Volume 23 — Georgia Reports

<p>Indictment for robbery, in Lee Superior Court, before Allen Judge, March Term, 1857.</p> <p>Jordan Williford was indicted for robbery and put upon his trial on the 31st day of March, 1857, during the regular Term of the Superior Court of Lee county.</p> <p>After the close of the testimony, argument of counsel and charge of the Court, the jury retired to deliberate upon their verdict, about two hours before sunset The next morning, when the Court met, the presiding Judge directed the jury to be brought into the Court, and asked them if they had agreed upon a verdict. The jury replied, that they had not. The Court then enquired if they were likely to agree; they replied, that they were not. The Court then of its own motion, the prisoner objecting thereto, passed the following order:</p> <p>March Term, 1857. It appearing to the Court that the jury empaneled and sworn to try this case, are unable to agree, it is therefore ordered by the Court that a mis-trial be declared and awarded, and that the jury be discharged.</p> <p>Whereupon, prisoner’s counsel moved that he be discharged and acquitted of the offence for which he was indicted. The Court refused the motion, and prisoner’s counsel excepted.</p>

Ejectment from Lee. Decision by Judge Allen, March Term, 1857. Upon the trial of this case, counsel for defendants moved to reject and exclude the depositions of Thomas Walker and Elizabeth Walker, on the ground that one of the Commissioners who executed the commission, and certified to the same, did not write his name, but made his mark. The Court granted the motion and ruled out the depositions, and plaintiff’s counsel excepted.

Mortgage fi. fa. and claim, in Decatur Superior Court, Decision, by Judge Allen, at April Term, 1857. Thadeus G-. Holt, and Pulaski S. Holt, claiming to be the assignees of a mortgage on two negroes and a horse, executed by Fowler Holt to William Wooten, to secure the payment of a note, applied to a Justice of the Inferior Court for foreclosure.

Certiorari, in Lee Superior Court. Decision by Judge Allen, at March Term, 1857. Defendant’s counsel moved to dismiss this case, on the ground that no writ of certiorari had ever been signed and issued by the Clerk of the Court.

<p>[1.] The title of the Act which was intended to be a codification of the Penal Laws of this State is entitled “ An Act to amend, reform and consolidate the Penal Laws of the State of Georgia,” and an Act amending any section or division thereof, referring to it by such section and division “ of the Penal Lanas of this State,” is not obnoxious to constitutional objection.</p> <p>[2.] An Act simply repealing a prior Act of the Legislature so far as it respects the punishment prescribed in said Act, for offences named therein, is not a repeal of the Act.</p>

<p>In Equity, from Baker Superior Court. Decision on demurrer by Judge Allen, May Term, 1857.</p> <p>This bill was filed by William A. Rawson and James R. Watson, in behalf of themselves and other creditors of Bartlett C. Green, deceased, against John C. DeGraffenreid and Joshua P. Crosby, administrator. The bill charges that about the 22cl April, 1854, said Green, with a view and foi’ the purpose of defeating complainants in the collection of demands which they held against him, sold all his property, and took notes for the same from the purchasers, and placed said notes in the hands of John C. DeGraffenreid, who executed a receipt for the same, and on the same day DeGraffenreid gave to Green his promissory note for $316.00 ; said receipt and note amounting to about $2240.60. That this was almost the entire property or pecuniary means of said Green ; and about the 1st July, thereafter, said Green departed this life intestate, and Joshua P. Crosby was appointed his administrator. That complainants will be unable to realize their claims out of any estate or property belonging to said Green, except the funds aforesaid in the hands of DeGraffenreid; and Green is otherwise insolvent. The prayer of the bill is that DeGraffenreid pay to complainants their claims, out of the assets thus fraudulently conveyed to him. The bill further stated that Crosby resided in the county of Baker, and DeGraffenreid in the county of Dougherty.</p> <p>DeGraffenreid demurred to the bill. The Court overruled the demurrer and ordered defendant to plead or answer thereto, on or before the first day of the next Term, or that said bill be taken pro confesso.</p> <p>To which decision, defendant excepted.</p>

Scire facias on bail bond. Decision by Judge Allen, in Lee Superior Court, March Term, 1857. Charles Lidden commenced his action of assumpsit against Silas Gladden, returnable to June Term of Lee Superior Court, 1854. The cause of action as set out in the declaration, was two promissory notes, one for $550.00, and the other for $>96.25, making $646.25, besides interest. Defendant was served with process, 3d of April, 1854.

Assumpsit, in Sumter Superior Court. Tried before Judge Allen, March Term, 1857. This was an action by Parker S. Beasley against William H. Feagin for the recovery of damages for the breach of warranty of the soundness of a negro man named Toney, sold by defendant, Feagin, to plaintiff.

<p>A bequest in the following- words, “also notes to the amount of sixteen hundred dollars on M. N. Killebrew, George W. Collier, security, for the purpose of purchasing a plantation for the use of Martha Smith, &e.,” is not a specific legacy, and is not adeemed by the sale and transfer of the notes, by the testator in his life time.</p>

<p>In Equity from Lee. Decision by Judge Allen, March Term, 1857.</p> <p>The facts are sufficiently stated in the opinion of the Court.</p>

In Equity, from Lee Superior Court. Decision by Judge Allen, at chambers, 15th January, 1857. Bill for Injunction and Receiver.

Rule against Sheriff, from Dougherty. Decision by Judge Allen, June Term 1857. This was a rule against Columbus A. Boynton, Sheriff of Dougherty county, to show cause why he should not pay over to Warren & Warren, plaintiff’s attorney, the amount due upon an execution in his hands in favor of Hugh M. Houston against John McCollum and John P. Griffin.

<p>[I.] In a distress for rent, nmlcr the Act of 1811, a plea of set-off is not admissible.</p> <p>[2.] When a writing is such, that something more than what is expressed by it, is to be implied from it, parol evidence of any thing not inconsistent with that unexpressed something, is admissible.</p>

<p>It is neeiror in the Circuit Court to require the judgment of this Court to be executed according to its true intent and meaning, provided thg same has been correctly interpreted.</p>

Complaint in Webster. Decision by Judge Kiddoo, April, 1857. This was an action by Thompson, Kendrick & Co. against Sampson Bell, executor of G. B. Swinney, deceased, and Richard W. Turner, survivor and joint promissor. The declaration alleges that defendants were indebted to plaintiffs one thousand dollars, and interest and fees of protest, upon a draft drawn by Swinney and Turner upon plaintiffs, and accepted and paid by them as accommodation acceptors.

In Equity, from Lee Superior Court. Tried before Judge Allen, at March Term, 1857. This bill was filed by James J. Keaton, (as the next friend of Lucius J. Boswell,) against Richard R. Roby and John B. Vanover, and charges that in 1845, Thomas Howard of the county of Baker departed this life intestate, leaving a large estate both real and personal.

<p>[1.] The admission of illegal evidence is not a sufficient ground for a new . trial, unless the admission of it was objected to.</p> <p>[2.] A confession may be such that a jury will be at liberty to believe a part of it, and to disbelieve a part of it.</p> <p>[3.] By the Act of 1S56, the Court takes the place of triers; therefore, when sitting as trier under that Act, its decision must be final.</p>

<p>New trial granted on the ground that the plaintiff in the Court below, in an action of Trover, failed to prove a legal title to the notes sued for.</p>

In Equity from Dougherty. Decision by Judge Allen, at Chambers, 25th January, 1857. This was a bill filed bjr George Walker and Abner P. Powers, against the Inferior Court, Tax Collector and Sheriff of Dougherty county, for an injunction, to restrain the collection •of certain tax executions issued against complainants.

Ejectment, in Lee Superior Court. Tried before Judge Axxen, March Term, 1857. John Doe, upon the several demises of Rawson Cain and James M. Morris, brought his action of ejectment against Richard Roe, cas. ejector, and George W. C. Monroe, tenant in possession, to recover lot of land No. 14 in'the second district of Lee county.

<p>W. & Co. addressed to their agent at Apalachicola an order, to this effect: “ You will please ship per Captian Bowen’s barga, as follows of our goods, &a.:</p> <p>Mr. Bowen promises to take the goods at 150 per cent, on printed rates.” Across the face of the above order is written; “These goods to be shipped provided Captain Bowen can make arrangements to get his barge towed up to Chattahoochee, or the goods shipped up there by a steamboat;”</p> <p>Held, that this paper was void as a contract for want of mutuality of obligation.</p>

In Equity, in Clay Superior Court. Decision on demurrer by Judge Kjddoo, at chambers, 15th April, 1857. This was a bill filed by Peter Lee, the guardian of William L. Tull, an idiot, against William McElvy.

Ejectment, in Clay Superior Court. Tried before Judge ICiddoo, at March Term, 1857. This was an action of ejectment by Doe, upon the several demises of Absalom Hanby and Azariah Doss, against Roe, casual ejector, and Sarah E. Tucker, tenant in possession, for the recovery of a lot of land, No. 383, in the seventh district of originally Lee county.

Rule to distribute money, in Randolph. Tried before Judge Kiddoo, May, 1857. A rule was taken against the former Sheriff to pay out the money in his hands, arising from the sale of Lemmon Dunn’s property, to the executions existing against him, according to their priority. Charles Stanley, the owner of a mortgage fi. fa.} claimed that his execution should be first paid.

In Equity, in Randolph Superior Court. Decision by Judge Kiddoo, at Chambers, 11th May, 1857. This was a bill filed by John Roe against Hannah Frith, Benjamin Y. Iverson and Nathaniel Robinson.

In Equity, from Terrell county. Decision on demurrer by Judge Kiddoo, at chambers, 8th April, 1857. This bill was filed by Joseph T. S. Gleaton., against Andrew B. Moore. The bill states that in the year 1853, Mary A. Williams departed this life intestate, leaving an estate worth about eight thousand dollars and six children as her distributees and heirs at law.

Trespass, in Randolph. Tried before Judge Kiddoo, at November adjourned Term, 1856. This was anaction of trespass brought by Daniel Ward, against Samuel A. Grier, for throwing four bales of cotton belonging to plaintiff into the Chattahoochee river. It appeared that plaintiff was hauling his cotton to a ferry or landing on said river, and was driving through defendant’s premises. Defendant met him and forbid him from going through his plantation, and ordered him back.

Claim, from Clay county. Decision by Judge Kiddoo. March Term, 1857. Under a fi. fa., issued upon a judgment recovered by Levi Mercer, against Daniel A. Newsom, administrator of John Newsom, deceased, the Sheriff levied upon certain lots of land in the 7th district of originally Lee, now Clay county, as the property of the estate of John Newsom, deceased. George R. Holloway interposed his claim to these lands, and denied that they belonged to the estate of Newsom.

Trover, in Webster Superior Court. Tried before Judge Xiddoo, April Term, 1857. This was an action of trover, brought by William P. Cato, against Elizabeth Aiken, for the recovery of a negro girl earned Patsey. Defendant pleaded the general issue. The case was tried on the appeal.

<p>Complaint, to recover land. In Taylor Superior Court. Tried before Judge Worrell, at April Term, 1857.</p> <p>This was an action brought in the form, prescribed, by Act of 1847, by Thomas Brady, against William Dickerson and Mary Battle, to recover lot of land No. 252, in the 12th district of originally Muscogee, now Taylor county.</p> <p>The plaintiff offered in evidence, a copy grant from the State to one Thomas Broddy. Defendant objected to its admission, upon the ground that it was made or issued to Thomas Broddy, and the plaintiff’s name was Thomas Brady. The Court overruled the objection, admitted the paper, and left it to the jury to say whether the grant was to plaintiff or not. Plaintiff further proved that defendant, Dickerson, was in possession of the premises at the commencement of this suit, and closed.</p> <p>The jury found for defendant. Plaintiff moved for a new trial, on the ground that the verdict was contrary to law and the evidence, which the Court granted, and thereupon, defendant excepted.</p>

In Equity, from Randolph. Decision by Judge Kiddoo, at chambers, 19th June, 1857. Elijah II. Marlin filed his bill against West II. Kirksey, Henry L. Taylor, James L. Pollard, John W. Bregan and Jesse B. Key.

Ejectment, in Talbot. Tried before fudge Worried, March Term, 1857. This was an action of ejectment brought by John Doe, ex. dem., Lewis A. Foster, against George W. Jones, tenant in possession, for the recovery of five acres of land, situated in the village of Talbotton. The defendant pleaded the general issue, and the statute of limitations. Plaintiff showed title in his lessor, proved the possession of defendant, and closed.

<p>When the plea of non esl factum is filed by one partner, to a note given in the name of the firm, by the other ; and the proof shows that the partners were engage# in a tannery, and that the negro, for whose hire the note was given, worked in that business; the onus is removed as to the authority to execute the note by the partner who signed it.</p>

In Equity, in Harris Superior Court. Decided on demurrer, by Judge Worrell, April Term, 1857. This was an injunction bill, filed by Joseph Davis and his wife, Lucy, against Abel B. Hunter.

In Equity. In Randolph. Decision by Judge Kiddoo. December, 1856. This was a bill filed by Charles T. F. Cardin, against John Jones. The bill sets out, that on the 37th of August, 1850, complainant gave to defendant his promissory note for $400, which defendant placed in the hands of William C. Perkins, Esq., or some other attorney, for collection.

Illegality, from Muscogee. Decision by Judge Worrell May Term, 1857.

<p>Debt, in Muscogee. Decision on demurrer, by Judge Worrell, at chambers, May Term, 1857.</p> <p>This was an action of debt, on an administration bond, brought by John Johnson, Ordinary, for the use of the distributees of Sarah C. Koockogey, against Samuel J. Koockogey, administrator of Sarah C. Koockogey, deceased, and Samuel Koockogey, his surety on said bond.</p> <p>The bond upon which this suit is brought, bears date the 7th August, 1851; is in the penal sum of six thousand dollars, and is in the usual form, and with the usual condition.</p> <p>The declaration alleges a breach of the condition, in this? that said administrator has not performed the duties of administrator, but has wholly failed and neglected to discharge and perform the same, and has failed and neglected to pay and turn over the estate and property of his intestate, to the distributees and heirs at law, whereby an action hath accrued, &c.</p> <p>To this declaration defendants demurred, on the ground that an action on the bond would not lie, in the first instance, against the administrator and the security; that this bond being executed prior to the Act of 1851-’2, suit could not be maintained upon it by virtue of the provisions of that Act.</p> <p>The Court sustained the demurrer, and dismissed the action, and plaintiff excepted.</p>

Certiorari and Rule, in Randolph Superior Court. Decision by J; dge Kiddoo, at May Term, 1857. John M. Green took out a rule against Richard Davis, 'Sheriff of Randolph county, issuing from and returnable to ?the Inferior Court of said county to show cause why he had ,not made and paid over the money due on certain fi.fas. ¡■issuing from a Justice’s Court, which had been levied upon land, and. under the statute in such cases turned over to said ■Sheriff.

Motion, in Marion Superior Court. Decision by Judge Worrill, at March Term, 1857.

Complaint, in Marion. Tried before Judge Wormix, March Term, 1857. This was an action by Miller & Hill, attorneys at law, against John R. T. Lingo, for the recovery of two hundred dollars, charged by plaintiffs for professional services rendered iu the defence of a negro slave belonging to defendant, who was tried in Marion Superior Court for the crime of arson.

<p>Indictment, for simple Larceny, in Talbot Superior Court. Tried before Judge Worrill, at March Term, 1857.</p> <p>Jeptha Reid and George Murphy were indicted for stealing a buggy, the property of John Howell, and found guilty. They moved for a new trial on the following grounds, viz:</p> <p>1st. Because the finding of the jury was contrary to law and evidence.</p> <p>2d. Because there was no allegation of the value of the buggy, charged to have been stolen.</p> <p>3d. Because the prejudice in the county, at the time of the trial, was so great that a fair and impartial trial could not be had.</p> <p>4th. Because the Judge, after the opening speech on the part of the State, and while counsel for defendants was replying, allowed the Solicitor General to introduce a witness and prove that the place from which the buggy was stolen, was in Talbot county.</p> <p>5th. Because defendants moved a continuance of the case on the ground of the absence of a female witness, Mary Smith, who had been subpoenaed, which was overruled by the Court, because it was admitted that another witness was present who would testify to the same facts which the absent witness was expected to prove, and that her testimony would be merely cumulative.</p> <p>The Court overruled the motion for-new trial, and defendants excepted, and assign the same as error.</p>

Trespass, for assault and battery, in Marion. Tried before Judge Worrill, March Term, 1857. On appeal. This was an action of trespass vi et armis, by Charles H. McCall against Poindexter Cherry, for an assault and battery. The plaintiff laid his.damages at one thousand dollars.

Ejectment, in Marion. Tried before Judge Worrill, March Term, 1857. This was an action of ejectment by Doe, upon the demises of William Kelly, and William D. Elam against Roe, casual •ejector, and Philip H. Wyatt, William W. Wyatt and James Nixon, tenants in possession, for the recovery of lot of land No. 99, in the 4th district of originally Muscogee, now Marion county.

In Equity, in Macon Superior Court. Decision by Judge Powers. March Term, 1857. This was a bill filed by Theodore A. Goodwin, against Pleasant L. J. May, Richard H. D. Sorrel, Jesse Cain, and the Sheriff and deputy Sheriff of Macon county, for discovery, relief and injunction.

<p>When a claim has been interposed to prevent a sale by an executor, and the executor has tendered an issue, lie may withdraw such issue, and dismiss the ease, and do so against the consent of the claimant.</p>

Mandamus, in Houston Superior Court. Deeison by Judge Powers, at May Term, 1857. This was an application for mandamus, against the Justices of the Inferior Court of Houston county. The petition set forth: That in September, 1856, William A. Brown, a citizen of Houston county, was attacked with small pox.

Slander, in Crawford. Tried before Judge Cabines:., March, 1857. This was an action of slander, by Mary Jane Robert;-, against William Richardson.

Slander, in Dooly. Before Judge Powers, April Term, 1857. On appeal. This ivas an action for slander, brought by Hiram Williams against William Adkins, for charging, and saying of plaintiff that he had stolen defendant’s sheep.

Ca. sa., in Bibb Superior Court. Decision on demurrer, by Judge Powers, May Term, 1857.

Certiorari, in Houston. Heard and decided by Judge Powers, April Term, 1857. Lydia Cousins instituted proceedings before Richard E. Story and Meredith McCoy, Justices of the Peace, against Middleton McDonald and Hilliard J. Clarke, for forcible entry and detainer, as provided by the 15th section, 9th division of the Penal Code, Acts of 1833.

Indictment for Bastardy, &c. in Worth Superior Couit. Tried before Judge Powers, April Term, 1857. This was an Indictment against Fleming Shiver, for Bastardy, and refusal to give bond and security for the maintenance and education of the child as required by law. Upon the trial, the State first offered in evidence, the warrant issued for defendant’s arrest, with the orders and entries thereon by the Justice, before whom prisoner was brought.

Complaint in Bibb. Decided by Judge Powers, at May Term, 1857. Upon application to the Ordinary of Bibb county, commissioners were appointed to appraise aitd set apart from the estate of Henry H. Cole, deceased, one year’s support for his widow and three children, as provided and directed by statute.

In Equity, in Bibb. Tried before Judge Powers. May, 1857. This was a bill in Equity, filed by Abner Lockett against Needham Mims and William D. Mims, for the purpose of asserting and enforcing a vendor’s lien upon land. The bill alleges that Needham Mims conveyed to Lockett, the complainant, and Charles W. Mims, a tract of land in Washington county, containing seven hundred acres, more or less.

In Equity from Bibb County. Decision on demurrer by Judge Powers, May Term, 1857. Jesse L. Long filed this hill against Robert Bowman as executor of the last will and testament of John Bowman, deceased. The bill alleges that John Bowman departed this life possessed of a large estate, and leaving his last will and testament, of which Robert Bowman and John M. Bowman were appointed executors, but that Robert Bowman alone qualified.

In Equity, from Bibb county. Tried before Judge Powers, at May Term, 1857. This was a bill filed by Susannah A. Flanders, John T. Price and wife, Artemas Archer and wife, and James E. Flanders, (a minor, by his next friend, John T. Price,) against David Flanders, the administrator of Henry Flanders, deceased.

Trover, in Lee Superior Court. Decision by Judge Allen, March Term, 1857. This was an action of trover by Thomas G. Leverett, against William Stegall, for the recovery of a promissory note.

In Equity, bill quia timet and rule nisi, for new trial in Monroe Superior Court. Decision by Judge Powers, at March Term, 1857. This bill was filed by Henry Singleton, executor of the last/ will and.testament of John Cotton, deceased, against Margaret Cotton, the widow of the said John Cotton.

Apeal from Ordinary, granting letters of administration pendente lite, in Monroe Superior Court. Tried before Judge Cabiness, at February Term, 1857.

Libel for Divorce, in Monroe Superior Court. Decision by Judge Cabiness, at Chambers, July, 1857. Motion to commit for contempt.

Assumpsit, in Upson Superior Court. Tried before Judge Cabiness, May, 1857. This was an action of assumpsit brought by John Byard against John Garner, on the following promissory note, viz: $200.

<p>Indictment for negro stealing, in Monroe Superior Court. Tried before Judge Powers, at March Term, 1857.</p> <p>Anderson Hudgins, John W. Wheeler and Alfred Hudgins were indicted for stealing a negro fellow, named Ned, the property of John D. McCowen.</p> <p>John W. Wheeler was, at March Term, 1857, put upon his trial, and pleaded not guilty.</p> <p>The jury, under the evidence and charge of the Court, found the prisoner guilty.</p> <p>Counsel for the prisoner thereupon tenders his bill of exceptions, and therein assigns the following errors, to-wit:</p> <p>1st. Because the Court erred in admitting the testimony of Floyd McAlpin, proving the sayings of Anderson Hudgins.</p> <p>2d. Because the Court erred in admitting the testimony of John G. Snead, proving the sayings of Anderson Hudgins.</p> <p>3d. Because the Court erred in admitting the testimony of Solomon Pruitt, proving the sayings of Anderson Hudgins.</p> <p>4th. That the Court erred in permitting the sayings of the negro to be proved by Harvey Wheeler. ,</p> <p>5th. That the Court erred in permitting the sayings of the negro to be proven by Thomas Martin.</p> <p>6th. That the Court erred in permitting the sayings of the negro to be proven by Daniel Wheeler.</p> <p>. 7th. That the Court erred in refusing to permit defendant to prove by the witness, Dickey W. Collier, that John D. McCowen, a witness for the State and owner of the negro,told him three or four days after the negro ran away, in the road, not far from said McCowen’s house, that he, McCowen, had whipped the negro and he ran away.</p> <p>8th. That the Court erred in refusing to allow defendant to prove by D. W. Collier that the negro was whipped severely by John D. McCowen, early Monday morning, between daylight and breakfast, on the week he left.</p> <p>9th. That the Court erred in refusing to charge the jury as requested by prisoner’s counsel.</p> <p>10th. That the Court erred in charging the jury, that the reasons assigned in the request of prisoner’s counsel, did not apply to such a case as this, but to cases where the party making the confessions, is under arrest at the time they are made.</p>

Indictment for Bastardy, in Henry Superior Court. Tried before Judge Cabiness, at April adjourned Term, 1857. Noah Smith was charged, upon the affidavit of Seney F Sears, with being the father of a bastard child, of which she was delivered, about the 27th of October, 1856. A warrant was issued, which Smith superseded by appearing before the Justices of the Peace.

Indictment for carrying concealed weapons, &c. Tried before Judge Cabiness, at May Term, 1857. In Paulding Superior Court. The defendant William J. Hatcher, was indicted, upon a special presentment by the grand jury of Spalding county, for carrying about his person concealed weapons. The State haying closed its testimony without offering in evidence the special presentment upon which the indictment was founded; counsel for defendant moved for a verdict of not guilty.

Rule nisi and caveat, in Upson Superior Court. Tried be■fore Judge Cabiness, at May Term, 1857. The last will and testament of James Walker, deceased, had been admitted to probate, in solemn form, by the Ordinary of Upson county^ and upon appeal from said judgment to the Superior Court, a special jury found for the will.

<p>Application by purchaser to be put into possession of land bought at Sheriff’s sale, in Polk Superior Court. Decision by Judge Hammond, at October Term, 1856.</p> <p>Continued at the March Term of this Court</p> <p>This was a motion for an order from the Court directing and requiring the present Sheriff of Polk county, to put the movant, Benjamin F. Bigelow, into possession of a lot of land which he had purchased at Sheriff’s sale.</p> <p>The land was sold by the then Deputy Sheriff of said county, on the first Tuesday in April, 1854, under a fi. fa. issued from a Justice’s Court, at the suit of D. N. Crayton vs. James M. Smith, as the property of said Smith, and bought by Bigelow. At the time of the sale Smith was in possession, and he only.</p> <p>Smith and one Emanuel Lyan who were in possession of the premises, being served with notice to show cause why the order should not be made, Lyan appeared and showed for cause, that he was now the legal owner of the land, in possession of the same, by himself and his tenant, the said James Smith; that he has title to said land, here in Court, ready to be exhibited, and a judgment rendered in his favor for said premises, in an ejectment cause tried at this Term of this Court. That the sale made by the Sheriff, under which Bigelow claims to be put into possession, was, on the 4th April, 1854, by a former Sheriff, not now in office; and respondent has been informed, and he believes that Bigelow bought in said land for Smith, and that he, Smith, was the real purchaser, and not Bigelow. And at the time of said sale, Smith had no title to the land, except a naked possession, which he yielded to this respondent when he became the owner thereof</p> <p>Respondent further answered, that he is advised and believes that Bigelow, by reason of his purchase, at Sheriff sale, (if Iona fide for himself) acquired no other title or right in and to said land, than Smith, the defendant in execution, had, which was a mere naked possession; and if Bigelow delayed obtaining the possession, until this respondent had entered under a legal title, he cannot, at this late day, by this summary proceeding, acquire the possession by ejecting respondent, or Smith, his tenant, from the possession, but must assert his claim by action at law, or bill in equity, when the rights of all parties may be fairly and deliberately investigated and adjudicated.</p> <p>The Court, upon this showing, refused to make the order moved for.</p> <p>Counsel for Bigelow, then moved to be allowed to controvert said showing and to traverse the answer made by Lyan for himself and Smith. The Court refused to allow the answer to be controverted, and passed the following order, to-wit: “Upon hearing the motion, cause shown, and argument, it is ordered, that the motion be refused.”</p> <p>To all which rulings and refusals, counsel for Bigelow excepted.</p>

<p>In Equity, in Polk Superior Court. Decision on demurrer, by Judge Hammond, at October Term, 1856.</p> <p>This was a bill for discovery, relief and injunction, filed by Thomas McCurry against William Robinson and Jesse M. Wood.</p> <p>The complainant alleges that in October, 1845, he purchased of defendant, Robinson, two lots of land, containing forty acres each, for the sum of one hundred and sixty dollars, payable in three instalments, and for which he gave his three promissory notes, due respectively, 25th December, 1845, 1846 and 1847, and that Robinson executed and delivered to him his bond for titles to be made upon the payment of the purchase money; that the trade was made in the county of Cobb, but Robinson resided in the city of Savannah, in the county of Chatham; that complainant moved on said land, cleared about fifty acres, made other improvements, and has confined to reside thereon, from a short time after said purchase to the filing of this bill.</p> <p>. The bill further alleges that no application or demand for payment having been made upon the ^maturity of the first note, that complainant wrote to Robinson, in Savannah, informing him that he was ready to pay the same; and complainant avers that he has been ready and willing to pay all said notes as they became due; but he received no answer from Robinson, and he did not know where said notes were, or to whom to pay the money due thereon; they were never presented for payment, or any demand ever made upon him by Robinson, or any one else ; that in June, 1849, without notice to complainant, Robinson fraudulently sold and conveyed said land to Jesse M. Wood, who lived on adjoining land, and who also had full knowledge of the purchase of said premises by complainant, from Robinson, and of his possession of, and claim to the same.</p> <p>That Wood instituted ejectment against complainant for said land, and obtained a verdict in his favor, and now threatens to dispossess complainant and evict him from the premises.</p> <p>The bill further alleges that complainant would have filed his bill, and interposed his equitable claim and title to said land, and enjoined said action of ejectment prior to the verdict and judgment, but pending said suit, the county of Polk, in which the land is situated, was cut off and organized from the county of Paulding, in which the action was originally instituted, and he was informed by his attorney that nothing would be done in the case, at the first term after its transmission from Paulding to Polk Superior Court. Relying upon this information, he failed to make any preparation at said term, when his case was called, a continuation refused, and a verdict rendered against him.</p> <p>The prayer of the bill is for discovery, and that the defendants be enjoined from enforcing their verdict and judgment in ejectment, and that the conveyance from Robinson to Wood be annulled, and that Robinson be decreed, upon the payment of the purchase money and interest to him, (and which complainant tenders and offers to bring into Court,) to execute titles to complainant, for the land in controversy.</p> <p>The Chancellor sanctioned the bill and granted theinjunc tion.</p> <p>To the bill defendants demurred, for want of equity.</p> <p>Upon the hearing, after argument, the Court sustained the demurrer and dismissed the bill. And to this decision counsel for complainant excepts.</p>

In Equity, in Upson Superior Court. Decision on demurrer, by Judge Cabiness, at May adjourned Term, 1857. This was a bill filed by Alexander S. Brooks, administrator of John Lowe, deceased, against William Lowe, to recover the share or interest of his intestate in two negroes and their hire, alleged to be in the possession of defendant.

Caveat to will, in Upson Superior Court. Tried before Judge Cabiness, May Term, 1857. Held: and propounder excepted. The propounder then offered the entire record; to which caveators objected on the grounds: 1st. Because they were neither parties or privies to the judgment. 2d. Because the record showed that the revoking clause was not in issue on said trial. 3d. Because the record showed that the judgment was obtained upon…

Certiorari, in Coweta Superior Court. Decision by Judge Hammond, at March Term, 1857. Motion to enter up judgment against plaintiff in ca. sa. for jail fees, for dieting defendant confined in jail bounds. Benjamin C. W. Gill was arrested by virtue of a capias ad satisfaciendum, at the suit of Herman Haas, and gave bond and security for, and was admitted to the privilege of prison bounds. He also applied for and took the benefit of the Act for the relief of honest debtors.

Covenant and rule nisi for new trial. Tried before Judge Hammond, in Campbell Superior Court, at March Term, 1857. This was an action of covenant brought by Jonathan Wl Patrick against William McWilliams, on a bond conditioned to make titles to a certain lot of land in said bond described.

In Equity, in Carroll Superior Court. Decision by Judge Hammond, at chambers, on a motion to dissolve an injunc tion. This was a bill filed by John Rodahan and Charles Rodahan, against W. W. Driver and George W. Driver, executors of the last will and testament of John Driver, deceased.

Certiorari, in Carroll Superior Court. Tried before Judge Hammond, at April Term, 1857. Robert Freeman brought suit in a Justice Court, against John B. McDaniel, on a promissory note, due 1st March, 1853, for the sum of twenty-five dollars. The defence ,was failure of consideration.

Ejectment, in Carroll Superior Court. Tried before Judge Hammond, April Term, 1857. This was an action of ejectment brought by Doe ex dem. of John Buchanan and James Bell, against Roe, casual ejector, and Lindsey Chandler tenant in possession, for the recovery of lot of land No. 224, in the county of Carroll. Plaintiff proved title in his lessors, the possession of defendant of the premises in dispute, and closed.

Certiorari, in Fannin Superior Court, May Term, 1857. Decision by Judge Brown. E. M. Davis commenced his action against D. R. Rogers, to recover the balance due on a promissory note, amounting to one hundred and ten dollars, returnable to January Term? 1856, of Fannin Inferior Court. He made an affidavit for bail.

Equity, from Carroll. Decision by Judge Hammond. This bill was filed by Geo. A. Vaughn, to enjoin and set aside a judgment obtained at law, against him by E. W Fuller.

Certiorari, in Cherokee Superior Court. Decision by Judge Brown, at June'adjourned Term, 1857. Eli McConnell, administrator of James Stewart, deceased,, brought suit in a Justice Court against James Fraser, upon, the following promissory note: $29 62j. Twelve months after date we promise to pay Eli McConnell, adnPr, with the will annexed of James Stewart, deceased, or bearer, twenty-nine dollars, sixty-two and a half cents, for value received.

<p>Indictment, for playing and betting at cards, in Forsyth Superior Court. Tried before Judge Brown, at February Term, 1857.</p> <p>These two cases being against the same party, and involving the same question, were heard and considered together.</p> <p>Thomas W. Brock was indicted for playing, and betting at cards ; it did not appear whether with a white man or a negro.</p> <p>The defendant pleaded guilty in both cases.</p> <p>The Court passed upon him the following sentence, to-wit:</p> <p>“Whereupon it is considered and adjudged by the Court, that the defendant do pay afine of seventy-five dollars, and the cost of this prosecution, and on failure to pay the same, that he be imprisoned in the common Jail of said county, for the term of six months, unless said fine and cost are sooner paid.”</p> <p>To which judgment and sentence, Counsel for defendant excepted.</p>

In Equity, in Polk Superior Court. Decision by Judge Hammond, at May Term, 1857. John A. Jones filed his bill in Equity against Edward D. Chisolm, James Pierce and Robert F. Morrison. The bill alleges that on the 31st January, 1851, complainant purchased from Manley W. Ford, since dead, lot of land No. 718, in the 18th district and 3d section of Polk county, of the value of $1000, and took Ford’s deed for the same.

Rule against Sheriff, in Carroll Superior Court Decision! by Judge Hammond, at April Term, 1857.

Ejectment, in Floyd Superior Court. Nonsuit, by Judge Hammond, August, 1857. Plaintiff proved that the defendant was in possession at the commencement of the suit. He then read to the jury, a grant from the State to Benjamin Averit’s orphans, of Lester’s District, Pulaski county, for the lot of land sued for, dated 23d February, 1850.

<p>[1.] In ejectment, theplaintiff showed a grant to Elias Nicks, and a deed front Eli Nicks, and introduced parol evidence tending to show, that the Elias Nicks of the grant, and the Eli Nicks of the deed, were one and the same person.</p> <p>Held, That this was legal evidence.</p> <p>[2.] After the draw and before the grant, the equitable title is in the drawer, and the legal title is in the State for the use of the drawer on his payment of the grant fee. This equitable title is transferable; when transferred, the legal title in the State, becomes a legal title for the use of the transferree on the payment of the grant fee. Consequently, on the issuing of the grant to the drawer, the legal title passes through him without stop, into the transferree, by virtue of the statute of uses.</p>

Rule against Sheriff) in Cherokee Superior Court. Decision by Judge Hammond, at June adjourned Term, 1857. Under a Ji.fa. in favor of Briggs H. Moultrie, vs. William Elrod, the Sheriff levied upon the only horse belonging to the defendant Elrod, and sold the same at Sheriff sale, for the sum of sixty dollars.

Trover, in Walker Superior Court. Tried before Judge Trippe, at May Term, 1857. This was an action of trover, brought by George W. Clements and others against Thomas Glass, for the recovery of two negro women, Ellen and Jane. The parties went to trial upon the following agreed statement of facts, viz-: That Thomas Glass, the defendant married Nancy Grant-ham, the widow of Abraham Grantham, deceased, who died, leaving in full force, and unrevoked, his last will and testament.

Ejectment, in Walker Superior Court. Tried before Judge Brown, at November Term, 1857. This was an action of ejectment brought by John Doe, ex clem, of John H. Thompson, and James Mann, and James T. Rape, administrators of James Mann, deceased, against Richard Roe, casual ejector, and John Knight, Joseph Carlock and Matthew Haney, tenants in possession, for the recovery of lot of land, No. 16, in the 11th district, and 4th section of originally Cherokee, now Walker county.

<p>In Equity, in Fulton Superior Court. Decision by Judge Bull, June, 1857.</p> <p>This was a bill filed by William Markham, against the Mayor and Council of the City of Atlanta.</p> <p>The bill states, that complainant purchased a lot in the city of Atlanta, on Whitehall street, in the year, 1851.</p> <p>. That in 1852, he erected on said lot, a large brick building at a cost of about [$3500, and arranged the same for two store rooms opening and fronting on Whitehall street; the floor and doors being accommodated to said street at the elevation of the side-walk, as it then was; that before he built said house, he consulted one of the members of Council, being Chairman of the Committe on Streets, as to how said building should be made to fit said street, with reference to the floor and doors, and that said member gave to complainant his ideas on the subject, which were adopted in constructing said building; that said building is now worth $5000, and the stores rent for $S00 per annum.</p> <p>The bill further states, that the Mayor and Council of said city, are about to dig down said street, in front of complainant’s building, and change the elevation and level of the same, so as to place or have said street, in front of said building, thirty inches below the door-sill and floor of one storeroom, and about eighteen inches below the sill and door of the other store ; that should|said excavation and alteration in said street be made, said stores will be greatly injured and lessened in value, as business houses, to the amount of at least $800, and which cannot be prevented at a cost less than about $500, if indeed it could be prevented at all, without pulling down said building and putting it up anew, at an expense greatly exceeding that of the original cost.</p> <p>The bill prays that said Mayor and Council, be enjoined and restrained from making said alteration or any other of similar character, etc.</p> <p>The Judge refused to sanction the bill and grant the injunction , and counsel for complainant excepts to said decision as erroneous.</p>

<p>[1.] In an action of trover by the administrator of the wife, against one claiming under the husband who was dead, the plaintiff offered in evidence, as an ancient document, a writing having subscribed to it, the names of the husband and the wife; the writing related to her negroes, and was more than thirty years old; it was found among the papers of the husband after his death; it had been delivered to him, by a person to whom it had been committed by the wife, that that person might get it recorded; the wife at a time when-the husband was about selling some of the negroes, asserted in his presence, the existence of a marriage contract, and he did not deny the assertion.</p> <p>Held, That the writing was admissible in evidence, as an ancient document.</p> <p>2,] A statute ought, if possible, to be so construed, that it shall not divest a vested right without compensation.</p> <p>[3.] In an anti-nuptial contract between husband and wife, he agreed that he would “ never, after marriage, either in the life, or after the death,” of the wile, either directly or indirectly, for himself, or for any of his heirs, lay any claim” to any of the property referred to, in the contract: he further agreed, that the contract should be '■ taken and construed most liberally” for the wife.</p> <p>Held, That what the husband thus agreed to, prevented his marital rights from attaching on the property; that the property, on her death, went to her next of kin, and not to him, or to his heirs.</p>

In Equity, in Cass Superior Court. Decision on demurrer, by Judge Trippe, at March Term, 1857. This was a bill filed by Charles A. Hamilton, against Jonathan Dew. The allegations of the bill, in substance, are that on the 16th September, 1854, complainant became security to Alison Nelson, on a promissory note, given and payable to defendant, for the sum of thirty-one hundred dollars.

Debt, in DeKalb Superior Court. Tried before Judge Bull, at April Term, 1857. This was action of debt by William H. Craft, against James J. Diamond, administrator of William H. Graham, deceased, on the following note, viz : Twelve months after date I promise to pay W. H. Craft or bearer, Eleven hundred and sxity-five dollars, value received. July 8th, 1851. his (Signed) W. PI. fxj GRAPIAM, mark. DANIEL ADAMS, Sec’ty.

<p>An action of deceit may lie, notwithstanding the seller states that the property is unsound and refuses to warrant it on that account; still, to maintain a suit under such circumstances, the proof of fraud should be clear and unequivocal, especially where the purchaser enjoys equal opportunities with the seller, of judging of the condition of the property, and pays a 'reduced price on account of its acknowledged unsoundness.</p>

<p>In Equity, in Troup Superior Court. Decision on demurrer, by Judge Burl, at May Term, 1857.</p> <p>This bill was filed by Shadrack Rowe, Jr., against Notley Maddox and others, heirs at law of Shadrack Rowe, senior, deceased.</p> <p>The bill in substance, alleges that complainant, one of the sons of Shadrack Rowe, senior, at the request of his father, who was an old man,lived with him for about nineteen years previous to his death, attending to his business, and managing and overseeing his plantation and negroes, and that his father promised to pay and compensate him for his services, by a provision in his last will and testament; and complainant avers that his services were worth one hundred and seventy five dollars per annum.</p> <p>The bill further states that complainant being the owner of a lot of land in Harris county, which his father desired that a younger son, LaFayette, should have$ it was agreed that if complainant would convey said lot of land to his father, for said purpose, that he would, in consideration therefor, devise and give to him in his last will and testament, two other lots which were specified. And in pursuance of this agreement, complainant executed to his father a deed conveying to him said lot.</p> <p>That on the 4th September, 1850, Shadrack Rowe, senior, made his last will and testament, and in pursuance of said agreement, therein conveyed the lot which he got from complainant, to his son, LaFayette Rowe, and gave and devised to complainant the two lots, as understood and agreed upon, at the time before stated. Said will was executed in the presence of two witnesses only, testator being ignorant of the law as to the number of witnesses necessary to a will of real estate.</p> <p>Said Shadrack Rowe afterwards, in the year 1853, departed this life, leaving said will unrevoked, and prior to his death, but after the execution or making said will, an Act was passed by the Legislature of the State of Georgia, requiring all wills and testaments of personal, as well as of real estate to be attested by three witnesses, and which Act went into effect and operation before the death of said Shadrack Rowe, senior. That by said will, his father had, in pursuance of their contract, made certain bequests to complainant, intended as a compensation for the long continued services of complainant, rendered in the management of his farm and business, which provision, although inadequate and not equal to the value of his services, complainant was willing to receive and accept as a full discharge or payment thereof, the same being the compensation allowed by his father.</p> <p>The bill further alleges, that upon presenting said will for probate before the Ordinary, the same was met by caveat from Notley Maddox, and some other of the heirs at law • and said will was admitted to probate as to the personalty, but rejected as to the real estate; and from the judgment of the Ordinary, the heirs at law have appealed, and the cause is now pending in the Superior Court of Harris county.</p> <p>The complainant distinctly alleges and charges that all the children and heirs at law of Shadrack Rowe, senior, knew the facts above stated, and that he is, by contract, and for a full and valuable consideration, entitled to the two lots of land; that he paid for them as aforesaid; that his father wished and endeavored to perform said contract, and died under the belief that he had secured titles to said lots to complainant.</p> <p>The bill further states that Notley has applied for letters of administration on the estate of said Shadrack, with the view and intention of distributing the two lots of land claimed by complainant, as a part of the estate of said Shadrack Rowe, senior.</p> <p>The bill prays that the heirs and distributees of Shadrack Rowe, senior, may be required and decreed to relinquish to complainant their title, as heirs, to said two lots of land, and to perform specifically, said contract. That Maddox and his confederates be enjoined from disturbing the possession of complainant to said land; that they be enjoined from applying for or receiving letters of administration, and that the will thus defectively executed be established as a deed, for a valuable consideration.</p> <p>The defendants, Notley Maddox and wife, Lydia Harrison, Sarah Turner, and Alcey Foies answered the bill. But the case coming on to be heard, defendants moved to dismiss-the bill on a general demurrer, for want of equity. After argument the Court overruled the demurrer and sustained the bill, and counsel for defendants excepted.</p>

Case, in Fulton Superior Court. Decision on demurrer, by Judge Bull, at April Term, 1857. This was an action on the case, brought by Frances Walker, the widow of Berryman Walker, deceased, against James M. Spullock, Superintendant of the Western and Atlantic Railroad. The declaration alleges, that said Berryman Walker, the late husband of plaintiff, was hired and employed on said road.

Assumpsit, in Fayette Superior Court. Tried before Judge Bull, at March Term, 1857. Edward H. Evans brought assumpsit against Smith H. Griffin, on a promissory note for forty-two dollars, dated 17th November, 1852, payable to plaintiff or bearer, on the 25th December thereafter. The suit was instituted 4th August, 1854.

<p>At the time when the witnesses to a will, subsuribed it. a door-shutter intervened between them and the testator, and made it impossible for him to see them, except, by changing his place, He did not change his place.</p> <p>Held, that the will was not “attested and subscribed in the presence” of the-testator.</p>

In Equity, in Fulton Superior Court. Decision on demurrer, by Judge Bull, at chambers, 22d June, 1857. This was a bill filed by the American Colonization Society, (incorporated by the Legislature of the State of Maryland,) against Lucius J. Gartrell, administrator with the will annexed, of Francis Gideon, deceased, late of the county of Fulton. The bill states that said Francis, on the 25th day of Ma]i, 1853, made and published his last will and testament.

Trover, in Laurens Superior Court. Tried before Judge Love, October, Term, 1857. Trover by Francis Thomas, executor of the last will and testament of Mary Jones, deceased, against Charles A. C. Porter, for seventy-eight negroes.

Rule against Sheriff, in Pulaski Superior Court. Decision by Judge Cochran, at Chambers, June, 1857. This was a motion to have ay?, fa., in favor of Samuel J. Lesseur against John H. Brantly, returned, satisfied, and to appropriate money, in the hands of the Sheriff, arising from the sale of Brandy’s property, to junior executions.

<p>If the defendant be under obligation to refund money which has been paid to him by mistake, the person who has committed the mistake, and been compelled to account to the true owner, may sue for and recover back the fund," his right to do so, being founded in the equity of bis ease.</p>

In Equity, from Thomas Superior Court. Decision by Judge Cochran, at June Term, 1857. This was a bill filed by Ephraim G. Ponder, trustee of Mrs. Mary A. E. Atkinson, against Hardy Bryan, (formerly of the State of Georgia, but at the time of the filing of the bill a citizen of the State of Louisiana,) and Shadrack Atkinson, the husband of said Mary A. E., the cestui que trust, of the State of Florida.

Trover, in Laurens Superior Court. Tried before Judge Love, October Term, 1857. This was an action of trover by Benjamin Pope and wife against Nathan Tucker for the recovery of a negro woman, named Rena, and her children. Defence, Statute of Limitations.

In Equity, from Thomas Superior Court. Decision on demurrer, by Judge Cochran, at June Term, 1857. This was a bill filed by William Foster, against William G. Ponder, executor of James Vickers, deceased. The bill alleges, that James M. Vickers, of Thomas county, died in 1847, leaving his wife, Ann E. Vickers, and two children in esse, and his said wife enciente, who, after his death, gave birth to a posthumous son.

Assumpsit, in Thomas Superior Court. Tried before Judge Cochran, at June Term, 1857. This was an action by William H. Roberts, against Curtis Carroll, for the recovery of damages for breach of warranty of the soundness of a negro sold by Curtis to Roberts.

Decision by Judge Hardeman, at August Term, 1857. This case was tried at February Term, 1857, when the jury found for the escheator, and the defendant moved in arrest of judgment, on the ground that the jury were not sworn as required by Act of 1819.

Slander, in Jones Superior Court. Tried before Judge Hardeman, at April Term, 1857. This was an action of slander by Elisha M. King, against Calvin Broach. The declaration contained two counts.

Motion to set aside verdict and judgment, in Baldwin Superior Court. Decision by Judge Hardeman. August Term, 1847. In 1838, the Ocmulgee Bank brought suit against Aaron Searcy, on a promissory note for the sum of #3,500. In 1839, Aaron Searcy, the defendant, died, and his death was suggested and scire facias issued 8th November, 1841, to make Benjamin R. Searcy, his administrator, a party defendant, which was served 7th December, 1842.

<p>J. F. conveyed five slaves to certain persons to be held “in trust for, and for the use, support, benefit, maintainance and enjoyment of his daughter V. B, A., and her children, but should his daughter die, leaving no child or children; or, having child or children, if it or they die in minority, the trust was to cease and the conveyance to become null and void. The daughter, V. B. A., had a daughter, who intermarried with G. M. N., who had a child and died in the life time ofher mother, V. B. A., but did not die in minority. V. B. A. subseqently died, leaving a husband, who is sued for the slaves and their increase.</p> <p>Held, That inasmuch as V. B. A. had a child who did not die in minority, the property became absolute in that child and her mother on its attaining the age of twenty-one years. Held, also, That the marital rights of their respective husbands attached to their respective interests in the property.</p>

<p>Action to recover land, in Jones Superior Court. Tried, before Judge Hardeman, April Term, 1857.</p> <p>This was an action, (in the form prescribed by Act of 1847) by Calvin Broach, administrator de bonis non. with the will annexed, of George Broach, deceased, against Boaz Kitchens, to recover a tract of land containing two hundred and twenty-five (225) acres, situated in the county of Jones.</p> <p>The defendant pleaded the general issue and statute of limitations.</p> <p>Plaintiff first offered in evidence, the will of George Broach, deceased, by the 2d, 3d and 4th items of which he gave all his estate to his wife Rachel Broach, and the 5th item of which is as follows •.</p> <p>“It is my will and desire that my beloved wife, Rachel Broach, shall have full power to dispose of a part or all of the above described property, in any manner she may think proper, and enjoy it in any way she may think fit, during her natural life, and after her death, I wish it equally divided between my beloved children, Robert Broach, John Broach, Hamilton Broach, Mary Ann Broach and Calvin Broach.”</p> <p>Plaintiff then offered in evidence, three fi. fas., from the Superior Court of Jones county, against Charles H. Brooks, and under which the land in dispute was sold, and a deed from the Sheriff to George Broach for the same. Proved the locus, that the defendant had made two crops on the premises ; about 100 acres cleared, and worth two dollars and fifty cents per acre, and closed.</p> <p>Defendant offered in evidence, a deed from- Rachel Broach executrix of George Broach, deceased, and Hamilton Broach and Calvin Broach, legatees under the will of said George Broach, to John M. Broach, conveying to him said land in fee and warranting the title; reciting the consideration to be $900, dated 3d December, 1849. Recorded 29th July, 1856.</p> <p>Spencer Owens, one of the subscribing witnesses to the deed, proved that he saw it signed and delivered, but saw no money paid; he was sent by Rachel Broach and JohnM. Broach, to Robert Broach, co-executor of said Rachel, with the deed, and requested him to sign it, which he refused to do; brought back the deed to Rachel, and told her that he would not sign it; JohnM. Broach was then present; Rachel Broach then tore up the deed, and the other deed, to which he was a subscribing witness, was then drawn up and signed by the parties. It was remarked at the time, that Calvin Broach would not be of age for several days; it was understood that Rachel Broach had only a life estate in the land.</p> <p>Hamilton Broach proved that the estate of George Broach was indebted to John Broach, from 300 to $350, and John owed George Broach’s estate, near $200, the balance of the consideration of the deed made by himself, Rachel and Hamilton Broach, was made up of a debt due by Rachel to John Broach for supplies furnished for a farm cultivated by Rachel and John, which John was to have furnished himself, hut failed to do. Calvin Broach was bom 19th December, 1828. There were five heirs of George Broach, besides his widow, Rachel. The land is worth $1500; John Broach knew when he bought the land, that Rachel only had a life estate, for he admitted that he had taken legal advice on the subject, and was so advised before he purchased.</p> <p>John Broach died, after he bought the land, without children, leaving a widow, who afterwards married Elisha King</p> <p>Defendant then offered in evidence, a deed from Elisha King to defendant, for. said premises, dated 21st September, 1852.</p> <p>Plaintiff, in reply, proved that defendant had admitted that Rachel Broach had but a life estate in the land; knew the titles were not good, but that he was protected by King.</p> <p>The testimony being closed, the Court charged the jury as follows:</p> <p>“As a legatee under the will of George Broach, Mrs. Broach had a right to dispose of this land as she thought proper, and was only bound for the proceeds of sale, not used by her at her death, or for such property as she may have purchased with the proceeds.</p> <p>In relation to Calvin Broach being a minor, when he joined in the deed to John Broach, I charge you that the deed of an infant is not void, but voidable. That Calvin had a right on his attaining lawful age, to avoid his deed. That the-right of an infant to avoid his deed, must be asserted in a reasonable time after his coming to the age of twenty-one-years. It is for you, gentlemen of the jury, to say whether that right has been insisted upon by Calvin Broach, within a reasonable time, if so, he has aright, so far as he is concerned individually, to avoid the deed.</p> <p>To defeat the title of defendant, he must not only have known there was only a life interest in Rachel Broach, but that she had appropriated the proceeds to her own use in fraud of the estate of George Broach, deceased.”</p> <p>In charging the jury on the 5th item of George Broach’s will, the Court said, “that by the words, ‘dispose of,’ in said-item, the widow had the right to sell any or all of the property of said estate, absolutely and in fee simple, for her enjoyment during her natural life, and that the remaindermen were entitled to the money or other property purchased therewith, and not to the property sold by her.”</p> <p>To all of which charges the plaintiff excepted.</p> <p>The jury found for the defendant, and plaintiff’s counsel tenders his bill of exceptions, and assigns as error,the charges set forth and excepted to.</p>

Caveat to will. In Putnam Superior Court. Tried before Judge Hardeman, at September Term, 1857.

In Equity, from Wilkes Superior Court. Tried before Judge Thomas, September Term, 1857. James Nolan of the county of Wilkes, departed this life in the year 1856, leaving his last will and testament, the third and sixth items of which are as follows: “ Third: The balance of my property of every description, I will and bequeath as follows: One equal part or share to the children of my deceased daughter Polly Bolton.

Equity, from Elbert. Decision by Judge Thomas, at chambers, 2d November, 1857. This was a bill filed by John W. Burch, Thomas C. Bnrch, Thomas Wright and wife, William T. Givens and wife, -Rice and wife, William Wright and wife, John P. Wright and wife, against John C. Burch, executor of Elizabeth Burch, deceased.

Illegality, from Elbert Superior Court. Decided by Judge Thomas, at September Term, 1857. The commissioners of the town of Elberton, issued a f. fa. against William H. Harper, to collect the sum of $15 57, the amount of tax assessed by said commissioners against Harper.

In Equity, from Lincoln Superior Court. Decision on demurrer, by Judge Thomas, at April Term, 1857. This was a bill filed by Lawrence D. Lallerstedt, administrator of Mary Shipp, deceased, widow of Mark Shipp. deceased, against the executors of said Mark Shipp, for an account of the estate of their testator, and for the payment of the share or interest therein, belonging to complainant’s, intestate, to her heirs at law.

Indictment for fornication, from Warren Superior Court Tried before Judge Thomas, at October Term, 1857. Adam Ivey was put upon his trial for the offence of fornication. The State offered in evidence the minutes of the Inferior Court, of October Term 1856, containing the presentment by the Grand Jury, of that term, of the defendant for said of-fence. Counsel for the defendant objected to its introduction, on the ground that said record purported to be an indictment.

Assumpsit, in Warren Superior Court. Tried before Judge Thomas, at October Term, 1S57. This was an action by Richmond Barnelly against Pierce Bailey on an account for blacksmith work.

<p>[1.] To a count in trespass for entering upon the plaintiff’s land and taking and carrying away the plaintiff’s wheat, cotton, &c. a count may be added by way of amendment, for taking and carrying away the proceeds and profits of Lthe same land for the same time, there being no plea but the general issue of “not guilty” to both counts, and the record showing no objection to the latter-count, on the ground of its insufficiency, standing alone to warrant a recovery.</p> <p>[2.] A plaintiff may sue for the recovery of the proceeds and profits of land, if he be entitled to them, even if ho have not the legal title to the land.</p>

In Equity, from Gwinnett Superior Court. Decision on demurrer by Judge Hammond, at September adjourned Term, 1857. Charles W. Rawson of Gwinnett county, died in the year 1834, and letters of administration on his estate were granted to his widow, Mary F. Rawson and John Mills, both then--of said county.

Assumpsit, in Gwinnett Superior Court. Decision by Judge Hammond, at September adjourned Term, 1857. Motion in arrest of judgment. John Beasley as bearer, brought suit against Thompson Allan and John R. Stanford, on a promissory note, of which ■ the following is a copy, to-wit: “ $>300. By the twenty-fifth day of December next,.we promise to pay to David B. Moore, or bearer, three hundred, dollars, with interest from date. Value received. January 1st, 1854.

<p>[1.] Where the bill charges that the tenant for life in slaves, in concert with others, is selling the same, and applying the money to the payment of her debts, a Court of Equity will take such steps to secure the preservation of the property for the remainder-man, as, in its discretion, under all the circumstances, it may deem best fitted for the end.</p> <p>¿2.] Chancellors in this country have as much if not more power than they have in England, in the means to be used to prevent the removal of property, and thus defeat the ends and object for which it was appropriated.</p> <p>[3.] When the possession and enjoyment of property is future, less stringency of statement and of verification will be required in a hill of quia timet, filed for the purpose of protecting the ultimate tight.</p> <p>(4.] Perhaps, in all cases of quia timet, the interlocutory order should be, that the defendant give bond with sufficient security, the amount to he prescribed by the Chancellor, that he will stand to, abide by, and perform the final decree to be rendered in the case.</p>

Certiorari, from Gwinnett Superior Court. Decision by Judge Hammond, at September adjourned Term, 1S57. Certiorari was sued out by Stephen McGinnes, to have reviewed and corrected the judgments rendered by the Justices of the 404th district, in certain cases wherin John B. McGinnes was plaintiff and the said Stephen was defendant.

In Equity, from Gwinnett Superior Court. Decision on motion to dissolve injunction, by Judge Hammond, at September adjourned Term, 1857. Bill and cross bill. The facts of this case are sufficiently stated in the opinion of the Court.