Volume 2 — Georgia Reports

Claim, from Twiggs Superior Court, tried before Judge Scarborough—October Term, 1846. Judgment against the plaintiff in error, who was claimant in the Court below, and motion for new trial overruled. For the facts and circumstances of the case, and the error assigned, see the opinion of the Supreme Court.

<p>In Equity from Twiggs Superior Court. Tried before Judge Scarborough, at October Term, 1846.</p> <p>For the facts of .the case, see the opinion of the Supreme Court.</p>

<p>[1.] The Act of 1802, prohibiting the Judges of the Superior Courts from withhold* ing any grant, deed or other document from the jury, unless barred by the Act of Limitations, does not repeal the law of evidence as to tire execution of such papers $. nor prevent the Judges from pronouncing upon their legal character. The only effect which it has, is to prevent them from withholding from the jury papers, whose legal character is admitted or adjudged by the Court and which are legally proven.</p> <p>[2.] An instrument purporting to be a deed, by which the grantor gives to his son certain property, after 1ns death and the death of his wife, Í3 not a deed, but a testamentary paper, and cannot be read to the jury in any case affecting tire title to personalty in a Court of Common Law, until it has passed to probate before the Ordinary.</p> <p>[3.] A paper, having the formalities of a deed, may notwithstanding bo a will.</p> <p>[4.] In determining whether an instrument be a deed or a will, the Court will not consider what the maker believed it to bo, but what in point of law it is.</p> <p>[5.] The intention of the maker, as to the character of the estate conveyed, is the criterion by which tho Court will determine whether a given paper is a deed or a will, and if the intention gathered from the whole paper is, that the estate is not to pass, or tito instrument take effect, until his death, it is a will and not a deed.</p>

Injunction in Decatur Superior Court. Motion to dissolve in vacation, the defendants’ answers having come in; argument had thereon before Judge Warren at Chambers, in July, 1846, and motion allowed. For the facts, as disclosed by the bill and answers, and the errors assigned, see the opinion of the Supreme Court.

<p>Slander. From Macon Superior Court. Tried before Judge Warren, October Term, 1846.</p> <p>For the words spoken, &c., see the opinion of the Supreme Court.</p>

Indictment, and nol. pros, entered. Macon Superior Court. Judge Warren presiding, October Term, 1846. For the grounds of error, see the opinion of the Supreme Court.

In Equity from Sumter Superior Court. Tried before Judge Warren, November Term, 184-6. For the facts and circumstances of the case and the error assigned, see the decision of the Supreme Court.

<p>[1.] If A agrees to buy a plantation for B, and B agrees to pay A wliat he gives for it, and A represents to B that he gave three thousand dollars for it, when in fact he paid a less sum, and B pays him three thousand dollars, all action on the case will lie in 'favour of B against A, for tire deceitful and false representation.</p>

In Equity. From Dooly Superior Court. Tried before Judge Warren, November Term, 1846. For the errors assigned, and the facts of tho case, see tho decision of the Supreme Court.

Motion to dismiss writ of error. The case brought up by this writ of error was tried in Randolph Superior Court, on an appeal before Judge Warren, at October' Term, 1846, and resulted in a judgment against the appellants and-their securities on the appeal; all of whom, except one of the se^ curities, were joined in the writ of error as plaintiffs. For tlie grounds of the motion' to dismiss, and other particulars1 of the case, see the decision of the' Supreme Court.

<p>[1.] Under the Judiciary Act of 1799, where both plaintiff and defendant die before scire facias has issued to make parties, the action does not abate; but parties may be made and the action proceed.</p>

<p>[1.] There must be a time averred in the writ, when every material or traversable fact transpires.</p> <p>[2.] In a suit by the bearer against the maker of a note, the omission in the declamation to allege the time when the note was transferred, is cured by verdict or confession of judgment.</p> <p>[3.] No promise need be alleged in a declaration when the facts set forth show a legal liability without it.</p> <p>[4.] The 25th section of the original charter of the Central Bank of Georgia, limited loans to any one person to $2,500. In a suit by the Bank upon a renewal note under the amended charter of 1829, or on a bill of exchange discounted or purchased under the act of 1838, for the purpose of remitting funds to pay interest on the State’s bonds or foreign debt, it is not necessary to set out these latter acts as exceptions to the limitations contained in the original statute, and to aver that the debt sued on was contracted under the powers which they confer. These acts were passed to extend the original charter, by clothing the Bank with additional authority, and the courts are bound to observe their provisions.</p> <p>[5.J The bona fide holder of a negotiable note, payable to bearer, for a valuable consideration, without any notice of the facts which impugn its validity, as between the previous parties, if it Í3 transferred before it becomes due, takes it unaffected by these facts.</p> <p>[G.] The holder of a negotiable instrument is presumed to be a bona fide holder for a valuable consideration, without notice.</p> <p>[7.] The extinguishment of a pre-existing debt constitutes a valuable consideration for the transfer of a negotiable note. And the holder thus receiviugifEelbrc due, and without notice, is unaffected by the equities between the antecedent parties.</p> <p>[8.] The newspaper itself is the best evidence of the contents of any article which has been published in its columns.</p> <p>[9.] The regulations in the 11th aud 21st sections, and the limitation as to amount in the 25th section of the original charter of the Central Bank of Georgia, are directory merely, to the officers of the institution. And a debt may be collected, although contracted in disregard of any or all of these provisions; that is, being without security or indorser, having run more than twelve months, and exceeding the sum of $2,500.</p> <p>[10.] Under the amended charter of 1829, persons indebted to the State in a sum exceeding $2,500 may renew their notes for the whole amount of the debt. And, under the act of 1838, the Directors of the Central Bank are authorized to discount or purchase bills of exchange or other paper to pay the interest on the public debt, without reference to the limitation contained in the 25th section of the original charter. A debt contracted under either of these acts will be presumed to have been done in good faith, in the absence of any fact or circumstance implicating it.</p>

<p>[1.] In an action of Trover by an executor or administrator, who declares on liis own constructive possession, and alleges the conversion after the death of the testator or intestate, it is necessary for him to introduce in evidence his letters testamentary, or of administration, on the trial, as a part of his title, to enable him to recover.</p> <p>[2.] Where the defendant purchased a negro at Sheriff’s sale, as the property of a third person, who was a stranger to the plaintiff’s title, used him as his own, and exercised dominion and control over him, it was held to be sufficient evidence of a conversion to maintain trover, without evidence of a demand and refusal.</p> <p>[3.] When the testator bequeathed certain negroes, at his mothers death, to his son Robert, his heirs and assigns forever; but, if Robert should live single, and die without a lawful heir of his body, the above property is to be equally divided between my three sons, James, John, and Lovett, it was held to be a limitation over upon an indefinite failure of heirs or issue, and therefore void, as being too remote, according to » the rules of the Common Law, and vested the property in the first taker* Held, also, that if the bequest over had been good at Common Law, our Statute of 1821 would have vested the property in the first taker.</p>

<p>[I.] A note given for rent of a store-house is described in the plaintiff’s writ as given for rent, omitting the words of store-house. Held not to be a fatal variance under our statute.</p> <p>[2.] In. case of express contracts to pay rent, the destruction of the premises by fire, or violence, or any casualty whatever, is not a good defence to an action to recover the rent, unless there is also an express stipulation to that effect. Nor will a Court of Equity relieve against such contracts under such circumstances.</p>

Assumpsit. From Baker Superior Court. Tried before Judge Warren, in December, 1846. For the facts of the case, and the error assigned, soc the decision of the Supreme Court.

Action by indorsee against maker, and set-off against payee, pleaded. From Baker Superior Court. Tried before Judge Warren, in December, 1846. For the facts of the case, see the decision of the Supremo Court.

Scire Facias upon forfeited recognisance. From Baker Superior Court. Tried before Judge Warren. November Term, 1S46. For the questions made and determined, see the opinion of the Supreme Court.

Assumpsit. From Lee Superior Court. Tried before Judge Warren. November Term, 1846. For the facts of the case, and the error assigned, see the opinion of the Supreme Court.

Ejectment. Brought by John Doe on the demise of Littleberry Carter, who is the defendant in error, against Richard Roe, casual ejector, and Thomas Brinsfield, who is plaintiff in error, as tenant in possession. In Muscogee Superior Court, and tided before Judge Alexander. November Term, 1846. For the facts of the case, see the opinion of the Supreme Court.

In Equity. From Muscogee Superior Court. Tried, upon demurrer, before Judge Alexander. Term, 1846. For the facts stated in the bill, and the error assigned, see the decision of the Supreme Court.

Motion to set off one judgment against another, and to have satisfaction entered of record. From Muscogee Superior Court. Tried before Judge Alexander. Term, 1846. For further particulars, see the decision of the Supreme Court.

<p>[1.] A makes his note at Columbus, Georgia, payable generally to B, or bearer. B transfers it to C by delivery, and C indorses it to D. C held to be an indorser, and not a guarantor,</p> <p>[2.] In a suit by D, the indorsee, against C the indorser, the possession of the note, held prima facie evidenco of the delivery of it by B to C.</p> <p>£3.] Each indorsement is a new contract, and the contract of indorsement as to its nature, construction and interpretation is governed by the Lex Loci contractus; and the remedies thereon by the law of the place where the suit is instituted.</p>

<p>Rule against Sheriff. From Muscogee Superior Court. Tried before Judge Alexander. November Term, 1846.</p> <p>For the grounds of error, &c. see the opinion of the Supreme Court.</p>

<p>Plea to the jurisdiction. From Lee Superior Court. Tried before Judge Warren. November Term, 1846.</p> <p>For the history of the case, see the opinion of the Supreme Court.</p>

<p>Indictment for Murder. From Monroe Superior Court, Tried before Judge Floyd. September Term, 1846.</p> <p>For the facts, see the opinion of the Supreme Court.</p>

<p>[l.J The only causes for total divorce in Georgia are those recognised by the common law, to wit, pre-contract, consanguinity, affinity, and corporeal infirmity.</p> <p>[2.] And the only causes recognised in Georgia for a partial divorce are those of the common law, to wit, adultery and cruel treatment.</p>

<p>In Error. From Coweta Superior Court. Motion to dismiss the cause upon the following grounds, that is—</p> <p>1. There is no writ of error sued out or returned in said case.</p> <p>2. There is no notice filed in the clerk’s oifice below, of the signing of the bill of exceptions.</p>

In Equity. From Heard Superior Court. Tried before Judge Hill. October Term, 1846. For the facts of the case, and errors alleged, see the opinion of the Supreme Court.

<p>[1.] The Iuferior Court may review and annul an order absolute against a Sheriff at a subsequent term, upon motion, when it is made to appear that he was not in contempt; and its action is subject to revision by the Superior Court, by writ of Certiorari.</p>

Motion to dismiss appeal. In Monroe Superior Court. September Term, 1846. And overruled, Judge Floyd presiding. For the facts of the case, as they transpired in the Court below, see the opinion of the Supreme Court.

<p>[If] A Sheriff for the performance of his legal duty, ia only entitled to such compensation therefor, as the law prescribes.</p> <p>[2.] Where a Sheriff levied on slaves by virtue of an attachment, and while in his possession, worked, and hired them out for his mm use and benefit, and a verdict of the jury having been returned on an issue directed by the Court, finding that the labour of the slaves was worth the per diem allowance authorized by law, for keeping them: held, that the Sheriff was bound to account for the same, on a rule against him to pay over the money in his hands, arising from the sale of the property, at the instance of the creditors.</p>

<p>Assumpsit. From Monroe Superior Court. Tried before Judge Floyd. September Term, 1846.</p> <p>For the facts of the case see the opinion of Supreme Court.</p>

<p>[1.] Where the old Sheriff fails to deliver to his successor an execution placed in his hands during his term of office, and receives money thereon fourteen days after the appointment and qualification of the new Sheriff, his securities are not liable, in an action on the bond, to account to the defendant for said money, notwithstanding lie . has been compelled to pay it a second time to the plaintiff.</p>

<p>[1.] Under the Acts of 1822, and 1823, to prevent the fraudulent enforcement of dormant judgments and executions, a return must be made by the proper officer on such execution every seven years, or it will be presumed to have been satisfied, and fraudulently kept open.</p>

<p>[l.J In declaring on a contract in which A agrees to gather and distil the peaches in B’s orchard, and deliver to him one third of the brandy, provided that A runs two stills, or runs one still and can do it; a failure to aver that the defendant ran two' stills, or one still and could distil plaintiff’s peaches, is bad upon special demurrer but amendable.</p> <p>[2.] A breach by assignment generally, that the defendant has not performed his promise or agreement, is bad upon special demurrer, but cured by a verdict, and when demurred to specially, is amendable.</p>

From Troup Superior Court. Motion to dismiss the case upon the following grounds, that is — First. There was no notice filed in the clerk’s office of the Court below, of the signing of the bill of exceptions. Second. The testimony had on the trial below, was not embodied in the bill of exceptions. Third. The bill of exceptions was not signed within four days after the adjournment of the Court below by the presiding Judge.

This was a hill in equity for discovery, relief and injunction to stay waste. In Union Superior Court. Tried before Judge Wright. September Term, 1846. Upon this trial, which was the first had in the case, the jury rendered a general finding against the defendant, from which the plaintiffs in error, who were complainants in the bill, entered an appeal in terms of the statute in such cases.

Rule against Sheriff. From Floyd Superior Court. Tried before Judge Wright. October Term, 1846. For the circumstances of the case and the points made and decided, see the opinion delivered by the Supreme Court.

Motion to compel the defendants to give additional security on the appeal entered in this case by their intestate in his lifetime. Heard before Judge Wright. In Floyd Superior Court. October Term, 1846. Motion overruled in the Court below, assigned for error. For the facts, see the opinion of the Supreme Court.

In Equity. From Cass Superior Court. Motion to dissolve injunction, the answer having come in. Tried before Judge Wright, at Chambers, January 7th, 1847.

Rule for Solicitor General’s Fees. From Cass Superior Court. Tried before Judge Wright. February Term, 1847. The facts of the case are stated in the opinion delivered by the Supreme Court, to which the reader is referred. Hackett, fro. for. relied upon the Statute of this State, Prince 659,661; and also 2 Kent Com. 640.

<p>[1.] In a writ of error on a judgment against an appellant, and liis security on the ap peal, both must be joined.</p>

<p>[1.] This Court will not grant a mandamus against a Circuit Judge, commanding him to certify a second bill of exceptions for the same cause, in the same case, the first having been dismissed on the hearing for irregularity.</p>

Trover. From Jasper Superior Court. Tried before Judge Merriwetiier. October Term, 1846. The facts of this case, and the grounds of error, are set forth .in the opinion of the Supreme Court, to which the reader is referred.

Bill and Demurrer, From Putnam Superior Court. Demurrer sustained and bill dismissed. Judge Merriwether presiding. March Term, 1847. For the facts of the case, and the error alleged, see the opinion of the Supreme Court.

<p>[1.] If an estate is bequeathed to A in trust for B, during his life, with power of appointment in B of the fee by will, and in the event of B dying intestate, remainder in fee to the heirs at law of B ; held that B having died without exercising the power, it is void, and the limitations over take effect as though there was no such power in the will.</p> <p>[2.] The rule in Shelley’s case apjdies only where the estate to the ancestor and to the heirs is of the same kind; it applies to legal estates and to twists executed, bnt not to trusts executory where it is the intention of the testator that it shall not apply 5 it applies to personal as well as real property. Where the testator leaves something to be done by the trustee, as to convey, it is an executory trust.</p> <p>[3.] When property is bequeathed to A in trust for the use of B, during his natural life, with instructions to the trustee to convey to whomsoever he shall by will appoint; and if he dies intestate, then to convey the property to the heirs at law of B absolutely, and B dies intestate; held that this is an executory trust, to which the rule in Shelley’s case does not apply; and that the heirs at law of B take as purchasers, and not as heirs in course of administration.</p>

In Equity. From Baldwin Superior Court. February Term, 1847. Judge Merriwetiier presiding. This was a hill in equity for relief and injunction against the plaintiffs in error, as attorneys at law, with several other persons their clients, and also the sheriff of Baldwin as defendants, to which the plaintiffs in error filed a demurrer upon several grounds.

From Taliaferro Superior Court. Scire facias against bail. Tried before Judge Sayre. March Term, 1847. The plaintiff in error became the bail of one Turley. Final judgment was obtained for the demand sued on, and capias ad satisfaciendum issued thereon, and non est inventus returned.

From Wilkes. The above two cases involved the same state of facts, and the same points, and are therefore consolidated in this report.

<p>[I.] An application to amend a judgment is an appeal to the discretionary power of the court.</p> <p>[2.] The discretion of the Circuit Courts will not be controlled by this court, in refusing motions to amend judgments after fourteen years acquiescence, especially where the proposed alteration would fix the defendant with a heavy liability; and where too, the error complained of is not one which facilitates the record, but the objection is, that the judgment rendered, is not so beneficial to the plaintiff as it might have been made.</p>

<p>'[1.] The security to the appeal bond in the Court below must be made a party to the writ of error.</p> <p>[2.] The writ of error may be amended so as to include such security, but only upon the production to the Court of the written consent of such security, together with a waiver of tire notice to which he is entitled.</p>

From W ashing ton. This was an action brought by Chapman & Ross, against William Fish, in Washington County Superior Court, and was tried before Judge Holt, March Term, 1847.

Scire facias. Upon recognisance to answer to a criminal charge. Tried before Judge Merriwetiier, In Green Superior Court. March Term, 1847. The facts of tho case, and tho grounds of error alleged in tho judgment below, are set forth in the opinion of tho Supreme Court.

<p>[1.] When a defendant in execution files an affidavit of illegality thereto, he is bound at his peril to state all the grounds of illegality which exist at that time, and present the same to the court in the manner required by the statute and rule of court.</p> <p>[2.] No second affidavit of illegality will be allowed for causes which existed at the time of filing the first.</p>

Debt on Bond. From Baldwin Superior Court, Tried before Judge Merriwetiier. 'March Term, 1847. For the facts of the case, and the points made, seé the opinion delivered by the Supreme Court.

This was a bill for a specific performance, instituted by the plaintiffs in error, against the defendant in error, in Chatham Superior Court, and tried before Judge… Held: and I think correctly held, that if a married woman, having a separate estate, executes a bond, makes a note, accepts a bill, she must be supposed to have designed a charge upon her separate estate, since in no other way could the instruments thus made by her have any validity or operation. 2 Story Eq.

Suggestion of diminution of the Record. Supreme Court of the State of Georgia. Hawkinsville. June Term, 1847. The defendant in error excepted to the record in this case sent up from the Court below, as being incomplete and incorrect. First. Because it did not contain the opinion of the Judge of the Court below, which was delivered in writing, and ordered to he entered on the minutes of the Court below, and was so entered.

<p>[1.] The security oil the appeal is a necessary party to a writ of error to filie Supreme Court.</p> <p>[2.] The writ of error may be amended by adding a necessary party at any time during the term oí' the court to which the writ is returnable, by procuring the assent of such party, and his waiver of the ten days notice of the signing the bill of exceptions, required by the 4th section of the act organizing the Supreme Court.</p> <p>[3.] The court will not continue a case until the next succeeding term, for the purpose of permitting a party to amend his writ of error; the constitution and the act organize mg this Court, require all cases to be disposed of at the first term, except for providential cause.</p>

<p>[1.] A bill filed by the maker and sureties to certain promissory notes, which were given to an administrator for purchases at his sale, against one into whose possession they were delivered by the payee, who had absconded, to indemnify him and also one of the complainants who were joint sureties on the administration bond, for losses sustained by them in that character —to have said notes cancelled upon averments that they were paid before they were transferred, and that the defendant had instituted three successive suits upon them at law, the first of which was dismissed; the second also dismissed after plea and proof of payment; and that the third was still pending: and with the further averments that the defendant had been fully indemnified as surety on the bond from other sources, with a demand that the defendant answer the allegations; and a special prayer that said notes be delivered up to be can-celled, and a prayer for general relief— is a single MU, and not demurrable for multi fariousness.</p> <p>[2.] Multifariousncss defined.</p> <p>[3.] Where there is a special prayer and a general prayer, the complainant under the general prayer may have such other relief only as is consistent with the case made in the bill, and with the special prayer.</p> <p>[4.] Equity has jurisdiction to direct the cancellation of deeds and other instruments which are fundus officio by payment or other cause, but will exercise it only in its sound discretion in cases where the defendant at law is not adequate, by reason of loss of testimony, lapse of time, or something peculiar to the case.</p>

This was an action of assumpsit, brought by the plaintiffs in error against the defendant in error, in Pulaski Superior Court. A trial was had, and a recovery by the plaintiffs; from which the defendant • appealed.

Motion to dismiss writ of error. In the Supreme Court of the State of Georgia. Iiawkinsvillo, June Term, 1847. The counsel for the defendant having joined issue upon the assignment of errors, with a reservation of the light to make this motion when the case was called up for trial, they moved to dismiss the writ upon the following grounds— First.

<p>[I.] It is a general rule that fraud vitiates all contracts.</p> <p>[2.] Where there has been a fraudulent representation by a vendor to the vendee, with regard to his title to a settlement of land, and the vendee seeks a rescission on that ground, the defect of title must be so great as to render the settlement of land contracted for unfit for the use intended; that portion of the land to which the vondor cannot make title must constitute the main inducement to the purchase.</p> <p>[3.] Where the vendee went into the possession of a settlement of land purchased of the vendor upon the faith of his represenations as to the title thereto, which representations'were false and fraudulent, and known to havebeen so by the vendor at the time of making them, it was held, a court of equity would retain a bill at the instance of the vendee to rescind the contract, notwithstanding the vendee had not been evicted from the possession of the premises, nor abandoned the possession thereof? nor had offered to do so.</p>