. This tras a bill filed by certain creditors of William J. Stephens, setting forth that they had sold to said Stephens, merchandise to the amount of Six Thousand Dollars; that they had obtained judgments on their claims, and ea. sas. had been issued against Stephens, and be had been discharged under the Insolvent Laws.

Ejectment, in Bibb Superior Court. Tried before Judge Powers, May Term, 1854. This action was brought by the defendants in error, against the plaintiff in error, to recover a lot of land in the County of Bibb.

<p>[1.] The Act of December 2Tth, 1845, gives to an administrator, de bonis non, cwm testamento'annexo, obtaining his letters previous to that Act, the right to call an administrator de bonis non, of the deceased executor on the same estate, to an account, as to property sold by the'deceased-executor, and converted into cash and notes ; and -such Act, operating as it does, only on the remedy, though retrospective, is not unconstitutional.</p> <p>[2.] The Act cannot be said to divest the legatees and creditors, of their right to call the executor, or his representative, to an account, as it gives to the administrator de bonis non, §c., a right coincident with and not hostile to their interests, and intended to be exercised for their benefit and advantage.</p>

<p>[1.] A declares against B, and says that it was agreed between them two, that he, A, should serve Basan overseer, for thirteen months, for §150: but does not say that the agreement was in writing. A’s evidence does not show whether the contract was in writing or not. B moves for a non-suit, on the ground that the contract is within the Statute of Frauds: Held, that this motion was well over-ruled.</p> <p>[2.] A nonsuit ought to be granted, if essential allegations in the declaration are not proved.</p> <p>[3.] A now trial ought to be granted, if the verdict is contrary to the evidence.</p>

In Equity, in Bibb Superior Court.- Decided by Judge Bowers, January Term, 1854. '•This was a bill filed by Brown and Ditnick, merchants in N. York, against Green, Tracy & Co. of Macon, setting forth, in. substance, the following facts, viz: that at November Termj ■1852, complainants obtained judgment against Samuel J. Ray, ;for §3078 86, with §661 62 interest,- up to the 14th November, 1852, upon which execution issued. 'That the said Ray died on the 11th January, 1:853,…

Certiorari, in Bibb Superior Court. Decided by Judge Powers, May Term, 1854. BILL OF EXCEPTIONS.

Ejeetment, in Macon Superior Court. Tried before Judge Powers, March Term, 1854. This was an action of ejectment (in Jones’ form) brought by the plaintiffs in error, for the recovery of lot of land, number 81, in the 8th district of originally Houston, now Macon County. On the trial, plaintiffs read in evidence a plat and grant from the State to John W. Harper, for the lot of land, dated the 6th day of November, 1829.

<p>[i.] Process not issued in compliance, substantially, -with tbe requirements of the Judicial'}’ Act of 1199, or the Amending Act of 1840, concerning waiver of process, is null and void. Such defect vitiates the whole proceeding, and is not a mere irregularity.</p> <p>.'ÍU'] Where the defendants to an action of ejectment, at or before the time- . when the same was returnable, went before the Clerk, to whom the same-was returnable, and agreed to acknowledge service, and waive process, and that officer accidentally neglected to insert such waiver in the acknowledgment, indorsed by Mm upon the petition, and which was signed by the parties, and did not attach process thereto; and where, after verdict and writ of possession issued, an affidavit of illegality was made, on the ground of such want of process, or of waiver, and the same was returned to the Superior Court, at which a motion was made to set aside said writ of possession, because that process had not been attached to the petition, or waived: Held, that upon proof made to the satisfaction of the Court, that waiver of process had been accidentally omitted by the Cleric, from the acknowledgment of service, which he endorsed upon the petition, and which was signed by the defendants, that this omission might, under the direction of the Court, be supplied by amendment, nunc pro tunc.</p> <p>,[3.] Where a motion was made by the plaintiff in fi. fa. to continue such a case, for the purpose of procuring the testimony of one of the defendants making such waiver: Held, that it was error in the Court to refuse such continuance. '</p>

Indictment for murder, in Bibb Superior Court. Tried before Judge Powers, November Term, 1853. The defendant, John, was indicted for the murder of Mart Swinney. Eor the State, Eardy Swinney, the father of deceased, testified to the facts of the murder.

Case, in Bibb Superior Court. Tried before Judge Powers, May Term, 1854. This was an action brought by Gay against Dacy, for harboring a slave named Joe, the property of plaintiff, and for the value of his services during the time he was so harbored.

<p>£1.] Where suit is brought on an open account for board, and the testimony establishes that a certain portion of it is due, but leaves it uncertain as to the remainder, the Jury are hound to find a verdict at least for the amount proven.</p>

In Equity, in Macon Superior Court. Decided by Judge Powers, May Term, 1854. The facts of this case are as follows: In 1845, Joseph Edwards of Macon County died, leaving a will in his own handwriting, but not signed or attested, which was admitted to probate, as to the personalty, by the Court of Ordinary. His widow, Mahala Edwards, was the executrix named in the will, and qualified as such.

Debt, in Meriwether Superior Court. Tried before Judge' Starke, February Term, 1854. -This was an action brought by Richard A. Lane, against Henry Harris. The declaration set out that Harris was a stockholder in the “ Planter’s & Mechanic’s Rank of Columbus”, to the amount of one hundred shares of stock, rated at one hundred dollars per share.

Debt, in Bibb Superior Court. Tried before Judge Powers, November Term, 1854. This was an action brought to January Term, 1848, by Robert B. Smiley, against Briggs H. Moultrie, Charles Campbell, William B. Johnston and Thaddeus G. Holt.

<p>[1.] By will, 0 appointed S to act as guardian of the property of his children-at the same time, appointing others to act as guardians of their persons. After C’s death, his children inherited property from an uncle. S, as guardian, under the will, sued the uncle’s administrator for this property, without making it appear that he had given bond and security, for the proper management of the property: Held, that S had no right to recover the property from the administrator.</p>

<p>Claim, in Crawford Superior Court. Tried before Judge Powers, March Term, 1854.</p> <p>This was a claim interposed by Rboda Morris to certain ne~ groes, levied on as the property of Richard Morris, her former husband, by a fi. fa. in favor of James W. Marshall vs. said Morris, transferred to Matthew A. Marshall, the plaintiff.</p> <p>On the trial, the plaintiff introduced the fi. fa. transferred as aforesaid; and proved the negroes to have been, since the rendition of the judgment, in the possession of Richard Morris.</p> <p>The claimant then offered a copy, from the records, of a deed of marriage settlement, made by Richard and Rhoda Morris, in contemplation of marriage; and for the purpose of laying the foundation for such evidence, she introduced, as a witness, Samuel Hall, Esq., who testified, that in 1843 or 1844, a marriage settlement between Richard and Rhoda Morris was in his possession; placed there for the purpose of defending the title of claimant to the same property, against other plaintiffs in fi. fa.; that the paper, while in his possession, was proven in Court by the witnesses to it, to be the original; that after diligent search, he could not find it, and that the paper had been destroyed or lost.</p> <p>To the introduction of this copy the plaintiff objected, on the following grounds:</p> <p>1st. Because, in January, 1838, (at which time the deed was recorded,) there was no Statute authorizing the record of such papers.</p> <p>2d. That the witness, Hall, was not a subscribing witness to the instrument; and that his testimony did not prove the existence of the original of the copy, now offered; nor does he account for its non-production, if it did exist.</p> <p>3d. That the instrument offered, created no estate in the claimant.</p> <p>These objections were over-ruled by the Court, and the copy was admitted. To which decision plaintiff excepted.</p> <p>The instrument thus given in evidence, was a deed dated Dec. 20th, 1837, between Richard Morris, of the first part, Rhoda Jenkins of the second part, and Matthew A. Marshall (the plaintiff) of the third part, setting forth, that the two first named parties contemplated marriage; that Morris had twelve certain named negroes in his own right, and that Rhoda Jenkins had four named negroes in her own right; and that “ in order to secure the said named negroes to the use of the said Rhoda, so that those owned by the said Rhoda, shall not, by reason of the said contemplated marriage, vest in and become the property of the said Richard Morris; and also, that the said described negroes, the property of the said Richard Morris, may be vested in the said party of the third part, for the use hereinafter mentioned”. The deed went on, in consideration of the’ marriage, to vest in the said Marshall the whole sixteen negroes, “in trust for said party of the second part, and her heirs forever”; and it was likewise agreed between the parties, “that the said party, of the first part, shall have the use and benefit of the said sixteen slaves, without account, for and during his natural life”.</p> <p>F. H. Murdock then testified for claimant, that he was a subscribing witness to a marriage settlement, executed by Richard and Rhoda Morris, and Matthew A. Marshall, before the marriage of the first named parties, on the same day that all the parties signed it, but he did not read it, nor does he know whether the copy just read, was a copy of it or not.</p> <p>Claimant then offered in evidence a declaration in a suit of Matthew A. Marshall vs. Richard Morris, bn which was a judgment of non-suit; and also the declaration subsequently filed of' James W. Marshall vs. said Morris; and the judgment thereon being the same on which the fi. fa. now levied was issued; from which declarations it appeared that the former suit was on a note of the same tenor as the latter.</p> <p>This testimony was objected to as irrelevant, which objection the Court over-ruled and plaintiff excepted.</p> <p>The plaintiff proved in rebuttal, by Thomas Andrews, that the negroes, conveyed in the marriage settlement, were the whole estate of Morris.</p> <p>It was proven that the negroes levied on were the same con- ■ veyed in the marriage settlement by Morris, and that the debt on which the fi. fa. was founded, was in existence at the time of the execution of said settlement, being a note held by Matthew A. Marshall.</p> <p>The testimony being concluded, the plaintiff’s Counsel requested the Court to charge the Jury, that if the marriage settlement was made subsequent to the giving the note to Marshall,, and if it conveyed all the property of Morris, leaving no means ■ in his hands of paying the note, that a presumption of fraud was raised, which if not rebutted, would make the settlement void as to Marshall.</p> <p>That when there are several parties to a conveyance, it may be fraudulent as to one andnot as to another: andthatbefore they-can consider Marshall as implicated in the fraud, it must appear that he was the holder of the note at the time he signed' the settlement; and furthermore, that he knew, at the time, that -the settlement covered the whole of Morris’s, property; and also, that he signed the settlement with a knowledge of its legal consequences, and not in ignorance of them.</p> <p>The Court charged the Jury, that marriage is a valuable consideration, and sufficient to support a deed; and that if Mrs. Morris was guilty of no fraud, and entered into the contract without notice of plaintiff’s debt, she will be protected in The property; and that if Marshall was the owner of the note, at the time he signed the settlement, it was his duty to give notice of it to Mrs. Morris; and having failed to do so, he is precluded from setting up any claim against- the property.</p> <p>The Jury found the property not subject, and plaintiff in jifa. excepts to the several rulings and charges of the Court as; stated. • -</p>

Debt, in Houston Superior Court. Tried before Judge Powers, April Term, 1854. This was an action of debt, brought by Thomas Halloway, for the use of David Halliburton, against Ichabod H. Albert-son and Stephen Brown, on the following note: “ On or before the first day of January next, we or either of us promise to pay, or cause to be paid, unto James Halloway, the sum of Eleven Hundred and Fifty Dollars, for value received.

Assumpsit, in Troup Superior Court. Tried before Judge Warner, May Term, 1854. This action was brought by Gordon against Mosely, to recover the value of a negro sold by defendant to plaintiff, with warranty of soundness. The following is the bill of exceptions: Be it remembered, that the above cause was called in its order for trial, on a day in said term when both parties announced ready.

<p>.[1.] The rule is stern and inflexible, that a party cannot ask for relief irt Equity, on the ground that he has failed or omitted to make a legal defence at Law, even whore the judgment at Law is manifestly wrong, unless he was prevented from doing so by fraud or accident, unmixed with any fraud or negligence in himself or his agents.</p> <p>£S.] Where tlie complainant has been sued at Law, and has a legal defence,, and only needs the aid of Equity to make it available, by getting discovery-to establish his defence, he must go into Equity for discovery, before the trial at Law.</p> <p>£3.] That matters which have received.a judicial determination, cannot be called again into controversy, applies, with full force,-not only in the same' forum, but also as between Courts of Law and Equity.</p> <p>£4.] When the jurisdiction of a Court of Law has once attached to á canse, its decision is final, as to all matters within its cognizance; and operates as a bar to their subsequent litigation, in the same or any other tribunal.</p> <p>£5.] No degree of wrong or injustice, in the determination of a case at Law, will entitle the injured party to resort to Equity, unless there is some spe-1 cial ground for its interposition.</p> <p>£6.] But when a cause involves matter exclusively within the jurisdiction of Equity, its final decision at Law, will not preclude a re-examination in Chancery.</p> <p>£í.] The existence of an equitable defence, which could not have been made available as a legA defence, is a sufficient ground for obtaining an injunction to restrain a Common Law proceeding, before or after judgment.-</p> <p>£8.] Equity will interfere by injunction, either before or after judgjnent, whenever the cause is shown to involve matter purely of equitable cognizance, and essential to its proper determination.</p> <p>£9.] The general principle, with regard to injunctions, after judgment at Law, is this : that any fact which proves it to be against conscience to execute such judgment, and of which the party could not have availed himself in a Court of Law, will authorize a Court of Equity to interfere, by injunction, to restrain the adverse party-from.availing himself of such judgment. A Court of E quity will interfere, at any stage of the suit at Law, upon a proper case being presented. An injunction is 'sometimes granted to stay trial; sometimes, after verdict, to stay judgment; sometimes, after judgment, to stay' execution; sometimes, after execution, to stay the money in the hands of the Sheriff, if it be a case of a'fieri facias; or, to stay. the delivery of possession, if it he a writ of possession.</p>

<p>pi.] Where, pending a proceeding in Chancery for the removal of a testamentary trustee, application is made for the appointment of a receiver, a strong case must be made by the complainant before the Court will interfere.</p> <p>[2.] It is not enough to allege that the habits of the trustee are bad, and that his conduct toward his cestui que trust is capricious. It must appear that there is good reason to fear that the trust property will not be forthcoming, to answer the decree in the premises, at the end of the litigation.</p>

. • Case in Bibb Superior Court. Tried before Judge Starke, May Term, 1854. This was an action on the case, brought by the defendant in error, against the plaintiff, for the recovery of the value of a negro slave named Tom.

In Equity, in Henry Superior Court. Tried before Judge Starke, October Term, 1853. This bill was filed by William E. Crew, against William H. White and John Neal, for discovery, relief and injunction.

<p>Covenant, in Troup Superior Court. Tried before Judge-Warner, May Term, 1854.</p> <p>This was an action of covenant, for a breach of warranty, in the sale of three negroes — Becky and her two children, Robert and Ellen — brought by Philpot, against William Drum-right, George Nixon and John A. Gough. Drumright, alone, was served, who filed the plea of “non est factum” to the bill of sale, the foundation of the action.</p> <p>On the trial, plaintiff offered in evidence the testimony of John F. Moreland and David A. Philpot, taken by interrogatories. Moreland testified, that “he was a physician — called in May, 1850, by plaintiff, to examine Becky and her two children — thinks Becky, from appearances, had been diseased several years with scrofula — can’t be cured — does not know whether the children were unsound when he examined them— had unusual glandular swellings about their throats and neeks—would not like to risk the development of scrofula, as they progress towards mature age”.</p> <p>Philpot testified, “ plaintiff purchased the negroes of J. A.. Gough and Daniel Ea-rp, in Heard County, on the 13th May,, 1850. The bill of sale attached -to the interrogatories, was the one executed-by J. A. Gough to the plaintiff, for the negroes, Becky and her two children, and another woman and her child; the purchase-money for the whole lot ($1250) was all paid but fifty dollars, for which.plaintiff gave his due bill; plaintiff afterwards tendered the negroes back to defendant, and defendant, Drumright, would not receive them, but made some propositions to exchange other,negroes for them; this was before defendant was arrested with a bail writ. After that, witness heard defendant say that he had the money and plaintiff had the negroes, and he would have to feed them; and that he (the defendant) could make enough on the money to pay expenses”.</p> <p>To the introduction of this testimony, defendant objected. The Court over-ruled the objection, and defendant excepted.</p> <p>Wm. A. Cock testified by interrogatories, as follows: “inherited Becky from his father, and owned her for twenty-four years; when he sold her and her children, Ellen and Robert, to Wm. Drumright, who hé understood, from both Wm. Drum-right and George Nixon, bought for- Drumright and Nixon as partners — received $300 for the children, with the understanding that Drumright was to take Becky for .nothing — she being diseased with scrofula; the;, children were sound and healthy, at that time.</p> <p>Plaintiff then read in evidence the following admission of defendant, made in consequence of Alphonzo Hemphill, a witness subpoened by plaintiff, being absent, and by whom plaintiff alleged he could prove the facts admitted, to-wit: “ the tender of the negroes and the bill of sale back to defendant, by plaintiff, who alleged unsoundness of (the negroes; that Drumright replied that they would not take them back; that he had received the money for them, and could make the expenses out of it, by the time plaintiff could law it out”.</p> <p>Plaintiff then offered to prove by David A. Philpot, that at the time plaintiff purchased the negroes from Gough, that Gough represented himself as.one of the firm, in negro trading* of Drumright, Nixon and Gough. To which defendant objected ; the Court over-ruled the objection and Counsel for defendant excepted.</p> <p>Plaintiff then read in evidence the bill of sale: “ warranting the title of said negroes; and that they were sound and healthy, in both body and mind,” which was signed—</p> <p>WM. DRUMRIGHT & GEORGE NIXON.</p> <p>J. A. GOUGH.</p> <p>Defendant objected. The Court over-ruled the objection, and defendant excepted.</p> <p>Plaintiff then proved, “ that had Becky and her two children been sound, at the time of sale, they would have been worth $1000; that in their present proven condition, they were worth $250, or half price”.</p> <p>Defendant introduced no evidence, but requested the Court to charge the Jury, “ that an authority, by deed, is necessary, in order to bind the principal under seal; also that a partner, though the articles of partnership were under seal, is not empowered to bind his copartners by deed, without an authority of' as high a nature”. Also. “ that if the principal acknowledged that he gave the agent authority to execute a deed, yet, the acknowledgment, itself, is not sufficient to prove it, without the-production of an authority under seal”.</p> <p>All which requests the Court refused to charge, on the-ground, “that a sale and warranty of the soundness of slaves, need not be evidenced in writing”.</p> <p>To which decisions and rulings of the Court, defendant excepted; and on these several exceptions, error is assigned.</p>

<p>In Equity, from Crawford Superior Court. Decided by Judge Powers, June Term, 1854.</p> <p>Motion to dissolve injunction. Francis Danilly filed his bill, setting forth, that in 1852, he had purchased of Hilliard Crutchfield a certain tract of land, containing more than 500 acres, for which he gave notes amounting to $3600.</p> <p>That Crutchfield, at the time of sale, represented to him that he had good title to the land, and that he purchased, in consequence of such representations.</p> <p>That in point of fact, as to one hundred and seventy acres of the land, and including the dwelling and buildings, Crutch-field had no title: but that it had been conveyed by deed to his wife and children, by William Smith, her father. That Crutchfield, at the time of the sale, knew of this state of the title, and concealed it from complainant. That Mrs. Crutch-field was now dead, leaving minor children. That complainant was now sued by Crutchfield on the notes, given for the purchase-money, and the bill sought to enjoin those suits and to. rescind the bargain. An amendment to the bill, stated that Crutchfield had consented to the making of the deed from Smith to his wife and children, at the time it was made.</p> <p>The answer of defendant admitted most of the facts alleged in the bill, but stated that at the time of the sale, he had told complainant, that as to the 170 acres in question, he had no written title; that his representation was, that Smith had made him a verbal gift of that part of the land, and, that he had held it adversely for more than seyén years; so that the-Statute of Limitations would protect him. He admitted that he knew of the deed from Smith to his wife and children, but denied that he had consented to its execution: but stated, that. when applied to by the person who drew it up, to know whether he would feel hurt with him if he drew it, he had replied that he would not feel hurt, but that Smith had no right to convey the-land. .</p> <p>The motion to dissolve the injunction was made on two-grounds :</p> <p>1st. That' there was no equity in the bill, and that complainant had an adequate remedy at Common Law;</p> <p>2d. That' if there was equity in the bill,,it was sworn off by the answer.</p> <p>The motion was refused by the Court, and defendant excepted.</p>

Attachment, in Spalding Superior Court. Decided by Judge Stark, May Term, 1854. John B. Reid had sued out an attachment against John J. Haley and David S. Mills; which attachment had been levied by the Sheriff,-on stock of defendant in the Griffin and. West Point Plank-road Company; the levy being made by entry to that effect, on the attachment by the Sheriff.

<p>[I.] A demurrer -will lie to a bill in Equity, when there is an adequate remedy at Law.</p>

In Equity, in Houston Superior Court. Exceptions to answer. Decision by Judge Hardeman, May Term, 1854. Hooker commenced suit against the administrators of William J. Coalson and Joseph Tooke, on a note for $4,500, dated the year 1845. The defendants in those cases filed- a bill enjoining Hooker from prosecuting the same.

In Equity, in Troup Superior Court. Decided by Judge Warner, May Term, 1854.

Assumpsit in Bibb Superior Court. Tried before Judge Powers, November Term* 1854. This was an action of assumpsit, brought by Johnson against Collins, on the following bill of exchange: “ $5000. Columbus, December 15th, 1841. Ninety days after sight, pay to the order of John Peabody*. Esqr. Cash. Five Thousand Dollars, value received — which., place to account of D. McDousald. To W. M. Clark, New York. Pay Robert Collins, or order, John Peabody, Cash..

Misdemeanor, in Bibb Superior Court. Tried before Judge 'Powers. At the May Term, 1853, of Bibb Superior Court, the Grand •Jury returned a special presentment against Fardy Sweeney, for a misdemeanor.

<p>[1.] The rule, that the vendor’s lien shall not he set up, to the exclusion of a bona fide creditor, does not apply to prevent the vendor of a tract of land to J, from insisting on his lien upon the same, as against the rights of W, who becomes security for J rrpori a promissory note, before the conveyance ■ -of the land from the vendor to J, and who receives from J a deposit of the title deeds, for his protection.</p> <p>[12.] Where, at the time that W thus became security for J, there had been an understanding between them, that J was to give W a mortgage upon a negro slave, for his protection, and J failed so to do : but subsequently, and after purchase of certain lands from another person, by an independent and distinct agreement between W and J, the latter deposited the title deeds to these lands with W, as an equitable mortgage, to protect him against the .payment of the note, no other advance or consideration having been paid by W: Held, that this did not place W in the attitude of a purchaser for ■valuable consideration, without notice, and give to him a lien on the land, . superior to that of the vendor.</p>

<p>[1.] An insolvent debtor is not entitled to have as many as two watches exempt from sale. It is doubtful whether he is entitled to have even one.</p> <p>[2.J Nor is he entitled to have exempt his wife’s “implements or tools” of 11 trade or calling”.</p>

<p>[1.] An equitable claim against tbe legatees of an estate, cannot be pleaded in defence of an action by tbe administrator de bonis non, mm testamento, §c. for a debt due to the estate. But upon a bill filed by the creditor against the legatees and the administrator, setting forth that the legatees reside in various States — that to sue them separately would entail such an amount of expense, &c. as would amount to the whole of his claim ; that the debt was contracted with the estate upon the faith of this equitable claim; and that these legatees are the only parties in interest, there being no debts of the estate, a Court of Chancery will decree payment to the creditor, out of the debt due the estate.</p> <p>£2.] Such a bill should not be dismissed because the wives of some of the legatees, daughters of the testator, and who might be entitled to an equitable settlement out of the legacy, were not made parties to the bill; and it was the duty of the Chancellor, in such case, to direct an amendment rather than turn the parties out of Court.</p>

Trover, in Floyd Superior Court. Tried before Judge John H. Lumpkin, March Term, 1853. Motion for new trial. Decided at May Term, 1854. This was an action of Trover, brought by William Garrett,, as trustee for Mrs. Arianna Washington, against Lawrence Brock, for sundry slaves.

In Equity, in Gwinnett Superior Court. Decision on demurrer, by Judge Jackson, March Term, 1854. Thomas J. Waters departed this life testate. The following is a copy of his will, excepting the 1st and 2d items. “ Thirdly.

Ejectment, in' Whitfield Superior Court. Tried before Judge John H. Lumpkin, April Term, 1854. The plaintiff in this cause introduced a deed, dated August 5th, 1839, from Eli Nicks to himself, for the land in dispute ; and a-grant from the State to Elias Nicks, of Walden’s district, Pulaski County, for the same lot, dated May the 10th, 1841, recorded 23d January, 1840. The land was drawn in the Cherokee Land Lottery.

Ejectment in Union Superior Court. Tried before Judge Irwin, April Term, 1854. Held: showing title out of the lessors of the plaintiff; and that he had promised to-attend the Court with the papers, without Providential hindrance; that he did not attend the Court regularly but frequently ; and the cause of his absence was not known.

<p>II.] A bill cannot bo sustained,'which seeks to charge the defendant, as administrator — át the same time, denying that he is such; leave will be grant- . ed-to the complainants, however, to amend, by striking out that portion'of the bill which controverts the validity of the trustee’s appointment.</p>

<p>[1.] No particular form of words is necessary to create a separate estate in a married woman. It is enough, if there be a clear intention to exclude the marital rights of the husband. Subject to this rule, the words “ I give to my daughter V W two negroes, to-wit: Sally and Dicey, to remain in her possession, and for her special use and benefit during her natural life, and at her death, to go to her children forever, and to no other use whatever,” create a separate estate in V W ; especially -when their meaning is aided by other features of the will.</p> <p>[2.] Neither is any particular form of words necessary to restrain the alienation of such an estate : but the intention must he clear.' And subject to this rule, the words “ to no other use whatever,” explained by other words in the will, and associated in the same sentence with the words “ to remain in her possession,” &c. operate as a restraint upon alienation.</p> <p>£3.] Where, shortly after the marriage of the daughter of B, and when she and her husband were about leaving for home, B brought out a negro girl slave, and said, “ Here is this girl; you can take her home with you ; she is not worth much ; she will do to pick up chips; I do not give her to you now, but I never expect to lake her back” : Held, that those words did' not amount to a gift of the slave, who was afterwards bequeathed to the daughter in the will of B.</p> <p>[4.] A daughter who permits a negro slave which has been settled upon her by the will of her father, as her separate property, and with restraint upon her power of alienation, to go into the possession of a son-in-law, is not es-topped from asserting her right to the same, as against the administrator of that son-in-law.</p>

Caveat, in Richmond Superior Court. Decided by Judge Holt. This was a case of conflicting land warrants, issued under the Head-right Acts, and covering the same land. The older warrant had been issued to the plaintiff in error, by three Justices of the Inferior Court, sitting as a Land Court, and the younger one to the defendant in error, by four Justices of the Peace, sitting as a Land Court.

In Equity, in Washington Superior Court. Decision by Judge Holt, September Term, 1854. Hector Buchan and Wm.

In Equity, iñ Washington Superior Court. Decision by Judge Holt. In 1840, Cordal N. Francis made his will and died, leaving defendant, Smith, his executor, and his wife Nancy .and his grand-son Daniel F. Harris,- him surviving. By his will he disposed of a large estate to his children, grand-children and others.

Case, in Chatham 'Superior Court. Tried before Judge Fleming, May Term, 1854. This was an action brought by the plaintiff in error, against .the defendant in error, as common carriers, for, damages sustained by their refusal to convey two boxes from Savannah to New York.

Debt, in Liberty Superior Court. Tried before Judge Fleming, April Term, 1854. This was an action,on a guardian’s, bond, brought against the administratrix of William Spencer,, the' security on the bond, for a devastavit of Samuel Spencer, the guardian.

Motion to distribute money, in Chatham Superior Court. Decided by Judge Fleming. • ■ ■ •• A sum of money was in-the registry of the Superior Court, of the County of Chatham, to be distributed under the order of the Court.

Ejectment, in Tatnall Superior Court. Tried before Judge Holt, October Term, 1854. ' The facts of this case are .as follows: In 1816, a grant was issued by the State to William Wilder, for seven thousand ■acres of land in the County of Tatnall. In 1823,- Wilder conveyed the land to Ebenezer Jenks, and in 1833, Jenks conveyed to William H. Edwards, the defendant in error.

<p>Misdemeanor, in Bryan Superior Court. Tried before Judge Fleming, December Term, 1851.</p> <p>This was an indictment for buying cotton from a slave, without permission.</p> <p>It appeared, by the testimony of William L. Walthour, that, having reason to suspect the defendant of purchasing cotton from his father’s slaves, he had furnished- one of them with a quantity of cotton -and sent him to defendant’s house, while he went to watch their proceedings: that defendant bought the cotton from the negro, paying him in liquor and tobacco; witness heard them also talk of a former transaction of the same kind, and made an arrangement for a future'one.</p> <p>Witness then procured a warrant, arrested the defendant, and found the cot-ton in his house. He stated that the proceeding was “a trap set to catch the defendant;” and that the negro had no written perrnissioh to sell the cotton. Here the testimony closed. Counsel for defendant requested the Court to charge the Jury, that they were the judges of the law, as well as the facts, and were not bound, in their finding, by any instructions the Court might give; that if this transaction was a trap laid to catch defendant, and the negro carried the cotton there, and sold it, by the commands of the witness or the prosecutor, that they must find the defendant not guilty; that the indictment was defective, in not stating who was the owner of the cotton; and that the case was not made out in the proof, because there was no proof of whose property it was. -</p> <p>. The Court charged the Jury, “that it was not necessary to, allege or prove the ownership of the cotton in any person; that the Jury were the-judges of the law, but w'ere bound to declare the law as they knew it to be; that they assumed a great responsibility, if they undertook to decide the law differently from what it was held to be by the Court; but if they took the law from the Court, their skirts were clear ; that the Court might be wrong, but they could not be wrong in taking the law from the Court”.</p> <p>The Court went on to charge, “ that if the defendant bought the cotton from the slave, .without written permission, he was guilty; and that it was no justification to him, that the witness or the prosecutor had sent the negro with the cotton; that while it is a misdemeanor to solicit another to commit a crime; yet, if any one has reason to believe that crime is being committed, it is not only lawful but praiseworthy, to ferret it out and to set traps to cateh the offenders”.</p> <p>The Jury found the defendant guilty, and his Counsel excepted to the above stated charges of the Court, and assign-error thereupon.</p>

<p>[1.] Under the Act of 1831, (Cobb’s Dig. 629,) giving summary jurisdiction to the Justices of the Peace of the City of Savannah, over a certain class of civil actions, where the amount in controversy does not exceed thirty dollars, exceptions must be taken to the judgment of the Court, at the time it is pronounced, as required by the Act of 1831, (Cobb’s Dig. 623,) as to the same description of cases, when tried before the Judge of the Court of Common Pleas and the Mayor of the City; otherwise, the party aggrieved will not be entitled to a certiorari, as provided by the said latter Act.</p>

Certiorari, from Richmond Superior Court. Decision by Judge Holt. The facts of this case are as follows: F. J. Figueiro sued John J. Byrd, in the Court of Common Pleas in the City of Augusta, on a note for $ 175, dated February 28, 1852, payable to Cromelien & Brother, and indorsed by them. The plaintiff obtained judgment in this action.

In Equity, in Effingham Superior Court. Decision by-Judge Fleming.