Volume 19 — Georgia Reports

<p>Murder, in Dade Superior Court. Tried before Judge • Trippe, November Term, 1855.</p> <p>A motion was made in arrest of judgment in this case, upon the following grounds :</p> <p>1st. That no such Grand Jurors as William Hale, Soderick Hale and Stephen Austin, appeared to have been sworn — ■ the nearest approach to these names being William G. Hale, S. B. Austin and Shadrick Hale.</p> <p>2d. Because the minutes of the Court showed a true bill" for murder, found against Henry Bowyer, but none against the prisoner.</p> <p>3d, Because there was no sufficient minutes and records of' the proceedings, of said Court, as to finding of said bill — the only evidence of the signing of said minutes being the name of John H. Lumpkin, signed immediately under the names of Counsel to an agreement, without any entry as to the adjournment of the Court.</p> <p>Also, a motion for a new trial upon the same grounds and also the following:</p> <p>1st. Because the Court erred in charging the triors of the Jurors, that if the Juror had formed and expressed an opinion from rumor, he was an incompetent Juror,</p> <p>2d. Because the Court failed to charge the Jury, that in-considering of the admissions of defendant, as given in evidence by the State, it was their duty to consider of the whole-admissions ; and failed to charge the Jury at all upon this subject, although requested so to do by Counsel for prisoner, when addressing the Jury.</p> <p>3d. Because there was no evidence upon which the Jury could find prisoner guilty — the only evidence that deceased was killed by prisoner being his own confession, coupled with the express declaration, that he did it in self-defence; -and there was no evidence contradicting that declaration or inconsistent with its truth.</p> <p>4th. Because the Court did not sufficiently charge the Jury upon the nature and certainty of the evidence necessary to convict in criminal cases; the only charge of the Court upon this subject being, that Counsel for prisoner had insisted, in argument, that if they entertained reasonable doubts of defendant’s guilt, it was their duty to acquit; that that was the law, but that it must be a reasonable doubt — not a mere conjecture — abare possibility; that some men even pretended to doubt their existence; that it must not be a doubt of this sort; that he did not know that he could make it plainer than to say, it must bo a reasonable doubt.</p> <p>5th. Because Counsel for defendant offered to prove that deceased, when killed, had run away from Tennessee for some offence, and Avhat that offence was, which was refused by tlie Court; tbo Court holding and declaring, that if prisoner’s Counsel sought to show deceased a violent and bloodthirsty man, he would confine them to his general character as such.</p> <p>The following testimony was offered in the case :</p> <p>James Bates being SAvorn, said: Some timo last April was a year ago, in this county, Avitness was sent for and went down there; witness, his son and William Morgan. When they got there, deceased was lying some twenty-four steps from prisoner’s house, his feet doAvn the hill; and some two hours after he arrived, saAV wounds on the hack part of his head; after examining, found skull broken ; stove in in one place, the only fractured, some of his clothing lying beyond him. It was Avarm weather; his shoes and stockings were off; it was thirty minutes after one o’clock in daytime. Prisoner was sitting on Ms porch when witness got there, rather facing towards deceased; prisoner remarked, there lay the man; that he did it, and that he did it in self-defence. Learned from prisoner that his name was Tadlock. At the inquest, the Jury requested prisoner to state hoAV the matter -occurred; prisoner said deceased come to his, prisoner’s, truck patch; prisoner requested him to go away, and all that had passed should pass. After some conversation, deceased said he would go where he damned please. Deceased went towards prisoner’s house and prisoner followed him; after they got there they had some conversation ; deceased pulled out a pistol and told prisoner to shoot him, and that prisoner ought to shoot him; deceased then went in the direction of spring-house. Prisoner heard a pistol fire; prisoner thought •deceased had shot at one of his horses in the lot; deceased also fired a pistol- in prisoner’s house, witness thinks after deceased fired out of doors; witness and others being just •over the creek from prisoner’s house, heard some three or four reports of pistol shots; there was nothing shot; he was partially behind the spring-house; at first he did not know but that he had killed one of his horses ; afterwards, one of prisoner's children was out, and prisoner saw the child fall just as deceased fired; did not know but that the child was shot; but the child got up and was not shot; the pistol found lying by deceased was a revolver; one pistol had been fired in an adjoining room, in prisoner’s house. Prisoner stated, that after the shooting he sent for witness and his son. The shooting took place about eleven or twelve o’clock; witness went down. Prisoner’s son that had been sent for witness stayed so long, prisoner became uneasy and went in search of him; went to Mr. McBee’s house, which is half way between prisoner’s house and witness’ house; witness lives some half mile. Prisoner said he found his son at Mr. McBee’s, and returned home and found deceased lying at spring-house; found an axe which had been had at the washpot and knocked deceased on the head; witness had been introduced to deceased at prisoner’s house, some time in November previous.</p> <p>Witness says he did not know deceased’s character for violence ; saw no weapon but the pistol, and that was lying out by deceased. Prisoner had stated to witness, when at prisoner’s house in November before, that he supposed Tadlock was the father of little Willie the grand-son of prisoner, who was an illegitimate child, and who was at his grand-fathers J ■child Willies’ mother was then dead; had been drowned a ;a few weeks previous. Prisoner had another daughter, single, grown and another nearly grown. T.adlock came there some six weeks after death of Willie’s mother; when they went to deceased, as he lay at the spring, a flask was found lying by him, with some spirits in it; not quite half full; deceased lay from 25 to 28 steps from prisoner’s porch; does not think it was exactly in the^. yard; rather behind the : spring-house, but within the indo sure; prisoner had a large .family of children. Mrs. Bowie was a feeble woman, and appeared to be in bad health; prisoner had character of being .a peaceable, honest and industrious man.</p> <p>John Sitton: Deceased’s name was Tadlock; had known him three years.</p> <p>Mary McBee, sworn: Said prisoner came to Mr. McBee’s; prisoner said deceased was drunk and asleep behind his spring-house, and ho had come for advice which was given; prisoner said ho would kill him, which he repeated several •.times; witness urged prisoner not to kill him; witness’ mother advised tying him if he got unruly, and send for the neighbors. Prisoner said he felt like killing him.</p> <p>Dr. James Worthington: That deceased died of the wounds; either wound was sufficient to have caused his death ; does not know his character for violence; saw pistol lying near deceased. It was the only evidence of deceased carrying weapons.</p> <p>The Court over-ruled the motion in arrest of judgment and .the motion for a new trial, and these decisions are assigned „as error.</p>

Ejectment, in Whitfield Superior Court. Tried before-Judge Trippe, April Term, 1855. Held: and so charged the Jury, that the Sheriff’s deed, made by Hancock, could not operate as color of title, except from its date ; that, therefore, there was no color of' title earlier than 184-6, except the lease, which could only support a claim to the 25 acres embraced in it; and that the purchase by Morris, and payment of the money,…

<p>[1.] A third person, who is not a party to the record, will not be permitted to make objections to the foreclosure of a mortgage, under our Statute.</p> <p>[2.] The fact that a deed purports to be made by two persons, and one only executes it, does not make the instrument void per se.</p> <p>£3.] If real property is conveyed to and held by a firm, the members of the firm are tenants in common, and either party can convey his undivided interest in the subject.</p>

Ejectment and motion for a new trial, in Walker Superior Court. Decision by Judge Trippe, May Term, 1854. The lessee of Irvin Askew and others, brought ejectment against Greenberry Taylor, for a lot of land in Walker County. The defendant relied on the Statute of Limitations. The writ was filed in office 3d March, 1849.

<p>Ql.] In a bill filed to rectify a written agreement, an injunction appendant •thereto, will not be retained when the answer positively denies every allegation outside of the agreement, and there is no equity springing out of the contract as drawn.</p>

In Equity, in Jackson Superior Court. Decision on demurrer, by Judge Jackson, August Term, 1855. / David M. Burns filed his bill, alleging that, about the year 1821 he loaned to Lewis Pyron $950 and took a mortgage on two negroes, Violet and Tobe; that this money was borrowed to pay off' the .debts of Pyron, and secure a homo for his family; that, subsequently, hearing that there was some difficulty about the title of Pyron to the slaves,.he went to Pyron and inquired of him…

Ejectment, in Cobb Superior Court. Tried before Judge Trippe, March Term, 1855. An action of ejectment was brought by Thomas Byrne, against Amos Lowry. .Defendant relied upon the Statute of Limitations. The process was dated 24th July, 1849. The proof was, that one Isaac G. Albritton, who lived in Franklin County, in 1841, came out to the land and cut house-logs, and then returned home, and in the latter part of the year 1842, he came back and put the logs up and lived there.

Ejectment, in Chattooga Superior Court. Tried before Judge Trippe, September Term, 1855. The defendant below confessed judgment to the plaintiff for the premises in dispute, and $25 mesne profits. From this confession he appealed. A motion was made to dismiss this appeal, because the liberty of appeal was not reserved.

<p>Case for words, in Cass Superior Court. Decision by Judge Teippe, September Term, 1855.</p> <p>Averdictwas rendered against Caleb Tompkins for $2,000, and he appealed informa pauperis. The'affidavit, as recorded was, “ that he was unable to give the security as now required by law, in cases of appeal; that he is advised and believes, that owing to his poverty, he is unable to give security as now required by law.” A motion being made to dismiss the appeal, Counsel for Tompkins moved to amend the record, by inserting the words omitted, and in support of this motion, produced the affidavit of James Milner, an Attorney, who swore “ that Tompkins brought to him an' affidavit as a pauper, and upon looking over the same with some care, he stated to Tompkins that it was correctly drawn, and that he believes-it was correctly drawn and in compliance with the Statute.” Also of John J. Word, an Attorney, that “ some one brought to him an affidavit as a pauper for his inspection, and upon looking over it he stated to said person that it was correctly drawn, and he believes it was drawn in conformity with law.” Also his own affidavit, “ that he procured the Clerk to^write the affidavit for him; that he carried it to Col. Word and Col. Milner, and both told him it was correct; and that he then delivered it to the Clerk ; that in fact, he was, at the time, unable to appeal, from his poverty, and he was advised, and did believe, he had good cause for an appeal; and that from his poverty he was unable to give the security required by law.”</p> <p>The Court dismissed the appeal, and this decision is assigned as error.</p>

In Equity, in Gwinnett Superior Court. Tried before ■Judge Jackson, September Term, 1855. Tbe only question made in this case was, as to tbe validity •of tbe following item in the will of George M. Waters ; “ 3d. Whereas, I own and bold in possession the undernamed slaves, to-wit: (naming sundry slaves).

Assumpsit, &c. in Clark Superior Court. Tried before' Judge Jackson, February Term, 1855. The following items appeared in the will of Thomas Carr^ deceased: 9th.

<p>Motion, 'in Floyd Superior Court. Decision by Judge Trippe, June Term, 1855.</p> <p>John M. Gregory, as the assignee of a fi. fa. in favor of Robert H. Johnson vs. Samuel J. Stevens, principal, and Daniel R. Mitchell indorser, placed the same in the hands of Thomas G. Waters, Sheriff of Floyd County. To a rule to show cause why he should not pay over the money thereon, the Sheriff returned, among other things, that “ Mitchell told him that the fi. fa. was settled so far as he was concerned; that he went with Mitchell to Johnson, the plaintiff in jñ. fa. who confirmed this statement, and said that it was to be transferred without recourse on Mitchell, and was so understood at the time, and that he had neglected to insert it in the transfer.”</p> <p>The Court below held this return to be sufficient, and this decision is assigned as error.</p>

In Equity, in Floyd Superior Court. Decision by Judge Trippe, June Term, 1855.

In Equity, in Cass Superior Court. Decision by Judge Trippe.

<p>l[I.] One of two subscribing witnesses to a bill of sale, for the purpose of carrying the same to record, made affidavit “that he saw the subscribing witness subscribe his name to the within bill of sale, and acknowledged, for the within purposes Held, that the construction of such an affidavit is, that he saw the witness attest the acknowledgment made by the mNer of - the deed.</p> <p>£2.] Where the complainant has an adequate and sufficient remedy at Common Law, a demurrer to the bill, on this ground, should be sustained.</p> <p>[3.] Where a bill sets forth the fact, that one of the distributees of an estate had released his interest in said estate, “ merely for the purpose of making himself a competent witness” for the administrator, in a case brought for the recovery of slaves; and also alleges that such distributee is fraudulently combining with the administrator to recover these slaves, but does not allege that the release was not legal and in good faith made, nor that it was fraudulent and void : Held, that such released distributee could not properly be made a party to the bill.</p>

Assumpsit, &c. in Eloyd Superior Court. Tried before Judge Trippe, June Term, 1855. This suit .was upon a promissory note. The defendant’s ■intestate had been declared a bankrupt under the law of 1842.

Attachment, in Eioyd Superior Court. Decision by Judge Trippe, June Term, 1855.

<p>[1.] The fact that a case has been pending for four years in the Court, is no reason why a continuance should not be granted, provided, a proper showing be made, it not appearing that the delay was at the instance of the party applying for the continuance.</p> <p>[2.] Admitting that an Attorney has a general lien upon an execution in his hands for fees due him by the plaintiff, that lien does not extend to the judgment.</p>

Rule, in Cass Superior Court. Decision by Judge Trippe*. June Term, 1855. This was a motion to distribute money in the hands of the-Sheriff, arising from the sale of the individual property of William Wimpee. There were j?. fas. against Wimpee, individually, and also fi. fas. vs. Wimpee & Price, of an older date.

Decision by Judge Trippe, at Chambers, 27th June, 1855. Vm. R. Smith prayed an injunction on the following facts: He was the owner of a parcel of land within the corporate limits of the City of Rome, upon which lot there is a valuable stone quarry, worth. $3,000, upon the bank of Etowah River; also a valuable sand bank, worth $>1.000; and the piece of land' is also of great value as a residence, viz: $2,500.

Mandamus. Decision by Judge Trippe, at Chambers, •June 2b, 1855. David D. Duke applied for a mandamus, to compel the 'City Council of Rome to grant him a license to retail spirituous liquors. In his petition, he alleged that he had complied with the city ordinances, in every respect, and that they refused to grant him a license.

In Equity, in Eloyd Superior Court. Decision on demurrer, by Judge Tripps. This was a bill filed by the heirs and legatees of Zachariah B. Hargrcves, setting forth, that in 1839, said Hargroves had sold to Job Rogers a large estate in Cass County, for the sum of 36.000 dollars. The sale was consummated, and Rogers took possession of the estate, giving Hargroves four promissory notes for the aggregate sum above stated.

Mandamus, in Clark Superior Court. Decision by Judge Jackson, at Chambers, 6th September, 1855.

Indictment for murder, in Clark Superior Court. Tried before Judge Jackson, August Term, 1855.

Ejectment, in Walton Superior Court. Tried before Judge ■Jackson, August Term, 1855. The questions in this case came up upon an agreed cáse made. The following were the facts: An action had been brought under the form prescribed by the Act of 184T, in the •name of the same plaintiff and against the same defendants as in the case now pending. On that case two verdicts were rendered for the defendants.

<p>In Equity, in Jackson Superior Court. Decision by Judge Jackson, at Chambers, 19th June, 1855.</p> <p>The following items appeared in the last will of William Parks:</p> <p>“ Item 4. I bequeath and set apart my rail road stock, being eighty shares, in the Ga. R. R. & Bk’g'Co. for the purpose of educating my children, now under age, and direct that they be boarded and educated out of the same, until they receive a thorough classical education, if they have sufficient capacity for the same; and should my present wife have a child, it to be boarded and educated in the same manner,' and share in all other respects, with my children now under age.</p> <p>“ Item 11. I give and bequeath to my beloved wife, Nancy Park, her choice of my negro women, to have and to keep the same during her life; then the said negro and her increase, if any, to belong to my estate.”</p> <p>Guardians were appointed by the Ordinary for the minor children of testator.</p> <p>Upon a bill filed by the executors, for instruction upon various items in the will, the Court below, among other things, decided that a Court of Equity would not order the executors to authorize the guardians to receive the dividends on the rail road stock, directly, and without passing through their hands. To this decision, Hardy and Thompson, the guardians, excepted.</p> <p>The Court also decided that the widow, Nancy Park, was entitled to recover hire for the negro she may select,- and also her increase, from the time she demanded the same of executors. The facts, as to the demand, were, that" the widow went to the executors, and said, “I demand my property,” meaning her property under the will. The executors refused to let her have any of it. To this decision of the Court, the executors excepted.</p> <p>Each party assigned error in this Court.</p>

In Equity, in Ployd Superior Court. Decision on demur-by Judge Trippe, June Term, 1855. This bill was filed by Malinda Hargroves, tbe widow and others, the children of Zachariah B. Hargroves, dec’d, (who wore also the devisees under his will,) charging that said Zach.

In Equity, in Floyd Superior Court. Decision on demurrer, by Judge Trippe, June Term, 1855.

<p>In Equity, in Gwinnett Superior Court. Tried before-Judge Jackson, March Term, 1855.</p> <p>This bill was filed in 1850, by Sarah Elbert, against George M. Waters, as one of the executors of John Pray, deceased, to recover a legacy bequeathed her, of $500, to be paid from a bond held by testator on John J.' Maxwell, a co-executor with Waters, and due in 1827. Pray died in 1819. Pending the suit, both complainant and defendant died, and their representatives were made parties. The defendant’s answer showed that the bond of Maxwell had never been in the custody of Waters; that in 1826, Waters ceased to take any active part in the management of the estate; and relied also, upon the lapse of time as a bar. A joint inventory, made by the executors, included this bond.</p> <p>Complainant’s Counsel requested the Court to charge the-Jury — 1st. That an executor is liable for the default of his. co-executor.</p> <p>2d. That when one of two executors is a debtor to the estate, and is solvent at the time of taking execution of the will, it is the duty of the co-executor of such debtor, to see that the debt is paid into the funds of the estate; and that if it is. lost, he neglecting to look after it, he is liable.</p> <p>3d. That when two co-executors execute a joint inventory of' the estate, and return the same to the Court of Ordinary as. their joint act, that each is liable for the whole estate so inventoried, and responsible for each other’s safe-keeping and", management thereof, without reference to a subsequent division of the assets between themselves.</p> <p>4th. That the plaintiff is not barred, in this case, by the lapse of time.</p> <p>The Court declined so to charge, but charged the Jury, that one executor was not bound for the default of his co-executor, unless he came into possession of the estate squandered, or participated actively in the management of the par j ticular estate squandered; that the fact of a joint inventory and appraisement, was not, “in the teeth of the defendant’s answer,” sufficient evidence to bind 'Waters for this bond</p> <p>This charge and refusal to charge are assigned as error.</p>

<p>Rule vs. Sheriff, in Madison Superior Court. Decision by Judge Andrews, at March Term, 1855.</p> <p>A ca. sa. in favor of Reuben and Charles Jordan vs. Jefferson Culbertson, was placed in the hands of the Sheriff of Madison County. The Sheriff arrested Culbertson and discharged him, on his giving bond, conditioned “ that in the event Culbertson should be cast in said suit, they should well and truly pay the condemnation money,” &c. At March Term, 1855, a rule nisi was granted against the Sheriff, to show cause why he should not pay over the amount due on said ca. sa. The Sheriff made return, showing various grounds, all of which were over-ruled by the Court, except the following: “Because the ca. sa. bears test in the name of Garnett Andrews, who, at the date of its issue, was not one of the Judges of the Superior Courts of said Statewhich ground was sustained, and the rule refused. To this decision plaintiffs’ Counsel excepted.</p> <p>Plaintiffs’ Counsel proposed to prove that the ca, sa. bore a wrong date, by a clerical mistake, and that it was actually issued in December, 1854; and also moved to amend the ca. sa. as to this clerical mistake. All of which was refused by the Court, and plaintiffs excepted.</p> <p>Upon these exceptions, error is assigned.</p>

Case. Decision by Judge Andrews, March Term, 1855. Albert C. Matthews brought an action against William Pass, alleging that one James Bridges was indebted to him in the sum of five hundred dollars, on promissory notes and •accounts; and that William Pass, well knowing the same, and intending to injure and defraud said Matthews, by causing him to suffer the loss of said sums of money, did then and there conspire, and fraudulently and feloniously agree with the said Bridges,…

Case, &c. in Elbert Superior Court. Tried before Judge Andrews, March Term, 1855. This was a suit by Alfred Hammond vs. Fleming, for the value of two bales of cotton, alleged to have been lost by Fleming, a boatman, to whom it was delivered, to be carried to Augusta.

<p>Assumpsit, &c. in. Elbert Superior Court. Tried before. Judge Andrews, March Term, 1855.</p> <p>This was an action, by the Sheriff', against a ¡purchaser, at his sale, who refused to comply with his bid. On the trial, the Deputy Sheriff testified that he did not see the negro until the day of salo; that when he went to levy, the defendant in fi. fa. told him the negro was there, and to enter a levy on thefi. fa.; and defendant gave a bond for the forthcoming of the negro, and in compliance therewith, produced him at the day of sale.</p> <p>The Court decided and charged the Jury, that these facts constituted a legal levy ; and this is the only error assigned in this case.</p>

<p>Ejectment, in Oglethorpe Superior Court. Tried before-Judge Andrews, April Term, 1855.</p> <p>The plaintiff below, and plaintiff in error, traced his title-to James Jordan. He then offered a deed from Warren Jordan and Thomas Gr. Sanford, as administrators de bonis non-of James Jordan; and as foundation thereto, offered a petition of Willis Jones to the Court of Ordinary of Oglethorpe County, setting forth a bond for titles from James Jordan,, and praying an order directing Theophilus Hill, administrator, &c. to make titles; and also an order nisi and order absolute, requiring Hill to make the titles; also, the appointment of Jordan and Saúford, as administrators de bonis non. Defendant’s Counsel objected to the sufficiency of this evidence—</p> <p>1st. Because the rule nisi required its publication “ once a month’for three months, in the Cfeorgia Journal” only, and not at “the public places of the county.”</p> <p>2d. Because the rule absolute shows that the rule nisi was not published at the “public places.”</p> <p>3d. Because the order to Hill to make titles, did not authorize the deed to be made by Jordan and Sanford.</p> <p>The Court sustained these objections, and this decision is-assigned as error.</p>

Ejectment, in Clinch Superior Court. Tried before Judge Love, June Term, 1855. This action was brought by Elijah Mattox, against M. J. Bryan, for the recovery of lots 574 and 575, in 13th district of Appling County, originally.

Rule, in Appling Superior Court. Decision by Judge Love, June Term, 1855. Afi. fa. in favor of John Riley against John T. Hall, was' levied by the Sheriff of Appling County, upon a negro woman, and a claim was interposed thereto. Pending the claim, Counsel for plaintiff in fi. fa. gaye to the Sheriff written instructions to proceed to collect the money thereon.

<p>Application for dower, in Baldwin Superior Court. Decision by Judge Hardeman, August Term, 1855.</p> <p>The following facts were agreed upon in the Court below:</p> <p>On 28th October, 1853, Robert Findlay filed his lien upon a mill and the premises annexed thereto, belonging to John. Roberts, for an engine erected by Findlay and attached to the mill. Subsequently, Roberts died, and his widow applied ■for dower in the lot of land on which the mill was erected.</p> <p>Judge Hardeman decided that the widow was entitled to her dower, to be estimated without taking into computation, the value of the machinery and works erected by Findlay, •and be so laid out as to exclude the mill, engine and fixtures.</p> <p>To this decision Findlay excepted.</p>

<p>[1.] The fee bill of 1792, regulating the commissions to be allowed the Sheriff, does not look to the amount of sales alone as the measure of compensation.</p>

Trover, in Pulaski Superior Court. Tried before Judge Love, April Term, 1855. This action was brought by Benjamin Bryan, as executor of Joseph M. Bryan, deceased, vs. Augustin II. Hansell, for several negroes. On the trial, -the plaintiff offered in evidence an exemplification from the Ordinary of the probata and record of the will.of his testator.

Assumpsit, in Warren Superior Court. Tried before Judge T. W. Thomas, October Term, 1855. This action was brought by Erastus Beall, against the administrator of'Robert Beall, upon the following facts : One John Lovett stabbed Robert Beall. Robert Beall requested his brother Erastus to employ Counsel and prosecute Lovett for this offence, and told him that whether he lived or died, he should be paid. Robert Beall died.

Caveat on appeal, in Elbert Superior Court. Tried before Judge T. W. Thomas, at September Term, 1854. The questions in this case arose upon the application of John C. Burch, as the executor of Mrs. Elizabeth Burch, for letters testamentary upon the estate of William S. Burch, deceased.

<p>In Equity, in Oglethorpe Superior Court. Decision by Judge Thomas W. Thomas, October Term, 1855.</p> <p>William S. Arnold, during his life, entered into partnership with Benj. A. Gresham in a mercantile enterprise. Subsequently, Gresham sold out to Arnold all of the assets of the firm, and Arnold assumed the payment of the debts o£ the firm. Arnold then entered into a partnership with Stephen Upson, as a limited partner — Upson putting in the sum of $5,000. Subsequently, Upson retired, selling out to Arnold, who assumed payment of the debts. Arnold. died insolvent, many of the debts of the two preceding firms being still unpaid. On a bill to marshal assets, filed by the executrix of Arnold, the Court below decided, that by reason of. the sales by Gresham and Upson, respectively, to Arnold, the firm assets became individual assets; and by reason of the assumption by Arnold of the firm debts, and his individual agreement to indemnify the retiring partners, the firm debts stood in Equity as individual debts; and hence, that all the creditors, of equal dignity, of both firms, and of Arnold individually, should be paid pro rata from all the assets., This decision is assigned as error by Stephen Upson.</p>

Murder, in Oglethorpe Superior Ooürt. Tried before Judge Thomas W. Thomas, October Term, 1855. A motion was made for a new trial in this case, on the following grounds: 1st. The first panel of Jurors being presented to the prisoner’s Counsel, they were asked if they had any objection to the panel? And they replied none. The fifth Juror called was William II; Olive. Prisoner objected, because no such man appeared on his list, it being there written William II. Ogilvie.

Case, in Chatham Superior Court. Tried before Judge Fleming, May Term, 1855. This action was brought by Hines, Perkins & Co. vs. The 'Central Rail Road & Banking Company, as common carriers, for an amount of lumber burned while lying on the road side awaiting transportation. On the trial, Malcolm C. Perkins, one of the plaintiffs, was offered aSa witness; and at the same time, it was admitted that he ceased to be interested in the case, except as to costs.

<p>Ejectment, in McIntosh Superior Court. Tried before Judge Fleming, November Term, 1855.</p> <p>This action was brought by Louis E. B. DeLorme, as the administrator, &c. of Henry Harford, dec’d, vs. Achilles A. DeLorme and Theodore P. Pease, for a parcel of land near Darien. Both parties claimed under Henry Harford, who •died in possession of the premises. In his lifetime, he had mortgaged these premises to the Bank of Darien. After his death, in May, 1827, a rule nisi for foreclosure of this mortgage was granted ; on 21st April, 1828, a rule absolute for foreclosure was granted.</p> <p>The defendant then offered in evidence the docket book of the Court of Ordinary of McIntosh County, in -which appeared the following entries:</p> <p>State op Georgia, McIntosh: County:</p> <p>Darien, 13th November, 1827.</p> <p>George B. McKinstry applies for letters of administration, '■on the estate and effects of Henry Harford, late of said county, deceased ; I have therefore issued citation to be published in the Darien Gazette, according to law.</p> <p>GEORGE T. ROGERS, Cl’k C’t Ord’y.</p> <p>Caveat of the Bank of Darien being allowed, and by consent of Mr. McKinstry, letters ordered to be granted to Eben. "S. Rees, in behalf of the creditors. January Term, 1828. •■Letters granted. G. T. ROGERS, c. c. o.</p> <p>The defendant then introduced the minute book of the said Court, in which is found the following entry:</p> <p>■Georgia, McIntosh County:</p> <p>Darien, 14th January, 1828.</p> <p>At a regular meeting of the Court of' Ordinary, present .their honors' ' JACOB WOOD,</p> <p>ALLEN B. POWELL, WM. A. DUNHAM.</p> <p>On application of G. B. McKinstry for letters of administration on the estate of Henry Harford, deceased, caveat by E. R. Harford and A. Kimberly, President of the Bank of ■Darien, against G. B. McKinstry, on the estate of Henry Harford, on calling up of this case, E. R. Harford not appearing or supporting his claim as next of kin to the intestate, and Mr. McKinstry yielding his right to the administration to the Bank of Darien, who have named E. S. Rees as their attorney,</p> <p>It is Ordered, That letters of administration do issue on the estate of II. Harford, dec’d, to E. S. Rees, in behalf o£ the creditors, and that he give security in the sum of $15,000, and Tho’s Spalding and James Troup be his security.</p> <p>It is Ordered, That’the following persons be appointed appraisers on the estate of Henry Harford: Messrs. G. B. Mc-Kinstry, J. Sawyer, C. G. Grandison, Tho’s King and Wha. McMaster, or any three of them.</p> <p>The Court then adjourned until the first Monday in February next. ALLEN B. POWELL, J. I. C.</p> <p>W. A. DUNHAM, J. I. C.</p> <p>JACOB WOOD, J. I. C.</p> <p>Attest: George T. Rogers, C. C. 0.</p> <p>The defendant then offered in evidence the original bond of E. S. Rees, which was executed on the same day.</p> <p>In July, 1828, this lot, with others, was sold by the Sheriff and purchased by the Bank of Darien, who rented it out and paid taxes therefor, and afterwards, in January, 1847, the Central Bank (representing the Bank of Darien) sold this land to the defendant, Pease.</p> <p>A. Lepils, a witness, stated that a suit in Equity was instituted several years ago, in 1836, by the heirs of Harford, against Bank of Darien, about same property, which after being on the docket for some time, was dismissed, but that the record of the suit is lost; that files of the Darien Gazette, in which the county officers then published, could not be had, the paper having been long ago discontinued.</p> <p>A letter was then handed to him, and he was asked if he could swear to the handwriting of E. R. Harford; he replied that he could not, that ho had seen him write, but could not swear that the letter handed him was in his handwriting, or that it was the signature of E. R. Harford. He was then dismissed from the stand, and Charles Hopkins, one of the Jurors, was sworn on the part of the defendant. The letter was handed him, and he was asked if he could prove the handwriting of E. R. Harford; he said he had frequently seen him write, but could not identify the signature as his. After some conversation between the defendant’s Counsel and Lefils, Lefils was again called to the stand, and the letter handed to him, and he was asked to prove the handwriting. Plaintiff’s Counsel objected, upon the ground that the witness had already been examined upon that point, and dismissed from the stand, being unable to prove it. The Court over-ruled the objection, and plaintiff’s Counsel excepted.</p> <p>It was admitted that search had been made by the administrator and heirs of E. S. Rees, for his letters of administration, without effect; that application had been made to the Central Bank for Sheriff’s deed to the Bank of Darien also, without effect.</p> <p>The Court charged the Jury, that both parties claiming under Henry Harford, the case turned upon the Statute of limitations; that the proceedings to foreclose the mortgage-was irregular, and that the sale, under such foreclosure, was void, and that the purchaser thereby acquired no title; yet, that his possession under that title might, by the lapse of time, have ripened into a good title; and whether he had a good title or not, depended upon the question, whether the estate of' Harford had been so represented as to enable the Statute to.run; that, from the evidence before them, they might presume administration had been granted to Rees — the case in-18 Georgia came up to that case — that shows that Rees was appointed administrator. Was that appointment correct, Reese not having been an applicant ? It was ! Every presumption was in favor of the correctness of the grant of' the administration; and if correct here, there is an end of' this matter. That the Statute (turning over the assets of Darien Bank) would vest title of the Darien Bank in the Central Bank, when taken in connection with the fact that we find the Central Bank in possession of the property, renting it and selling it.</p> <p>The following are the errors assigned:</p> <p>1st. That the Court erred in charging the Jury that the case depended on the Statute of Limitations.</p> <p>2d. That the Court erred in permitting Lefils to be recalled, to prove the handwriting of E. R. Harford, when he had been previously examined directly upon that point, and dismissed from the stand.</p> <p>3d. That the Court erred in charging the Jury that the evidence showed that Rees was appointed administrator.</p> <p>4th. That the Court erred in charging the Jury that the appointment of Rees was right and proper, he not having been an applicant.</p> <p>6th. That the Court erred in charging the Jury that the Statute turning over the assets of the Darien Bank, vested the title of the Darien Bank in the Central Bank without a deed.</p> <p>Judge McDonald being a stockholder in the Bank of Darien, did not preside in this case.</p>

Ejectment, in Chatham Superior Court. Decision by Judge Fleming, February Term, 1855.

<p>Caveat, in McIntosh Superior Court. Decided by Judge Fleming, Spring Term, 1855.</p> <p>The Will of James Smith, was as follows :</p> <p>McIntosh County, State of Georgia:</p> <p>In the name of the Holy Trinity, the Father, Son and Holy Spirit:</p> <p>This first (1st) day of December, One Thousand Fight Hundred and Fifty-three, (1853) I, James Smith, of sound mind and memory, of said County and State, being far advanced in age, and must shortly depart from this life, deem it right and proper, both as respects myself and family, I should make a disposition of all the property which a kind Providence has blessed me; I therefore make this my last will and testament, in the simplicity of words, as to avoid all technical words or sentences touching the same, and in no instance it must be understood otherwise than my express will and demise; nor shall any lawyer, Court or Legislature, have, directly or indirectly, have anything to do with it, in its explanation or adjustment of the same; otherwise, should an occurrence happen (among such as would be called wise among my heirs) as to create a difference of understanding my views, then, and in that case, a choice of five (5) of the most disinterested persons may be made choice of, such as not hearing the parties on either side expressing their Aiews, until the question or difficulty comes up before them for judgment or adjustment, whose decision is made final to the question submitted, as if settled by- myself; and those five disinterested friends, shall be selected from each of my executors; having named one (each;) whose names to be thrown into a hat or box, and the five first drawn out shall be the person thus chosen; and I, James Smith, make this my last will and testament, and do hereby revoke and annul all others heretofore made by me, touching all matter and things having a bearing upon all my worldly interest.</p> <p>First. I, James Smith, recommend my soul to God, my Father and Creator, beseeching him to receive it in mercy, and judge it not according to its merits, but according to the merits of Jesus Christ our Lord, who offered himself as a sacrifice to God his Father, for all his elect, according to his purpose, unworthy as we are — I, myself, among the chief of sinners. Thus I implore Almighty God to pardon all my sins and transgressions, and thank him for the good hope I entertain, through Christ, I shall be delivered therefrom under those views. I desire that my body be buried in a decent and Christian manner, suitable to my circumstances and condition, avoiding all such useless forms and fashions, which does not comport in glorifying God and the Christian profession; my soul I humbly hope and trust may rest with Him who gave it in an eternal salvation, through that blessed Lord and Saviour Jesus Christ, who’s religion I have professed, and humbly hope and trust, enjoyed for many years, and formed a comfortable and abiding hope.</p> <p>I, James Smith, desire that all my debts be paid without delay, by my executors, (hereinafter) named, as I am unwilling my creditors should be delayed from their just dues; especially as there will be no necessity for it. I, James Smith, give and devise to my dear wife (Jane) should she survive me, (during her life) for her support and comfort, in and from the following provisions herein made, to-wit: In the first place, the amount of Five Hundred Dollars ($500) annually paid her; this, with the annuity paid her semi-annually, left her by her former companion (in life) with the following, to say, the choice of any of my house servants, to the number five, with privilege of the occupancy of any of my places dying possessed of; to say, Welharn (Cobb County) Brighton and Sidon, McIntosh County, embracing the ground of twenty acres, attached thereto, as only to embrace within the same all such buildings as attached to the dwellings for lior choice of residence, including all such furniture found therein, with my carriage horses, carriage and stock of all kinds; this for her comfort during life. And as in our connection was formed, she owned a negro woman, (named Lucy) finding her a supernumerary (among others in my house) as well as naughty in her character, (in our domestic relations, it was unanimously agreed upon in the sale of her thus, the sum of four hundred and fifty ($450) dollars could only be obtained for her,)which sum, ($450) with all other moneys she may have in safe-keeping for me, (at my death) shall be paid over to her (as cash) independent of any other provision made her in this, James Smith’s last will and testament, to be applied by her, as may be expedient, in her wisdom and good judgment. In all this arrangement for my dear wife, shall be considered as sufficient for covering all dowry claims that may arise in her behalf, being a full compensation for the same. Again, in addition to the above provision made my dear wife, (Jane) she shall be entitled, annually, during life, (if wished for) a support of provisions from my estate, James Smith, as sufficient to support her household. In the event my dear child, Mrs. Elizabeth West Dunwoody, should survive her,, (my dear wife Jane,) all of those said privileges (as above stated,) to-wit: In the occupancy of any of my places as named, my carriage, horses, stock of all kinds, the choice of five of my house servants, shall be turned over to her, my dear child, (E. W. Dunwoody) in like manner, and arranged as to be enjoyed, as if more particularly specified, during her life. My Brighton (summer seat,) McIntosh County, with all the lands adjoining, to say as per survey, containing about five hundred (500) acres, (see plat) with all its appendages, &c. I,. James Smith, bequeath and give to my dear child, E. W. Dunwoody, in fee simple, to her and her heirs forever.</p> <p>I, James Smith: It is my will and desire, after the death-of my dear wife, (Jane) the sum of five hundred ($500) be paid over to the heirs of my deceased and ever to be remembered brother, (William Smith) to-wit: Doct. Sidney Smith, James L. Smith, Sarah W. Smith, Elizabeth W. Smith and-Hannah M. Smith, to share and share alike, this said five hundred ($500) dollars, each receiving one hundred ($100)-dollars of it, to them and their heirs forever, as a small testimony and regard for his memory, as well as the gold watch left me at his decease, I give to his son, Jas. L. Smith, at my death.</p> <p>I, James Smith, wills and devise, that all the lands owned by me at my death, within three (8) miles of my valuable estate, named and known as the Sidon estate, made up of sundry surveys and grants, (as reference will show,) tobe considered as an appendage of said estate, with all the negroes or slaves thereon, as well as all others found to be mine at my decease, whether loaned to my several grand-children or great grand-child or children, as well as hired out, (as if named) shall be considered as my general estate, to be kept in perpetuity, from the circumstance of neither of my heirs are competent the purchase of said grounds constituting said estate, as to make a division; and' my mind revolting in the separation of their families, for a division among them, thus I, James Smith, under that view and feeling, the following is my will and devise, for the annual appropriation of all the annual income arising out of said estate, (those excepted in the provision made for my dear-wife (Jane) and my beloved daughter E. W. Dunwoody, during their lives,) to-wit: I, James Smith, wills, after all necessary plantation expenses or disbursement are met or paid' off, with the several provisions made for my dear wife (Jane,) as before expressed, (regarding economy,) to be divided in the following manner, (reserving such amounts as will be hereafter herein named, for other purposes required,) equally, share and share alike, between my following children, grand and great grand do. to-wit: My grand-sons, Em. J. Dun-woody, Dean M. Dunwoody and Jno. E. Dunwoody, to them and their heirs, forever, and to my two grand-daughters, Mrs. J. A. Jones and Mary E. Dunwoody, to them and the heirs, of their bodies; and in the event of no heir or heirs of their ■ bodies, then and in that case, such a distribution as their-wills and desire may make; and to my great grand-child, S.. E. M. Shackelford, to come under the same rule of disposition as that provided for her in a deed of gift of sundry negroes, found recorded McIntosh County Superior Court, book.. K, folio 260, 21st March, 1853, referring thereto; I, James-Smith, bearing in mind the past blessings a kind Providence has afforded me, from the success of labor and culture of this said estate, and in anticipation of the future bearing testimony to the fact; from the same care and attention, a safe cal- - culation can be made, of an average crop from ten to twelve ■ thousand bushels rice can be annually calculated on, (Providential visitations excepted,) thus, the amount of $9000 might be annually expected, for all of the above arrangement; reserving, as beforesaid, an amount to meet, as will be stated. Thus, then, I, James* Smith, wills, that as soon as six thous- and (if6000) dollars is made subject to meet all the foresaid arrangements, paying off, first, plantation disbursements, my dear wife (Jane) her annuity, with the four hundred ($450) and fifty dollars returned her for the amount the said servant Lucy sold for, (as stated,) then, and in that ease, I, James Smith, wills that the keeping in view the five hundred ($500) .'dollars, provided for the said children of my beloved and departed brother William, as before named, coming under the rule or arrangment made for its payment, not to be lost sight of, then, and in that case, I, James Smith, wills, so soon as that sum of six thousand ($6000) dollars is made subject for such provision meeting all other requisitions as stated; it is •then enjoinedupon my executrixes andexecutors, (as will here- •• after named,) pay over from such sums of money, over the :said six thousand ($6000) dollars, or so much of it as to give •each of my servants or slaves, annually, (so long as such moneys can be obtained,) each one, over the age of seventeen years, (remembering the superannuated among them,) as a small testimony of my regard for them, this for their little comfort: to say, five ($5) dollars each; as well as in remembrance of their spiritual relations, I do, James Smith, wills, that one hundred ($100) dollars be annually appropriated in raid of the ministry, (of one of good report,) of the Baptist -denomination, (as being preferred by them,) whose labors, for this sum appropriated, shall give his labors at least twice in the month. The chapel on the estate, to be kept in ,good . repair.</p> <p>As my mind has long been exercised, not from any view ■ that slavery is to be considered a sin, but otherwise, fully . justified from -the oracles of truth, that I, James Smith, wills, that provision for them, that their situation might be measu- ■ rably meliorated, or make better their situation gradually, that will prove in time, (measurably) a better condition for uthem.</p> <p>Thus, for that end, I, James Smith, for their gradual emancipation, the following provision I do hereby make for them, in this my will, to-wit: that after my decease, an annual register will be kept of all the births occurring on said estate, the same being recorded in the annals of the county, in such Courts and records of the same having cognizance of such ■public matters, as the county requires, and that every tenth .(10th) birth, at the age of eigh(18)teen years of age, shall have faithfully made known to him or her (as the case may be) this arrangement or provision made for carrying out this my object; and in the event of such accepting of it, such .shall be made known or reported to the society called the Colonization Society of the United States of America, for the purpose of providing and arranging for their freedom, (of all those accepting,) and turned over to the said society, coming under this rule; and should such reject this provision made, then and in that case shall continue in slavery ; if a female, it shall not exclude or deprive her issues in coming under the rule so provided; such coming under this provision, shall be supported as the rest of the slaves, until the said age of eighteen (18) years so required for their .choice, either to accept or refuse.</p> <p>And in conclusion of this, James Smith’s last will and testament, for carrying out all the requisitions therein named, do hereby appoint and nominate the following persons as my particular relatives and friends, as my executrixes and executors, to say: My dear wife, (Jane) my daughter, Elizabeth W. Dunwoody, my executrixes, with the following, my three grand-sons, (as if named,) with those of my particular friends, to-wit: united with them, the Rev. John Jones, John Dun-woody, (sen.) of Roswell, Cobb County, James II. Couper of Glynn County, of (Hopeton), Alexander Mitchel, of Darien, McIntosh County, James Jones, of Liberty County, William R. Gignilliat, of McIntosh County, as my executors and ex-ecutrixes, to this my last will and testament, touching all and every thing herein expressed; and in the event of vacancy, wanting the number as nominated herein, (to say, 11,) the remaining number at their annual meeting, on said estate, (which is recommended to be on the first Monday of April,) shall appoint such one or more, if required, to fill such vacancy; to fail in doing so, any of the Courts or authorities of McIntosh County are permitted to do so; and in either case, to be as binding as if done by me, James Smith.</p> <p>I, James Smith, for the harmony, peace and good feeling of all parties interested, that at the annual meeting on said estate by these my executors and executrixes, for the arrangement and adjustment of said estate, to appoint one for the superintendency of it annually, for whose services the sum not over one thousand ($1,000) dollars shall be appropriated as to cover overseer’s wages and his superintendency, whose duty is to keep a day-book of all accounts, &c. emanating for and against said estate, &c.; and when approved of at the annual meeting, (on said estate,) after being approved of and signed by the acting ones, it shall be made a record on the county, for such having any interest therein.</p> <p>In conclusion, I, James Smith, must beg the pardon of those my friends, as herein named, as my executors and ex-ecutrixes, although the laws of the State make provision for their commissions under such appointments, I must say, from ■so many divisions provided for, &c. I must beg, here, not to admit; and thus, throw myself on their clemency, for my rejecting any commission being claimed or charged by them. And as regards any other property I, James Smith, may be found possessed at my death, as not included in that left in perpetuity, to-wit: monies at interest, either from bonds, notes, accounts, houses, lands, &c. shall be equally divided between my three grand-sons, to say: William J. Dunwoody, Dean M. Dunwoody and John E. Dunwoody, share and share .alike, to them and their heirs forever, so as not to interfere in any arrangement from that provision made for my dear wife, (Jane) as well as for my daughter, (their mother,) E. W. Dunwoody, as stated in this my last will and testament, as, witness my hand and seal to above date! ■Test— JAMES SMITH.</p> <p>Chas. H. McIntosh,</p> <p>Thos. S. Bond,</p> <p>J. Bockenbauuh,</p> <p>Not. Public.</p> <p>Upon caveat to this will,, the following special verdict was taken, by consent:</p> <p>In the matter of the last will and testament cf James Smith,, application by Vm. J. Dunwoody, Dean M. Dun-woody and John F. Dunwoody, three of the executors named in the said will, to prove said will and testament, in solemn form, and to admit the same to record, decision by the Court of Ordinary, and appeal therefrom by the caveators to the Superior Court, we, the Jury, impannelled to try said case upon the appeal, do find that the said last will and tesment of the said testator, James Smith, was signed by the said testator, in the presence of three credible and competent witnesses, who, at the request of the said testator, and in his presence, and in the presence of each other, subscribed the said last will and testament, as attesting witnesses thereto; that the said testator, at the time of signing said will, was in his right and proper mind, and that the said will was, in every respect, properly and legally executed by the said testator, so far as the formal execution is concerned. And, further, if the Court shall be of opinion, and shall decide, that upon the law arising on said will, the said will is good and legal, and. capable of legal operation and effect, then we find for the will and the propounders thereof, and that the same be established as the last will and testament of said James Smith, and be admitted to probate and record; but if the said Court shall be of opinion, and decide that the said will cannot be supported according to law, and cannot operate consistently with the laws of the land, then we find for the caveators and against the will, and that the same be set aside and probate and record thereof be refused.</p> <p>Upon this verdict, Judge Fleming decided as follows:</p> <p>The special verdict in this case, and which was rendered with the consent of the parties, disposes of the first ground of the caveat, to-wit: that the paper offered for probate as the will of James Smith, was not executed by the testator according to law.</p> <p>The questions made and argued, and which I am called upon to decide, arise under the third ground of the caveat, viz: “ that the provisions of the said will are contrary to the laws and policy of the State of Georgia, and cannot legally be carried into effect.”</p> <p>The provisions of the will referred to in this ground of the caveat, are the clause providing that the Sidon estate shall be “Jcept in perpetuity,” and the clause providing, or rather, professing to provide for “gradual emancipation.” The will, in my judgment, does provide that the Sidon estate shall be kept in perpetuity, and I have no difficulty in saying that this provision is illegal, and absolutely null and void. The clause as to emancipation, is also void, because it necessarily depends upon the perpetuity clause. The provisions of the will are such that the Sidon estate must be kept in perpetuity, or the clause as to emancipation cannot be carried out. This, it seems to me, cannot fail to appear to the most superficial reader of this will. If this be so, then it is unnecessary to consider,the question whether the emancipation provided for in this will be domestic or not. That question can only become important in the event that the emancipation clause could be so separated from the perpetuity ‘ clause, as not to dependent upon it for its execution. But this is impossible, and the will itself is the best argument to prove it. The next question in order is, whether the will, being void in part, is void altogether. This question has been decided in a recent case by the Supreme Court of Georgia. Judge Lumpkin says: ‘4 And although void as to the emancipation clause, so as to create an intestacy as to the slaves, it may, neverthetheless, be valid, as to the other items. By the 17th section of the 1st article of the Constitution, it is provided that no law or ordinance shall pass, containing any matter different from what is expressed in the title thereof; and yet, no Court in Georgia has ever held that the whole Act was a nullity, but only so much and such parts thereof as were obnoxious-to this constitutional inhibition.” (16 (fa. JR.)</p> <p>A will, then, void as to some of its items, may yet be good: and valid as to other items. What, then, let us inquire, is-the fact in regard to the will before me ? Setting aside the-perpetuity and emancipation clauses, has Mr. Smith disposed,, by will, of the whole or any part of his property; or, has he-died intestate, as to the whole or any part of his property ?'</p> <p>For the answer to this question, I propose to look strictly to the will itself. I shall not assume the most delicate and responsible office of “making another will for the testator, when his declared intention necessarily fails.” It is my purpose to let the will speak for itself.</p> <p>The provisions of the will in favor of Mrs. Smith, are free from all objections. She has, by the will, an annuity of five hundred dollars. She has the choice of her house servants, the choice of living at Welham, Brighton or Sidon, with the use of the furniture that may be found at the place of her choice, also the use of carriage and carriage horses, and the use of the stock of all kinds: “ this for her comfort during life." There is also given her the sum of four hundred and fifty dollars, “ with all other monies she may have in her safe keeping” at testator’s death. These provisions in her favor to be in lieu of dower. There is also given her annually, during life, (if she wishes it,) provisions from the plantation for her household. In all this there is certainly nothing illegal or impossible. These provisions of the will must, therefore, stand as part of the last will and testament of James Smith..</p> <p>The will then proceeds to provide, that in the event Mrs. Dunwoody, the daughter of testator, should survive Mrs. Smith, then certain privileges granted Mrs. Smith during life, should be “turned over” to Mrs. Dunwoody, to be enjoyed by her during life. The Brighton Summer Seat, containing about five hundred acres, is given in fee simple to Mrs. Dunwoody “and her heirs forever.” The sum of five hundred dollars is given to the children of his (testator’s) deceased brother, share and share alike. Testator gives his gold' watch, which had been left him by his brother, to James L. Smith. So far, we have seen nothing illegal or impossible. These items of the will are good and valid, and so far as these' items have disposed of property, Mr. Smith certainly has not died intestate. These items, however, dispose of but a small,, very small, part of his property. The great bulk of his estate remains yet to be disposed of, and the question is, what dis-position has he made of it, or, rather, the question is, has he made any disposition of it ? or, has he died intestate as to the balance of his property ?</p> <p>This question arises under the following clause of the will : (Here followed the clause.) ,</p> <p>I propose to give, in my own language, what I believe to-be a true abstract of this clause of the will:</p> <p>First. Mr. Smith provides, in this clause of his will, that his Sidon estate, consisting of certain lands and negroes, shall be considered as his general estate, and kept together in perpetuity; that is to say, never to be alienated or divided.</p> <p>Second. The reason why he wishes this estate kept in perpetuity is, because, in his opinion, neither one of his heirs is able to purchase the shares of the other heirs, and he is not willing that the family ties among his negroes should be broken by a division.</p> <p>Third. He provides that the annual income of this estate, subject to certain charges, shall be divided, share and share-alike, between his children, grand-children and great grand-. children, naming them. He says children, but does not name any child, but only grand-children and great grand-child. The gift to his great grand-child is upon the same terms as are mentioned in a deed of gift of sundry negroes, to said great grand-child, to be found on the records in McIntosh-Superior Court.</p> <p>The above is, I believe, a true abstract of this clause of the will. The first provision, that the Sidon estate shall be kept' in perpetuity, I have already decided to be null and void. True, it was contended in the argument before me, that this-was no perpetuity. But the testator has used the word perpetuity, and I must suppose that he used it according to its legal meaning and effects. If I could gather from the words used by the testator that there was any period within his con- • templation when this property could be alienated, and if that period was within the bounds prescribed by law, I would cheerfully suppose that he had used the word in that limited sense. But there was evidently no period in the mind of the testator in reference to which this word was trsed. On the contrary, we find him in a subsequent part of this will, providing for the filling of vacancies in the number of his executors, which, if carried out, would secure a perpetual succes- - sion. The very reason which he gives for this perpetuity clause shows that he meant what he said — a perpetuity; for the reason he gives is, that no one of his heirs can purchase from the others, and his mind revolts at the idea that his-slaves should be separated. Not that they should be separated within a given time, but that they should ever be separated. It is, I apprehend, in accordance with this feeling, that he makes provision for perpetual succession among his executors.</p> <p>The third and last item in this clause of the will is, the gift of the income to his grand-children and great grand-child... Caveators, I know, deny that the income is conveyed. This question I will consider hereafter. Assuming, for the present, that the income was conveyed, what is the legal effect of such conveyance ? Does it convey the principal ?</p> <p>The question has been, as I conceive, decided by the Supreme Court of Georgia, in the case to which I have already had occasion to refer. I quote that decision at length upon the point. (Here follows the decision upon Bledsoe’s will.);</p> <p>This decision is so full to the point, that a gift of the income of property without limitation, is an absolute gift of the property itself, that I deem it unnecessary to refer to any other authority.</p> <p>This brings me to the question, has Mr. Smith given the income of this property, without limitation as to time, to his grand-chilclren and great grand-child ?</p> <p>His will is, that “ all the annual income arising out of said ■estate,” be given to his grand-children and great grand-child, share and share alike, subject to certain deductions, which I will hereafter notice, to his grand-sons, and “their heirs for■ever■ to his grand-daughters and the “ heirs of their bodies ;” and in the event of no heir or heirs of their bodies, ■then, and in that case, such a distribution as their wills and ■desire may make;” and to his great grand-child, upon the •same terms as are mentioned in a “ deed of gift of certain negroes,” which deed is upon record in the McIntosh Superior Court. This is certainly a gift of all the income, without the limitation of time, unless the effect of his words is prevented by the deductions from that income, for which he has provided. The argument here is, that the income is not conveyed, because, if so, then the other legatees are cut off, there being no fund to pay. Is this so ?</p> <p>He bequeathes the sum of four hundred and fifty dollars, ■absolutely, to his wife. Is this inconsistent with the gift of •the income to others ? I think not — certainly not more inr consistent with a gift of the income than with a gift of the -property itself.</p> <p>May not a man give his property to A, and incumber it ■with a debt of four hundred and fifty dollars, or any other -sum, to E ? And when the debt is paid, is not the property the property of A ? And why may not the income of property be given in the same manner ? And when the debt is paid, does not the income belong to the person to whom it is •given?</p> <p>He also bequeaths to his wife an annuity of five hundred ■dollars during life, and after her death this annuity is to be paid to his daughter during life. What is this but a charge ■upon the income — not a perpetual charge — it is limited to the ■lives ofhis wife and daughter; it is nothing more than a debt, for which he has thought proper to make his legatees chargeable. ■•It is no more inconsistent with an absolute gift of the income, or of the property itself, than that other item of his will, which directs his executors to pay his debts without delay. As well might it be urged, that the income is not given, because if so, then creditors must go unpaid; for there would be no fund with which to pay.</p> <p>There is, also, a bequest of five dollars, annually, to each of his negroes, over the age of seventeen years; and also, the sum of one hundred dollars, annually, to be paid to a Baptist preacher, of good report, who, for said sum of one hundred dollars, “ shall give his labors at least twice in the month, in the chapel on the estate to be kept in good repair.” These '¡bequests depend upon the perpetuity clause in this will, and •for that reason they are null and void. Being null and void, they cannot affect the gift of the income, or of the property.</p> <p>But it is argued that this income is given upon the condition precedent that the estate shall be kept in perpetuity, and that the condition being void, the gift is void also. It is fur-ther argued, that the general intent of the testator was to create a perpetuity; that this general intent being void, the .whole will is void; as the whole will but points out the mode and manner in which the testator wished this general intent to be carried out.</p> <p>What reason does the testator give for wishing this property kept in perpetuity ? The reason is, that neither of his heirs is able to purchase it from the other heirs, so as to prevent a separation of families among his negroes. What, then, are we to infer ? That if any one of them had been able to make the purchase, he would have bequeathed and devised the whole to him, charged with the proportionate shares of the other heirs and legatees. Under these circumstances, a separation among the negroes might take place, but the testator would have no connection with it. He would have done what he conceived his duty in the premises, and the separation, if it took place, would be the act of another. In other words, the testator would have given the whole Sidon estate, land and negroes, to one, if there had been one among his heirs able, in his judgment, to pay the other heirs their pro¡portionate shares. In this there would have been no perpetuity. Under such circumstances, the testator would not have ■felt it his duty to provide for a perpetuity. From this I infer that the great object of the testator was, that his heirs and. legatees should have this property. His humane feelings, .however, revolted at the idea that his negroes should be separated by any act of his own; he would, therefore, in the .first instance, have left all his negroes to one of his heirs, he to pay the others their proportionate shares, if, in his judgment, there had been one among his heirs able to do so; but .not thinking this, he leaves the income to be equally divided between them, believing, I doubt not, that in this way the negroes would be kept together; but not, as I think, upon the condition that they should be kept together in perpetuity; for if, in his judgment, there had been one among his heirs able to take all, such would have been his will, and Aye Avould never have heard of a perpetuity. This is not a matter of inference, it is what he himself says; his language is, that the Sidon estate “ shall be considered my general estate, to be kept in perpetuity,” (now Avhy ?) “ from the circumstance of neither of iny heirs are competent to the purchase of said .grounds constituting said estate.” If, then, either one of his beirs had been able to purchase, he Avould not have desired a perpetuity. He was evidently willing to leave the question ■of a separation among his negroes with either one of his heirs, if, in his judgment, there had been one among them able to pay the others their proportionate shares. This, in myjudgment, is the legitimate and necessary effect of the language he has used. My judgment then is,, that this Sidon estate is, by this will, bequeathed and devised to the grand-children ■and great grand-child of the testator, share and share alike, encumbered with certain charges in favor of his wife and child, AYhich charges Ayill cease upon their death.</p> <p>Upon this decision, the folloAving errors are assigned :</p> <p>1st. Because the Court erred in deciding, that upon the ■whole law arising on said Ayill, that the said will was good ■and legal, and capable of legal operation and effect.</p> <p>2d. That the Court erred in not deciding that the will was void, on account of its conflict with the Statutes of the State on the subject of .emancipation.</p> <p>3d. Because the Court erred in not deciding that the provisions of the said will, with regard to the Sidon estate, and the property connected therewith, were void, on account of their conflict with the laws of this State, regarding perpetuities.</p> <p>4th. Because the Court erred in deciding that the emancipation clause was rendered nugatory by the perpetuity, whilst the perpetuity itself was inoperative, as against other provisions of the will.</p> <p>5th. Because the Court erred in deciding that, under the provisions of the will, the Sidon estate, in said will mentioned, descended, in fee simple, to the grand-children and great grand-child of the testator, with certain incumbrances.</p> <p>Judge McDonald being related to a party in interest, did not preside in this cause.</p>

In Equity, in Montgomery Superior Court. Decision on demurrer, by Judge Holt, April Term, 1855.

<p>Application for temporary alimony, in Baker Superior Court. Decision by Judge Perkins, November Term, 1855.</p> <p>Thomas Swearingen alleged, in reply to a motion for alimony, that the libel for divorce was filed without the knowledge or consent of the libellant. An issue was joined on this allegation. Defendant demanded a Jury to try the same, which being refused, is assigned as error. Libellant offered as witnesses, two of the sons-in-law of the parties; objection, that they were interested ; over-ruled by the Court, and assigned as error.</p> <p>It was proved that libellant was old and afflicted with chronic rheumatism; that it required a considerable quantity of morphine for her comfort; that defendant was worth about $15000. Thomas Swearingen, a married son, on oath, offered to board, &c. libellant for $20 per month. The Court allowed her $40 per month for alimony, and $250 for Counsel fees.</p> <p>This is assigned as erroneous, on the ground that it was* excessive.</p>

Rule vs. Sheriff, in Baker Superior Court. Decided by ■Judge Perkins, November Term, 1855. This rule was taken against the Sheriff, to show cause why he had not arrested James D. Hampton, under a ca. sa. in favor of Drury Porter.

. Motion to dissolve injunction, in Dougherty Superior Court, decision by Judge Perkins, December 1st, 1855. Charles W. Horn, as administrator of Wm. L. Hampton, deceased, filed a bill against Erancis Thomas, as administrator of John M. Hampton and Andrew Y. Hampton, charging as follows: That on 12th January, 1849, Andrew Y. Hampton, as principal, and Wm.

Debt. Baker Superior Court. Tried before Judge Perkins, November Term, 1855. This was an action upon a Sheriff’s bond, for failure to make the money upon ajñ. fa. in favor of E. B. Stoddard vs. Wilson & Mathis. ' Upon the trial, the following letter was ■ given in evidence: Knoxville, Ga. Jan. 10th, 1841.

<p>[1.] Where the answer to‘a charge in a bill is a mere matter of opinion, a denial, founded upon belief only, does not swear off the equity, so as to entitle the defendant to a dissolution of the injunction.</p> <p>[2.] A general warranty of soundness may cover even patent* defects.</p> <p>[3] Where the Court gets jurisdiction of the person or property of a non-resident, it will retain it to administer justice to its own citizens, and will not send them to a foreign jurisdiction to seek relief.</p>

<p>Ejectment, in Dougherty Superior Court. Tried before Judge Perkins, November'Term, 1855.</p> <p>On the trial of this case, the defendant below, Paul E. Tarver, offered in evidence a deed from one John G. Coleman to T. J. Johnson, executed by Thomas Coleman, as Attorney in fact, which deed recited that Thomas Coleman was appointed Attorney in fact, to execute a deed to Johnson. He also offered letters of Attorney from John G. Coleman to Thomas Coleman, giving general power to sell and convey this lot of land. To these papers plaintiff objected, on the ground that the general letters did not sustain the deed. The Court over-ruled the objection, and plaintiff excepted.</p> <p>The defendant then offered in evidence a deed from Gunnerson, Sheriff of Baker County, to John G. Coleman, and an exemplification of the record of a judgment in Hancock Superior Court, in favor of Johnson vs. Gore & Alford (the drawer and lessor of plaintiff.) Also, a fi. fa. purporting to be an established copy, and the order establishing the same.</p> <p>To these papers plaintiffs’ Counsel objected—</p> <p>1st. Because the exemplification showed that no legal service had ever been made on the defendant.</p> <p>(On this point the entry by the Sheriff was, “ Copies left at the house of defendant.”)</p> <p>2d. Because the said judgment and execution was dormant.</p> <p>(On this point, the judgment was rendered in 1820. The copy fi. fa. was established in 1845, without any entries except “nulla bona,”, in 1820. The levy on the land, was in 1846.)</p> <p>3d. The judgment was presumptively paid off, from the-lapse of twenty years.</p> <p>4th. Presumption of satisfaction of the fi. fa. from lapse of time.</p> <p>5th. This presumption could be rebutted only by regular proceeding by sci. fa.</p> <p>6th. Th b fi.fa. was illegal and void, being an alias fi.fa. which the Court had no right to issue.</p> <p>(On this point the order showed that this second fi.fa. was1 issued in lieu of the original, which was lost.)</p> <p>7th. The order for issuing this fi. fa. was void, because the Court had no authority to issue a second fi. fa. and because notice was not given to defendants in fi. fa. and because the record showed there was no evidence of loss of original, but the affidavit of the party.</p> <p>8th. Because the Sheriff’s sale under this void fi. fa. was itself null and void.</p> <p>The Court over-ruled all of the objections, and admitted the evidence. To this decision plaintiffs excepted.</p> <p>Defendants then offered in evidence the testimony of sundry witnesses, to show that William Alford, one of the lessors of plaintiff, (and the only one in whom they proved title,) had bepn absent from Hancock County, (where he formerly resided,) and had not been heard from for twenty or twenty-five years, and was insolvent when he left. Plaintiff objected to this testimony as irrelevant. The Court admitted it, and plaintiff excepted.</p> <p>The Court charged the Jury, that if they were satisfied, from the evidence, that plaintiff, Alford, was dead, then they must find for defendant. To this charge plaintiffs excepted.</p> <p>On these exceptions error is assigned.</p> <p>Judge Bbnning, being related to one of the parties, did not preside in this case.</p>

Trover, in Sumter Superior Court. Tried before Judge Perkins, August Term, 1855. William J. Dinkins and others, the children of Elizabeth Dinkins, brought trover against the plaintiffs in error, for a negro man Lev or Levi. They claimed under a deed of trust, -made 8th May, 1827, by ffm. P. Brown, the father of Mrs. Dinkins, by which she had a life estate, and these children an interest in remainder.

In Equity, in Dougherty Superior Court. Decision on demurrer, by Judge Perkins, November Term, 1855.

<p>[1.] The doctrine in Royall vs. The Lessee of Lisle and others, (15 Ga.JRep. 545,) re-affirmed.</p> <p>[2.] If one merely enters upon land and commits a trespass, and then goes off and another comes after and commits a trespass, in such case there is no continuity of possession : for whenever the first trespasser quit the possession the seizin of the true owner is restored. But the several possessions may be tacked so as to make the continuity efficacious where there is a privity of estate between the successive tenants, or the several titles are connected.</p> <p>[3.] If illegal testimony is allowed by the party to go to the Jury, without objection, it is no ground for a new trial, under the Act of 1853-4.</p> <p>[4.] Whether the defendant’s possession be in subordination to the title of the true owner, depends upon the character of the possession. If consistent with the idea of paramount title in another, it is in subordination; otherwise it is not. In England, where lands are generally cultivated by a tenantry, the doctrine of adverse possession is not so liberally construed as' in this country, and especially in the newer portions of it, where the occupant of land is usually the owner of the soil.</p>

<p>[1.] The Superior Court has power to rectify an order establishing a lost paper, by the paper itself, when found.</p> <p>[2.] It is to be presumed that a verdict which is expressed to be “for principal and interest,” is meant to be for the principal and interest claimed in the declaration, especially if judgment has been entered up for the principal and interest thus claimed, and the defendant makes no objection to the judgment.</p> <p>[3.] That there is an injunction against paying out part of a fund in the hands of a Sheriff, is no reason why the rest of the fund should not be paid out, and paid out to the claimants upon it according to the priorities of their respective claims.</p> <p>[4.] When a third person advances the money due upon a judgment, and' takes no transfer of the judgment from the plaintiff, but takes a mortgage from the defendant, to secure the repayment of the advances, the intention, it is to be presumed, is to extinguish the judgment and to rely exclusively upon the mortgage as security for the repayment of the money advanced.</p> <p>[5.] Where a Sheriff has levied a number of fi. fas. and is selling under them all, he is not at liberty to make an arrangement with the plaintiffs, in some of' the fi. fas. to receive from them, in payment of such of the property as they may buy, something else than cash, unless he has the permission of the-plaintiff in the other fi. fas. to make the arrangement.</p> <p>[6.] Property alienated pending an appeal, is as much bound for the payment’ of the damages for a frivolous appeal, as it is for the payment of the rest of the amount of the appeal judgment.</p>

Assumpsit, &c. in Clay Superior Court. Tried before-Judge Perkins, September Term, 1855. This was an action for damages for breach of contract, for ■ the purchase of cotton.

Decided; by Judge Perkins, November Term, 1854. This was an action for deceit, brought by John Jackson vs. Caesar A. Savage, in false representations as to the solvency of one P. B. Bond. The testimony, as to the representation, was as follows: Wm.

<p>[1.] A party suing a third person for goods furnished on his recommendation, must make it appear in evidence that the recommendation was made to himself or his agent, or to some one else who communicated such recommendation, for the purpose of obtaining the credits.</p>

Assumpsit, in Marion Superior Court. Tried before Judge Worrell, August Term, 1855. This was an action brought by the heirs of Thomas Williams against the executors of Thomas Hollis, for the use and occupation of a tract of land.

Claim, in Talbot Superior Court. Decision by Judge Worrell, September Term, 1855. A motion ivas made to dismiss the claim in this (and five-other cases consolidated with this) case, on the ground that the claim had been withdrawn more than once.

In Equity, in Marion Superior Court. Tried before Judge Worrill, August^Term, 1855. John French and Elizabeth, his wife, filed a bill against the executors of John Rushin, dec’d, for the recovery of the legacies left them under the will. The bill and answer are voluminous, as is also the evidence in the case. The following is sufficient to understand the questions made in this Court: The defendants gave in evidence the following receipt: “ July 30, 1830.

Debt, in Muscogee Superior Court. Decision by Judge Worrell, December Term, 1855. This was an action against Thornton as a stockholder in 'the Planters’ and Mechanics’ Bank of Columbus, to compel the redemption of the bills of said bank. Defendant demurred to the declaration of the plaintiff, on the ground that it contained no averment of the amount of the bills of the bank unredeemed and in circulation.

<p>Ejectment, in Chattahoochee Superior Court. Tried before Judge Worrell, November Term, 1855.</p> <p>This action was brought upon the demise of James L. Martin, and also of A. J. Miller, as the administrator of William Hurt, deceased, to recover a lot of land. The defences were, general issue, and Statute of Limitations. Plaintiff showed a grant to Martin, and proved possession in defendants. Defendants showed a Sheriff’s deed to one Tignor, dated October, 1840, reciting a sale of the land as the property of Ezekiel Perry; a deed from Tigner to Bonnell, dated December, 1817, and a deed from Bonnell to Suris, the defendant, dated October 15th, 1850.</p> <p>Thomas Suris, the son of defendant, was introduced as a witness. Plaintiff proposed to ask him if his father, at the time he purchased of Bonnell, was not aware of the claim of Hurt’s estate. The Court ruled out the question, and plaintiff excepted. Defendant proved that he and those under whom he claimed, had been in possession seven years. Plaintiff, in rebuttal, offered a deed from Joseph May and Ezekiel Perry, dated March, 1839, to William Hurt. The Court rejected the deed, unless plaintiff expected to connect it with the grantee by regular chain. To this decision, plaintiff excepted.</p> <p>Plaintiff also proposed to give in evidence an exemplification of the judgment against E. Perry, under which the land was sold, to show that it was younger than the deed to Hurt. The Court rejected this evidence, and plaintiff excepted.</p> <p>The following was the answer of one of the witnesses: “ Ezekiel Perry and Joseph May, were in possession at that time; Perry told witness that he had sold to Hurt.” The latter clause was ruled out by the Court, and plaintiff excepted.</p> <p>The plaintiffs requested the Court to charge — That if Em sly Lot was placed as tenant in possession by Hurt, that he could not subsequently, by attorning to Tignor, make his possession adverse to Hurt; ■ and if, while he was in, Hurt died, and after the death of Hurt, Tignor put another in possession, then the Statute would not run against Hurt’s estate, until administration granted; and if seven years had not since elapsed, the statutory bar would not avail them. The Court declined so to charge, and plaintiffs excepted.</p> <p>The plaintiffs requested the Court to charge the Jury, that if the lot of land was divided by a road, and if the south half was not fenced in or cultivated, any part of it, then there could be no adverse possession to the true owner. The Court declined so to charge, and plaintiffs excepted.</p>

Ejectment, in Marion Superior Court. Tried before Judge Worrell, August Term, 1855. Two demises were laid in this declaration: one under William Kelly, the drawer, and the other, William D. Elam. Defendants below, on the trial, placed Wm. D. Elam as a witness, who swore that the suit was at his instance alone, and progressing for his benefit; that he did not know Kelly; had never seen him, and knew nothing about him. Defendants moved to strike out this demise.

Debt, in Muscogee Superior Court. Tried before Judge Worrill, June Term, 1855. This was an action brought in the name of Richard Lane vs. Alexander J. Robinson, for the redemption of certain bills ■of the Planters’ & Mechanics’ Bank of Columbus. On the trial, Ragan, the assignee of the bank, stated that he did not know the amount of bills in circulation; had within his control about $69,000; had received from J. A. Lee about $75,000.

<p>[1.] “ It is the right of Counsel to argue both the law and the facts of his case to the Jury, subject, of course, to the charge of the Court upon the law, and his right to grant a new trial, should the verdict he contrary thereto.”</p>

Larceny, in Muscogee Superior Court. Tried-, before-Judge Worrill, June Term, 1855. A single question is made by this record. Williams was-indicted for the larceny of a watch, from a man named Thomas. On the trial, among other things, it appeared that Thomas and prisoner had settled the case. The Solicitor General stated that he had been informed that prisoner had induced Thomas to absent himself from Court; and from diligent search, he believed him to be in Alabama.

Claim, &c. in Muscogee Superior Court. Tried before .Judge Worrill, December Term, 1855. This was a claim interposed to certain negroes levied on as tbe property of Richard Gibbs, and claimed by Wm. II. Feagan. After the parties had announced themselves ready for trial, and before the case was submitted to the Jury, claimant’s Counsel moved the Court to suppress the reading of two sets of depositions, on the ground that there appeared no •venue to their execution.

Debt, in Muscogee Superior Court. Tried before Judge Worrill, 19th January, 1856. This was an action brought by Sledge against Ingoldsby, Bosseau.& Halsted, principals, and Joseph A. L. Leo, surety, on an attachment bond, for damages for suing out an attachment. Lee only was served.

<p>[1.] A judgment is not a technical estoppel as to any matter, if the matter is not such that it had, of necessity, to he determined by the Court or Jury, before the Court could give the judgment.</p>

<p>[1.] If A contracts with B to repair different parts of the machinery attached to the cotton factory of B, to-wit: the running machinery and two frames-for spindles, the one not being dependent at all for its use upon the completion of the other, and the former is repaired and received by the owner,. lie cannot make the failure to deliver the other, an excuse for not paying-for that which is finished and accepted.</p> <p>[2.] Any necessary expense, which one of two contracting parties incurs ia complying with his part of the agreement, may be recovered as damages,., in a suit for a breach of the contract.</p> <p>[3.] When an agency is once established, all that is done and said by the-agent, in the execution of the contract, will bind the principal.</p> <p>[4.] Where the verdict is strongly and decidedly against the weight of evi-dence, a new trial will be granted.</p> <p>[5.] Prospective profits, which are speculative and conjectural, are usually too remote and uncertain to enter into the estimate of damages to be allowed for a breach of contract.</p>

Complaint, in Muscogee Superior Court. Tried before ■Judge Worrill, December Term, 1855. Gidrot & Co. sued John Banks on an account, for the price •of a centre-vent water-wheel.

Decision by Judge- Powers,,. -20 th. June* 1855. Roberts & Foote sued James W. Brown in Dooly Inferior Court. The process bore test in the name of but one Justice. Brown applied to Judge Powers for a certiorariin, order- to declare the said process void. The refusal to grant the writ, is the error assigned in this case. The same is the only point made in the case of Brown vs.. Woods & Co.

<p>Misdemeanor, in Bibb Superior Court. Tried before Judge Powers, June Term, 1855..</p> <p>This indictment was for keeping an open tippling house om the Sabbath day.</p> <p>One of the witnesses stated, that he could not say there-was spiritous liquor in the decanters, &c. in the shop, as he had never tasted any in that house. The Judge asked him if he could not say there were spirituous liquors in the Lanier Plouse bar. This question was objected to as irrelevant, and made a ground for a new trial.</p> <p>Another ground for a new trial was, that the Judge had. lectured a portion of the Jury for a verdict of acquittal, rendered on another indictment, against the same defendant. No objection was made to these Jurors.</p> <p>Another ground was, that only one witness proved the•offence, and he was successfully impeached, and not sustained-The Court refused a new trial, and defendant excepted.</p>

Decision by Judge Powers, at Chambers, 15th November, 1855. This bill was filed by Virgil Powers, Daniel V.' Vischer ■and Jacob Gh Vischer, alleging that in 1852, the Legislature ■incorporated “The Oglethorpe Bridge & Turnpike'Company,” for the building a bridge and turnpike across the Flint River, near the City of Oglethorpe; that by the charter, a provision was made for ascertaining the value of land taken for this purpose ; and the award provided therein, was' to operate…

Deceit, in Bibb Superior Court. Motion for a new trial. Decided by Judge Powers, November Term, 1855. This suit was brought by David McDaniel vs. Ed. L. Strohecker, for decit in the sale of a negro girl Ellen, in representing her to be sound, when, in fact, she was laboring with-consumption, which was well known to defendant, The abstract of the testimony was as follows: Q-. J. Blahe, as agent for plaintiff, bought the negro Ellen of defendant.

Attachment, in Crawford Superior Court. Decision by Judge Powers, September Term, 1855. In this case, the defendant moved to dismiss the attachment on the ground, that the levy was not advertised as required by the Statute; it appearing that the defendant had replevied the goods as soon as the attachment was served. The Court refused the motion, and this decision is assigned las error.

<p>Complaint, in Bibb Superior Court. Tried before Judge Powers, November Term, 1855.</p> <p>This was an action brought by B. Davis vs. The Central R. R. & B’lc’g Co. for the value of two mules killed by the -cars of the company. It appeared that the mules were loose, and getting on the track, were overtaken by the train and ■killed. The evidence was conflicting as to the diligence used to lesson the speed of the train. Counsel for defendant requested the Court to charge the Jury — “ That although cat-tle, hogs, goats, &e. may run at large and rail road companies be made liable for killing them, yet mules, being of a peculiar nature, should be kept up by the owner; and if allowed to run at large, as in the open woods, and they are killed by rail road trains, (except in cases of gross negligence,) the rail road company will not be liable.”</p> <p>The refusal to give this charge, is the only error assigned.</p>

Action for damages, in Bibb Superior Court. Tried before Judge Powers, November Term, 1855. This action was brought by Malinda Winn, a minor, about 8 years of age, by her next friend, vs. The M. & W. R. R. for damages done to the plaintiff, by the engine and cars of’ defendant. It appeared, that plaintiff’s mother and her four children were in a carriage drawn by two mules and driven by a negro man.

In Equity, in Bibb Superior Court. Decision by Judge Powers, November Term, 1855.

Claim, in- Muscogee Superior Court. Tried before Judge Wórrill, December Term, 1855. A fi. fa. in favor of B. S. Ware, against Willis P. Baker, was levied upon a lot of land, and Low Jackson interposed a -claim ^hereto. The following were the facts: In January, 1845, Baker sold the land to A. Iverson as trustee, and gave him a bond to make titles on the payment of the purchase money. On 10th November, 1846, Ware recovered his judgment against Baker.

<p>Debt, &c. in Muscogee Superior Court. Decision by-Judge Worrill, December Term, 1855.</p> <p>In this case, certain interrogatories bad been propounded, to tbe plaintiff, under tbe Statute. Tbe order of tbe Judge-was issued upon tbe affidavit of tbe defendant, tbat the plaintiff’s answers would be material evidence for tbe defendant.</p> <p>The order recited, tbat by inspection, the Court perceived tbat they were pertinent and such as tbe plaintiff would be bound to answer upon a bill filed in Chancery. Upon tbe trial, plaintiff demurred and objected to answering, on tbe ground tbat tbe granting of tbe order was not authorized under tbe Statute. Tbe Court sustained tbe objection, and this decision is assigned as error.</p>

<p>£1.] The Mayor and Council of Macon have discretionary power, within the restrictions of the Act of incorporation, to remove the marshal from office. The causes for which he may be removed, are specified in the Act, and the power of removal cannot be exercised but for the specified causes.</p> <p>£2.] They cannot escape the consequences of removing the marshal, by assuming to act in a judicial capacity in investigating the causes of removal.</p> <p>• £3.] The persons composing the Mayor and Council of Macon, who removed the marshal from office, not being sued individually for a toriioxis or wrongful act, arising from error of judgment as judicial officers, the question of their personal liability for such act, cannot arise in this case.</p> <p>[4.] The defendants are sued on the original contract with the marshal, for the whole of his year’s salary and perquisites; ¿and whether the defendants were justified in removing him, is a matter of defence.</p> <p>[5.] The marshal cannot recover of defendants money expended by him in defending himself against the charges preferred against him.</p> <p>.[6.] His damages are such, if he is entitled to recover, as necessarily resulted from his amotion from office.</p>

In Equity, in Muscogee Superior Court. Decision, by -Judge Worrill, at Chambers. ■ The plaintiffs in error, on the 24th day of November, 1855, presented their bill in Chancery, praying an injunction against the defendants in error, which was, on that day sanctioned, at Chambers, by Judge Worrill, Judge of the Superior Courts of the Chattahoochee Circuit.

In Equity, from Fayette Superior Court. Tried before Judge Bull, March Term, 1856. This was a bill filed by Dunn, as administrator of John Sellars, deceased, against Mary Fernander, formerly Mary Palmer, and administratrix and solo heir of John Palmer, her ■ former husband.

<p>[1.] A bill in Equity ought, in general, to be brought only in some county ■in which a defendant resides.</p>

<p>In Equity, from Butts Superior Court. Tried before Judge Starke, March Term, 1855.</p> <p>James Nolan, claiming as trustee for his sister, Sarah Chambers, the wife of Peter H. Chambers, as well as for certain parties entitled in remainder, in case of her dying childless, by virtue of deed of trust of certain negroes, executed to him by his father, William Nolan, filed his bill in the nature of a bill of ne exeat against the said Chambers, in whose-possession some of said negroes were, to require him to give security for the forthcoming of the property, to answer the claims of those entitled in remainder.</p> <p>The defendant repudiated said deed of trust, and claimed, in his answer, that before the execution thereof, the said William Nolan had given the negroes to his daughter, by which they belonged to defendant by virtue of his marital rights.</p> <p>The testimony on both sides was voluminous, and will be referred to in the opinion of the Court. The Jury found for defendant, and complainant moved for a new trial, on the-grounds — that' the verdict was against* the evidence, and against Law and Equity. The Court refused the new trial, and this’decision is assigned as error.</p>

Debt, in Carroll Superior Court. Tried before Judgo Bull, June Term, 1855. This was an action on two promissory, notes, amounting,, together, to Five Thousand and Ninety Dollars, besides interest.

Ejectment, in Cass Superior Court. Decided by Judge 'Trippe, September Term, 1856, The facts of this case are as follows: An orphan, named Harriet Taff, was a drawer of a lot of land in 1830. A scire facias was sued out in 1833, to declare said draw fraudulent; and a judgment was had .condemning the draw, and the land vras sold ; under which sale fhe defendants claim.

<p>[1.] To entitle a person to a bill of interpleader, lie must claim no interest in the fund or property, claimed of him by persons, on whom he calla to interplead and have their rights adjudicated.</p> <p>[2.] An executor has such an interest in property which came to Ms hands as executor, and for which he is sued by a person claiming it by title par- ' amount to that of testator, as precludes Mm from calling on parties claiming under the will, to interplead with the plaintiff; he is bound to defend.</p> <p>[3.] In sueli case, the interposition of a Court of Equity, is not necessary to his protection. The judgment of a Court of Law, on the legal title, if against him, will protect him.</p> <p>[4.] A Court of Equity will not sustain such a bill as a bill for direction, in the marshalling of the assets of the testator. The dutv of executor is clear and free from embarrassment.</p>

<p>[1.] On the 25th December, 1841, judgment was obtained in the Justice’s Court; January 5th, 1842, an execution issued, on which were these entries: “nulia bona” by the Constable, 7th February, 1842; ft. fa. returned and era. sa. issued by the Magistrate 31st January, 1849; levy on laud by ■the Constable, July 28th, 1849. It was admitted that a short time before the last entry, the officer went to arrest the defendant under the capias, who pointed out the land; whereupon, the ca. sa. was returned and the Ji-.fa. re-issued: Held, that the judgment was not void under the Act of 1823.</p>

Assumpsit, in Whitfield Superior Court. Tried before - Judge Trippe, October Term, 1855. This was an action brought against Thomas T. Nappier and his wife, formerly Mrs. Price, on an open account for articles sold before her marriage, to her and one E. W. Kilgrow, with whom she was in partnership in keeping a hotel. The following is the testimony in the cause: William L. Whitman testified, that he was living im Dalton in 1849, and was a clerk in the store of Mr. Cunningham.

Ejectment, in Whitfield Superior Court. Tried before Judge Trippe, April Term, 1855. This was an action brought by Bradford & Walker against Morris, to recover possession of lot No. 97, 13th dist. 3d sec. of said county. The land in dispute had been the property • of Thos.

<p>[ 1.] When, in a proceeding under the Act “ to amend the Bent Laws of this State,” passed in 1827, the tenant swears that he is not the “ tenant or lessee” of the plaintiff, it is necessary for the plaintiff to show a lease before he can recover.</p>

<p>Action on note, in Catoosa Superior Court. Tried before-Judge Trippe, October Term, 1855.</p> <p>This was an action against Nappier and wife, by Earnest, •on the following note:</p> <p>By the 25th Dec. next, we promise to pay L. W. Earnest -or bearer, Six Hundred Dollars, for value received, this 2d July, 1849. E. W. KILO-ROW,</p> <p>CELIA PRICE. .</p> <p>Credited by $118 82, raised from sale of mortgaged property, April 5,1850. Also, by f25 25, July 7,1850. Both amounts paid by the Sheriff.</p> <p>E. W. Kilgrow was a party to the action, hut not served.</p> <p>The plaintiff having introduced the note sued on, closed his case.</p> <p>Defendants then iníroducod a mortgage on a- quantity of personal props?:y, made by KiJgrow and Mrs. Price, to secure said noto, of even date therewith. This mortgage had been foreclosed and execution issued, on which were many entries of levies, sales, &c. which, so far as they are material,, will be noticed in the opinion of the Court. Defendant introduced evidence of an agreement between plaintiff and Mr. Nappier, to release the latter from all liability on this note-for one hundred dollars; but there was some uncertainty in the testimony as to whether this agreement was before or after his marriage with Mrs. Price.</p> <p>Plaintiff, in rebuttal, offered Dr. S. S. Bailey, to prove-that a certain wagon and horses, included in said mortgage, levied on but not sold, were not the property of the mortgagers, but the property of the witness, who had bought them from Kilgrow before the mortgage. The witness was objected to as interested, and the objection was sustained and-the witness excluded; and this decision is assigned as error..</p> <p>The Court charged the Jury, that where the Sheriff had levied on property by virtue of the mortgage jft. fa. it was ■ incumbent on the mortgagees to show the disposition of it, the possession of the Sheriff being their possession; that if' the agreement between plaintiff and Nappier was made before Nappior’s marriage, it was binding; if afterwards, it was void, as being without consideration.</p> <p>The Jury found fox the plaintiff One Hundred Dollars j whereupon, the plaintiff moved for a new trial, on the-grounds — of error in the Court in the exclusion of the testimony of Bailey, and in the charge to the Jury, that the mortgagee is bound to account for property levied on by the-mortgage ji. fa.; and on the further ground, that the verdict was contrary to law and evidence, and that the Jury failed to find interest on the one hundred dollars that they found.' for the plaintiff.</p> <p>The Court refused the new trial, and this decision is al- • leged as error.</p>

Assumpsit, in Whitfield Superior Court. Tried before-Judge Trippe, October Term, 1855. Held: that the action could not be maintained ; and on this decision, error is assigned.

Claim, in Whitfield Superior Court. Decided by Judge Trippe, April Term, 1856. This was an attachment sued out by Rogers, against one Taylor, and levied on a lot of land August 30, 1851. In July, 1852, a judgment for plaintiff was had on this attachment, and an order taken to sell said land. In September, 1852, the land ivas claimed by Bates, who hold under a deed from Taylor, dated September 4th, 1851.

<p>[1.] A defendant is chargeable with full costs, when sued in the Superior Court, although the verdict be for less than thirty dollars ; provided it be not rendered in a suit sounding in damages, and the demand set forth in the declaration be not proven to exceed the sum of thirty dollars.</p>

<p>In Equity, in Whitfield Superior Court. Tried before Judge Trippe, October Term, 1855.</p> <p>Ed Avar d White filed his bill against Henry Ault, setting forth, that he had been indebted to the said Ault the sum of $1649-/^; that one Charles A. Stafford, at the same time, was indebted to complainant the sum of $2100; • that the parties agreed together that Stafford should give Ault his notes in lieu of those of complainant, Avhich Avas done; that Stafford executed to said Ault, to secure said notes, a mortgage on real estate, which Ault neglected to have recorded; that complainant also executed to Ault a deed to certain lots, Nos. 58 and 55, on Thornton Avenue in Dalton, on one of which was a house Avorth one hundred dollars a year for rent; that this deed was intended as an equitable mortgage, to secure said notes of Stafford, Avhich Avas evidenced by a written memorandum taken from Ault at the time. These things Avere all done in September, 1848 ; that Ault took possession of said house, and occupied the same by his tenants; that tAvo of the three notes given by Stafford, Avere sued upon by Ault; and that in NoAromber, 1849, it Avas agreed betAveen Ault and Stafford, without the consent of complainant, that if Stafford AA'ould withdiw certain pleas that he had filed, that execution on the judgments should be stayed for a specified time. The bill also charged that Stafford died, and that Ault suffered his estate to be paid out to inferior claims, and made other charges of fraudulent conduct in relation to said estate.</p> <p>The bill sought to have the deed to said lots on Thornton: Avenue delivered up, and Ault decreed to pay rent’ for the-same. The bill also charged, that at the time of the exchange of notes in 1848, as before stated, that Ault represented to complainant, that in consequence of his (complainant’s) failure to pay his said indebtedness, he, Ault, had been compelled to borrow money at usurious interest; and to indemnify him for the loss thus sustained, complainant had. made him a deed to another lot on Thornton Avenue.</p> <p>This deed complainant prayed might be delivered up, as founded on usurious consideration. Other points were made-by the bill, not necessary for the elucidation of the decision of this Court. The answer of defendant denied the alleged consideration for the last named lot, but stated that it was' given for other indebtedness of White to him. The agreement with Stafford was admitted to have been without notice to complainant.</p> <p>The answer stated that it was agreed that defendant should have the rents of the house on Thornton Avenue, for the purpose of ro-imbursing him for the interest he had to pay above legal, in consequence of not receiving the cash from complainant. The Court charged the Jury, on the trial, that the facts did not constitute White a security to Stafford, and that he was not relieved by said agreement, unless he was injured by the delay or neglect of defendant; that if it was agreed that the rents of the house were to bo retained by Ault to indemnify him for the usurious interest he would have to pay or had paid, that White was bound by that agreement.</p> <p>And on these decisions error is assigned, the Jury having, found for defendant, and complainant excepting.</p>

In Equity, in Whitfield Superior Court. Decision by Judge Trippe, October Term, 1855. This was a bill filed by White, administrator of L. W.. Howe, against the creditors of said'Howe, for the adjudication of their claims against the estate. • . It appeared from the answer of Mark A. Cooper, which was admitted to be correct, that he had employed Howe to sell iron castings for him; that he let Howe have a storehouse, . rent free, in consideration of these services; that..

Ejectment, in Walker Superior Court. Tried before Judge Trippe, November Term, 1855. This was an action of ejectment, in which the plaintiff relied on the following title: Yiilliam Whitcombe being entitled ■to certain draws or chances in the Land Lottery of 1830, on ’the 25th day April, 1832, said lottery being not yet drawn, sold and transferred his draws or chances to L. A. Dugas, by assignment under seal, and purporting to bo for a valuable consideration.

<p>[1.] The title to an office will not be tried in a proceeding of quo warranto, when, at the time of trial, the term of office is expired, and no judgment of ouster can be pronounced.</p>

<p>[1.] Merc inadequacy of price is not, per se, sufficient to set aside a contract, if not so gross as to prove fraud or imposition.</p> <p>[2.] Where the inadequacy is so great as to give to the transaction the character of unreasonableness and hardship, the Court and Jury will stay the exercise of their discretionary power, in enforcing a specific performance.</p> <p>[2.] Where relief is refused, the Courts sometimes leave the party to seek his compensation in damages at Law, on account of the money paid ; but wherever a rescisión of the agreement is decreed, the better practice is, to require the purchase money to be refunded.</p>

In Equity, in Heard Superior Court. Tried before Judge Bull, May Term, 1855. This bill was filed by Williams.as administrator of Oliver M. Porter, against David Philpot, and set forth that said intestate, when in life, became security for one Green B. Mcj Donald on fourteen promissory notes of thirty dollars each,, to the said Philpot.

Ejectment, in. Heard Superior Court. Tried before Judge • Bull, November Term, 1855. Before this cause was submitted to tbe Jury, tbe plaintiff moved the Court to reject the depositions of Jesse J. Cavender, on the ground that the commission issued for John Cavender, and the commissioners had inserted Jesse J. in lieu of John.

Assumpsit, in Heard Superior Court. Tried before Judge Bull, Not ember Term, 1855. This was an action of assum psifc on an open account, brought by Oery & Stanford against James A. Sample as surviving ■.co-partner, &c. At the April Term, 1352, the defendant confessed a judgment for $222 20, reserving tbe right of appeal. And at the same term he entered an appeal, giving Noah M. Harris as his security on the appeal bond.

<p>Claim, in Heard Superior Court. Tried before Judge Bull, November Term, 1855.</p> <p>Nicholas Tompkins, as administrator of Giles S. Tompkins, being about to sell a certain lot of land as the property of his intestate, Pleasant H. Whitaker, interposed a claim to one undivided half of said lot, which he alleged to be his. The land appeared to have been sold by one Banks, as administrator of George M. Smith, and was bid off by Giles S. Tompkins, and the deed made to him.</p> <p>The land was bid off at sixty-seven dollars, and Tompkins gave a note with Whitaker as security, for $47Tl5ü'rü, in part of the purchase money. The claimant showed an agreement in writing, signed by Giles S. Tompkins, to the effect, that Whitaker was to have one half the lot on paying one half the purchase money.</p> <p>This agreement was dated on the same day that the land was sold. Severaljjwitnesses testified to having been present when said agreement was made; and that in consequence of it, Whitaker consented to stand security for Tompkins on the note.</p> <p>Claimant proved by Joseph C. Meeks, that he had called on Giles S. Tompkins to purchase said lot, and that Tompkins told him that one half the lot was Whitaker’s, and referred him to Whitaker for the purchase of it.</p> <p>The claimant also produced the said note, on the back of which was a receipt of the amount due on it from P. H.. Whitaker, signed by one Oliver as Attorney, in fact, for Banks. Oliver was introduced, and testified that Whitaker paid him the money. The administrator introduced no evidence in rebuttal.</p> <p>The Court charged the Jury, that if they believed that Whitaker paid the money simply because of his liability as security for Tompkins, they should find for the administrator ; but if he paid it on the faith of, and in fulfilment of the-contract, then they ought to find in favor of Whitaker.</p> <p>The Jury found the land the property of Giles S. Tompkins.</p> <p>Whereupon, the claimant moved for a new trial, on the-ground that the Jury found contrary to the evidence; and on the ground of error in the Court in the charge above stated ; and on the further ground, that since the trial of the cause, he had discovered witnesses who would testify that Giles S. Tompkins, in his lifetime, and within a short time before his death, had said to sundry persons, that half the land in dispute belonged to claimant, and that claimant had advanced his part of the purchase money for the same.</p> <p>The Court refused to grant a new trial; and on this decision error is assigned.</p>

In Equity, in Floyd Superior Court. Decided by Judge Trippe, February Term, 1856.

Illegality, in Floyd Superior Court. Decided by Judge ’Triple, December Term, 1855. D. S. Printup sued D. R. Mitchell in an action of trover for seven notes of $12 50 each, and one note of $25 made by •one Morris.

Motion, in Floyd Superior Court. Decided by Judge Trippe, December Term, 1855. This was a bill in Equity, filed by Elizabeth Formby, as . guardian of Jackson Formby, against John M. Hunt. At February Term, 1852, upon petition of the defendant, representing himself as a lunatic, William Wood was appointed his guardian ad litem.

Trespass, in Floyd Superior Court. Tried before Judge Trippe, December Term, 1855. This was an action of trespass quare clausum fregit, brought by Cunningham against Morris. Plaintiff, in making out his title to the land, offered in evidence a deed by B. T. Bethune to himself, made in Walker County, and attested by W. H. Battey and by W. H. Mitchell, signing himself “Notary Public, B. C.” The deed was recorded in Walker County.

Motion, in Floyd Superior Court. Decided by Judge 'Trippe, December Term, 1855. In this case, on the same being called in its order, plaintiff moved to charge against the defendant on the docket, a continuance which had been granted at the preceding term, and which the plaintiff had then insisted should be charged to him, but rvhich was not charged to him on the docket. The Court ■■refused the motion.

Motion, in Floyd Superior Court. Decided by Judge ‘.Trippe, December Term, 1855. 'This was a motion in arrest of judgment. Holcombe had sued Roberts for slanderous words. The action was brought in the form prescribed in the Act of 1849-50, “ to curtail and simplify pleadings.” The vrords charged wore, “ he has sworn a d — d lie and I can prove it.” There were no other allegations in the declarations.

Action, in Eloyd Superior Court. Decided by Judge Trippe, December Term, 1855. This was an action to enforce a carpenter’s lien, under the Act of 1837. It appeared that W. T. Cothran, G. S. Black, J. R. Powell and L. J. Hillburn, being the joint owners of a lot in the town of Rome, made a contract with the said Hill-burn, (one of themselves,) to build a hotel on said lot. Hill-burn employed O’Barr, who was a carpenter, to work on the house.

<p>[1.] The deed of a person to land, where there is adverse possession held by another, being void under the 32 Henry VIII. doesjgot preclude the grantee from maintaining an action of ejectment in the name of the grantor, to-recover possession of the premises.</p> <p>[2.] A demurrer will lie to a bill, where there is an ample Oommon Law remedy.</p>

Motion, in Carroll Superior Court. Decided by Judge Bull, December Term, 1855. These were motions to set aside judgments obtained heretofore by the plaintiffs in error, against Bowen & Bros. The motions were made, on the ground that John Bowen, the only member of the firm residing in the county, had never been served with the writ and process.

Scire facias, in Carroll Superior Court. Decision by Judge Bull, December Term, 1855. This was a scire facias issued on a penal bond, for the appearance of a party charged with crime. The scire facias was objected to, because it was directed To the Sheriff of said State, Greeting.” The Solicitor General moved to amend, which the Court refused, and dismissed the seire facias. To both decisions the Solicitor General excepts.

<p>[ 1.] Under the Act of 1820, if not at Common Law, suits may be maintained at Law between partners.</p> <p>[2.] A being tile debtor of B stipulates with C to discharge the debt: Held, ■ that B being no party to the contract, it does not change the relation of A to B — constituting A security only to the debt.</p> <p>[3.] B being a mortgage debtor of A, agrees with C, upon sufficient consideration, namely: the transfer of the mortgaged property, to discharge the liability. 0 failing to comply, the mortgage is foreclosed and the property sold : He Id, that no right of action accrues to 0 to recover back of B the amount paid by 0 on the debt, by way of damages.</p>

Caveat, in Rutts Superior Court. Tried before Judge Starke, September Term, 1855. Held: and so charged the Jury, that under this instrument, Sirs. McCord had the right to dispose of her ■property by will. The Jury found for the propounder, and the caveator excepts to the decision of the Court.

Ejectment, in Fayette Superior Court. Tried before Judge Bull, March Term, 1855. This was an action of ejectment brought in 1850, by Alfred Austell and others, against Diskin Holcombe. The plaintiffs showed the grant from the State to John Arlines’ orphans, dated November 24th, 1823; deed from James Arlines to Jer, Walker, February 2d, 1829 ; deed from Ann Davis to Diskin Holcombe, 23d October, 1837; fi. fa.

Ca. sa. in Eulton Superior Court. Motion to discharge’ defendant. Decided by Judge Bull, October Term, 1855. William A. Lewis sued and obtained a judgment against Samuel C. Elam, a practising Attorney in the several Courts of Law and Equity in this State. A ca. sa. was issued from the judgment, and the defendant, was arrested under it and gave bond for his appearance at Court.

Mandamus, in Fulton Superior Court. Tried before Judge Bull, October Term, 1855.

Murder, in Fulton Superior Court. Tried before Judge Bull, April Term, 1855. , This bill of indictment was found against tbe plaintiff in error, Asa Humphries, John Humphries, William Robertson and Dink Carlton, for the killing of Kent, at the October Term, 1854, of Fulton Superior Court. At the April Term, 1855, Cann Costly, the plaintiff in -error, was placed upon his trial.

Assumpsit, in Troup Superior Court. Tried before Judge Bull, November Term, 1856. This was an action on a promissory note. Before the cause was submitted to the Jury, the plaintiffs objected to the interrogatories of one Weldon, taken by defendant, and which had been in office twenty-four hours, for certain causes apparent on the face of the interrogatories; which objection was over-ruled by the Court.