Volume 21 — Georgia Reports

In Equity, in Columbia Superior Court Decision by Judge Holt, March Term, 1856. The bill in this case was filed by John- M. Cutliff and wife, against John Cartledge and wife, former guardian of Mrs..

<p>[1.] An injunction may be ordered at chambers, out of the county of defendant residence.</p> <p>[2.] That counsel was not prepared to try a cause to be beard on a motion, in consequence of other pressing business engagements, no ground for a postponement of the case.</p> <p>[3.] No error for the Chancellor to grant an injunction instantly, if in his judgment the justice of the case and the evidence before him require it.</p> <p>[4.] Bill is not multifarious, because it involves the investigation of the concerns of two mercantile firms, if it be necessary to a just final decree, that an account of both should be had.</p> <p>[5.] When the interest of a deceased partner is involved in the case, his personal representatives should be made parties; but the bill may be amended for that purpose.</p> <p>[6.] When a strong case is made before the Chancellor, shewing an urgent necessity for speedy interposition on the behalf of complainant, by way of injunction, his discretion in granting instanter, will not be controlled by this Court.</p>

Petitions to establish lost wills, in Burke Superior Court,, before Judge Holt, November Term, 1856. Ordered by consent of counsel, that these two cases he' consolidated and argued together.

Caveat, in Columbia Superior Court. Tried before Holt, Judge. September Term, 1856. Appeal from Ordinary. Ordered by consent of counsel, that the above cases be consolidated and argued together. The controversy in these cases arose upon admission to probate in solemn form, of an instrument in writing purporting to be the last will and testament of Thomas E. Beall, deceased.- The instrument is as follows, viz : Georgia, Columbia county.

Certiorari, in Richmond Superior Court. Decision by Judge Holt, October adjourned Term, 1856. This was an action brought by John Burke against James H. Alford, in the City Court of Augusta, for the recovery of $500, placed in his hands as stakeholder.

Illegality, in Richmond Superior Court. Decision by Judge Holt, at October Term, 1856. The bill of exceptions certified in this case, contains all the facts necessary to a full understanding of the decision, and is as follows : State of Georgia, I Richmond county.

<p>Assumpsit, in Jefferson Superior Court Tried before Judge Holt. June Term, 1856.</p> <p>This was an action of assumpsit brought by Findley, plaintiff below, against Wright, defendant, to recover the price of an engine and machinery sold to defendant, and for the value of work and materials furnished by plaintiff, in putting up said engine and machinery, under the following agreement:</p> <p>“The undersigned have this day agreed as follows, to wit; That Robert Findley will make, and have ready for shipment by the first day of March next, an engine of twelve horse power, with the usual outfit and appurtenances for a forty-eight inch circular saw, including some, and sundries, as follows: thirty feet carriage and machinery for same, also, cant hooks, rollers, revolving wedge, piles, wrench, punch, belting', bolts, cement, packing yarn,.&c., as per Page’s bill; for which A. R. Wright agrees to pay said Findley, twenty-one hundred dollars, as follows: ten hundred and fifty dollars when work is ready for shipment, and approved note for remainder, with interest from date of mill, being put in operation. It is further understood, that no extra charge will be made for a,smoke stack, delivered at No. 12, C. R. R. Said Wright agrees to pay for drayage and freight on all other parts. The whole of the machinery to be at the risk of said Findley until delivered to the agent of Central R. R., at Macon, in good order. No charge to be made by said Wright for any timber or lumber he may furnish for parts of the machinery, which he agrees to get as per bill given by said Findley. No bill of expense is here included by said Findley, for putting up engine or machinery at place of destination, but which to be under the supervision of said Findley. All of which work said Findley warrants to be of the very best materials and workmanship, and in all respects constructed in the most permanent and durable manner. Said Wright engages to furnish water within eight feet perpendicular depth of engine.</p> <p>Macon, Nov. 29, 1851.</p> <p>Signed, ROBERT FINDLEY.</p> <p>A. R. WRIGHT.”</p> <p>The plaintiff annexed to this declaration, two bills of particulars:</p> <p>One for engine and machinery, as per contract, $2,100 00</p> <p>Cr. hy cash, ------ 1,055 00</p> <p>Leaving balance of.....$1,045 00</p> <p>One for work done and materials furnished in</p> <p>erecting said'engine, &c.,.....$320 00</p> <p>The defendant pleaded:</p> <p>1st. The general issue.</p> <p>2d. Failure of plaintiff to deliver the machinery and to perform his work in compliance with the contract.</p> <p>3d. That defendant has been injured and damaged three thousand dollars by the defective and inferior quality of said engine and. machinery.</p> <p>Plaintiff examined by interrogatories, William Thompson, who deposed that he was a clerk in Findley’s foundery; that he shipped by Central Railroad, from Macon to Station No. 12, one twelve-horse engine, and various articles of machinery, all marked “A. R. Wright.” They were shipped about 26th March, 1852. That on 15th April, 1852, he shipped other articles; that on the 22d April, in the same year, he shipped to defendant other articles; that the said articles are the same charged in the bill of particulars; took railroad receipts for the articles shipped, which he then had in his possession. The machinery was in good condition when he shipped it, and the prices such as are usually charged; does not think they are too high.</p> <p>William L. Hogue, examined by interrogatories, deposed: That he was a carpenter by trade; had charge of putting up the wood work of á mill for defendant, except the frame of the mill-house, which was built by defendant before he went to work; all the work done by him was done in a good, workmanlike manner. Considered the mill-house which defendant had built very inferior, the foundation was had, wet and soft; the frame too unsteady to run a circular saw; the foundation on which the timbers for the engine was placed was not suitable for such a purpose. Did not hear defendant say any thing about being satisfied or dissatisfied with the work, as he left the day the mill was started. He put up the feed works for the mill; they were well put up, but did not work well. Built the carriage; it worked well. All the machinery, except the feed works, worked very well when he left the mill.</p> <p>- Cross examined. — Says that he saw, in defendant’s possession, a rough draft of a building, which he said had been given him by plaintiff, and the mill-house was in the form laid down in said draft. Does not know whether • plaintiff gave size of the timbers or not about the building. Did not hear plaintiff say that the mill-house was sufficient; but did hear him say that it was a rough, bad job. He directed me pretty much how to put up the machinery, but I expressed my own judgment when it was necessary; millwright is in many cases a better judge than the machinist. As to the roughness of the machinery, don’t know; saw machinist chipping about the mill; don’t know whether machinery was rougher than usual. Docs not know of any particular delay about machinery; might have been some, but not much, as the mill was started in twenty-six days from the time he went to work — means working days; commenced work 8th of April and left 6th of May, 1852. Plaintiff paid me for my services. Don’t know how much time defendant lost in going to railroad; his wagon went once and returned empty.</p> <p>John S. Brown, examined by commission, deposed, that he was present when the contract between plaintiff and defendant was made. Saw defendant some time after his mill had been in operation, and he spoke in high terms of his machinery, and rather boasted of the amount of sawing he could and had done. Was at defendant’s mill and heard him say he had the frame for his mill built under his own supervision.</p> <p>Cross examined. — Can’t state all he heard defendant say in the conversation we had. He did complain of the feed gear, furnished him by plaintiff, but that he had promised to put him in new feed gear. Defendant spoke of having been delayed in putting up his mill by reason of plaintiff’s delay in getting up the machinery according to his contract, and that he had sustained considerable loss. Defendant told me he had to take up some of his work. He declined to answer the first question in the third cross interrogatory.</p> <p>Luther R. Faught, examined by commission, deposed that he was a machinist in Robert Findley’s machine shop and Foundry; had examined the contract as requested; superintended the building of the engine and all the other machinery therein mentioned; the work was well-done, and in accordance with the contract, and the prices charged the same as those usually charged for similar work. The material used was of the best kind. The prices charged for materials, hire, freight, &c., are such as were paid, or as are usually paid, and thinks them reasonable. The articles contained in the second bill of particulars are extra the contract.</p> <p>Cross examined. — The engine was finished and ready for shipment sometime before it was sent; understood the woodwork was not ready, and knowing that the engine would be injured by exposure, did not send it till 6th of March, 1852. The feed gear was not defective, but was a new kind, which are considered superior to the old, but upon trial it did not succeed to our expectation, and was taken out and a new kind put in, free of expense to defendant. There was not a large portion of the machinery sent back; a pipe was sent back to be cut off a certain length, and a piece of the feed gear above named; if there was any thing else don’t remember. Has seen three letters from defendant to plaintiff on the subject of the mill and machinery, and which he appends to his answers, marked “A.” “B.” and “ C.”</p> <p>Plaintiff here closed.</p> <p>John Brown, for defendant, testified that on the evening of 7th June, 1852, he went to work at defendant’s steam mill in Jefferson County; met W. L. Hogue nine miles from the mill; Hogue told him he had just left the mill, and that in his opinion it could never be made to operate well. Witness took charge of the mill 8th June, as general superintendent. Mill run about ten days in a very imperfect man-net, when the feed gear failed entirely and the mill had to be stopped until a new “feed gear” could be made. Plaintiff sent down a new wheel for the old gear in about ten days, when the mill was again started and worked very well for a few days, when the feed gear again failed, and the log had to be fed to the saw by hand. Mill ran in this imperfect way about six weeks, when the engine had to be taken down, owing to the defective manner in which it was put up. Mill was stopped about eight or ten days. The pumps which supplied the boiler failed to furnish water, until a new pully was put on the shaft and gave more speed to the pumps. Mill started 8th May, 1852. Remained at said mill till September following, or October; during this time there was a constant loss of time on account of the defective working of the feed gear. If machinery had been good, could have cut four or five thousand feet per day; that amount ought to be cut by mills of that power; while witness remained, it did not cut over three thousand feet per day. The house was a rough frame, but sufficiently steady for the successful working of a mill. All circular saws shake a little. Has seven years experience in running circular saw mills. Was hired first by plaintiff to go down, he paid 'me part of the passage money on the railroads. The fire front, or boiler front, in a few weeks gave way and broke into several pieces; worth of boiler front about eighty dollars; week after that time smoke stack fell down and was broken; lost several days in repairing and getting it up again. Returned to defendant’s mill in January, 1853, and remained there as superintendent till November following, during which time there was constant loss occasioned by the failure of the “feed, gear.” The foundation where the engine was set was sufficient, if the engine had been properly put up. The average loss while he was at defendant’s mill was about fifteen hundred feet per day. The carriage that the log was placed on was too light and never did well. The boiler and furnace were placed in a very dangerous location, owing to which the mill on one occasion took fire. Plaintiff never sent a new feed gear up to the time he left in November, 1853. The machinist who set up the engine and machinery was employed by plaintiff, as was also W. L. Hogue, who put up the saw frame.</p> <p>Larkin Brassel swore that he went to work at steam mill in the summer of 1852; was there about a month before L. J. Brown left, and after that had charge of the mill. The feed gear was very bad, failed entirely to feed up the log as it should have done, and was the cause of constant loss of time. Remained till December, 1852. Could have cut one-third more if the feed arrangement had been good; averaged about three thousand feet per day.</p> <p>Thomas F. Pearce, sworn, says that plaintiff built and put up a steam mill for him and another in the Spring of 1852. W. L. Hogue and N. Green were the machinists who first pxxt up the mill; could do nothing with it until plaintiff sent a man by the name of Deletter, the mill then performed better, but very badly, until witness sent to Savannah and hired competent machinists, and had the machinery newly set and altered. Defendant took Hogue and Deletter from witness’ mill in his carriage. ^</p> <p>Defendant closed.</p> <p>Plaintiff’s counsel requested the Court to charge the jury:</p> <p>1st. That if they believed defendant accepted and worked the mill, without complaint as to the time the machinery was delivered, that' he waived that part of the contract and cannot claim damages now.</p> <p>2d. That if they believed defendant accepted and worked the mill, without complaint or protest as to the sufficiency and workmanlike manner of the performance of the machinery, after he had used the same from four to eight months, that he had waived his right to object now on that account and claim a deduction for damages.</p> <p>Defendant’s counsel requested the Court to charge;</p> <p>1st. That it is incumbent upon plaintiff to prove a compliance, on his part, with the terms of the contract, before he could call on defendant to perform his part, and this compliance must he full and complete, unless he can show that defendant subsequently consented to a modification of said contract.</p> <p>2d. That “Faught’s statement that the engine was finished and ready for shipment, and could have been shipped sooner, hut it was understood that the wood work was not ready, and did’nt want engine exposed,” &c., is too indefinite as to time and source of information, to he admissible in evidence of excuse for plaintiff’s violation of contract, in failing to furnish engine at the time agreed on.</p> <p>3d. That the payment of money from time to time by by defendant, does not preclude him from holding plaintiff to a strict compliance with his contract, and cannot be regarded as evidence of defendant’s admission that plaintiff had fully complied therewith.</p> <p>The Court charged as requested by plaintiff’s counsel, and charged as requested by defendant’s counsel on his first point, refused to charge as requested on the second point, and also as requested on the third, but charged that the payment by defendant of a part of the money was evidence of his acceptance of the contract, as performed by plaintiff, and a waiver of any right he might have.to damages for the failure to comply with this part of the contract; and that the acceptance by defendant of the mill and machinery, and working and using the same, without an offer to return it, was evidence of his acceptance of the same, and a waiver of a failure on plaintiff’s part to comply with his contract.</p> <p>To which charge and refusal to charge, defendant excepted.</p> <p>The jury found for the plaintiff, one thousand and sixty seven dollars and ninety-eight cents, ($1067.98.)</p> <p>Whereupon counsel for defendant excepted and assigns error:</p> <p>1st. Because the Court erred in charging both of the points as requested by plaintiff’s counsel.</p> <p>3d. Because the Court erred in refusing to charge as requested by defendant.</p> <p>Judge Holt, before signing and certifying the bill of exceptions, added: “ That on the second ground in the assignment of errors, the opinion of the Court and its instruction to the jury are not fully and correctly stated. The charge on the first point was as requested by defendant’s counsel, with the addition, that he might not only consent to a modification of the terms of the contract, but waive its exact and punctual performance by the plaintiff; of which they must determine from the evidence, and in this view they might consider the testimony of payments made from time to time by defendant. No objection was taken, at the time, to the admissibility of Faught’s testimony, when read to the jury. The Court did refuse to decide whether it was too indefinite to serve the end for which it was offered, but referred that matter specially to the jury.”</p>

Complaint, in Jefferson Superior Court, before Holt, Judge, June Term, 1856. This was an action on a promissory note, brought by Stovall, Dunn and Co., against Edward B. Hook. It appeared that the consideration of the note, was the purchase money of a slave named Mary, sold by plaintiff below to defendant below.

In Equity in Richmond Superior Court. Decision by Judge Holt. November Term, 1856. On the 29th August, 1856, Samuel J. Boyce filed his bill against Joseph F. Burchard. The prayer of the bill was for an injunction, the appointment of a receiver, account and dissolution of the firm of J. F. Burchard & Co., which was composed of complainant and defendant.

Certiorari, from Chatham Superior Court, before the Honorable W. B. Flemming, presiding Judge of said Court. At January Term, 1856. The defendant, Christopher Hussey, was convicted by the Mayor and Alderman’s Court of the city of Savannah, of the offence of harboring and enticing seamen, in violation of an ordinance of said city.

<p>[1.] A covenant “to oiler to II. F. W. four promissory notes, with good and sufficient endorsers thereon,*’ does not bind the covenanter to mofe and offer his own promissory notes.</p> <p>[2.] The Courts cannot interpose terms which impose obligations on parties, not warranted by their covenant as expressed.</p>

Case in Chatham Superior Court.. Decision by Judge Fleming. May, 1856. This was an action brought by James W. Jones,.plaintiff, against the Central Railroad and Banking Company of Georgia, lessees of the Augusta and Waynesboro Railroad, under the fifth section of the Act of 1847.

In Equity, in Chatham Superior Court. Tried before Judge Fleming at June term 1856.

<p>[1.] The certificate of a County Surveyor that a tract of land had been surveyed, and resnrvcyed is not admissible in evidence to prove possession.</p> <p>[2.] The resurvey of a tract of land, or entering on a tract of land for the purpose of making a survey, is not evidence to support an adverse possession.</p>

<p>In Equity, in Chatham Superior Court. Decision by Judge Fleming, at chambers, 31st April, 1856.</p> <p>This bill was filed by Thomas M. Newell and Joseph Bryan, administrator of Joseph Bancroft, deceased, against William H. Stiles, surviving executor, and trustee under the will of Joseph Stiles, deceased, to restrain defendant from foreclosing a mortgage, and for reforming the same.</p> <p>The bill alleges that said Joseph Stiles, deceased, in and by his last will and testament, amongst other things, devised and bequeathed a certain house and lots at Montgomery, to his executors to be held and used and appropriated as a place of public worship. That Benjamin E. Stiles, and defendant William H. Stiles, were appointed executors.</p> <p>That “there being but one person residing at and in the vicinity of Montgomery, and no means or inducement to maintain and support a place of public worship, and the premises being in a dilapidated condition, and yielding no profit, in proceedings in equity instituted in Chatham Superior Court in 1853, a judgment and decree was made, authorizing said executors to sell the said premises, reserving a suitable lot for public worship, and to invest the proceeds in some productive stock, or in such manner as they may deem most advantageous to enable them to carry out the objects of the testator.”</p> <p>That complainants, Newell, and Joseph Bancroft, became the purchasers of the property at private sale, from the executors, for the sum of two thousand dollars.</p> <p>That during the negotiations for said property, which were had with Benjamin E. Stiles one of the- executors, who has since died, it Avas the agreement and understanding of the parties that upon the payment of $500 in cash, the balance, if secured by mortgage and the interest paid annually, could stand over for years and he paid at convenience, as the proceeds of the sale Avas for the purpose of investment, in order to carry out at some future period the benevolent objects of the testator.</p> <p>The bill further charges, that five hundred dollars being paid in cash, the parties Avent before the defendant, Avho Avas an attorney at law, to prepare and execute the notes and mortgage for the balance. That the notes were, by accident, mistake, or misconception of the agreement of the parties, draAvn payable one day after date, and the mortgage to secure the same executed accordingly. That defendant is noAV proceeding to foreclose said mortgages, notAvithstanding the interest has been paid punctually, and the funds are not Avauted to accomplish the wishes of the testator. The-bill prays for an injunction anda reform of the instrument.</p> <p>The ansAver admits the charges of the bill as to the will of Joseph Stiles; the decree of chancery authorizing the sale and the purchase as therein stated; but denies that there was any accident, mistake or misconception in executing the notes and mortgage. That there Avas no specific agreement or understanding, as to any definite period of indulgence ; that if the interest was paid up annually and promptly, the collection Avas not likely to be pressed for some time. The answer further states, that complainants have failed to pay said interest for íavo years, although it has been demanded. That one of the purchasers and mortgagors is dead, and the property has been sold and is uoav in the possession of third, persons. • The defendant insists upon his right to foreclose, and collect the notes, and that plaintiff’s bill should be dismissed.</p> <p>Upon the bill and answer and after argument had, Judge Fleming refused the injunction and dismissed the bill.</p> <p>Whereupon counsel for complainants excepted and assigns error.</p>

In Equity, in Baker Superior Court, Decision by Judge Perkins, May Term, 1855. This case was pending in the Superior Court of Baker county, and came up for trial on a demurrer filed at May Term, 1855, of that Court.

In Equity, in Decatur Superior Court.' Before Altjsn, Judge. May Term, 1356. This was a bill filed by Caleb H. Blood against Elijah Johnson, James E. Martin, and others.

Claim, in Sumter Superior Court. Tried before Judge Allen. March Term, 1856. This was a motion to have entered on the minutes of the Court, nunc pro tunc as of November Term, 1846, an order dismissing the levy in this case; which order it was alleged was obtained at said Term of the Court, and for some cause was not entered upon the minutes. The motion was resisted.

<p>[1.] The acceptor of a bill of exchange, and [a drawer, residing in different counties, cannot under the Constitution be sued in the same action; but if bills of exchange were_held to be promissory notes, then the suit should be brought in the county of the acceptor’s residence, who stands in the place . of the .maker.</p> <p>[2.] On contracts made in one State, to be performed in another, if they bear interest, the law of the State where they are to be performed governs the rate of interest to be paid.</p>

Ca. sa. in Sumpter Superior Court Before Allen, Judge October Term, 1856. The facts of this case are these — William A. Rawson brought an. action of assumpsit to February Term, 1855, of Sumpter Superior Court, against Adolphus G. Elam as principal and Paschal H. Wooten and Solomon Harrell, as securities, on a joint and several promissory note, payable to W. D. Cobb & Co., and transferred to plaintiff.

Ejectment, in Baker Superior Court. Tried before Judge Allen, at November Term, 1856. This was an action of ejectment by Kedar Powell against Roger Q. Dickerson, for the recovery of two lots of land, numbers 278 and 279, in Baker county. Plaintiff introduced in evidence a grant from the State and a regular chain of title of both lots, down to Joseph B. Shores. A mortgage from Shores to himself, dated the first August, 1840.

<p>[1.] Under the Act of 1856 to simplify the method of carrying cases to the Supreme Court, the certificate of the Judge should contain a mandate to the Clerk to make out certify and transmit to this Court a complete copy of the record; otherwise it is not a writ of error in terms of that statute.</p> <p>[2.] The defendant in a criminal case, is entitled to appear and demand his trial and have said demand put upon the minutes, notwithstanding the forfeiture of his bond for non-appearance, provided there be a jury in the box qualified to try the cause when the demand is made.</p>

In Equity, from Lee Superior Court. Decision by Judge Allen, at chambers, 23d October 1856. This was a bill filed by William J. Tillman administrator of the estate of Daniel Tillman deceased, against the creditors of said estate to marshal assets and for an injunction. The bill alleges that Daniel Tillman departed this life intestate in the year 1852, leaving a. considerable estate, consisting principally of notes, .'accounts, and judgments.

Scire facias on bond, in Sumter Superior Court. Before Allen, Judge, October Term, 1856.

In Equity, in Sumter Superior Court. Decision by Judge Allen, October Term 1856. Motion to dismiss the defendant's pica, and take the bill pro confesso, upon the following grounds: 1st. Because defendant's plea is not signed by counsel nor .sworn to. , 2d. Because the matter set up in the plea had already bben passed upon and decided upon the demurrer to the hill. The Court sustained the motion, dismissed the plea and ordered the bill to be taken pro confesso.

<p>If A employs B to work for him, hy the year, at stipulated wages, and the contract is broken by A, B has one of throe remedies, namely, to wait till ¿he expiration of the time and sue for the whole amount, bring a quantum meruit for the timo he worked, or bring his action, at on.ee, for damages for a breach of the contract.</p>

<p>Illegality and motion to set aside judgment, in Sumter Superior Court. Decision by Judge Allen, at October Term 1856.</p> <p>This was a motion by plaintiff’ in error, in the Court below, to set aside two judgments rendered against him on the appeal, on the grounds:</p> <p>1st. Because the appeal docket was taken up and verdicts given in those cases in which the defendants, by themselves or counsel, would not slate that they had good and substantial grounds of defence; and any cause was continued when defendant or his counsel made said statement; which mode of proceeding and calling the docket was irregular, and virtually denied to defendant the right of striking the jury; and cases were thus continued which should not have been.</p> <p>2d. Because the jury thus constituted were instructed by the Court, in the first case submitted, to retire, and that they might decide to assess a per cent, for damages in all cases in which they should find verdicts, and, thus instructed, the jury assessed a general per cent, for all tim cases submitted to them and did not consider each case separately, nor did they retire in these cases.</p> <p>Upon hearing argument the Court dismissed the motion and refused to set aside the judgment, and counsel excepted and assigns error.</p>

In Equity, in Dougherty Superior Court. Tried beforo Judge Allen, June 1856. This was a bill filed by Mildred F. A. Royston, widow and administratrix with the will annexed of George D. Royston, deceased, against Cyrus A. Royston, Edward J. Swain find-.

Mandamus, In Lee Superior Court. Tried before Judge Axxen, October Term, 1856. Philip P. Monroe applied to the Judge of the Superior Court for a mandamus against the Justices of the Inferior Court of Lee county, to compel them to sign and certify the exceptions tendered by him to a decision made by said Inferior Court.

In Equity, in Dougherty Superior Court. Decision by Judge Powers, December Term, 1856. Motion to dissolve injunction. A motion had been made at a former hearing of this case, upon the coming in of the answer, to dissolve the injunction, which motion was refused upon the ground of the insufficiency of the answer, and that the same did not swear off the equity of the bill, and which decision had been affirmed by the Supreme Court, at a previous term.

<p>Case. — In Dougherty Superior Court. Decision by Judge Powers, December 1856.</p> <p>Motion to dismiss plaintiff’s case for failing to. answer interrogatories.</p> <p>Plaintiff’s'counsel resisted the motion, on the following grounds:</p> <p>1st. Because the interrogatories themselves were not pertinent.</p> <p>2d. Because the same if answered affirmatively could not materially aid defendant’s defence.</p> <p>3d. Because the interrogatories and order of the Court- requiring defendant to answer, were not taken out or granted in conformity to the statutes in such cases made and provided.</p> <p>4th. Because it did not appear to the Court allowing said interrogatories, either by the oath of the party or otherwise, that the answers would be material evidence in the cause, or that the interrogatories were pertinent and such as the plaintiff would be compelled to answer upon a bill of discovery in chancery.</p> <p>The Court overruled the objections and dismissed plaintiff’s action for failure on his part to answer the interrogatories.</p> <p>Plaintiff excepted to this decision.</p>

In Equity, in Calhoun Superior Court. Tried before Judge Allen, November Term, 1856.

In Equity, in Calhoun Superior Court. Tried before Judge Powers, November Term, 1856. This bill was filed by Solomon G. Beckham, complainant against Elizur Newton defendant. The complainant alleges that on the-day of-18 — , he purchased lot of land No. 229, in the 4th district of Calhoun county, from the heirs at law of Burwell Russell, for valuable consideration.

<p>[1.] Justices of the Peace are not bound to give the law of a case on trial before a jury in their Courts in charge.</p> <p>[2.] Juries in Justices’ Courts are bound to render verdicts according to the rules of law and equity, applicable to the case before them, and if they violate these, their verdicts may be set aside.</p>

Complaint on Note, in Dougherty Superior Court. Before Powers, Judge, December Term, 1856. In 1850, James Bond, the defendant below, employed B. K. & J. B. Hines, attorneys at law - in the city of Macon, Georgia, to undertake in their professional capacity, the recovery of certain lands in Cherokee, Georgia, which it was alleged had been fraudulently sold by Wm. F. Bond.

Assumpsit, from Dougherty Superior Court. Decision by Judge Allen, June Term, 1856. Upon the call of this case for trial in the Court below, defendant’s counsel moved that it be entered settled, upon the ground of payment puis darrien continuance, by his co-defendant Andrew Y. Hampton.

In Equity, in Dougherty Superior Court. Decision by Judge Powers, December Term, 1856. These two cases involving the same questions, under the same will, were heard together. Andrew Hampton, of Laurens county, died in the year 18 — , leaving the following last will and testament, viz.: Georgia. I, Andrew Hampton, of the county of Laurens County.

Petition for mandamus, in Dougherty Superior Court. Before Judge Allen, June Term, 1859.

<p>In Equity, in Dougherty Superior Court. . Tried Before Judge Allen, June, 1856.</p> <p>The bill was filed by William H. Young & Co., complainants, against Behn & Foster, partners, Benjamin O. Keaton, George W. Collier, Paul E. Tarver, John A. Davis and Andrew Y. Hampton, defendants, and alleges that at April Term, 1853, of Baker Superior Court, said Behn & Foster recovered judgment against said Andrew Y. Hampton for $2,423.73, besides interest and cost; that upon the appeal at November Term, 1854, a judgment for said sum and $302.96, damages for a frivolous appeal was recovered, upon which a fi. fa. issued.</p> <p>That subsequent to this judgment of Behn & Foster, said Hampton, mortgaged seventeen negroes to said Benjamin O. Keaton, to secure a debt due to him of $10,597.51. He afterwards mortgaged to said Keaton five other negroes to secure a debt due to him of $2,263.44. He still later mortgaged to George W. Collier eight negroes to secure a debt due to him of $3,990.00, and afterwards, on the 26th may, 1854, said Hampton mortgaged to complainants six negroes to secure a debt due to them of $3,521.25.</p> <p>At the subsequent terms of the Superior Court of Dougherty county, in May and November, 1854, a large number of judgments were obtained against said Hampton, which, with the mortgages aforesaid, are more than sufficient to exhaust and consume his entire property and estate. That under the fi. fas. which have issued upon said judgements, all the property of skid Hampton, as well that included in said mortgages, as all other, was levied’on by the Sheriff of said county, and on the first Tuesday in February, 1855, all said property, except¿that claimed by Mrs. Westfall and by the children of said Hampton, was sold by- the Sheriff, by the consent and agreement of all the creditors, that the proceeds should be applied according to their respective rights and priorities of their liens, to be afterwards determined.</p> <p>The negroes embraced in Keaton’s mortgages sold for more than would satisfy his demands. The negroes embraced in Collier’s mortgage did not sell for an amount sufficient to satisfy his debt, but there were.some negroes in said mortgage claimed by Mrs. Westfall, which were not sold, and which, if subject to said debt, will discharge the same arid leave a balance of about ¡$1800, to be applied to other debts. The negroes embraced in complainants’ mortgage and which were sold, failed by two hundred dollars to bring enough to pay-their debt. But the negro woman unsold and claimed by Mrs. Westfall, and included in complainants’ mortgage, if made liable, will fully satisfy their claim and leave a balance of several hundred dollars over. That after the sale, Behn & Foster gave notice to the Sheriff that they claimed, out of the proceeds of said sale, an amount sufficient to pay off their judgment, and afterwards the Court held that said judgment took precedence of and was entitled to the money over the mortgages.</p> <p>The bill further alleges that complainants’ mortgage was junior in chite to all the others; that Hampton is hopelessly insolvent; and that the’property embraced in their mortgage or its proceeds, is the only security-lien or fund, which they have and to which they can look for the payment of their demand. The bill further charges, that|subsequently to the rendition of the judgment of Behn & Foster and the execution of the mortgages, Hampton conveyed several valuable lots of land, in the city of Albany, to different persons, some for valuable consideration and others purely voluntary; that the claim of Mrs. Westfall to the negroes aforesaid is unfounded and will not be sustained; and that the property thus conveyed is far more than sufficient, when sold, to pay off the jtidgment of Behn & Foster; and that they should proceed with their judgment against the same, and leave the funds arising from the negroes contained in complainants’ mortgage to be applied to .their debt; and prays that said Behn & Foster be enjoined from claiming or receiving the proceeds or funds now in the hands of the Sheriff, in payment of their judgment.</p> <p>Upon the filing of the bill, Judge Allen granted a rule nisi ¿gainst Behn & Foster to show cause why said injunction should not be granted.</p> <p>Defendants showed for cause :</p> <p>1st. Because the deeds from Andrew Y. Hampton to Paul E. Tarver and J. A. Davis were not attached as exhibits to complainants’ bill; and it appeared by the deed to Tarver, which defendants produced in Court, that it was older than complainants’ mortgage.</p> <p>2d. Because Behn & Foster here in Court, offered to assign to complainants their judgment against Hampton, upon their paying to them the amount due thereon.</p> <p>3d. Because the facts set forth in complainants’ bill showed no equity, and were not sufficient to authorize the Court, to interfere and injoin them from the enforcement of the legal lien of their judgment.</p> <p>4th. Because the bill was sworn to before a Judge of Probate in the State of Florida, an officer not authorized by the laws of this State to administer an oath.</p> <p>The presiding Judge held the showing insufficient, and granted the injunction.</p> <p>Whereupon defendants’ counsel excepted and assigned error thereon.</p>

Action for recovery of land, in Chattahoochee Superior Court. Tried before Judge Kiddoo, November Term, 1856 Rule nisi and motion for new trial. At the November Term, 1855, of Chattahoochee Superior Court, there was a verdict in this case for plaintiff; after which (at the same term of the Court, defendant’s counsel moved for a rule nisi, calling upon plaintiff to show cause as soon as counsel could be heard, why said verdict should not be set aside and a new trial granted.

Indictment in Early Superior Court Tried before Judge Kiddoo, September Term, 1856. The defendant, John H. Allen, was indicted in Early Superior Court for resisting the service of a bail process, in the hands of a constable, issued by a Justice of the Peace. Dennis McLendon, the constable resisted, testified on the part of the State, to the fact of defendant’s resisting the process ; of his having a gun, threatening to shoot, and his failure to arrest him.

<p>[1.] No error in the ruling of the Court, that the prisoner should first answer, whether he was ready for trial.</p> <p>[2.] The questions prescribed by the statute to try the competency of jurors to try a particular case, are the only questions proper to be asked them, but those questions may be so varied in form as to enable jurors properly to understand them.</p> <p>[3.] On indictments for assault with intent to murder, in order to enable the jury to judge of the intent, the effects of the blow inflicted may be given in evidence.</p> <p>[4.] It is too late to object to the reading to the jury the evidence of a witness taken on a criminal trial, after it has been read without objection.</p> <p>[5.] If it does.not appear that/a question was proposed to a witness and refused by the Court, it cannot be heard on a motion for a new trial in this Court.</p> <p>[6.] The charge of the Court to the jury, must be considered in reference to the evidence given on the trial, and if the evidence justify it, the charge will be sustained.</p> <p>Two persons charged in one indictment with assault with intent to murder, both using weapons which may produce death, it is no error’for the Court to charge the jury, on the trial of one of them, that if the prisoner was present, participating in the affray and attempting to strike, or inflict a blow, whether he struck a blow or not, he w as equally guilty with the person who struck the blow.</p> <p>[7.] Verdict of the jury finding prisoner guilty, where two persons embraced in the same indictment are charged with assault with intent to murder, and the circumstances of the case as proved on the trial, show that if death had ensued, the killing would have been murder, will be supported as warranted by the evidence.</p> <p>[8.] A witness is not entitled to a continuance on the ground of surprise, who neglects to procure witnesses whom he knows to have been present at the time the act was committed for which he was indicted.</p>

‘ Murder, in Webster Superior Court. Tried before Judge Kiddoo, October Term, 1856. James Pines was indicted for thé murder of his wife, Sárah Ann Pines, alleged to have been committed on the 27th day of August, 1856. The case being called, the presiding Judge required the prisoner to announce whether he was ready for trial, before calling on the State to announce, prisoner’s counsel objected, and this constitutes the first ground of exception.

Action on Account for Negro Hire, in Randolph Superior Court. Tried before Judge Kiddoo, December 1856. This was an action brought by James G. Morris, pi aintiff below, against Jacob Johnson defendant below, for the recovery of ninety dollars, alleged to be due for the hire of a negro in the year 1852.

Garnishment, in Stewart Superior Court Tried before Judge Kiddoo, October Term, 1856. Francis Rosseau was served with a summons of garnishment issued in a case of attachment sued out by James N, Turner, against Wm. R. Rosseau. He filed his answer denying that he had any of the effects of the absconding debtor in his hands, or that he was indebted to him.

Assumpsit, in Stewart Superior Court. Tried before Judge Kiddoo, October Term, 1856.

In Equity, in Randolph Superior Court. Tried before Judge Allen, December, 1856. This was a bill filed by Thomas D. Frith against James Dorsett, administrator of William D. Siler, for injunction account, &c. The bill alleges that William D. Siler, of Jasper county, died about twenty years ago, intestate, and leaving as his heirs at law, his widow Maria Siler and three sons, Lorenzo, about nine years old, Eldrige, about seven years old, and William, about five years old.

In Equity, in Muscogee Superior' Court. Decision by Judge Worrell, at November Term, 1856. Motion to dissolve injunction and dismiss the bill. This bill was filed by John B. Baird and others, stockholders in the Coweta Falls Manufacturing Company, against R. J. Moses, William A. Redd and Henry H. Epping trustees, and others, praying for an injunction to restrain said trustees from selling certain property belonging to said company.

In Equity, in Randolph Superior Court. Tried before Kiddoo, Judge, December, 1856. The bill alleges that James Hammett, the defendant, commenced his action of debt, on a bond for titles, against complainant, returnable to April Term, 1847. At March Term, 1849, during the pendency of said suit, the parties compromised the same, the complainant agreeing to pay the sum of two hundred and fifty dollars and cost of suit, and that the said action was to be dismissed.

Assumpsit, in Muscogee Superior Court. Tried before Judge Worrell at December Term, 1855. This was an action of assumpsit brought by William Dougherty against John Bethune, assignee of the Chattahoochee Railroad and Banking Company of Georgia, to recover seven hundred and sixty dollars of the bills of that bank. The declaration set out and described the bills and averred that plaintiff was the owner and holder thereof.

<p>Where the testimony seems to be equally balanced, a single witness deposing on each side, the Court will not grant a new trial, because the verdict is contrary to evidence. It is for the jury alone to decide upon the credibility of the witnesses.</p>

In Equity, in Talbot Superior Court. Tried before Judge Worrell, at April Term, 1856. This bill was filed by James Claxton, John Claxton and others, legatees under the last will and testament of John P. Claxton, deceased, against Polemon L. Weeks and Nancy Weeks, his wife, to recover a legacy claimed to be due to complainants under said will.

Case, ill Bibb Superior Court. Tried before Judge Powers, May Term, Í856. This action was brought by Robert R. Hutchins, against Robert Collins, for the recovery of the value of a negro fellow, Henry.

<p>Debt on statute, from Bibb Superior Court. Tried before Judge Powers, May Term, 1856.</p> <p>This was an action of debt brought by John D. Winn? plaintiff, against the Mayor and Council of the City of Macon, defendant, for the recovery of certain bills of the Monroe Railroad and Banking Company, and of which company the defendant was a stockholder, and, as such, liable, as claimed by plaintiff, for the payment and ultimate redemption of its share or proportion of said bank bills, under the charter of said company.</p> <p>The case came up on the following facts agreed, upon by «counsel representing plaintiff and defendant, viz :</p> <p>That plaintiff read his declaration and the various extracts feom the minutes of the City Council of Macon, from 1833, to 1838 inclusive, and hereto attached, marked 1, 3, 3, 4, 5, and read in connection therewith the charter of the city of Macon as amended up to the year 1839 ; and read also the 4wo acts of the Legislature, one passed 24th December, 1833, and the other 29th December, 1838. It being also agreed that said city charter may be referred to as law, without beiffig copied herewith; plaintiff also read a certified copy of a memorial to the Legislature which accompanied the bill which passed into said law of 1838, and hereto annexed, marked A.</p> <p>It is admitted that, the circulation of the bills of the Monroe Railroad and Banking Company at the time of its failure was, $193,220. That the entire number of shares of said company’s stock was and is five thousand seven hundred and fifteen. That defendant was and is a subscriber for, and owner of 500 of said shares, and that plaintiff’s bills, sued amount to three thousand four hundred and seventy-five dollars.</p> <p>Upon the aforesaid state of facts the parties make the following points, upon which the opinion of the Court is considered as given in the shape of instructions to the jury:</p> <p>1st. Plaintiff contends that the subscribing for said stock was a corporate function and the charter of the city fully authorized it.</p> <p>3d. If not. a corporate function, then the Court is asked do charge that the Legislature especially by the said two Acts of 1833 and 1838, impliedly ratified a prior subscription for stock in a railroad and permitted this subscription.</p> <p>3d. The Court will charge the jury, that if they believe from the evidence that the Legislature, when it passed the .Act of. 1838, authorizing the further loan #200,000, knew that the city of Macon had engaged in internal improvements of this kind, and actually contemplated subscriptions for this stock, and .that said loan was in part authorized foir • this purpose, then it was a legislative sanction, and therefore defendant is bound for the subscription.</p> <p>4th. That in this case, the legislative acts relied on as permitting this subscription, and the making of loans to pay for it, steered clear of any constitutional objection as to delegating power to tax the citizens of the town; said acts only-authorizing the pledge of the corporate property or public-domain of the city.</p> <p>The defendant requests the Court to charge: That,</p> <p>1st. the charter of the city did not authorize the said subscription.</p> <p>2d. There was and is no legislative permission or sanction.'’ of said subscription for said stock.</p> <p>3d. That any such legislative sanction or permission wouH-: be unconstitutional and void.</p> <p> Charge of Judge Powers. </p> <p>The opinion of the Court is adverse to all the positions-assumed in the several requests of plaintiff’s counsel, as being substantially erroneous under the facts and pleadings in this case. This Court is also of the opinion, that the several grounds assumed in the requests of defendant’s counsel, contain sound legal principles as applied to the facts and pleadings in this case, and so rule them as the law of disease. It being the opinion of this Court that the Legislature has not the power to authorize a mere municipal corporations to become owners or speculators in stocks, either of railroads or other stocks, or to engage in and become competitors with her own citizens or others, in any of the business affairs or avocations of life, the same being foreign to the ends and objects of the very existence of a municipal corporation and in conflict with duties as at first established.</p> <p>To which rulings and charge, the plaintiff excepts, and assigns error.</p>

Assumpsit, in Bibb Superior Court. Tried before Judge Allen, at November Term, 1856. Harvey W. Shatv was elected Marshal of the city of Macon for the year 1853, by the qualified voters of said city, and entered upon and discharged the duties of said office until June, when he was dismissed from office by the Mayor and Council of said city on the charges of gambling on Sunday; malpractice in office, and perjury.

Asáumpsit, in Bibb Superior Court. Tried before Judge Powers, May Term, 1856. This was an action by the Merchants Bank of Macon, against the administrators of John Rawls, dec’d., founded on the following receipt. The Bank of Hawkinsville, vs. In Wilkinson Superior Court, William F. Bond. 1841. Principal sum $2,000; due 25th December, 1841. Interest and cost to be added till paid. Protest $3.

Debt, in' Muscogee Superior Court. Decision on demurrer by his Honor Edmund H. Worrell, presiding Judge. November Term, 1856.

<p>[1.] To entitle a party to a continuance on the grounds that a commission to take depositions had not been returned; and that a party plaintiff had not answered interrogatories propounded to him, he must in the first case show due diligence in obtaining a commission and forwarding the interrogatories for execution ; and in the last, that he had complied with the statutes to compel discoveries at law.</p> <p>[2.] The non-production of proof on the part of the plaintiff to support certain demises in the declaration, is not sufficient, of itself, to authorize the striking them from the declaration.</p> <p>[3.] A grant cannot be collaterally impeached and set aside by proof, that it issued through mistake to the wrong person.</p> <p>[4.] Certificates of public officers cannot prove a fact; they can only authenticate papers and records attached to their.offices.</p> <p>[5.] Facts communicated by a client to his attorney during the existence of the relation of attorney and client, cannot be given in evidence; but the attorney may be compelled to answer whether the party he represents be fictitious.</p> <p>[6.] Proof by witnesses that they never knew or heard of a particular person is no proof of the non-existence or death of that person.</p> <p>[7.] Charge of the Court to the jury that “they must find for the plaintiff,” is a strong expression of the opinion of the Court on the facts, and is error.</p>

Complaint on due bill, in Bibb Superior Court. Tried before Judge Allen, November Term,. 1856. , Rule Nisi, and motion for new trial. James Johnson the plaintiff below brought his action against Jacob Skipper for the recovery of a due bill, for seventy-five dollars.

In Equity, in Bibb Superior Court. Decision by Judge Powers, September Term, 1856. Marshalling Securities, and Injunction. This bill was filed by James R. Crawford and Martha J his wife, formerly Martha J. Bell, against Allen Sutton, the security of James Bell, deceased, the late guardian of said Martha, and others, creditors of said Allen Sutton.

Assumpsit, from Bibb Superior Court. Tried before Judge Allen, at November Term, 1856. This was an action by Ruth E. Reid, against Field & Adams,. to recover three thousand five hundred and fifty-five dollars and three cents, the amount alleged to have been paid on the drafts of defendants, drawn on cotton and paid by plaintiff, over and above the proceeds of the cotton forwarded, as per account rendered and annexed.

In Equity, from Crawford Superior Court. Decision by Judge Powers. September Term,- 1856. Motion to, dissolve injunction upon bill and answer.

In Equity from Bibb Superior Court. Tried before Judge Powers, at May Term, 1856. Held: that, it being uncertain whether it covered this case, defendant must prove that the items there pleaded as set-off were insisted on, and evidence offered as to them on said former trial. 5th.

Debt, in Bibb Superior Court Tried before Judge Powers, May Term, 1856. Held: that plaintiff’s counsel should so announce, and if they intended to rely upon fraud on the part of defendant in the manner stated, they should amend the declaration to that effect, and upon failure so to announce and amend, plaintiff could not go for such fraud.

In Equity. Decision by Judge Allen, at November Term, 1856, of Bibb Superior Court. This bill was filed by J. A. & S. S. Virgin, complainants, against Robert Martin, and John F. Lawson, administrator debonis non, of John Martin, deceased, and administrator of Eliza A. Martin.

<p>In a suit in equity against several persons, a demurrer by a part of them, may be heard and determined before the others have been served with the bill.</p>

<p>[1.] Where there are three parties to a case, and the rights and liabilities of each are dependant upon a proper adjustment of the whole litigation, an appeal from a general decree in the case takes up the entire litigation and all the parties to it.</p> <p>[2.] Where an order has been taken already by the complainants’ solicitor setting down the cause for trial at the next term, which is unexcepted to, it is too" late for the defendants’ solicitor to move to dissolve an injunction previously granted, on account of the failure of the complainants to speed their cause.</p> <p>[3.] It is usual to take the statements of counsel made in their place as to the service of amendments, notices, interrogatories &c.; still it is the right of the opposite party to require the fact to he verified, if he see fit to do so.</p>

In Equity, in Muscogee Superior Court. Decision on Demurrer, by Judge Worrill, June Term, 1856. This was a bill filed by Patrick Duffy, the complainant, against Adolphus S. Rutherford, sheriff, and John E. Dawson, defendants.

Complaint, from Taylor Superior Court. Tried before Judge Worrill, October Term, 1856. This was an action brought by Benjamin F. Newsom, plaintiff, against Caleb Lindsey, administrator of Wright Johnson, deceased, to recover an account for medical services rendered the deceased in the year 1853.

Summary Proceeding, for recovery of land, in Muscogee Superior Court. Tried before Judge Worrill, at December Term, 1856. This was a proceeding under Act of 1853-4, to recover by summary remedy, the possession of a house and lot in the City of Columbus. Plaintiff, Murdock, offered in evidence a deed from Frederick Miller to Lewis M. Durr, for the lot in controversy, dated 31st January 1853 ; also a deed from Durr to the plaintiff, dated 16th March 1854.

In Equity, from Harris Superior Court. Decision by Judge Worrill, April Term, 1856. Motion to amend complainants’ bill and to reform marriage settlement.

Trover, in Talbot Superior Court. Tried before Judge Worrill, at September Term, 1856. This was an action of trover, brought by the children of Nancy Childers, deceased, late wife of John Childers, against the said John, for the recovery of a negro woman named Clarissa and her four children, Harriet, Kenah, Solomon and Simeon.

Illegality, from Harris Superior Court. Decision by Judge Worrill, April Term, 1856. The question in this case arose upon the following facts and proceedings: A bill was filed by Walker, defendant and others, against Cook to which he demurred, and the demurrer overruled by the presiding Judge, and upon error to the Supreme Court, the judgment, of the Court below was reversed.

<p>Assumpsit, in Muscogee Superior Court. Decision by Judge Worrill, November Term, 1856.</p> <p>This was an action by Adolphus S. Rutherford, who, at the time of the issuing of the writ, was sheriff of Muscogee county, against Robert E. Dixon, administrator, &c.</p> <p>Before going into the trial, defendants counsel made a motion to dismiss the case, on the ground that the process was not directed to the Coroner of said county, and the sheriffs of the adjoining counties.</p> <p>Plaintiff’s counsel moved to amend so as to insert the words “ and to the sheriffs of the adjoining counties.” The 'Court refused to allow the amendment, and granted the motion dismissing the action, and plaintiffs counsel 'excepted, and assigns error.</p>

Assumpsit, in Marion Superior Court Tried before Judge Worrill, at September Term, 1856. This was an action brought by Conner & Taylor, plaintiffs below, against Vincent T. Hart, defendant below, upon the following instrument: “ Received from Conner & Taylor, of Macon, five hundred dollars as an advance on sundry bales of cotton, to be delivered in their warehouse within thirty days. Macon, 11th January, 1S51.

Trover, in Taylor Superior Court Tried before Judge Worrill, at October Term, 1856. Charles W. Smith died testate about the year 1848, and appointed Levi B. Smith and Joseph Pou, his executors ; Levi B. Smith alone qualified. One of the legatees in said will, Catharine Smith, intermarried with William S. Johnson in the year 1852, and died the following year, leaving-no child surviving her.

Claim, in Bibb Superior Court. Tried before Judge Powers, May Term, 1856. Griffin McDonald, the plaintiff in execution, levied his mortgage fi. fa. upon two billiard tables contained in a mortgage executed to him by W. A. B. Goddard, defendant in said fi, fa., and a claim thereto was interposed by Harvey W. Shaw. It appeared that the property, at the time of the execution of the mortgage, belonged to and was in the possession of the firm of Terrell & Goddard.

Slander. Decision on demurrer by Judge Powers. Worth Superior Court, October Term, 1856. The declaration in this case alleged that defendant called the plaintiff “a God damned rogue, and I can prove it.” Defendant demurred to the declaration on the ground that the words were not actionable. The Court sustained the demurrer and non-suited the plaintiff. To which ^decision plaintiff excepted.

Writ of Error, coram nobis, in Muscogee Superior Court] Tried before Judge Worrill, May Term, 1856. Ejectment was brought by John Goodtitle upon the several demises of B. Brown, Benjamin Bryan and Moses Bryan, against Richard Badtitle, casual ejector, and Albright Averett, tenant in possession, for the recovery of a lot of land in said county. The case was tried at the May Term, 1854, of said Superior Court, and verdict for the defendant.

In Equity, in Taylor Superior Court. Tried before Judge Worrill, at October Term, 1856. This was a bill filed by John Hudson, assignee of William Smith, against Henry N. Duke, to compel the specific performance of an agreement for the sale and conveyance of a lot of land.

In Equity, in Dougherty Superior Court. Before Allen, Judge, June Term, 1856.

<p>Action to recover Lands in Crawford Superior Court. Tried before Judge Worrill, at October Term, 1856.</p> <p>Motion to vacate and set aside judgment.</p> <p>This was an action brought by Little against Ingram and Scarborough, in the form prescribed by the Act of 1847, to recover a lot of land in Crawford county, and mesne profits. There was no process annexed to the original petition, nor copy petition or process served.</p> <p>But upon the petition was the following acknowledgment of service, to-wit:</p> <p>“We acknowledge due and legal service of the within writ, and waive the necessity of copy and service thereof by the sheriff. June 29th, 1849.</p> <p>H. N. SCARBOROUGH,</p> <p>BRTANT INGRAM.</p> <p>By T. W. MONTFORT, Att’y.”</p> <p>Defendants pleaded the general issue and the statute of limitations.</p> <p>The jury found for the plaintiff; the land and six hundred dollars for mesne profits; and at the March Term, 1853, judgment was entered up against the defendants.</p> <p>At the same Term of the Court, defendants counsel gave notice to plaintiff, that he would, as soon as counsel could be heard, move the Court to vacate and set aside said judgment, on the grounds:</p> <p>1st. Because no process is annexed to the declaration on which the judgment is founded and entered up in this case,</p> <p>2d. Because there is no process annexed to the writ, or waiver of process by defendants or either of them.</p> <p>On the hearing of the motion, the counsel for Little offered the testimony of Scarborough, the defendant in the case. To this testimony counsel on the other side objected on the following grounds :</p> <p>1st. That he was a co-defendant in the case.</p> <p>2d. That he was a party to the record.</p> <p>3d. That the testimony was as to the contents of a writing.</p> <p>4th. That the interrogatories, to which the testimony was in answer, were leading.</p> <p>The Court sustained the objection, so far as to rule out all of the testimony except the following parts : “ I did acknowledge service of a writ in the above stated case. The acknowledgment was made at Knoxville, I think it was in the spring of 1846. The acknowledgment was written by James J. Ray. I supposed that it was legal and obviated the necessity of service by the sheriff”</p> <p>“ I made the acknowledgment, because I had no interest in the suit, and supposed it would relieve me from service by an officer of Court, I had no defence to make, and intended to waive every thing which” (could) “ be a defence.”</p> <p>The counsel for Little then offered the testimony of James J. Ray. This testimony was objected to by the counsel on the other side, on the following grounds r</p> <p>1st That there was higher evidence of who was clerk, than the statement of the witness.</p> <p>2d. That being clerk, the witness was interested in the event of the suit; that if the suit failed for want of a process, the clerk would be liable to Little in damages.</p> <p>The objection was overruled, and the plaintiffs in error, excepted.</p> <p>The testimony was as follows: “ At the commencement of the suit, I was clerk of the Superior Court of Crawford county. Before the commencement of the suit, Ewell Webb, one of the defendant’s, in anticipation of the action, requested me that, if it should be commenced, I would let the declaration lie in my office, and give Mr. Murdock or himself notice, that they might waive every thing that the law allowed them to do, and save costs, as the case had already cost them a great deal. To this request I acceded, and when the declaration came into my office, I gave Mr. Murdock notice, who with Mr. Hunter, attorney at law, came into my office, and after looking at the declaration, Col. Hunter, as well as the said Murdock, requested me to do nothing with it until notice could be given to Scarborough and Ingram, who would waive every thing, and acknowledge service. Afterwards Henry N. Scarborough, the tenant in possession, called to acknowledge service and desired to waive everything that the Court permitted. I wrote the acknowlment of service and waiver, and it was my intention (as I thought I had done) to waive everything, to-wit: process, copy, declaration, copy process by the clerk, and service by the sheriff, and thought that the entry I had made on the declaration effected this, until my attention was called to it upon a motion being made to vacate the judgment”</p> <p>The counsel for Little then offered the testimony of T. W. Montfort, and to that testimony, the counsel on the other side objected, on the following grounds:</p> <p>1st That the witness acquired a knowledge of the facts to which his testimony related, while he was acting as attorney for the defendant’s (below,) and by reason of the relationship of attorney and client</p> <p>2d. That the “writ itself” was the highest evidence of the character of the acknowledgment of service and of what the witness did.</p> <p>3d. That the testimony gave the contents of a writing.</p> <p>4th. That the testimony was in answer to interrogatories that were leading.</p> <p>5th. That the testimony consisted in what would, if admitted as testimony, be a breach of professional confidence.</p> <p>The Court overruled the objection and the counsel for the plaintiffs in error excepted.</p> <p>The testimony — preceded by a protest on the part of the witness, that he ought not to be compelled to testify because, as he said, all the knowledge he had in relation to the case, was “derived from, by means of,and during the time he was acting as the attorney of said defendants,”, whose attorney he still was — was as follows :</p> <p>“I did acknowledge service for Bryant Ingram in the above stated case. I done so to the best of my recollection, at the instance and request of said Ingram.” “I intended to waive every thing that was necessary to be waived, to prevent the clerk from having to make out the necessary process and writ, and having the same served by the sheriff on Ingram.” “I did not, at the time I signed said waiver, know whether the waiver of original process was embraced therein, or that it was even necessary to be embraced. I do not know that I ever read said waiver. I signed it, believing it all right”</p> <p>After argument on the motion, the Court directed the clerk to amend the acknowledgment of service on the declaration, by inserting therein the waiver of “ original process,” and then dismissed the motion. To all of which the plaintiffs in error excepted.</p>

In Equity, in Bibb Superior Court, Tried before Judge Allen, November Term, 1856. Spencer Riley filed his bill on the equity side of Bibb Superior Court, against William B. Parker, for iniunction, relief and specific performance. The bill alleges, in substance, that Riley was employed in the year 1842, by Parker, as agent to purchase grants from the State to reverted lots.

Assumpsit for Rent, in Bibb Superior Court. Tried before Judge Allen, November Term, 1856. This was an action for the recovery of rent, brought by Edward L. Strohecker, and Robert F. Baldwin as executor of Joseph A. White, against Moses D. Barnes.

In Equity, in Muscogee Superior Court. Decision upon demurrer, by Judge Worrill, May Term, 1856. The bill in this case was filed by Allen B. Drummond and others, heirs at law of Robert Drummond an idiot, late of the county of Russell and State of Alabama, deceased, against Robert S. Hardaway of the county of Muscogee and State of Georgia.

<p>In Equity, in Muscogee Superior Court. Before Judge Wohrill, at Chambers, 2d January, 1857.</p> <p>Motion to dissolve injunction upon the coming in of the answer.</p> <p>This bill was filed by Paul J. Semmes, George W. Winter, Seaborn Jones, John L. Mustian, Richard Patten, and James W. Warren, against the Coweta Falls Manufacturing Company, and Raphael J. Moses, William A. Redd, and Henry H. Epping, Trustees, to enjoin and restrain said Trustees from selling certain property.</p> <p>The bill alleges, that said Company on-day of May, 1852, executed a certain deed of Trust, to said Moses, Redd, and Epping, by which it conveyed to them as Trustees for securing the payment of certain bonds mentioned in said deed, a certain lot in the city of Columbus, known as lot No. 1, in the Water Lot Company survey, with the improvements thereon; and lot No. 191, in the plan of said city, with the improvements on the same, and a large quantity of machinery and tools.</p> <p>The bill further states that the bonds made by said company and now remaining due, amount to about $10,'600, besides interest</p> <p>That Farish Carter recovered judgment against said company for the sum of $4,834 99 principal, $643 99 interest; and on the 2d July 1855, execution was issued on said judgment arid levied on the property contained in said Trust Deed. At the sale by the sheriff on the 1st Tuesday in November, 1855, lot No. 1, was sold and bid off by complainants for the sum of eight thousand six hundred dollars.</p> <p>That this amount being more than sufficient to satisfy Carter’s execution, no other property was sold by the Sheriff. That at the sale, public notice was given of the Deed of Trust and the bonds, and that the property levied on was sold subject to the same.</p> <p>That said are Trustee sabout to sell under and by virtue of said Deed of Trust, lot No. 1, thus purchased by complainants at sheriff sale, in order to pay off and satisfy said bonds; and the bill claimed and insisted that said Trustees should first sell the other and remaining property contained in said deed, before coming on that portion bought by complainants, and prayed for an injunction, &c.</p> <p>Defendants answered the bill, admitted most of its allegations, but insisted that the lot purchased by complainants was sold subject to the bonds and in consequence thereof, was bought at and for a sum far below what it would otherwise have brought, and that in justice and equity, the same was subject to be first sold to satisfy said bonds.</p> <p>Upon the coming in of the answer, defendants moved to dissolve the injunction, on the ground that the equity of the bill was denied and sworn off by the answer.</p> <p>The Judge refused the motion and held up the injunction, and defendants by their counsel excepted.</p>

<p>In Equity, in Bibb Superior Court. Decision on demurrer, by Judge Powers, at May Term, 1856.</p> <p>Bill for direction, injunction and relief, filed by Edward L. Strohecker, administrator of Alexander Scott, deceased, against Beers & Bogart, and numerous other defendants, creditors of said deceased.</p> <p>The bill alleges that complainant’s intestate, late of the city of Macon, departed this life some years ago, leaving his affairs greatly complicated, and his estate much embarrassed and indebted.</p> <p>That at the time of his death he had an interest as lessee in the Lanier House, in the city of Macon, with William Dibble; said hotel being conducted under the name of Scott & Dibble, which business remains unsettled; he was also the ostensible individual owner and proprietor of the Bar and Billiard rooms attached to said Lanier House, and from which deceased in his life time realized considerable profits, and complainant has since intestate’s death collected from the accounts due said Bar and Billiard room and from the sale of articles and property belonging thereto, large sums of money; but one Charles C. Usher claims to have been a partner in said business and entitled to one-third of the profits thereof, and has a bill now pending against complainant for his share of the profits and assets of said alleged partnership. That Beers & Bogart, and other creditors, having large claims against deceased, have brought suits against complainant as administrator, which are now pending on the appeal in the Superior Court of Bibb county; and the bill contains a list of the names of some thirty or forty other creditors, whose claims and demands are not yet sued on.</p> <p>That complainant has collected about $4,150, and there are assets and accounts remaining uncollected, amounting to about $2,000, but most of which are desperate and doubtful.</p> <p>That the debts against said estate which have come to complainants knowledge, amount to $11,485 66, of which $7,372 32, consist of notes and $4,112 24, on accounts. That the amount in suits,pending against him is about $6,000, of which $3,71‘2 44, are on accounts.</p> <p>That said Usher has filed his bill, enjoining a suit at law, by complainant against him, and in which bill he sets up his claim as a partner in said Bar and Billiard concern, to one-third of the net profits, which he alleges- amounts to $2,896 50, and that a large amount of the money received and collected by complainant, has been from the business of said Bar and Billiard room, and he claims that partnership assets shall be first applied to partnership debts and liabilities; and a large portion of the debts against said deceased are on account of this business.</p> <p>That complainant is at a loss what debts to pay and the order in which they are entitled to be discharged. He prays for direction — that the creditors may be called in and their demands audited — the assets of the estate marshalled, and _ applied and paid out under and by the order and direction of the Court; and that the suits pending at law be enjoined.</p> <p>There was a demurrer to this bill on the grounds :</p> <p>1st That there is no equity in the bill.</p> <p>2d. That the injunction should not be granted, because there has been no general decree against complainant, in favor of the creditors of said deceased, under which defendants can come in and prefer their claims against said estate.</p> <p>3d. That said bill and injunction cannot be sustained until defendants have obtained judgments at law, and it does not appear from the bill that such has been done.</p> <p>4th. That the injunction cannot be sustained as to the debts on account of the Bar and Billiard business.</p> <p>5th. That the bill shows that complainant has used no diligence and is therefore not entitled to relief in equity.</p> <p>6th. That he has not availed himself of his legal defences at common law.</p> <p>After argument, on said demurrer, the Court overruled the same, on all and each of said grounds, and ordered and adjudged that said bill do proceed, and that the injunction be retained; to which decision defendants excepted.</p>

Trover, in Bibb Superior Court. Tried before Judge Powers, May Term, 1856.

In Equity, in Bibb Superior Court. Decision by Judge Allen, November, 1856. This bill was filed by Robert Cunningham,’administrator de bonis non, of James Cunningham, deceased, against John F. Lawson, administrator of John Martin deceased, and Elias H. Tillinghast, administrator of Robert Cunningham, deceased.

Foreclosure of mortgage, in Equity, in Stewart Superior Court Tried before Judge Kiddoo, at October Term, 1856. This hill was filed by May & Stokes against William A Rawson, James A. Thornton and Thomas Thornton.

<p>[1.] When a rule nisi for a new trial is submitted to the Judge, by consent that he shall return his decision to the cleric, within twenty days, to be entered as the judgment of the Court, as of the Term when the motion was made : it is good notwithstanding it is not received until after the twenty days have expired.</p> <p>[2.] A new trial will be granted when the verdict is strongly and decidedly against evidence, especially if there is reason to apprehend that the jury may have failed to make a proper application of the rule of law regulating the ease to the testimony.</p>

Covenant on warranty, from Marion Superior Court Tried before Judge Worrill, September Term, 1856. This was an action brought by William C. Wright, (who sues for the use of Zachriah Boothe) plaintiff, against Sea-born J. Martin and William B. Butt, defendants, for damages, for the breach of a covenant of warranty contained in defendant’s deed of conveyance; plaintiff having been evicted from the premises by title paramount.

Assumpsit, in Muscogee Superior Court Decision by Judge Worrill, at November Term, 1856. This was an action of assumpsit, brought by John V. Price, against Wiley Williams, administrator of Joseph Sturgis, deceased, on a due bill or promissory note made by the deceased, in his lifetime.

Debt, in Bibb Superior Court. Tried before Judge Powers, at May Term, 1856. This was an action of debt brought by John S. Hoge, as the owner and holder of two hundred and fifty-four dollars of the bills of the Commercial Bank of Macon, against the Directors of said Bank.

<p>In equity, in Marion Superior Court. Tried before Judge Worrill at March Term, 1856.</p> <p>This was a bill filed by Thaddeus Oliver, administrator of Ibnijah Joyce, deceased, against Johnson Springer, executor of Jesse Cherry, deceased, for an account, &c.</p> <p>The main question in the case, was as to the liability of defendant for interest on the amount admitted by his answer to be in his hands, and which he claimed to hold free of interest from 1843 up to 1849.</p> <p>Jesse Cherry, defendant’s testator, died in the county of Jasper, in the year 1841, leaving a considerable estate, and appointed Johnson Springer his executor, who duly qualified, and assumed the execution of his will.</p> <p>By the last clause of said will, testator bequeathed as follows, to-wit:</p> <p>“ Lastly I appoint my worthy friend, Johnson Springer, my executor of this my last will and testament, and my will and desire is that my executor shall sell the balance of my estate, that I have not given away, and when the money is collected it shall be divided with my two sisters children, Elizabeth Joyce and Martha Lilly, to-wit: Ibnijah Joyce, Daniel Joyce, John Joyce, Elizabeth Harwell, Sarah Cough-ton and Naomi Lilly.”</p> <p>In the year 1845, said Ibnijah Joyce, one of said legatee?, died intestate in the State'of Illinois, without having received from the executor his' legacy. Thaddeus Oliver, the complainant, took out letters of administration on his estate in Georgia, and filed this bill against the executor for an account, and claiming one-sixth part of the residuary legacy— some of the legatees named in the bequest having died before testator, and their shares having descended to the survivors.</p> <p>Defendant in his answer admits that the residuum of the estate bequeathed in the last clause of testator’s will, amounts-to the sum of $12,578 46, and the share of plaintiff’s intestate amounts to the sum of $2,096 07. That said sum came to defendant’s hands on the 25th December, 1842, and was deposited in the Branch of the Bank of the State, in the town of Eatonton, and in 1843, he had a notice published in the Southern Recorder, a newspaper published in Milledgeville, Geo., (and in said notice, requested the Tuscaloosa Monitor to copy .the same three times), to Ibnijah Joyce and other legatees, to come forward and receive their legacies. That neither the said Ibnijah, nor any one for him, called for or demanded said legacy, and that the same remained unproductive and' without bearing interest until the. year 1849; and during this period said defendant claimed and insisted that he was not liable to account to defendant for interest on said sum. It also appeared that the defendant in his annual return for 1845, stated that he had deposited “the money of the estate” in the branch bank aforesaid, and that this return had been admitted to record by. the Court of Ordinary.</p> <p>Joshua Hill, Esq., an attorney at law, was examined on the part of defendant, by commission, who testified, that he was acquainted with defendant, but was little, if at all, acquainted with complainant. That he did for several years act as the attorney at law of defendant in the management of Jesse Cherry’s estate; that he did not have Cherry’s will before him, but his recollection was that he advised the defendant, as executor, to reduce the estate to money, and be. prepared at any time to pay the residuary legatees, and as-, many of them lived remote from defendant, and the residence of some he did not know at all, to place the funds in some safe bank, such as the Branch of the Bank of the State-of Georgia, at Eatonton, and there let it remain until called; for by the legatees. That he advised him to advertise in-some paper having a good circulation, for the absent legatees to come forward and receive their legacies, and in the meantime to stand prepared by making a deposit in safe banks, to pay such legacies, and not to lend to any one, unless he felt positively certain it would be paid when called for, and in this he would have to exercise great caution, and it was best to deposit it.</p> <p>Defendant also proved the publication of the notice in the. Southern Recorder.</p> <p>The testimony being closed, defendant's counsel requested the Court to charge the jury, that if they believed the facts stated in the answer to have been proven, that then the defendant was not liable for interest up to the year 1849, which request the Court refused, but charged the jury, that although the facts stated in the answer might be true, yet the defendant was chargeable with interest up to the year 1849, as well as after that time, except for the year 1843, he being entitled to one year, to invest or pay out the legacies.</p> <p>To which charge and refusal to charge, defendant, by his counsel excepted, and assigns the same as error.</p>

Assumpsit from Muscogee Superior Court. Tried before Judge Worrill, May Term, 1856. Held: that a common carrier could not limit his liability, but for sixty years the reverse has been held, and a common carrier may limit his liability. The only question is, did defendants make an agreement exempting themselves in case of fire.

Caveat to will, from Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1856. The questions in this case arose upon the admission to probate in solemn form of law, of a paper purporting to be the last will and testament of Pearce A. Philips, deceased, who departed this life a minor about eighteen or nineteen years of age. The following is a copy of the will, viz: State or Georgia. In the name of God, amen!

<p>[1.] "Where the continuances of the party have been exhausted, it is at the discretion. of the Court whether it will grant a further continuance at its own instance, having a due regard to the proper administration of justice.</p> <p>[2.] Papers are produced under notice, when directed to parties or their counsel ; when in the possession of others, they must be reached by a subpama duces tecum.</p> <p>[3.] It is too late to object to the want of service of interrogatories, after the trial has commenced, where the interrogatories have been in office for several years, and have been read without objection on two former trials.</p> <p>[4.] Where one of several plaintiffs in ejectment, conveys his interest in the premises during the pendency of the suit, the action may still proceed in his name, to recover the interest.</p> <p>[5.] The statute of Henry 8th, against the sale of pretended titles, has never been adopted in its stringency, by the Courts of this country, but in a modified form only, so as to allow the grantee of a deed made during adverse possession, to use the name of the grantor to protect or enforce his rights.</p> <p>[6.] Where A by verbal agreement sells to B one half of a lot of land, B goes into possession and remains a few weeks, paying no part of the purchase money, and upon being sued jointly with A for the premises, surrenders up the possession to A and abandons immediately the occupancy</p> <p>Held, That the whole land as well as the mesne profits may be recovered of A.</p>

Assessment of damages, in Randolph Superior Court. Tried before Judge Kiddoo, November Term, 1856.

Foreclosure of Mortgage in Bibb Superior Court. Decision by Judge Allen, December Term, 1856. This was a proceeding instituted by the Bibb County Loan Association, against Alexander Richards, a member of said Association, to foreclose a mortgage on a house and lot in the city of Macon. The mortgage was executed to the Association, as security for the payment of a bond of which the following is a copy, to-wit: State of Georgia, Bibb County.