Volume 20 — Georgia Reports

Assumpsit, &c. in Pulaski Superior Court. Tried before-Judge Love, October Term, 1855. This action was brought by the administrators of Richard Johnson against Collier, Jelks & Co. upon a promissory note made in the name of the firm. Upon the trial, on motion of Counsel for plaintiffs below, the Court ordered a plea of non est factum, filed by Edward St. George, to be stricken out. This decision is one of the errors assigned. James 0.

<p>[I.] It is a strong implication of law, that guardians shall be allowed to charge against their wards such disbursements and expenses, only, as are reasonable and suitable to their circumstances.</p> <p>[2.] A guardian is justifiable in expending, proparly, in the advanced education of his ward, the accumulated profits of his estate.</p> <p>£3.] They should not be expended merely because they are in hand. There should be a necessity and propriety for the expenditure.</p> <p>£4.] The husband of a female ward may affirm Hie acts of her guardian, who has incurred expenses on her account not warranted by law, by allowing them on a settlement.</p> <p>£5.] If there was neither mistake, fraud or imposition in the settlement, it is binding.</p>

Motion, in Jones Superior Court. Decision by Judge Hardeman, April Term, 1856. This was an application to establish a copy of a lost writ process, bail bond, &e. on which an issue had been formed, and a general verdict found for the defendant. Counsel then moved the Court for liberty to enter an appeal from this verdict. This motion was refused, and this refusal is the error assigned.

Caveat on appeal, in Jasper Superior Court. Tried before Judge Hardeman, April Term, 1856. This was a caveat filed to a pape^propounded as the will of J. Monroe Johnson, deceased, on the grounds, among others— 1st. Incompetency. 2d. Undue influence. ' 3d. Fraud. 4th. That the will was not completed.

In Equity, in Elbert Superior ¿Court. Decision by Judge Thomas, at March Term, 1856. i A bill was filed to the March Term, 1852, of Elbert Superior Court, by John B.•'Sloan and wife, and Benjamin C. Houston, who were distributees of the estate of Benajah Houston, deceased, against Alfred Hammond, administrator of said estate, for an account and distribution.

<p>[1.] School articles : “ I, R. R. Beck, propose to teach a Classical and English school at Fountain, for the term of ten months, to consist of forty weeks of five days each. The following rates of tuition we, the subscribers, agree to pay the proposed teacher, at the expiration of the term : orthography, reading, writing and arithmetic, $16 50 per scholar, &c. All day scholars will be charged one-fourth more than the above rates.” Then follows the names of the subscribers, with the number of scholars entered by each : Held, that the liability of the subscribers wa3 several and not joint.</p>

Ejectment, in Rabun Superior Court. Tried before Judge Jackson, at April Term, 1856. In September, 1842, an action for slander was commenced in Habersham Superior Court by Joseph S. Whitworth, as next friend of his daughter Julia Ann Whitworth, against Lacy Stewart. At April Term, 1844, of said Court, the suit was dismissed, and judgment entered against Whitworth for costs.

Certiorari, in Clarke Superior Court. Decision by Judge James Thomas, at Chambers, March, 1856. Cobb & Crawford brought suit against Perrin Benson, and issued garnishment to Miles M. Norton. Norton answered, and on his answer issue was joined, and a judgment rendered for the plaintiffs. Norton appealed.

Claim, &c. in Jackson Superior Court. Tried before Judge •Jackson, February Term, 1856. Hosea A. Bennett, as plaintiff in an attachment, levied on certain property which was claimed by Charles R. Simmons. This claim was not interposed until after judgment on the attachment. Issue was joined on the claim. At the trial, on motion, the Court dismissed the claim, on the ground that it was not entered before judgment on the attachment. This-decision is assigned as error.

<p>Certiorari, from- Franklin Superior, Court. Decided by Judge Jackson, October Term, 1855.</p> <p>‘ Josiah Addison brought h[g action in 1854, in the Justice’s Court, against William W. Mitchell, for the price of 500 pounds of pork, at five dollars per hundred, furnished to defendant in January, 1840.</p> <p>On the trial before a Jury, plaintiff introduced W. J. Oliver, who testified, that in June, 1853, he heard a controversy between plaintiff and defendant, about two fi. fas. in favor of defendant against plaintiff, which had been' levied; plaintiff had the older fi. fá. and asked defendant where was the credit of 500 pounds of pork that was paid him on said fi. fa. in 1840. Defendant said the pork was credited on the note on which the younger fi. fa. was founded; and that if plaintiff would find that note, if the pork was not credited on it, he would pay plaintiff for the pork. The plaintiff proved the same thing by other witnesses, and produced in evidence the two fi. fas. and the note on which the younger was founded, ■by which it appeared that no such credit was on either paper; and that the note was dated in 1841, the next year after the pork was delivered.</p> <p>Plaintiff further proved, that defendant admitted that he • •had received the pork in 1840; that the contract was for ■500 pounds, but he (defendant) did not think there was that much. Plaintiff then proved that pork was worth five dollars per hundred in 1840, and closed his case.</p> <p>Defendant introduced Joseph A. Mitchell, who testified, that he heard a conversation between the parties, in which defendant insisted that the note on which the younger fi. fa. was founded, was given for the balance of an old note, and that the pork was credited on this old note; that plaintiff ■admitted that the younger note was given in place of an old • one, but denied the credit on the old one.</p> <p>David Smith for defendant, testified, that he heard plain* tiff say that he ha'd paid defendant, in 1840, over 500 pounds *:of pork, which was to be credited on a note which defendant .then held against him; but that he had never received credit for it any where. Defendant also introduced evidence to ■show that the pork did not amount to 500 pounds.</p> <p>Plaintiff had been notified to produce all the old notes and fi. fas. that he had taken up; upon which, he swore that he had none in his possession, except those which he had introduced in evidence.</p> <p>The Jury returned a verdict for plaintiff for the principal, •with interest and costs; and on- being asked by the Court . from what time the interest was to be computed, they said, .from the delivery of the pork; whereupon, the Court entered . judgment for twenty-five dollars principal, and thirty dollars and six cents interest, and the costs.</p> <p>To the proceedings, defendant excepted by certiorari, on 4he grounds—</p> <p>1st. That the evidence did not warrant the finding any •verdict against defendant.</p> <p>2d. That the evidence did not warrant the finding any interest, or if any, only from the time of the new promise.</p> <p>3d. That the verdict was too uncertain to found any judgment upon.</p> <p>This certiorari on being heard, was dismissed by the Court, and plaintiff in certiorari excepted.</p>

Certiorari, in Chatham Superior Court. Decision by Judge Fleming, January Term, 1856. This question arose upon a proceeding against P. K».

Murder, in Liberty Superior Court. Tried before Judge Fleming, April Term, 1856.

In Equity, in Webster Superior Court. Decided by Judge Kiddoo, April Term, 1856. A bill was filed in favor of Butt L. Cate, against Robert A. Crawford, administrator of John A. Lyon, deceased, praying the delivery up and cancellation of certain promissory ’.notes which the said Cate had given to the said Lyon in his .lifetime; and also, praying that certain Common Law suits which had been instituted on said notes, be enjoined until a hearing could be had on the bill.

Rule to foreclose mortgage, in Early Superior Court. Decided by Judge William C. Perkins, October Term,. 1855. This was a motion made by Hugh O. K. Nisbet, for a-, rule absolute to foreclose a mortgage made by Nathan H. Wood, trustee of Mary L. Wood. The mortgage bears date the 1st day of January, 1852,. and recites that “ Nahum II. Wood, trustee of his wife, Mary L. Wood, hath made and delivered to the said Hugh 0.

Certiorari, in Early Superior Court. Decided by Judge Kiddoo, March Term, 1856. Allen Gay, senior, instituted proceedings before the Justices of the Peace of the 854th district, G. M. of Early Co» •against Robert Taylor, to recover possession of lot of land No. 47, in the 6th dist. of said county, charging the said Taylor with a forcible entry on said lot.

Case, in Stewart Superior Court. Decided by Judge Kiddo o, April Term, 1856. This was an action instituted by William B. Bennett against Samuel L. Terrill, alleging that said Ten-ill had, by false and fraudulent representations of the solvency of one James ■0.

Complaint, in Randolph Superior Court. Decided by Judge Kiddoo, May Term, 1856. This was an action brought by William C. Cook, against William H. Brooks, for the recovery of $170, claimed to be-due on a promissory note.

Claim, &c. in Stewart Superior Court. Decided by Judge ■ Kiddoo, April Term, 1856.

Assumpsit, in Eandolph Superior Court. Decided by ■Judge Kiddoo, May Term,' 1856. This was an action of assumpsit, brought by Lawrence T. Ferrill against John H. Caldwell, on a note bearing date the 18th day of June, 1841. Defendant plead the Statute of Limitations.

In Equity, in Randolph Superior Court. Decided by Judge Kidboo, at Chambers, May 6th, 1856. This was a bill filed by Joseph McMichael against Richard' Y. Carter, adm’r, &c. of Richard Carter, deceased.

Motion, in Randolph Superior Court. Decision'by Judge Kiddoo, May Term, 1856. A fi. fa. in favor of James V. Suggs vs. Neal A. Sapp was levied, and a claim interposed by the executors of Philip F. Sapp, deceased.

<p>Fi. fa. and illegality, in Randolph Superior Court. Deeided by Judge Kiddoo, at Chambers, May 24th, 1856.</p> <p>A fi. fa. in favor of the Justices of the Inferior Court for the use of Randolph County, was issued against Bright W. Truett, Tax Collector of said county, and his securities, .to collect certain taxes which had come into the hands of said collector, and which were were still in his hands. To this fi. fa. an affidavit of illegality was filed by defendants, and the cause was submitted to the Judge, upon the following agreement :</p> <p>“ It is agreed by and between Counsel for plaintiffs and defendants, that the same (case stated) shall be submitted to the decision of his Honor, David Kiddoo, Judge of the Superior Court, for his decision upon the illegality on the above stated fi. fa. in the first instance, without awaiting a resort to the other tribunals and forms, subject to a revision of his decisión by the Supreme Court, to be taken by either party on bill of exceptions, as in other cases, on the following statement' of facts: It is agreed that Truett, as Tax Collector,, collected one hundred per cent, on the State tax. It is farther agreed, that 12J per cent, of the amount was assessed; for poor school purposes, without a recommendation by the-Grand Jury or School Commissioner. It is further agreed,, that subsequent to the collection of taxes for 1853, the Inferior Court passed the following order, to-wit:</p> <p>'Whereas an order was entered on the minutes of this¡ Court at the July Term, 1853, ordering and directing the Tax Collector of Eandolph County to collect twelve and one-half per cent, for poor school fund, when the Grand Jury nor School Commissioner had neither made a recommendation for the assessment of said tax. It is therefore ordered by the Court, that said sum of twelve and one-half per cent, collected as aforesaid, be paid over to the County Treasurer by the Tax Collector, for county purposes, it originally being the intention of the Court that it should be collected for that purpose. February 6th, 1854.’</p> <p>Which order provided for its application in another manner, and which order was passed by the Inferior Court in proper form. Shall Truett and Ms securities be responsible.for the twelve and one-half per cent, collected by him ? Have-the Inferior Court any authority to force its collection from, defendants? Is illegality a remedy ?”</p> <p>Upon a submission of the facts above agreed on, a motion, was made by Counsel for defendants in error, to dismiss the-illegality referred to. The Court sustained the motion an<lt passed an order dismissing the illegality, ordering the fi. fa. to proceed; and that the said order, together with the agreement of Counsel, be entered on the minutes of the Court-Plaintiff’s Counsel excepted to this decision, and assigns the„same as error.</p>

Affidavits, &c. in Randolph Superior Court. Decided by Judge Kiddoo, May Term, 1856.

Randolph. Decided by Judge •Kiddoo, May Term, 1856. James C. Rivers brought his action of assumpsit against Willoughby Jordan, upon a written agreement to pay $125 in certain accounts. Upon the trial before the Jury, the plaintiff put in evidence this agreement; and also, evidence going to prove a demand for and refusal to give such accounts as the agreement required, and closed.

Levy and claim from Randolph. Tried before Judge; Kiddoo, May Term, 1856. John Gr. Parle and John A. Breedlove having respectively-obtained judgments against William A. Tennille, sought to' have satisfaction of the same by levying their respective JL fas. on certain “corn and cotton” as the property of said Tennille.

<p>[1.] In divorce cases, the property set forth in the schedule filed at the commencement of the suit, does not vest, on the finding of the Jury in favor of the libellant, in the issue of the marriage, absolutely and unconditionally. [2.] The creditors', if any, have the first claim on the property.</p> <p>[3.] The Jury have a discretion to award a part of the property to each or both of the parties. The term 11 either,” used in the Statute, may mean “ each” or “both.”</p> <p>£4.] A verdict by consent, is not necessarily vicious. It is not void because-it is not necessarily fraudulent.</p> <p>[5.] To impeach it, there must be sufficient allegations showing that the party complaining has been injured, or that he has opposing rights that cannot bo concluded by it. A general charge of fraud, with allegations, is not sufficient.</p>

^ In Equity, in Sumter Superior Court. Decided by Judge Allen, at Chambers, March 19th, 1856. This was a bill filed by Ezekiel Hawkins, in behalf of himself and all others who might be interested in and who might ■become parties to the bill, against Jesse S. Thomas.

Ejectment, in Baker Superior Court. Decided by Judge.Allen, May Term, 1856. This was an action brought to recover lot of land No. 143, in the 9th district of originally Eárly, now Baker County.

In Equity, from Baker. Decided by Judge Alexander A. Allen, May Term, 1856.

Claim, in Baker Superior Court. Decided by Judge Allen, May Term, 1858. An execution in favor of the Justices of the Inferior Court of Baker County, against Benjamin M. Griffin, administrator de bonis non of John Sikes, deceased, was levied on a negro man named Watt, and a claim to the negro was interposed by John Moreland, as guardian of Benjamín G. Sikes.

<p>[1.] Whoever has the legal title to property, is entitled to claim it wherever the equitable interest may be.</p> <p>[2.] Property belonging to wife and children, should not be subjected to the payment of the debts of the husband and father, because the pr&per party has not claimed.</p>

Misdemeanor, in Lee Superior Court. Decided by Judge. Allen, March Term, 1856.

Indictment for rape, in Decatur. Tried .before Judge Allen, June Term, 1856. Jesse (a slave) was arraigned for trial at said term, upon an indictment containing two counts : one for rape, and the ■ other for an assault with intent to commit a rape.

<p>[I.] If the person who is the true owner of land, sells it at a time when it is not hold adversely to him, and gives his bond for titles to the purchaser ;, and afterwards, in performance of the condition of the bond, makes a deed to the purchaser, the deed is not within the 32d Henry VIII. as to bracery and the buying of titles, although the land, at the time when the deed was . made, had come to be held adversely to the vendor and the purchaser.</p>

<p>Ejectment, in Calhoun Superior Court. Tried before Judge Allen, May Term, 1856.</p> <p>The heirs at law of John Keel brought their action of ejectment against Noel Pace, the tenant in possession, to recover lots of land Nos. 210 and 231, in the 3d district of originally Early, now Calhoun County, containing two hundred and fifty acres, and for mesne profits. Pending the suit, John Pace, the person under whom Noel Pace claimed, came in, and by order, was made a-co-defendant. The case came up for trial in the Court below on the appeal, and a, verdict was found for defendants.</p> <p>Plaintiff’s Counsel then moved the Court to set aside the verdict, and grant a new trial on the following grounds:</p> <p>1st. Because the Jury found contrary to evidence and the weight of ciddence.</p> <p>2d. Because the Jury found contrary to law and evidence.</p> <p>3d. Because the Court erred in refusing to charge the Jury as requested in writing by the plaintiffs, that if John Keel bought lot 210 at Sheriff’s sale and look possession of lot 231 in 1831, and continued in possession until his death in 1844, clearing and improving it, and claiming it as 210, and' had not disposed of it at his death, he had a good title to it, and his heirs are entitled to recover it, no matter what the number is.</p> <p>4th. Because instead of charging the above, the Court erred in charging the Jury “that the Statute of Limitations cannot be set up to aid a possession taken through mistake, ignorance or inadvertence ; and if the Jury believe that old John Keel took possession of the lot of land No. 281, believing it to be 210, when, in truth, it is not, the Statute of Limitations will not ripen such possession into a statutory title.</p> <p>5th. Because the Court erred in admitting the testimony of Malacha Jones, in this : that it shows a paper under which defendant claims title, and which was testamentary and could not convey title to Jordan Keel, unless executed in the presence of three witnesses, and regularly admitted to proof and record by the Court of Ordinary ; and to the admission of which, plaintiff objected on this ground, and on the ground that it was the same paper testified to by John Colly; and which testimony showed it to be a testamentary paper; and that the paper itself could not be admitted if present; and much less could its contents be proved to set up title in Jordan Keel. The Court holding that the evidence should be admitted to ascertain what the paper was, the Court charging the Jury that if the paper was to take effect at the death of John Keel, and conveyed no present interest to Jordan Keel, it was a testamentary paper, and should be disregarded by the Jury.</p> <p>6th. Because the Cour't erred in charging the Jury, that whether the contents of the last paper testified to by the witness be a deed or will, is a question of fact for the Jury to determine, under the instructions given by the Court to the Jury as to the law.</p> <p>7th. Because the Court erred in charging the Jury, that no length of time in the possession of the land by the tenant exercising acts, of ownership and claiming title, if the party took possession of one number, believing it to be another number, no matter what his claim of title to the number which he supposed he was taking possession of, such possession would not ripen into a statutory title; which motion for a new trial the Court over-ruled, and Counsel for plaintiffs excepted, and assigned the same as en or.</p> <p>BRIEF OF TESTIMONY.</p> <p>John Colly testified, that he knows the lot of land No-210, according to the plan of the district, as submitted tO' him and certified by the Surveyor General, and that Noel Pace, the defendant, was in possession of it on the 24th April, 1854; that John Keel took possession of it in 1831; built houses, cleared and ^cultivated land on it, and used and claimed it as his own; that the yearly rent, since defendant took possession of it, is worth seventy-five dollars per year; that he is not certain, but thinks Pace, defendant, took possession in 1847, but is not certain whether it was that year or not; that John Keel -was in possession from 1831 till his death in 1844; never heard or knew of any adverse claim to it during all that time.</p> <p>Cross-examined: Said that he saw, in 1841 or 1842, No. 231 on a tree on the land ; and that he thought defendant, Pace, went into possession in 1847 in time to make a crop,, but -was not certain as to the year; that he saw a deed from John Keel to Jordan Keel at the death of John Keel, and at his house, conveying No. 210, at his death, to Elizabeth Keel during her life, and at her death to Jordan Keel; that Maiacha Jones and Ezekiel Pierce were subscribing witnesses to-the paper; that he never saw the paper before or since that, time; that he heard a conversation between John Pace and Jordan Keel after the death of John Keel, in which Pace told Keel that he had a good title, and he would recover it; and that he, Jordan Keel, had better give it up, as he could recover it and rent, and ruin him : and on re-examination, he stated that he heard John Pace say, when he showed No. 231 on a tree, that it must bo a mistake, and that it was Keel’s land; that witness’ father owned 208, and witness 209, east of his father; and that the land settled by John Keel, andón which he lived, lies east of 209, and according to the plant of the district, is 210 ; that it was always so received and acknowledged, until after the death of John Keel, by owners of' adjoining lands in the neighborhood, generally, until John Pace set up a claim to it as lot No. 231; that he exchanged lands with Jordan Keel, and took his deed to 210 — lot which he took as 210, on the representation of John Pace and Lang, lay in range north of the Keel old place, and joining-corner-ways with 209; that it was his opinion that the Keel old place was 210 up to the time John Pace and Lang told, him that it was not, and so far as he knows, was so generally understood; that Jordan Keel, when he gave up the place, said he was not able to stand the law-suit and pay probable rent, and the other heirs would not help him.</p> <p>Joseph S. You sworn, says, that he purchased the land from John Pace, and went into it in January, 1848, while Jordan Keel was still in possession; that he failed to pay Pace for the land, and paid him something like two hundred dollars rent, and that the rent has been worth, annually, one hundred dollars; that it was the place known as the Keel old place; that Mrs. Elizabeth Keel resided on said lot after the death of John Keel, pntil her death; and that at her death, or rather before Jordan Keel went into possession of said lot, and remained until he left it.</p> <p>The plaintiff then introduced the Sheriff’s deed by H. H. Acre to John Keel, for lot No. 210, in the 3d district of then Raker County, dated 5th October, 1830, as color of title on which to support his statutory title.</p> <p>Plaintiff also introduced the plan of the third district of formerly Early County, certified by the Surveyor General, showing that 210 lies immediately east of 209, owned by John Colly, and rested his case.</p> <p>The defendant then introduced a grant to Stephen Carpenter to lot No. 231, in the 3d district of Early County, dated 17th December, 1835.</p> <p>Depositions of D. Corker : That Stephen Carpenter died On 27th August, 1819, leaving a wife, Susan Carpenter-,• a widow, pregnant, and who gave birth to a -son, Stephen P. 'Carpenter, 16th November,' 1819, and died 1st September, <1821.</p> <p>Depositions of Düdly Sneeíd, proving the signature • of' deed by Leaston-Sneed to John Pace to be'in the Hand-writing of Leaston Sneed, and Leaston Sneed married Susan 'Carpenter, the widow of Stephen Carpenter; she had one-child a year or two after; Sneed and Mrs. Carpenter were married before the child died, as he thinks; child not exceeding three years old at his death; child died after the death of Stephen Carpenter, and the marriage of his mother with L. Sneed, who was brother to witness, and who is dead.</p> <p>Malacea Jones testified, that he wrote and witnessed a-deed of gift from John Keel to Jordan Keel, sometime between the years 1888 and 1841, conveying to the said Jordan Keel the tract of land on which the said John Keel lived' at that time ; said deed was made and executed in the store of John Keel, William Keel and William' G. Pierce, pretty, ■late'at night; deed to take effect after the death of John-. Keel, and his wife, Elizabeth Keel; Elizabeth Keel, 'John’ Keel’s wife, was not to be dispossessed of the land during her-life ; but at her death, Jordan Keel was to have possession; there was no other witness signed the deed but himself; but-John Keel said, at the time, that he would see Esquire Colly or Esquire Ezekiel Pierce and get one of them to witness it officially. The reason why he wished the deed executed secretly was, that he was fearful that his other children would be hurt about it; and that he intended making it up to them.in other property.</p> <p>Cross-examined: The deed was made to Jordan Keel, and' not to Elizabeth Keel, and was not to take effect until after the death of Elizabeth Keel.</p> <p>Jambs EL Yarny testified, that he is a land surveyor, and was four years County Surveyor of Randolph County, and has practiced land surveying for fifteen years, occasionally;. was called on by John Paco to survey a portion of the 3d district of now Calhoun County ; commenced at the corner of lots No. 9 and 10, on the line of formerly Randolph County, now Terrel, and ran south, to the south-west corner dot 250, on which Noel Pace now lives; he sought to determine by said survey where lots of land 210 and 231 were situated, and which will be shown annexed to his answers; he came to the result by making the survey as before stated; does not know that the original Surveyor of the district platted it wrongly; but believes that the situation and size of lots 129 and 152 is the cause of lot 210 not lying oast of 209, •and lot 231 not lying east of 232; that so far as he surveyed, believes the lots of land in the 3d district are numbered right, though not situated right, on account of lots .129 and 152, as before stated; the size of these lots did not put anything -wrong, so far as he could ascertain, on the east ¡side of the line which he surveyed; believes the place east of where John Colly now lives, know'n as the Keel old place, is 231.</p> <p>Cross-examined, says: Made the survey at the instance of John Pace; had no plan of the district before him at the time of the survey, except one he drew himself; was not present with^original Surveyor; does not know the original plat is wrong, but knows some of the lots are too large, and not situated agreeable to the plan of said district; none of the plaintiffs present at the survey; he now resides in Terrell County, and is not the County Surveyor.</p> <p>Defendant introduced deed of Leaston Sneed to John Pace for lot 231, dated 29th October, 1835, witnessed by John Keel and Levi Timmons; and a deed from Jordan Keel to' •John Colly for lot 210, in third district, dated 8th July, 1848; and a written instrument under seal, as follows:</p> <p>«Georgia, Baker County :</p> <p>This is to certify that I have long since surrendered any -claim 1 may have had to lot No. 231, in the 3d district of Baker County to John Pace of said county; and that his present possession is in his own right, and not subordinate to mine ; and that surrender has been made upon a good and valuable consideration to me, to-wit: his superior right and title. In witness whereof, I have affixed my hand and seal, this 13th day of December, in the year 1850.</p> <p>(Signed,) JORDAN KEEL, [l. s.]</p> <p>Signed, sealed and delivered in the presence of</p> <p>E. W. Tedlie, his John M T. Bailey. mark.</p> <p>. John W. Roberts testified, that he knows the . old Keel place, and owns a lot that he bought, and as he thinks, is -230, and it lies east of the Keel old place, in the same range.</p> <p>Harrison Bailey owns and lives on lot No. 212, and it is on the range north of the Keel old place; settled the lot in 1840, and saw numbers on trees. Isler owns and lives on 213, and it is in a range north of the Keel old place, and adjoins Bailey’s lot on the cast, and bought and settled in 1847, as 213.</p> <p>William E. Grieein testified, that he owns and lives on lot 125, and that the lot north and south is almost double the common width, and he would say that there were from four to five hundred acres on the lot.</p> <p>Dorsey sworn, says : That he heard John Pace tell Coleman Keel, one of the plaintiffs, that Long would be at his house on a given morning to make the survey, and to tell the other plaintiffs of it, and for them all to be there.</p> <p>(The plats and plans of the 3d district referred to, accompany the record.)</p>

Assumpsit, in Lee Superior Court. Tried before Judge Allen, March Term, 1856. William J. Wright brought his action of assumpsit against John II. Gilmore, for the recovery of a debt due upon a promissory' note.

Illegality, in Lee. Tried before Judge Allen, April-Term, 1856. Afi.fa. in favor of Willis A. Hawkins against David Rogers, was levied on ten acres of land as the property of the-latter, to satisfy said fi. fa.

Claim, in Decatur County. Tried before Judge Allen, April Term, 1856. John P. Gray caused a fi. fa. in his favor, against John M. Cole and Edward H. Mann, to be levied on “ eight thousand, .pounds of seed cotton, more or less, fifty bushels of corn, more or less, and three stacks of fodder,” as the property of John M. Cole, one of the defendants injd. fa. Noah Mc-Nabb, as trustee for his wife, Mary A. interposed a claim . thereto.

Claim, in Baker Superior Court. Decided by Judge At-., hen, May Term, 1856. A fi. fa. in favor of Ross & Leitcb against Thornbury & Harvard, bearing date the 23d of December, 1852, was levied on six negroes, as the property of Harvard, one of the defendants, and a claim to the negroes interposed by Charles-W. Horn, trustee for Mrs. Laodicea J. Harvard.

Attachment, &c. in Baker. Tried before Judge Allen, , May Term, 1856. Thomas Lyon sued out an attachment against William Reynolds, founded upon which a declaration was filed declaring upon two judgments alleged to have been obtained by the plaintiff against the defendant, one for $79 principal debt, $85 70 interest and costs of suit, and the other for $59 50 ' principal, $9 24 interest and costs. Both judgments obtained at the October Term, 1840, of Lincoln Superior Court..

Affidavit, &c. from Baker. Tried before Judge Allen, May Term, 1856. William W. Poulan made his affidavit according to the Statute in such cases made and provided, claiming right of possession to lot of land No. 4, in the 11th district of Baker, and declaring that Littleton Sellers was in possession; the latter made his counter affidavit, and the Sheriff returned the papers to Court.

In Equity, in Dougherty Superior . Court. Decided by Judge Allen, May Term, 1856.

<p>[1.] Tlie Act of 1836 requiring the plea of partial failure of consideration to be made at the first term of the Court to which the action is returnable, is • repealed, by necessary implication, by the law of 1853-4, which authorizes any amendment to be made to the pleadings, either in matters of form or • substance, at any stage of the proceeding.</p>

Claim, in Marion Superior Court. Decided by Judges ‘Worrill, March Term, 1856. Three /?. fas. in favor of James R. Cox against Palestina Smith, issuing from judgments obtained at the May Term, 1852, of the Justice’s Court of the 807th district, G. M. of Marion County, were levied on a house and lot, and the property claimed by Jubilee Smith.

In. Equity, in Taylor Superior Court. Decided by Judge Worrill, April Term, 1856. This was a bill filed by Davis Castleberry against Robert.

In Equity. Marion. Tried before Judge Worrill, March Term, 1856.

<p>Assumpsit. Marion. Tried before Judge Worrill, March Term, 1856.</p> <p>David N. Burkhalter brought his action of assumpsit against Cordy Bullock, for money had and received by the defendant whilst acting as the agent of the plaintiff in the sale of certain merchandize in the declaration mentioned. Upon the trial—</p> <p>William B. Walker sworn, testified, that Cordy Bullock sold groceries for Burkhalter, for the years 1851 and 1852, in the town of Buena Yista ; that said Burkhalter gave to witness certain books which were the books kept by said Bullock as cash books while he was clerking for Burkhalter, and told witness to go to Bullock and demand a settlement from him for the amount due on said books, and to say to Bullock that he did not wish to sue him, but if he did not settle he-would sue. Witness took the books and went to Bullock and did as he was directed. Bullock replied he was willing to. leave the matter to the settlement of said Walker; asked. witness what he thought he owed plaintiff. Witness replied, there, was, in his opinion, four or five hundred dollars; and. then goes on to state what was said and done in relation to the giving a bond to abide by what Walker should say was the amount due. All which occurred in the spring of 1853. Witness further stated, that he made the demand aforesaid as plaintiff’s agent, and that the books exhibited to him; were the same that, were admitted by defendant to be the-cash books kept by him whilst acting as the agent of plaintiff; that defendant told witness he was employed by plaintiff to sell groceries for him for the years of 1851 and 1852, and was to give him $250 a year.</p> <p>The books above referred to were then put in evidence,, and which charge defendant with the sum of fifty-six bun-.dred and twenty-nine dollars and sixty cents, for groceries • sold by defendant.</p> <p>Mark II. Blandford being sworn, proceeded to testify in relation to a demand made by him upon defendant, for a settlement, &c. at plaintiff’s request, when objection was made to his competency. In reply to which witness stated, that at the time referred to he had not been employed by plaintiff as an Attorney at Law in this case; that he was the plaintiff’s Attorney generally, in all his cases, and that he made the demand of defendant as plaintiff’s agent.</p> <p>The Court sustained the objection and ordered the testimony withdrawn, and plaintiff excepted.</p> <p>The defendant then moved to non-suit the case, on the' ground that plaintiff had failed to prove a demand before the commencement of the action. 'And after argument had, the Court sustained the motion and ordered a non-suit. To which plaintiff objected.</p>

Assumpsit, in Muscogee. Tried before Judge Worrill, December adjourned Term, 1856. Chamberlin & Bancroft brought their action against the firm of Stone & Johnson, to recover a sum of money due upon .a promissory note. The declaration also contained a count for the bill of goods for which the original note (of which the one sued on was in renewal) was given.

Decided by Judge Worrill, March Term, 1856. Thos. Dozier, sen. brought his action against Thos. H. Dozier to recover the sum of ¡¡>463, with interest due upon a promissory note dated March 31st, 1851, and due “ at one day after date.” Pleas of usury, setting forth the several transactions out of which the usury arose, were filed.

Motion, &c. on ea. sa. bond. Decided by Judge Bull. Muscogee. May Term, 1856. Daniel A. Garrett having been arrested upon ea. sa. at the instance of plaintiffs in error, entered into bond for his appearance at the June Term, 1854, of Muscogee Superior. Court, to take the benefit of the “ Honest Debtor’s Act,” and gave John R. Jerry, E. G. Wilkins, John Sealey and William B. Brown, as. his securities.

Motion in Equity. Muscogee. Decided by Judge Worrill, in Chambers, 1856.

Debt, in Muscogee Superior Court. Tried before Judge-Wop.rill, May Term, 1856. ' This was an action brought by defendant in error against Alexander J. Robinson. The declaration alleges that Robinson was a stockholder in the “Planters’ & Mechanics’ Rank of Columbus,” to the amount of 575 shares of stock, rated at $100 per share.

Ejectment, in Talbot. Tried before Judge Powers, March. Term, 1856. Martin W. Stamper brought his action of ejectment against. James B. Griffin for lot of land No. 207, in the 22d district, of said county.

ín Equity, in Talbot Superior Court. Decided by Judge Dowers, March Term,-1856. This was a bill filed by Lucius Rolf, against Richard Rolf.

Mandamus. Talbot. Tried before Judge Powers, March-Term, 1856. Abner M. House alleged in his petition for Mandamust that he had, prior thereto, entered into a' certain contract, with the Justices of the Inferior Court of Talbot County, in ¡which it was agreed that he should build a lattice bridge for the public use, over Lazar Creek, in said county, and that they should pay him the sum of f 100, in advance, and the ¡Value of the Work, less that sum when finished.

Complaint, in Marion Superior Court. Decided by Judge Worrill, March Term, 1856. Gunby, Daniel & Co. sued Weleher & Carter on an account. At the August Term, 1854, of said Court, defendants filed pleas of the general issue, payment and set-off.

In Equity. Muscogee. Tried before Judge Worrill, May Term, 1856.

<p>[1.] Where a mortgage covers several instalments, a judgment of foreclosure may include an instalment which has fallen due intermediate the rule nisi and the rule absolute.</p>

<p>£1.] A person lias no right to go into 'Equity, when he has the means of' safety at Law.</p> <p>£2.J A Court of Equity will not give aid to one who relies on a forged deed, until he has cleared himself of all connection with the forgery, if then.</p>

In Equity, in Muscogee Superior Court. Decided by •Judge Worrill, at Chambers, June 17th, 1856.

Mandamus, in Talbot Superior Court. - Tried before Judge Powers, March Term, 1856. Abner M. House states in his petition for mandamus, that he had contracted with the defendants in error to build a bridge over Lazer Creek, in Talbot County, as a public way, and that they were to pay him $ 100 in advance, and the value of the work less that sum when finished.

Complaint. Dooly. Tried before Judge Powers, April 'Term, 1856. This was an action brought by William Nelson and James Nelson, for use, &c. against William Slade, to recover the sum of §750, with interest, due upon a promissory note payable to the plaintiffs “ only.” To this action, besides the plea of the general issue, were pleas of payment and set-off.

Trespass, in Dooly. Tried before Judge Powers, April Term, 1856. Richmond Dozier and his wife, Jane, brought their action of trespass against Earnest Courtoy for false imprisonment. Upon the trial, plaintiffs offered in evidence the affidavit of' the defendant, charging them with larceny, the warrant upon which they were arrested, and the proceedings before the Magistrates in the preliminary investigation had before them.

Deceit, in Dooly. Tried before Judge Powers, April Term, 1856. David S. Little brought his action on the case for deceit -against William Slade, charging a false representation as to ¡the solvency of one Eli Fenn. Upon the trial, the plaintiff offered in evidence the answers ¡of Daniel S. McCoy to certain interrogateries, who testified, ¡that he and T. M. Jackson, as agents of plaintiff, sold a bug:gy to Eli Fenn. William Slade, the defendant, recommended -him.

Dooly. Decided by Judge Powers, April Term, 1856. James W. Brown applied to the Court of Ordinary of Dooly County, to he appointed guardian of the person and property of Danieline Whitaker Shine, a minor under the age of fourteen years, the daughter of applicant’s wife by her former husband, Daniel W. Shine, jr.; this application was resisted by Daniel W. Shine, sr. the grand-father of the minor child, who resided in Twiggs County.

<p>In Equity, in Houston. Decided by Judge Powers, April ’Term, 1856. , ...</p> <p>. Henry H. Whitfield, as the administrator of Elizabeth 'Whitfield, deceased, brought his action of complaint against Adolphus D. Kendrick and Miles L. Green for the recovery ■ of certain slaves, as the property of plaintiffs’ intestate. To this action, pleas of the general issue and the Statute of Limitations were pleaded.</p> <p>There had been one trial — a verdict for plaintiffs and an -appeal by defendant.</p> <p>Pending this appeal, the defendants, as the executors of .James A. Everett, deceased, filed a bill against the plaintiff, (who then resided in Pulaski County,) returnable to the Superior Court of Houston County; the object of which bill was, to prevent a final judgment against them at Common Law, by setting -up certain equitable circumstances by way of defence, and in support of their plea of the “ statutory bar” to said Common Law action.</p> <p>In conformity to the prayer for injunction, the bill was sanctioned and the action at Law enjoined.</p> <p>To this bill, an. answer by the defendant was regularly filed in Court, and the cause set down for trial for April Term, 1856.</p> <p>During said April Term, this equity cause came on to be tried, when Counsel for complainants submitted the bill, and answer, and proof to the Jury; the defendant offered no evidence ; and at the close of the argument before the Jury, Counsel for defendant moved the Court to dismiss the bill, so far as the relief prayed for was concerned, on the ground that the Court had no jurisdiction to grant such relief, because the plaintiff at law and defendant in the bill was, at the time of suing at Law, and of filing the bill, a resident of the County of Pulaski. Counsel for complainants resisted this motion, because no demurrer or plea to the jurisdiction had been filed, and the motion came too late; and also, because the Court had jurisdiction, said bill having been filed simply to aid defendants in their defence to the said Common Law action.</p> <p>The Court sustained the motion, and passed an order dismissing said bill for want of jurisdiction. Complainants excepted and assign this decision as error.</p>

Claim, in Dooly Superior Court. Tried before Judge Powers, April Term, 1856. A fi. fa. in favor of Thomas Anderson and others against .Charles H. Rice, bearing date July 16th, 1846, was levied on lot of land No. 36, in the 10th district of Dooly County, and the land was claimed by John B. Lewis. On the trial of the claim case, plaintiffs in fi. fa. introduced in evidence a grant from the State to Charles H. Rice, of the -lot in dispute.

In Equity, in Crawford Superior Court. Tried before-. Judge Powers, March Term, 1856.

■ Complaint, in Dooly Superior Court. Tried before Judge Powers, April Term, 1866. This action was brought on a note for $400 in Dooly Inferior Court, by Algernon S. Hartridge against William McDaniel. The defendant confessed judgment and entered an appeal to the Superior Court. On the trial in the Superior Court, plaintiff introduced the note and closed. Thomas II.

<p>JX] If A levies on’the land of B, his judgment debtor, sells it and bids it off' himself, he cannot proceed to re-levy or claim money in Court arising from the sale of other property, or otherwise collected and belonging to the defendant, until he has accounted for his bid.</p>

Assumpsit, in Bibb. Tried before Judge Powers, May ‘Term, 1856. Samuel M. Alsabrook, in his lifetime, brought an, action against the late firm of Brown & Harris, to recover an amount claimed to he due him for the hire of a slave.

Complaint. Bibb. Tried before Judge Powers, May Term, 1856. The Central Bank of Georgia instituted an action against the executor of William Solomon, deceased, to recover a sum cf money due upon a promissory note given by the deceased in his lifetime. Defendant pleaded the Statute of Limitations. Upon the trial, plaintiff demurred to this plea on the ground that the Statute did not run as against the Central Bank, and' moved to dismiss the same.

Case, in Bibb Superior Court. Decided by Judge Powers, May Term, 1856. This was an action brought by plaintiff in error against defendant in error, to recover damages for breach of a contract to repair the roof of a warehouse belonging to plaintiff’s intestate in the city of Macon.

Illegality, in Bibb. Tried before Judge Powers, May Term, 1855. Jesse Dunn obtained a judgment for $3.447 50 against Theodore A. Goodwin, Thomas A. Brown and Judge W. Harris, in the Inferior Court of said county.

Motion, in Bibb. Decided#by Judge Powers, May Term, 1856. ' Allen W. Marshall having been arrested by virtue of a ca. sa. at the instance of Carhart, Bro. & Co. during said term of said Superior Court, moved the Court to set aside said capias and to discharge him from arrest, on the grounds — 1st. That at the time of said arrest, the defendant was attending •upon said Court under subpoena, as a witness in a certain cause pending therein. 2d. That at the-time of said arrest…

Assumpsit, in Bibb. Tried before Judge Powers, May .Term, 1856. • An action was brought in the name of George W. Scatter-good for the use of Scott, Carhart & Co. against Robert Eindlay, upon the following draft or order: “ Macon, 12th December, 1851. Hess. It. II. J. JB. Hines: Please pay to G. W. Scattergood two hundred dollars on account of claims in your hands belonging to me. ROBERT EINDLAY.” “Accepted when in funds.

Complaint.- Macon County. Tried before Judge Worrill, March Term, 1856. William Spencer brought an action of complaint against Armsted Hewett, to recover the sum of $100 as the value of' a certain “two-horse wagon” mentioned in an account attached to plaintiff’s declaration.

Complaint for words, in Bibb. Tried before Judge Powers, May Term, 1856. Eliza B. Duffield brought her action of “complaint for words,” against Mary Tobin. The defendant pleaded the “'general issue” and “justification.” On the trial, evidence was introduced by the parties under their respective pleadings. There was a verdict for plaintiff for $2,000. The defendant then moved for a now trial, on the ground that the damages were excessive.

Claim, in Ribb. Tried before Judge Powers, May Term, 1856. Isaac Winsbip having obtained a judgment against William B. Scott, at tbeNov. Term, 1854, of Bibb Superior Court, Subsequently caused a ft. fa. founded tbereon to be levied on two slaves, as the property of tbe defendant.

Indictment for misdemeanor. Tried before Judge Pow;ERS, May Term, 1856. An indictment for fornication against Henry N. Ells was found at tbe last May Term of Bibb Superior Court, and tbe case called up for trial at the same term.

In Bibb Superior Court. Decided by Judge Powers, May Term, 1856. Held: that the Act of 1854, so far as it exempted the members of said company from Jury duty in criminal cases, is itself unconstitutional, because it is unjust to the balance of the citizens of the County of Bibb, and because it is contrary to the Constitution of this State, which declares, that “ trial by .Jury, as heretofore used in…

<p>Debt for rent. Bibb Co. Tried before Judge Worrill, March Term, 1856.</p> <p>James A. Ralston brought his action of debt against Elizabeth Boady to recover rent for certain premises in the writ specified.</p> <p>The defence was, that said premises were rented from the plaintiff by the defendant for the purposes of prostitution; L e. for illicit intercourse between the sexes, and that the same, was done with knowledge of the plaintiff, at the time of the; contract of rent, .contrary to public policy.</p> <p>Testimony was offered by the defendant in support of this-plea; at the close of which, the Court charged the Jury—</p> <p>“ That if, at the time the plaintiff rented the houses — for which rent is charged to the defendant — he knew they were-to be occupied for the purposes of prostitution, and as lewd-houses for the practice of fornication and adultery, the contract was illegal and void, and the plaintiff could not recover for the rent.”</p> <p>To which charge, plaintiff’s Counsel excepted and assigns the same as error.</p>

Assumpsit, in Bibb Superior Court. Tried before Judge Powers, May Term, 1856. This was an action brought by the plaintiff in. error against the defendant in error, as the executrix de son tort of Nathan S. Tucker, deceased.

Ejectment, in Twiggs Superior Court. Tried before Judge Powers, March Term, 1856. This action was brought by plaintiff in error to recover lot of land No. 172, in the 28th district of originally Wilkinson, now Twiggs County. On the trial below, plaintiff introduced a grant to the .premises in dispute from the State of Georgia to Ezra Daggett, dated May 26th, 1851.

In Equity, in Dooly Superior Court. Decided by Judge Powers, April Term, 1856. This was a bill, filed by Eliza J. Brown, administratrix of Zachariah Brown, dec’d, against Irwin Bullock.

Ga. sa. in Bibb Superior Court. Decided by Judge Powers, May Term, 1856. Mims was arrested on a ca. sa. at the instance of Lockett,. and gave bond for his appearance to take the insolvent debt- or’s oath.

Assumpsit, in Bibb. Tried before Judge Powers, May Term, 1856. John P. Harvey, for the use of Gilbert C. Carmichael, brought an action of assumpsit against the firm of Mason & ■Dibble for the recovery of the sum due on two promissory notes. These notes were simply payable to John P. Harvey, and without words making them negotiable or otherwise.

Trover, in Houston Superior Court. Tried before Judge Powers, April Term, 1856. This was an action of trover, brought by defendant in error as administrator of Joseph Nunez, a free person of color, against plaintiff in error, for the recovery of sundry negro slaves.

<p>[I.] Motion made and sustained to dismiss the case because the certificate-of the Judge bearing date the 20th of March, 1856, vras under the old law instead of the new Act, which was approved the 6th of March, 1856.</p>

In Equity, in Chattahoochee Superior Court. Decision by Judge Kiddoo, May Term, 1856. Madison Sapp, as administrator of Alexander Moss, filed' a bill against Egbert P. Daniel, alleging that one David Hamilton drew a tract of land specified in the bill; that after his death, his heirs took out the grant, and being of age, sold and conveyed the same to Alexander Moss in 1885; that Moss went into possession and remained in possession till his death, in 1851.

In Equity, in Baker Superior Court. Decided by Judge Allen, May Term, 1856.

In Equity, from Baldwin County. This case was argued and decided at the last Milledgeville Term of the Supreme Court.

Complaint in Ejectment, in Stewart Superior Court. ' De■«ided by Judge Kiddoo, April Term, 1856, An action was instituted by Kendrick M. K. Brady against Matthew Averett, to recover lot of land No. 82, in the 22d district of Stewart County, and lying on the Chattahoochee river.

<p>Assumpsit, in Decatur. Tried before Judge Allen, April Term, 1856.</p> <p>Henry D. Shehee brought an action of assumpsit against John PAGauldin, for the recovery of the sum due upon a note made payable to the former by the latter, for the sum of $2500.</p> <p>To this action, besides the plea of the general issue, there were several pleas of partial failure of consideration filed, the substance of which was, that on the 6th day of March, 1854, defendant purchased of plaintiff certain described lots of land in said county, consisting of some 1367J acres, for the sum of $7,500; that the note sued on was given'as a part of the purchase money; that at and before the time of the purchase, plaintiff represented to defendant that said lots contained five hundred acres of river bottom land, which was then covered with the water of the river; that these representations were untrue in point of fact, and that plaintiff well knew the same to be untrue at the time he made them, but that defendant, relying solely upon said representations, believing them at the time, and not being able to measure the land on account of the water, confirmed the purchase; that the river bottom land does not exceed three hundred acres, and that' the difference in value between the river bottom and the remainder of said body of land is ten dollars per acre ; and that the quantity of said bottom land so represented, was the inducement to the defendant to make tbe contract, &c.</p> <p>It is further alleged, that the plaintiff resides out of the State.</p> <p>At the April Term the case was called for trial, and defendant moved a continuance, based upon the following showing, under oath, to-wit: that one Joseph Gray was present at the time of the treaty and sale of the lands mentioned in defendant’s pleas, and by whom he expected to prove the facts substantially as set forth in his pleas of partial failure, and who had been subpoenaed whilst a resident of the county, but since the last term of the Court had removed to the State of Alabama. To this was added the usual formal showing.</p> <p>Defendant moved to continue upon a further ground: to file his bill in Equity as a means of more ample redress, upon the facts stated in the pleas.</p> <p>The Court over-ruled the motion—</p> <p>1st. Because “the plea of a partial failure of consideration, was not sustainable in this case, because the plea of total failure of consideration could not be sustained.”</p> <p>2d. Because defendant ought to have filed his bill before.</p> <p>The cause proceeded to trial; plaintiff offered the note sued on in evidence and closed. Defendant then introduced evidence for the purpose of showing that the appeal entered by him was not frivolous and done for delay. After which, the Court charged the Jury, that the only question about which there was any contest, was the damages for frivolous appeal, and referred them to the law applicable to the case.</p> <p>The Jury having retired, returned a verdict for principal, interest, cost of suit, and ten per cent, damages.</p> <p>Counsel for defendant thereupon moved the. usual rule to set aside said verdict and grant a new trial, upon several grounds, among which were these: that the verdict was contrary to law and evidence and to the charge of the Court. The 6th ground is, that said Court erred in refusing defendant’s motion for a continuance.</p> <p>The Court refused the motion, and Counsel for defendant excepted and assigns the same as error.</p> <p>When this cause came up for argument before the Supreme Court, Counsel for defendant in error made a motion to dismiss the same on two grounds, to-wit</p> <p>1st. Because, in the bill of exceptions and the Judge’s certificate, the case was made returnable to the “ next July .Term of the Supreme Court of said State to be held in the City of Macon, on the fourth Monday in July next,” when there is no such ter-m of said Court.</p> <p>2d. Because the case was not brought up to said Supreme Court by such a writ of error as the Constitution of the State requires; that the bill of exceptions and the certificate and order of the Judge in the Court below, requiring the Clerk of that Court to send up the record, &e. in pursuance -of the Act of the last Legislature in relation thereto, did not, when taken together, constitute a writ of error, the said .Act being in violation of the Constitution.</p>

In Equity, in Randolph Superior Court. Decided by Judge Kiddoo, at Chambers, February 25th, 1856. This was a bill filed by William. H. Brooks against William Harrison.

In Equity, in Monroe Superior Court. Tried before Judge Green, February Term, 1856. The bill was filed by the defendant in error against the plaintiff in error for account and settlement under the following facts: John Horn died in February, 1840, having a short time previously made his last will and testament, by which he appointed the plaintiff in error his executor.

In Equity, in Monroe Superior Court. Decided by Judge Starke, August Term, 1855.

<p>£1.] A contract for the hire of a negro at a stipulated price, to be paid at the end of the year, is a liquidated demand and bears interest.</p> <p>£2.] A debt is liquidated when it is certain how much is due and when it is due. ^</p> <p>£3.] An unliquidated claim is one which one of the parties to the contract p^pnot alpne render certain.</p>

Ejectment, in Pike Superior Court. Tried before Judge Starke, October Term, 1855. This action was brought to recover a four acre lot which ’had been conveyed by W. R. & J. B. Jones, to the plaintiffs as trustees, of whom J. B. Jones was one, for a school lot.

Assumpsit, in Monroe Superior Court. Tried before Judge -Green, February Term, 1856. This was an action of assumpsit brought by Andrew M. Fuller against Robert Mays, in his lifetime, on a draft for $203. Mays plead that the consideration of the draft was se. negro man, and that the same had failed, the negro being diseased at the time of sale, and that he died shortly after.

Assumpsit, in Henry Superior Court. Triedbefore Judge Green, April Term, 1856. This was an action brought by James H. Lewis against George T. Long, for overseer’s wages, .The defendant, among other things, pleaded the Statute-of Frauds, alleging that the agreement was not to be performed within twelve months.

<p>[1.] A mistake in a grant cannot be rectified by scire Jadas or bill.</p>

Certiorari, in Eulton Superior Court. Heard and decided by Judge Bull, April Term, 1856. John M. Smith, as Tax Collector of Eulton County, placed a number of ta xfi. fas. in the hands of Wm. B. Chapman, a Constable of said County, for collection. Smith afterwards moved a rule in the Justice’s Court, against Chapman, for the money collected on said fi. fas.

Complaint, from Pulton Superior Court. Tried before .Judge Bull, April Term, 1856. This was an action of complaint brought by the defendants in error against the plaintiffs in error, for the recovery of §120 for a lot of cigars, alleged to have been sold and delivered by them to the defendants in the Court below. The defendants pleaded the general issue and the Statute of Frauds.

Assumpsit and scire facias against bail, in Fulton 'Superior Court. Tried before Judge Bull, April Term, 1856. Benjamin R. Daniel, as Attorney at Law for Wm.

<p>Certiorari, in Fulton Superior Court. Heard and decided by Judge Bull, April Term, 1856. ■</p> <p>• .John'W. Davis commenced an action of assumpsit against Alexander Cochran, in Fulton Inferior Court, on an open account.</p> <p>At the appearance term, defendant’s Counsel moved to dismiss the case because the copy process served on the defendant, was not signed by the Clerk. The Court over-ruled, the motion and directed the Clerk to sign the said copy process at that time, which the Clerk did.</p> <p>At the next and trial term of said case, Counsel for defendant again moved the Court to dismiss the case, because .the copy process was not originally signed by the Clerk., The Court over-ruled the motion and ordered the case to trial.</p> <p>The plaintiff offered in evidence his books in which the account was charged. It appeared that he had clerks, and that some of the items were charged by them, which fact was proved by the plaintiff himself, and to which Counsel for defendant excepted. The Court over-ruled the exception. The hand-writing of the clerks by whom these items were charged, was also proved by two other witnesses.</p> <p>On these grounds of exception, Counsel for defendant sued out a writ of certiorari to the Superior Court; at the hearing •of which Judge Bull affirmed the decision of the Inferior Court and dismissed the certiorari.</p>

<p>[1.] A debtor being arrested under a ca. sa. gave bond for his appearance at Court’ to take the benefit of the “ Act for the relief of honest debtors.” Afterwards, he surrendered to the Sheriff sufficient property to pay the debt, and gave bond that it was subject, &c. (complying with the Statute of 1811): Held, that he had the right so to avail himself of the Act of 1811.</p>

Debt, in Fulton Superior Court. Tried before Judge Bull, April Term, 1856. . This was an action of debt brought by Columbus M. Payne, Clerk of the Inferior Court of said county, under the direction of said Court, and upon the information of Madison S. Yoakum, for the County of Fulton and the said Yoakum.,, against James A. Coursey.

In Equity, in Troup Superior Court. Decided by Judge Worrill, May Term, 1856. Noah Lee, as administrator of Larkin Eormby, deceased, advertised for sale certain land belonging to the estate off bis intestate.

Debt, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1856. This was an action of defendant brought by Harvey Rosseau against Daniel McNeill, on a promissory note payable to John Bird or bearer. The defendant pleaded payment.

<p>Claim, in Fulton Superior Court. Tried before Judge Bull, April Term, 1856.</p> <p>The following statement of facts was agreed upon by Counsel for the parties in the Court below :</p> <p>At the time of the rendition of the judgments on which the fi. fa. issued', the law books which were the subject of the levy, were the property of Samuel C. Elam the defendant in fi. fa. They were afterwards sold by the defendant in fi. fa. to the claimant, Madison L. Lenoir; that Elam was a practising Attorney, using said books, 66 volumes, as his law library ; that he was a man of family, consisting of wife and children. At the time of the levy, the fi. fas. had been returned against the defendant, “nulla bona.” At the time of the purchase of the books by claimant, he was not an Attorney at Law but a law student, nor had he any family; that he bought the books in October, 1855, paid for them in November, was admitted to the bar in December, and the books were levied on in January and claimed by Lenoir; had no other law library and bought the books to use as a practising Attorney.”</p> <p>The Court decided that the books were subject to the fi. fas.; to which decision Counsel for claimant excepted.</p>

Rule, in Coweta Superior Court. Decided by Judge Hammond, March Term, 1856. At the December Term, 1855, of the Justice’s Court for the 992d district, Coweta County, James II. Holland ruled Obadiah Abbott, a Constable for said district, alleging in his rule nisi that ho had placed ea. sas. against one George W. Mirick in the hands of said Constable, who failed to execute the same.

Trover, in Coweta Superior Court. Tried before Judge Bull, March Term, 1856. This was an action of trover brought by Napoleon B. Goodwyn against Nancy Goodwyn for some nine negroes.- The defendant pleaded the general issue and the Statute of Limitations.

<p>In Equity, in Heard Superior Court. Motion to dissolve-injunction. Decided by Judge Hammond, at Chambers^, June 28th, 1856.</p> <p>This bill was filed by Boring in right of his wife and as next friend for A. A. Houston, Brajonia Houston, B. Hons-, ton and William S. Houston, minor children of John Hons-, ton, deceased, against James D. Rollins, executor of the last will and testament of John Houston, deceased.</p> <p>The bill alleged that John Houston died, leaving his last-will and testament — by the 1st item of which “he desired., that all his just debts should be paid.</p> <p>“ 2d. That as his children should become of age or marry^ he desired that each should have á negro of value equal to . the one given to his daughter Elizabeth Rollins, wife o£ the, defendant, and that after his youngest child should- become-of age or marry, that his wife (one of complainants) should draw one negro, equal in value to the one drawn by the children.”</p> <p>By another item in said will, he desired that his property should he kept together for the benefit of his wife and chil- • dren; that his widow (one of the complainants) should not be accountable for the proceeds of the property, but should', use it in the maintenance and education of his children; and when all of the children married or arrived at age, the property was to be equally divided between his widow and children.</p> <p>That he left an estate of some $10.000, and debts amounting to some $3.000. The property went into the possession of Rollins as executor. The bill alleges mismanagement of ' the estate by Rollins, and goes on to make divers specifications as to his mismanagement of said estate; that instead of paying off the debts, he has actually increased the indebtedness of the estate ; that he has paid off accounts and returned them to the Court of Ordinary, and then returned the notes given in liquidation of said accounts; that he has converted debts due to the estate to his own use.</p> <p>The bill goes on to state that Rollins had applied for and obtained an order from the Ordinary of Heard County to sell two negroes to pay the debts of the estate, and that they were advertised for sale, &c.</p> <p>The bill prays that he may be restrained and enjoined from selling the negroes until the real indebtedness of the estate may be ascertained, &c.</p> <p>The defendant filed his answer denying, specifically and generally, all the charges in the bill relative to the mismanagement of the estate. The answer also states, that when defendant came into the possession of the estate, he proceeded, with the advice and consent of the widow, to pay off the debts existing against the estate with the proceeds of the property until the year 1855, when the widow took possession of the crop, and refused to allow its application to the discharge of the debts against the estate.</p> <p>Upon the coming in of the answer, Counsel for defendant moved the Court to dissolve the injunction. The Court sustained the motion, and Counsel for complainants excepted.</p>

Mandamus, in Carroll Superior Court. Tried before - Judge EEammond, April Term, 1856. James H. Rogers sued out a writ of mandamus against Appleton Mandeville, Treasurer of the County of Carroll.

Complaint, in Floyd Superior Court. Tried before Judge Trippe, February Term, 1856. Nathan Bass sued John B. Winfry as surviving co-part', ner of the late firm of Price & Winfry, (which firm was composed of defendant and William T. Price,) on an open account, for $37 76.

Case, in Floyd Superior Court. Tried before Judge Trippe, February Term, 1856. Daniel D. Duke brought an action on the case against the Mayor and Council of the City of Rome for the recovery of damages.

<p>[1.] The Sheriff may take an assignment of an execution from the plaintiff, there being no law inhibiting such transfers.</p>

Ejectment, in Chattooga Superior Court. Tried before Judge Triple, March Term, 1856. This was an action of ejectment, brought by the defendant in error against the plaintiffs in error, for the recovery of lot of land No. 195, in the 6th district of the 4th section, in Chattooga County. On the trial, plaintiff read in evidence a grant from the State of Georgia to .William Johnson, dated the 3d day of December, 1835, and closed.

In Equity, in Murray Superior Court. Tried before Judge .Trippe, April Term, 1856. .This bill was filed by Sarah A. Powell, wife of Jacob S. P„ Powell, by her- next friend, James Edmonson,-against Peyton L. Wade, Jesse L. Wad;e,-of the County of Whitfield, and-the said James S. P. Powell of-Murray County. The bill charges— 1st. That in. March, 1819, James I).

Assumpsit, in Cass Superior Court. Motion for new trial. Decided by Judge Trippe, at Chambers, June 28d, 1856. Alexander G. Bullock brought an action of assumpsit against Russell II. Cannon, administrator of the estate of Nathaniel H. Bullock, returnable to the March Term, 1851, of Cass Superior Court, on the following account: Estate of Nathaniel II.

In Equity' in Walker Superior, Court. Tried before Judge Trippe, April Term, 1856.

<p>Ejectment, in Murray Superior Court. Tried before Judge 'Trippe, April Term, 1856.</p> <p>William Y. IIansell commenced an action of ejectment against Charles Dawty, under the Act of 1847, to “simplify and curtail pleadings at Common Law.” At the April Term, 1856, the plaintiff moved to amend his declaration by adding a demise in the name of Zachariah Jordan, leave having been granted at a previous term of the Court to plaintiff to amend-his writ, without specifying, however, in-what the amendment ■should consist.</p> <p>Counsel for defendant objected to- the amendment. The -Court sustained the motion and allowed the amendment, and •Counsel for defendant excepted.</p>

Assumpsit, in' Murray Superior Court. Tried before Judge Trippe, April Term, 1856. The declaration in this case contained two counts: one for money had and received ; the second on a receipt given by the defendant to the plaintiff.

In Equity, in Walker Superior Court. Demurrer. Decided by Judge Trippe, May Term, 1856. On the 1st day of January, 1850, Edward II. Garrett hired from Leander W. Crook, guardian for John Thompson, a ■minor, a negro man Lewis, for the ensuing year, and gave Ms note to Crook for $120 50. At the time of the contract,, it was supposed by the parties that the negro was sound and in good health. In a short time, he began to show signs of’ ill health and general debility.

Indictment, in Catoosa Superior Court. Decisionby Judge-- • Trippe, April Term, 1856. An indictment for an assault-with intent to murder, was found in Catoosa Superior Court, against Gideon Smith and David Winkle. At the April Term, 1856, the cause was announced for trial. The defendants severed, and the Sol-; icitor General elected to try Smith first. He having shown •cause, the Court, on motion, continued the case as to him.

Rule against Sheriff in Gilmer Superior Court. Tried before Judge Brown, May Term, 1856. The following cases were heard together: Samuel Rutherford, as the assignee of divers Ji. fas. against Beverly A. Freeman, filed his rule nisi against the Sheriff -of Gilmer County, to compel him to pay over monies in his 'hands arising from the sale of Freeman’s property on said fi. fas.

Trespass, in Paulding Superior Court. Tried before Judge Brown, March Term, 1856. This Avas an action of trespass brought by the defendants1in) error against the plaintiff in error for injury done to plaintiff’s hogs.

Indictment for playing and betting at cards, in Cherokee ■ Superior Court. Tried before Judge Brown, April Term, 1856. At the April Term, 1854, of Cherokee Superior Court, the Grand Jury found a presentment against Joseph Davis for playing and betting at cards, on the 10th day of February, 1854. At the April Term, 1855, the Grand Jury returned a special presentment against Davis for playing and betting at cards on the 4th day of April, 1855.

<p>[1.] An issue was formed between the surety in a younger/, fa. and the plaintiff in older ones, as to whether the older/, fas. had not been paid off, and as to whether the plaintiff in those /. fas. had not released property of the defendant in them from the fi.fas. The surety tendered in evidence a writing made by the plaintiff in the older/. fas. to the effect that the plaintiff thereby released some land of the defendant’s from the/. fas. In this writing no consideration was expressed, nor was the writing under seal. The Court Would not receive the writing in evidence : field, that this was right.</p> <p>.[2.] If the effect of a person’s testimony will be to create or to increase a fund in which he is entitled to participate, the person is not competent as a witness.</p> <p>£3.] A levy on real property, is not prima facie evidence of satisfaction of the /. fa.; and although nnaeonntod for, it does not extinguish the debt.</p> <p>£4.] On an issue as to whether a/, fa. has been paid off or not, sayings of the defendant against his interest, about matters which tend to show the fi.fa. not paid off, arc admissible as evidence for the plaintiff in/, fa.</p>

<p>Simple larceny, in Upson Superior Court.</p> <p>The Reporter was furnished with no bill of exceptions in this case, and the statement of facts made out at the term ■ has been unfortunately lost. The facts are sufficiently stated in the opinion.</p>

Ejectment, in Heard Superior Court. Tried before Judge-Hammond, May Term, 1856. This was an action of ejectment brought by Michael Summerlin against Francis B. Hesterly, tenant in possession, for the recovery of lot of land, known as fraction number one hundred and eighty-nine, in the 4th district of said county, containing one hundred and twenty-five acres. On the trial, plaintiff showed title in his lessor, proved1 possession and locus, and closed his case.

Complaint on note, in Morgan Superior Court. Tried before Judge Hardeman, March Term, 1856. To March Term, 1855, Joseph Winship brought suit, under the Act of 1847, on a note made by A. M. Brown, on wbieh service was acknowledged by J. 0. Beese, as agent for Brown. Judgment was confessed at September Term, 1855, by J. A. Billups, as Attorney for Brow», and an ap~ peal entered. Pending the appeal, Brown filed a plea of set-off of an account.

In Equity, in Lowndes Superior Court. Decision by Judge Love, June Term, 1856. The following clause was a part of the will of Daniel In-,man: “I loan to my daughter, Sophia Jones, during of her natural life, and then to her bodily heirs, the following property, ■viz : nine negroes,” naming_them.

In Equity, in J ones Superior Court. Decision by Judge Hardeman, April Term, 1856. This bill was filed by the administrator of A. Barron for interpleader and direction, upon the following facts: James Barron intermarried and was divorced from his first wife, at her instance, he being the “guilty party.” He afterwards intermarried again, his first wife being still alive. By both, he had children.

In Equity, in Jasper Superior Court. Decision on demurrer, by Judge Hardeman, April Term, 1856. The only question in this cause, was the character of the .following instrument: “ Georgia, Jasper County, July 8,1855. Due, at my death, to Haney Johnson, the sum of two thousand five hundred dollars, from the general fund of my estate, as a gift. his LEWIS M YANCEY. Test, Lewis D. Yancey, Jr. mark.

Caveat to will. On appeal, in Putnam Superior Court. Tried before Judge Hardeman, September Term, 1856. Price T. Gaither died September, 1858, and by his will, gave the whole of his property to his wife for life, and the one-half to his brothers and sisters at her death. His widow qualified as executrix of the will.

<p>Case, &c. in Putnam Superior Court. Tried'before Judge Hardeman, September Term, 1856.</p> <p>This was ail action brought hy John B. Fitts, as Sheriff, for the use of sundry plaintiffs in ji. fas. against one" W. .G. Lee, for the recovery of the purchase money of certain negroes sold as the property of defendant in fi. fa. It appeared that the negroes were mortgaged to Harwell & Callaway. These mortgages were foreclosed prior to tho sale. The negroes were sold under general judgments, and at the sale Harwell & Callaway gave notice to the bidders of their mortgages. They bought the negroes for $1,500. In settling with the Sheriff, they deducted the amount of their mortgage debts, and paid him the balance of the hid in cash, and he gave them a bill of sale, acknowledging the receipt of the purchase money.</p> <p>Counsel for Harwell & Callaway requested the Court to charge—</p> <p>1st. “ That if the Jury believed the plaintiffs executed the bill of sale, he cannot now deny the receipts of the money.”</p> <p>2d. “ That if the mortgage was foreclosed before the day of sale, the purchase by defendants, of the negroes, did not extinguish the debt, but the mortgagees have the right to look to the fund arising from the sale for payment of their debts.”</p> <p>The Court refused so to charge, and error is assigned thereon.</p>

<p>In Equity, in Putnam Superior Court. Decision by Judge - Hardeman, September Term, 1856.</p> <p>Oliver II. P. Canant filed an original bill against James W. Mappin, as administrator of Thomas W. Mappin, for the settlement of a partnership business ; and such proceedings were had, that at the March Term, 1856, the pleadings were made up and the cause set down for trial. Subsequently, the defendant in the original bill filed a cross-bill, seeking discovery from the complainant, but did not show any sufficient reason why the same was not filed before the pleadings were made up. On this ground Canant demurred to the cross-bill. The Court over-ruled the demurrer, and this decision . is assigned as error.</p>

Action for land,' in Jones Superior Court. Tried before Judge Hardeman, October Term, 1856. This was an action brought by Samuel Griswold against Henry Watts for the recovery of a lot of land.

Attachment, in Lincoln Superior Court. Decision by Judge James Thomas, April Term, 1856. This was a decision of Judge Thomas, dismissing an attachment on the ground that the same did not appear to have been issued by any officer authorized by law.

In Equity, in Hancock Superior Court. Decision by Judge Hardeman, August Term, 1856. William Shivers died intestate. Subsequently, William O. Shivers, one of his heirs and distributees, and a minor, died, leaving a will, by which he bequeathed “ all his negroes and effects which he had, and which he was entitled to by law in his father’s estate,” to his brothers and sisters.

<p>■£X] The Act of 1856, “declaring who are liable to serve as Jurors in criminal cases,” &c. applies as well to cases happening before its passage as to those happening after its passage.</p>

Motion,’ in Wilkes Superior Court. Decision by Judge-James Thomas, September Term, 1856. This was a controversy between judgments on a money rule. The ft. fas. in favor of Hinton were upon judgments rendered by one Bradford, as a J. P. at a time when he was engaged in teaching school in a district adjoining that in which he claimed to be Justice.

Yoluntary manslaughter, in Wilkes Superior Court. Tried before Judge James Thomas, September Term, 1856. Upon the trial of this case, the following evidence was submitted to the Jury: John A. Downer sworn, says, that he got there a few minutes before deceased died.

<p>Trover, in Wilkes Superior Court. Decision by Judge James Tiiomas, September Term, 1866.</p> <p>Eliza Pope brought an action of trover against Robert Toombs, for several negroes. The defendant claimed as administrator of Henry J. Pope.</p> <p>Upon the trial, a verdict was rendered for the plaintiff at March Term, 1856, and a motion was then made for a new trial.</p> <p>At September Term, 1856, Counsel for plaintiff moved to dismiss the motion, because no brief of all the evidence in the cause had over been approved by tbo Court or agreed upon by Counsel, and such approval and agreement entered on the minutes. The motion was in the following words:</p> <p>Eliza Pope vs. Robert Toombs. Suit, &c. Verdict for plaintiff.</p> <p>And now, at this term, comes the defendant, by his Attornies, Irvin and Barnett, and prays the Court for a new trial in said cause, for the grounds following, to-wit:</p> <p>1st. Because the Court erred in admitting as evidence before the Jury, the words following in the testimony of ‘Eliza Pope, viz : “ The trade was not completed” — such words being the statement of a legal conclusion, and not of a fact— the facts, themselves, being elsewhere stated.</p> <p>2d. Because the verdict was contrary to evidence.</p> <p>3d. Because it was contrary to law.</p> <p>4th. Because it was contrary to the charge of the Court.</p> <p>And this defendant prays that this may operate as a supersedeas in said cause, and that the brief of the testimony hereto appended may be approved by the Court, and that the .plaintiff may show cause, at once, why a now trial should not be granted — plaintiff, in open Court, waiving notice and farther service of grounds of application for new trial.</p> <p>IRVIN & BARNETT, Def’ts Att’ys.</p> <p>COPY OE EVIDENCE.</p> <p>Samuel Baldwin’s interrogatories proved property in plaintiff prior to its going into possession of Henry J. Pope, defendant’s intestate, and proved value of property.</p> <p>I agree to the above as Baldwin’s testimony.</p> <p>Signed, THOS. R. R. COBB.</p> <p>COPY OE THE ANSWERS OE MRS. ELIZA POPE, PLAINTIEE.</p> <p>Eliza Pope vs. Robert Toombs, Trover on appeal, in Wilkes Sup. Court.</p> <p>The answers of Mrs. Eliza Pope, the plaintiff, to interrogatories filed for her in the above stated case :</p> <p>To interrogatory 1st. I was acquainted with Henry J. Pope; 2d. The negroes sued for in the above stated case did belong to me; 3d. They passed out of my possession into that of Henry J. Pope, under the following state of facts : Mr. Pope was buying negroes to carry on rail road work ; he applied to me on several occasions during the fall of the year 1852, to purchase my negroes. We finally agreed upon the prices for the negroes sued for, and also for a negro woman named Eanny. Another negro, Orry, it was agreed should be sent with the other negroes, and according as her health proved good or otherwise, we were to agree on a price for her when the trade was finally closed. This was in October or November, 1852. The negro man and boy were carried off by Mr. Pope — the other negroes being hired out could not be delivered till the end of the year. (Hence, the trade was left open and unfinished.) At the end of the year I sent the negroes down to him, Orry with them.</p> <p>In January, 1853, I went down myself in order to have the trade between us closed. At that time, I had changed my mind as to Fanny, and Mr. Pope, through his wife, signified his willingness to me to take her out of the contract. I remained in Stewart County near two months, (Mr. Pope being absent,) awaiting his return in order to conclude this trade. He did not return before I left. I had no doubt as to his integrity, and felt easy that the contract would be completed in its spirit when we met again; and hence, I left the negroes there — Orry with them. The trade was an entire contract; that is, I mean the negroes were not sold separately. The object I had being to place family negroes together, in the hands of a friend; and hence, the prices I set upon them were lower than the market prices of similar negroes. (I never considered the trade as completed, although had Mr. Pope lived and we had met again, I did not doubt it would have been completed.) Orry was sold just as much as any of the negroes. The only difference was, no price was agreed on as to her. In fact, being near relations and friends, we left the whole matter open, subject to final adjustment when the trade was closed.</p> <p>Orry has since been delivered back to me. Eanny, I learn* ■was sold by Mr. Pope in Alabama. The price agreed on for Eanny was seven hundred dollars. There was no memorandum, note or other writing made as to these facts by us, as we expected to meet in the winter to complete the trade.</p> <p>Int. 2d. I do not consider that the negroes were sold by me to Mr. Pope, because the trade was not completed. We had made no agreement as to the terms of sale further than stated in the foregoing answer. There was no agreement or understanding as to whether cash was to be paid or credit given, nor as to the length of credit. As I have before stated, all these matters (except the prices of all the negroes, save Orry) were left open, and to be settled when the trade was completed.</p> <p>To the 3d and 4th, she answers: I have answered these -questions fully. (The residue of these answers not read.)</p> <p>(Signed,) E. S. POPE.</p> <p>Sworn to and subscribed before me, this 19th March, 1856. THOS. R. R. COBB,</p> <p>Notary Public for Clark Co.</p> <p>The following are the interrogatories to Mr.s Pope :</p> <p>Eliza Pope vs. Robert Toombs, Trover on appeal, in Wilkes Sup. Court.</p> <p>Interrogatories on the part of defendant to the plaintiff, Eliza Pope, a material witness for him, residing out of Wilkes County.</p> <p>Int. 1st. Were you acquainted with Henry J. Pope in his lifetime ? If so, state whether the negroes sued for by you. in the above stated case ever belonged to you ; and how they passed out of your control and possession, into said Pope’s.</p> <p>Int. 2d. Please state if the negroes sued for by you in the above stated case were sold by you to Henry J. Pope; when, and what were the terms of the sale.</p> <p>Int. 3d. If the negroes sued for by you passed out of your control and possession into that of Henry J. Pope, state fully upon what terms. State the contract between you and II. J. Pope; particularly whether it was a contract of sale or hire, and the terms thereof.</p> <p>Int. 4th. State all you know that will show that the negroes sued for by you in the above stated case, really and legally belonged to the estate of H. J. Pope, and not to you; state that you have stated all which would show this.</p> <p>Signed, A. II. STEVENS,</p> <p>W. M. REESE,</p> <p>Hef’ts Att’ys.</p> <p>Indorsed on the motion were the following entries:</p> <p>“ I acknowledge due and legal notice of the within motion ■ and grounds of application.”</p> <p>Signed, TROS. R, R. COBB, Plff’s Att’y.</p> <p>Eiled in office March 28th, 1856.</p> <p>Signed, JOHN H. DYSON, Cl’k.</p> <p>“ By consent of both parties, by their Counsel, in open Court, upon hearing the within motion, it is ordered that the argument be continued at Warren Court, and the decision thereon bo then pronounced, with leave for either party to except and take up the case thence to the Supreme Court. On failure to decide at Warren Court, then farther order to be then made.”</p> <p>“ Ordered by consent of both parties, at Warren Court, that this cause be heard at Oglethorpe Court; in default of which it be heard at the next term of Wilkes Superior Court. (Signed,) JAMES THOMAS, J. S. C. W. C.</p> <p>April 7th, 1856.”</p> <p>The Court over-ruled the motion to dismiss, and plaintiff excepted. The motion for a new trial was then heard; and after argument had thereon, the Court made the rule absolute on the first ground taken only. The defendant insisted. on all the grounds. To this decision plaintiff and defendant both excepted.</p> <p>The two bills of exceptions were argued together.</p>

<p>Appeal, in Warren Superior Court. Decision by Judge .James Thomas, October Term, 1856.</p> <p>This was a motion to dismiss an appeal. The appeal was entered in the usual form, except that it was not attested by the Clerk; and below the appeal bond this entry was made by the Clerk :</p> <p>“Costs to appeal, $27 77-1, not paid. ”</p> <p>” Gr. W. DICKSON, Clerk.”</p> <p>The ground taken for the motion was, that the costs were not paid.</p> <p>The Clerk testified that he demanded the costs of the At~ ■torny of appellant, who asked if he demanded them in advanee. Some other conversation was had. The Clerk made out the bond and carried it to the appellant’s carriage, (he being an infirm man,) where it was signed by him and his surety. Nothing was said about the costs at that time-They were subsequently paid by the Attorney. The Court •below dismissed the appeal, and this decision is assigned as error.</p>

Mandamus. Lincoln Superior Court. Decision by Judge-James Thomas, April Ter pi, 1856. This was an application by the Ordinary of Lincoln County to the Judge of the Superior Court, to compel the Clerk of' the Superior Court to take the administration of an unadministered estate, where no person would apply for or accept the samo. The Court granted the order desired, and this decision is assigned as error.

In Equity, in Wilkes Superior Court. Decision by Judge James Thomas, September Term, 1856. g. This was a bill filed by James J. Booker and others to perpetuate the testimony of one Moses Sutton, an aged man, and of infirm health, laboring under two diseases, viz: consumption and dyspepsia; as to the value of the hire and other things in reference to a certain slave for which the complainants intended to bring suit against the executors of R. Booker; ■but which suit could not…

<p>[I.] Gr, by his will, directed his lands and all his perishable property, including one slave by name, to be sold, giving three-fourths of bis estate, including twenty-one negroes, to three grand-children: to one of whom he-gave $500 extra of an equal share, “ and more if need required,” to defray the expense of his raising and giving him a good English education. The-testator left it to the discretion of his executors, whom he nominated “ to carry his willintofull effect,” whether or not the negroes should behired out or land purchased and they be kept thereon, so as to be treated with humanity, and raised so as to benefit the heirs : Held, that the title to the property bequeathed to the grand-children, did not so vest in them at the death of the testator as to entitle their guardian to sue for and recover it, hut that the executors were clothed with a personal trust, for the purpose of' carrying into effect the objects and intentions of the testator, both as it respects the property and his grand-son, to whom the extra allowance-was given.</p>

In Equity, in Wilkes Superior Court. Decision by Judge James Thomas, September Term, 1856. By the 3d item of Richeson Booker’s will, “ he gave and' devised unto his beloved wife, Easter Booker, and direct my executors hereinafter named, to deliver unto her all the property, both real and personal, that I made a deed of gift unto her, dated the 17th of September, 1851, at my death.” After sundry specific legacies, he gave the residue to certain children and grandchildren.

In Equity, in Elbert Superior Court. Decision by Judge James Thomas, September Term, 1856. Held: that the executor should account for the negroes hired to other persons, but not for the negroes used for agricultural purposes on the land from which the tenant for life-was entitled to emblements. To this decision both parties-excepted.

Ejectment, in Hart Superior Court. Tried before Judge James Thomas, September Term, 1856. The defendant in the Court below, Lemuel Scott, relied, upon a grant from the State of Georgia, dated 21st December, 1836, to the heirs of James Vickery. The plaintiff below objected, on the ground that the warrant was taken out by James Vickery, and the grant issued to “ the heirs of James Vickery.” The Court over-ruled the objection, and this decision is assigned as error.

<p>In Equity, in Elbert Superior Court. Decision on demurrer, by Judge Thomas.</p> <p>The facts of the case are fully set forth in the opinions.</p>

<p>In Equity, in Elbert Superior Court. Decision by Judge James Thomas, September Term, 1856.</p> <p>By the will of William S. Burch, upon the marriage of his wife, he ordered-his estate to be sold by his executors; and one-third part of the money arising from this sale he “ willed and bequeathed to be equally divided between his brothers and sisters, viz: Thomas Burch, Benjamin Burch, Maza Burch, John Burch, Gheadle Burch, Polly Johnson, Jenney Divine, Hannah C. Purkins and Sarah Kesee — and is to them, my said brothers and sisters, share and share alike, forever; but if either of my said brothers or sisters should decease, leaving no child or children, then and in that case my will is that their part of said legacy.be equally divided betwixt the whole of my brothers and sisters above-named, and is to each of them forever.”</p> <p>In the event of his wife’s dying without marriage, he ordered a sale as above, and gave one-third of the money “ to be equally divided betwixt the whole of xny above named brothers and sisters, in manner as above mentioned, and is to each of them forever.”</p> <p>. Cheadle Burch was (load when the will was made. His children filed a bill against the executor, claiming the shave of the said Oheadle. The bill was demurred to—</p> <p>1st. Because the legacy was void.</p> <p>2d. Because the complainants, as heirs at law, cannot hold the executor responsible for the distribution of this lapsed legacy.</p> <p>3d. Because the executor was entitled to the undisposed of residuum.</p> <p>The Court sustained the demurrer on the first ground and over-ruled the other two.</p> <p>The whole decision is brought up to this Court for review.</p>

Motion, in Gwinnett Superior Court. Decision by Judge Jacicson, September Term, 1856. An indictment was found against several persons for a riot, in the performance of an unlawful act. On the trial, it appeared that the act was not unlawful, although the riot was proved. The Court below directed the Jury to find a verdict of not guilty under this indictment.

Decided-by Judge Jackson, at August Term, 1856. This motion was based upon the following grounds: 1st. Because the Court erred in charging the Jury, “ that where partners in a mill, by the. terms of the partnership, were to divide the toll grain as it was received, that one of the partners could not stop the division of the toll for the purpose of raising a fund to pay a debt due by the partnership,” there being no evidence to authorize such a charge. 2d. Because the Court…

<p>Mandamus, in Clark Superior Court. Decision by Judge Jackson, at August Term, 1856.</p> <p>After the decision of this case in 19 Georgia Reports, 97» and the same was returned to the Superior Court, before the remittiter was made the judgment of the Court, amotion was made by the relator to amend his petition for mandamus, by supplying the allegation as to the existence of funds in the County Treasury; for the want of which allegation, the petition was held by the Court, at that time, insufficient.</p> <p>The Court below refused to allow the amendment on two grounds:</p> <p>1st. That it came too late.</p> <p>2d. That, as amended, the petition for mandamus did not ..make a case authorizing the relief prayed.</p> <p>To this decision relator excepted.</p>

Motion, in Clarke Superior Court. Decision by Judge Jackson, August Term, 1856. Haygood, as administrator of James Hendon, brought an action against the Justices of the Inferior Court of said county. A verdict and judgment was rendered in favor of the plaintiff. The defendants, by writ of error, carried the-case to the Supreme Court and paid all the costs accrued before that time, and also in the Supreme. Court.

Ih Equity, in Habersham Superior Court. Decided by Judge Jackson, October Term, 1856. This case is reported in 17 Ga. Rep. p. 544, where the facts of the original bill are set forth.