Volume 17 — Georgia Reports

<p>In Equity, in Muscogee Superior Court. Decision by Judge.Iverson, at November Term, 1852.</p> <p>At the May Term, 1852, the following order was granted in this cause:</p> <p>Daniel Hightower Dozier Thornton, et al. } Bill &c</p> <p>The Court having, at May Term, 1851, granted an order allowing the complainants to make certain amendments to said bill, and directed the manner in which service of the same should be perfected on the defendants to said bill, who had not appeared and answered the same, and the Court being n-otv of the opinion that so much of the saict order as directed the mode of said service on said defendants was improvidentially granted: It is here, now, ordered, that that portion of said order, in regard to the manner of serving said defendants, be re-called and set aside. And the said complainant being, desirous of withdrawing his waiver of the answer of. certain defendants, as expressed in said order: It is hereby ordered, that said complainant withdraws his said waiver; that all the defendants to said bill, or their Counsel, be served with a copy of' all the amendments made to said bill, and a copy of this order, sixty .days before the next term of this Court, if to be found, in-this State; if not, by a publication, once a week, in one of the-public Gazettes in the City of Columbus, for two months before the next term of this Court, to wit: Daniel Hightower vs. Dozier Thornton and others, (the names of those to be served to be inserted.) Bill, &c., in Muscogee Superior Court, to compel the defendants, as stockholders of the Planters’ &■ Mechanics’ Bank of Columbus, to pay up the unpaid stock in their hands : It is ordered, that the said defendants appear and answer said bill, on or before the first day of the next term of this Court, with the liberty of pleading or demurring thereto, or both, if they think proper. It is farther ordered, that all the defendants to said bill appear and answer said amendments, on or before the first day of the next term of this Court, with the liberty also of pleading or demurring, or of doing both, to the same, at the time aforesaid.”</p> <p>Counsel for defendants were in Court when this order was passed, and resisted the passing thereof.</p> <p>At November Term, 1852, Counsel for defendants moved the Court to -set aside these orders, as improvidently granted, on the following grounds:</p> <p>1st. Said orders are uncertain and insufficient, as to the names of the defendants to said bill.</p> <p>2d. Because two of the defendants to said bill were, at the time of the passing of said order, dead, to-wit: David P. Hillhouse and Abraham Key, and their representatives, at that time, had not been made parties.</p> <p>3d. Because the defendants are given no day in Court, in which to demur, alone, to said amendment.</p> <p>4th. Because said order for service of said amendment, by publication, is erroneous and contrary to the Statute in relation to the service of amendments.</p> <p>- 5th. Because said orders are improperly granted in this, that at the time of the granting of said orders and each of them, said complainant had not, in truth and in fact, amended his bill, and had not filed any amendments in said cause, making said A. B. Ragan, the assignee of said Planters’ and Mechanics’ Bank of Columbus, a party defendant to said bill.</p> <p>6th. Because, if the complainant had made such amendment, the same was irregular and illegal, inasmuch as defendants had answered said original bill, before such amendment; and the same being founded on matters and things accruing after the filing of said original bill, as is shown by said amendment— the same could be engrafted on said bill, only by a supplemental bill.</p> <p>7th. Because the orders are irregular, insufficient and improvident, as appears by an inspection thereof.</p> <p>The Court refused the motion of defendants’ Counsel, and exceptions were filed thereto.</p> <p>Defendants then asked leave to demur, plead and answer to the bill, as amended, confining themselves, in the demurrer, to the amendment alone; on the ground that the same could be allowed only on supplemental bill. And to plead — (the pleas being already filed)—</p> <p>1st. That Robert B. Alexander was the proper party complainant ; that Ragan was improperly made a party defendant, and divers other things, which appear in said pleas, and Ann E. McDougald pleading also the several other pleas, and plaen administravit praeter, $e.</p> <p>2d. That there were numerous stockholders of said bank, owning numerous shares of said bank, solvent and within the jurisdiction of the Court, of equal liability with these defendants, whatever their liability may be per share, not made defendants to the bill, and which complainants could have made, and can make defendants to said bill, and who are material and necessary parties defendants to said bill.</p> <p>And for answers, the defendants offered, fully, to answer the amendments instanter; and in fact, some of the defendants had filed their answers in the Clerk’s office, but without permission of the Court. The Court refused to allow the defendants as curing their default thus to demur, or demur and plead, or demur and answer, because the defendants were in default in not filing the same on or before the first day of the term,-as by said order required, and had not so filed them until the case was called in its order for hearing. To which ruling of the Court, said defendants, by their Counsel, excepted.</p> <p>The Court then directed the complainant Solicitor to take the order pro confesso, as to the amendments to said bill. The complainant Solicitor insisting upon his right to take the whole bill as amended as confessed, the Court granted time until the next morning, for him to produce authority sustaining said motion ; and on the following morning, at the opening of Court, the complainant’s Solicitor was called upon by the Court to proceed with the reading of the authorities, when the Solicitors for defendants arose and appealed to the discretion of the Court, to allow them reasonable and further time in which to fde their answers and pleas, or answers alone, by enlarging the order of the May Term, 1852, in that regard, and offered to the Court, in excuse for their default, and as purging them from •all contempt—</p> <p>The statement of Col. H. Holt, who stated that he was original leading Counsel for a large portion of‘said defendants, and on whom had devolved the principal preparation of the defence, from the commencement of the case; that it was not and had not been his purpose, or those he represented, to delay the ease; that since the first week in August last, until the last week of the present term of this Court, he had been sick, and had not been able, and had not prepared this or his numerous other cases in this Court; while he would not say that these particular cases had not been neglected, by reason of his indisposition, he would say that these and all his other cases had been neglected; and he regretted to add, that his clients had suffered most materially.</p> <p>B. Hill, Esq. also of Counsel for turn of th*e defendants, to-wit: Alexander J. Robinson and Dozier Thornton, stated, that although thus employed, Col. Holt was employed for the same defendants; yet, he, Hill, was not expected to aid in the preparation of these cases in vacation, as he was necessarily absent ; that when ho first came to the Court, during the present session or term, he had been informed, by those on whose information ho relied, that complainant’s Solicitor had, the week before his arrival, announced that he should not take any steps in these Equity bank cases, further than to make parties therein, as to the representative of deceased.defendants, which had proved true of one of the cases — that of Carey, assignee, vs. Iloxey, but not so of these cases; that when, at the last term, the order was taken in this case, he was fully of the opinion and belief that said order allowed a demurrer alone, at this term of the Court; and consequently, further time to plead and answer, especially as on motion of defendants, at the time said order was passed, ‘foiot demurring alone” were, by the Court, stricken from said order, and he had informed his clients of his, said Hill’s, understanding of the legal effect of said order.</p> <p>- Alexander J. Robinson, in person, testified that he had applied to Judge Sturgis, one of his Original Counsel, as to the preparation of his defence in vacation, Avho informed him that nothing was necessary to be done in vacation; and hearing of the sickness of Col. Holt, his other resident Counsel, whose sickness was known to him, and the absence of Judge Sturgis at Washington, he had not employed other Counsel to prepare his defence.</p> <p>Henry J. Devon, Counsel for Ann E. McDougald, administratrix of Daniel McDougald, deceased, (as was also Col. Holt Counsel for her) stated, in his place, that he endeavored to obtain the papers in this and other cases, in vacation, in which Mrs. McDougald was a party, in order to- see to the preparation of her defence before the present term of the Court; that he applied to the Clerk for all the papers in which she was a party, who informed him that said papers were not in office, but were in the possession of complainant’s Solicitor; he then applied, several times, to Mr. Stokes, the co-partner of Mr. Dougherty, who informed him that Mr. D. was absent, and that he could get none of the papers until Mr. Dougherty returned ; and that he was unable to procure them until during the present term of this Court.</p> <p>Martin J. Crawford, Esq. for himself, as defendant, stated hat in September last, Mr. Stokes had called on him and asked him to acknowledge service on the amendment, the order being absent, stating to him that it vas only an old amendment, granted several terms ago, and a copy of which he, defendant, already had — and asked defendant to accept service and waive being served with a copy; and defendant did so, and never knew the contents of said order, as to the peremptory requisition of the same, to answer said bill on or before the first day of this term; nor was he informed, by any one, about it, until within the last three days; so soon as he was informed, he promptly answered said amendment and filed said answer in the Clerk’s office, but without leave of said Court to do so.</p> <p>Defendants further proposed to answer said bill, in such manner and within such time as to cause no delay to complainants; that said complainant might, so far as defendants were concerned, set said cause down for trial at the next term of said Court, if he was, as to said amendment, and in reference to other defendants, (not served with it,) in a condition to do so; and because, in fact, it would not delay complainant, as he had parties, to-wit: the representatives of Key and Hill-house, not served with said amendment; and the rule for time, to perfect service of said amendments, would have'to be enlarged, as to those defendants.</p> <p>After considering said motion,- said Court refused the same as to each and all of said defendants, and to which decisions of said Court, refusing said motion, said defendants, by their Counsel, then and there excepted.</p> <p>Complainant had, previously to the above stated motion of defendants, moved to take said bill as amended, fro cowfesso, as to the said defendants, served with a copy of said amendment, under said o*der of May Term, 1852, and now insisted on the granting of said motion by the Court; and as preliminary thereto, was called upon to prove service thereof, and for the purpose, produced a copy of said amendment, and a certified copy of said order of May Term, 1852, thereto attached, and with this entry thereon:</p> <p>“ State of Georgia — County of Randolph :</p> <p>Served the defendant, personally, with a copy of the within original.</p> <p>September 5, 1852.</p> <p>(Signed) WASHINGTON JOYCE, Sheriff.”</p> <p>And claimed the entry of said Sheriff on said amendment and copy order, as evidence of service thereof, on William Taylor, one of said defendants; to which defendant’s Counsel objected, as insufficient evidence of that fact, which objection the Court over-ruled; to which ruling of the Court the defendants, by their Counsel, excepted. Complainant then exhibited a copy of said amendment, with the Clerk’s certified! copies of the orders thereto attached, on which was an acknowledgment of service, signed Martin J. Crawford, for himself and co-executors; and defendants objected that this was not sufficient service as to said co-executors, as said Crawford did not, in such acknowledgment, show himself to be the Solicitor of said co-executors, which objection the Court overruled. To which ruling the defendants excepted.</p> <p>The complainant then introduced several copies of the Columbus Enquirer, a newspaper published weekly in the City of Columbus, jn said county of Muscogee — showed by said papers that a copy of the said order, with the name of Daniel Hightower, complainant, vs. Dozier Thornton, James M. Foster and James Slayton and others were stated as defendants; and if the defendants, except Thornton, were included therein, it was in the designation “and others,” and not by their several names. Complainant proved, by said paper, that a copy of said order, with defendants named therein, as aforesaid, had: been published once a week for two months, to-wit: in a paper-issued on the 7th day of September, 1852, and in one issue on the 2d November, 1852, and in each weekly issue between that time, and relied on said publication as evidence that FosterSlayton and Greenwood had been legally and sufficiently served with said amendments. Defendants’ Counsel objected to the sufficiency of said service, and to the sufficiency of the evidence thereof, upon the ground that the names of said defendants were not sufficiently named in said caption, and because said publication had only been made two months, which objections were over-ruled by the Court. To which ruling and decisions, the defendants,-by their Counsel, excepted.</p> <p>Defendants showed for cause why complainant’s Counsel should not take the bills as amended, pro confesso, as to the defendants,(other than the representatives of Key and Hillhouse, not served, and as against whom complainant did not ask said order.) in addition to the foregoing reasons, already stated, the following:</p> <p>1st. Because Key & Hillhouse were then dead, (and it was then and there admitted by complainant’s Counsel, that Hill-house had been dead two and a half years, and Key one and a half years,) and that the representatives of Key and Hill-house not having been served with said amendments, the bill, as amended, was not in a condition to be taken pro confesso, as to any defendants.</p> <p>2d. Because the order should be (inasmuch as the amendment was only as to parties, and not materially affecting the main gist of the action set forth and charged against defendants in the original bill, and as defendants had answered the original bill as aforesaid,) said order (if complainant could move at all, which defendants deny,),is not in such condition, either as to making, filing or serving thereof, as will enable the complainant to take the, bill as, amended pro confesso, as to Regan or any of the defendants; which objections the Court overruled, and granted the order asked for by complainant, taking the bill pro confesso, as to all of the defendants except the representatives of Key and Hillhouse, deceased. To which decision of the Court, the defendants, by their Counsel, excepted.</p> <p>Complainants then moved for further time to serve the representatives of Key and Hillhouse, with the amendments to said bill. The Court granted the motion and ordered service thereof, and that said parties should, on dr before the 1st day of the next term of the Court answer the amendments. To which decision of the Court, granting the order, defendants, by their Counsel, excepted. Defendants, by their Counsel,, moved to dismiss said bill, on the following grounds:</p> <p>1st. That complainant had not used due diligence in the preparing and speeding said case and in setting the same down for trial — as more than four terms had elapsed since the filing of said bill, in which the Court had been held, and in which complainant could have taken steps to speed said case, and taken steps to set the same down for trial, and complainant had not, nor had said Court, set said case down for trial, within the time limited by Statute for that purpose.</p> <p>2d. Because said bill has never been, since its having been filed as aforesaid, docketed and called in a legal and proper manner on the equity docket of said Court, the same having been docketed and called (if at all, which defendants deny,) in this manner, and in this manner only — “Daniel Hightower-vs. Dozier Thornton et al. Bill for Discovery, Relief and Contribution.”</p> <p>3. Because all the interlocutory decrees and orders, taken by said complainants in said case, (if taken at all in said case, which defendants deny,) are ambiguous, uncertain and insufficient, as the case to which they refer, and as to the defendants to be bound thereby, said order being headed in this way and no other — “ Daniel Hightower vs. Dozier Thornton et al. Bill,” &c. and said orders will be no sufficient protection to these defendants, as to the facts of said cases therein recited. Which motion the Court over-ruled, and to which decision, defendants, by their Counsel, excepted.</p> <p>And upon these several exceptions, error has been assigned.</p>

In Equity, in Taylor Superior Court. Tried before Judge-Crawford, April Term, 1854.

Proceeding to assess damages in Randolph Superior Court.. Tried before Judge Perkins, April Term, 1854. • Under the charter of the Irwinton Bridge Company, they were authorized to appropriate the land necessary for an abutment on this side the river, and a proceeding was authorized to ascertain the value thereof, in the event of a disagreement with the owners. Such disagreement having arisen, the appraisers assessed the damages at Ten Dollars.

In Equity, in Dougherty Superior Court. Decision on demurrer, by Judge Perkins, May Term, 1854. This bill was filed by George W. Collier, andj alleged the following state of facts: Collier, Bracewell and St. George, entered into a partnership, for the purpose of merchandizing at Hawkinsville, under the name of Collier & Bracewell. Edward Molyneux recovered judgment against Collier & Bracewell, with St. George as surety on the appeal, for $9,860, with interest and costs.

<p>[1.] William Moughon died testate, appointing John Mitchell his executor, who qualified and took possession of his estate ; and subsequently was appointed guardian of Sarah, the infant daughter of his testator. Mitchell died testate, appointing Alexander McDougald and others his executors. McDougald qualified and took the exclusive possession and control of the estate of Mitchell, amounting to $100,000. McDougald also was appointed guardian of the minor, and owing to the transfer of the guardianship from one county to another and other causes, several bonds, with different sets of sureties were given: Held, 1. That a bill filed against McDougald and the several sets of sureties, was not objectionable on the score of multifariousness. 2. That actions having been instituted at Law upon each of the bonds, the remedy was ample; and that a bill filed against the principal and all the different sureties, could not be entertained, there being no allegation of the insolvency of the principal. 3. That where several suits are pending at Law, if discovery is needed, and a resort is had to Chancery to obtain it, a separate bill must be filed in each ease; and the whole cannot be consolidated for that purpose.</p>

Decision by Judge Perkins, at Chambers. In February, 1854, the General Assembly of the State passed an Act removing the county site of Lee County from Starkville, and authorizing commissioners named to select a new site, &c. Compensation was provided in the Act to the lot holders in Starkville.

Trover, &c. in Sumter Superior Court. Tried before Judge Perkins, August Term, 1854. • This was an action by Dinkins and others, against Moore and Joseph White, for negroes. Plaintiffs offered in evidence a certified copy of a deed (the original being accounted for), made by Wm. P. Brown to one Mark Brown, for certain negroes to be held in trust.

Complaint, in Rum tor Superior Court. Tried before Judge Perkins, September Term, 1854. This was a suit upon an account. Upon the trial, John Creamer, one of the firm of Creamer & Graham, swore that the firm had an original book of entries, which had been destroyed by fire; that ke kept the books alone, having no clerk, and that he transcribed the present account from the book, and that this was a true transcript from the book.

<p>Complaint in Sumter Superior Court. Decision by Judge Perkins, at September Term, 1854.</p> <p>Hardeman and Hamilton filed their petition against Wright Brady; Brady acknowledged service, “waiving copy and copy process.” After verdict and judgment, Counsel for Brady moved to set aside the verdict and vacate the judgment, on the ground that there was no original process issued in this case. The Court over-ruled the motion, and this decision is assigned as error.</p>

Complaint, in Randolph Superior Court. Decision by Judge Perkins, October Term, 1854. Watkins Chappell & Co. obtained a verdict against Seaborn A. Smith. Smith entered an appeal. The clerk, in making out the appeal, misnamed the plaintiffs — writing their names “ William Chappell & Co.” Plaintiffs’ Counsel moved to dismiss the appeal on that ground.

Complaint and motion for new trial, in Randolph Superior Court. Decision by Judge Perkins, Oct. Term, 1854. This was a motion to dismiss a rule nisi for a new trial, on the ground that a brief of the evidence was not agreed upon in writing, and filed as required by the rule.

Debt, in Decatur Superior Court. Tried before Judge Perkins, October Term, 1854. This action was brought by Duncan Curry, on a bond given by defendants in error to him, at the time of hiring a negro man Allen. This bond was in the penalty of $1,200, to be paid on 25th December, 1845. The condition of the bond was, that the obligors “shall cause Allen, a boy, to be forthcoming to the possession of Duncan Curry, on the 25th day of December, 1845.

<p>In Equity, in Baker Superior Court. Decision by Judge Andrews, November Term, 1854.</p> <p>Hannahan filed a bill, alleging that in 1853, by his agent, he sold to Nichols a negro for $1100, and took his note, with one Delancey as surety. That Nichols agreed to furnish materials and build a gin-house for complainant by a certain time, for which he was to have a credit on the note of $600. That this contract was the principal object of selling the negro, and Nichols was unable otherwise to pay for him. That Nichols had failed to comply with the contract, and that he and Delancey are insolvent and unable to pay the note, except by the proceeds of the negro. That Nichols was trying to sell the negro, so as to defeat the complainant; and complainant had good reason to apprehend that Nichols would sell the negro and leave the county and State, and thus defraud complainant. That he had commenced suit on the note in Baker Superior Court: Prayer, that Nichols might give bond and security for his appearance, to answer the said action on the note, as well as for the forthcoming of the negro, to answer the judgment at Law, and for the writ of quia timet.</p> <p>On motion of defendant’s Counsel, this bill was dismissed for want of equity, and because complainant had an adequate Common Law remedy. This decision is assigned as error.</p>

Garnishment, in Dougherty Superior Court. Decision by Judge Perkins, at November Term, 1854. William A. Rawson brought an action against B. C. Green and K. C. Green. Pending the suit, B. C. Green departed this life. Before his death was suggested or there was a representation of his estate before the Court, the plaintiff, Raw-son, sued out a summons of garnishment against Wm.

In Equity, in Decatur Superior Court. Decided by Judge Perkins, December Term, 1854.

Ca. sa. in Sumter Superior Court. . Decision by Judge Perkins, August Term, 1854. Wm. E. Stevens being arrested under a ca. sa. gave bond, with security, for his appearance at the next term of the Court. When the case.was called, Stevens failing to appear, judgment was entered upon the bond against him and Harvey Shannon, his surety.

Complaint, &c. in Lee Superior Court. Decision by Judge ■ Perkins, June Term, 1854. The Court below dismissed the plaintiff’s suit, on the ground ' that the Act of 1847, “ to curtail and simplify pleadings at law” did not apply tocases for or against an. administrator.. This is the error assigned.

In Equity, in Dougherty Superior Court. ' Decision by Judge Perkins, December Term, 1854. The error complained of was the sustaining of exceptions to the answers of plaintiff in error, to a bill filed by the defendants in error. 1. The bill charged the execution of a marriage contract between James S. Miller and his wife, a' copy of which was attached to the bill.

Assumpsit and motion for new trial, in Baker Superior Court. Decision by Judge Perkins, November Term, 1854. This was a suit by the Inferior Court of Baker County against Griffin as the administrator of Sikes, upon a -promissory note made by Sikes during his life-time, and upon which there was a credit of an amount paid by the administrator since the death of Sikes, and before the bar of the Statute of Limitations had attached.

Ejectment, in Dougherty Superior Court. Tried before Judge Perkins, November Term, 1854. In this case, both plaintiffs and defendant claimed under the Bank of Hawkinsville, the land in dispute. The defendants in error offered in evidence a deed to the land, purporting to be made by the Bank of Hawkinsville, dated 4th August, 1842, for the consideration of $2,000, conveying this land to John Rawls.

Complaint, in Marion Superior Court. Tried before Judge Crawford, August Term, 1854. This was an action on a note for one hundred and seventy-five dollars, given for the hire of two negroes. The defence was, that the plaintiff had, without consent of defendant, taken one of the negroes away from the possession of the defendant, before the year expired, for which he claimed a deduction from the note.

<p>[1.] The order in which evidence is to be introduced, is for the discretion of' the Court.</p> <p>[2.] A party moves for a new trial on the ground of newly discovered evidence, and supports his motion by an affidavit of his own, in which he swears that A had told him that be, A, had beard B say that he, B, had heard the other party say that which is, presented as the newly discovered evidence: Held, that the ground of the motion is not sufficiently verified.</p>

Ejectment, in Talbot Superior Court. Tried before Judge Craweord, September Term, 1854. The lot of land in dispute was granted, in 1838, to Daniel Zetler, who, in 1847, conveyed it to Martin J. Stamper. The suit was brought on the several demises of Zetler and Stamper, against John B. Griffin, tenant.

In Equity, in Talbot Superior Court. Decisions by Judge Crawford, at September Term, 1854. Held: by the Superior Court, to be fatal to the claim of the bank; that.the bank had been guilty of great laches in not suing the maker and prior indorsers; that since the present suit was brought the complainant had given the bank notice to sue the drawer and prior indorsers, which they had failed to do in three months.

In Equity, in Harris Superior Court. Decision on demurrer by Judge Crawford, September Term, 1854. This bill was filed by the wards of Alexander S. Huey, tbeir former guardian and his sureties, (William C. Osborn and another) on his bond as guardian, praying an account, and alleging a breach of his bond in his failure to account.

In Equity, in Harris Superior Court. Decision by Judge Craweord, September Term, 1854. This bill was filed by the plaintiffs in error, against the defendant in error, for the recovery of certain negroes and other property, under a marriage contract. A general demurrer, by defendant, being over-ruled, that decision was excepted to and carried to the Supreme Court. At Americus Term, 1854, this Court reversed that decision. (See the case reported in 15 Ga.

Arson, in Taylor Superior Court. Tried before Craweord, Oct. Term, 1854. The errors assigned are the refusal of a motion in arrest of judgment, and a motion for a new trial.

Case, in Taylor Superior Court. Tried before Judge Crawford, October Term, 1854. This was an action by May against Branan, for the value of two mules, alleged to have been drowned by reason of defendant’s digging a mill-race across the public • highway, without authority of law. The Court below admitted evidence of the use of the road as a public highway. Defendants excepted, insisting that there was higher evidence — the order of the Inferior Court.

■' Divorce and alimony, in'Stewart Superior Court. Decision by Judge Craweord, October Term, 1854. Catherine Roseberry’s libel for divorce stated, as grounds, adultery and cruel treatment. An application being made for temporary alimony, James Roseberry made answer, that though married in fact to libellant, the marriage was void, in law, because she had a living husband at the time of the marriage, and who is still alive.

In Equity, and motion for a new trial, in Stewart Superior Court. Decision by Judge Crawford, October Term, 1854. A motion was made to amend the rule nisi for a new trial, by adding two grounds, founded on newly discovered evidence. The Court refused the motion to amend, and this decision is assigned as error. The bill, in this case, was filed to recover a legacy under the will of Ilenry Canaday.

Murder, in Stewart Superior Court. Tried before Judge Crawford, October Term, 1854. Tbe first error assigned in this ease is, that the question, “ Have you any conscientious scruples as to capital punishment,” was put the Jurors on their voir dire, though the offence was committed prior to the Act prescribing that question. Defendant made no objection, at the time, nor was the Court called in to decide upon the legality of the question.

Attachment, in Marion Superior Court. Decision by Judge Perkins, August Term, 1854. The only question in this case is — whether an attachment bond, given under the Act of 1833, is good, which is for more than double the amount of the debt sworn to. The Court below held the attachment to be good, and this decision is assigned as error.

<p>In Equity, in Marion Superior Court. Decision by Judge Crawford, August Term, 1854.</p> <p>Gr. O. Davis and others, became the sureties of Wm. D. Shockley on' two promissory notes, amounting to $1200, upon the agreement and promise of Shockley to turn over and transfer to them his books of account and other evidence of debt, to secure them from loss by reason of their suretyship. These books, &c. were partnership assets of Shockley & Wooding. Davis and his co-sureties filed their bill, alleging that Shockley had refused to comply with his agreement; that he was in failing circumstances, and that suit was pending against them on the notes. The prayer was for a specific performance.</p> <p>The over-ruling of a demurrer to this bill is the error assigned in this case.</p>

Mandamus, in Muscogee Superior Court. Decision by Judge Wore ill, June adjourned Term, 1854. The General Assembly of 1853-4, passed an Act authorizing and requiring the Treasurer of the Poor School Eund of Muscogee County, to pay to each and all teachers of poor children, for the years '1851 and 1852, out of the poor school fund, the full amount of their accounts, and all arrearages due them, out of any funds in hand or the first that may be received.

Scire facias, in Muscogee Superior Court. Decision by Judge WORRILL, June Term, 1854. This was a scire facias to make Ann E. McDougald, as adm’x of Daniel McDougald, a party to a cause pending at his death. The death of defendant, Daniel McDougald, was suggested of record, at July Term 1853, but no order for sci. fa. to issue. Counsel for Mrs. McDougald moved to quash the sci. fa. on this ground, and because they insisted the cause was discontinued and abated.

<p>Illegality, in Muscogee Superior Court. Decision by Judge Worrill, at June Adjourned Term, 1854.</p> <p>In 1838, a fi. fa. was issued from Muscogee Superior Court, in favor of Edward Kellogg & Co. against Buckler & Short. It was levied 29th January, 1839, which levy was sold March 1st, 1839. In Sept. 1847, Wm. H. Gilmore, Sheriff of Lee County, levied the/, fa. In June, 1853, G. B. Mayo, then Sheriff of Lee County, offered this levy for sale. In the meantime, the original fi. fa. being lost, at May Term, 1848, of Muscogee Superior Court, an order was passed that the Clerk issue an alias fi. fa. in lieu of the lost original. Short, one of the defendants, interposed an affidavit of illegality to the sale by Mayo, Sheriff of Lee—</p> <p>1st. Because the judgment on which the fi. fa. issued, is dormant.</p> <p>2d. Because the alias fi.fa. was illegally issued.</p> <p>3d. Because the levy, as advertised by Mayo, was, as appeared by said fi.fa. ordered to be dismissed, and no sale can be had under the same.</p> <p>On the trial of this illegality, sundry orders and entries on the minutes were given in evidence as follows:</p> <p>1st. The order at May Term, 1848, ordering an alias fi. fa. to issue.</p> <p>2d. An order June 3d, 1848, ordering the levy in Lee to be entered on the alias fi. fa.</p> <p>3d. At December Term, 1848, a motion made by Short to set aside the alias fi. fa. — 1st. Because established without notice to defendant. 2d. Because the judgment was dormant; and 3d. Because it was paid off.</p> <p>4th. An order at June Term, 1849, making the entries on thejfi. fa. by consent, a part of the record.</p> <p>5th. An order at May Term, 1851, stating, that it appearing that the fi. fa. had been levied, after which a ca. sa. had been issued, and Short arrested under the ca. sa. and it not appearing that any disposition had been made of said arrest: Ordered, that the levy be dismissed and the fi. fa. be returned to office. This order was entered on the fi. fa.</p> <p>6th. A ca. sa. issued 6th day of November, 1840, on this judgment, with this entry on the back of ca. sa. (Copied from, executions.) Received, Columbus, May 3d, 1839, $495^^, in part of this fi. fa. proceeds of the above stated sale, from Joseph D. Bethune, Esq. Sheriff, and Tax and Jury fee, f5 00.</p> <p>PHILIP T. SCHLEY, Att’y for pl’ffs.</p> <p>With an arrest of Short on the ca. sa. 7th Nov. 1840, by the Deputy Sheriff — Short’s bond to appear and take the Honest Debtor’s Oath, and an entry, by the Sheriff, of “ Discharged by order of plaintiff’s Attorney, without having paid the amount due 14th June, 1851.”</p> <p>7th. June 16th, 1851, a motion by Short’s Counsel, to enter on minutes, nunc pro tunc, an entry from Bench Docket, opposite the ca. sa. and Sheriff’s return of “ non-suit at October Term, 1841,” with an issue made up thereon by the Counsel for plaintiffs.</p> <p>With this evidence before the Court, Counsel for plaintiffs moved to dismiss the illegality. The Court refused the motion and sustained the illegality, and this decision is assigned as error.</p> <p>At the same term of Muscogee Superior Court, Counsel for Kellogg & Co. moved a rule against Creen B. Mayo, Sheriff •of Lee County, to show cause why he should not pay over the money due on said fi. fa. Mayo showed for cause the foregoing state of facts; and farther, that he was not subject to rule in Muscogee County. The Court refused to grant the rule •absolute, and this decision is assigned as error. Both cases were heard together in the Supreme Court.</p>

<p>Motion, in Muscogee Superior Court. Decided by Judge Worrill, June Adjourned Term, 1854.</p> <p>The sole question in this case was, whether a judgment and fi. fa. in favor of the Central Bank of Georgia became dormant after seven years, without an entry by the proper officer. The Court below held that the judgment was dormant. This decision is the only error assigned.</p>

<p>Murder, in Muscogee Superior Court. Tried before Judge- ' Crawford, June Term, 1854.</p> <p>David Wright, as principal in the first degree, and John T., Boyd, as principal in the second degree, were jointly indicted' for the murder of Mark Robinson. The defendants severe® • and the Solicitor General elected to place Boyd,, the principar •in 2d degree, upon his trial first; which being allowed by the Court, is assigned as error.</p> <p>One Kelly being called as a Juror, was asked by prisoner’s Counsel if he lived in the City of Columbus ? He answered yes. The State’s Counsel then asked, him “if he had resided here ■for six months ?” He answered in the negative. The State’s Counsel challenged him for cause. The Court understanding the last question to refer to the county sustained the challenge —Counsel for prisoner asking no questions and making no objections. Which decision is now assigned as error.</p> <p>The Court admitted evidence to show that the deceased, Robinson, was Deputy Sheriff at the time of the homicide, and was acting in his official capacity. This decision is assigned as error.</p> <p>The Court admitted in evidence a peace-warrant against David Wright, and two warrants for a riot, severally, against Wright and Boyd, by virtue of which Robinson arrested Wright and Boyd at the time he was shot. The admission of this evidence is assigned as error.</p> <p>Subsequently, the State’s Counsel moved to withdraw from the Jury the consideration of the two warrants for a riot. The 'Court allowed the motion and this is assigned as error.</p> <p>The Court charged the Jury, among other things, that they •should find a general verdict of “guilty” or “not guilty.” 'This charge is assigned as error.</p> <p>The Court omitted to instruct the Jury as to the other ,-grades of homicide — holding that there was no such offence as principal in the 2d degree in manslaughter. This omission by the Court is assigned as error.</p> <p>A new trial was moved upon these several alleged errors, which being over-ruled, is also assigned as error.</p>

Indictment for murder, in Muscogee Superior Court. Tried before Judge Worrill, June Adjourned Term; 1854. The Jury in this case found a verdict for “Involuntary manslaughter in the commission of an unlawful Act.” A motion, was made for a new trial, and the refusal to grant the rule nisi is 'the only error assigned in this Court. The first ground for a new trial was— 1.

Illegality, in Muscogee Superior Court. Tried before Judge Worrill, June Adjourned Term, 1854. Alexander J. Robison summoned John Banks as a witness for Mm, in nine several cases, serving a subpoena in each case. Banks swore that he attended eight days at one term and thirty-eight days at another term, and caused the subpoenas thus proven to be levied on a city lot. Robison made “ an • affidavit of illegality,” alleging — 1st. That Banks did not attend as alleged. ' 2nd.

Trover, &e. in Muscogee Superior Court. Tried before Judge Worrill, December, 1854. This was an action for a negro man, Charles, brought by Dempsey Brown against Philip A. Clayton. Brown claimed under a sale by the Sheriff, of the negro, as the property of one Reeves. Clayton claimed ..under a deed of trust from Reéves, for the benefit of the wife and children of Reeves.

<p>In Equity, in Muscogee Superior Court. Tried before Judge Worrill, December, 1854.</p> <p>Thomas Grant, Sr. by his will, placed Ten Thousand Dollars in the hands of trustees, for the support of his wife — the interest annually accruing thereon “ to be applied to that purpose ; the principal not at her control, to be given her at the discretion of the trustees — the trustees to give bond and security for the same, and their faithful discharge of said duty, and be allowed a reasonable compensation for their trouble.” Thomas Grant, Jr. one of the trustees, took possession of the fund and paid over the interest annually, to. the widow, Mrs. Martha II. Grant. At the death of Thomas Grant, Jr., the other trustee received from his administrators $9.400 — they retaining $600 for his compensation. A bill was filed by the trustee, against the administrators, to recover this amount, and praying an account for interest made on the fund.</p> <p>At the trial, on motion of defendant’s Counsel, the Court ordered the bill amended, and Martha H. Grant, the cestui que trust, to be made a party complainant. This decision is the first error assigned.</p> <p>The Court charged the Jury, that a trustee is entitled to compensation, and that in this case, it should be paid o.ut of the trust fund : and that 2 J per cent, for receiving, and the same for disbursing, and 10 per cent, on interest made, was a reasonable compensation — but that the Jury must determine the amount.</p> <p>This charge is also assigned as error.</p>

Debt on bond, in Dougherty Superior Court. Tried before Judge Perkins, November Term, 1854. This was an action against the sureties on a Sheriff’s bond. The breach alleged, was a failure to levy two fi. fas. in favor of Stoddard. On the trial, the original fi. fas: issued from Baker Superior Court, were offered in evidence. Objection was made, that they having been returned to office, were papers of file, and could be proven only by exemplification of the whole record.

In Equity, in Muscogee Superior Court. Tried before Judge Worrill, December Term, 1854. Martin J. Kendrick died, leaving his cousins as next of kin. On a bill for direction filed by the administrator, the Court charged the Jury, that cousins on the paternal side took in preference to and the exclusion of cousins on the maternal side. This is the only error assigned.

Trover, in Chattahoochee Superior Court. Tried before-Judge Worrill, November Term, 1854.

<p>In Equity, from Crawford County. Decision by Judge Rowers.</p> <p>In 1837, Thomas Stembridge made his will, and, by the third item thereof, he gave to his son, Henry R. M. Stem-bridge, his plantation, comprised in lot of land number twenty-six, in the third district of Houston County. By the first item of the will he said, “ I allow my son Henry R. M. Stembridge to give her (wife Sarah) a support out of the plantation, during her life time.” Thos. Stembridge died, and his will was duly proven, Henry R. M. Stembridge afterwards died intestate, and George R. Hunter was appointed his administrator. The widow of Henry R. M. Stembridge afterwards intermarried with one Jacob B. Nelson. John Stembridge was appointed trustee for Sarah Stembridge, the widow of Thomas Stem-bridge. An agreement was entered into by which Sarah Stem-bridge consented to relinquish her charge for support on the land, and consented that it should be sold by George R. Hunter, as administrator of Henry R. M. Stembridge, free from all such incumbrance; and in consideration thereof, Jacob B. Nelson executed his bond to deposit in the hands of said Hunter — $200, to be applied to the support of said Sarah Stem-bridge ; and if this fund should be exhausted before her death, he agrees to allow her the further sum of fifty dollars per annum during her life. Eifty dollars of this sum of two hundred dollars was paid by Hunter to Mrs. Stembridge. The land was accordingly sold and bought by one Morgan Hancock. Sarah Stembridge and her trustee now filed this bill, setting forth the above facts, and alleging that said Sarah was old and in her dotage, and that the contract was the result of a fradulent combination by George R. Hunter and Jacob B. Nelson, to take advantage of her helplessness and defraud her out of her support from said land. The bill alleged, that if said Hancock was permitted to pay the purchase-money for said land to Hunter, that said Sarah Stembridge would be in danger of want in her old age and needy condition, and the provident intention of her husband would be defeated, as the said Nelson was utterly insolvent. The bill ratifies, on the part of Mrs. Sarah Stembridge, the sale of the land by Hunter as administrator, and claims a support for her for life out of the proceeds of the sale of the land. The bill did not ask for the enforcement of the contract, but prayed that it be cancelled, and the trust for the. support of Sarah Stembridge should attach upon the proceeds of the sale of the land in the hands of Morgan Hancock; and that said George R. Hunter should be enjoined from trading the notes on said Hancock.</p> <p>Nelson, living in the State of Alabama, was not served; Hunter answered the bill, and denied the charges of fraud in the procurement of the contract, and .the fraudulent combination charged against him, and swore off the main equitable allegations in the bill, and alleged that the contract of Sarah Stem-bridge and Jacob B. Nelson, was knowingly and fairly made, ¡and-that she was entitled only according to its provisions. 'The answer also set up, that before said Nelson had reduced ••the funds to possession, he died ; and that therefore, the effects •being choses in action, survived to his wife ; and that he had •declined to pay it out to said Sarah Stembridge, on her contract with Nelson, because, if he did so, that he would be liable to pay it again, or at least, the one third portion, (the portion to which the widow of said Henry R. M. Stembridge was •entitled, the other two thirds belonging to his children.)</p> <p>The answer also set up a claim for certain sums, in favor of said Hunter, for fees and commissions. The answer also states, that the relinquishment of Mrs. Sarah Stembridge was executed in consideration, not only of the bond aforesaid, made by Nelson, but also in consideration .of an order drawn by Nelson on Hunter, by which he directed Hunter to retain out of his, N’s share of the first payment for the land, one hundred and seventy-five dollars, to be applied by him, Hunter, to the support of Mi's. Sarah Stembridge, according to an obligation given by him, Nelson, to his trustee, Jno. Stembridge : The answer states that this order was read over to Jno. Stembridge, the trustee, and approved by him; that after-the order, was executed Hunter paid Jno. Stembridge, the complainant, twenty-five dollars under the order; that Nelson had before, through Hunter, paid complainant twenty-five dollars." as part of - the two hundred dollars mentioned in the bond; -and thus, that at the time of Nelson’s death, no more-than one" .hundred and fifty of the two hundred dollars remained unpaid. .</p> <p>On the trial of the cause, the defendant (Gr.-.'R.. Hunter) offered to read in evidence a copy of his return to the - Court of Ordinary, as administrator of H. R. M. Stembridge, deceased, and this, the Court refused to permit. Defendant also offered to prove the amount of commissions to which he was entitled, as administrator of H. R. M. Stembridge, and the amount of costs and Counsel fees paid by him on account of the litigation in this case; and the Court rejected this evidence also, and defendant excepted.</p> <p>Defendant also asked the Court, in writing, to charge the Jury — 1st. “ That complainant is concluded by the contract with Nelson, from setting up any claim to the money in defendant’s hands, if the Jury believe from the evidence that the contract set up in complainant’s bill, was made by the trustee and acquiesced in.”</p> <p>2d. “ That under the facts of this case, complainant is not entitled to a decree; and if so, only to the interest on the mo■ey in defendant’s hands.”</p> <p>The Court declined so to charge the Jury, but charged, “that complainant was entitled to recover from the administrator, whatever amount might be necessary and proper to give her a comfortable support from 1st January, 1851; and to -continue as long as she lived, or until the money in the hands of the administrator of Henry R. M. Stembridge, arising from the sale of the land, was exhausted.”</p> <p>And these rulings, charge and refusals to charge, are now •assigned as error.</p>

In Equity, in Spalding Superior Court. Decision by Judge Starke, May Term, 1854.

In Equity, in Bibb Superior Court. Decision by Judge.Powers, May Term, 1854.

<p>Motion, in Meriwether Superior Court. , Decision by Judge Starke, August Term, 1854.</p> <p>Lewis Pyron, claiming to be a creditor of Jacob Stroman, deceased, obtained temporary letters of administration upon his estate. He and' William Mitchell, (who also was a creditor,) both advertised for permanent letters. At the hearing, the Ordinary granted the letters to William Mitchell and revoked the temporary letters to Pyron, as having expired by their own limitation — Pyron making no objection thereto within four days. Pyron appealed from the grant of permanent letters to Mitchell. Letters pendente lite were then granted to Mitchell. From the grant of letters pendente lite, Pyron offered to appeal also. The Ordinary refused to grant an appeal from this grant of letters. Pyron moved a rule vs. the Ordinary in the Superior Cdurt, to show cause why he should not enter the appeal, nunc pro tunc. This rule was resisted — 1st. Because the proper mode to proceed was by mandamus 2nd. Because, upon the above facts stated by the Ordinary, in his return to the rule, an appeal did not lie.</p> <p>The Court over-ruled the objections, and made the rule absolute ; and this decision is assigned as error.</p>

<p>Trover, in Coweta Superior Court. Tried before Judge Warner, September Term,' 1854.</p> <p>This was an action to recover two negroes, a woman and her son, brought by the plaintiffs, children of the wife of defendant by a former marriage, against C. T. Wellborn.</p> <p>The negroes had formerly been the property of Joshua Elder, deceased. He delivered them to his daughter Sarah, on her marriage with one Seaborn B. Garnett, the father of plaintiffs. As to whether she took them as a loan or gift, there was much conflicting testimony. The negroes remained in her possession until after Garnett’s death, and until within a few days of Mrs. Garnett’s marriage to Wellborn, the defendant, which was in 1838, when they were taken away from her by Joshua Elder. In 1842, Joshua Elder executed a deed of gift, in the usual form, conveying the negroes to the plaintiffs. This deed he gave to one of the subscribing witnesses, with instructions to have it recorded and to hold it as his, Elder’s agent, until he, Elder, should be dead, and then to deliver it to the donees-; which the person to whom it was intrusted did, as directed. This deed and the circumstances of its delivery were in evidence.</p> <p>The negroes continued in the possession of Joshua Elder until 1850, when he sent the negro woman to defendant’s, to wait on his, defendant’s, wife; and the boy afterwards ran away and went to defendant’s who refused’to give him up. Joshua Elder died in 1851, and 'this suit was instituted by the children of defendant’s wife, the donees in the deed above mentioned, to recover the property, and the facts aforesaid appeared in evidence. The Jury found a verdict for the plaintiffs; whereupon, defendant moved for a new trial, stating in his rule the following grounds: 1st. Because the verdict is contrary to the evidence and tlje charge of the Court, the Court having charged the Jury, among other things, that if they believed, from the evidence, that Joshua, Elder had given the property in dispute to Mrs. Garnett, afterwards Mrs. Wellborn, before her marriage with defendant; and that said Elder took possession of the said property, on the day of the marriage, or so shortly before that there was not a sufficient reasonable time for Mrs. Garnett (now Mrs. Wellborn) to have instituted suit in her own right against said Elder, before her marriage with defendant, for said property; that in that case, the Statute of Limitations would not commence to run against the rights of Mrs. Garnett, (now Mrs. Wellborn); as before stated, the property being in her own right, and she being a feme covert, the Statute would not run during her coverture.</p> <p>2d. And further contrary to the charge of the Court and the evidence in this: the Court having charged the Jury, among other things, that if they should be of the opinion, from the evidence, that it was a gift from Elder to Mrs. Garnett (now Mrs. Wellborn) as before stated;, and also, that the Statute of Limitations did commence to run against the rights of Mrs. Garnett (afterwards Mrs. Wellborn) when Elder took possession of the property in 1838; that they should find for the defendant, unless they should be of the opinion, further, from the evidence, that Elder had had the possession of the property, and held the same adversely to the rights of Mrs. Garnett, afterwards Mrs. Wellborn, for four years before he conveyed the same to the plaintiffs.</p> <p>3d. Because the Court erred in refusing to charge the Jury, that the paper which was relied on by plaintiffs as title in them, was testamentary in its character and effect, and could not be 'proof of title in plaintiffs, without first being proven in the Court of Ordinary, according to law.</p> <p>4th. Because the Court erred in charging the Jury, that the said paper was not testamentary under the evidence adduced in this case, and in order to make it so, it must appear to be such from the paper itself.</p> <p>5th. Because the Court erred in admitting the evidence of Asa Chandler and others, to prove the declarations of 'Elder before the making the deed to plaintiffs, said evidence being objected to by defendant’s Counsel, at the time it was offered and admitted by the Court; the declarations being made while in possession of the property-and exercising acts of ownership over it, showing title in himself.</p> <p>“Which motion for a new trial was over-ruled by the Court, ■and on this decision error is assigned.</p>

Motion, in Fayette Superior Court. Decision by Judge O. Warner, September Term, 1854. A-fi.fct. in favor of Thomas M. Jones vs. J. T. and J. W. Davis, was levied on a tract of land, to which Eusebius Slay-ton interposed a claim. The land was found subject, and the Sheriff ordered to sell. At the sale, William J. Russell became the purchaser. The present motion was for an order to the Sheriff, requiring to dispossess the claimant and put the purchaser in possession.

Trover, in Payette Superior Court. Tried before Judge O. Warner, September Term, 1854. Held: that under this clause, Christina took an estate tail; and this decision is assigned as error.

<p>Motion, in Fayette Superior Court. Decision by Judge O. 'Warner, September Term, 1854.</p> <p>Maloney, as administrator of Phebe Ryle, filed a,bill against •one Nixon, as administrator of James Ryle, to have titles perfected to certain negroes, and for a distributive share of the estate. Nixon died, and Clements, as his administrator, was ■made a party. On the trial, the Jury decreed that titles to the negroes be considered as made, “ and that defendant pay the costs of said suit.” The answer of Clements, as administrator of Nixon, denied having any assets of Ryle’s estate in his hands. On the verdict of the Jury, judgment was entered •against Clements, individually, for the costs. A motion was made to set aside this judgment, and have it entered against him, in his representative character. The Court refused to' :grant the order, and this decision is assigned as error.</p>

<p>[1.] Every indictment is sufficient, which states the offence in the terms or language of the I’enal Code, or so plainly that the nature of the offence may •he easily understood by the Jury.</p> <p>[2.] The case of one who, by pleading not guilty to an indictment for retailing liquors without license, alleges that he retailed with license, is not an exception to the general rale, that he who alleges an affirmative must prove it.</p>

<p>Rule, from Macon Superior Court. Decision by Judge Powers.</p> <p>The decision of the Court renders a statement of the facts, unnecessary.</p>

Casa,. in Pike Superior Court. Decision by Judge Starke, October Term, 1854. Abraham Woods being arrested under a ca sa. gave bond for his appearance at Court, to take the benefit of the Honest Debtor’s Act. Failing to appear when the case was called in its order, judgment was entered against him and his sureties on the bond.

<p>Case, in Fulton Superior Court. Tried before Judge O. Warner, October Term, 1854.</p> <p>This was an action brought by James Downs and another, against Yonge, as Superintendent of the State Road, for damages to a lot of land No 112,14th district, 6th section DeKalb, now Fulton County, by the running of the rail road through the land. On the trial, the plaintiffs showed title in themselves. Defendant then proved statutory title in one M. C. Martin, and offered in evidence a deed from Martin to the right of way, dated in May, 1838. This deed was attested by only one witness. Objection was made on that ground, which being overrnled by the Court, plaintiffs excepted.</p> <p>Plaintiffs then offered in evidence a fi. fa. against Martin, upon which there was a levy on and a sale of this lot of land, prior to May 1838; but plaintiffs did not claim under this sale. The Court rejected the evidence, and plaintiffs excepted.</p> <p>Upon these exceptions, error is assigned.</p>

<p>[1.] In a suit by a person standing in the shoes of a partner, against the co-partner, the admissions of the partner are not evidence in favor of the plaintiff.</p>

Ejectment, in Bibb Superior Court. Tried before Judge Hardeman, November Term, 1854. The following is the bill of exceptions: Plaintiff introduced as evidence the will of Thomas Rainey,, dated 17th September, 1828, and admitted to probate 6th January, 1829, and regularly executed, so as to pass real estate.

Trespass, in Bibb Superior Court. Tried before Judge Hardeman, November Term, 1854. This was a proceeding in the County of Bibb, against the Central Rail Road & Bk’g. Co., for killing two mules belonging to the plaintiff.

Debt, in Bibb Superior Court. Tried before Judge Poavers, November Term, 1854.

<p>[1.] One partner may acknowledge service of a writ, in the name of the partnership, if he does it in the presence of the other partner, and with his consent.</p> <p>[2.] The Constable’s return on a Justice’s Court warrant, may be amended after judgment.</p> <p>[3.] The Act of 1852, enlarging Justice’s Court jurisdiction in the City of Macon, extends the enlargedjurisdictiontothecaseof joint promisors, some of whom reside in Macon and some in districts outside of Macon.</p>

In Equity, in Heard Superior Court. Tried before Judge O. Warner, November Term, 1854.

Assault and battery, in Heard Superior Court. Tried before Judge O. Warner, November Term, 1854. Nicholas Tompkins was placed upon his trial for an assault and battery upon one William F. Crockett. It appeared that Tompkins and some others left Franklin one afternoon about dusk, and near the bridge, on Tompkins’ road to his home, a wagon overtook him with Crockett — Phillips and McDaniel in it.

<p>[1.] The verdict must comprehend the whole issue or issues submitted tei the Jury.</p> <p>[2.] Every reasonable construction is to be adopted in favor of the verdict,</p> <p>[3.] Where the Jury express their meaning in an informal manner ; yet, if the point in issue can be concluded from the finding of the Jury, the Court will work the verdict into form and make it serve.</p> <p>[4.] Informal verdicts may be amended, but the Court has no power to supply substantial omissions.</p> <p>[5.] In an action of ejectment, under Jones' Forms, the verdict ought to find-the issue either for or against all the plaintiffs.</p>

<p>Caveat, from Twiggs Superior Court. Tried, before Judge Powers, March Term, 1854.</p> <p>This was a caveat to the last will and testament of William Hunter, Sr., filed by the defendants in error, on the following grounds:</p> <p>1st. That the testator, William Hunter, at the time he made and published said will, was not of testable capacity, but was of weak and unsound mind.</p> <p>2nd. That the said testator, at'the time he made and published his said last will and testament, was laboring under a mental delusion in regard to the slaves or negroes bequeathed by him in said will; that he fancied, and delusively believed, that their being separated and scattered after his death, might be prevented by bequeathing them all to one person; and that under such mental delusion, he made and published his last will and testament.</p> <p>3d. That the said testator was unduly and improperly influenced to make the said last will and testament, by the said Charles Walker, one of the executors thereof, and in favor of whose son, or sons, not being of the blood or akin to the said testator, an estate in remainder of all the negroes and their increase was bequeathed.</p> <p>4th. That the said Charles Walker, the executor of the said last will and testament of the said Wm. Hunter, deceased, procured the said William Hunter by his fraud, covin, and by his wicked and fraudulent contrivances and machinations to make the said will and testament, and that the same is void — r-</p> <p>For that the said Charles Walker, executor, as aforesaid, induced the said William Hunter to leave his residence in the County of Twiggs, and go (to) the residence of himself, or that of one of his brothers, in the County of Pulaski, where the said will was executed.</p> <p>That the said will is headed, “Georgia, Twiggs County,” where the residence of the said William Hunter was, and executed in the County of Pulaski, where the said Charles Walker resided.</p> <p>That two of the witnesses to the last will and testament were the brothers of the said Charles Walker, one of the executors thereof, and uncles of one of the legatees in remainder, and the other an employee or workman employed at the time) by the said Charles, or one of his brothers.</p> <p>That, the said Charles Walker, executor aforesaid, procured the draft of said will to be made by an Attorney at Law — but by what Attorney at Law is unknown to this caveator — and to be copied off by some other person — but by whom is unknown to this caveator.</p> <p>That said last will and testament was not drawn by the instructions of the said testator, but by the instructions of the said Charles Walker.</p> <p>That by the said will, an estate in remainder, of all the negroes of the said William Hunter, deceased, was bequeathed to one of the sons of the said Charles Walker, and in the event of his death before the death of Charles Hunter, the person to whom a life estate in the same negroes was bequeathed, then the said negroes were bequeathed to David Walker, another son of the said Charles Walker, executor.</p> <p>That the said Charles Walker, nor his son or sons, are or were of blood kin to the said testator.</p> <p>That the said William left several brothers and sisters, nieces and nephews, his heirs at law, having departed this life without leaving a widow or child, or descendant of child; that all were excluded from the provisions of the will, except Charles Hunter, although they were friendly and on good terms with the said testator; that to the said Charles Hunter the said William Hunter bequeathed and devised the whole of his estate, real and personal, except his negroes, and a life estate in them.</p> <p>That the said Charles Hunter was a man of weak mind, easily controlled and much under the influence of the said Charles Walker, the executor as aforesaid, and actually, in a few months after the death of the said William Hunter, deceased, executed to the said Charles Walker, the said executor, a deed of gift of all his lands, acquired under and by virtue of said will: and also of all the stock and their increase, and his plantation tools— all of great value, to-wit: of the value of twenty thousand dollars, or other large sum; and subsequently executed a will, by which, in a state of great mental weakness and unsoundness, and while of intestable capacity, as this caveator believes and alleges, ,he bequeathed to the said Charles .Walker, all his money and debts not previously conveyed to him in the deed of gift: that he made no return of an inventory' or appraisement of the estate of the said William Hunter: that he alone as executor of said William Hunter, at first qualified as executor and took out letters testamentary.</p> <p>The following is the bill of exceptions, which will show the facts of the case :</p> <p>Georgia — Twiggs County:</p> <p>Re it remembered, that at the March Term, 1854, of Twiggs Superior Court, the above stated cause came on to be tried, on appeal, before the Hon. A. P. Powers, Judge, and a special Jury, when Counsel for propounder moved to strike out the-second ground of caveat and so much of the fourth as brought in question the capacity of Charles Hunter, which motion was over-ruled by the Court, and propounder excepted.</p> <p>EVIDENCE.</p> <p>David Walker was sworn, and testified that the paper handed him was the will of William Hunter. He, the witness, subscribed it as a witness the day it bears date, 16th Nov. 1889. Thomas D. Walker and Richard W. Lee subscribed the will at the same time as witnesses with him, the witness, and that this is the paper they witnessed. Thomas D. Walker is dead, and has been for eight or ten years. Does not know where Lee is. He is not in Georgia within witness’ knowledge. He has inquired for him and cannot hear of him, and does not know where he is, nor which way he wont. Has been gone six or seven years. He, witness, saw testator, William Hunter, sign the will in presence of the witnesses, and the witnesses signed it in the presence of the testator, Hunter, and of each other. Witness signed it at the request of William Hunter; signed the paper as his will, in the presence of the witnesses, and they all signed in presence of each other. William Hunter came to witness’ house at front gate and asked him to go with him to Charles Walker’s, and he went with him; and on the the way to Charles Walker’s, Hunter told-witness he was going down to make his will, and wanted h*m to witness it. Witness, David Walker, lives not over a half a mile from Charles Walker's, and between William Hunter’s and diaries Walker’s. Wm. Hunter lived about six miles above witness. The paper, the-will shown witness, is the paper Hunter asked witness to sign. He saw Thomas D. Walker and Richard W. Lee sign it. Their signatures are genuine. As far as witness knew, William Hunter was of sound mind. lie thought him, at the time, capable of transacting business. Had been acquainted with him fifteen or twenty years. When witness first became acquainted with him he lived about ten miles from him. After-wards moved to within six miles. Had had a good deal of intimacy with him. William Hunter came to witness’ house on the day testified about, on horseback. He discovered no difference in his mind on that day (the day the will was executed) from what it was before. Appeared to be in good health, and was not sick. Hunter had a good deal of property, lands, negroes, horses and mules. He had a good many negroes, and managed all his own business. He lived several years after the date of the will, and is said to have died in his seventy-fourth year. William Hunter, after he got to Charles Walker’s, observed to witness, “ I want you all to sign it,” (the will.) No one was with Hunter when he called at witness’ house. He wanted witness to go with him and he went. He did not then say what he wanted. Thomas D. Walker lived about three quarters of a mile from Charles Walker’s. Lee was there when witness and Hunter got there. Thomas D. Walker got there about the time witness got there. He lived below Charles Walker’s. Ur. Taylor was there when witness got there. It was not half an hour after witness got there before the will was signed. The first he saw of the will Mr. Hunter had it in his hand, and he laid it on the table. No one had time to write the will after witness got there. Witness does not suppose the will is in the testator’s hand-writing. Testator did not tell witness, as he went to Charles Walker’s, whether he had the will written or not, nor did he show the will to witness. Charles. Walker, Thomas D. Walker and witness, are brothers. William Hunter lived from three fourths to a iqile from Taryersville, a public place. William Hunter invited witness from the parlor into the room where the will was executed. Charles Walker was in the room. He does not recollect that Hunter had been sick, and staying at Charles Walker’s before the will was made. There was a report that testator once attempted to hang himself. It was, he thinks, some time before the date of the will; but never heard they had to set up with him and watch him to prevent his hanging * himself. Nor does he recollect that testator had, about that time, been at Charles Walker’s. Cannot say that Charles Walker had attended to business for testator. Charles Walker might have shipped his cotton. The testator did not have much company about his house, but was frequently at Tarversville. He lived secluded and had but little to do with the world. Witness did not know testator before he had much property. Charles Walker visited testator in company and alone. Does not know how often. He and his family visited Hunter as relatives usually do. Testator was a good farmer, and as far as witness knows, a man of strong mind, and very determined. Witness does not know how long after the date of the will it was that Lee left. Lee usually made Thomas D. •Walker’s his home while he was in the neighborhood. The The will was not read in witness’ presence. The testator took it when signed, and witness next saw it in the Ordinary. Witness does not know who produced the will before the Court of Ordinary, but supposes Charles Walker, the executor, when first produced for probate; .nor does he know where it came from. He believes testator had mind enough to remember the names of his negroes. He heard it spoken of how the property was given, but never heard the will read to this day (the day of testifying). Charles Walker’s oldest son is seventeen or eighteen years old, now. Witness don’t remember how many children Charles Walker had at that time, but thinks three or four. At the time the will was made, Charles Hunter had no property except a horse and some money. Charles Hunter lived with William Hunter, (his brother,) and after his death he lived a short time at William Hunter’s .plantation, and then went to Charles Walker’s, and died there. The mother of William Hunter lived and died at Thomas Hunter’s (her son,) as Thomas Hunter told witness. After Charles Hunter got to Charles Walker’s, he, Walker, had a room built for him. Charles Hunter rather opposed the building the room.</p> <p>To all this testimony touching Charles Hunter and his property, and the sayings of Thomas Hunter, the Counsel of propounder objected, but their objections were over-ruled and they ■excepted.</p> <p>The witness further testified — William Hunter was a widower. Charles Walker’s first wife was the grand-daughter of William Hunter’s dead wife. William Jemerson Walker is dead, and if alive would now be twenty or twenty-one years ■old. David Walker is the son of Charles Walker’s first wife, and who was a Jemerson. Witness does not know from whom William Hunter derived his property. He does not know "when Mrs. Hunter died. Charles Walker is now in possession of the lands devised by William Hunter to Charles Hunter.</p> <p>This was objected to by Counsel for propounder, but admitted by the Court, and they excepted.</p> <p>The will of William Hunter was then read Jin evidence, and' which is, by copy, as follows:</p> <p>Georgia, Twiggs County:</p> <p>Exercising the privilege which is conferred upon me by the laws of my country, of disposing of my property whilst in life, by a will to take effect upon my death, 1 do hereby declare this instrument as my last will and testament, as follows :</p> <p>Pirst. I desire that my just debts shall be paid.</p> <p>Second. I give and bequeath unto my brother, Charles Hunter, for the natural love and affection I cherish for him, all my lands, money and stock of horses, cattle, hogs, and all other chattels, personal, whatsoever, subject to the exception hereinafter mentioned, and the remainder or limitation thereof.</p> <p>Third. My negroes and their increase I give and bequeath to my brother Charles, during his natural life, or a life-time estate therein; and upon the death of my said brother, I then give and bequeath my negroes and their increase, absolutely, unto William Jemerson, first son of my friend Charles Walker of Pulaski County, for the friendship and good will I bear to said Charles and his son, William Jemerson. And should William Jemerson die before my brother, Charles Hunter, I then give and bequeath my negroes and their increase unto David, the second son of my friend, Charles Walker, absolutely.</p> <p>Lastly. I appoint my brother, Charles Hunter, and my friend, Charles Walter, my executors, with ample authority and discretion to carry out the intention of my will.</p> <p>Signed and sealed by the testator in our presence, and in the presence of each other, at the request of the testator, this the sixteenth of November, in the year of our Lord, One Thousand. Eight Hundred and Thirty-nine.</p> <p>WILLIAM HUNTER, [l. s.]</p> <p>Test—</p> <p>■David Walker,</p> <p>Thomas D. Walker,</p> <p>Richard W. Lee.</p> <p>The propounder having closed, the caveator offered in evidence what purported to be a will of Charles Hunter, after proving by Lewis .Solomon that it was the original, from his office of Ordinary, and was proven in common form by Charles Walker, the executor, who took out letters testamentary.</p> <p>Georgia, Twiggs County :</p> <p>In the name of God, Amen. I, Cha State and County, being of advanced age shortly depart from this world, deem it ri should make a disposition of the proper Providence has blessed me — I therefore and testament.</p> <p>1st. I desire and direct that my body be buríed^ST a decent and Christianlike manner, by the side of my brother, William. Hunter.</p> <p>2d. I desire all my just debts be paid by my executor without delay.</p> <p>3d. I give and devise to my much esteemed friend, Charles Walker, Sr. of Pulaski County, all money that I may have at my death, either in notes or bank checks, or whatever I may die possessed of, that I have not heretofore deeded away.</p> <p>4th. I constitute and appoint my worthy friend, Charles Walker, Sr. of Pulaski County, executor of this my last will and testament, this April 29th, 1851.</p> <p>CHARLES HUNTER, [l. s.]</p> <p>Signed, sealed, delivered and published by Charles Hunter as his last will and testament, in the presence of us, the subscribers, who subscribed our names hereto in the presence of said testator and of each other, this 29th April, 1851.</p> <p>Charles E. Taylor,</p> <p>William Martin Eraser,</p> <p>Seth S. Mellon.</p> <p>Which will was objected to as incompetent and irrelevant evidence, by Counsel for propounder of Wm. Hunter’s will, and objection over-ruled, and they excepted.</p> <p>The caveators then offered in evidence a deed from Charles Hunter to Charles Walker, which propounder’s Counsel objected to as incompetent and irrelevant, but objection over-ruled, and they excepted, and the deed was read as follows:</p> <p>Georgia, Twiggs County :</p> <p>This Indenture witnesseth, that for and in consideration of the friendship and kind feeling which I bear for Charles Walker, of the County of Pulaski, and for the valuable consideration of the sum of one hundred dollars, in hand paid me, the receipt whereof is hereby acknowledged, I, Charles Hunter, of the State and county aforesaid, do bargain, sell, and convey unto said Walker, all that body or parcel of land amounting to twelve hundred acres, more or less, on which I now reside, adjoining Tarver’s, Shine and others, and to his heirs, to have and to hold the same to their own proper use, benefit and be-hoof, forever. As also, I bargain, sell and convey unto Charles Walker, all my stock of every description, of horses, mules, cattle, hogs, &c. as also all plows, gear, tools, and every other article or thing belonging to the plantation, necessary to the proper cultivation or repair or keeping up of the same. This deed of conveyance to be .subject to this condition : that the said Charles Hunter is to continue in the unrestricted use, control and enjoyment of all the property herein conveyed, for and during his natural life, without rent ■or accountability for such use. And should any of the personal property or chattels now and hereby conveyed, be exchanged for other property, that so exchanged for is to be treated and held as propeity now conveyed; and the increase of the •stock of every kind, as also of other chattels, however caused, is to be treated and considered as a part- of this conveyance, ■and secured to the said Charles Walker thereby.</p> <p>In testimony whereof, I have hereto set my hand and seal, ■this 27th October, 1847.</p> <p>CHARLES HUNTER, [l. s.]</p> <p>In presence of</p> <p>Daniel II. Coombs,</p> <p>Iverson L. Harris,</p> <p>Isqual Rainey, J. P.</p> <p>Caveators then offered the depositions of Samuel Jemerson, to which Counsel for propounder objected as incompetent, sa far as they related to the saying of Mrs. Hunter, and touching the report of a former will, and an agreement, verbal, between Hunter and his wife. Objection over-ruled, and Counsel excepted.</p> <p>Samuel Jemerson: Witness knew William Hunter, of Twiggs County, Georgia. He married his mother, then Mrs. the widow Jemerson; but he knows nothing of any agreement between said Hunter and his said wife, prior to their marriage, respecting their property, or the division of the same. He once had a conversation with his mother, then the wife of Hunter, in which she informed him that her husband had made a will, and had given one half of his property to his people and the other half to her people. That some seven or eight years after the death of his mother, he communicated to Wm. Hunter what his mother had told him, and asked him if he had made such a will; and he answered that he had, but that since the death of his wife he'had burnt it. Said will was written, as well as he now recollects, by Wm. Dowsing of Lincoln County. In the conversation’ with W. Hunter, above referred to, he asked him what objection he had to carrying out the agreement or understanding between him and witness’ mother in relation to the disposition of their property as aforesaid; and said Huntei then replied, that it was terrifying to him to have his negroes scattered all over the world. Witness then asked him how he could prevent that after his death; and ' Hunter told him he thought he had fixed that; that he had given the negroes to Charles Walker’s child, and that by the time that child would die, the negroes would die with old age. He once had a conversation with Charles Walker, and immediately after with William Hunter above stated, in regard to said Hunter, several years before having been deranged in his mind, and said Walker told witness that at the time said Hunter was so deranged in mind, he, Walker, went to Hunter’s house and persuaded him to go home, with him, which Hunter did; and " that in about three days he cured him (Hunter). Witness then asked Walker how he did it; and Walker laughed and said he did it by talking to him. Walker further stated to witness, that while Hunter was so deranged in mind, Charles Hunter, brother of William Hunter, sat up and watched him (Wm. Hunter) three days and nights, to keep him from hanging himself. This conversation, above detailed, with William Hunter and Charles Walker, occurred in October or November, 1839. He is not interested in the case. William Hunter was married to his mother in the month of August, 1802, but does not know when the will was made, about which he and_Hunter had the conversation before stated. He has stated all the conversation between him and William Hunter about fixing his property, and that conversation occurred in October or November, 1839, at the house of William Hunter, in Twiggs County, Georgia. No person was present except Hunter and witness, and the reason he gave for fixing his property so was, that it was terrifying to him to have his negroes scattered all over the world. Witness does not know that the will in dispute is the same that was alluded to. In the conversation which he had with William Hunter, he endeavored to get him to carry out the agreement .between him and witness’ mother, as he understood it, and that he did that by the request of his mother. - Mrs. Hunter was the widow of Jemerso.n before marriage. Charles Walker’s first wife was her grand-daughter, and was Margaret Jemerson before she married Walker. She is now dead: but when she died he cannot state. He tried to get Charles Walker to influence William Hunter to carry out the agreement which witness’ mother had informed him was existing between her and her husband; but he refused to do it. He once wrote to Stark Hunter that William Hunter, his brother, was dead; that it was understood that he had given his negro property to Charles Walker’s oldest son ; and that if he was in his place he would commence suit for it. He wrote to said Hunter on the 4th February, 1847; he cannot state when nor where the verbal agreement between William Hunter and his mother was made, and of which he has spoken. He last saw Hunter at his own house, in Twiggs County, Georgia, in October or November, 1839. Said Hunter was then, judging from his conversation, a man of ordinary capacity, and capable of attending to his business as men generally do. William Hunter, when he married his mother, had no proberty except an old white horse. He did not know that Hunter was going to marry until the day before it took plaee. There is no private agreement between him and the heirs of William Hunter, or their Attorneys in relation to this suit. He never wrote but two or three letters upon the subject, and they were to Stark Hunter, .and perhaps one other letter to Seth Hunter. Sworn to and executed in Alabama.</p> <p>The depositions of Humphrey Jefferson wrere offered and objected to as the sayings of Charles Walkei-, long before he was executor, and also, witness’ understanding. Objection overruled and deposition read, and Counsel for propounder excepted.</p> <p>Humphrey Jefferson: Witness knew William Hunter prior to his death, as far back as he can remember. He heard Walker say something tending to show his opinion of the influence one might acquire over the said Hunter. The last time he saw William Hunter was at his, Hunter’s house, but does not recollect tíie time. Hunter’s wife was witness’ grandmother, and he has always understood he got his property by her. Witness had a conversation with Charles Walker some three or four years before he (witness) removed from Georgia, and during the year witness lived with Hunter; but does not-recollect the year nor place, nor whether any one was present or not. This gave rise to the conversation. Witness had determined to leave William Hunter, with whom he was living. He met Charles Walker, who accosted him thus: “I suppose you.are going to quit old Billy?” — when witness replied in the affirmative. Walker said he was a fool — that he ought to Stay with said Hunter and nurse him — that he could influence him to give him, witness, all his property. This is the substance of the conversation alluded to. He does not know what kind of influence. Witness does not know the state of Hunter’s mind when he made his will. This is all he knows.</p> <p>Sworn to and executed in Alabama.</p> <p>The depositions of Artimetia Wheat were offered and objected to as hearsay from Mrs. Hunter and others, and about another will not in controversy, and because some of the cross questions were not answered, but reference was made to her answers to direct interrogatories for answers to the cross. Objection over-ruled, and Counsel for propounder excepted.</p> <p>She knew William Hunter, and I knew of his making a will, written by William Dowsing, Sr. in which he willed his property to his wife during her life-time; and at her death, the property was to be divided — one half to go to her children and the other half to his relatives. This will was made in Lincoln County, Georgia. Does not know what has become of it. It was left in the hands of William Dowsing, Esq. t Witness’ mother made an effort, through Mr. Wheat, her son-in-law, soon after the death of Dowsing, to get possession of said will; but was informed, said will could not be found amongst Esquire Dowsing’s papers. She never heard Charles Walker say anything about William Hunter’s will. Witness knows, that on a visit to William Hunter’s, soon after the death of her mother, (Mrs. Hunter) the paid Hunter appeared to have lost'his mind to a considerable extent. She visited Twiggs County again in 1841, some ten years after the death of her mother, and called on the said William Hunter — that his mind appeared much impaired — so much so that he was incapable of doing business correctly; and that he was all the time more or less intoxicated. She was present when William Hunter made a will (the Dowsing will) — that said will was made between the years 1805 and 1808, in Lincoln County, Ga. and was witnessed and sealed, but does not recollect who witnessed it. Dowsing, Wm. Hunter’s mother and witness were present. William Hunter willed one-half his property, after his wife’s death, to her children, and the other half to his relatives. The will in dispute is not that will; witness’ mother made an effort, through witness’ husband, to get that will. Witness visited William Hunter again in 1841, in the fall, but understood, before she went, she had no chance to get any of his property. Witness is daughter of William Hunter’s wife; and from her mother and the Family Bible, she learns she was born on the 29th day of April, 1791. Since Charles Walker’s refusal to use his influence in carrying out William Hunter’s first will, she does not esteem him so highly as before; and the death of his first wife has not changed her feelings towards him. She knows that William Hunter’s mind was as good when he made his first will, as it has been since her acquaintance with him.</p> <p>Sworn to and executed in Alabama.</p> <p>The depositions of Artemetia J. Lyle were offered and objected to because it was hearsay, and because it was the sayings of Charles Walker, long before he was executor, and she answers the crosses by reference fo her direct answers. Objections over-ruled, and Counsel excepted.</p> <p>She knew William Hunter of Twiggs County; was informed he married Mrs. Margaret Jernerson. She heard remarks made by Charles; Walker to Moses Wheat, in relation to Mr. William Hunter and the disposition of his property. Mr. Walker remarked to Mr. Wheat, he would do wrong to move from Twiggs County; that Moses Wheat ought to stay by William tlunter and nurse'him well, and secure his property; that it was a fortune ready made, and that it was in his power to secure it, and he ought to do it. To which Mr. Wheat replied: “Charles Walker, that is not my way of doing business.” Charles Walker then remarked that he, Wheat, was interested in the disposition of the property, and had more influence over him than any one else, and when he moved away somebody would get it, and that he, Mr. Walker, has as much right to it as any one else, apart from the legal heirs, and he would, after the removal of Mr. Wheat, nurse the old man .and get it if he could. Mr. Wheat then asked Walker if he would have .property got in that way. To which Walker replied, I had as well have it as any one else, and my motto is, to keep all I have got and get all that I can.- She believes Mr. Walker’s motives for using these remarks to Mr Wheat was to convince him it was his duty, having the power, as he, Walker, believed, to influence Mr. Hunter to make as near an equal distribution of the property as he, Mr. Wheat, thought to be just, and thereby secure the property to the legal heirs. She does not believe that Mr. Walker once thought that Mr. Wheat would or ought to secure it to himself individually. But after he saw that the children of Mrs. Hunter, and the heirs of Mr. Hunter, neglected their interest, he then believed he had as good a right to secure the property to himself as any one else. She knows nothing of any previous will. She is not related to-William Hunter. Mrs. Hunter ivas her grand-mother. Moses Wheat married the daughter of Mrs. Hunter, and witness is the daughter of Moses Wheat. The conversation (between Moses Wheat and Walker) occurred in the year 1827, at and; in the house of William Hunter. Mrs. Hunter, Mrs. Wheat and Mrs. Walker were in the house at the time, but witness does not remember that either of them were in the room at the time the conversation occurred. The remarks were made, she presumes, by Mr. Walker, from the knowledge of Mr. Wheat’s jhaving sold his possessions in Twiggs, with the intention of leaving the county. She resides in Chambers County, Alabama.</p> <p>Sworn to and executed in Alabama.</p> <p>James Ware testified he was acquainted with testator from ' 1805 to his death. He heard Charles Walker say William Hunter attempted to hang himself. A report had gone out of Mr. Hunter’s derangement. Charles Walker said Mr. Hunter had got in a deranged way, and he carried his carriage and took him home with him. Testator never was a man of strong =mind. Witness saw him at Richland meeting-house in May, 1839. He was standing off to himself, leaning against a tree, and appeared sad, serious and melancholy. He thought testator at that time of weak mind. He and witness were family connections. He had but little to do with but few persons who had influence over him. Two or three persons were as many as had influence over him at a time. When Hunter first came to Twiggs County, William Jemerson and Moses Wheat had more influence over him than any one else. They had much influence over him. After they removed from Twiggs the most influential friends of the testator were H.. H. Tarver and Charles Walker. Testator seemed to have great confidence in Chas. Walker. It might have been prejudice in witness, but it appeared to him that Hunter’s mind was in about the same situation up to the time of his death. The reason which led witness to this conclusion was from a conversation held with Hunter. He called to borrow money — $400—of him. He said he would not let him have less than a thousand dollars; witness was sent for the day the testator died, to go to his house. When he got there Charles Walker, Mrs. Walker and Charles Hunter were there. Mr. Hunter’s papers were examined that night: he found no will; witness had a conversation with Charles Hunter in Charles Walker’s presence. Charles Hunter was in a bad condition; he was almost deaf. Witness endeavored to get Charles Hunter to will part of his property to his poor kin. Charles Walker spoke and said, “You might as well sing psalms to a dead horse — he is in no fix to do anything.” Witness never saw him afterwards in any better condition ; witness was in Marion the 'day William Hunter’s will was proved. Charles Walker qualified as executor, and witness asked liim if Charles Hunter was not going to qualify too; he replied, you know as well as I do, Charles Hunter is not qualified to do any kind of business. It was stated, in Walker’s presence, that the number of Hunter’s negroes was fifty; the negroes were very likely, and would average from between four and five hundred dollars a-piece; witness and the other persons named examined the notes and money, which, together, amounted to between thirty-two and thirty-three thousand dollars. The cotton crop of the previous year, amounting to seventy or eighty bags, was then at the gin-house. The plantation was valuable, and then worth eight or ten thousand dollars; witness has seen Charles Walker at William Hunter’s a few times; he has heard William Hunter and his wife speak of Charles Walker’s being there frequently; witness never knew of William Hunter ever before having made a will other than the one in controversy; witness testified before the Ordinary that it was in May, 1838, he saw Hunter at Richland; he has since ascertained he was mistaken — that it was May, 1839, by referring to the minutes of the Association; witness, at one time, borrowed of William Hunter one thousand dollars, but this was not the time he applied for the four hundred. He remembers Tarver’s note for a large amount was among the papers of Hunter; witness never tried to get Charles Hunter to be qualified; he advised the Court that Charles Hunter could be qualified at any fixture Court; his feelings were hurt with Charles Walker on account of his suing him on the note given for borrowed money-; he had a conversation with William Hunter about the will, in which he remonstrated against the will, and might have so stated, on oath, on the former trial, but he does not now distinctly remember. Hunter then gave, as a reason that he made his will thus, because he could not bear to separate the negroes, as they all came from one family, an$ he wished them kept together. William Hunter died in 1847. Charles Walker’s first wife was the grand-daughter of William Hunter’s wife. William Jemerson Walker and David Walker are blood relatives of William Hunter’s wife. Hunter died about the first of January, 1847. Witness heard from family connexion that the property came by Mrs. Hunter, his wife, and understood some time before his death that Hunter had given remainder in the negroes to Charles Walker’s son</p> <p>Counsel for propounder objected to all Ware’s testimony, which related to Charles Hunter and his affairs. Their objections were over-ruled and they excepted.</p> <p>Iverson L. Harris, Esq.: Testified he never saw Wm. Hunter but once; he received a communication containing a request to prepare a will for Wm. Hunter. At this distance of time, cannot say whether it was from William Hunter or Chas. Walker. It was one or the other; he never had any business transactions with William Hunter; he drew the will pursuant to instructions, and enclosed it in a letter to Tarversville ; he don’t remembor to whom. There was one item in the will he drew, giving a small piece of land to Gen. Tarver. Afterwards, Tarver spoke to him about the will; when he saw Walker, he asked him if the will he had drawn and sent for William Hunter had been executed, and Walker informed him ■that it had; witness believes the preamble to the will propounded is in the language of the one he drew; it has the earmarks ; he cannot say Charles Walker did not send him the instructions. The letter inclosing the instructions was not in a similar hand to the signature of William Hunter to the will. The signature of the will appears like that of a paralytic man; was witness to the deed between Charles Hunter and Charles Walker, and explained to Hunter the difference between a deed and a will.</p> <p>Objected to sayings about Charles Hunter, and his deed. Over-ruled and excepted.</p> <p>Seth Mellon testified: He was applied to to write Charles Hunter’s will. Charles Walker handed him a Form Book and instructions for the will, in his, Walker’s hand-writing; never had any conversation at all with Charles Hunter, about writing his will. Charles Walker does not now live in Georgia; removed in December, 1852. Charles Hunter died in September, 1851. His will was written April before. Mem•orandum for will was furnished by Charles Walker, who requested the witness to write it in a plain, readable hand, so that Mr. Hunter could read it. Charles Hunter was staying at Charles Walker’s at the time; Hunter read the will before he signed it. Walker got the witness to write it because he wrote a good hand; he was teaching school, and boarded at Walker’s at the time; can’t say the will was executed the same day he wrote it, but thinks it was not. Charles Hunter seemed to be reading the will; did not read it aloud; he expressed himself well satisfied with it. Charles E. Taylor, Dr. Eraser, Judge Hansell, and Hunter and Charles Walker went to Macon the next day; Hunter was in his usual health, except having a cancer. Charles Walker’s family was exceedingly kind in taking care of and nursing Charles Huntei'. ■Charles Hunter had been staying at Charles Walker’s since the first of January, 1851. When Hunter signed the will, he •said that was his wish and had long been. Witness never saw any efforts on the part of Walker, to induce Hunter to make a will; does not think he testified before the Ordinary, that Charles Hunter attempted to read the will; he did not read it aloud; did not know that Charles Hunter was dim of sight; he was deaf or hard of hearing; witness testified before the Ordinary, and now repeats, that in reading the will, Hunter could not make out one word, and called on witness to explain it, which he did. The word was about the middle of the page, but he could not, at that time, designate the word. Walker had a room built for Hunter. Charles Hunter was deaf.</p> <p>Counsel for propounder objected to the whole of Mr. Mellon’s testimony, as incompetent and irrelevant. Objection over-ruled, and they excepted.</p> <p>Lewis Solomon, re-called: Swore that Signal Rainey was dead; that he testified before the Ordinary, that he was not qualified to judge of the legal capacity of William Hunter to make a will, but supposed he was capable; he was a man of ordinary grade of mind; he had contracted with witness to build him a house, and gave him a plan and paid him for it. This was, as well as he could remember, in 1839.</p> <p>Rev. Henry Bunn: Testified he had known "William Hunter a long time — twenty or twenty-five years. Their plantations, joined, and they were in the habit of éxchanging neighborly civilities. Hunter transacted his ordinary business very well; he lived very much in solitude, and appeared not to have as much mind as he really had; he had but few confidential friends, and in those few he' had the most implicit confidence; when he once had confidence it was very strong : witness ne-' ver doubted that Wm. Hunter had mind enough to arrange his will just as he wanted it; he never doubted that Mr. Hunter had mind a plenty in 1839 and 1840, to make a proper disposition of his property; he did not know so much about him in 1840; his mind was of an ordinary cast; he once seemed to have wavered in his mind; he once talked of hanging himself; thinks it was some time prior to 1839 — and witness believes, about the time his wife died; witness wanted to get some money of Mr. Hunter, but he did not seem as willing to let him have it as he expected; and afterwards, when witness told him he did not want it, Hunter seemed disappointed, and wanted him to take it that year and the next; he was not what is called a sharp man, but in buying goods he bought with care and bought low down.; he was a slow man, and slow to take up improvements; ho was easily excited; a dry spell would excite him much; his mind once wavered; witness saw him about that time at General Tarver’s. William Hunter’.s mind was between the two extremes of an idiot and a strong mind; as there are many grades of mind, it is hard to say what grade he had; he was always excited at a dry spell; he never would sell corn, rvhen he had abundance, till a new crop was made ; he had but few friends, and these had influence over him. William Jemerson and Moses Wheat had influence with him' till they moved away, and then General Tarver had influence with him; he had confidence in Charles Walker, and thinks he had influence over him; witness had less acquaintance with William Hunter, for the seven years preceding the first of January, 1847, than before that time.</p> <p>Theophilus D. Booth : Testified he knew William Hunter,. but was not .particularly intimate with him. Has known him-since witness was twelve years old, but never at his house but twice. Witness first knew Hunter when he was a school boy, boarding at William Jemerson’s. After witness grew up, he and Hunter met frequently at Tarversville. The last time he saw him was in 1840 or 1845. Witness was riding by Hunter’s field, where his hands were plowing near the fence. William Hunter was sitting on the fence. Witness said to him, you ought to have an overseer. Testator replied, I’ll be rot if I can get a man that will do ; witness replied, you have got no body to give your property to, but uncle Charley — alluding to his brother, Charles Hunter. He said, I have got somebody. I have made a will and given my negroes to Jemerson Walker. You have ? said I; he replied, yes. Witness then said, what ■ the hell and damnation did you do. that for ? You had better have given them to me or some poor person. Testator replied that Jemerson Walker was the son of his wife’s favorite grandchild, and he did not want his negroes divided — he had never bought a negro, and he never wanted them divided — that Charles Walker’s wife was the favorite grand-child of his, testator’s wife, and all the negroes came from the Jemersons. Witness told Hunter he thought he once had a young man that suited him well; he replied, he thought so too; but that Humphrey had got so that he wanted him to do his way and he had to leave. Witness knew Mrs. Walker; he went to school with her. William Hunter said, on that day, that he loved Charles Walker’s first wife more than any of the family of Jemersons. Witness resides in Pulaski County ; did not see William Hunter very frequently. He lives about fifteen miles from Tarversville, but business called him there.</p> <p>Thomas Glover: Testified he knew William Hunter, but not intimately. He thinks he had intellect enough to transact ordinary business. He did attend to and superintend his own plantation; witness has seen testator in the town of Marion, buying negro shoes; he had mind enough to make a will. Some two or three years before he died, testator told witness, going home from Marion, that he had more good will for Charles Walker’s first wife than every body else, and that on that account he had given his negroes to her son; and for the additional reason, that he did not want the negroes to be scattered ; witness never was at William Hunter’s house; he does not think Hunter was a man of strong mind; he has seen men of weaker and stronger mind ; he does not know of testator’s having any particular partiality; he said he could not bear the idea of having his negroes scattered; he had great friendship for Charles Walker.</p> <p>Here the testimony closed on both sides, and Counsel for the propounder of the will asked the Court to give in charge to the Jury the following instructions, as the law of the case, and which are hereto appended, and numbered from 1 to 16.</p> <p>But the Court refused to give in charge all the requests as made, but proceeded to charge the Jury as follows, and is. hereto appended:</p> <p>The Counsel for executor requested the Court to charge the.-. Jury—</p> <p>1st. That the execution of the will is sufficiently proved by an attesting witness, who swears that he saw the two other witnesses sign and subscribe the will produced, in his presence, and signed, and subscribed in the presence of the testator, and by his request, and in presence of each other, and that one of those subscribing witnesses is dead, and the other gone off out the State, and that after inquiry, he has not been heard of.</p> <p>2d. That in the case of wills, where a .witness has-gone off from the neighborhood and abroad, and has never since been beard of, the signature and hand-writing of such subscribing witness may be proved by another attesting witness, as in case of a deed.</p> <p>3d. That the Counsel for caveator, on appeal, having permitted, without objection, after the testimony given by David Walker, an attesting witness, the will to be read to the Jury as the will of William Hunter, cannot be permitted now, and to. the Jury, to make the objection that the paper is not sufficiently proved, and as required by their citation.</p> <p>4th. That if, from the evidence, the Jury believe that Wm. Hunter had sufficient sense to transact the common business of life, he had capacity enough to make a will; and his being-capricious in the disposition of his property will not invalidate' his will.</p> <p>5th. That a lower degree of intellect is requisite to make a-will, than to make a contract.</p> <p>6th. That if Wm. Hunter had, at the time of making his will, mind enough to know that he was giving property to his-brother, Charles Hunter, and to Wm. Jemerson Walker, he had, in law, capacity enough to enable him to make a will.</p> <p>7th. That the law does not measure the extent of the understanding of a testator. That unless, under the testimony, it appears to the Jury that William Hunter was totally deprived of reason, he had mental capacity enough to make this will; and as he is the lawful disposer of his property, his will stands as a reason for his actions.</p> <p>8th. That a man’s capacity may be perfect to make a will and yet very inadequate to the management of other business; as for instance, to make a contract for the purchase or sale of property.</p> <p>9 th. That a lower degree of intellect is necessary to make a will than to make a contract — that a mere glimmering of reason is sufficient.</p> <p>10th. That it is not necessary, in order to establish a will, that the executor, or person claiming under the will, should prove that the will was read over to the testator, in the presence of the attesting or other witness.</p> <p>lltli. That the law presumes, in general, that the will was read by or to the testator.</p> <p>12th. That David Walker and Thomas D. Walker, the brothers of the executor of the will, and attesting witnesses to the will, are competent a.nd credible witnesses in law, and that by reason of their relationship to Charles Walker, the executor, no stain necessarily attaches to the testimony of such relations.</p> <p>13 th. That the opinion, of witnesses as to the capacity of a testator, or in reference to any undue influence over him, are entitled to little or no regard, unless they are supported by good reasons, founded on the facts which warrant them in the opinion of the Jury.</p> <p>14th. That fraud is never to be presumed. That when circumstances are relied on to establish its existence they should be so strong, when combined and examined, as to satisfy the Jury of the existence of the fact they are adduced to establish. That it will not do if they affect the judgment with nothing more than doubt and suspicion.</p> <p>15th. That unless the Jury are satisfied from the testimony in the case, that it has been proved that Wm. Hunter made the will in controversy through constraint or fear ; or under compulsion or threat; without freedom of person or mind; or made it through excessive importunity, extorting from him, the said Wm. Hunter, what he was unwilling to grant or give, and which he had not firmness of mind or ability to withhold; no such undue influence is established, or can be established, by other means or modes of proof to authorize any Court or Jury to set aside the will of said Wm. Hunter, on that ground.</p> <p>16th. That if the Jury believe from the testimony in the case, that Wm. Hunter had mind enough to make a will on the 16th November, 1839; that the will was formally executed by him and attested, as the law directs; that he had volition, design, purpose, intention to dispose of his property by the will as he has done, they are bound to find in favor of the will; and that no tribunal can pronounce against it because of its disapprobation, however strong, of the dispositions made by the testator of his property.</p> <p>The Court charged the Jury as follows:</p> <p>The cause you are called on to try is on the last will and testament of William Hunter, deceased. Charles Walker alleges that this paper is the will of William Hunter, and that he is the executor therein named; and asks that you, by your verdict, should so declare it, and admit it to record. The caveators deny, in fact and in law, that it is the will of deceased, It is a right which the law gives to every individual of sound and disposing mind and memory, unless under legal disability, to dispose of his property, by last will and testament, in such manner and to whom he pleases, if he contravenes no rule of law in such disposition. It is immaterial how repugnant his disposition may be to our ideas of propriety and to the claims of blood, if he acts without restraint, and freely and voluntarily wills, being competent so to do, his act shall stand — he has only exercised his rights under the law. If, however, he is incompetent to make a will, from mental imbecility, or should execute one, influenced by fraud, duress or force, it will not, in law, be allowed to stand, because such an instrument would not, in fact, be the will of the pretended testator; it is not the free and voluntary act of his mind, but the will of another: not that of the alleged testator.</p> <p>This paper was originally produced in the Court of Ordinary, and admitted to probate, in what is called common form, by Charles Walker, the person or one therein named as executor. This probate in common form is an ex parte proceeding, and is not conclusive; for in common form it is provable on the oath of the executor and one witness, without notice to the parties in interest. But after this, within a certain time limited by law, it is competent for the executor, himself, to proceed to its proof in solemn form, by an examination of witnesses before all those interested, to whom previous notice is to be given; or for any party in interest to call on the executor to bring in the will and prove it by an examination of the witnesses before all the parties, who have a right all to 'be present, to cross-examine the witnesses, and produce witnesses in opposition to the alleged will, all having any interest in the question, being previously notified of the proceedings.</p> <p>In this case, the heirs at law of William Hunter have heretofore called on Mr. Walker to prove this will in solemn form before the Ordinary of this county — he has proceeded so to do. And, on hearing the proof in the cause, his Honor, the Ordinary of Twiggs County, passed an order and judgment in favor of the validity of the will, and admitted the same to probate in solemn form; from which judgment of the Ordinary the heirs at law of William Hunter have appealed to this Court. That appeal brings the case before you for decision.</p> <p>The question to be settled by you now is, whether this paper offered by Mr. Walker, shall be established by your verdict as the last will and testament of William Hunter, deceased. This you are to determine, irrespective of any thing which has heretofore been done judicially in the premises; but you are to determine this issue on the evidence before you, applying thereto such rules of law as shall be given you in charge by the Court.</p> <p>The instructions prayed by the parties on either side are so full, and cover so fully all the points in the case, that I shall, in the charge, confine myself to these instructions — either to giving them as prayed for, refusing or qualifying them, as in my judgment may be right.</p> <p>And the first point made is, as to the manner in which the execution of this paper, itself, has been proven before you. Only one of the subscribing witnesses, to-wit: Mr. David Walker, has been produced on the stand. The heirs at law call on the Court to charge, that it is “ the duty of the executor called on to prove a will in solemn form, to produce the subscribing witnesses thereto, and prove the testable capacity and testamentary intentions of the testator.”</p> <p>Counsel for the propounder, Charles Walker, requests the Court to charge—</p> <p>That the execution of the will is sufficiently proved by an attesting witness, who swears that he saw the two other witnesses sign and subscribe the will produced, in his presence, and signed and subscribed in the presence of the testator, and by his request and in the presence of each other, and that one of the subscribing witnesses is dead, and the other gone off out of the State, and that, after inquiry, he has not been heard of.</p> <p>On the one side it is required that all the witnesses be produced, or proof of the execution fails. On the other, that one is sufficient; and on his testimony the Jury must set up the will. The heirs at law say but one witness has been produced and sworn before the Jury; there are three to the paper; the law requires all shall be produced and sworn; you must find against the will; the executor has failed even to prove its execution. The propounder says: You must decree in favor of the will, because one subscribing witness has sworn before you that he saw the others sign; they signed in the presence of the testator and each other, and at testator’s request; one is dead, the other gone, and, after inquiry, cannot be found.</p> <p>In my opinion, the law is not as contended for by either party, but that the true rule lies between them. The very object of proving a will in solemn form, is to have a thorough investigation, because the decision predicated thereon is to be final and conclusive, as to the character of the paper. It is therefore obviously the duty of the person setting it up, to produce all the evidence in his power or custody, which establishes its validity ; and his failure to do so would insure defeat. An executor proposing, therefore, to prove a will in solemn form, would be compelled to produce all the subscribing witnesses, if in his power to do so. But if it is impossible for him so to do, shall the will utterly fail and an intestacy be declared ? I think not. I am of the opinion that its execution may be proven on the testimony of one or more subscribing witnesses, and what, in law, is called the adminicular proofs. But the impossibility of producing the others must be clearly and fully made, to the satisfaction of the Jury. You are not necessarily bound to set up this paper as a will, on the testimony of David Walker alone, because you may not be satisfied with the proofs, in aid of his testimony offered by the executor. The death of Thomas Walker, and his hand-writing, and the hand-writing of Lee, you may think, might also have been proven by other persons, and this would have been in aid of the testimony of the one subscribing witness, Also, you may not be satisfied that the other witness, Lee, could not have been produced by the executor, after proper effort made. If ■ you should not be, then you would be at liberty to find against the execution of the instrument, in the opinion of the Court; and therefore, the Court declines to charge you as requested; and in the language as requested, of the Counsel for Charles Walker. But on the other hand, if you are fully satisfied, from the evidence before you, that Thomas Walker, one of the subscribing witnesses to this paper, is dead; that Lee, the other, is out of the jurisdiction of the Court, and that it is not in the power of Walker to have produced him, and that he has made all reasonable efforts so to do; furthermore, that it has been proven by other witnesses, that the deceased intended to make a will such as this, before it was made; and that afterwards, he had made such a one, (this-species of proof being adminicular, as I understand the term). And furthermore, from all the facts in evidence before you, you be satisfied that the testimony of David Walker is supported, aided and corroborated, you will be justified in finding, by your verdict, the execution, itself, of the paper, as a will, has been sufficiently proven; and therefore, I refuse to charge in the language as requested by the heirs at law of the deceased. This point seems not to have been anticipated until the trial. Little or no direct authority has been produced. The Court has therefore charged the Jury according to the best of its impressions, but with some doubt.</p> <p>As to the latter part of the request of the heirs at law, that the testator’s capacity and testamentary intentions must be proved by the executor, the Jury are charged, that this duty does devolve oil the executor; and on his failure to make this proof, he is defeated. As to wffiat, constitutes testable capacity, it will be explained hereafter; and as to testamentary intentions, his design to make a will must appear at the time he executed the paper purporting to be his will. The evidence, on this point, is before you for your consideration.</p> <p>Again, the heirs at law request the Court to charge—</p> <p>“That a person has no right, and it is unlawful for him, to move a testator to make him his executor or give his goods, when the testator is a person of weak judgment and easy to be persuaded, and the legacy great.”</p> <p>I am satisfied that this is a correct rule of lawr, and give it to you in charge as requested. If you believe, from the evidence, that the deceased was a person of weak judgment, and easily to be persuaded, and that Walker moved him to make him, Walker, his executor, and that the legacy to him or his children was great, the Jury are at liberty to set aside the will. It must be the free and voluntary act of the mind of the testator, which it is very obvious it could not be, if the pretended testator, under disabilities such as these, was moved and incited by another to will in his favor.</p> <p>Again, they request me to charge—</p> <p>“ That when the testator is circumvented by fraud, the testament is void and of no force.”</p> <p>The Court most cheerfully gives you this rule in charge, to the full extent of the request. If you are of opinion, from the evidence, that the alleged testator in this case was circumvented by fraud, it makes no difference who was the actor in the fraud, it vitiates the whole will: it cannot be established as the will of the deceased, if it is the fruit of fraud practiced on him.</p> <p>And again—</p> <p>“ That fraud in obtaining a will, like fraud in other eases, though not to be presumed, may be proved by circumstances.”</p> <p>This also is undoubtedly a sound rule of law. It is oftentimes impossible to prove the existence of fraud positively: “it lurks in the dark,” as it is sometimes said, but a well connected chain of circumstances may establish beyond doubt its identity — its existence. If the Jury are satisfied, from the circumstances in evidence before them, that fraud has been perpetrated on the deceased, to induce him to make this instrument as his will, they may act on convictions thus derived, though they have no positive proof of the fact. ^ And to enable you to determine for yourselves this question, all the facts connected with this transaction are before you.</p> <p>Again, they request me to charge you—</p> <p>“ That in cases of undue influence and imposition, confirmation of the act does not remove the imputation.”</p> <p>I am not prepared to go the whole length of this request. It needs some qualification, in my opinion. The confirmation of an act, done undue influence and imposition, of course is a nullity, if the influence and imposition exist at the time of' the confirmation; and perhaps a presumption in favor of its existence, at that time, is raised. But if it be shown, that an act done under undue influence and imposition, afterwards, and when entirely removed from all undue influence, and aware of the former imposition, the actor confirms his previous act, his confirmation does remove the imputation. But if the eviidence establishes undue influence and imposition, and nothing but the simple act of confirmation, without showing under what circumstances the act of confirmation was made, such confirmation does not remove the imputation, because the influence is supposed to remain. Therefore, if the Jury should think, from the evidence, that William Hunter executed this paper as his will, under undue influence and imposition, and the evidence should also show that aftenvards he confirmed the act, such evidence of confirmation shall not remove the imputation. But if the evidence shows that the confirmation was free from- influence or imposition, with a full knowledge of his position and his rights, such an act would give vitality to his former act, and remove all imputation.</p> <p>Again, on the other side, Counsel for Charles Walker requests the Court to charge—</p> <p>That in the case of wills, where a witness has gone off from the neighborhood and abroad, and has never since been heard of, the signature and hand-writing of such subscribing witness may be proved by another attesting witness, as in case of a deed.</p> <p>The Jury have doubtless understood, from what I have already said, that I do not regard this proof as sufficient, without the aid of the adminicular proofs or circumstances. If this proof stands alone, in the opinion of the Jury, then the execution of the will, in the Court’s opinion, is not sufficiently proven; but supported (if the Jury think it is) by other facts and circumstances, it may be sufficient to admit the will to probate. - The Court cannot but remark, that this method of proving the signature and hand-writing of the absent witness is objectionable —does not strengthen the witness sworn — and the neglect to prove by others the hand-writing of the absent witness, is an adminicular circumstance in proof against the execution of the will.</p> <p>Again they request me to charge—</p> <p>“ That the Counsel for caveator on appeal, having permitted, without objection, after the testimony given by David Walker, an attesting witness, the will to be read to the Jury as the will of William Hunter, cannot be permitted now, and to the Jury, to make the objection, that the paper is not sufficiently proved, and as required by their citation.”</p> <p>I decline to give this request in charge to the Jury. , The contrary thereof is the law, in the opinion of the Court. The execution of the will is one of the material facts the executor is called on to prove in solemn form before this Jury; and it is for the Jury to say now, by their verdict, whether he has done so agreeably to the requirements of the law. Its proper execution is a mixed question of law and fact, and the proof has been submitted and the issue thereon formed. The Court has given to the Jury its instructions on the law arising under this head, and it is the province of the Jury to apply the facts in evidence to these rules of law; and as they may determine, so' to find.</p> <p>Again, they request—</p> <p>“ That if, from the evidence, the Jury believe that Wm. Hunter had sufficient sense to transact the common business of life, he had capacity enough to make a will; and his being capricious in the disposition of his property, will not invalidate his will.</p> <p>“ That a lower degree of intellect is requisite to make a will • than to make a contract.</p> <p>“ That if Wm. Hunter had, at the time of making his will, mind enough to know that he was giving property to his brother, Charles Hunter and to Mr. Jemerson Walker, he had, in. law, capacity enough to enable him to make a will.</p> <p>“ That the law does not measure the extent of the understanding of a testator. That unless, under the testimony, it. appear to the Jury that Wm. Hunter was totally deprived of" reason, he had mental capacity enough to make this will; and as he is the lawful disposer of his property, his will stands as a reason for his actions.</p> <p>“ That a man’s capacity may be perfect to make a will, and yet, very inadequate to the management of other business; as for instance, to make a contract for the purchase or sale of property.</p> <p>“ That a lower degree of intellect is necessary to make a will than to make a contract; that a mere glimmering of reason is sufficient.”</p> <p>These, gentlemen, in the opinion of the Court, are established rules of law in reference to testable capacity. Indeed, it is believed that the Counsel has copied these requests verbatim, from opinions delivered by our Supreme Court, in cases in which the question of capacity was raised. They are therefore absolutely binding on this Court and Jury. But the Counsel for the heirs at law, has notified you and the Court also, that they do not contend that the deceased had not mental capacity sufficient to make a will; they rest their opposition on the ground of undue influence and imposition, he being a person of weak mind and judgment.</p> <p>I have already informed you, that the capricious manner in which a testator may dispose of his property, does not invalidate his will, if he is otherwise competent to will. Under the law, he has the right to make his own will; and it shall stand, although not in conformity to our notions of propriety, justice, or the claims of kindred.</p> <p>Again, they request me to charge—</p> <p>“ That it is not necessary, in order to establish a will, that the executor or person claiming under the will, should prove that the will was read over to the testator, in the presence of the attesting or other witness.</p> <p>“ That the law presumes, in general, that the will was read by or to the testator.”</p> <p>You are instructed, gentlemen, that this request embodies the correct rule of law on this subject. The testator is presumed to have read the will; and therefore, it is not necessary that it should be proven to have been read over to testator in presence of the witnesses.</p> <p>Again, they request the Court to charge—</p> <p>“That David "Walker and Thomas D. Walker, the brothers, of the executor of the will, and attesting witnesses to the will, are competent and credible witnesses, in law; and that by reason of their relationship to Charles Walker, the executor, no stain necessarily attaches to the testimony of such i elations.”</p> <p>The Court is of opinion that they are certainly competent witnesses, and that their relationship to Charles Walker, the executor, the party to the suit, does not necessarily stain their testimony. It is, however, for the Jury to determine what degree of weight and credit they think due to the testimony of the witness or witnesses; and the fact of relationship by the witness to the party, ought to be considered by the Jury, in arriving at a conclusion or estimate of the credit due to the witness, together with every other circumstance or fact in evidence before them, bearing on the question of credibility.</p> <p>Again, the Court is requested to charge—</p> <p>“ That the opinion of witnesses, as to the capacity of a testator, or in reference to any undue influence over him, are entitled to little or no regard, unless they are supported by good reasons, founded on the facts which warrant them in the opinion of the Jury.”</p> <p>In the opinion of the Court, this is a reasonable and sound rule. The opinion of a witness, merely as an opinion, is worth but little — perhaps wholly incompetent testimony; but when accompained with all the facts and reasons on which that opinion is predicated, the Jury entertain not the opinion itself, but the fact, in order to see whether they arrive at the same or a different conclusion, agreeable to the legitimate effects thereof.</p> <p>Again, the Court is requested to charge—</p> <p>“ That fraud is never to be presumed; that when circumstances are relied on to establish its existence, they should be so strong, when combined and examined, as to satisfy the Jury of the existence of the fact they are adduced to establish. That it will not do if they affect the judgment with nothing more than doubt and suspicion.”</p> <p>The Jury are instructed in favor of this request, in its full extent, as prayed for. If the circumstances create in the minds of the Jury only a doubt or suspicion of fraud, they are not to presume fraud. They must be satisfied in their minds •of the existence of the fraud, from all the circumstances in evidence before them.</p> <p>' Again, it is requested that the Court charge—</p> <p>“That unless the Jury are satisfied from the testimony in the case, that it has been proven that Wm. Hunter made the will in controversy through constraint or fear; or under compulsion or threat; without freedom of person or mind; or made it through excessive importunity, extorting from him, the said Wm. Hunter, what ho was unwilling to grant or give, and which he had not firmness of mind or ability to withhold. No such undue influence is established, or can be established, by other means or modes of proof to authorize any Court or Jury to set aside the will of said Wm. Hunter on that ground.”</p> <p>Again, and lastly, the Court is required to charge—</p> <p>“ That if the Jury believe, from the testimony in the case, that Wm. Hunter had mind enough to make a will on the 16th November, 183.9; that the will was formally executed by him and attested as the law. directs; that he had volition, design, purpose, intention to dispose of his property by the will as he has done, they are bound to find in favor of the will; and that no tribunal can pronounce against it because of its disapprobation, however strong, of the dispositions made by the testator of his property.”</p> <p>You therefore see that it will be your duty, on this trial and investigation, to determine—</p> <p>1st. Whether, from the evidence, and the law applied thereto as given you in charge, this paper has been properly and legally executed. If on this point you are satisfied with the testimony, then you will see whether the testator, at the time the will was made, was of sound, disposing mind and memory, as shall appear to you from the evidence and the law, as given you in charge on this branch of the inquiry. You will then ascertain, also, from the evidence, whether the testator executed the alleged will, freely and voluntarily; whether it was the act of his own mind to make this will; to make it as it ap-' pears here before you; and whether he did so execute it, free from all illegal and improper control or restraint over him, as defined by the rules of law laid down for your guidance under this head" of inquiry. And as you believe from the evidence, so declare by your verdict.</p> <p>The Jury retired and found in favor of the will, declaring it the last will and testament of 'William Hunter, duly proved, and entitled to record.</p> <p>When the Counsel for the caveator then and there, during the said March Term, 1854, of the Twiggs Superior Court, moved for a new trial in said cause, upon the following grounds, to wit:</p> <p>1st. That the Court erred in deciding that respondent’s 'Counsel had the right, in law, to open and conclude the argument before the Jury in said cause.</p> <p>2d. Because the said respondent failed to prove in solemn form the paper proven in common form, to be the will of William Hunter, deceased, the testator.</p> <p>3d. Because the said paper was not proven to be the will of the said William Hunter, deceased.</p> <p>4th. Because'the verdict of the Jury was contrary to evidence and the weight of evidence.</p> <p>5th. Because the verdict of the Jury was contrary to the charge of the Court.</p> <p>6th. Because the verdict of the Jury was contrary to law.</p> <p>7th. Because the Court erred in its charge.</p> <p>8th. Because, while the cause was pending before the Special Jury, E. E. Crocker, one of the Counsel for the respondent, on the night of the 23d March inst. entertained at his house two of the special Jury to whom the said cause was submitted for trial, and the respondent, Charles Walker.</p> <p>9th. Because a paper was found in the room of the Special Jury, by the Jury, to which said Jury retired to make up their verdict, of which the following is a copy, which was calculated to misdirect the Jury as to the true issue before them, to-wit:</p> <p>“ The burden of the effort made by Colquitt before the Jury, is to show fraud on the part of Walker in Charles Hunter’s will, which is not the issue before the Jury. Nothing relating to Charles Hunter’s will ought to be allowed, but the issue— was William Hunter capable, in law, to make a will. The Jury will in particular act upon the evidence in the case, and the law given them in charge. I fear the erroneous impression is now made in the mind of two or more of the Jury.”</p> <p>The Court, after hearing argument on the above motion, and considering the same, and being of opinion that respondent’s Counsel had the right, in law, to open and conclude the argument before the Jury in said cause, over-ruled the first ground taken in the motion for a new trial, and refused to grant a new trial on that ground.</p> <p>But the Court being of opinion that the said Charles Walker, the executor and respondent, failed to prove the will of the said William Hunter, the said testator, in solemn form, being the paper proven in common form, to be the will of the said William Hunter, the said testator, and being of the opinion that the execution of said will was not sufficiently proven ; and the Court being further of opinion, that the verdict of the Jury in said cause was contrary to evidence and the weight of evidence, and was contrary to the charge of the Court, and contrary to law ; and the Court being further of opinion, that the fact, that while the cause was pending before the Special Jury, E. E. Crocker, Esq. one of the Counsel for respondent, on the night of the twenty-third March, entertained at his house two of the Special Jury to whom the said cause was submitted, and the respondent, Charles Walker, was illegal and inadmissible in law; and the Court being also of opinion, that the paper in the hand-writing of Lewis Solomon, and found by the Jury in their room, was calculated to mislead the Jury and influence their finding; it was therefore ordered and adjudged by the Court, that for the said reasons, the verdict of the Jury in said cause be set aside, and a new trial be awarded and had in said cause.</p> <p>The errors assigned were—</p> <p>1st. That the Court erred in permitting David Walker to testify about Charles Hunter and his property.</p> <p>2d. The Court erred in admitting in evidence Charles Hunter’s will.</p> <p>8d. It erred in admitting in evidence the deed from Charles Hunter to Charles Walker.</p> <p>4th. It erred in admitting the testimony of Samuel Jemerson about a former will of William Hunter, and the sayings of his mother.</p> <p>5th. It erred in admitting the testimony of Humphrey Jemerson about the sayings of Charles Walker, long before he was executor or the will wras made.</p> <p>6th. He erred in admitting in evidence the testimony of Mrs. Wheat about a former will, and as to what her mother told her.</p> <p>7th. He erred in admitting in evidence Mrs. Lyle’s testimony as to her hearing others say, and as to the sayings of Charles Walker before he was executor, or before the will was made.</p> <p>8th. He erred in admitting James Ware to testify as to the capacity of Charles Hunter, and about his property.</p> <p>9th. He erred in admitting the testimony of Mrs. Harris about a deed made by Charles Hunter.</p> <p>10th. He erred in admitting all or any of Mr. Mellon’s testimony.</p> <p>11th. He erred in over-ruling the motion to strike out the second and fourth grounds in the caveat.</p> <p>12th. The Court erred in sustaining the motion for a new trial.</p> <p>13th. The Court erred in granting a new trial in said cause upon any or either of the grounds sustained by the Court.</p>

Motion to dismiss an appeal, in Troup Superior Court. Decision by Judge O. Warner, August Term, 1854. William Mitchell applied for and obtained letters of administration on the estate of Jacob Striman, deceased, no objections being made or filed thereto. Within four days, Lewis Pyron, alleging himself to be the principal creditor of Striman, appealed from the order appointing Mitchell, and in the Appellate Court, filed his caveat to the appointment.

Assumpsit, &c. in Troup Superior Court, and motion for new trial. Decision by Judge O. Warner, December Term, 1854. Greenwood & Co. sued James J. Wright on a note for $816. Wright pleaded that the note was given for the purchase of a negro girl, and that she was unsound in this: that she had white swelling in her left arm, though warranted sound.

<p>[1.] The widow of W. being one of the distributees of his estate, and entitled to a provision for herself and family, for one year, out of the same, is not a competent witness in a case where the administrator is seeking to recover . property for the estate. If the estate be insolvent, and she has thus no interest as a distributee; yet, to the other provision she is entitled; and hence, she is interested to increase a fund out of which she may have dis - tribution.</p> <p>[2.] A parol rescission or mutual release of a contract in writing and under seal, for the sale of lands, may be admitted as sufficient evidence of such release, if the rescinding contract has been executed.</p> <p>[3.] Immaterial and irrelevant testimony should be rejected by the Court.</p> <p>[4.] An amendment to a bill which is not material, may be refused by the Chancellor.</p> <p>[5.] Where the charge requested is not authorized by the pleadings and the proof, the same may be properly refused.</p>

Trover, in Troup Superior Court. Decided by Judge Warmer, November Term, 1854. Held: that they could not recover and non-suited the plaintiffs; and on this decision, error is assigned.

Certiorari, from Crawford Superior Court. Decision by Judge Powers. Held: that there was no sufficient ground to set aside the former order of the Court, and sustained the certiorari and ordered the money to be paid, to the fi. fa. of Warren & Scarborough; and on this decision error is assigned.

Garnishment, in Macon Superior Court. Decided by Judge Powers, September Term, 1854. This was a garnishment issued to S. F. Miller as garnishee, on a judgment of Conklin & Co. vs. Collins, Ashburn, McKenzie & Co. The garnishee returned that he had no effects, stating that he had received from defendants certain assets under a deed of assignment, for the benefit of creditors.

<p>Assumpsit, from Crawford Superior Court. Tried before ■Judge Powers, September Term, 1854.</p> <p>This was an action on a promissory note of Causey & Oslin, sued on by Miller.</p> <p>The defence was set up by Oslin, and was, that after the firm of Causey & Oslin had been dissolved, that Causey, one of the firm, sent á clerk to Miller with the sum of .One Thousand Dollars, (nearly enough to pay the note) of the funds of the partnership, with instructions to pay it to Miller, if required, but to request him to wait, and to allow the money to be applied to other debts ; that on this request Miller consented to wait, and the money was paid to other debts, some of Causey & Oslin, and some of Causey alone. A short time afterwards •Causey failed.</p> <p>The defendant, Oslin, insisted, that by allowing the funds thus sent to pay his note, to be applied to other debts, Miller had lost his right to hold him, Oslin, liable on the, note.</p> <p>The Court over-ruled the defence, holding, that unless the money had been Oslin’s private funds, and so known to Miller, the indulgence given could not destroy Miller’s right to recover against the partnership.</p> <p>To this decision defendants excepted.</p>

üa. sa. and illegality, from Pike Superior Court. Decided by Judge Starke, October Term, 1854. Samuel Moore being indicted in the County of Pike, gave bond for his appearance, with Leroy W. Cooper as security, dated December 20th, 1850. The defendant failing to appear at April Term, 1852, (scire facias having previously issued,) judgment was entered against Cooper alone, for the penalty of the bond.

Indictment for misdemeanor, in Bibb Superior Court-Tried before Judge Powers, November Term, 1854. This was an indictment for receiving corn from a slave,, charged in the indictment to have been committed on the 1st May, 1852. When the case was called for trial, defendant moved a continuance, on the ground of the absence of certain witnesses, by whom be expected an alibi on the day named in the indictment. The Sol.

Caveat to the last will and testament of John Coggin, from the Superior Court of Pike County. Tried before Judge Starke, October Term, 1854. In June, 1852, John Coggin made this will, and afterwards died. On the trial, it appeared that he was at the time upwards of seventy years of age. The witnesses to the will testified, that in their opinion he was of sound and disposing mind and memory; or at least, was competent to make a will; and that he did so freely and voluntarily.

Trover, in Crawford Superior Court. Tried before Judge Powers, September Term, 1854. This was an action for negroes, brought, by the administrator of William Reeves, against the defendant in error, who claimed them under the will of William Cleveland. The mother of the negroes had formerly been the property of Cleveland, whose daughter William Reeves married, but had been in the possession of Reeves from 1827 until his death in 1850.

Certiorari, in Bibb Superior Court. Decision by Judge Powers. On November 24th, 1841, John J. Strawbridge obtained a judgment, in the Inferior Court of Bibb County, against H. T. Mann and Samuel Moore ; and on the next day, the 25th, fi. fa. was issued thereon, on which a return of nulla bona was made, Dec. 80, 1841, and a receipt for costs entered by the Clerk, July 11th, 1843, and no further entry.

Forgery, in Bibb Superior Court. Tried before Judge Powers, November Term, 1854. This was an indictment for the forgery of a promissory note for Twenty Dollars, delivered to Henry Tindall by the prisoner, signed with the name of “ H. C. Neith & Son, No. 27, Bay street, Savannah.” The evidence showed that tho prisoner had previously borrowed the sums of Five and Twelve Dollars from Tindall, representing his name to be Neith, and claiming to be one of the said firm of II.

Motion, in Bibb Superior Court. Decided by Judge Powers, November Term, 1854.

<p>[1.] As to liow far the credit of impeached witnesses may be considered as restored, depends much upon the nature as well as the extent of the corroborating testimony, viz: whether they be corroborated as to the main, rather than as to immaterial facts; also, to the number of particulars in which they are corroborated.</p> <p>[2.] To reduce a homicide from murder to manslaughter, tl:e slayer is not obliged, before the mortal wound is given, to retreat from his domicil or his family.</p> <p>[3.] If one entitled to the joint use of a well, go there to draw water for his family, and upon a sudden affray, in the heat of passion, take the life of the . other joint-tenant, in consequence of a sudden violent attack made upon him by the latter, the killing will be. manslaughter, unless made necessary to save himself from death or some great bodily harm.</p> <p>[4.] Before the law of necessity can exist, a cause of necessity must exist.</p> <p>[5.] To constitute justifiable homicide, se defendendo, the slayer must be faulty less ; he must owe no duty to the deceased — be under no obligation of law to make his own safety a secondary object; otherwise, he'is amenable to the law of the land, without any immunity under the shield of necessity.</p> <p>[6.] This Court stands pledged, by its past history, to abolish, to the extent of its power, all exclusionary rules which shut out any fact from the Jury which may assist them in the ascertainment of the truth of the issue committed'to their trial and decision.</p>

<p>In Equity, in Houston Superior Court. Decided by Judge Powers, October Term, 1854.</p> <p>In 1850, David Clark died, leaving his last -will and testament, as follows :</p> <p>After directing that his debts be paid, he says : “ Item 3d. I desire that my farming interest; be kept together, under the direction of my wife, Lucretia, and some person employed by her discretion, competent to manage a farm until my son Columbus comes to lawful age, then he, Columbus, to have the amount of Two Thousand One Hundred Dollars in property, and a horse, bridle and saddle; which amount is equal to that already given to my first born son, John David. And I also, direct an$ desire that my third son, George Franklin, have, when he shall come to lawful age, the same amount in property, viz: Two Thousand One Hundred Dollars, and a horse, bridle and saddle; and that all necessary expenses for education and other expenses, incidental to the proper training and comfort, be defrayed from the proceeds of the farm.</p> <p>•Item 4th. In the event of my wife Lucretia again connecting herself in marriage, I desire and direct that all the land I may have in possession, together with all the stock, be sold; that she share the proceeds equally with them ; in all respects to have and share equally with my children.</p> <p>Item 5th. I direct and desire, that when my land and stock shall be sold, that my daughter, Mary Lucretia, receive for her share, Twenty-five Hundred of the proceeds of said sale.</p> <p>The 6th item appointed his executors. On the same day, the testator executed a deed of gift, which was never delivered, but found with his will, and was admitted to probate as a part of his will. Ry this instrument he gave to his daughter, Mary Lucretia, certain negro property for her separate use, and appointed his son, John David, the trustee for said property; and “ also, for that portion of the sale of his land provided for in his last will and testament.” These papers were admitted to probate, and the executors having renounced, the plaintiffs in error were appointed to the administration, with the will annexed.</p> <p>The administrator and administratrix filed this bill, setting forth that it was doubtful, from the will, whether the farm was to be kept together only until Columbus Clark arrived at age, or to be still kept together afterwards; that it was very inconvenient, and attended with loss to the estate, to keep up the farm ; and that it was desirable to have an immediate distribution if practicable; that there was also doubt as to what portion the widow and other legatees took under the will; and whether the specific legacies should be paid before an equal division, or be considered in the division. On these points the bill prayed the instructions and directions of the Court.</p> <p>Columbus Clark was a minor when the bill was filed, but arrived at lawful age before the answers were made. George F. and Mary Lucretia Clark being still minors, a guardian, ad litem, was appointed for them. •</p> <p>The answers of defendants admitted the facts charged in the bill, joined in the desire of complainants for an immediate division, and claimed that it was the intention of testator that all his legatees should share equally in his estate.</p> <p>The cause coming on for trial upon the bill and answers, the Court, upon the reading of them, dismissed the bill; and this decision is assigned as error.</p>

Ejectment, in Eannin Superior Court. Decision by Judge Irwin, November Term, 1854. This was an action of ejectment brought'by John Doe, on the several demises.of James Turner, Sr., Smith Turner, Jas. Turner and David Turner, heirs, &c. and O. E. Adams, against Roe and Geo. H. Couch, tenant in possession.

Claim, in Franklin Superior Court. Tried before Judge Jackson, October Term, 1854. In 1841, John R. Stanford obtained, in Franklin Superior Court, a judgment against Job Hammond for fl42T^, with interest. The defendant appealed and gave James M. Stovall as security; and the plaintiff again recovering, the money was made out of Stovall, and he obtained control of the fi. fa. against Job Hammond.

<p>Scire facias, in Lumpkin Superior Court. Tried before Judge Irwin, October Term, 1854.</p> <p>An action of trover for negroes had been brought by Andrew Howell against William Woods, who died pending suit. Elizabeth Woods took out letters of administration on his estate ; -and about fifteen months after the grant of the letters, the plaintiff sued out scire facias to make her a party to the suit. The administratrix objected to being made a party, on two grounds—</p> <p>1st. That the action abated by the death of William Woods.</p> <p>2d. That scire facias to make the said Elizabeth a party, could not issue after the expiration of so long a time from the granting of her letters of administration.</p> <p>Both objections were over-ruled by the Court; and the defendant .excepts, and assigns the same as error.</p>

Indictment for murder, in Eloyd Superior Court. Tried before Judge John II. Lumpkin, May Term, 1854. This was an indictment for the murder of John H. Wallace-A former bill for the same offence was quashed and a new one found.

Assumpsit, &c. in Polk Superior Court. Tried before Judge Irwin, March Term, 1854. The trustees of Mercer University commenced suit against the executors of Thomas G. Janes, upon the following instrument : “,f1.000. In consideration of the importance of literary and religious institutions to the well-being of society, I hereby promise to pay the Treasurer of the Ga.

Debt, in Habersham Superior Court. Tried before Judge-Jackson, October Term, 1854. This was an action, brought by the Governor for the use of A. W. & W. P. Carmichael against Jeremiah Taylor late Sheriff, and Thos. J. Hughes, Peter B. Haralson, James Colley andi -Archer Whitehead, his securities, for a breach of his official bond.

<p>[1.] Where, in an action of ejectment, a demise is laid in the name of several lessors, and upon the trial, title is proven in one of them only, and the-defendant shows by the Counsel who appears for the plaintiff, that he represents another lessor, between whom and the lessor in whom title is proven no connection is made out, the Counsel at the same time stating that he does not know the latter, and has no instructions from him: Held, that this was not a sufficient ground for the dismissal of the action.</p> <p>[2.] Where, in an action of ejectment, an appeal was entered from a verdict in favor of the defendant, by one of several lessors of the plaintiff, and a motion was made by defendant’s Counsel, after the case had proceeded to trial, and in his concluding remarks to dismiss the appeal: Held, that even if this motion might have been sustained at an earlier stage of the case, it was then made too late.</p>

In Equity, in Habersham Superior Court. Decision on demurrer by Judge Jackson, April Term, 1854.

In Equity, in Gordon Superior Court. Decision on demurrer, by Judge John II. Lumpkin, September Term, 1854. Tlie bill in this case was filed by Dawson A. Walker, as guardian of certain orphan children, who were the heirs at law of William H. Stephens, who died a minor. It alleged that William II.

Action on account, in Gwinnett Superior Court. Tried before Judge Jackson, September Term, 1854. This was an action for goods sold and delivered, to the-amount of f!66T80^, brought by Comstock & Brother, merchants of New York, against T. Allan, a merchant of Lawrenceville, Ga. The bill of particulars attached to the declaration, showed the goods to have been nearly all patent medicines of various kinds, with a small quantity of other drugs.

In Equity, from Eloyd Superior Court. Tried before Judge Trirpe, December Term, 1854. Tbe facts of this case are as follows: Joseph J. Printup had brought his action at Law against Daniel R. Mitchell, claiming some Two Thousand Dollars for work and labor done and materials furnished, in enlarging the ■buildings on a certain lot of Mitchell’s in the town of Romo, known as the Buena Yista House.

<p>[1.] That construction of the 4th section of the Statute of Frauds, which requires, that in every agreement to answer for the debt, default or miscarriages of another, the consideration must appear in writing, having been adopted by the English Courts subsequent to the 14th of May, life; it is doubtful if the same has been ever settled or sanctioned as the law of our State. Such being the case, our Act of January 19th, 1852, declaring what shall be the proper construction of this section, is decisive thereof, and applies to an agreement made before the passage of the Act.</p>

' Certiorari, from Eloyd Superior Court. Decision by Judge 'Trippe, December Term, 1854. Held: on certi.ora,ri, that such a plea cannot be filed except on oath; and this decision is alleged as ■error. The point arose in an action brought by Absalom Stevens against Nathan Bass, in a Justice’s Court, who pleaded non-residence, but did not swear to the plea.

Action on note, in Floyd Superior Court. Tried before Judge Trippe, December Term, 2854. The following is the bill of exceptions, which contains the facts of the case: The suit was brought by the Rome Branch R. R. & Steamboat Company, upon the following note : “ Rome, September 10th, 1846. $500. Due the Memphis Branch Rail Road & Steamboat Company of Georgia, Five Hundred Dollars, payable on demand. (Signed) ’ D. R. MITCHELL.” “ $250.

Rule, in Floyd Superior Court. Decided by Judge Tripp®, . December Term, 1854. A sum of $1100 had been raised by levy and sale, by order-of Court, under an attachment in favor of Fellows & Co. against A. J. Murray, of the goods and chattels of said Murray. The money was claimed bj fi. fas. of older date than the attachment in favor of Greenway Brothers & Co. and D. C. Hide & Co. against the firm of Burns & Murray, of which firm A. J. Murray was a party.

Certiorari, from Floyd Superior Court. Decision by Judge Trifpe, December Term, 1854. This was a certiorari from a decision of a Justice’s Court, ón a motion to distribute money. Riley J. Johnson held certain fi. fas. from the Justice’s Court, against Logan White, dated 26th February, 1853. Daniel R. Mitchell held a fi. fa. from the Superior Court against Logan White, on a judgment signed on the 14th March, 1853.

Inquisition of lunacy, in Jackson Superior Court. Decided by Judge Jacicson, February Term, 1855. The record in this case disclosed the following facts: In 1851, James Norwood applied to the Court of Ordinary of ■Jackson County for a commission to examine Lewis Hardy, alleged to be insane and incapable of managing his affairs.

In Equity, in Floyd Superior Court. Decisions by Judge Tripre, November Term, 1854. The facts of this case are fully set forth in 14th Gca. JR. p. 320, except that when Atkinson, administrator, &c. obtained the judgment against Rogers and the executors of Hargroves, the appeal was entered by the executors of Hargroves alone. It seemed, however, that all parties had acted on the opinion, that the appeal operated for all the defendants.

<p>[1.] A vendee entering into the possession of land under a bond for titles,, does not hold adversely against the vendor until the purchase money is paid. Xn such case, the possession of the véndeo is not only consistent with the title of the vendor, but the very bond which the occupier relies on as color of title, recognizes paramount title in the vendor.</p> <p>[2.] Adverse possession is usually a mixed question .of law and fact — whether the facts exist which constitute adverse possession, is for the Jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the Court to decide.</p>

In Equity, in Polk Superior Court. Tried before Judge Tripes, March Term, 1855. 1 /The facts in this case were, that Kerley had given a bond for titles assigned to Richardson, dated October 9th, 1838, to make good titles to a tract of land embracing many contiguous lots; the titles to be made by December 25tb, 1839, or on the payment of the last instalment of the purchase money.. Richardson was put into possession of all the land in 1838 of 1839, and has so continued.

Debt, in Whitfield Superior Court. Tried before Judge Trippe, April Term, 1855.

Decision by Judge Irwin. The Legislature of 1853 laid off and created a new county, by the name of Fannin, with certain boundaries. The Act provided that the Justices of the Inferior Court for said new county, when elected, should select a site for the county seat, “at or as near the centre as practicable.” The defendants, being elected Justices, chose a site, and were proceeding to lay off a town and erect public buildings.

■Gertiorari, in Gordon Superior Court. Decision by Judge John H. Lumpkin. This was an attachment sued out in a Justice’s Court, at the instance of Jas. Selman & Co. against one Humphrey P. Hudgins. The property levied on waS claimed by S. M. Shackelford, by the following affidavit: “State oe Georgia — Gordon County: In attachment before Justice’s Court. And now comes S'.

Indictment for riot, in Cass Superior Court. Tried before-Judge Irwin, March Term, 1855. The plaintiff in error was indicted, together with seven oth- * ers, for a riot. At March Term, 1855, all the other defendants having con- ■ tinued their case, McAllister announced himself read,y for trial. The Court refusing to try him separately, he moved to place on the minutes a demand for trial. This also the Court refused ; and on these decisions error is assigned.

Covenant, in Floyd Superior Court. Decision by Judge Trippe. The declaration in this case alleged, that in 1851, the Legisature passed an Act appropriating the sum of Five Thousand Dollars for the improvement of the Coosa river, and appointed the defendants commissioners for its disbursement, the same to be appropriated by them when they should receive a like sum, by voluntary subscription, from private citizens.

Assumpsit, in Eloyd Superior Court. Tried before Judge Trippe, November Term, 1854. This was an action for damage done to goods of the plaintiffs, while in defendant’s possession, who was hauling them from Rome to Summerville. The goods were injured by being wet, from defendant’s wag•on getting stalled in Chattooga River. It was proved that defendant, on two other occasions, had done hauling for differ•ent persons ; and it was contended that he was a common carrier.

<p>Debt, in Murray Superior Court. Tried before Judge Tiiippe, April Term, 1855.</p> <p>This was an action brought by the Justices of the Inferior Court, for the use of James Forsyth against William Weems, principal, and Reuben T. Dobbs and John Devors, securities, on a Constable’s bond, to recover damages for not returning an attachment, levied by Weems, as Constable, at suit of Forsyth, on a wagon and horses, as the property of one Enos H. White.</p> <p>A return of “ non est inventus” was made as to Weems.</p> <p>On the trial, the plaintiff produced an attachment against White, with an entry of levy signed by Weems.</p> <p>It was objected to, on the ground that there was no proof of its execution; and also, that the attachment bond was not attested. Both objections were over-ruled, and defendants excepted.</p> <p>Plaintiffs then offered in evidence, as the foundation of the attachment, a note of Enos II. & A. R. White, for $512, credited by some thirty dollars, and amounting, with the interest, to more than $1,000. Objected to, as not sustaining an attachment against Enos H. White alone. The objection was over-ruled, and defendants excepted.</p> <p>Plaintiffs then offered the bond in the sum of One Thousand Dollars, signed by defendants and properly attested.</p> <p>To which being admitted as evidence, Counsel for defendants objected, on the ground that the law requires such bonds to be recorded, and a copy from the record properly certified, is the best evidence in such case, and should have been procured in this caso ; which objection the Court over-ruled, and defendants’ Counsel excepted. Plaintiff then introduced William P. Hackney, who swore that he heard a conversation between Weems, Forsyth and Augustus N. Hargroves, Esq. Attorney for said Forsyth in said attachment, relative to the levying of an attachment at the time it was levied, in favor of Forsyth against E. II. White, as he understood the conversation; ho thought said conversation took place in the spring of 1848, in DaltonEorsyth inquired of Weems where the property levied on by his attachment was ? Weems pointed to the wagon and three horses and said the property was there. Eorsyth inquired for the other horses. Weems replied, he had permitted said White to take them down to the shop to have them shod. Eorsyth told Weems, White was a slippery chap and he had better watch him close. Weems said all would be right. Witness thinks the horses and wagOn were worth about four or five hundred dollars. I would say the whole property levied on worth five hundred dollars.</p> <p>Defendants’ Counsel objected to the giving in of Weems’ sayings to charge the defendants. The Court over-ruled the objections, and defendants’ Counsel excepted.</p> <p>Plaintiff then proved by John Eorsyth, that at the time said attachment issued, both E. PI. and A. R. White lived out of the State of Georgia. Plaintiff here closed his testimony.</p> <p>Defendants then proposed, by way of mitigation of the dan> ages, to prove that the legal title of the property levied on was not in the defendant in said attachment, but was in another; and that, therefore, the plaintiff had not been injured. Plaintiff’s Counsel objected to this testimony, which objection was sustained by the Court, and the testimony ruled out, and defendants’ Counsel excepted.</p> <p>The cause being closed, the Counsel for defendants asked the Court to charge the Jury, that the bond being in the sum of One Thousand Dollars was illegal and void, unless the plaintiff had proved that it was given in a city or town, and that being an exception to the general rule, the burden of the proof was on the plaintiff, to show it was given in a city or town; and that if the Jury should find that plaintiff had not proved "this fact, they must find for defendants; the Court refused so to charge, but charged the Jury, that the defendants having executed said bond, it devolved on them to show the fact, if it existed, that the bond was not taken in a city or town district, and that on their failing to do so, said bond was obligatory on them; and defendants’ Counsel excepted.</p> <p>Defendants’ Counsel also requested the Court to charge the Jury, that as the issue in this case is, whether Weems returned the attachment or not, and as the law presumes every officer does his duty, it was necessary for plaintiff to show that Weems had failed to return said attachment according to its requirements ; and that if they should find no testimony had been given in to show such failure, that they must find in favor of defendants. The Court refused so to charge ; but on the contrary, charged the Jury, that as plaintiffs had sued defendants, for said Weems having failed to return said attachment and having shown that Weems, the Constable, levied on the property, it was necessary for the defendants to show that said Weems had done his duty in the premises; to which charge and refusal to charge, defendants’ Counsel excepted.</p> <p>The Court farther charged the Jury as follows: that if they should find in favor of the plaintiff, the measure of damages would be the amount of his debt against White; but they could not go beyond the amount of the bond, one thousand dollars.; and defendants’ Counsel excepted.</p> <p>The Jury rendered a verdict in favor of the plaintiff for the amount of the bond, one thousand dollars, with costs of suit. And Counsel for defendants tender their bill of exceptions, and say—</p> <p>1st. The Court erred in admitting said attachment bond and levy.</p> <p>2d. That the Court erred in admitting said sealed promissory note, made by E. H. & A. R. White.</p> <p>3d. The Court erred in admitting in evidence the original bond of Weems and defendants.</p> <p>4th. The Court erred in admitting the sayings of Weems, to charge defendants.</p> <p>5th. The Court erred in repelling defendants’ testimony, offered to prove that the title to the property levied on was not in defendant, White, and said property was subject to said attachment.</p> <p>6th. The Court erred in charging the Jury, as it did, that the burden of proof was on defendants, to show that the Constable had done his duty, and that the bond was taken for too largo an amount.</p> <p>7th. The Court erred in refusing to charge as requested by defendants.</p> <p>8th. The Court erred in charging the Jury as to the meas- . ure of damages.</p>