Volume 18 — Georgia Reports

<p>[1.] The Act of February 16th, 1852, requiring, that from and after the 1st day of June thereafter, all wills and testaments of personal property should be attested by three or four credible witnesses, and declaring that all laws of force in this State prescribing the mode of prorf of devises of personal property, shall be extended to wills of personal property, applies to and controls the proof of a will of personal property, which had been executed before the passage of that Act — the testator having died after the same had gone into effect.</p>

Caveat to will, in Jasper] Superior Court. Tried before Judge Hardeman, A.pril Term, 1855.

Debt, in Wilkes Superior Court. Tried before Judge Irvin, September Term, 1854. In 1818, Thomas N. Hamilton and Thomas P. Randolph were appointed the committee of Augustus Napier, a lunatic, by the Superior Court of Columbia County; and by their commission, were required to make returns from time to time to said Court.

<p>Trover, in Baldwin Superior Court. Decision by Judge Jackson, at August Term, 1854.</p> <p>This was an action of trover by Robert Y. Willis, as adm’r of Keziah Willis vs. Thomas Willis, for sundry negroes, the descendants of a negro woman, Esther. It was proven that Keziah Willis died in possession of the negroes, and had them in possession for twenty years. Keziah Willis and Thofnas Willis (her son) lived on the same premises, but in different houses, and had separate fields. Thomas Willis had a general control of all the property. Mrs. Willis employed a separate overseer for one year. The negroes sometimes worked all the fields. Various expressions of intention by Mrs. Willis, to give these negroes to different persons, were in evidence. The negro Esther was in Alabama, and Thomas Willis went after her and brought her away. He proved by one Isaac Golden, that 17 or 18 years ago, he heard Mrs. Willis say that she owned a negro Esther, in Alabama, and that she told Tom, that “if he would go after her he might have herand that after Tom got back, he heard the old lady say that Tom had gotten back with the negro that she gave him. There was evidence that Mrs. Willis, at some times, said she gave the negro to Tom at her death; at others, that she intended him. to have them; at others, that she intended them for a daughter in Alabama; but that the daughter had died. There was also in evidence a deed of gift, from Mrs. Willis to Thomas Willis, to one of the children of Esther, of a date subsequent to the alleged gift, and by him placed on record.</p> <p>The Court charged the Jury, among other things, “ that if they believed Mrs. Willis sent Tom Willis, the defendant, to Alabama . as her agent, for the negro woman Esther, and as such, he went, and brought, and delivered the negro to her, they should find for the plaintiff.”</p> <p>The Jury found for plaintiff. A new trial was moved — 1st. Because the above charge was upon a hypothetical state of facts, not authorized by the evidence.</p> <p>2d. Because the verdict was contrary to the weight of evidence. The new trial was refused, and this decision is assigned as error.</p>

<p>Indictment for ¡murder, in Wilkes Superior Court. Tried before Judge Andrews, September Term, 1854.</p> <p>Armistead T. Stokes was indicted for the murder of JamesHenly. On the trial, the following evidence was submitted to the Jury:</p> <p>William C. Dent, .sworn: Was present when difficulty happened in this county on 12th February, 1853; was at. Stokes’ to help raise a house; just before dinner''a disputo arose between Mr. Curry and prisoner, when we were raising house; no fight, but an offer, when Mr. Henly interfered and prevented it. Prisoner then went to his house. Witness and. Henly also went to house to dinner. When we got there,, found prisoner lying on the bed. Henly and witness sat down to dinner when several words occurred between prisoner and Henly ; about what, witness does not recollect. Henly told prisoner if he wanted a thrashing and would go to the road he, Henly, would give it to him. Prisoner and Henly them started from the house — Henly before and prisoner-following' him. Witness followed after; when some 8 or 10 steps from the-road, prisoner struck Henly. Henly was á few steps •advance of prisoner when they left the house; remained about the same distance apart until the blow was struck; heard no-words between thorn. Witness was some 4 or 5 steps behind them. Prisoner walked behind all the way from the house to where blow was struck; saw the blow struck; prisoner was behind and rather to the right. ’ Henly fell when the blow was given, and was dead as soon as witness reached him; blow was over the right breast, and struck over right shoulder -of’ Henly. Witness did not see the knife when blow was struck; saw a knife that evening said to be the one with which the blow was struck. After Henly fell, prisoner went back to house. Saw Henly make no offer to strike prisoner, while on the way to the road ; the road was some 130 or 140 yards-from house, and outside of the inclosure where the stabbing took place. Witness was invited by prisoner’s boy to house-raising.</p> <p>Cross-examined: Witness does not recollect what the quarrel between prisoner and Henly in the house was about; witness had no recollection of having words with prisoner the house; witness had been drinking before dinner; the quarrel occurred soon after we set down to the table ; has no recollection of any words that passed between prisoner and’ Henly, until invitation to go to road. Mrs. Stokes was waiting on table; did not hear her say any thing during quarrel; does not know that-quarrel was about Mrs. Stokes. Witness did not know that prisoner and Henly were really angry until-; they started to the road. ’ There .was a gate on the way to the; road — road from Mallorysville to Petersburg, about 4 or 5 steps from gate; open space between gate and the road which could be travelled; heard no words when blow was struck. Witness was some lor 5 steps behind Stokes when blow was-struck, and Stokes followed Henly from house two or three steps behind. Saw blow struck, but saw no knife; both walking on when blow was given. Henly offered no resistance when blow was struck. After deceased fell, witness went to field, sent a boy over to Mr. Curry’s and went, himself, to Andrews. Before they left the house, Ilenly told Stokes if he (Stokes) wanted a thrashing and would go to the road ho, Henly, would ..give it to him; recollects not a word or syllable said in quarrel by Stokes or Henly before the challenge to go to road; recollects nothing said by Mrs. Stokes. 'Witness did not state, on former examination, that Mrs. Stokes put in during the quarrel.</p> <p>Direct, resumed: Witness heard prisoner and Henly running on while at dinner, but did not know or. believe they were quarrelling; was common with prisoner to be running on. Gate was about one hundred yards form house; conversation was between all of us, at the new house, about the wag-left by Stokes, when he went off with 'Judge Barkosdale.</p> <p>Simpson Curry sworn: Witness was employed by prisoner; -as overseer in the year 1853. Prisoner proposed to build a house for witness. Prisoner told witness, three times, to ask James Henly and George House to assist in raising the house; on the day of house-raising a difficulty occurred between witness •and prisoner, about dividing expenses of liquor' for the hands. Stokes had a knife and witness had a hand-stick. When witness was in the act of striking prisoner, Henly, the deceased, interposed and caught witness’ arm.- Stokes left quick after the difficulty. A short time after Stokes left, the horn blowed and Dent and deceased left for the house; did not see deceased again until after his death. Mr. Dent sent a boy after him. Witness saw no knife where the body lay; did not remain there but a few minutes. Witness then went to Mr. Willis’. Next saw Mr. Stokes in the yard, while I was out to the road where Henly was dead; some hundred yards from where Henly laid to where Stokes was standing. Witness told deceased’s children while passing through the yard, that if Stokes had whipped Henly he could not whip him, witness.. By the time witness 'got to the road, Stokes came out into the. .yard .and said something to witness; witness does not recol-. lect what, and witness hallooed to him, “you have killed this man.” Stokes replied, “I can lay you by the side of him;” and asked witness if he should do it. Saw Mr. Dent after I came back from Mr. Willis’; Dent was not drunk; had not ■drunk much where witness was, before dinner. When Avitness told Stokes he, Stokes, had killed Henly, Stokes gave no reason ; the Avound on the body of Henly Avas between 2d and 3d rib, on right side; suav no sign of a scuffle Avhere body of Henly lay; ground was such that Avitness would have seen signs of scuffle if there had been any; the body Avas lying on the right arm, Avith one leg lain across the thigh of the other; blood had fioAvn out, and in one place. Witness and Mr. Andrews stopped Stokes in the Avoods, some 200 yards from house; does not recollect hearing prisoner say any thing about the killing Avhen he Avas stopped; when he Avent back to the house prisoner said, I have killed the best friend I have and shall hang for it. Prisoner said he had done it in self-defence. Witness was present at examination of wound; Avas not close enough to see much.</p> <p>Cross-examined: When Avitness went through yard, prisoner was on the bed, and Avitness thought, asleep. Witness went from the dead man to Mr. Willis’, about a quarter of a mile off; found no one there, and came right back to body and found Mr. Andrews, Mr. Willis, Mr. Dent, Geo. House and Ashmore at the body. Witness knew of no cause of difficulty between prisoner and deceased; was at Henly’s house on the night of the 24th December, 3 o’clock. Henly told witness he, Henly, had been to Stokes’ and had just got home. Witness knew that Mrs. Stokes stayed all night at Henly’s ■once before the killing. Deceased told witness, on the night of the 24th, that he had been to Stokes’ to meet witness, who was returning from Augusta. Stokes was gone to Tennessee at the time. Henly was not absent when Mrs. Stokes stayed all night at his house, but left next morning for Augusta. Mrs. Stokes staid at Henly’s one day and two nights, and Avent over the river after she left Henly’s, with her brother-in-law ; staid some three or four days until prisoner AYent for her; deceased was a widower and lived about one mile from Stokes’. Deceased had eight children, and the neighborhood was densely settled.</p> <p>Direct, resumed: Prisoner and deceased had been friendly previous to killing, and prisoner had frequently invited deceased to his house. It was the day before the house-raising that prisoner told witness to invite Henly over. The ■house-raising was about half a mile from Stokes’ house. Prisoner was drinking, about half and half drunk, on morning of ■the house-raising'; have known prisoner forty years; was always a peaceable man and averse to difficulties; never had heard of any jealousy between prisoner and deceased. Henly was a larger man than prisoner or witness; Henly was sober on the day of the killing, so far as witness knows. Found the body lying on the right arm and one leg across the thigh of the other; deceased had on no coat; did not see any coat-on the ground. The body was some 40 steps beyond and •outside of the gate.</p> <p>William Andrews, sworn: Witness has been acquainted with prisoner since prisoner was ten years old; was also acquainted with deceased ; deceased had about 8 children, 3 daughters pretty well grown; saw prisoner on 12th Fob’y, first between 3 and 4 o’clock, P M; was sent for by Mr. Willis ; saw Stokes in his own field, going off. Witness, when opposite the house, saw prisoner making towards the river towards Mr. Cade’s mill. Witness hallooed'to prisoner and told him to go back and stay back; prisoner turned round as Though going back, walked a few steps and replied, you arc no officer; I will walk where I please. Prisoner left the road and went round through the wood; saw nothing of him for .some time; witness went up the hill and prisoner stepped out from the bushes, about 10 or 15 steps in front "of witness; prisoner walked upTowards witness^ within a few steps, with his right hand in his pocket. Witness told prisoner to take his hand out of his pocket, and witness levelled his gun at legs of prisoner; after the order, prisoner kept advancing and raising his foot. Witness told prisoner if he, prisoner, put his foot to the ground he, witness, should shoot. Witness asked, what possessed you to kill Henly ? Prisoner replied, I did kill him, and expect to be bung for it; and if I could kill two-or three others I would be perfectly willing tobe hung. When witness thought he would have to shoot, he called for Curry to witness it. Witness had been sitting on the root of a tree and prisoner in the road; lie, prisoner, got up and walked off. Witness told him, when they got to the forks of the road, he might go 30 or 40 steps, but no further. Prisoner went about 30 steps and stopped, with his back to witness and Curry, then walked back towards us, and I ordered him to keep on the other side of road — if he came close I would lay him out as straight as he had laid out that poor man. Prisoner hung down his head and asked witness to go to the house with .him. Witness refused and Curry went; after prisoner had been in house some three quarters of an hour he came out and walked up towards the body of Henly. Witness told him to hold on — he had gone as near as he ought. Prisoner stopped and observed to the crowd, that Henly was a connection and a brother mason, and he would not have killed him for the world, but he had to do it in s.elf-defence. Prisoner walked about a little and said he would give himself up; witness told him not to go to the house, but to set down. Prisoner said Henly had struck him with a stick; there was no stick near the corpse a short time afterwards. Prisoner observed, that Henly had shot at him. Witness asked the prisoner where the pistol was. Prisoner replied, he, Henly, has it about him. Witness then searched deceased and found a common old single bladed knife in his pocket; the knife was shut. On Monday after, prisoner said he ivas struck with a stick by Henly on the back of the neck; did not ask him on the day when he was struck, as Avitness saw no stick. Witness asked prisoner to lend him the knife he struck Henly with; witness looked at it and examined it; knife exhibited in Court; Avitness says it is the same one handed him by Stokes, or out of same paper. When Dent came to me he was about as a man who had taken one drink of liquor or so; should not have'known, from his appearance, that ho had taken liquor, if witness had not known it was used at the. house-raising*</p> <p>Cross-examined: Mr. Dent went for witness;, was as a man wh.o had taken a drink or so; witness took- his.gun .and¡went round the fence. Prisoner was. in the-road, in.his.: own field, when I saw him, about 100 yards- from the. house; witness went round the fence losing sight of prisoner, and Stokes came out of the woods towards where I was standing. in the road; Prisoner seemed to be going down the hollow " witness told him not to come nearer; that.he, witness, was going to meet him; the first time witness saw prisoner, after he-got round the fence, he was coming out of the bushes and' approaching him. Witness first saw the knife' in the hands -of prisoner when he gave himself up; the knife was asked for and given up; nothing else found on the person of prisoner. At the conversation around the body, witness thinks John Andrews, Lilly Cade and.others, were present; at conversation, witness asked prisoner where he was hit; prisoner placed his hand on back of his neck and said it was there; prisoner said nothing else, at that time, that witness recollects to have heard; prisoner and deceased were always friendly; when together, but did not talk so of each other when apart; cannot say the exact cause of bad feeling; sometimes. Stokes would say something, again another. In a conversation,-..between prisoner and witness, .prisoner said that every man who came to his house got his wife. Witness told prisoner to name the man — that it was a lie, for he, witness, had been there several times and he, witness', had not; prisoner named deceased and Sam Hill. Witness replied, I have nothing to do with Hill; but if you know anything, Armstead, against Henly, I want you to name it. Prisoner said Henly had caught his rvife by the shoulder andjshook her, playing Avith her. Miss Campbell was present and remarked — Stokes, you know better ; it was me Ayhom he took by the shoulder, and Avas playing with; and not your wife. Prisoner applied to me for room to put his clothes in — that he intended to leave home, for he could not stand the Avay they were carrying on there; that whenever he said anything they threatened to whip him and abused him; that Sam Hill and others did so; he said nothing there about Henly; witness did not say to Wade Stokes-on the road to Augusta, that prisoner had come to him to get board or a room, because Henly and others carried on so at his house that he could not stay there. John Stokes and Oscar Dent were present, in a buggy,' about 40 feet from prisoner and myself, during the conversation above. Witness has-not subscribed money or employed Counsel to aid in this prosecution ; is under no promise to do so; only asked Mr. Stephens and Mr. Thomas why they withdrew from the prosecution, and stated to them that Heard had told me the money was made up.</p> <p>Dr. John H. Walton, sworn: Was present at the inquest held over the body of deceased, and assisted in examination; the wound was in the right breast, one and a half inches from sternum, between 2nd and 3d rib; cut through anterior portion of the right lobe of the lungs, then through the pericardium or thin membrane that covers the heart, then cut the aorta about inch and half above the heart — such wound necessarily produced instant death.</p> <p>Cross-examined: Heart below liver, of which the knife entered above two-inches or more.</p> <p>Direct, resumed: Prom direction of wound, it could have been inflicted either from behind or from the left of the person receiving it.</p> <p>Cross, resumed: Eor such a wound to have been inflicted when the two men were of equal height, it was necessary that the party inflicting it should be on one side to the right; it could not be inflicted by one person standing hehind another and striking directly over the shoulder.</p> <p>EVIDENCE FOR THE PRISONER.</p> <p>John Stokes, sworn: Is son of the prisoner; was present on the day that Henly and Mr. Dent took dinner at prisoner’s house; was in an adjoining room in bed sick; partition between; dinner table visible but not bed. Prisoner came to house half hour before Henly and Dent came to house; prisoner and wife were quarrelling. Mr. Henly came in to .¿inner, and prisoner’s wife said, if you knew what Stokes has been saying about you, you would give him a thrashing that minute. Mr. Henly then said, Armstead, if you will walk out into the road, I will give you a thrashing. Henly threw his hankerchief in prisoner’s wife’s lap, and went out first, prisoner next, and Dent next, passing through the room where witness was confined by sickness; saw them no more after-wards.</p> <p>Cross-examined: The bed in which witness was lying was-in such a situation he could see out to the road; did not tell any one that he saw the difficulty; did not tell Mr. Andrews so; did not tell him, on the Monday after homicide occurred, that the difficulty occurred about making a coffin lid for Mr. Wiseman; did not tell him that prisoner never had cause ,to he jealous of Mr. Henly; never told Mr. J. Willis so at any time.</p> <p>Direct, resumed: Did not recollect what prisoner said at first of the quarrel between prisoner and wife, before Henly came, but hoard his wife say her arse was her own, and Henly could do it as well as any body. On the night of the moving to Augusta does not recollect hearing prisoner tell Mr. Henly he wished him to keep away from there; but has, at various other times, heard him tell him so. Has seen Ilenly 'and prisoner’s wife go off together, and has stated so to his father privately.</p> <p>John Andrews, sworn: Never heard deceased say that prisoner had forbidden him his house; had heard him say that prisoner had threatened to kill him, but he was not afraid of his doing it, and was present when prisoner vais arrested; heard him say he had killed him and lie would do it again, and that he was sorry for it, but lie would kill tiro best friend ho had, under the same circumstances; said Henly struck Lim .with a stick on the Lack of his neck; got there about one Lour after Henly’s- death. Willis, and Bent, and Curry were there,, and others; heard nothing about pistol.</p> <p>Direct: Staid there all the time till prisoner was arrested.</p> <p>.Archibald N. Sayre: Some six or eight months before the homicide, on his return from Anthony Shoals Factory, saw Stokes on an island in the river, and on the way from there told me to tell Henly to keep away from his house, anci let his wife alone; if he did not he, prisoner, would kill him; told him if he'wanted such messages borne he must bear them, himself.</p> <p>Cross-examined: Stokes Was very drunk at the time; saw-Stokes and Henly together very frequently about a week afterwards, when Stokes invited Henly, pressingly, to come to his house; inquired why he staid at home so close. Have known prisoner since 1832; very often drunk; hardly ever from under the influence of liquor; never had many fights,. though, a great hand to get up difficulties,' and very abusive, till he saw his abuse about to be resented; never knew him to strike any body. Has hoard prisoner, on one occasion after the first conversation, say that his wife was too familiar with other men, and that he was going to quit home on that account; comparatively sober then. Stokes said he left his wife very drunk.</p> <p>Henry Campbell : On the night witness and family went to Augusta, camped at Stokes’; Jack Dallas, James Henly,. the deceased, and Wm. Dent and George House were there;, in November preceding the homicide, thinks on the 12th, heard prisoner tell the people there to go home; saw no one but Henly have liquor there that night; he had a flask; Henly and the others refused to go, and staid till nearly day; saw Mrs. Stokes and Henly standing out in the yard, between midnight and day; has heard Mr. Stokes tell deceased if he did not go away and keep away from his house, and let his business alone, he would kill him. Mr. Stokes was not drinking that night, and had not been at midnight.</p> <p>Cross-examined: Henly and the others came about twelve o’clock at night; witness left for Augusta on Thursday after the homicide happened; has been at Mr. Stokes’ house once since. Nibson House was present when prisoner told deeased to keep away from his house.</p> <p>Dr. D. M. Andrews does not think such a wound as deceased’s could be given directly .'over the shoulder; thinks the direction of the knife would be.'horizontal in a wound given between the second and third ribs, to reach aorta an inch and a half above its junction with the heart.</p> <p>Cross-examined:. Thinks, if the prisoner was standing a little behind, to the right, such a wound could be given.</p> <p>Dr. IValton, (recalled): Sustains Dr. Andrews.</p> <p>Wm. W. Stores: On the road to Augusta, Mr. Andrews told the witness that prisoner had been to his house and applied for a room; that he did not want such a set about him; ■that Stokes had told him he was annoyed by Hill, Hcnly and others; has known prisoner from a boy; bas never known him to offer personal violence to qny body. Prisoner has ■been intemperate from a boy, except a few months.</p> <p>Cross-examined: Is certain it was Hill, Henly and others that Mr. Andrews told witness, Stokes ,said were annoying him; conversation took place some months previous to the •killing. • .</p> <p>N. N. Rarksdale : Stokes lias always been considered a peaceable man; has known him from boyhood; Stokes is {about 40; has never known him guilty of any violence.</p> <p>Wm. Andrews re-called: Had a conversation with John Stokes, on the Monday after homicide happened; asked him how accident occurred; he said Ma and Pa had been quarrelling ever since Sam Hill was over there, and that cousin James ITenly’s name was not named — but Mrs. Stokes said, if you knew what Stokes has been saying about you, you would not stand it; Stokes said I have not said a word about him, and if he had said anything about bim he would not-deny it. Mrs. Stokes said that Stokes had said that Hcnly charged 2|- dollars for making a coffin for old man Wiseman, who died at Ilenly’s house, and had kept the balance of the money. Henly said it is not so Stokes, and you know it — and if you will go to the road with me, I will give you a thrashing. Wiseman was sick, and died at Hcnly’s. John Stokes said he heard prisoner say to Ilenly, if he was going to give him. a whipping, he was ready; Ilenly replied, go to the big road, he would not fight him in his yard. John Stokes said he got up and sat on his bed at the window; Ilenly went out of the gate — his father behind him, and Dent next. Dent stopped to shut the gate; after getting out of the gate a few steps, he stooped, as if he had dropped something; picked it up; stepped a few steps a little farther, and struck Ilenly over the right shoulder, and Henly fell; prisoner stooped down after-wards — whether it was to pull the knife out, or to look at the wound, he could not say.</p> <p>, Isaiah T. Willis: Had a conversation with John Stokes on tlie Sunday after the homicide, when he said he had never seen anything amiss between James Henly and his stepmother.</p> <p>N. G. Barksdale : Is acquainted with the general reputation of Wm. Andrews in the vicinity where he lives; from that reputation,'would question it.</p> <p>Wm. Cade: Has been long acquainted withWm. Andrews; from his knowledge of him, would believe him on his oath.</p> <p>Cross-examined: Has contributed to this prosecution.</p> <p>P. E. Smith : Is acquainted with Wm. Andrews; from his knowledge of his reputation, would believe him on his oath; has contributed to this prosecution.</p> <p>Wm. House : Knows Wm. Andrews, (knows nothing very bad about his character); have not contributed to this prosecution, but expects to doit; would believe him on his oath in a Court of justice.</p> <p>When Wm. Andrews was offered to be sworn on behalf of the State, Counsel for prisoner objected to his being introduced as.a witness, on the ground that the list of witnesses furnished to the defendant by the Solicitor for the State, included only the two witnesses sworn before the Grand Jury, and Dr. Walton substituted for Dr. Whitlock, who had departed this life; and that no notice of the-.said Andrews being expected to be introduced as a witness in this case had •oyer been given to the defendant or his Counsel.</p> <p>' The Court over-ruled the objection, and Counsel for defendant excepted.</p> <p>Wm. House, introduced by the State to sustain the character of Wm. Andrews, in answer to the usual question, as to character for truth and veracity, answered, that “ he knows nothing very bad about his character.” Counsel for defendant proposed to ask him, “ Have you never heard anything very bad against his character.”</p> <p>The Court ruled out the question, because it was not confined to his character for truth and veracity, and defendant excepted.</p> <p>' Afterwards, on motion of the Counsel for the State, the Court struck out the testimony of House, that “ ho knows nothing very bad about his character.” To which decision, defendant’s Counsel excepted, because said evidence was local.</p> <p>After the defendant had introduced his testimony, the Court chaj’ged the Jury as follows :</p> <p>CHARGE.</p> <p>“ Cjentleraen of the Jury — the law having made the Jury the judges of the law, as well'as the fact, I would prefer to declino charging you altogether; for, it seems inconsistent that I should propound the law 'when, you are at liberty to disregard the Court.' Yet, so it is, while it is my duty to give you in charge the law, you are at liberty to abide, or not, by the Court’s exposition of the same. The Court, therefore, will say hut little to you,, in the way of charge, as you are judges of the law as well as the fact. I will read to you the law which, I think, most relevant to the case, and read it deliberately. The Court then , read to the Jury the following sections of the fourth division of ’the Penal Code: two, three, four, six, seven, twelve, thirteen, fourteen,'fifteen and sixteen, and proceeded as fellow’s:</p> <p>■ If it is satisfactorily proven to you that the prisoner slew 'the deceased, Henly, the next inquiry is, has the offence been reduced to an offence lower than murder by the proof? To make the homicide murder, it must have been committed with malice aforethought, express or implied. It is for you to Judge, from the evidence, whether there are any circumstances proven to show express malice. If no express malice has •been proven, then you may believe and find implied malice. If you are satisfied that the homicide .was committed without considerable provocation, and that all the circumstances show a malignant and abandoned heart, you can find that it was instigated by implied malice.</p> <p>I deem it necessary only to examine whether the offence has been reduced to voluntary manslaughter or to justifiable homicide. The offence could not be reduced to voluntary manslaughter by any provocation of words or threats; there must have been some assault by Henly on the prisoner, or an attempt, by Henly, to commit a serious personal injury on ■him, to reduce the crime from murder to manslaughter.</p> <p>The Court is of opinion that jealousy was not a suffieien provocation to reduce the homicide to manslaughter. Upon this subject we must speak in the language of the law, and not from the promptings of our feelings.</p> <p>To ascertain whether the homicide be justifiable, the Court •deems it necessary only to inquire whether it was committed in self-defence ? And -to make the homicide justifiable on this ground, you should believe that the killing was absolutely necessary to prevent the injury apprehended from the deceased. If you believe the prisoner could have prevented injury to himself by declining to fight with deceased, and that the latter was not the assailant^ then the offence is not justifiable homicide. You must bear fin mind the distinction between slaying to prevent an injury, and slaying in revenge of •an injury. The former may justify when the latter will not.</p> <p>, The Court is of opinion, that if the prisoner slew the deceased on account of jealousy, the case does not stand upon the footing of reason and justice that will reduce the killing from murder to justifiable homicide. Neither is the Court opinion that it i» justifiable on account of self-defence, upon-tire footing of reason and justice, unless the Lury shall be of opinion that the danger to prisoner was so urgent and pressing, at the time of the killing, that, in order to save his, the-prisoner’s. life, the killing óf Henly was absolutely necessary,.</p> <p>It was nGt justifiable to slay deceased from a dread or sus-.picion that he would commit adultery with prisoner’s wife. If he had endeavored to. enter the house for that purpose,. against the consent of prisoner, he might have been resisted at the sacrifice of his life.</p> <p>If you find the prisoner guilty of manslaughter you must say whether it is voluntary or involuntary, because the pun-., ishment is different.</p> <p>The Court has been requested, in writing, by prisoner's-* Counsel, to charge:</p> <p>"That if the Jury believes, from the evidence, that this case stands upon the same footing of reason and justice as those enumerated in the 4th division of the Penal Code, the-homicide is justifiable.”</p> <p>The Court charges the above to be true, with these modifications :</p> <p>1st. That as regards self-defence, it is provided for under the said '4th division, and is there enumerated and met by what the Court has already charged.</p> <p>2d. As regards intercourse with prisoner’s wife, the Court is of opinion that it would not have been justifiable tó slay deceased because of previous or apprehended future adultery; but if deceased had been about to enter the house of prisoner against his consent, to commit adultery or rape, that would fall upon the same footing of reason and justice as those cases enumerated in the said 4th division in the Penal Code.</p> <p>To which charge the defendant’s Counsel excepted—</p> <p>1st. That the Court erred in charging that there must have been some assault, by Ilcnly, on the prisoner, or an attempt, by Ilenly, to commit a serious personal injury on him, to reduce the crime from murder to manslaughter.</p> <p>2d. That the Court erred in’ charging, “that the Court is of opinion that jealousy was not a sufficient provocation to reduce the homicide to manslaughter — upon this subject we-must speak in the languagé of the , law, and not from , the promptings of our feelings.”</p> <p>3d. That the Court erred in charging, “ I deem it necessary only to examine whether the offence has been reduced to voluntary manslaughter or justifiable homicide;'” thereby excluding from the Jury the, question as to involuntary manslaughter, and expressing, thereby, an opinion on the evidence.</p> <p>4th. That the Court erred in charging, that “ to ascertain, whether the homicide be justifiable, the Court deems it necessary only to inquire whether it was committed in self-defence.”</p> <p>5th. That the Court erred in charging, “that slaying in-revenge of an injury cannot, in any event, justify a homicide.”</p> <p>6th. The Court erred in charging, that if the deceased was. not the assailant, “then the offence is not justifiable homicide.”</p> <p>7th. Because the Court erred in charging, that “ neither is the Court of opinion that it is justifiable on account of self-defence, upon the footing of reason and justice, unless the Jury should be of opinion that the danger to prisoner was so urgent and pressing at the time of the killing, that in order to save his, the prisoner’s life, the killing of Henly was absolutely necessary.</p> <p>8th. That the Court erred in charging, “that it was not justifiable to slay deceased from a dread or suspicion that he-would commit adultery with prisoner’s wife — if he had endeavored to enter the house for that purpose, against the-consent of prisoner, he might have boon resisted at the sacrifico of life.”</p> <p>And to which refusal to charge, in the words requested by; defendant’s Counsel,, and to the charge as given, Counsel for defendant excepted, on the following grounds:</p> <p>1st. Because the Court erred in not giving the charge requested, without modifications.</p> <p>2d. Because the modifications of law, as given by the •Court, were illegal.</p> <p>3d. Because the Court erred in charging that the requestef .prisoner was true, with these modifications: First, That as regarded self-defence, it is provided for under said fourth division, and is there enumerated and met by what the Court has already charged. Secondly, As regards intercourse with prisoner’s wife, the Court is of opinion that it would not have been justifiable to slay deceased because of previous or apprehended future adultery; but if deceased had been about to .enter the house of prisoner against his consent, to commit adultery or rape, that would fall upon the same footing of reason and justice as those cases enumerated in the fourth division- of the Penal Code.</p> <p>The Jury then retired and found a verdict of “guilty.”</p> <p>A new trial was moved, on the ground that the verdict was contrary to the law' and evidence; and also, on the several alleged errors excepted to as above.</p> <p>•The Court refused a new trial, and defendant’s Counsel excepted.</p> <p>On these several exceptions, error has been assigned.</p>

Illegality, in Wilkinson Superior Court. Decision by Judge Hardeman, October Term, 1854. Suit was brought by A. E. Cochran, as administrator, &c. against Solomon B. Murphey, Sheriff, and the sureties on his bond, on an alleged misfeasance, in demanding and taking more costs than the law -allowed. On the first trial, there was a recovery by the plaintiff below. Murphey, the principal, alone appealed.

Caveat on appeal, in Hancock Superior Court. Tried before Judge Andrews, October Term, 1854. This was a question of devisavit vel non, upon a paper propounded as the will of Daniel Hall, deceased. The first clause gave Ms wife one half of his real estate; the second-gave his cousin Samuel Hall $1.000; the third provided that what he gave his wife was during her life, and ft her' death, to dispose of as she pleased.

<p>Illegality, in Elbert Superior Court. Decided by Judge Andrews, September Term, 1854.</p> <p>The Justices of the Inferior Court of Elbert County issued an execution against the Tax Collector and his sureties, on a bond given for the collection and payment of the county tax for the year 1846. An affidavit of illegality was filed on various grounds — and among others, on the ground that the tax levied was for 62J per cent, upon the State tax, when the Statute of 1821 limited the tax to 50 per cent.; and that the levy was made by the Court without the previous recommendation of the Grand Jury, as required by that Act. The Court below held the Collector and his sureties liable, in this proceeding, for the tax, up to the amount of 50 per cent, and for all the extra 12J per cent, actually collected. This de- ' cisión is assigned as error.</p> <p>Yarious other exceptions wore filed, not considered and determined by the Supreme Court.</p>

Mandamus. Elbert Superior Court, September Term, 1854., Decision by Judge Andrews. Alexander D. Hunter being arrested on a ea. sa. gave bond for his appearance at the next term of the Inferior Court of Elbert County, for the purpose of taking the benefit of the Honest Debtors’ Act.

Case for words, in Oglethorpe Superior Court. Tried before Judge Andrews, October Term, 1854.

In Equity, in Morgan Superior Court. Decision on demurrer, by Judge Hardeman, September Term, 1855. Held: that under the will of George L. Bird no interest in the corpus of the estate vested íü Lorenzo Bird, until the time of final distribution; and that Lorenzo having departed this life before the time for that distribution, his administrator could recover no part of the • corpus of the estate. This decision is assigned as error.

On appeal, in Baldwin Superior Court. Decision by Judge Hardeman.

<p>[1.] The defendant to a bill, after answering the bill, dies. His representatives are made parties, and they file pleas in bar, and the pleas and answer are allowed and ordered “ to stand for a hearing at the final trial.” At a subsequent term, the plaintiffs move to dismiss the pleas on two grounds: First, that the deceased party had answered and filed no pleas. Secondly, that the pleas were not sworn to : Held, that the motion was properly overruled.</p> <p>[2.] If, on a settlement between trustee and cestui que trust, the trustee toll the cestui que trust that he owes him nothing more, the Statute of Limitations begins, from that moment, to run in favor of the trustee.</p> <p>[3.] An administrator, after a settlement with the distributees, makes a return to the Court of Ordinary, in which he states matters occurring before the settlement, and the payments made at the settlement, but states nothing occurring afterwards : Held, that this return is not sufficient to take the case out of the Statute of Limitations, which had begun to run in favor of the administrator from the time of the settlement.</p> <p>[4.] The party that seeks to open the settlement of an account, has upon him the burden of showing error in the settlement, and error resulting from accident or mistake, or the fraud of the other party.</p> <p>[5.] It is not error in the Court, in charging the Jury, to assume as true what is admitted by the parties to be true.</p>

In Equity, in Putnam Superior Court.' Decisions by Judge Hardeman, March Term, 1855.

In Equity, in Putnam Superior Court. Tried before Judge Hardeman, March Term, 1855.

<p>.Mandamus, in Baldwin Superior Court. Decided by Judge Hardeman, February Term, 1855.</p> <p>The petition for mandamus in this case, alleged that the petitioners wore the orphans of William Bowen; and as such, had drawn in the lottery of 1882-’8, Lot No. 141, 17th Dist. 1st Sect. of originally Cherokee, now Union County; that said lottery closed id July, 1888, before which time the petitioners had removed to the State of Mississippi, where they liave since resided; that on 1st April, 1854, they complied with all the prerequisites of the Act and applied to the Surveyor General for a plat and grant, which he refused to issue. A mandamus nisi to the Surveyor General was granted. In return thereto, he admitted the facts as alleged in the petition, and added, that to the best of his information, the petitioners drew said lot on 28d November, '1832, more than 21 years before their application 'for a grant 'in April, 1854; ¡-and that under the Act of 1843, they had thereby forfeited their .rights.</p> <p>On hearing the return, the Court below refused a mandamms absolute, and this -is the error assigned.</p>

Ejectment, in Oglethorpe Superior Court. Tried before Judge Andrews, April Term, 1855. This was an action by the heirs of George Griffith, against John G. Wright, for a part of a tract of land divided by the county lino, between the Counties of Oglethorpe and Taliaferro, and upon which tract of land George Griffith lived prior to his death. The defendant set up title under a sale by one Glenn, as the administrator of George Griffith.

In Equity, in Elbert Superior Court. Decision by Judge Andrews, at March Term, 1855. The bill of exceptions and record in this case make but a single question. The testator, Singleton W. Allen, directed that his estate should be distributed according to the Statute of Distributions. He had, during his life-time, largely advanced several of his children.

Ejectment, in Bryan Superior Court. Tried before Judge Holt, April Term, 1855. This action was brought by Way against Arnold. The former was the owner of a tract of laxid known as Silk Sope; the latter xvas the owner of a tract of land adjoining, known as Sedgefield.

<p>[1.] It is too late, after verdict,' to move for a new trial on account of the incompetency of a Juror, whose disqualification was known to the prisoner before trial, and waived.</p> <p>[2.] A defendant in a criminal case, is entitled only to a list of the witnesses -sworn before the Grand Jury.</p> <p>[3.] Ordinarily, a witness who testifies must state facts, and not his opinion or expectation, which is the conclusion of his mind, from the facts.</p> <p>[4.] Where the character of a party, as to any particular trait, or as developed under special circumstances, is put in issue, it would seem that it should be established by evidence, as to general reputation, and not positive evidence of general bad conduct. Is there any material difference as to the two modes of proof ? Quere.</p> <p>[5.] All the circumstances of a transaction may be submitted to the Jury, provided they afford any fair presumption as to the matter in issue.</p> <p>[6.] When previous throats, without any overt act, are sought to be intro-duced by the defendant, by way of justification, it must be shown that they had been consummated : Alitea-, if used merely to show the state of mind i or feeling on the the part of the deceased.</p> <p>[7.] The remoteness or nearness of time, as to threats pointing to an act sub- - sequently committed, can make no difference, so far as the competency of the testimony is concerned.</p> <p>[8.] The duty of Courts in giving in charge to the Jury the law in criminal Cases.</p> <p>[9.] Verdicts find the criminal and not the naked fact; and to make a whole or a legal verdict, the J ury must find, for itself, the conclusion of law "upon the facts.</p> <p>[10.] If one kills another, under tlie fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing is justifiable homicide ; if the prisoner is under similar fears of some injury less than a felony, the offence is manslaughter, and not murder.</p>

Case in Richmond Superior Court. Tried before Judge Holt, January Term, 1855. This was an action for malicious arrest and false imprisonment. The whole case turned upon the question, whether or not the Act of 1821, in reference to the possession of personal property, authorized the issuance of a possessory warrant, on the ground of the possession of a promissory note -claimed by the applicant.

Tried before Judge Holt, April Term, 1855. James M. Reinhart applied for letters of administration upon the estate of his wife, Cassa Reinhart. John Miller cayeated the application. Held: that by the terms of said marriage settlement, the trust was not executed, but was a continuing and executory trust, letters of administration upon said Cassa’s estate was not necessary to enable the said trustee to carry out and execute the terms of said trust. 4th.

Case, in Burke Superior Court. Decision by Judge Holt,. May term, 1855. This was an action brought against the Central R. R. & Banking Co., as lessees of the Augusta & Waynesboro’ R. R., for the killing of a slave, by the negligent running of their cars.

<p>[1.] By the Act of December 6th, 1855, a security upon an administration bond may petition for and have relief from the Ordinary, by counter-security or otherwise, as matter of right. And this Act is not repealed by the Act of December 15th, 1810.</p> <p>[2.] Such relief cannot extend to the revocation of the administrator’s letters, unless under the provisions of the Act of 1810, proof of mismanagement is made; and notice has been given to the administrator in terms of ’that Act. In this way the two Acts may subsist together.</p>

<p>[1.] An indictment for adultery and fornication against a single person, is,under the Code, good.</p> <p>[2.] The doctrine of the reasonable doubt in criminal cases, extends to cases of every degree.</p>

Libel for divorce, in Randolph Superior Court. Decision by Judge Perkins, October Term, 1855. Thomas D. Frith commenced a libel for divorce, on the-ground that his wife was pregnant at the time of marriage, and concealed the fact from him. A motion was made for temporary alimony and Attorney’s fees, when Counsel for libellant proposed to prove, by various witnesses, and the cqnfessions of tbe wife berself, that the ground taken in the libel was true.

Motion, in Muscogee Superior Court. Decision by Judge Worrell, December Term, 1854. At June Term, the case of the State vs. Winter being called, and there being no appearance, a rule nisi was taken to forfeit his recognizance. At December Term, a motion was made to set aside this rule nisi, on the following facts : Winter was very ill at the time the case was called, and unable to attend the Court.

<p>Rule, in Muscogee Superior Court. Decision by Judge Worrell, December Term, 1854.</p> <p>This was a proceeding to foreclose a mortgage given by Lawrence to Jones, to secure the payment of three notes, due respectively 25th day of December, 1853, 1854 and 1855. In the mortgage, was this clause — “ It is further understood between the parties, that if said Lawrence shall fail to pay said notes, or any part thereof, that then the said Jones may foreclose this mortgage for the balance that may remain unpaid on said notes.” But one of the notes was due when the petition was filed.</p> <p>The motion was now made (January, 1855,) to foreclose for 'the whole’amount of all the notes. The Court refused the motion, and this decision is assigned as error.</p> <p>Judge Benning did not preside in this case.</p>

<p>[1.] A writ of error will not lie to a first verdict or decree, where an appeal has been taken which is still pending.</p>

Attachment, in Marion Superior Court. Decision by Judge Worrell, at March Term, 1855. Cordy Bulloch and two others, in their affidavit for an attachment, said “that they are the securities of William D. -Shockley, on a note made payable to 3?.

Motion, in Marion Superior Court. Decided by the Justices of the Inferior Court, called in to preside on account of the interest of the presiding Judge, at February Term, 1855. A motion was made to enter a judgment nunc pro tune., upon this state of facts. A verdict had been rendered by a Petit Jury and an appeal entered. The motion was made to enter a judgment on the first verdict. The Court refused the motion, under the 66th Common Law rule.

<p>[1.] S brought suit against D & M, upon a promissory note, purporting to be signed by them as partners. D filed a plea of non est factum. There was a verdict for the plaintiff, from which D alone appealed. Upon the trial of that appeal: Held, that S could not use M as a witness, to prove the liability of D, as M was interested in casting on D a portion of the liability which was then sustained alone by himself.</p>

<p>[1.] A charge to the Jury was to this effect: that if the defendant made any representations which were untrue, and the plaintiff was induced to purchase by reason of such representations, it was not necessary to be proven that the defendant knew them tobe untrue, but that he was responsible for the representations if untrue; whether he knew them to be untrue or not: Held, that the charge was erroneous.</p>

Tried before Judge Perkins; March Term, 1855. This was an appeal from the judgment of the Ordinary, admitting to probate, the will of James Rutledge. All the questions made are included in the motion for a new trial.

Scire Facias. Lee Superior Court. Decided by Judge. Worrell, March Term, 1855. This was a scire facias to forfeit an appearance bond, given-, by William Liceth and others, his sureties. The condition off the bond recited, that “ whereas, the above bound William Liceth has been committed, in a ease of the State against the ‘ said Liceth, for an assault with intent to murder.

Motion, in Baker Superior Court. Decision by Judge Perkins, May Term, 1855. Nancy Swearingen made application for temporary alimony, pending a libel for divorce against Thomas Swearingen.

<p>Assumpsit, &e. in Muscogee Superior Court. Tried before Judge Worrell, December Term, 1854.</p> <p>This was an action brought by Henry D. Darden, for the use of Eugene Louis Jerrenaud, against John Banks, to recover the amount of two certificates of deposit, varying only-in amount, of one of which the following is a copy :</p> <p>%5.264</p> <p>“Planter’s & Mechanic’s Bank, \ Columbus, Georgia, Sept. 22,1841. j</p> <p>John Peabody has deposited to the credit of D. McDougald, Five Thousand Two Hundred and Sixty-four Dollars, which will be paid to his order on return of this certificate, in current notes. M. ROBERTSON.”</p> <p>Endorsed, “ Pay to H. D. Darden, Esq. without recourse to me, D. McDOUGALD,</p> <p>By J. Peabody.</p> <p>Pay to the order of F. Cottinett, Esq. without recourse to me.”</p> <p>Across the face written, “ Protested for non-payment, 15th Dec. 1842. Protested 16th June, 1842.</p> <p>JAMES KELLOGG, N. P. '.Fees $8.”</p> <p>The ground of liability relied on, was that Banks was a Director and President of the bank, and that there was an over-issue more than sufficient to pay these certificates, by means-of which, under the charter, the directors were personally liable to any creditor.</p> <p>The defendant filed, among other pleas, the following :</p> <p>4th. That there were seven directors of the bank, and that the others should have been joined with him.</p> <p>5th. That plaintiff’s right of action did not accrue within six months next before the commencement of his suit.</p> <p>6th. That it did not accrue within four years next before-the commencement of the suit.</p> <p>- 7th. "Was a similar plea of the Statute of Limitations of four ■ years.</p> <p>8th. That defendant, at the time of the issuing of the said, certificates, was absent from the State of Georgia, and in no wise acting in the matter.</p> <p>9th. That there were four other directors (naming them,) who were liable jointly with defendant, and should have been joined with him.</p> <p>10th and 11th was a re-production of the 5th plea.</p> <p>12th. That the certificates sued on, were issued and delivered to Daniel McDougald, for the purpose of being used him to raise money for the bank; that he paid nothing into the bank for them; that he subsequently fraudulently used them for his own purposes; that the bank refused to pay them in June, 1842, and that the plaintiff took them with full nor tice.</p> <p>At December Term, 1854, defendant announced himself." ready, if the plaintiffs had fully answered certain interrogatories propounded to them by defendant, under the Act 1847, and the several Acts amendatory thereto. On examination, it was found that the plaintiff, Darden, had filed answers, but that Jerrenaud had not answered at all; whereupon, the defendant’s Counsel moved the Court to non-suit the plaintiffs, which the Court refused. The defendant’s Counsel then moved the Court that an attachment issue to compel Jerrenaud to answer the interrogatories; which motion the Court refused, for the reason, that it was shown, to-the satisfaction of the Court, that Jerrenaud was in Europe? when the interrogatories were taken out, and had not returned, and had no opportunity of answering them — the same having been served on the Counsel. The Counsel for defendant stated to the Court, that he required and insisted on the answers of Jerrenaud, and should object to the case proceeding, until they were had. The Court decided that the defendant was entitled to them, and that it was in the power of the Court to continue the case to obtain the answers; and if a motion was made for that purpose, it would be considered; whereupon, the defendant’s Counsel moved that the case be continued at the instance of the plaintiffs, and they be ordered to file such answers; which motion the Court also over-ruled, so far as to charge the plaintiffs with the continuance. The-defendant’s Counsel then moved to continue the case, upon the ground that said answers had not been filed; whereupon, the Counsel for plaintiff objected, unless the defendant would state, under oath, what ho expected to prove by Jerrenaud. The Court held and ruled, that the defendant being in Court, should state, in writing, under oath, what he expected to prove by the answer of Jerrenaud, and that the plaintiff should have the liberty of admitting it, if they thought proper to do so; and that in that event, that he should over-rule the motion for a continuance. The defendant’s Counsel declining to do so, the motion for a continuance was over-ruled by the Court, and the trial ordered to proceed. To all of which decisions and rulings of the Court, in regard to the answers of Jerrenaud, and the several motions made by defendant’s-Counsel, the defendant's Counsel excepted.</p> <p>The defendant’s Counsel demurred to plaintiff’s declaration; and for cause of demurrer, alleged that the plaintiff’s suit, as shown by his declaration, was brought to recover of the defendant, as director of the Planter’s & Mechanic’s Bant of Columbus, his debt against the said bank, on the ground' that the bank had contracted liabilities to the amount of his-claim, more than three times the amount of the capital stock of said Bank actually paid in, over and above the specie deposited for safe-keeping;. and that the Statute incorporating said bank did not authorize any such suit as that instituted by the plaintiffs. Also, that if the Act of incorporation made the directors liable at all, they were jointly, and not severally liable, and that the plaintiffs could not sue a single director. The Court over-ruled the demurrer and objections of defendant’s Counsel, and held the suit properly brought.</p> <p>To which decision and ruling of the Court, defendant’s-Counsel excepted.</p> <p>Plaintiffs’ Counsel then demurred to and moved to strike the several pleas filed by defendant, and numbered 4, 5, 6, 7,. 8, 9, 10, 11 and 12; and after hearing argument, the Court sustained the demurrer and ordered said pleas to be stricken, not striking No. 9 for want of affidavit, but on merits, defendant offering to amend.</p> <p>To which ruling and decision, the defendant’s Counsel also excepted.</p> <p>These pleas will be found in the former part of the statement of the facts.</p> <p>Plaintiff’s Counsel then introduced Abraham B. Ragan as a witness, Avho testified that the persons incorporated by the Act establishing the Planter’s & Mechanic’s Bank of Columbus, met in Columbus in the Spring of 1837, for the purpose of organizing the bank, and the stock was all taken and divided out between the corporators; that some of them had money in bills of specie paying banks — a few had some specie, and others offered to make good notes. A committee of ' the stockholders were appointed to take the specie, bills and notes made by the stockholders, and make an arrangement with the Bank of Columbus, for the amount of specie necessary for the organization of the said bank; that said committee did make an arrangement with the Bank of Columbus for specie certificates, stating that the stockholders had on deposit in said bank, in specie, the sum of two hundred and fifty thousand dollars, and. delivered and turned the same over to the stockholders; whereupon, seven directors were elected, one of them chosen president, and a Mr. Peck elected cashier.</p> <p>Plaintiff’s Counsel then proposed to prove by the witness, that some short time thereafter, the directors divided out the stock so paid in, amongst tho stockholders who had paid it in. Tho defendant’s Counsel inquired of the witness, if tho directors, after the said organization, did not keep a record or minutes of their acts as such, and whether the action of the board, in relation to said disposition of said stock, was not recorded in said minutes. "Witness answered in the affirmative; whereupon, the' plaintiffs’ Counsel proved, by "William Dougherty, defendant’s Counsel, that some three years since, he had the minutes of the hank in his possession; that he delivered them to Dr. Elewellen, on an order from Judge Alexander, the assignee of the bank, to be used in a law-suit in Alabama. "Witness, a short time thereafter, inquired of Mr. Kent, the Counsel for Dr. Elewellen, for tho minutes, and was informed that they were left at Col. Ilolt’s office — since which time witness has not seen them, but was informed, a short ■time since, that they were in the possession of a gentleman in this town; whereupon, defendant’s Courted objected to the witness testifying to said transaction, as there was better evidence of tho facts sought to be proved, to-wit: tho said minutes of said hank. The Court ovor-ruled the objection, and the defendant’s Counsel excepted.</p> <p>The witness testified, that some two or three weeks after said _ organization, the directors passed an order, discounting or loaning out the money so paid in, except two per cent, reserved for expenses, giving the stockholders the pref-erenco, upon their making good notes, _ well endorsed, with the understanding that the same should he paid back when called for. Under this arrangement, the stockholders, generally, made their notes, and drew out the money paid in, except tho two per cent.; and the witness now only remembers a single instance where the stockholders did not take the money, and the same was given on the note of another person, not a stockholder. This was done for the reason, that the directors determined not to engage, at that time, in hanking, on account of the derangement in money matters. About that time, all the hanks in Georgia, and generally throughout the United States, having suspended specie payment. Witness thought that this derangement was not much worse when the money was discounted out, than when paid in, but was getting gradually worse. Plaintiffs’ Counsel proposed to prove by Ragan, that defendant acted as a director in 1837. Defendant’s Counsel objected; the Court over-ruled the objection, and the defendant’s Counsel excepted. Witness testified, that defendant was a director at the first organization of the bank, but resigned before the order was passed, loaning out the stock paid in, as before stated. Witness further .stated, that a new set of directors, and president and officers,' were elected in February, 1838, at which time the defendant was elected a director, and when it was resolved to commence banking business; and the directors ordered the issuing of bills to the amount of 280 or 300.000 dollars. At this point, •defendant’s Counsel inquired of the witness, whether the order and action of the directors, in issuing said bills, was not vnr>/i>*flArl qyx flio irnrvn-hA^ rtf* "W^t-TlCSS £H2£YGl’0(I ill the affirmative; whereupon, defendant’s Counsel moved to withdraw or suppress the said testimony, as there was higher .and better evidence of the same.</p> <p>The Court over-ruled the motion, and the defendant’s Counsel excepted.</p> <p>Witness testified, further, that the directors, after said second organization, and before issuing said bills, called in 50 per cent, on the notes so given for said stock so loaned. Some fifty or sixty thousand dollars were paid in, in current .funds of the State, the bills of suspended banks, except about five hundred dollars, which was paid in in specie, whilst witness remained in said bank, which was until about October, 1838, .since which time he has had no connection with said bank; that .Matthew Robertson was acting as cashier of said bank, in September, 1841.</p> <p>Plaintiffs’ Counsel introduced, as a witness, Thomas J. Shivers, who testified, that he ivas the book-keeper in the Planter’s and Mechanic’s Bank, from about 1839 to 1842; that the books shown him were the teller’s settlement, the • cash book and the book showing the statement of the bank. Witness also proved that defendant, John Banks, was a director all the time he was in the bank, and was president for a while in 1841, and thought he was in September, 1841. lie went to New York to borrow money for the bank, as much as twice, during the year 1841. Witness proved that he aided in filling up other bills, besides those statedin the issuing books, and that he knew the teller to put some of them in circulation, and he saw them in circulation.</p> <p>Plaintiffs’ Counsel then offered in evidence, the first page of the teller’s book.</p> <p>Defendant’s Counsel objected to the same, unless the whole book should be considered in evidence, to be used by either party, and the more especially without the second page' referred to, in the first; the plaintiffs’ Counsel stating that defendants might introduce the part or parts referred to, if they thought proper. The Court over-ruled the objection, and the testimony was admitted, and the defendants excepted.</p> <p>The plaintiffs’ Counsel then offered in evidence, the single Item in each and every teller’s settlement, from the first to the 1st. October, 1841; the same being made every three or four days, showing the amount of specie in the bank on the day the settlement or statement was made, and the entire settlement of 16th September, 1841. The defendants’ Counsel objected to the same going in evidence, unless the whole settlement or statement was offered or went with it; the plaintiffs’ Counsel stating, that they might read the balance if they thought proper. The objection was over-ruled, and the evidence, as offered, admitted; to which ruling, defendant’s Counsel excepted.</p> <p>Plaintiffs’ Counsel then offered and read in evidence, the certificates of deposit mentioned™ plaintiffs’ declaration, and the certificate of protest by the-notafy, Kellogg, and his depositions, proving that he presented the certificates at the counter of the bank on 15th June, 1842, and demanded payment, which was refused.</p> <p>Plaintiffs’ Counsel also offered so much of the cash book of the Planter’s & Mechanic’s Bank, as showed any transaction of Daniel McDougald with said bank, from the 1st. of September, 1841, to 21st October of the same year, inclusive.</p> <p>Plaintiffs’ Counsel then offered in evidence, that part of the books showing the state of the bank on the 17th, 20th, 23d, 27th September and 1st. October, 1841.</p> <p>Plaintiffs’ Counsel having closed his case,' defendants’ Counsel submitted a motion to non-suit tho plaintiffs, on the ground that they had failed to prove any demand on the bank for payment, or an offer to return the same by the plaintiffs before the commencement of the suit or afterwards, and that the proof showed that the demand that was made, was by one who was not the holder of the certificates, and who had no right to demand or receive payment. The Court over-ruled the motion and the defendant’s Counsel excepted.</p> <p>Defendant then introduced Matthew. Robertson as a witness, who testified, that in the Spring and Summer of 1841, the bank was hard pressed for funds to get along with its business, and it was suggested and recommended by its then president, who was Daniel McDougald, that there should be issued some certificates of deposit, and which should be sent to New York to an agent, to be sold in that market to raise money for the bank, as northern exchange was at a high rate; that southern funds were at a discount; and that witness issued a few, and they were sent on for that purpose. After that time, McDougald resigned the presidency, and the defendant was elected, and the bank still being in great want of money, the defendant left Columbus for New York for the purpose of raising money on his individual credit, and that of his associate directors, to sustain the bank, about the 1st. September, 1841, and returned about the first October thereafter. Whilst the defendant was in New York, and witness thinks about the date of said certificates,'the bank was very much pressed for money; which fact, witness communicated to McDougald, who professed to be friendly to the bank, who immediately suggested to witness, to issue more certificates of deposit, and send them to New York, stating that all the banks had been driven to, and were engaged in that business, and stated to witness that he was going to New York himself, and if he would issue them he (McDougald) would take them on and aid all he could the defendant, who was then in New York, and the agent of the bank, Mr. Clark, in raising money on them.</p> <p>That witness did adopt the suggestion, and issued a number of said certificates and handed them to McDougald, to be carried to New York for the purpose, and as before stated, and that he, the witness, is not positive, but thinks that the certificates sued on in this case, and shown to witness, are a portion of the batch of certificates issued and placed in the bands of McDougald, as before stated; that if they are a portion of that batch, no money was oyer deposited in said bank for them; that the bank never received the smallest, consideration for them, and that they were issued as before stated; nor did the bank ever receive anything from them in the way of proceeds or otherwise, from that time up to the time it closed doors and failed.</p> <p>Mr. Robertson cross-examined: Stated that he could not state positively that the certificates sued on, were those delivered to McDougald, as before stated, but he thought they were, and the only reasons he supposed they were, was that they bear date about the time that the transaction occurred, and they were for odd sums, which those certificates were issued for; and that in testifying that they were a part of those certificates so delivered to McDougald, he spoke more from his recollection and impressions when those certificates were first shown him, (which was several years since,) than from his recollection at this time; and when he first saw them, he thought they were a portion of those certificates. Witness further stated, that in making up the accounts of the bank, that they were never forced,_ and that on examining the cash book and finding the certificates of deposit sued on charged, and the account balanced, it would seem that the money was deposited for which they were given, and would be so unless the-money was there or something to represent it; that it was their custom, in transactions of this character, and such as-was not completed, and were to stand but a short time, to make what they called “cash memorandums,” which stood in the accounts of the bank in the plaee of cash, and referred to the item, cash memoranda, in the state of the bank, Sept. 16th, 1841. On being further cross-examined, and asked if he had not sworn, on a former occasion, that the bank had received consideration for those certificates, witness answered that he did not remember; and on being asked if it was shown that he had so sworn, which would he say was right or correct, what he swore then or now ? Witness stated that he should sooner rely on what he then testified to, as the matter was then fresh in his mind ; and on being shown his answers to a former set of interrogatories, and being asked what he now thought in. regard to said certificates, witness stated that he thought he was now mistaken in saying that the certificates sued on, were of those delivered to McDougald, as testified to on direct examination..</p> <p>Witness’ attention was then directed to the entry on cash book, of certain bills of exchange drawn by McDougald on Cottinett, on 11th October, 1841, and testified that they were drawn and used to raise money on for the bank, but they had no connection whatever with the certificates sued on, and was an entirely distinct transaction.</p> <p>Mr. Robertson, re-examined by defendant’s Counsel:’ Stated that his recollection was distinct as to issuing a batch of certificates and delivering the same to McDougald, as testified to, but his difficulty was, whether the certificates sued on were some of them; and being again shown his answers tq said former interrogatories, he was requested to examine closely, both the interrogatories and answers, and to state-whether there was anything in them to change the impressions which he had when ho first saw said certificates, as to-their being a part of those delivered to McDougald, as testified to on direct examination, and after re-examining said interrogatories and answers, witness stated that he did not see anything to change his first impressions;' that they were a part •of the certificates delivered to McDougald.</p> <p>Defendant’s Counsel then offered and read in evidence, the depositions of Francis Oottinett, in which ho testified that the certificates sued on once belonged to him, and were transferred to him by Daniel McDougald. They were then indorsed in blank, “D. McDougald by J. Peabody;” thinks he received them about 15th Sept. 1841. He sent them in Feb-1842, to 11. D. Darden, to be invested in cotton; he failed so to invest them, and they were returned to him; he was the owner of them in June, 1842, and sent them to his lawyer in Columbus ; lie paid McDougald for the certificates, by honoring his checks; it was a transaction on joint account with McDougald.</p> <p>The Court charged the Jury, amongst other things, as follows : That if they believed, from the evidence, that the Planter’s' & Mechanic’s Bank made the certificates of deposit sued on, and that Darden, the plaintiff, was the owner of them, and that the bank, at the time of issuing said certificates, owed more than three times the amount of its capital stock actually paid in in specie, over and above the amount of’ specie in its vaults for safe-keeping; that such excess Ayas equal to or exceeded the amount of said certificates, and that John Banks, the defendant, was a director of said bank at the time of such indebtedness; that then, the plaintiffs ’ case Avas made out.</p> <p>Ho further charged the Jury, that if they believe, that on the organization of the bank, in February, 1838, Avhen it commenced issuing bills, and until October of that year, only the sum of eight hundred or one thousand dollars, or Avhafcever sum it Avas, had been paid in specie, that the laAV presumed that no more was paid in after that time ; and if there had been, it was incumbent on defendant to prove it, it being tbe opinion of the Court, that by the charter of said bank, its capital stock was to have been paid in specie; and unless so paid, it was not to be considered as any payment at all.</p> <p>The Court also charged the Jury, that if they believe that the certificates were placed in the hands of McDougald, for the purpose of raising money on them, the law presumes that ho did so; and if Cottinett took them of McDougald, the law presumes that he took them fairly, and that he paid value for them; and that the law presumed, and the Jury were bound to presume, that Cottinett took the certificates before they were dishonored, until the contrary appeared.</p> <p>The Court also charged the Jury, that if they believed that Darden took the certificates of Cottinett after they were dishonored ; yet, if they believed that Cottinett took them before they were dishonored, that the defence relied on could not be set up against Darden, unless they believed that Cottinett took them with knowledge that McDougald misapplied them.</p> <p>The Court also charged the Jury, that if they believe, from the testimony, that McDougald and Cottinett purchased the certificates in partnership, the law presumes they paid value for them, and came by them fairly. .</p> <p>The Court charged the Jury, that if they should believe, from the testimony, that the certificates were placed in the hands of McDougald to raise money for the bank, and that he transferred them to Cottinett, and that Cottinett after-wards drew bills of exchange and paid the bank for them, they were entitled to hold them.</p> <p>The Court further charged the Jury, if they should believe, from the evidence, that the certificates were issued by the cashier, at the instance of*the president, for the purpose of borrowing or raising money, they were good against the bank, and constituted a debt, although no money was deposited, provi- • ded that was not known to Cottinett when he took them. And if so, lie wa3 not affected by it, and the bank was bound to pay thorn. To all of which charges, as given, defendant’s Counsel excepted.</p> <p>Defendant’s Counsel requested the Court to charge the Jury, that in the first organization of the Planter’s k Mechanic’s Bank, it was not necessary that each and every stockholder or subscriber should have in his possession, and by his own hands pay, twenty-five por cent, of the amount of stock subscribed; but if the Jury should believe, from the testimony, that the stockholders, bona fide, had individually or collectively, in the Bank of Columbus and. the Insurance Bank, in specie, twenty-five per cent, of the capital stock held by them, and placed, in good faith, that specie under the control of the. stockholders, or a committee of the stockholders, or other person authorized to receive it, that such j)ayment would be a compliance with the charter. Which charge the Court refused to give in the language requested, but charged the Jury, that the charter required the twenty-five per cent, of capital stock to bo actually and bona fide paid in, before the bank could do any business; or it should have that amount on hand ; and although it was so paid in, if it was afterwards distributed out amongst the stockholders, or otherwise put out, and at the time the bills were issuod, the bank did not have this specie, and in place of it, commenced business on notes given for it, the same was not a compliance with the charter.</p> <p>Defendant’s Counsel also requested the Court to charge the Jury, that it was not necessary, under the charter, that the bank should always keep and have on hand an amount of specie equal to one third of the debts and liabilities of the bank. Which charge the Court did give; and further charged, that the charter of the bank required the stockholders to pay in $250.000 of the capital stock ia specie, before commencing business. If this was done, the charter ivas complied with; and if the debts of the bank did not exceed three lunes that ■amount, there was no excess.</p> <p>Defendants’ Counsel also reqixested the Court charge the Jury, that if they believe, from the testimony, C Darden obtained the certificates of deposit after they wei honored, that the defendant could make the same defcm that he could make if the suits had been instituted by ¿V vougedd; this charge the Court refused to give, and charged the Jury, that if they should believe, from the ovidence, that Cottinett took the certificates innocently and before they were dishonored, and Darden afterwards abtaincd them from him after dishonored, yet Darden could hold them from the defence that might be set up against McDougald.</p> <p>Defendants’ Counsel also requested the Court to charge the Jury that one partner will be effected by the fraud of. •another in their partnership dealings; and if the Jury believe that if the said certificates were given to McDougald to raise money for the bank, and improperly put into circulation by McDougald, and that Cottinett was in co-partnership with McDougald in the use made of the certificates and their misapplication, that he would hold them just as McDougald did, and that the same defence might be urged against him that could be against McDougald; which charge the Court gave and qualified by further charging, that if the Jury believe that McDougald and Cottinett paid the bank for said certifi- , cates, they were entitled to them.</p> <p>Counsel for defendant also requested the Court to charge the Jury, that if they believed, from the evidence, that the certificates were placed in the hands , of McDougald for the purpose of raising money oh them for the bank, and he mis- . applied thorn by converting them to his own use, and thus improperly put them in circulation, that it was necessary that Darden should prove that he paid value received for them '.before he could recover; which charge the Court refused to give.</p> <p>The Court was also requested to charge tfye Jury, that if they should believe that the certificates were passed by McDougald to Cottinett, in payment of a pre-existing debt, after having been delivered to him for the purpose of raising money for the bank, and thus put into circulation, improperply, plaintiffs could not recover on said certificates until he should prove that Cottinett paid value for them; and that if they believed that Darden obtained them of Cottinett after dishonored, he could not, without"such proof; which charge-the Court refused to give.</p> <p>To all of which charges and refusals to charge, as requested, the defendant’s Counsel excepted.</p> <p>Upon these several exceptions error has been assigned.</p>

Assault, &c. in Baker Superior Court. Tried before Judge Perkins, May Term, 1855. Mathis was indicted, tried, and convicted of an assault with intent to commit a rape upon a little girl under the age of consent.

In Equity, in Talbot Superior Court. Decision by Judge-Perkins, March Term, 1855. In 1825, Seaborn Jacobs died, owning a small estate, and leaving a widow and two infant children. George M. Gullett became the adm’r, and took possession of the estate. In 183-, letters dismissory were granted by the Ordinary of Talbot County, to the administrator. Gullett afterwards died, ••and Joseph Pou was appointed administrator of his estate.

<p>[1.] A deed, in the name of A B, was proved, on the part of the plaintiff, by the testimony of the subscribing witnesses. Then the defendant offered A B as a witness to prove the deed a forgery. The plaintiff objected to the admission of A B's testimony, upon the ground that it was “ incompetent” for the makers “ to gainsay what the subscribing witnesses had sworn.” The Court over-ruled the objection: Held, that the Court did right.</p> <p>[2.] B makes a deed for a piece of land to C, and afterwards makes another deed for the same piece of land to T. The younger deed is duly recorded— the older not: Held, that T, the donee in the younger deed, is not estopped from the right to say that B had not conveyed the land to C, the donee in the# older deed. ™</p>

<p>Murder, in Muscogee Superior Court. Tried before Judge Worrell, December Term, 1854.</p> <p>Bill (a slave) was indicted for the murder of Caesar, another ¡slave. The evidence showed that both of them were employed about a livery stable in Columbus. Bill was just grown _and smaller than Caesar, who weighed 188 pounds. Bob, another slave, and Caesar, had a scuffle, (the morning of the homicide,) and Bill "devilled” Caesar about Bob’s’ scratching his neck. The latter begged him to let him alone, and then got mad. They all wont to carry horses to the trough to water. Bill had his hand in his pocket on his knife — dared Caesar “to make a riffle towards him, and he would cut his heart out of him.” Caesar would not hit him, and then Bill ¡said he would give him first lick, and see if Caesar would "mash Mm up.” Bill left his horse, and went round and slapped Caesar, with his hand, on the shoulder. Caesar showed no fight. Bill then stabbed him. This was the substance ,of the testimony.</p> <p>Counsel for defendant requested .the Court to charge, “That if the Jury should believe that defendant believed that lie was without friends amongst the negroes at the stable, and that Caesar and the balance of the negroes were associated to oppress and harrass him; and if, in this connection, Bill believed that it was the intention of Csesar to “mash him up;” and if Bill acted on this belief, under these circumstances, without malice aforethought, then it was manslaughter and not murder.” The Court refused so to charge, and defendant’s Counsel excepted.</p> <p>The Court charged the Jury, that the definition of manslaughter, as laid down in the Penal Code of 1833, was applicable in the trial of a slave or free person of color. To this charge defendant’s Counsel excepted.</p> <p>These are the only errors assigned.</p>

Rule, in Muscogee Superior Court. Decision by Judge Worrell, December Term,-1854. At November Adjourned Term of Muscogee Superior.

Assumpsit, &c. in Marion Superior Court. Tried before Judge Worrell, February Term, 1855. This was an action of assumpsit, by Hancock against Ross, for the price of a buggy and harness. At the trial, plaintiff proposed to prove, by A. D. Chambliss, that “ defendant offered him, as agent -for plaintiff, $155 for the buggy and harness, and witness agreed to take it if he could do no better. .Afterwards, witness met him and told him. ho had brought .him the buggy.

Decided by Judge Worrell. This was a claim case. The levy was under a mortgage fi. fa. issued on a mortgage made, by > defendant in fi. fa. to William Wells and Burton W. Dowd, dated- 2d November, 1840, and oh which was entered, “ Recorded in book E, 2d February, 1841. B. W. Dowd, Clerk.” The claimants were purchasers under younger judgments. The whole issue in the case was, whether the mortgage was properly recorded, and within time.

Ejectment, in Marion Superior Court. Tried before Judge Worrell, February Term,. 1855. This action was for land on the demise of John Joiner and others vs. Job Turner, tenant in possession. On the trial, Turner offered in evidence an established copy of a Sheriff’s deed — established by the Superior Court of Marion County —the deed being made by Cullen R. Lockett, former Sheriff.

Motion, in Marion Superior Court. Decision by Judge Worrell, February Term, 1855. Burkhalter recovered a judgment against Bulloch, from which Bulloch appealed, paying costs and giving security. At the first term of the appeal, a motion was made to dismiss the same, on the ground that the security was insufficient; and that if ever sufficient, it had become insufficient pending the appeal. Issue was joined on these grounds by Bulloch, , and found against him.

In Equity, in Marion Superior Court. Decisions by Judge Worrell, February Term, 1855. Consolidated, by consent, in the Supreme Court. On 12th April, 1854, Osborne Edwards executed a deed of trust to James Perryman, conveying certain lands, negroes, and three promissory notes — one on II. M. Jeter, one on II. K. Lamb, and one on Wm.

<p>[1.] Under the Act of 1847, to simplify pleadings, an action was brought on a note which had been duo more than six years, but which had on it, soveral credits; and among them, a credit made within six years, next before the commencement of the suit, but not within six years, next after the making of any other of the credits, or within six years, next after the maturity of the note: JTol/i, that the action might well be brought under the Act.</p>

<p>Murder, in Muscogee Superior Court. Tried before Judge' Worrell, at January Term, 1855.</p> <p>.David II. Wrigbt was indicted at June Term, 1854, for the* murder of Alexander M. Robinson, alleged to have occurred! in February, 1854. At Juno Term, 1854, a copy of the’ indictment and list of witnesses was waived. At January Term, 1855, when called for trial, Wright moved a continuance upon thefollowing showing:</p> <p>THE STATE vs. DAVID WRIGHT.</p> <p>Indictment for Murder, in MuscogeeSuperior Court.</p> <p>And now, at this term, comes the defendant, in his own proper person, in open Court, and asks the continuance of said case; and for causes of continuance, states, on oath—</p> <p>That Walter T. Colquitt, Esq. is his original and leading Counsel in said case; that since he has been accused of said offence, and during all the period of his confinement in jail, he is the only one of his Counsel with whom he has personally conferred in the preparation of his defence, and with whom he has fully and freely communicated in relation thereto ; that for the employment of his Counsel he is indebted to the kindness of his father; and that said Walter T. Colquitt was his first and leading choice, and the Counsel upon whom lie mainly relied, and with whom he has mainly conferred. And defendant saith, that he feels both unwilling and unready to go to trial, without his aid and assistance; and that he is informed,, and believes, ho is unable, from serious indisposition, to render him such aid and assistance.</p> <p>And as a further ground for continuance, deponent atatesthat he cannot go safely to trial in the present excited state, of the- public mind against him; that acting upon the love of liberty, which ho presumes common to all, he escaped from his long and tedious confinement in jail; and that individuals, aided by the public press, have used the occasion of his-re-capture and return to jail, occurring on the 30th ult. and during the present term of this Court, to throw' out the most-exaggerated statements concerning him; and thus, so to influence public prejudice against him, as to create, he appre-hends, the too general desire and hope that he has been remanded to jail, there to remain until ho is taken thence by the sentence of the Court, and to prevent him from obtain-ing, at the present term, a fair and impartial Jury. And this deponent saith, that his application for a continuance of . the case on these grounds, is not made for delay, but to accomplish for himself a fair and impartial trial, and to be aided therein by the Counsel of his choice; that he hopes, by another term of the Court, that the health of the said W. TV Colquitt will bo restored, and such aid rendered him; and that by another term, the public excitement and prejudice against him now so industriously created, will have abated,- and that he will be able to select a Jury, uninfluenced and unaffected thereby.</p> <p>And deponent further saith: Christopher Finley is a material witness for him, and that ho is informed and believes, that he has been subpoenaed, and resides in the Coun-ty of Bibb, and is not absent, by his leave, consent or procurement.</p> <p>That he expects to prove by said Finley, that he was in-company with this deponent on the night of the alleged shooting, and that he, this deponent, had no pistols or other fire-arms; and that the pistol or pistols said to have been found near where he was arrested, were not the pistols of this de ] ponent; and that he, the deponent, did not have the same in his possession on the night of the shooting; and he further' expects to prove by said Finley, that he (Finley) was near by" when Robinson was shot, and that there was but one pistol fired on the side walk in front of the Pleasant Hour, where • said shooting of Robinson occurred.</p> <p>Deponent saith, that this affidavit is not made for delay,. but to enable him to procure the evidence of the said Finley, which he hopes and expects to do at the next term of the-Court. DAYID H. WR-IGHT.</p> <p>Sworn to and subscribed in open Court, this 9th Jan. 1855.</p> <p>David J. Barber, Clk.</p> <p>The Court over-ruled and denied the motion; to which ruling and decision, the said defendant, by his Counsel, then and there excepted.</p> <p>A Jury was impannelled, and the Sol. Gen. fro. tem. James N. Ramsey, submitted the cause to the Jury, by an opening speech explanatory of the nature and importance thereof, but without submitting the bill of indictment against defendant to the Jury, by reading the same, or tendering the same to his Counsel.</p> <p>During the impannolling of the Jury in the case, one Jenkins Lowe was called as a Juror, and being put upon his voire dire, in answer to the usual question, rendered himself competent. The prisoner demanded the examination of the-Juror before triors, which was granted, and before the triors the Juror announced, “that he had formed and expressed an opinion from rumor and report, but that such opinion was not fixed and decided; that he had said, if what he had heard should be proved to be true, the prisoner ought to be hung; that he had heard the prisoner shot down deceased in the - street, when he went to arrest him, without provocation;” thereupon, the Court charged the triors, “ that the mere formation of an opinion did not disqualify a Juror, but that such opinion must be both formed and expressed, and must be fixed and- decided; and that if not so fixed and decided, it did not disqualify him.”</p> <p>To this charge the defendant excepted.</p> <p>During the impannelling the Jury, very many of the Jurors called were put before triors; and the Court, in all such cases, charged the triors, as the law, that the mere formation •of an opinion did not disqualify a Juror; but that it must be both formed and expressed, and fixed and decided, to amount to a disqualification; and to each and every of such charges defendant excepted.</p> <p>During the progress of said trial and the taking of the evidence therein, it was proposed to prove the deceased, at the ■time of said killing, was the Deputy Sheriff of said County of Muscogee, and had a warrant against the defendant, and to give in evidence said warrant. To all and every part of which evidence, and to the admissibility of said warrant in evidence, the defendant, by his Counsel, objected ; which objection was over-ruled, and defendant excepted.</p> <p>The Counsel for the prisoner asked the Court to charge the Jury, that they were the judges of the law as well as of the facts in criminal cases.</p> <p>In answer to this application, the Court replied, “ that he would, if not objected to, read what the Supreme Court had said upon that subject, which was as plain as any thing he could say.” And therefore, no objection being made, the Court read from the case of The State vs. Holder, (5 Ga. R. 445,) the following words- — giving no other or further charge in answer to said application: “We only say, that it is the right and duty of the Court to declare the law in criminal cases, as well as in civil; and that it is, at the same time, the right of the Jury to judge of tbc l°w ns well as cf the facts in criminal cases.” To which refusal to charge and charge given, defendant excepted.</p> <p>Objection was made to the verdict being received, on the ground that the indictment had not been read t' the Jury or submitted to the Counsel. The Court over-ruled the objection, and defendant excepted.</p> <p>On these several exceptions, error has been assigned.</p>

Probate of will, in Stewart Superior Court. Tried before Judge Worrell, April Term, 1855. A single question was made in this case. Jesse G. Meadows, one of the witnesses to the will, not being able to write his name, another of the witnesses wrote it -for him and at his request. , He was about to make his mark, when testator, said it was unnecessary, if the witness was present, saw it done .and assented to it. On these facts, the Court below refused probate to the will.

Suit for land, in Stewart Superior Court. Tried before Judge Worrell, April Term, 1855. This was an action for the recovery of land brought under the form prescribed by the Act of 1847. At the trial, plaintiff’s Counsel moved to amend the declaration, by inserting the names of the heirs of the grantee as co-plaintiffs. The Court refused the amendment, and plaintiff excepted.

<p>Debt, in Stewart Superior Court. Decision by Judge Woe] reel, April Term, 1855.</p> <p>This was an action on a bond purporting to be and taken as a bail bond. The condition of the bond was, “if the said G. and J. Zuker, (the principals) in case they are cast in said suit, shall render their bodies to prison, in execution of’ the same, in terms of the law, in such case made and provided, and upon failure thereof, tho securities will do it for them.”' A motion was made for a non-suit, on tho ground, that the bond has therein a condition onerous to the obligors, and not-authorized by law'; and therefore, void.</p> <p>The Court sustained the motion, and this decision is assigned as error.</p>

Case for deceit, in Stewart Superior Court. Motion for a new trial. Decided by Judge WORRELL, April Term, 1855. Wm. B. Bennet brought an action for deceit against Samuel L. Terrell, for fraudulently representing to plaintiff thaone James O. Wilkerson was solvent, and thereby inducing plaintiff to give him credit.

Assumpsit, &c. in Stewart Superior Court. Tried before Judge Worrell, April Term, 1855. Joseph Andrews brought suit against Thomas P. Bartee for his wages as overseer. The contract proven was, that Andrews was to have one-fifth of the crop made. Bartee discharged Andrews during the year, gathered the crop himself, and failed or refused to pay him his share.

Debt, &o. in Muscogee Superior Court. Tried before Judge VfoRRELL, December adjourned Term, 1854. This suit was commenced by Samuel A. Bailey, as the bolder of bills of the Planter’s & Mechanic’s Bank of Columbus, against the adm’x of Daniel McDougald, one of the stockholders in said bank, to compel from him the ultimate redemption of said bills. It appeared, on the trial, that Samuel Á.

In Equity, in Stpwart Superior Court. Decision by Judge Worrell, April Term, 1855. Thomas Napier, by bis will, bequeathed certain property to trustees for his son, Thomas T. his wife and his children. James L. Delaunay married one of the children. The trustees loaned him a part of the trust funds, and took two mort.gages to secure the re-payment thereof. Prior to the mort,gages, certain judgments had been recovered against Delaunay.

Complaint, in Marion Superior Court. Tried before Judge Powers, February Term, 1855. This was an action on a promissory note for $400.

Debt, in Muscogee Superior Court. Tried before Judge Worrell, December Term, 1854. This was a suit by a bill-holder against a. stockholder, in the Planter’s & Mechanic’s Bank of Columbus, to enforce the liability to redeem sundry bills sued-on,' amounting to $1900.

Assumpsit, &c. in Dougherty Superior Court. Tried before Judge Perkins, June Term, 1855. Jesse M. Davis sued Benjamin O. Keaton for fifty dollars, as money paid out for him, viz: in paying for medical services-rendered to the son of Keaton, boarding with Davis. Upon the trial, plaintiff below offered the depositions of the physician, proving the amount paid and the services rendered.

<p>[1.] Much latitude of discretion must be allowed the Courts, as to their mode of conducting business ; to fetter their hands too much, would great-ly impele and embarrass the administration of justice.</p> <p>[2.] Where the defendant is indicted for an assault, with intent to murder, audit was proposed, by his Counsel, to prove a previous fight between the prosecutor and himself, two years previously, and then connect the two, by continued intermediate threats and acts of violence, on the part of the former, it is not error in the Court to require of Counsel to begin at the offence charged in the indictment, and travel back to the first fight, befor e that shall be given in proof.</p> <p>[3.] It is the duty of the Judge to have all the evidence taken down, which is submitted to the Jury in the trial of felonies ; still, it is questionable whether his failure to do so would constitute a good ground for a new trial.</p> <p>[4.] Where there is a conflict in the testimony, Counsel, in his concluding argument, will not be stopped by the Court, as misrepresenting the testimony, because ho assumes that the facts testified to by his witnesses were proven.</p> <p>[5.] When the Court has charged, fully, all the law of the case, and the Jury, after consulting, return for further instructions upon some particular point, . the Courtis not bound to repeat all the law favorable to the accused.</p> <p>[6.] Judgment will not be arrested because three of the nineteen Grand Jurors’ names are set out by the initials of the Christian name only.</p>

<p>[1.] A mortgage executed by a defendant against whom a verdict has been-, rendered, upon which an appeal has been taken, is an alienation, within the sense of the Act of December 19th, 1822, passed for the purpose of preventing “ an alienation by the party of his, her or their property, between tho signing of the first judgment and the judgment on the appeal.”</p>

<p>Rule, in Dougherty Superior Court. Decision by Judge Perkins, at Juno Term, 1855.</p> <p>A fi. fa. vs. Andrew Y„ Hampton, issued from May Term, 1854, and returnable to November Term, 1854, of Dougherty Superior Court, was plaeed in the hands of John N. Phillips, the Sheriff, on 23d June, 1854. At June Term, 1855, a rule nisi was granted, requiring the Sheriff to show cause why he should not pay over the amount duo on said fi.'fa.</p> <p>The Sheriff returned, that since the last term of the Court, he had seized and sold all of the property of defendant, the proceeds of which were subject to the order of the Court 'that the sale of seven negroes had been stopped by an injunction, granted by this Court since the last term. The amount in his hands was $27.408 77, claimed by sundry fi,. fas. most •of them older than that of the movant’s.</p> <p>The Court refused to make the rule vs. the Sheriff absolute; and this decision is assigned as error.</p>

Probate of will. On appeal, in Lee Superior Court. Decision by Judge Perkins, Juno Term, 1855.

In Equity, in Dougherty Superior Court. Decision by Judge Perkins, at Chambers, 19th January, 1855.

In Equity, in Baker Superior Court. Decision by Judge Perkins, June Term, 1855. Held: or give him such compensation therefor, as would be satisfactory to him; that in pursuance of this understanding, Clifton ceased to bid, and the lot of land was knocked off to Lawton, at the sum of $300; that Cheever was present, knew the value of the land and assented to the sacrifice, and that this was a fraud upon the rights of…

In Equity, in Dougherty Superior Court. Decision by .Judge Perkins, at June Term, 1855.

Assumpsit, &c. in Dougherty Superior Court. Tried before Judge Perkins, May Term, 1855. This was an action brought by Lockhart & Thomas against Noah McNabb, for a sum of money entrusted to his care, and which he never delivered, but alleged had been lost.

In Equity, in Dougherty Superior Court. Application for' and sanction of injunction, by Judge Perkins, May Term,-1855. ' .

<p>Assumpsit, &c. in Lee Superior Court. Tried before Judge' Worrell, December Adjourned Term, 1855.</p> <p>'The plaintiff in error was sued as indorser upon the following note:</p> <p>$1,100.</p> <p>On the first day of January, 1852, I promise to pay Griffiin Smith or order, eleven hundred dollars, with interest from date, at the agency of The Marine & Eire Insurance Bank at Macon, for value received. This 4th January, 1851.</p> <p>JNO. S. SUDDETH</p> <p>Indorsed by Smith to Butler ; and by Butler to J. Olm-stead, Cashier.</p> <p>On the appeal, plaintiff’s Counsel moved to strike out the plea of defendant, that he had never received notice of the non-payment of the note at maturity, on the ground that the note was not made payable, or intended to be negotiated, at a chartered bank. The Court struck out the plea, and this -decision is assigned as error.</p>

Certiorari, in Lee Superior Court. Decision by Judge Perkins, December Term, 1854. The plaintiffs in error petitioned for a certiorari to certain decisions made by the Inferior Court of said County, at January Term, 1853, upon written exceptions taken at the triah The application was made 11th July, 1853, and due notice .given to the opposite party. There was attached to the petition, an exemplification of all the proceedings of the Inferior Court in the said cause.

Decision by Judge Worrell, at Chambers, 20th June,. 1855. Andrew McNeely, by his last will and testament, gave and-bequeathed to his wife, Esther, as follows: “four hundred-and eighty dollars; and I also require my son-in-law, John Whigham, to build her a good, comfortable house the plantation where I now reside, to be used and occupied by her during her life, or as long as she may choose ; and my said son-in-law is also to furnish her, yearly, and' every year during her…

Ejectment, in Sumter Superior Court. Tried before Judge Perkins, February Term, 1855. Plaintiffs in error brought suit in ejectment against the defendant, for lot land No. 23, in 28th district of Sumter County.

<p>Motion to establish lost papers, in Early Superior Court. Decision by Judge Perkins, April Term, 1855.</p> <p>This was a motion in the Court below, to establish as lost office papers, an affidavit and warrant, to apprehend a slave for an alleged offence, together with the proceedings thereon, including a petition for and a writ of habeas corpus, sued out and decided at Chambers. The Court below refused the motion, and this decision is assigned as error.</p>

In Equity, in Calhoun Superior Court. Decision by Judge Perkins, at May Term, 1855.

Motion, in Dougherty Superior Court. Decided by Judge Perkins, June Term, 1855. Jordan was indicted for voluntary manslaughter. At May Term, 1855, after the Juries were discharged, (the case not having been called in its order, because it ivas not reached,) he moved to place upon the minutes a demand for trial. The Court refused the motion, and this decision is assigned as error.

<p>[1.] Though a witness be examined irregularly by the Solicitor General; yet, if no objection be made at the time, but the opposite party permit the examination to proceed, it may be presumed that the irregularity was waived ; and if no interposition, on the part of the Court, is invoked, and no opinion on the point expressed by the Court, there has been no decision, sentence, judgment or decree for the revision or'determination of this Court.</p> <p>[2.] It is not only the right, but the duty of the Judge, to revise and correct the brief of testimony, in all cases where it is required to be filed.</p> <p>[3.] Although it is loose, and highly irregular and improper, for any portion of a Jury, after being sworn in a cause, to enter a retail grocery, and there to converse with various persons; yet, where it appears that they were accompanied by the Bailiff: .that he heard all that was said; that they did not converse about the case; and especially, where it is shown that the prisoner, himself, was present, and no injury resulted to him from the conduct of the Jury, the Court will not interfere-with the verdict.</p>

<p>Trespass, in Muscogee Superior Court. Tried beforJudge Worrell, at December Term, 1855.</p> <p>Seaborn Jones brought suit against the Water Lot Company of the City of Columbus, for a trespass, in overflowing the water wheels of plaintiff’s mill, by erecting and raising a dam below, and causing the water to flow back. Plaintiff claimed under a grant from the State of Georgia, and proved on the the trial the trespass laid. It was also proved that plaintiff’s own mill-dam, extended across the river; and without extending across, the mill would be worthless.</p> <p>The Court charged the Jury, that if they believed that the plaintiff’s dam did not extend across the river, his mill was valueless, and he could not recover for overflowing his wheels; and, if they believed it did extend across the river, then it was erected on land not conveyed by the State to him, and .he had no right to recover, except nominal damages for overflowing his land.</p> <p>The Court declined to charge the following requests:</p> <p>1. That if plaintiff erected his dam on the land belonging to the State, he was accountable only to the State, and that it did not justify defendant’s trespass.</p> <p>2. That the plaintiff could recover for a trespass to property in his possession.</p> <p>3. That the charter of the defendants did not authorize 'the erecting of a dam and the trespass on plaintiff.</p> <p>The charge given, and the refusals to charge, are the errors assigned in this Court.</p> <p>A motion was made for a new trial, on the ground that the verdict was contrary to the charge of the Court, in this: that the Court charged that they should give the plaintiff nominal damages, when the Jury found for defendants. The Court ordered a new trial, unless defendant would pay the plaintiff nominal damages and the cost; whereupon, defendants tendered the plaintiff one dollar for damages, and seven dollars and fifty cents costs, which he declined to receive.— The Court refused a new trial, and this is also assigned as .error.</p>

In Equity, in Coweta Superior Court. Demurrer. Decided by Judge Bull, September Term, 1854. This bill was filed by Thomas R. and John Greer, and Thomas R. as the next friend of Sarah A. Greer, heirs of William D. Greer, deceased, against the plaintiffs in error..

In Equity, in Coweta Superior Court. Demurrer. Decided by Judge Warner, September Term, 1854.

<p>In Equity, in Monroe Superior Court. Demurrer. Decided by Judge Stark, March Term, 1855.</p> <p>David S. Walker, a citizen and resident of Alabama, departed this life insolvent. He owed no debts in Georgia at the time of his death, nor had he ever resided here so that suits might have been brought against him. He was largely-indebted in Alabama, in judgments recovered against him-, there, which were, at the time of his death, good and subsisting judgments against him, unaffected by the Statute of Limitations ; and that they are now good and valid there against 'Ms estate — not affected by the Statute in that State, but barred here. His creditors are all citizens of Alabama. Before his death, John T. Dunn, of Monroe County, Georgia, of whom the said David S. Walker was one of the heirs at law, departed this life; and the said David S. having died before he collected any part of the distributive share to which be was entitled, the plaintiff in error administered on his 'state, and has collected the greater part of it from Dunn’s administrator. The judgment creditors of Walker, in Alabama, have sued Walker’s administrator in Monroe County, and with the consent of plaintiff in error, but not by his request; the Attorney of the heir at law of Walker, has filed the plea of the Statute of Limitations, in bar of the recovery of the judgments, and insists that he shall make that defence. The Alabama judgments, with the interests which have accrued thereon, exceed the amount of the assets, in the hands of the plaintiff in error. James Thompson and his wife, Martha Jane, the latter of whom is charged to be the only heir law of David S. Walker, have instituted a suit in Chancery to recover the whole of the assets of his estate, to the exclusion of his creditors, which suit is still pending. There are no effects of Walker, in Alabama, from which the judgments against him can be paid. There is an administration of the estate of Walker in the State of Alabama. The judgment creditors of Walker, in Alabama, insist that the assets of Ms estate shall be transmitted to Alabama, to be there distributed according to the law of decedent’s domicil; or if distributed hero, that they shall be distributed according, to that law. The plaintiff in error, as administrator of Walker, filed his bill in Chancery, in the which the foregoing facts appear, and prayed the direction of the Court as to his duty. ‘The defendants, Thompson and his wife, heirs at law of DaYid S. Walker, demur to the bill on several grounds, to wit:</p> <p>1st. The want of equity.</p> <p>2d. That complainant is not entitled to the relief sought and the decree prayed for, because it does not appear that there has been any administration on the estate of David S. Walker, in the State of Alabama.</p> <p>3d. That the Court of Chancery of Monroe County, according to' the case made, has no jurisdiction of the effects in his hands, for the purpose of transmitting them to the State of Alabama for administration there, at his instance, as administrator ; and will exercise jurisdiction, for the purpose aforesaid, only at the instance and upon the application of some person legally entitled to receive them.</p> <p>4th. That the Court has no jurisdiction for the purpose .aforesaid, of the effects aforesaid, because there are no debts in said bill charged to be due and owing by said Walker, except those set forth in complainant’s bill, and they are barred by the Statute of Limitations of the State of Georgia, and are thereby extinguished.</p> <p>5th. That from the charges and allegations in the bill, all persons who are interested in the estate of the deceased, in the State of Alabama, either as creditors or distributees, are asserting their rights, by legal process, under the laws of Georgia, and have thereby elected to have the same adjudicated by the Courts and under the laws of said State; and, therefore, this Court will not grant the relief and award the decree asked.</p> <p>6th. That complainant, in his said bill of complaint, charges and alleges, that debts are due and owing by the estate of Said Walker, in the State of Alabama — are payable by the laws of said State; and on that account, and no other, asks a decree, that the effects in complainant’s hands shall bo transmitted to said State, and the said defendants, for demurrer, shoAV that debts duo by a person domiciled in a foreign State, or a claim upon effects within the jurisdiction of this Court, are payable under and according to the laws of Georgia, and not otherwise.</p> <p>Argument being had upon the demurrer, the Court sustained the demurrer, and ordered tho bill to be dismissed, and Counsel for complainant excepted.</p>

Caveat, in Pike Superior Court. Tried before Judge Stark, April Term, 1855. Mrs. Christiana Hall died, having first made and published her last will and testament, appointing Wiley E. Mangham. her executor.

Indictment for simple larceny, in Macon Superior Court. Tried before Judge Powers, March Term, 1855. The defendant, Poole, was arrested on the 18th day of March, 1855, for stealing a slave, the property of James S. Hollingshead, and committed to jail. The Grand Jury of Macon County, On the 27th day of the same month, found and returned a bill of indictment against him for the offence.

Trover, in Newton Superior Court. Tried before Judge • Stark, March Term, 1855. This was an action of trover brought by John P. Booth and his wife, Martha Booth, against Richard Terrel, for the recovery of eight negro slaves, to wit: Letty and seven chilren, named in the declaration. Pending the action, John P. Booth died, and the same proceeded in the name of the wife. The defendant pleaded the general issue and the Statute Limitations.

Trover, in Meriwether Superior Court. Tried before .-Judge Bull, February Term, 1855. This was an action of trover, brought by Edward J. Dawson against James Callaway, for the recovery of four negroes —Patsey and her three children. The defendant pleaded' the general issue and Statute of Limitations. On the trial, the plaintiff proposed to read the evidence of David Dawson, taken by commission.

<p>[1.] The General Assembly liave the right, should the public good require-it, and public opinion demand it, to pass a law to restrict or even suppress the internal traffic in spirits ; and this power may be delegated to a municipal corporation, to be exercised within their corporate limits.</p> <p>[2.] By the second section of the amended charter of 1854, the Mayor and Council of the City of Griffin “ have full power and authority to pass any by-law, regulation or ordinance, that shall appear to them necessary and proper, for the security, welfare and interest of said oily, or for preserving the peaco, health, good order and government of the same.” And the seventh section of the same charter provides, “that the Mayor and Council shall have power to license persons to retail, and sell by retail, spirituous liquors, within the said city, according to tho ordinances thereof; and that no person or persons shall sell, by retail, any spirituous liquors within the same, without first obtaining such license": Held, that an ordinance prescribing $500 as the fee for a retail license, was constitutional and valid.</p>

Attachment, in Macon Superior Court. Tried before Judge Powers, April Term, 1855. On the 31st day of July, 1854, A. B. Ross, as agent for plaintiff in error, sued out an attachment against the defendant; and at the same time, commenced an action of debt against the defendant, in which he required bail. The twprocesses were placed in the hagids of the Sheriff, on the same day.

Award, in Dooly Superior Court. Tried before Judge Powers, April Term, 1855. This was an appeal taken by the Oglethorpe Bridge & Turnpike Company, from award rendered by three commissioners, to-wit: D. S. Harrison, W. H. Byrum and W. Beverly, selected by the parties and the Inferior Court of Dooly County, assessing damages for land and a ferry belonging to James W. Armstrong, and appropriated to their use by said company.

Assumpsit, in Spalding Superior Court. Tried before Judge Starice, November Term, 1854. This was an action of assumpsit, brought by Archibald M.'. Nall, against Addison A. Wooten and Hugh P. Kirpatrick, upon the following promissory notes : “ Griffin, February 16th, 1852. One day after date, we or either of us, promise to pay A. M. Nall or bearer, Nine Hundred and Ninety Dollars for value received. A. A. WOOTEN.” “ Griffin, February 16th, 1852.

Trespass, in Upson Superior Court. Tried before Judge Starke, May Term, 1855. This was an action of trespass brought by Absalom C. ‘Cleveland, in his life time, against Roswell Powell, for the recovery of the value of a negro man slave, Bill, the property ••of the said Cleveland. The questions in the case arose upon the admissibility of certain testimony.

Attachment, in DeKalb Superior Court. Tried before Judge Dull, April Term, 1855. William C. Cain, Agent for the Holston Manufacturing Company, applied to S. G. Howell, Judge of the Inferior Court of DeKalb County, for an attachment against Albert M. Lea, a non-resident of the State.

Trover, in Butts Superior Court. Tried before Judge Starke, March Term, 1855. This was an action of trover, brought by John E. Lyons against Bryan W. Collier, for the recovery of the value of a negro man, slave, Wesley. It appeared in evidence that the defendant was the owner of a mill; the plaintiff sent his negro man, Wesley, to the mill, with corn to be ground.

<p>[1.] Debts secured by negotiable instruments, may be the subject of garnishment.</p> <p>[2.] The transfer of a negotiable note as collateral security, puts the debt beyond the reach of a garnishment, at the suit of the creditor of the assignor — a garnishment served subsequently to the transfer.</p> <p>[3.] If a garnishee's answer is, that he made to the debtor a negotiable note, and also, that he is well satisfied that the note was transferred by the debtor, before service of the garnishment, it is not such an answer as will authorize the Court to render a judgment against the garnishee.</p>

<p>[1.] An Attorney who has collected money for the Central Bank, to whom, the State of Georgia is indebted for fees, has a right to retain, in his hands, money sufficient to satisfy his claim ; and on a motion made on the part of the Central Bank, to attach the Attorney for his failure to pay over the money so collected, he will be permitted to show that the State is indebted, to him for professional services ; and if this be shown, the same should be' allowed as a credit or set-off against the demand upon which he is ruled.</p>

In Equity, in Eibb Superior Court. Tried before Judge Powers, May Term, 1855. This bill was filed by William A. B. Goddard against Smith L. Terrell.

In Equity, in Houston Superior Court. Tried before Judge Powers, May Term, 1855. The bill alleges— 1. That, on the 17th Eeb. 1852, Wm. J. Thomas and John A. Lavender purchased, jointly, of Reuben H. Slappey and Littleberry Mulkey, five acres of land in the 8th district, a part of No. 92, except the right of way for rail road. 2.

<p>Case, in Bibb Superior Court. Tried before Judge Powers, May Term, 1855.</p> <p>This was an action on the case, brought by the defendant in error, James M. Davis, as administrator of Willis Boon, deceased, against the plaintiff in error, to recover the value of a negro man slave, and a rockaway carriage.</p> <p>It appeared in evidence, that on the 14th day of December, 18 — , the engine and cars of the defendant run over and killed and destroyed the said slave and carriage, at a public crossing over said rail road, at or near Prattsville, in the County of Monroe. It further appeared, that Mrs. Winn, who was in the carriage at the time, with her four children, saw and heard the train of cars before the carriage reached the crossing; and when she got near it, directed the driver to stop until the train passed; the driver refused to stop,, and attempted to cross before the train. The mules attached to the carriage stopped on the rail road track and refused to move; and in that situation, they were run over b.y the engine. It also appeared in evidence that the engine and train. were going at full speed when Mrs. Winn saw it approaching'; that it was going an up-grade, and that the carriage could have been seen two hundred yards, as it approached the crossing. If the driver had obeyed the instructions of' Mrs. Winn to stop, the injury would not have occurred.</p> <p>Plaintiff failed to prove that he was the administrator of Willis Boon, to whom the negro and carriage belonged, though it was alleged and proved that the injury happened after the death of the intestate.</p> <p>Plaintiff in error filed the following assignment of errors upon the bill of exceptions:</p> <p>1st. The Court erred in refusing to charge the Jury, that the plaintiff could not recover without proving that he was the administrator of Willis Boon, deceased.</p> <p>2d. In instructing the Jury that if the carriage of plaintiff^ in passing along the highway, was voluntarily stopped, and blocked up that portion of the road crossed by the rail road^ then it was not rightfully on the road.</p> <p>3d. In instructing the Jury, “that the conductors and engineers are bound to use the utmost skill and diligence to prevent accidents at crossings ; and if, by their negligence, an injury happens, such negligence is gross and the company are liable.”</p> <p>4th. In deciding and instructing the Jury, “ that in view of the great danger attending the running of cars and engines, the care and skill in conducting them must be in proportion to the danger.”</p> <p>5th. In instructing the Jury, that “it is the duty of the-defendants, when approaching a public crossing, to have the engine and train under the control of its managers, so that if' persons are there, it is possible to stop; and if, from any cause originating in their management, a public crossing is approached with an uncontrollable engine' and train, the negligence is gross, and the company are liable.”</p> <p>6th. In instructing the Jury, “ that it was the duty of the engineer so to manage and check his engine as to have it under his control, so that he could stop it and prevent its running against the carriage while on the road; and if, for any cause, this was impossible, it was the duty of the defendant to prove such impossibility; and if they have- not, they are liable.”</p> <p>7th. The Court erred in failing, altogether, to state the-Evidence of the defendant in summing up the evidence to the; Jury.</p> <p>8th. That the instructions of the Court to the Jury, upon.’, the skill and diligence necessary to be exercised by the defendant in the action, are contradictory.</p> <p>9th. The Court erred in deciding that the name of Thomas Dougherty should be stricken from the Grand Jury list before striking, because he was in the employment of the company in their workshop, but not on the road.</p> <p>10th. The Court erred in refusing to allow defendant’s Counsel to argue that plaintiff had failed to make out his case, because he had failed to prove that he was the administrator of Willis Boon.</p> <p>11th. The Court erred in instructing the Jury, “that greater care was necessary in crossing near a church;” there being no evidence that this crossing was near a church.</p>

<p>Assumpsit, in Troup Superior Court. Tried before Judge-Bull, May Term, 1855.</p> <p>This was an action of assumpsit, brought by Harriet Lipscomb, administratrix of Nathan Lipscomb, against Uziah C. Sample, administrator of Vm. M. Sample, deceased, and James A. Sample, on the following note:</p> <p>“ By the 25th day of December, 1851, we promise to pay Nathan Lipscomb, or bearer, the sum of Three Hundred and' Thirty-three Dollars and Thirty-three Cents, for the timber on five hundred acres of land, to-wit: numbers 52, 51 and 89, lying in the 14th district of originally Carroll, now Heard County, it being the last payment for- said timber. Eor value received, this 31st December, 1849.</p> <p>WILLIAM M. SAMPLE,</p> <p>JAMES A. SAMPLE.”</p> <p>The defendants, among other things, pleaded, “that in the year 1849, a partnership was formed and entered into by Nathan Lipscomb, William M. and James A. Sample, to run a steam saw-mill, and’that this note sued on was a partnership transaction; that the partnership affairs had not been settled, no account ever having been taken ;■ and further, that the said Lipscomb paid this note sued on, into the partnership concern, as a part payment of his one third part of the expenses in erecting said mill and running the same, which he agreed and promised to furnish and advance.”</p> <p>On the trial, Counsel for plaintiff offered the note in evidence and closed his case.</p> <p>The Counsel for defendant then offered in evidence articles-of agreement and partnership, for the erection and running: of a steam saw and grist-mill, between Nathan Lipscomb,. William M. and James A. Sample, dated the, 1st day of November, 1849, in which, among other things, it was stipulated, that the said Lipscomb “agreed that the notes given him-by William M. and James A. Sample, for two thirds of five-hundred acres of timber, shall be shoved off at or on the best terms they can be, and the money is to pay said Lipscomb’s - one third part of the expenses in the mills; said Lipscomb- ■ does not bind himself to pay any more money for the erection. of said mills than what may be got for the said notes on William M. and James A. Sample,” &c.</p> <p>To the introduction of this paper, Counsel for plaintiff objected; and it was submitted to the Court whether, under any’ state of facts involved in the case or presented by the pleas, it could be evidence. The Court sustained the objection, and Counsel for defendants excepted.</p> <p>Counsel for defendant then offered to give in evidence the-admissions and statements of Mrs. Harriet Lipscomb, in substance, as follows: “ that after the death of Lipscomb, she'expressed a desire to have the mills completed and to pay her part of the expenses; that she would, as administratrix, have the note (sued on) appraised, but would account to the defendants for the note in a general settlement of the mill affairs.” To the admission of this evidence, Counsel for plaintiff objected.</p> <p>The Court sustained the objection, and Counsel for defendant excepted; and upon these exceptions errors have been-assigned.</p>

Debt and bail, in Troup■ Superior Court. Tried before ¿Fudge Bull, May Term, 1855. This was an action of debt and bail, brought by J. S. Winter & Co. against John W. Murphy, on a due bill for $800’.

Assumpsit, in Troup Superior Court. Tried before Judge Bull, May Term, 1855. This was an action of assumpsit brought by Dr. Thomas W. Grimes against Samuel A. Durand, on- an open account for sixty-five dollars, for medical services and medicine rendered and furnished a slave of the defendant. The defendant pleaded the general issue.

<p>Divorce, in Houston Superior Court. Tried before JudgeWorrell, May Term, 1855.</p> <p>This was a libel for divorce, filed by Curtis Leary against-bis wife, Maria Leary.</p> <p>Tbe declaration alleged that tbe defendant, in tbe latter part of tbe year 1852, was guilty of adultery with one Samuel G. Logan.</p> <p>Tbe defendant, in ber plea, denied tbe charge of adultery,, and pleaded condonation on tbe part of the plaintiff.</p> <p>On tbe trial, plaintiff tendered in evidence tbe depositions-of Mrs. Mary Lawson, in substance, “ that she was acquainted with Samuel G. Logan and Mrs. Leary; and that she bad observed, that Mrs. Leary manifested an unusual interest and sympathy for Logan when be was sick, at the house of Mrs., Leary.” To this evidence, defendant objected. The Court sustained the objection, and plaintiff excepted.</p> <p>Plaintiff then offered in evidence the testimony of Mrs. Mary Marchman, taken by interrogatories.</p> <p>The following part of the 2nd interrogatory was objected to, because it was leading: “Do you or do you not know of any letters having been received by your father from Logan, who lived at Leary’s in 1852, at any time since he left the employment of Leary; if so, did or did you not read that letter or letters ? And if you read it or them, please to say where that letter is or those letters are: if destroyed, please state the contents — why destroyed — was or was not the names of Mrs. Leary and Mr. Leary mentioned in the letter — how ’ and in what terms were they mentioned — did or did not the letters eveiqcontain any message to Mrs. Leary ? If it did,, was it or not delivered; was or was not the letter read to Mrs. Leary; did or did not Mrs. Leary ever request you to write a letter for her to said Logan ?”</p> <p>The Court sustained the objection to the interrogatory and excluded the answer, and plaintiff excepted.</p> <p>Plaintiff then offered to read in evidence the depositions of Ichabod H. Albertson. To the interrogatories were attached two letters purporting to be written by Samuel G. Logan to Mrs. Leary, one dated “Starkville, June 2d, 1853; the other dated Starkville, Sept. 80th, 1853.” These letters were written in reply to letters received by Logan, purporting to have been written by Mrs. Leary. They were full of amatory expressions, and designated places at which he requested Mrs. Leary to meet him, &c.</p> <p>The evidence of the witness went to show that the letters of Logan were written in reply to letters written and addressed to him (Logan) by Mr. Leary, in the name of his wife... The witness also states that he was at the house of Mr. Leary on the night of October 8th, 1853, the night named in the first letter of Logan to Mrs. Leary, as the time when he requested her to meet him privately; that he was there at the request of Leary to help him to watch; that during the night,. -about 12 o’clock, they discovered somo person secreted in the gar den; that some one shot off a gun from inside of the garden, &c. &c. He believes that Samuel G. Logan vras there.” The letters received by Mr. Leary from Logan, in reply to those written to him in the name of Mrs. Leary, were taken from the post-office by the witness, at the request of Mr. Leary, and were never seen by Mrs. Leary.”</p> <p>To this evidence defendant objected. The Court sustained the objection, and plaintiff excepted.</p> <p>The plaintiff then introduced N. J. Sandlin, who testified that “ some time in the fall of 1858, a few days after the night of the shooting, Mrs. Leary came to his bed in the house of Curtis Leary, and requested him to get up and hear her talk to Mr. Leary and persuade him to talk to her; that she was not satisfied with the way they were living; that Mr. Leary refused to sleep with her; and she complained of it, as the nights were cold. Witness got up and went with her ; she tried to get Mr. Leary to talk the matter over. He said it was no use. She asked him to forgive her, and asked if he could not forgive her, if she would get down on her knees and confess that the charge was true and ask his pardon. He said it was too late, and he could not forgive her. She denied that she was guilty,” &c. &c.</p> <p>• Plaintiff then proposed to prove by Stephen Drown, that Mr. Leary did not know of the report of the intimacy between Logan and Mrs. Leary, until some months after it was in circulation. Objection being made, the Court excluded the evidence, and plaintiff excepted.</p> <p>Plaintiff then proposed to prove by Thomas Judge, that Leary was first told by witness of the report about Logan and Mrs. Leary being too intimate, in a quarrel witness and Leary had in January, 1853. Which, on motion, was excluded by the Court, and plaintiff excepted.</p> <p>There was much other testimony offered, and some admitted, which it is unnecessary hero to set forth.</p> <p>Among other things, the Court charged the Jury—</p> <p>“ If the proof shows that the defendant is guilty, and that the plaintiff knowing it afterwards, lived with her in the same house, under the same roof, that they slept in the same room; that the defendant looked after the domestic matters of the family; took care of the children, and attended to their wants; sat at the table with the plaintiff, and waited upon him; used the plaintiff’s horses and carriage in visiting her friends and neighbors; I say, if the proof shows these things, or the like, from them, the Jury may infer forgiveness on the part of the plaintiff.”</p> <p>To which charge of the Court, plaintiff excepted; and upon these several exceptions, errors have been assigned.</p>

Murder, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1855. A bill of indictment, for murder, was found by tbe Grand Jury of DeKalb County, against David and George Armistead, for the killing of James Yeal. At the April Term, 1855, the cause being called, the de.fendants announced themselves ready, when the Solicitor General claimed the right to put the defendants upon their trial separately, and to say which he would try first. The defendants objected.

Illegality, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1855. Richard Peters obtained judgment and execution against ..John Wadsworth, Walter Wadsworth and Moses W. Furmalt, in the life-time of the latter. Walter Wads worth paid off the execution and applied to and obtained an order from the Inferior Court of said County, to proceed against Furmalt for one half of the debt, on the ground that they were co-securities for John Wadsworth. To the /?. fa.

Trover, in Upson Superior Court. Tried before Judge Starke, May Term, 1855. This was an action of trover brought by James Harrell,, administrator of the undevised estate of Mrs. Barbary Harrell, deceased, against the defendants in error, for the recovery of a negro slave Gabriel. . On the trial, it appeared in evidence that Mrs. Harrall executed her will,on the 1st day of January, 1833.

Rule nisi, in Crawford Superior Court. Heard and decided by Judge Powers, March Term, 1855. In 1849, William G. Little commenced his action uf ejectment in Crawford Superior Court, against Francis H. Murdock, Bryan Ingram, H. N. Scarborough, Ewell Webb and Elijah II. Bond, for the recovery of lot of land No. 295, inthe1st district of said county, and for mesne profits.

Case, in Monroe Superior Court. Tried before Judge Starke, February Term, 1855. This was an action on the case brought by Augustus B. Moran, as trustee for Mariana Moran, against Gardner Davis, for the recovery of the value of a negro boy Stephen, alleged to have been worth $1200. On the trial, it appeared in evidence, that as trustee for Mariana Moran, the plaintiff had hired the boy Stephen to the defendant, for the year 1852.

Illegality, in Bibb Superior Court. Heard and decided by Judge Powers, May Term, 1855. William A. Joice was arrested under a capias ad satisfaciendern, issued from the Superior Court of Bibb County at the instance of J. and P. Scales.

In Equity, in Spalding Superior Court. Decision by Judge Starke, May Term, 1855.

<p>Indictment for misdemeanor, in Fulton Superior Court. Tried before Judge Bull, April Term, 1855.</p> <p>This was an indictment, found by the Grand Jury of Fulton County, at the April Term, 1854, of the Superior Court, against the defendant, William B. Chapman, for playing and betting at various games played with cards. To which the-plea of not guilty was filed.</p> <p>On the trial, Counsel for the defendant, before arraignment, moved the Court to quash the bill of indictment, upon the ground that it appeared, from the bill, that Wesly Hudson and Edmund R. Gresham, acted as Grand Jurors in finding' the said bill, when it appeared from the minutes of the Court, at April Term, 1854, that Wesly Hutson and Edmund R. Gresham, were sworn and acted as Grand Jurors at said term of the Court, when said bill was found. Which motion the' Court over-ruled, having previously, on motion of the Soliei-' tor General, allowed the minutes of the Court to be corrected,upon parol proof that the name of the Juror .was Edmund R. Gresham, so as to make the name of the Juror Gresham, upon the minutes, correspond with that inserted in the bill of indictment ; and Counsel for defendant excepted.</p> <p>James Sartin, sworn for the State, testified: “that he saw defendant play and bet for money at a game of cards, poker' or seven up, some time during the years 1851,1852,1853, 1854 — could not specify the year — thought ir was within two years immediately preceding the term of the Court at which the bill of indictment was found; could not state the day,month or year.”</p> <p>Counsel for defendant requested the Court to charge the Jury, that before they could find the defendant guilty, it was incumbent upon the State to prove and show a particular day upon -which the offence -was committed.</p> <p>Which charge the Court refused to give, but did charge the' Jury, “ that if they were satisfied from the evidence, that the defendant had played and bet for money at any game of cards charged in the bill of indictment, at any time within two years immediately preceding the term of the Court at which' said bill was found, although the State had shown no' particular or specific day, month or year, they, ought to find the defendant guilty.</p> <p>To which charge and refusal to chai-ge by the Court, Counsel for defendant excepted; and upon these exceptions, errors have been assigned.</p>

<p>Certiorari, in Heard Superior Court. Heard and decided by Judge Bull, June Term, 1855.</p> <p>Allen B. Heard sued out before Wm. T. Davis and John J. Hendricks, Justices of the Peace, a possessory warrant •against Wm. S. Heard, for the recovery of the possession of a negro woman slave, Esther, alleging in his affidavit,'.“ that on or about the 1st of July, 1853, Wm. S. Heard, by fraud, seduction, or other undue or unlawful means, took and carried .away the said slave from the-possession of defendant,” &c.</p> <p>The officer arrested the defendant and brought him before the Justices, on the 20th of December, 1854; his Counsel not being present, the Court postponed the trial until the 23d, when the defendant again asked for a continuance, on the ground of an absent witness — remarking, that if the Court would give him one hour he would go to trial whether his witness was present or not. The Court consented. On the trial, the plaintiff proved his possession of the slave in the year 1853, and the admissions of defendant, that he had the slave in possession when arrested by the officer under the warrant. . '</p> <p>The Justices committed the defendant to jail, without bail or mainprise, until the said negro woman should be produced; whereupon, the defendant sued out a writ of. certiorari to the Superior Court of said county, asking the Court to review and reverse the decision of the Magistrates—</p> <p>1st. Because the-plaintiff embraced several distinct and substantive grounds in his affidavit, as the means by which he lost possession of the said negro woman.</p> <p>2d. Because- the Court forced him to trial without his witness.</p> <p>3d. Because the plaintiff did not swear positively, but that he was advised and believed, that the negro woman was>in the possession of the defendant. At the hearing of the certiorari, Counsel for the defendant moved to dismiss the certiorari, upon the ground that it will not lie for error committed in the judgment, of the Court below, in the trial had upon the return of the possessory warrant. The Court sustained the motion and dismissed the certiorari, and Counsel for Wm. S. Heard excepted.</p>

Motion to set aside probate of will, in Houston Superior Court. For the facts of this case see the decision of the Court.

Fi. Fa, and illegality, in Bibb Superior Court. Decided by Judge Powers, May Term, 1855. The executors of James Billingslea obtained a judgment and execution against the defendants in error, at the March Term, 1845, of Bibb Inferior Court. On the 15th day of January, 1849, the plaintiff transferred the fi. fa. to John Neal.