Volume 24 — Georgia Reports

Complaint on account, in Chatham Superior Court. Decision by Judge Fleming, January Term, 1857. on application for certiorari.

<p>Indictment, for larceny from house. Tried before Judge Fleming, at May Term, 1857.</p> <p>Robert Wise was indicted for stealing a set of harness belonging to Frederick A. Tupper, from the stable of Stephens & Elliston, in the city of Savannah.</p> <p>Upon the trial, the following testimony was introduced on the part of the State:</p> <p>Thomas F. Stephens, testified, “ that he boarded Mr. Tupper’s horse at his stable, his harness was also left with him. The stable was kept by him and Jacob' Elliston, as Copartners, under the name of Stephens & Elliston. Every evening, before he left the stable, he always went around to see that every thing was right. Mr. Tupper came in between seven and eight o’clock, on the evening of the third of last July, and left his horse and harness. The next morning he came for his horse and harness, and on looking for the harness, he found it ivas gone. The harness was there the evening before. One of his boys told him the harness was gone, and on going and looking for it he found it was so. It was a buggy harness, and worth about forty dollars. Told his boy not to say anything about it. On next Sunday I told my son to go around and see if he could see anything of it. He was gone about twenty minutes, when he came back and said he had seen part of the harness. He asked him where it was; he told me, and going there I found it on a roan horse, formerly belonging to him, which the prisoner was driving in a funeral procession. He took Mr. Russell and \vent after him, and had him arrested, and carried him to the guard house. He asked prisoner, at the guard house, where the balance of the harness was ; he said, he did not know, that he had got the harness which he had, from his (witness’s) boy, Lloyd. Prisoner had traces, bridle, hames and «ollar. The collar had a peculiar mark on it, which enabled him to indentify it. Prisoner said he knew, nothing of the balance of the harness. Prisoner said that his boy Lloyd brought the harness to him, between nine and ten o’clock on the night of the third of July and lent it to him. Boy, Lloyd, went out in a carriage, about five o’clock in the evening, and came back a few minutes before twelve o’clock. The next day after he had prisoner arrested, he went to him and told him he wanted to get the balance of the harness, and told him if he would prove it on his boy Lloyd, he would not prosecute him. The prisoner then wrote him an order for the balance of the harness, while in Mr. Russel’s office. It was in a shop near the gas works, kept by Mr. Larkin. He went there and found the balance of it. This took place in Savannah, in the County of Chatham, in .the State of Georgia. Harness was the property of Frederick A. Tupper.”</p> <p>On his cross examination, witness said: “ He had several boys in his employ. Had lost articles from his other stable. Did not see prisoner in the neighborhood of the stable the night the harness was taken. He went home and came back about ten o’clock and staid there until after 13 o’clock. He first saw the harness at the funeral. There were carriages and harness from his stable at the funeral. Boy Lloyd was in the habit of passing between his two stables.”</p> <p>Fredericlc A. Tupper testified: “ That he left his horse and buggy at Stephens & Ellison’s stables on the 3d July last. He bought the harness of William H. May, and paid him fifty dollars for it. His harness was also at the stable. He was in the habit of leaving it at the stable. Was told it was stolen. First saw it at the barracks or a portion of it; .saw the other portion at Mr. Larkin’s store, near the gas works, which Mr. Stephens got. He identified the harness as his.”</p> <p>Here the testimony1 closed.</p> <p>Counsel for prisoner, contended that neither of the witnesses proved that the harness was stolen at all,' or that the prisoner ever entered the house from which said harness had been removed. That the confession of the prisoner, as to how he got possession of the harness was invoked and given in as part of the State’s evidence, viz: “ That he had borrowed the harness from a slave named Lloyd, the property of Thomas F. Stephens, and that the indictment did no* sufficiently charge the offence.</p> <p>The jury found the prisoner guilty. Wherefore his counsel moved for a new trial on the following grounds:</p> <p>1st. Because the verdict was contrary to law.</p> <p>2d. Because the verdict was contrary to evidence.</p> <p>3d. Because since his trial, the prisoner has discovered new and material evidence of which he had no knowledge until after his trial, and which no effort on his part could have procured. <</p> <p>The presiding Judge refused the motion for a new trial, and counsel for prisoner excepts.</p> <p>The following affidavits were filed in support of the motion for a new trial, on the ground of subsequently discovered evidence:</p> <p>The State, ") Robert Wise, In Chatham Superior Court, May Term, 1857. Indictment: Larceny from the house. Verdict:</p> <p> Motion for New Trial. </p> <p>Personally appeared, before me, William Clark, who, being duly sworn, deposes and says, that he was at the bar room of Robert Wise, the defendant, on the night of the third of July, 1856, between the hours of nine and ten o’clock. That during the time he was in said bar room, a negro boy slave, named Lloyd, the property of Thomas F. Stephens, came in with a harness, which he put upon the counter, and which, he said, he loaned to said Wise, to be used the next day. That the conversation, which passed between the said boy Lloyd and the said Wise was in reference to the loan of the harness, to go to a funeral. That the said Wise promised the said slave Lloyd to return the harness as soon as he had used it, which was to be for a few hours the next day. deponent has not seen said Wise since, having left the State soon after, and only returned on Friday last. That deponent has had no opportunity to communicate with the said Wise, or his counsel. That since the conviction of the said Wise, of which the deponent has just been informed, he made a communication of the foregoing facts to his friends, deponent not knowing before that he had been prosecuted.</p> <p>his</p> <p>(Signed,) WM. X CLARK.</p> <p>mark.</p> <p>Sworn to, before me, this 17th June, 1857.</p> <p>(¡Signed,) Philip M. Russell, J. P</p> <p>Personally appeared before me, Arthur Walsch, who being duly sworn, deposes and says, that he was in the employment of Stephens & Elliston, in July, 1856. That he was at their stable on the third of July of said year, and slept there that night, and the harnesses were put away that evening. That Stephens & Elliston kept severe dogs tied at the doors, and that no stranger could enter the stable without those within being alarmed. That deponent saw the negro man Lloyd, that evening, in the room where the harness was. That said Lloyd was a negro of very bad character, and was sent away on .suspicion of burning the stable. That deponent is not acquainted with Robert Wise, and has only made the above facts known since the trial.</p> <p>his</p> <p>{Signed,) ARTHUR X WALSCH.</p> <p>mark.</p> <p>Sworn to, before me, this 30th June, 1857.</p> <p>{Signed,) Philip M. Russell, J. P.</p> <p>Personally appeared, before me, James Larkin, who being duly sworn, deposes and says, that in July, 1856, he loaned his horse and buggy to Robert Wise, the defendant, to go to a funeral. That deponent’s harness was not fit for use. That said Wise stated that he had borrowed a harness, and brought it to deponent’s stable. That the said harness proved too large for deponent’s horse, and deponent was about to bore a hole in the strap connecting the crupper, so as to make it fit, when said Wise objected, saying it was a borrowed harness. That deponent then made use of a part of his wagon harness, and that portion of the harness not used, and brought by Wise, was left at deponent’s house. That deponent was subpoenaed on the part of the State, but was not sworn as a witness. That deponent never communicated to the said Wise, or his counsel, what facts he could prove, until after his trial, when the State declined to swear him, he, deponent believing that his testimony would be against the said Wise, and in favor of the State.</p> <p>(Signed,) JAMES LARKIN.</p> <p>Sworn to, before me, this 19th June, 1857.</p> <p>(Signed,) Philip M. Russell, J. P.</p> <p>Personally appeared, before me, Robert Wise, the defendant, who, being duly sworn, deposes and says, that since his trial and conviction he has discovered three witnesses, viz : William Clark, James Larkin and Arthur Walsch, whose testimony is material, and if he had known of such witnesses would have procured their testimony on his trial. That deponent had no knowledge that said persons could establish what was sworn to by them, until after his trial. That William Clark, who states he was present, at his bar-room, on the night of the third of July, 1856, was a non-resident, and has been out of the State ever since, and has returned tO' Savannah but a few days since, and that deponent had no opportunity of knowing that his testimony would be material to him, or he would have endeavored to continue his case. That deponent did not know of any testimony material to his case, which could be given by James Larkin and Arthur Walsch, the latter this deponent has no acquaintance with. That deponent, or his counsel, were not apprised of these witnesses until after his trial, but have been discovered since, and that, had he known before of the existence of such testimony, as the said witnesses have given under affidavit, he would have procured their attendance or have moved to postpone his trial.</p> <p>{Signed;) ROBERT WISE.</p> <p>Sworn to, before me, this 18th June, 1857.</p> <p>{Signed,) Laurence Connell, j. P.</p>

<p>Trover, in Chatham Superior Court. Decision on special verdict, by Judge Fleming, at May Term, 1857.</p> <p>This was an action of trover, brought by Hiram Roberts, against Michael Boylan, for the recovery of a negro woman, slave, named Mary.</p> <p>By consent of counsel, the jury found the following special verdict:</p> <p>Hiram Roberts vs Michael Boylan, Chatham Superior Court, January Term, 1857.</p> <p>We find that the negro woman, slave, named Mary, the subject matter of this suit, was by a bill of sale, duly made and executed by Joseph Story Fay, on the-day of -, eighteen hundred and fifty-one, conveyed to Mrs. -Short, the wife of Adam Short. That on the 26th day of April, eighteen hundred and fifty-five, Adam Short-being insolvent, made and executed a deed of conveyance to Hiram Roberts of all his property, for the benefit of all his creditors. That in the said deed of assignment, a number of negroes were mentioned and named. This negro woman was not named in the said deed of assignment. That all the negroes mentioned and named in the said deed of assignment were taken possession of by the said Hiram Roberts, and after having been duly advertised, were publicly sold at the door of the Court House for the benefit of the creditors of the said Adam Short. That the negro woman slave, the subject matter of this suit, was not taken possession of by Hiram Roberts, but was left in the possession of the said Adam Short. That some time after the execution and record of the assignment, judgment was obtained against Adam Short, on the-day of--, eighteen .hundred and-judgment having been obtained in the City Court in favor of --against the said Adam Short, under an execution founded thereon the Sheriff of the City of Savannah levied upon the said negro woman slave, whom he found in the possession of the said Adam Short.. That Hiram Roberts was notified of the said levy, and failed to put in a claim, but requested the Sheriff to leave the negro woman slave in the possession of the said Adam Short, and that he would be responsible for the forthcoming of the property at the time and place of sale. That after the same had been duly advertised for sale, the property was on the first Tuesday in February, eighteen hundred and fifty-six, produced at the court house by the said Adam Short, and was put up by the Sheriff at public sale. That Hiram Roberts was in the city of Savannah, and knew of the time and place of sale, but was not present at the sale, and gave no notice of any claim which he had to the said property. That Adam Short was present at the time and place of sale, and gave notice that the property was not his property, and a purchaser would buy at his own risk. The property being put up for sale, the said Adam Short bid upon the said property, and Michael Boylan being the highest and best bidder, the said property was knocked off to him at and for the sum of four hundred and sixty dollars, which sum was paid by him in cash to the Sheriff, and by the Sheriff paid over to the executions and judgments against the said Adam Short, according to their legal priority. We find the value of the said negro woman slave tobe four hundred and sixty dollars, and her annual hire, seventy-two dollars. We find a demand made by the plaintiff, and a refusal made by the defendant.</p> <p>If, upon the foregoing state of facts, the defendant is entitled to hold the negro woman slave in a Court of Law or in a Court of Equity, then we find for the defendant.</p> <p>If not, then we find for the plaintiff the sum of four hundred and sixty dollars, the, value of the said negro woman slave, and the sum of seventy-eight dollars for the hire of the said negro woman slave. The sum of four hundred and sixty dollars to be discharged if the negro woman slave is delivered to the plaintiff by the defendant within thirty days, after the decision of the Court is filed.</p> <p>T. H. KREEGER, Foreman.</p> <p>, May 12th, 1857.</p> <p>On motion and by consent, it is ordered that the legal questions on the above case, be argued at chambers, on five days notice to either party, and that judgment upon the decision of the Court, be entered up as of this term.</p> <p>June 22d, 1857.</p> <p>Afterwards, and after argument, his Hon. W. B. Fleming, pronounced his decision and ordered judgment to be entered for defendant.</p> <p>To which decision, counsel for plaintiff excepted, on the following grounds:</p> <p>1st. Because his Honor erred in deciding that the defendant was entitled to judgment.</p> <p>2d. Because his Honor erred in deciding that the assignment from Short to Roberts did not convey the title of said slave to Roberts.</p> <p>3d. Because his Honor erred in drawing inferences with reference to said assignment, not specified in the verdict.</p> <p>4 th. Because his Honor erred in holding that legal fraud might be inferred by the Court from the retention of posse'ssion by Short after the assignment, no such fact having been found by the jury.</p> <p>5th. Because his Honor erred in holding, that the acts of Roberts with reference to the sale of said slave, and his allowance thereof were such as to preclude him from the assertion of his rights against the defendant as purchaser at Sheriff sale.</p>

Petition for dower, in Chatham Superior Court, Decision by Judge Fleming, August, 1857. This was an application by Mrs. Virginia Cope, the widow of John L. Cope, deceased, for dower in the real estate of her late husband, situated in the city of Savannah. • The application was resisted and traversed by the Savannah'Mutual Loan Association, and the Oglethorpe Mutual Loan Association.

In Equity, in Chatham Superior Court. .Decision on demurrer, by Judge Fleming, at chambers, August, 1857. This was a bill filed by Morris S. Hallowell & Co.j against Edward S. Kempton, and Anna Virginia Kempton, his wife, and John N. Lewis, trustee, to subject the trust estate created by the marriage settlement executed between Kempton and wife, before marriage, to certain promissory notes signed by Kempton, and endorsed by his wife, to complainants.

<p>Upon the call of this case for argument in the Supreme Court, counsel for defendant in error moved to dismiss the writ of error on the following grounds:</p> <p>1st. Because there were no papers legally in Court. The same not having been enveloped or otherwise closed up, by the Clerk of the Court below, and transmitted to the Clerk of this Court, as required' by law.</p> <p>2d. that the record was not certified by the Clerk of the Court below, to be a true and complete transcript and copy»</p> <p>3d. Because the bill of exceptions was not filed in the office of the Clerk of the Superior Court, within two (or ten) days after the acknowledgment of service.</p>

In equity, from Burke Superior Court. Decision by Judge Holt, at November Term, 1857.

Debt on Judgment, in Burke Superior Court. Decision by Judge Holt, at November Term, 1857. This was an action of debt brought by Lewis F. Harris, surviving partner of the late firm of Harris & Reilly, against Alfred G. Barden and Amos P. Watkins, on a judgment recovered in Burke Inferior Court, 4th of January, 1843.

Assessment of Damages, in Richmond Superior Court. Tried on appeal before Holt, Judge, at October Term, 1857.

<p>The county is not liable to pay a person for food and lodging furnished by him to a jury; and this although he may have been ordered by the Court to charge his account to the county.</p>

In Equity, from Richmond Superior Court. Tried by before Judge Holt, at October Term, 1857.

In Equity, from Emmanuel Superior Court. Decision by Judge Holt, at chambers, October 2,1857. This was a bill for injunction and relief, filed by Ezekiel Clifton, against John Livor. Held: and complainant, therefore, had no opportunity to make his defence.

In equity, from Chatham Superior Court. Decision on ■demurrer by Judge Fleming, at May Term, 1857. This case ivas heard before Judge Fleming, on tho following statement of facts: Ann Brown, before her 'coverture, and as a single woman, by the name of Ann Lavan, effected an insurance in the Savannah Mutual Insurance Company, for six hundred dollars,, on a stock of groceries, located in Robortsville, which is a part of the city of Savannah.

In equity, from Chatham Superior Superior Court. Decision on demurrer by Judge Fleming, at chambers, August 4th, 1857. This case was heard upon a transcript of the record, and the following bill of exceptions, which contains all the facts necessary to a full understanding of the decision of this Court. Georgia, Chatham County.

<p>In Equity, from Sumter county. Decided by Judge Lamar, December, 1857.</p> <p>Wright Brady filed his bill for an injunction under the following circumstances :</p> <p>William M. Brady, the brother of the plaintiff, died in January, 1857, intestate, leaving Julia A. Brady, his widow, and four children; and being very much indebted, at the time of his death, though in possession of considerable property. The plaintiff, at the request of the widow, took out temporary letters of administration on his estate. At the time of his death, William M. Brady was administrator of the estate of Burton T. Dennard, his brother-in-law. Julia A., the widow of William M. Brady, was the sister of Burton T. Dennard William Dennard, their father, had died in 1850 or 1851, leaving a will, whereby, after some specific legacies, he had given the whole of his estate to his sou, Burton T. Dennard, the brother of the said Julia A. Brady, for whom he made no provision in his said will. William M. Brady and his wife filed a caveat against the probate of the will, upon which considerable litigation ensued, and in the fall of 1852, an agreement was entered into between William M. Brady and his wife, and the said Burton T. Dennard, and Irene Dennard, the executrix of the said will, that William M. and Julia A. Brady should withdraw their caveat, and in consideration thereof, Burton T. Dennard did, by his written .agreement, covenant with the said W. M. Brady, in trust for his said wife, that he would, when he came of age, convey to the said W. M. Brady, in trust for his said wife, one-third of the estate of which the said William Dennard died possessed. When the said Burton T. Dennard came of age, he carried out this agreement, by allowing W. M. Brady to carry on the plantation of the testator in partnership with him, but no specific conveyance was ever executed.</p> <p>The bill also stated that complainant had uo'“means of knowing the amount of the estate of the said William Dennard, nor of the one-third which the said Wm. M. Brady ■held in trust for his said wife, Julia A., and that the latter had notified him that the value of her third was $21,629 50, and ■that the same was in the nature of a trust, and insisted on it ras a paramount claim.</p> <p>The bill further stated, that upon the death of Burton T. Dennard, W. M. Brady was appointed his administrator, with -complainant as his security, and that the saidB. T. Dennard, ■at the time of his death, was legally indebted, and that the claims with respect to that estate, were superior to the claims of other creditors.</p> <p>He also alleged in his bill, that there were a great many judgments, both against the estate of Dennard, and Brady, and that the judgment creditors were taking proceedings with respect to the property. He, therefore, prayed an injunction to restrain the Sheriff and judgment creditors from proceeding to sell the property until the rights of the conflicting claimants should be ascertained and adjudicated.</p> <p>An injunction was granted as prayed by the bill.</p> <p>To this bill the defendants demurred for want of equity, or if there was any equity, it was in favor of Julia A. Brady, who ought to have filed the bill when made a party to it; and also, that the cases made by the bill did not create any trust, or vest the property for the separate use of Julia A. Brady.</p> <p>The Court overruled the demurrer, and counsel for defendants excepted.</p>

Debt, from Dougherty county. Decision by Judge Alien, at December Term, 1857. This was an action of debt by Henry A. and George W. Castor, against Davis Pace and John F. Spicer, administrators of John S. Wilkerson, deceased, suggesting a devastavit The case being called for trial on the appeal, plaintiffs suggested on the record the death of Spicer, and moved to proceed against Pace, the surviving defendant and administrator.

In Equity, from Lee. Decision on demurrer by Judge Allen, January adjourned Term, 1858. On the 31st January, 1855, Caesar A. Savage, of the county of Lee, duly made and executed his last will and testament, and shortly thereafter departed this life. The following is a copy of said will, left in full force and unrevoked by deceased at his death: Georgia, Lee County : In the name of God, amen.

<p>Rule against Sheriff, from Sumter. Decision by Judge Kiddoo, on motion to distribute money. September Term, 1857.</p> <p>At the November Term, 1855, of the Inferior Court of Sumter county, the following rule absolute was taken against P. F. Thompson, late Sheriff of said county, viz:</p> <p>“ Sumter Inferior Court, November Term, 1855.</p> <p>A. F. McPherson, vs. Portlock F. Thompson, late Sheriff. Rule Absolute.</p> <p>The late Sheriff, Thompson, having been served with a copy of said rule, and he having failed to show cause why he should not pay the amount claimed thereon, it is ordered that the said Portlock F. do pay to the said A. F. McPherson the sum of two hundred .and fifty-seven dollars and sixty-four cents, and in default thereof he be considered in contempt</p> <p>1 consent to the paying of the above rule absolute. This 28th November, 1855.</p> <p>[Signed] P. F. THOMPSON.”</p> <p>The fund in the Sheriff’s hands, for the payment of which, the above rule absolute was taken, consisted of costs which he had before that time collected, due and belonging to McPherson, who was Clerk of said Court.</p> <p>At May Term, 1857, of the Inferior Court, the following order was passed:</p> <p>A. F. McPherson, vs. P. F. Thompson, late Sheriff.</p> <p>It appearing by the statement of A. S. Cutts, present Sheriff, that he has in hand @876 63, raised by him on a fi. fa., returnable to this Court, in favor of James S. Odom, against P. F. Thompson, and other fi. fas. against said Thompson,. And it further appearing to the Court that there is on the minutes of this Court, of November Term, 1855, a rule absolute in favor of A. F. McPherson vs.' P. F. Thompson, for the sum of $257 64, it is ordered by the Court that the Sheriff do pair over said money to the unsatisfied judgments now here claiming the same according to their priority, said, rule absolute ranking as a judgment of November Term, 1855.</p> <p>To the above order Thomas D. Speer, who was a junior mortgage creditor of Thompson, excepted :</p> <p>1st. Because the rule absolute against Thompson, late Sheriff, is void for irregularity and uncertainty.</p> <p>2cl. Because rules absolute arc not such judgments as can take money to the prejudice of a mortgage creditor.</p> <p>3d. Because the movant in this case has lost, by his laches, all equitable lien on the fund in Court.</p> <p>The exceptions were overruled by the Inferior Court, and Speer sued out a certiorari.</p> <p>Upon the hearing and after argument, Judge Kiddoo dismissed the’certiorari and affirmed the judgment of the Inferior Court, and counsel for Speer excepted.</p>

<p>Action to recover land, from Lee. Tried before Judge Aleen, April, 1857.</p> <p>This was an action brought under the form prescribed by Act of 1847, by John Beacham, against Mary Goodson and Ananias Newsom, to recover lot of land No. 101, situated in the 16th district of Lee county, and for mesne profits. At the trial, plaintiff dismissed as to Newsom, and proceeded against Mary Goodson alone.</p> <p>Plaintiff offered in evidence :</p> <p>1st. A grant of the lot in controversy to Ans. Kimberly, dated 29 th May, 1829.</p> <p>2d. Depositions of William Y. Hansell.</p> <p>3d. A deed from W. C. Street to Samuel M. Street and Charles A. Pringle, for one-third of the lot, dated 12th May, 1848, recorded 16th June, 1855.</p> <p>4th. A deed from William Mims to plaintiff, dated 8 April, 1850, recorded 18 Feb., 1851.</p> <p>5th. A deed from Sam. M. Street and Charles A. Pringle to William Mims, dated 5 Feb., 1851.</p> <p>6th. Griffin Smith, who swore that Thomas Goodson went into possession of the lot in 1847, and cleared some four or five acres, worth two dollars per acre rent. Since the sale hy the Sheriff, Mary Goodson claimed it.</p> <p>7th. Washington Knight, who swore that he understood they were in possession; that old man Goodson cleared the land and lived on adjoining lot, and Mary Goodson live with him; he only knew the number of the land by hearing, and did not know that Mary Goodson ever was in possession -of the land, or received any of the rents and profits.</p> <p> Evidence for Defendant : </p> <p>1st. A written notice by Alfred Keney constable, dated 20th Nov., 1850, directed to Thomas Goodson, of a levy made on lot No. 101.</p> <p>2d. The Sheriff’s deed, dated 24 February, 1851, reciting a sale on the first Tuesday in January, 1841, by virtue of a JL fa. in favor of John J. Hudson, against Thomas Goodson.</p> <p>3d. The deposition of John Layton.</p> <p>Plaintiff in reply proved that he was at the Sheriff’s sale, and said to persons present, that he had the only paper title to the land, and that whoever bought would buy a law suit. Also, that Willis A. Hawkins, Esq. stated the same thing, that Thomas Goodson’s interest in the land was levied on and sold.</p> <p> In rebuttal by defendant. </p> <p>That Hawkins attended the sale at the instance of Mims that only Goodson’s interest was sold, and the crowd at the sale was so satisfied ; the object was to get a squatter off the land.</p> <p>The jury under the charge of the Court, found for the plaintiff the land in dispute and forty-eight dollars mesne profits.</p> <p>Defendant moved for a new trial on the following grounds</p> <p>1st. Because the Court erred in refusing to charge the j urjas requested by defendant, that if they believed from, the evidence that at the time of the sale by the Sheriff, the plaintiff was present and bid for the land under a statement made by W. A. Hawkins,.Esq., thatthe land was sold to confirm title, then the plaintiff could not dispute the title of the purchaser at Sheriff’s sale.</p> <p>2d. Because the Court erred in refusing to charge, that if plaintiff and Mims combined to sell the land to get Goodson,. defendant in fi.fa., out of possession, and sold the land and plaintiff bid for it, the purchaser got a good title as against Mims and plaintiff.</p> <p>3d. Because the Court erred in refusing to charge, that if the deed from Mims to plaintiff was made before he had title himself the plaintiff got no title.</p> <p>4th. Because the Court erred in charging, that if Mims made a deed to Beacham, having no title, and afterwards got title, this title accrued to the benefit of Beacham’s title.</p> <p>5th. Because the jury found contrary to the evidence and law.</p> <p>6th. Because the jury found contrary to the charge of the Court, in this, that the Court charged, that if Mary Goodsou was in possession under Sheriff’s title and' paper title adversely, on the date of the deed to Mims, then the deed front Mims to plaintiff was void, and he could not recover.</p> <p>The Court refused to grant a new trial, and defendant by his counsel excepted.</p>

Trover, from Sumter. Tried before Judge Kiddoo, September Term, 1857. This was an action of trover, brought by Francis M. Jones and wife, Julia A. Jones, (formerly Morgan,) against Charles W. Morgan, the father of Mrs. Jones, for the recovery of the one-fifth of two negro women, Binah and Katey, and their increase.

Claim, from Baker Superior Court. Tried before Judge Allen, at November Term, 1857. E. F. Wood & Co. recovered judgment and issued an execution against Absalom Johnson and Thomas S. Hampton, partners under the name of Johnson & Hampton, which was levied by the Sheriff, upon 350 bushels of corn, as the property of Thomas S. Hampton. Thomas J. Bailey interposed a claim to the corn.

<p>Distress warrant, from Dougherty county. Decided by Judge Allen, December Term, 1857.</p> <p>A distress warrant was issued by Jackson, a Justice of the Inferior Court of Dougherty county, in favor of Benjamin O. Keaton against Archibald McDonald, for rent. This warrant the Sheriff executed by levying, in part, on a lot of land.</p> <p>On the 12th of April, 1856, McDonald moved the Superior Court that the distress warrant might be dismissed, on the following grounds:</p> <p>1st. Because the same was issued by a Justice of the Inferior Court who, by law, was not authorized to do so.</p> <p>2d. That the same was levied upon land.</p> <p>This motion was sustained by the Court on the first ground, and also on the second ground, so far as the land was concerned.</p> <p>To this decision of the Superior Court Keaton excepted.</p>

<p>Motion to enter judgment, nunc pro tunc, against security on appeal, from Lee. Decision by Judge Allen, January Term, 1858.</p> <p>Mayo brought suit against John A. Dennard, on twopromissory notes amounting in the whole to $>833 33, besides interest. The writ was returnable to June Term, 1855, and at the February Term, 1856, upon thetrial at common law, there was a verdict in favor of the plaintiff, for $>833 33, besides interest and cost; upon which, judgment was signed Feb. 13th, 1856. The defendant being dissatisfied with the verdict, entered an appeal, with Alfred Kersey as his surety. At March Term, 1857, defendant pleaded a payment of four hundred dollars, and all interest up to 3d Oct, 1856, and confessed judgment for four hundred dollars, with interest from 3d Oct., 1856; and upon this confession, judgment was signed at the same Term of the Court against Dennard only.</p> <p>At the January Term, 1858, plaintiff moved to amend the judgment, and enter up the same nunc pro tunc, against Kersey, the surety on the appeal, as well as the principal.</p> <p>The Court overruled the motion, and plaintiff by his counsel excepted.</p>

Covenant, from Dougherty Superior Court. Decision, on motion to continue, by J udge Allen, at December Term, 1857 This case having been called for trial, plaintiff announced ready.

Complaint on appeal, from Sumter. Tried before Judge Kiddoo, September Term, 1857. Verdict for plaintiff, and motion for new trial. ' This was an action brought by Roll against French, on two notes, one for $900 SO, and one for $32 82.

<p>In Equity, from Dougherty County, decided by Judge Allen, December Term, 1857.</p> <p>This was an application on the part of E. B. Hook to dissolve an injunction which had been granted, restraining further proceedings in an action of ejectment upon the answers being filed disposing of all the equity in the bill. There was also a motion to dismiss the bill for want of equity. The complainant’s counsel showed for cause against the dissolution of the injunction that he had a substantial amendment to make to the said bill, which he then and there proposed to make.</p> <p>Defendant’s counsel objected to such amendment’s being made, and urged that the application for the dissolution of the injunction should be proceeded with. This objection the Court overruled and allowed the amendment, and the Court'refused to entertain the motion to dissolve the injunction until the answers to the bill, as amended; were filed.</p> <p>To these rulings of the Court, in allowing such amendment and in refusing to entertain the motion for a dissolution of the injunction until the answers to the amended bill had been filed, the defendant’s counsel filed his bill of exceptions assigning the same as error.</p>

<p>In Equity, from Dougherty county, decision by Judge Allen, at Chambers, 13th Oct., 1857.</p> <p>Motion to dissolve injunction on the coming in of the answer.</p> <p>This bill was filed by Tift, in which he stated that Re was the owner of lot 324 on Flint River, at Albany, and that his right extended to the centre of the stream; that he was also the owner of the ferry on lot 323. He states that the defendant, Wingard, was in the course of erecting a dam and fish traps for the purpose of catching fish in the river, which dam extended from the bank of the river, belonging to the complainant, and across the river to its centre — the effect of which would be to raise the water above the dam and depress it below, and cause a strong and dangerous current on the east side of the river and a reverse current below on the other side — that this cross current would be in the track of the ferry and make it very dangerous and greatly increase the expense to complainant of keeping up the ferry. That Wingard was insolvent; that the damages occasioned would be very considerable and could not be recovered by damages at law. He therefore prayed by his bill that Wingard might be restrained from completing the works, and that he might be protected in his property.</p> <p>An injunction was granted as prayed by the bill.</p> <p>The defendant in his answer did not deny the allegations contained in the bill as to complainant’s right and title to the lot 324, nor to the ferry, but admits his title at least to part of it. In his answer lie went on to state the works which were made in the river and alleged that*an agreement was entered into between himself and Jesse Floyd and the complainant, in the year 1849, by which Tift agreed that these traps and a dam might be made in the river, the consideration being that he was occasionally to have ct mess of fish; that under that agreement he erected (he works; that in 1852 some malicious person destroyed them aud that he again erected them in 1855 ; that in 1856 he repaired the same at great expense; that in 1857 the injuries caused to the works by the high waters were very great; that he was repairing that damage and that if the works were suspended great damage to the amount of $7000 would be the result; that he had so far proceeded with the works that in ten days; they would be completed. The defendant also admitted his insolvency, but denied that the works would be injurious to the plaintifl’ or increase the risk or expense of the ferry._ The defendant also stated that in 1855 or 1856 the plaintiff had sued him in forcible, entry and detainer, and that he,, the defendant, had gained the case.</p> <p>The defendant, upon filing his answer, moved to dissolve-the injunction. Both parties submitted affidavits. Tha complainant in support,of his bill and to rebut the answer. The defendant in support of the answer.</p> <p>The Court overruled the motion to dissolve the injunction and counsel for defendant excepted.</p> <p>There were also exceptions to the rulings of the Court in relation to the admission of the affidavits, and the right of complainant to the opening and conclusion, but as no opinion is pronounced by this Court on these exceptions, they are here omitted.</p>

Certiorari, from Worth county. Decision by Judge Powers, at October Term, 1857. One Spencer Brown, being indebted to Ford & Giddens, traded or transferred to them in payment of his debt, a promissory note which he held on David Ridley, for about twenty-eight dollars, and also a fi. fa. against him, issued from a Justice’s Court, for about twenty-six dollars. Ford & Giddens sued Ridley on the note in a Justice’s Court, and had the fi. fa. levied on his property.

In Equity, from Bibb. Decision on demurrer by Judge Lamar, November Term, 1857. The bill in this case was filed by Edmund Raines against Samuel P. Corbin and wife, and Charles E. Moon executor, and alleges that Cadwell W. Raines, late of the county of Bibb, departed this life in January, 1856, leaving in full force his last will and testament, wherein said Moon was appointed executor, who duly qualified.

<p>11.] An indictment is sufficiently technical and correct if it state the offence so plainly that it may be easily understood by the jury.</p> <p>|2.] In an indictment for forcible entry and detainer, the prosecutor who was dispossessed, or from whom the possession is detained, is a competent witness.</p>

Trover from Bibb. Decision by Judge Powers, June Term, 1857. This was an action of trover by Timothy N. Hicks, trustee of Mrs. Francis Jane Bowen, against Edward Johnston,, for the recovery of a negro woman, named Milly.

Foreclosure of mortgage, from Bibb. Decision by Judge Powers, November Term, 1857. This cause coming on for a new trial, after the decision of theSupreme Court reversing theformer judgmentof the Court below, (see 21 Ga.Rep.,p. 592,) defendant Richards, in addition to the cause previously shown and pleas filed, further-insisted that said rule nisi was insufficient in law to require any answer, and that plaintiff was not entitled to any judgment absolute thereon.

<p>That a witness is interested will not be presumed; it must be proved.</p>

<p>In Equity from Bibb. Decision on motion to dissolve injunction, by Judge Powers, November Term, 1857.</p> <p>The bill in this case was filed by David Reid and others, citizens of Macon, and owners and occupants of certain houses and lots in said city, against the Mayor 'and Council of said city, and Joseph M. Boardman to restrain and enjoin defendants from building and constructing a certain branch sewer in said city, which they had commenced, and also to compel said Mayor and Council to extend a certain main sewer from its present terminus, on to or near the Ocmulgee River.</p> <p>The bill alleged that said main sewer received and conveyed large quantities of water and noxious and offensive liquids and matter from cellars, stables and privies, which it discharged into the street near the residences of complainants, whereby the atmosphere in the neighborhood was rendered impure and offensive — the health of the adjoining lots injuriously affected, and the value of the property ■ greatly impaired, and much sickness and many deaths in the vicinity, occasioned by the foul, fetid affluvia and malaria thrown out and arising at the terminus of said sewer.</p> <p>That Boardman, under a contract from the Mayor and Council, was proceeding in the construction of another sewer connecting with the main one already built, and which when completed would increase the amount of water and matter discharged at its terminus, and render still more unwholesome and sicklyaits vicinity.</p> <p>The bill was read and sanctioned and the injunction granted.</p> <p>Boardman answered, that he had by virtue of an agreement and contract with the City Council, begun the construction of the branch sewer complained of, but that his purpose in building it was to convey and carry off the rain water which fell upon and about his house and lot, and that so far from being an injury to complainants, or increasing the evils and nuisance of which they complained, it would, by throwing a larger volume of water into the main sewer, more effectually wash and carry off the deposits at its mouth: and further, that the water which he proposes to carry off, would flow through the streets into the main sewer already built, and could in no event increase the grievances complained of.</p> <p>The Mayor and Council answered, that said main sewer had been constructed many years before at a great expense to the city, and without objection from any of the owners of the houses and lots in the vicinity of its terminus; and that so far from deteriorating the value of property in the neighborhood, it had greatly enhanced since the building of said sewer; that most of the complainants had purchased there since the sewer was built, and had no right to complain. They deny that the adjoining and adjacent residences are more sickly than other portions of the city, or that any deaths have resulted from its existence. They aver t hat it is of great utility and benefit in the drainage of 'that part of the city through which it runs, and that its extension to the point desired and indicated by complainants would involve an expense greater than the city at present is able to meet.</p> <p>Upon hearing the bill, answers, and affidavits, in support of the bill, the Judge dissolved the injunction.</p> <p>Whereupon counsel for complainants excepted.</p>

<p>A donee of property from a person just before his death, taking or retaing possession of the property, the deceased having died at her house, becomes executor do son tort, if there are creditors.</p>

Foreclosure, and new trial, from Baker country. Decision by Judge Allen, November Term, 1857. This was an application to foreclose a mortgage which had been executed by Mason & Dickinson to William W. Croom, to secure the payment of two notes made by them to him.

In Equity, from Dougherty county. Tried before Judge Allen, at June Term, 1857. The bill in this case, was originally filed by Elizabeth M. M. Greenwood, against Benjamin O. Keaton, for an account, discovery, relief, &c. Upon the death of Mrs. Greenwood, Lewis S. McGwier, was appointed her administrator and made the party complainant, and in his name the cause proceeded and came upon trial at the June Term, 1857.

<p>Divorce, from Dooly. Tried before Judge Powers, April Term, 1857. Motion for new trial granted Oct. Term, 1857</p> <p>Priscilla D. Buckholts filed her petition againstPeter Buckholts, her husband, praying for a divorce a vinculo matrimonii.</p> <p>The petition states, that libelant was married to respondent in the year 1824, and from that time until within a recent period, they had lived together as man and wife, and had raised a large family of children — ten in number. That she had ever been a faithful, dutiful, and affectionate wife, but that for many years past, her husband had treated her with great cruelty and indignity, inflicting upon her inhuman and degrading beatings, and often threatening to kill her, whereby, she was put in great fear of life and limb, &c. That finally defendant, after beating petitioner, drove her from his house, and refused to allow her to remain and live with her children, and she was compelled to seek and find a home at her father’s, in a distant county. That six of their children are minors and living with their father who, by reason of his habits and temperament, is unfit to rear and educate them.</p> <p>By an amendment to her petition, libelant charges her husband with living in a state of incestuous adultery with his own sister.</p> <p>Defendant pleaded, first, the general issue, denying the cruel treatment; second, condonation; third, that libelant’s own turbulent temper and violent conduct had caused and rendered necessary the harsh treatment of which she complained</p> <p>The jury found the following verdict:</p> <p>“We the jury find that sufficient proofs have been referred to our consideration to authorize a total divorce; that is to say, a divorce a vinculo matrimonii upon legal principies between the parties in this case; and we further set apart to Peter Buckholts, five thousand dollars out of the property, to be estimated and raised according to the order of the Court, and the balance of the property to the children of said parties.”</p> <p>Whereupon, counsel for respondent, Peter Buckholts, moved for a new trial, on the following grounds :</p> <p>1st. Because said verdict is contrary to law and evidence.</p> <p>2d. Because the verdict is decidedly and strongly against the weight of evidence.</p> <p>3d. Because the distribution of the property is inequitable and unjust to defendant; the income and interest of five thousand dollars not being sufficient to maintain and support him at his advanced age of life, and said verdict makes ao provision for the payment of his debts.</p> <p>4th. Because the section of the Act which provides for and authorizes the distribution of defendant’s estate, as made or proposed in said verdict, is contrary to the Constitution of the United States and the State of Georgia, in, that it takes private property without the consent of the owner and vests it in others, and inflicts a heavy forfeiture and penalty upon a citizen charged with, or convicted of, no crime or offense against the penal laws of the State.</p> <p>5th. Because no act.of cruelty on the part of defendant was proved which had not been condoned or forgiven; the last act proven having occurred nearly a year before the separation between the parties.</p> <p>6th. Because the verdict is contrary to the charge of the Court, in this, that the Court charged that it was not every slight disagreement or fight between the parties, that will authorize a divorce.</p> <p>7th. Because it was an abuse of the discretion vested in the jury to grant a total divorce, under the facts and circumstances of this case.</p> <p>8th. Because, from the evidence, it appears that one of the children, William Buckholts, had an active agency in preventing a reconciliation between the parties, and this fact should have operated as a bar to a total divorce, and should have increased the allowance made to defendant, out of his property.</p> <p>9th. Because the articles of separation between the parties were a bar to a partial divorce even.</p> <p>After argument, the presiding Judge set aside the verdict and ordered a new trial upon the grounds above stated.</p> <p>Whereupon, counsel for libelant excepted.</p>

Ejectment, from Muscogee county. Tried before Judge Worrill, June Term, 1857. This was an action of ejectment brought by the plaintiffs in error, for the recovery of a lot of land No. 48, in the 8th district of Muscogee county. On the trial, the plaintiffs introduced in evidence, a grant of the lot of land in question to Eliza Ann Iiays, illegitimate, of Spink’s district, Jones county, dated April 30th, 1834.

Complaint, from Muscogee. Tried before Judge Worried, November Term, 1857. The Manufacturers and Mechanics Bank of Columbus having failed, Edwin W. Moise was appointed receiver, and among the papers and assets of the bank, found the following draft: “ $1,000. Columbus, April 1st, 1856. Forty-five days after date pay to my own order, one thousand dollars, at the office of Messrs! Lockett & Snelling, in Savannah, for value received. [Signed] A. W. CHAPMAN.

Assumpsit, from Marion county. Tried before Judge Worrier, September Term, 1857. An action was brought by James C. Haviland and others, carrying on business under the style of Haviland, Reese & Co., against Henry M. Jeter and William H. Forbes, upon % promissory note for $1,200 20 and interest. To this action the defendant Jeter pleaded payment; that by way of payment he had turned over and delivered to Messrs.

<p>Certiorari, in Taylor Superior Court. Decision by Judge Wohrill, at October Term, 1857.</p> <p>The facts of this case are as follows:</p> <p>Lawrence and Freeman Walker, executors of Persons. Walker, deceased, brought suit in a Justice’s Court, against James Williamson and W. R. Miller, on seven promissory-notes, each for thirty dollars. The notes were given for two mules, bought by Williamson at a public sale of the estate of testator, and Miller signed them as his security.</p> <p>Williamson appeared at the appearance Term of the Justice Court, and pleaded,</p> <p>1st. A breach of warranty.</p> <p>2d. Total failure of consideration as to so much of said notes as was given for one of said mules — the same being ■one hundred dollars.</p> <p>3d. Partial failure of consideration as to the same.</p> <p>4th. Fraud and misrepresentation.</p> <p>Upon the trial, plaintiffs offered in evidence the notes,</p> <p>Defendants introduced Jesse Stallings, who testified, that he was the auctioneer at the sale of said property; that there was an apparent defect in the eyes of the mule, and that it was thought to be about blind, and was selling for twenty-five dollars when Freeman Walker came up, and being asked if the mule was not blind or nearly so, he replied, “that the injury to the eye was caused by the rubbing of the blind of the bridle, and that the mule’s eyes were good.” The bid was raised immediately from twentyTfive to severity-five dollars, and the mule was knocked down to Williamson at one hundred dollars.</p> <p>Mr. Martin testified, that he had known the mule ever since defendant purchased it; it was moon-eyed; blind at times, and could see a little at other times; was worth twenfive or thirty dollars.</p> <p>The jury found for the plaintiff twenty dollars in each case. Thereby allowing defendant the sum of seventy dollars on account of the unsoundness, there being seven cases, each on a thirty dollar note.</p> <p>Plaintiffs excepted, and sued out certiorari to have said findings reversed.</p> <p>It was agreed that the decision in one case should govern all.</p> <p>The presiding Judge of the Superior Court, upon hearing the case, ordered a new trial, upon the ground that the jury-in the Justice’s Court found contrary to the evidence, it being his opinion that there was no evidence to authorize them to find that, plaintiffs intended to bind themselves individually, upon the warranty of the mule; and holding, that although plaintiffs warranted the mule, yet they could not, under the Act of 1854, bind the estate of their testator.</p> <p>To which decision counsel for defendants excepted.</p>

Claim, from Marion Superior Court. Tried before Judge Worrill, at September Term, 1857. A fieri facias issued upon a forfeited recognizance, at the suit of the State of Georgia against Jordan Davis and William Davis, was levied upon a lot of land as the property of said Jordan. Joseph Carswell interposed a claim to said land, which was returned by the Sheriff to be tried and determined as provided by statute.

Case, in Muscogee. Tried before Judge Worrill, May Term, 1857.

In Equity, from Muscogee County. Decided by Judge Worrirl, November Term, 1857. The bill of exceptions in this case was filed to the decision of the Court below — sustaining a demurrer and dismissing the bill.

<p>Murder, from Harris comity. Tried before Judge Woerile, October Term, 185,7.</p> <p>Joseph Buchanan the plaintiff in error, was indicted for the murder of Joseph J. Gorham ; he was convicted of voluntary manslaughter, and moved for a new trial, on the following grounds:</p> <p>1st. Because the Court erred after giving to the jury the definition of voluntary manslaughter, as contained in the penal code, in instructing the jury that if the proof showed that there was an attempt by Gorham to commit a serious personal injury on the person of Buchanan, and he Buchanan at the time without notice, and in a sudden heat of passion, killed Gorham, that he was guilty of voluntary manslaughter.</p> <p>Or if the evidence proved that Gorham made an assault upon Buchanan, and therefore, Buchanan, in a sudden heat of'passion and without malice, killed him, then the killing, according to the definition, would amount to voluntary manslaughter.</p> <p>,'2,d. Because the Court erred in instructing the jury, that if Buchanan provoked the difficulty, if he brought on the fight, if he brought upon himself the necessity to kill Gorham to save his own life, then the killing amounts to murder,</p> <p>>3d. Because the counsel for the State, in the course of the argument in conclusion, insisted that the accused used profáne and provoking language in the presence of the deceased, ia the streets, with a view to provoke the deceased into a difficulty, and pursued him into the billiard room, when, the counsel for the accused objectdd to the State’s counsel airguing a state of facts not authorized by the testimony as there was no proof that the accused and deceased were together in the streets before the difficulty; the Court permitted the counsel for the defendant to state their recollection of the testimony, and that 'the State’s counsel might do the same, paid leave it to the jury to determine between them; and after counsel for the accused stated their recollection of the testimony on that point, the counsel for the State proceeded id argue the case, and speaking of it as occuring in the town of .-Hamilton, and perhaps in the hearing of the ladies.</p> <p>4th. Because, James Perry, one of the jurors who tried §aid case and rendered said verdict was subpoenaed as a witness on the part of the State, and had before he was selecT ted as a juror, stated that he witnessed the greater par/t of the difficulty between Buchanan and Gorham, and if he was taken on the jury, he did not know how- he could get round finding him guilty of murder.</p> <p>The Court refused, the motion on all the grounds taken, and prisoner excepted.</p>

Indictment, from Muscogee county. Tried before Judge Worried, at November Term, 1857. Edmund C. Corbett was indicted for demanding payment of a certain promissory note, knowing the same to be forged and counterfeited. The -note was as follows: “ Due E. C. Corbett or bearer, the sum of ten thousand dollars with interest from date, on a settlement, to be paid when the money belonging to the firm of Lowe & Simmons is collected. This May the 16th, 1853. (Signed,) II. II.

Scire facias to revive judgment, from Muscogee. Tried, before Judge Worrill, May Term, 1857. In 1837, Iienry Brown brought an action of trover against Alpha K Ayer. Upon the common law trial there was a verdict for plaintiff, from which the defendant Ayer appealed, and Bates became his surety on the appeal.

Murder, from Muscogee county. Tried before Judge Worrill, at November Term, 1857. James Thompson was indicted for the murder of John Calhoun. The case being called, the Solicitor General announced ready for the State.

<p>Garnishment, from Muscogee county. Decided by Judge Worrell, November Term, 1857.</p> <p>A summons of garnishment was issued, in an action brought by Robert S. Hardaway against Edward T. Taylor, directed to Paul J. Semmes. Semmes answered, and upon the hearing, the plaintiff introduced as a witness, the garnishee, Semmes, who testified that Taylor had deposited in his hands, as agent of the State Bank, collateral security for a debt due from him to the bank, which he turned over to the bank before the service of the summons of garnishment. That he had also previously to the service- of the said summons, (which was admitted to have been made on the 14th day of November, 1856,) taken from Taylor two mortgages, one on his house and lot, and the other on two negroes. Could not remember the dates of the mortgages, nor whether they were made to him (in the wording of them) individually, or as the agent of the bank. On being shown one of the mortgages, he testified that it was given in September, 1856. Both the mortgages were given him on the same day, and, in the wording of them, to him individually, but really as agent of the bank, and that though they were so given, he had no interest in them, but they were given to secure a debt due to the bank. These mortgages were in his hands, but since that time had been foreclosed, and he had received, as agent of the bank, and appropriated to the payment of the debt of the bank, from the sale of one of the negroes, about $1,000, and that the proceeds of the sale of the other property was held up in the Sheriff’s hands by the plaintiff’s attorneys; could not remember how many mortgages, or the dates of them, he-had taken from Taylor, but he thought he had taken two others in each case, and when he took the first the understanding between himself and Taylor was, that the mortgages should not be recorded just then, but that Taylor should renew them or give new ones when the time, limited by law for therecording of mortgages, expired. There was the same-understanding when the second mortgage was given, and also when the third and those he held were given, and upon-one of which he had received $1,000. That the other two mortgages had not been recorded, and the thiiil only after Taylor ran away, but within three months from its er -oution. According to his recollection, the time for recording had elapsed in each of the two preceding mortgages before the succeeding ones were given. That notwithstanding the understanding between himself and Taylor, he did not consider it a binding contract against him, but only a request to which he assented, and as a matter of courtesy, promised Taylor not to record them, but said he should reserve the right to do so if he thought it prudent. That at the time of the service of the summons of garnishment, he was not indebted to Taylor, nor had he any effects or property of any kind belonging to him.</p> <p>After argument, the Court proceeded to charge the jury, that if they believed from the evidence that Dr. Taylor was indebted to the bank, and gave to the garnishee, as agent of the bank, and to secure a debt due to it, the mortgage testified to, and that when the first mortgage was given it was the understanding between the garnishee and Taylor that it should not be recorded, and that before the time elapsed he (Taylor) would give another mortgage on the same property to secure the same debt, and that the mortgage was nottherefore recorded, and that a second mortgage was given in pursuance of that agreement, and at that time a similar understanding Avas entered into as to that mortgage and carried out, and a third given in pursuance Thereof, and a similar understanding in regard to that; and they should further believe that the latter mortgage was recorded within the three months after its execution, and that the garnishee received the §1,000 or any other sum, as agent of the bank, and paid it over to the bank on the last mortgage; that he Avas entitled to hold it, and that it was not the money of the defendant Taylor, and that that Avas the only issue they had to try: the counsel for plaintiff, Hardaway, averring to the Court, at thetime, that he only contended forthe §1,000 received on the mortgages, and in the course of his argument to the jury, and at the conclusion thereof, disclaimed all other demands.</p> <p>Plaintiff’s counsel requested the Court to charge the jury, that if they believed that there was an understanding between Semmes and Taylor, at the time the mortgages were given on the two negroes, as testified to by witness, that the mortgagee should withhold the mortgage from record, and that the mortgagor should give another mortgage before the time, required by law that mortgages on personal property should be recorded, expired; and that the mortgage was not recorded; that the mortgage was void as to creditors, and had no lien on the property as between the mortgagee and Taylor’s creditors.</p> <p>Plaintiff’s counsel also requested the Court to charge the jury, that if they should believe that the mortgage under which the money was received by Semmes, was made to Semmes individually, and that at the time Semmes received the money Taylor did not owe him any thing, the moneys© received was still the money of Taylor. That if they believed that the garnishee had become indebted to Taylor, or obtained any of his property or effects since the summons of garnishment, that he was answerable for the same as if he had received it before, and had it at the time of the service— the plaintiff’s counsel offering at the same time to amend the traverse so as to include it</p> <p>The Court refused to give these charges, and to the refusal of the Court to charge as requested, and to the charges given by the Court, the plaintiffs counsel excepted, and assigned the same as error.</p>

Assumpsit, from Muscogee county. Tried before Judge Worrill, November Term, 1857. This was an action brought by the plaintiffs in error, on a note which was given in renewal of a note for $1,423 33, of the 24th of February, 1851. In February, 1851, the plaintiffs, who were partners, sold goods to the firm of Stone & Johnson, to the value of $1,423 •33, for which amount they gave the firm note, payable six months after date.

Murder, from Muscogee county. Worrill, November Term, 1857. Tried before Judge The hill of exceptions in this case was filed, alleging error in the decision of the Court below in refusing a new trial under the following circumstances.

Caveat to will, from Twiggs. Tried before Judge Powers, September Term, 1857. This was a caveat, tried on appeal from the Ordinary, to a paper propounded as the last will and testament of John W. Allen, deceased.

<p>In Equity, from Harris Superior Court. Decision by Judge Worrill, at October Term, 1857.</p> <p>Thacker V. Walker and others filed their bill of complaint against Elijah Cook. At March Term, 1854, of Harris Superior Court, the case was heard on demurrer, and the demurrer overruled; to which decision counsel for Cook excepted, and the Supreme Court -reversed the judgment of the Court below..</p> <p>At September, 1854, the judgment of the Supreme Court was entered on the minutes of the Superior Court as the judgment of that Court. Complainants then moved to amend their bill, which the Court refused, and ordered the bill to be dismissed. To this decision counsel for complainants excepted, and at February Term, 1855, the Supreme Court reversed the judgment of the Superior Court; which judgment of the Supreme Court was likewise entered upon the minutes of the Superior Court as the judgment thereof.</p> <p>At September Term, 1855, of the Superior Court, complainant presented his amendment, which was allowed by the Chancellor. To this decision counsel for Cook excepted, and the Supreme Court reversed the judgment allowing the amendment, on the ground that complainants “ being neither children nor descendants of children of the marriage, are not within the scope of the marriage consideration, and that not claiming as heirs at law of the deceased party, nor being entitled so to claim,.they aro, as far as any benefit was intended for them in the marriage settlement, volunteers, and the said agreement cannot be reformed at their instance.”</p> <p>At October Term, 1857, of the Superior Court, complainants moved to dismiss their bi\l without prejudice, which motion defendants resisted. The Court granted the motion, dismissing the bill without prejudice, and counsel for Cook excepted.</p>

<p>After the evidence was closed, the Court told the jury, that a certain part of it was insufficient to support the plea. That part was sufficient to support the plea; but its effect was annulled by another part. No motion was made for a new trial.</p> <p>Held, That for such an error, a new trial ought not to be granted by this Court-</p>

Scire facias to forfeit recognizance, from Crawford, Decision by Judge Powers, September Term, 1857.

In Equity, from Marion County. Decision by Judge Worrill, September Term, 1857. Alfred Bowen, in the year 1825, being a resident of Stokes district in the county of Morgan, and entitled, under the Acts of 1825 and 1826, for the distribution of the land acquired of the Creek Nation of Indians, to two chances or draws in the land lottery of 1827, gave in his name to the receivers of names in Stokes district.

Illegality, from Bibb county. Decision by Judge Lamas, at January adjourned Term, 1858.

<p>Ejectment, from Stewart county. Tried before Judge Kid-boo, October Term, 1857.</p> <p>A motion was made for a new trial by the plaintiff in error, who was defendant in the Court below, on the following grounds:</p> <p>1st. That the Court erred in ruling out the bond from Died W. Pace to Owen Henry Cravy, which had been transferred as appears on the back of said bond to John Fitzgerald, on the ground that the execution of said bond and said transfer was not proved by either of the subscribing witnesses.</p> <p>2d. That the plaintiffs proved a copy of the deed from Booth to Pace by Interrogatories, when said plaintiff had in Court an established copy of said lost deed at the time of the trial, which was unknown to defendant.</p> <p>3d. That the Court erred in charging the jury that if it was proved that the defendant was in possession of any part of the land it was sufficient proof of possession to authorize a recovery of the whole lot, the case being made out in other respects.</p> <p>4th That the finding of the jury was contrary to evidence.</p> <p>5th. That the finding of the jury was contrary to law.</p> <p>In support of the motion the defendant made an affidavit to the effect that he did not know at the time of the trial that the plaintiffs had the established copy of the deed in their possession.</p> <p>John B. Spoon, one of the witnesses, testified: That about the time of the commencement of 'the suit, in the year 1854, the defendant was living on the lot of land in dispute ; that in the year 1844 or 1845, the defendant cleared a small part of the lot adjoining the lot he lived on, by extending his cow-pen over the line so as to take in a small part of this lot, the part so cleared was less than one acre. That in 1846, Owen Cravy, deadened a piece of ground on the lot in question, fifteen or twenty acres, but did not move on the land. In 1847, Owen Gravy moved from the neighborhood, and John Fitzgerald did not claim the land until after Cravy left, nor did he object to Cravy’s working the same; that Fitzgerald subsequently built and moved on the said lot, and remained there till he went to Alabama.</p> <p>The Court refused the motion for a new trial, and ordered that the verdict should stand and plaintiff have judgment thereon.</p> <p>To this decision of the Court the defendant excepted.</p>

Equity, from Muscogee county. Decided by Judge Wouhill, January, 1858. The bill of exceptions in this case was filed to the decision of the Court below, in refusing to dissolve an injunction which had been granted under the following circumstances: Martha Neal, as administratrix of Joseph Neal, filed her bill for an injunction, to restrain Farish Carter, Raphael J. Moses, and Randolph L. Mott, from selling property comprised in a deed under which they were trustees.

New trial from Taylor county. Tried before Judge Worrill, October Term, 1857. This was an action brought in Taylor Superior Court by Elizabeth Paulk, as administratrix of Uriah Paulk, deceased, against the South-Western Railroad Company, to recover damages for killing the said Uriah by the cars on the said railroad, at Butler, in Taylor county, on the 29th day of December, 1855.

<p>Equity from Muscogee county. Decided by. Judge Worrill, May Term, 1857.</p> <p>The original bill in this case was filed by Lemuel T. Downing, as Executor, under the last Will and Testament of Kenneth McKenzie, seeking the direction and construction of the Court upon the said Will.</p> <p>The plaintiff (among other things) set out in his bill the 3d item of the will of Kenneth McKenzie, upon which the present question arose, and which was as follows : “ Item 3d, I give and bequeath to the children begotten of the body of my beloved niece, Sophia McBride, and also the children begotten of the body of my beloved niece, Janett Bain, the amount or sum of #4,000 each, in bonds of the Companies above specified, and I will and ordain that the amount herein bequeathed to the children of niece Janett Bain, shall be chargable as a fund with the support and maintenance of said Janett Bain and her present husband during their natural lives; and I further will and ordain that the amount bequeathed to the children of my niece, Sophia McBride, shall be kept free from the control, management or guardianship oí the present husband of the last mentioned niece, or any future husband she may have.”</p> <p>The plaintiff also stated in his bill that under this item, Ann Bain, Kenneth Bain, Donald Bain, and Isabella Bain, all minor children of the said niece, Janett Bain, born during the lifetime of the testator, and Kenneth McBride, Margaret McBride, Murdock McBride, Donald McBride, and Janett McBride, living at the death of the testator, and Roderick McBride, born since, on the 4th day of April, 1855, all minor children of the said niece Sophia McBride, claimed each to be entitled to the sum of $4,000,and also that it was claimed and insisted by the children and their parents, that not only were these children entitled, but that each and every other child that had been or should thereafter be begotten of either of the said nieces were or would be entitled to a like sum of $4,000 each.</p> <p>That by the 14th item of the said will, the testator directed that the whole residue of his estate, whether consisting of real or personal property, not disposed of in any of the former bequests, should be a fund first chargeable with the payment of all his just debts, after which the residue should be divided into three equal shares or proportions — one third of said residue to be given to the City Council of Columbus, another third to be given to the Female Asylum of the said City of Columbus, and the remaining one-third to be given to his brother, Rory McKenzie.</p> <p>That these residuary legatees, and particularly the two former, insisted and claimed that under the 3d item the testator intended to bequeath the sum of .$4,000 to each only of the said two families, or sets of said children; $4,000 to the children considered as a class only of each niece, and not $4,000 to each child. And that they further insisted that even if the said children were entitled to take per capita then only the nine children born and living at the death of the testator were entitled each to its $4,000, and that neither Roderick McBride, born since, nor any other child bom since or hereafter to be begotten of the said two nieces are, or will be entitled to any share under the will.</p> <p>The Court was requested by the Counsel on the part of the Ladies’ Education andBenevolent Society,andtheMayor and Council of the City of Columbus uniting, to charge the Jury “ That if the Jury believe from the words of the will it was the intention of the testator to confine the bequest of $4,000 in the 3d item of the will to each set of children, instead of each child, then they will so find in their verdict.” This charge the Court refused to give, and the counsel excepted.</p> <p>The same counsel then asked the Court also to charge,</p> <p>“ That if the J ury believe it was the intention of the testator to confine his bequest to the children of his nieces then born, that they will then exclude, by-their verdict, the after born child.” This charge the Court also refused to give, and the counsel excepted.</p> <p>The Court then, among other charges, charged the Jury as follows: “ That it was the province of the Court to give a legal construction to the words of the will of the testator, and that the Jury were bound to take the construction put upon the words of the will by the Court, and that according to the construction put upon the words of the will by the Court the testator intended by the words in the third item of the will to give $4,000 to each of the children of J anett Bain and Sophia McBride, born before the death of the testator, and that if the Jury believed that Roderick McBride, a child of Sophia McBride, was born within nine months after the death of the testator, then the said Roderick was also entitled to $4,000.”</p> <p>The Court also charged the Jury, That the said children of Janett Bain and Sophia McBride, legatees under the will, were entitled to interest on the amount of their legacies from, the time of the death of the testator.”</p> <p>To both of these charges the counsel for the Ladies’ Education and Benevolent Society, and for the Mayor and Council of the City of Columbus, then and there excepted.</p> <p>The jury found by their verdict that each of the children of Janett Bain and Sophia McBride were entitled, to $4,000, besides interest from the death of the testator, and that Roderick McBride, born since the death of the testator, was also entitled to $4,000, besides interest from the same time.</p> <p>Counsel for the Ladies’ Education and Benevolent Society, and for the Mayor and Council of the City of Columbus, thereupon filed their bill of exceptions, assigning as error the charges so given by the Court to the jury, and the refusal of the Court to charge as requested.</p>

Certiorari, in Chattahoochee Superior Court. Decision by Judge Kiddoo, November 24th, 1857.

Ejectment from Stewart county. Trieclbefore Judge Kid-boo, October 34th, 1857. This case came on upon exceptions to, the rulings, by the Judge of the Superior Court, admitting certain evidence and documents upon the trial in the Court below.

Indictment for forgery, from Muscogee county. Decided by Judge Worrihl, in November Term, 1857. Bail after verdict of guilty. A true bill was found against Edmund C. Corbett, charged with demanding payment of a forged note. Corbett gave a b.ond with ample sureties, as required by the Court, to appear- and abide the judgment of the Court.

<p>When, upon application for that purpose, the Chancellor refuses to grant are order, taking a hill pro confesso, and this Court can see sufficient reasons in the record to j ustify his refusal, the Court is bound to affirm his j udgment, whether it be the reason that influenced his decision or not.</p>

<p>[1.] A judgment reversing another being itself reversed, the first judgment is reinstated, and will be considered final, after the lapse of ten years, notwithstanding at the instance of the defendant, it is remanded for further proceedings, none having been instituted within that time.</p> <p>[2.] Where the Court either foreign or domestic, has jurisdiction overtlie subject matter of the action, and of the person of the defendant, and the defendant is served and appears by counsel and pleads to the merits of the suit, the judgment will not be set aside because the verdict upon which it is rendered, is contrary to evidence.</p>

In Equity, from -Muscogee county. Decision on demurrer by-Judge Worrill, May Term, 1857. This bill was filed in the Superior Court of Muscogeecounty, by the four elder sons of Samuel Watkins, deceased,, against his two younger children, seeking the specific performance of an agreement.

In Equity, from Muscogee county. Decided by Judge Workill. November Term, 1857. The bill of exceptions in this case was filed by Abner Mc-Gehee, against the decision of the Court below, refusing to dissolve a writ of ne exeat which had been issued against him.

<p>Trover, from Baker county. Tried before Judge Allen, at December Term, 1857, on the appeal.</p> <p>William H. Odam, administrator of Caleb Faircloth, deceased,brought this action of trover against Jesse Nelms for the recovery of a promissory note, for four hundred dollars, made by Roger Hair and payable to deceased, and which plaintiff alleged was the property of his intestate, &c.</p> <p>The testimony on the trial was very conflicting, as to the circumstances and terms upon which the note had been delivered to Nelms by Faircloth in his lifetime. The witnesses for plaintiff testifying, that it was placed in his hands for safe keeping. The witnesses for defendant swearing that it had been turned over to defendant as a payment or indemnity to him for taking care of and supporting the family of deceased, who were living at his house at the time of Fair-cloth’s death,</p> <p>Defendant’s counsel requested the Court to charge the jury:</p> <p>1st. That if they believed from the evidence that plaintiff’s intestate delivered the note under an agreement that defendant was to support and maintain the minor children of deceased, that this was a good and valid consideration, .and plaintiff was not entitled to recover: That whether defendant had supported the children or not, had nothing to do with the present issue — if he had failed so to do, the children could proceed against him under such agreement.</p> <p>2d. That if the jury believed that defendant had 'a claim or lien upon the note, then he was entitled to retain it until 'his claim was paid, or the amount of it was tendered to him, and if this had not been done, the plaintiff was not entitled to recover. The Court gave in charge the first request, but refused the second.</p> <p>The jury found for the plaintiff, and defendant moved for a new trial on the grounds:</p> <p>1st. That the verdict was contrary to the evidence and •against the weight of evidence.</p> <p>2d. That the verdict was contrary to the charge of the Court.</p> <p>3d. That the Court erred in refusing to charge, as requested b y defendant.</p> <p>After argument, the Court granted a new trial, on the grounds: 1st. That the verdict was against the charge of the Court: And 2d. That the Court erred in refusing to charge as requested by defendant’s counsel.</p> <p>To which decision granting a new trial plaintiff excepted.</p>

<p>The facts of this case are fully stated in the opinion of the Court.</p>

Certiorari, from Calhoun county, decision by Judge Allen, at November, Term, 1857. Brown and Wright had sued out a certiorari from the Superior Court, directed to the Justice of the Peace of the 1133 district, requiring him to certify and send up to the Superior Court, to be held on the 4th Monday in May next, the proceedings in a cause, wherein exception had been taken to his judgment.

Scire facias to forfeit recognizance, from Taylor county. Decision by Judge Worrell, at October Term, 1857.

<p>Assumpsit, from Taylor county. Tried before Judge Worrill, October Term, 1857.</p> <p>The jury in this case found for the plaintiffs, and defendant moved for a new trial, on the grounds,</p> <p>1st. Because there is no evidence to support the verdict.</p> <p>2d. Because the verdict is contrary to the evidence and law.</p> <p>3d. Because the Court erred in admitting the evidence of Sampson S. Roy, who was interested in the event of the suit.</p> <p>4th. Because the Court erred in neglecting to charge the jury, that any promise made since 1844, to take the case out of the statute of limitations, should be in writing.</p> <p>The Court refused the motion for a new trial, and defendant excepted.</p>

In Equity,from Houston. Decision on demurrer, by Judge Worrill, at October Term, 1857. This was a bill filed by James H. King, and his wife, Eliza King, formerly Eliza Engram, against John Hose and William F. Engram.

Indictment, from Worth Superior Court. Tried before Judge Powers, at October Term, 1857. Edward Reynolds was indicted for changing the marks and brand of a hog belonging to Jackson J. Williams.

Motion to enter judgment Nunc pro time, from Crawford. Decision by Judge Powers. September Term, 1857. Held: that if interest was not to be calculated upon said verdict, from its date, it was void for uncertainty, as no time was designated by said verdict, from which interest was to be computed. To which ruling counsel for Pitman excepted.

<p>S., a debtor, in failing circumstances, was indebted to W. $1,350; and to secure the payment “sold, transferred and assigned” notes and accounts amounting to $2,800. Tlie original indebtedness from S. to "W. was not extinguished by this assignment.</p> <p>Hold, that the transaction being neither a sale nor a mortgage, but a partial assignment, wa& obnoxious to the prohibition in the Act of 1818, and void.</p>

Ejectment : from Calhoun county. Tried before Judge Allen. November Term, 1857. This was an action of ejectment brought by Doe on the several demises of John Hollingsworth and James Hollingsworth, executors of Thomas Hollingsworth,deceased, against Roe, cas. ejector, and Wallace W. Dickey, tenant in possession, to recover lot of land No. 158, in the 4th district of Calhoun county.

Assumpsit, from Decatur. Tried before Judge Allen, (BtoJtober Term, 1857. TiTiis was an action of assumpsit, by Henry D. Shehee against John P. Gaulden, on a promissory note, made by Gaulden for $2,500.

Assumpsit, from Dougherty county.- Decision by Judge Allen, at November Term, 1857. This was an action by Samuel Smith against Merrick Barnes, upon the following written instrument, to-wit : Albany, January 4, 1855.

Ejectment, from Baker. Tried before Judge Allen. November Term, 1857. This was an action of ejectment by John Doe, on the several demises of Joseph Butler, and Augustus S. Jones, against Richard Roe, casual ejector, and Franklin O. Welch, tenant in possession, for the recovery of lot of land, No. 157, in the 9th district of Baker eounty. The case, by consent, was transferred to the appeal.

<p>¡ 1.] The verdict of ajury may bo amended in form, to correspond with the nuuiifost intent of the jury apparent in the verdict.</p> <p>[2.] An attorney at law who is called on to write a bill of sale for a negro, is not prohibited by the statute from giving evidence of a conversation between the parties in relation to the contract.</p> <p>[3.] Request to charge, not warranted by the evidence in the cause, ought not to be given.</p> <p>[4.] A party making a positive assertion of the solvency of the maker of a note, in order to enable him to pass it off in a trade, when from circumstances ho is presumed to know his condition, and he knows that tile party with whom he is trading supposes him to be acquainted with it, is liable, if the maker be insolvent at the time.</p> <p>[5.] Declarations that a person is solvent, have reference to the time when tiie declaration is made.</p> <p>[6.] Request to charge not warranted by the evidence, need not bo given.</p> <p>[7.] If plaintiff declare in deceit against a defendant for the fraudulent representation that the maker of a note, which he proposed to trade to him, was solvent, when he knew at the time he was insolvent, he must sustain both allegations by direct proof, or by circumstances, to the satisfaction of the jury.</p> <p>Lb'.] The return of nulla Iona on an execution against a debtor, is not the highest evidence of his insolvency. His discharge under the insolvent debtor’s act is higher and better evidence of that fact.</p>

Caveat to will, from Stewart Superior Court Tried before Judge Kiddoo, at April Term, 1857. 1st. The caveators having introduced and examined Frances Andrews as a witness, the propounders, by way of impeaching and discrediting her testimony, proposed to prove by B. K. Harrison, Esq., that she was a notorious prostitute. Counsel for caveators objected.

In Equity, from Dooly Superior Court. Decision by Judge Powers, at October Term, 1857. Motion to Dissolve Injunction. This bill was filed by James W. Brown, against Solomon Newsom, ITeury D. Mashburn, and Louisa Oliver, for relief, discovery and injunction.

In equity, from Muscogee comity. Decided by Judge Worbxll, November Term, 1857.

<p>In Equity, from Randolph county. Decision by Judge Kiddoo, at May Term, 1857.</p> <p>The fact of this case, are fully stated in the opinion of the Court.</p>

In Equity, from Dougherty county.» Decision by Judge Allen. For a full statement of the facts of this case, see 19 Ga. Rep. 270. The cause coming up again on a motion to dissolve the injunction upon the amended answer, the Court refused the motion and counsel excepted.

Motion to establish a lost paper, from Muscogee county. Decided by Judge Worrill. May Term, 1857. A motion was made to establish a copy of a receipt, which had been mislaid or destroyed.

<p>[1.] In ail action of trover for promissory notes, the matter in issue is the title to the notes, and not the consideration for which they were given.</p> <p>[2.] If a jury find a verdict generally for the difference between notes, it is no error for the Court to send them back to find the amount.</p> <p>[3.] If the jury find against a fact, the proof of which depends on circumstantial evidence, the Court cannot, on a motion for a new trial, assume the fact as proven.</p> <p>[4.] A party cannot obtain a new trial on the ground of newly discovered evidence, when the evidence was in his own possession, and known to be so at the time.</p> <p>[5.] Promissory notes are evidence of their own value in an action of trover.</p> <p>[0,1 In an action of trover for a promissory note, whether the party who made the contract, gave too much or too little for the property for which they were given, cannot be enquired into.</p>

<p>Ejectment, from Stewart county. Tried before Judge Kid-boo. June, 1857.</p> <p>The plaintiffs in error in this case, brought an action oí ejectment in the Superior Court of Stewart county, against W. E. Paremour, tenant in possession, to recover possession of lot of land No. 239, in the 22d district of Stewart county. At the trial of this action the plaintiffs offered in evidence a power of attorney executed in Montgomery county, Texas, whereby Green Ii. O’Bannon appointed James R. Butts, his agent and attorney, to sell and convey the lot of land in question.</p> <p>Defendant’s counsel objected to the introduction of this power of attorney, which objection was sustained by the Court, and the power of attorney rejected. To this decision the plaintiffs excepted.</p> <p>The specific grounds on which the objection to the admission of this power of attorney was founded, were not stated in the bill of exceptions. It appeared that the power of attorney was executed in Montgomery county, Texas, and attested by a Justice of the Peace for the county of Montgomery, (whose certificate was produced) and also by another witness, and the execution acknowledged before Charles B. Stewart, a Notary Public for the same county; but no affidavit of the attesting witnesses was produced, nor the certificate <of the person authorized to take such affidavit, stating the addition and place of abode of the parties making it, as required by the 4th section of the Act of 1785, regulating the admission, as evidence in the Courts of Georgia, of powers of attorney executed in other States.</p> <p>Defendant offered in evidence a deed from Green H. O’Ban-non, to one Jarrett, of the lot of land in dispute, dated the 15th of November, 1833. To the introduction of this deed, as a conveyance of title, plaintiffs objected, on the ground that it was executed prior to the issuing of the plat and grant (which was dated the 23d day of December, 1837.) This objection the Court overruled, deciding that the issuing of the grant after the execution of the deed to Jarrett, (and O’Ban-non not having, in the meantime, or since the issuing of the grant, deeded the land to any other person) enured to the benefit of Jarrett, and that O’Bannon was estopped by his deed with warranty to Jarrett, and could not dispute his title. To this decision the plaintiff excepted.</p> <p>Plaintiff then offered in evidence the certificate of R. B. Johnson, to prove that Charles B. Stewart was a notary public. To the admission of this evidence the defendant objected, and the Court sustaining the objection, the plaintiff excepted.</p> <p>By the consent of the parties, an order was taken dismissing the case; the same right of excepting and carrying the case to the Supreme Court being reserved to the plaintiff as if there had been a verdict for the defendant.</p> <p>The plaintiff filed his bill of exceptions, alleging that the Court erred,</p> <p>1st. In rejecting said power of attorney from Green H. O’Bannon to James R. Butts, and not allowing the same to go in evidence to the jury.</p> <p>2d. That the Court erred in deciding that the deed from O’Bannon to Jarrett estopped him from denying the title of Jarrett to the land, and that the issuing of the grant after the execution of said deed enured to the benefit of said Jarrett, and vested a perfect title in said Jarrett.</p> <p>The following note, made by the Judge of the Superior Court, appeared on the record opposite the 2d ground of exception :</p> <p>“The Court did not hold that it vested aperfect title, bus that it was good against Bannon. D. K, J. S. C.”</p> <p>3d. That the Court erred in rejecting the certificate of R. I). Johnson, and not allowing the same to go in evidence to the jury.</p>

Ejectment, from Baker county. Tried before Judge Allen, November Term, 1857. This was a motion for a new trial. An action of ejectment was brought by James S. Patillo against Jacob Watson, to recovera tract of land which had been granted to Joshua Tindal, a revolutionary soldier, in 1831.

Ill Equity, from Dougherty county. Tried before Judge Allen, June Term, 1857. This was a suit instituted by Green B. Burney, as administrator of Anson Ball, deceased, against Milton C. Ball, to recover certain property of his intestate.

<p>Trover, and New Trial, from Muscogee county. Before Judge Worrill, November Term, 1857.</p> <p>This was an action of trover, brought by Robert Parker, and others, against James M. Chambers, for the recovery of certain negroes named in the declaration.</p> <p>Upon the trial, the plaintiffs introduced (inte,r alia) the following testimony:</p> <p>1st. The will of J. Christopher Pritchett, dated the 21st of October, 1807, by the 2d item of which the testator lent unto his daughter, Chloe Parker, during her natural life, one negro woman, Maria, and 4 children, namely, Jim, Dan, Mary, and Aggy, together with her future increase, and at her death, the said Maria and her increase were to be equally divided amongst the children of his said daughter Chloe? lawfully begotten of her body.</p> <p>To the admission of this will the defendant objected. The Court overruled the objection, and admitted the same as evidence.</p> <p>2d. The answers of Sally Sullivan to a set of interrogatories, to the following effect: That she thoughtthenegroesin question were loaned to John Parker and Chloe Parker; that she was sent by her mother, at the direction of her father, to tell John and Chloe Parker to send the negroes home. Chloe Parker and herself were half-sisters. In answer to cross interrogatories, the witness stated that John and Chloe Parker were married nearly 54years ago, and went to housekeeping shortly after their marriage; that she thought the negroes, were loaned to them shortly after they went to housekeeping; they remained in North Carolina 16 or 17 years after they came into possession of the negroes..</p> <p>3d. The plaintiffs also read in evidence the answers of Sally Sullivan to a 2d set of interrogatories, to the following purport; That the reasons which induced her belief that the negroes in controversy were loaned by her father, Christopher Pritchett, to Chloe Parker were, that the negroes were permitted to go into the possession of John and Chloe Parket at their marriage, and that she was sent at the instance of her father to John Parker’s house, to tell him or Chloe Parker to send the negroes home; that she told either John or Chloe Parker her father’s request, and the negroes were sent home immediately, and after staying a short time at her father’s, they were sent back again to John Parker’s; that her father was a particular man, and required John Parker to send home the negroes eveiy year to stay a short time, and then her father would send them hack; never heard John Parker say that her father hada right to control the negroes, hut she judged from his acts that he admitted it. Upon one occasion her father took the control by having the negro woman Maria whipped, and said he did it as he did not wish to pay costs, and to this John Parker did not object.</p> <p>In answer to cross 'interrogatories the witness stated, that John Parker did not have possession of the negroes till some considerable time alter the marriage.</p> <p>To the admission of the answers to the 2d set of interrogatories, the defendant objected. The Court overruled the objection, and admitted the same in evidence.</p> <p>During the progress of the trial, the plaintiffs moved to strike out the names of two of the plaintiffs, viz John and Susan Woods. The defendant objected. The Court allowed the names of those plaintiffs to be struck out. c 4th. The plaintiffs then introduced as a witness, the defendant, James M. Chambers, who testified, that he had the negroes (specifying them and their value,) in his possession, and claimed them as his own; that he obtained them from Archibald McCoy; Mary by purchase, Jim under the will of McCoy; all the rest are the descendants of .Mary; got the negroes from McCoy about the year 1822 ; McCoy bought Jim and Mary from John Parker between 1818 and 1822; remembered when they were brought home after the purchase; the Parker family remained in the neighborhood many years after the purchase.</p> <p>The jury found for the plaintiffs $13,500, to be discharged by the delivery of the negroes within thirty days; and the further sum of $7,500 for hire.</p> <p>Whereupon, defendant moved for a new trial on the following grounds:</p> <p>1st. Because the Court erred in refusing to suppress the depositions of Sally Sullivan on her second and last examination.</p> <p>2d. Because the Court erred in admitting in evidence, (the defendant objecting thereto,) the opinions of Sally Sullivan, as disclosed in the brief of evidence.</p> <p>3d. Because the Court erred in admitting in evidence, (the defendant objecting thereto,) proof by Sally Sullivan, of the general character of her father, as disclosed in the brief of evidence, and in admitting all that portion of the evidence of Sally Sullivan that was objected to by'defendant on the trial.</p> <p>4th. Because the ¡Court erred in permitting the plaintiffs, in the progress of the trial, to strike out the names of John Woods and Susan Woods, and the cause to proceed in. the name of the other plaintiffs.</p> <p>5th. Because the Court erred in charging the jury, that if any of the children of Chloe Parker died before she died, that the right to the whole property, if any, vested in the surviving children of Chloe Parker upon her death.</p> <p>6th. Because the Court erred in charging the jury, that unless the plaintiffs knew, at the time Chambers purchased the negroes, that they were remainder-men under the will, that their subsequent silence or failure to make known their claim, though within their knowledge claimed in fee simple by-Chambers, did not operate as a waiver of their right, nor were they thereby estopped from asserting the same.</p> <p>7th. Because the Court erred in refusing to charge the jury, that they might infer knowledge on the part of the plaintiffs, or any one of them, from their conduct, and the circumstances shown by the evidence.</p> <p>'8th. Because there was no evidence submitted to the jury showing that the executors to the will of Pritchett, if any, ever assented to the legacy of Chloe Parker and her children.</p> <p>9th. Because the jury found contrary to law and the charge of.the Court.</p> <p>10th. Because the verdict was without evidence, and contrary to the evidence.</p> <p>11th. Because the verdict was contrary to the weight of evidence.</p> <p>12th. Because the Court erred in charging the jury, that in order to enable them to find, that the plaintiffs or any one of them, had waived their title to the property in controversy, or were estopped from asserting it, they must be satisfied that such plaintiff was 21 years old at the time of said alleged waiver, or of said alleged estoppel, and had actual and personal knowledge of their right or claim to said property, as contained in said will of Christopher Pritchett; and in charging them further on this point, that it devolved on the defendant to make the proof of these several facts to the satisfaction of the jury.</p> <p>13th. Because the Court erred in admitingin evidence, the will of Christopher Pritchett, in the absence of evidence that the said testator had such claim, right or title to the negroes in controversy, as authorized the disposition of the same by will or otherwise.</p> <p>14th. Because of newly discovered evidence since the trial, &c.</p> <p>In support of the 14th ground, as mentioned, the defendant made an affidavit to the effect, that since the trial he had discovered new and important evidence, set out in the affidavits of L. Fletcher and Spencer Sullivan, and that if he had known the same at the trial, he would have had those witnesses present in Court, and have moved to suppress the evidence of Sally Sullivan.</p> <p>Spencer Sullivan’s affidavit was to the effect, that he was present in the room when the answers of Sally Sullivan were taken, and that Christopher Parker and Robert Parker were present in the room during a part or the whole of the time.</p> <p>Wm. L. Fletcher, by his affidavit, stated that he acted as one of the commissioners in taking the answers of Sally Sullivan ; that Kitt Parker desired him to act as a commissioner in taking the answers of Sally Sullivan, and that he agreed to do so; that Kitt Parker introduced him to the witness; Kitt Parker and deponent both propounded questions to her, and interrogated her as “to the loan of the negroes;” that he proceeded to write down the answers of the witness, and at the same time Kitt Parker walked out upon the piazza; that while he was taking down the answers of witness, he saw Kitt Parker several times on the piazza, and the witness must have seen him; Kitt Parker was in such a position as to have been able to hear the testimony of the witness; that the witness had displayed in a wonderful degree, her powers of tedious narrative, and that he had, in taking down her evidence, “ sifted the chaff from the wheat.”</p> <p>Upon hearing the rule nisi, the Court granted the new trial, and to this decision plaintiffs excepted.</p>

<p>[1.] The Court may withdraw a charge at the instance of the party in whoso favor it is made.</p> <p>[2.] U here there is conflicting and contradictory evidence as to the value oí worth of a slave by reason of his unsoundness, and the jury adoptan average as the measure of their verdict, the finding is not illegal on that account.</p>

Covenant, from Harris Superior Court. Tried before Judge Worrill, at October Term, 1857. This was an action by Abraham Martin, administrator of his deceased wife, Sarah Martin, formerly Wardlaw, against Alexander J. Gordon, to recover damages for breach of a covenant of warranty of title to a lot of land. It appeared that defendant sold and conveyed the land to one John Fife, and the price or consideration, as contained ■and recited in bis deed, was 500 dollars.

' Garnishment, from Muscogee county. Decided by Judge Woruill, November Term, 1857. An action of trover was brought by the plaintiff in error' against the Manufactures and Mechanics Bank of Columbus, to recover deposits he had made with the bank. Upon this action the plaintiff obtained a judgment in his favor, against the bank, and upon this judgment a summons of garnishment was issued against the defendant in error, as garnishee of the bank.

In equity, From Houston county. Tried before Judge Powers at the April Term 1857. This was a bill filed .by Sheppard Rogers and Nancy L. his wife, formerly Nancy L.'Gartrell, against Carltm Well-born, for an account and settlement of the estate of Joseph Gartrell sen., deceased, and to recover from defendant the share or legacy due and coming to Mrs. Rogers under the will of her deceased father — the said Joseph.

In Equity from Randolph county. Tried before Judge Kiddoo, at May adjourned term, 1857. Sarah Sanderlin and others, as heirs and distributees of Henry Sanderlin, deed., filed this bill against Jesse and William Sanderlin, administrators of said deceased, to compel them to account for a negro man named Elias, which complainants .alleged belonged to the estate of intestate. It appeared that Jesse Sandlin, one of the defendants, was the father of deceased.

In Equity, in the Superior Court of Muscogee county. Tried May Term, 1857. Judge E. H. Wormxl presiding.

In Equity, from Muscogee. Decision on demurrer by Judge Worrill, May Term, 1856. Lewis J. Davis brought suit against Abner H. Flewellen, administrator of Nathaniel H. Harris, deceased, on a demand due and owing to him by Harris, and to which Samuel Koockogey was surety.

<p>When causes are referred to an arbitrator who is to pass upon questions of law and fact, and also all the equities involved, with the right of any party interested to appeal therefrom to the Supreme Court on any question of law or equity psssed upon and decided, the Court will not reverse the judgment of the Court making the award its judgment, if the law and equity upon thei facts as found by the arbitrator are correctly administered.</p>

Trover, from Fulton county. Tried before Judge Bull at October Term, 1857. ' This was an action of trover by Synthia Jennings ana others, heirs and distributees of Allen Jennings, deceased, against Anderson M. Parker, for the recovery of a lot of negroes, which he Parker received in right of his wife, under the will of said Allen Jennings, deceased, and upon her death the same were claimed by the plaintiffs as the»heirs at law of the testator.

Assumpsit, from DeKalb county. Decided by Judge Bull? October Term, 1857. This was an action of assumpsit upon a promissory note for $1,000, given in 1853, by the plaintiff in error, who was the defendant in th.e Court below, to William T. Williamson, and by the said Williamson transferred to the defendant in error.

Attachment and Garnishment, from Floyd county. Deci•ded by Judge Hammond. August Term, 1857.

<p>Fraudulent schedule of insolvent from Newton county, Decided by Judge Cabiness September term, 1857.</p> <p>This was issue of fraud made up on the schedule which had been filed by William L. Hubbard under the insolvent debtor’s act. In this schedule was the following entry: “Money received of the executors of Charles M. Berry by my wife and in her own right and paid over by her for the sole and separate use of herself and her children into the hands of Woodson H. Berry, trustee, principal and interest, up to date $848.”</p> <p>The plaintiff introduced William T. Berry, who testified ' that he was the executor of Charles M. Berry, deceased that as said executor he paid over to defendant’s wife, the daughter of the deceased, about $800, part Christmas a year ago, and part Christmas before; and that at the time he paid it to the said defendant’s wife, he took from her a receipt which was written in Covington and sent to the defendant to Atlanta; and after he had signed it it was handed to witness by the defendant’s wife ; the witness then paid the money to defendant’s said wife, it being the amount coming to her from the estate' of her father.</p> <p>Defendants’ counsel proposed to ask this witness if the defendant did not uniformly, before said money was paid to his wife, always refuse to receive said money. The plaintiff objected to this question being put to the witness, and the Court refused to allow it to be put as illegal, and the-counsel for defendant excepted.</p> <p>Defendant’s counsel then proposed to prove that before said money was paid over, the defendant refused to take if because it belonged to his wife and children; but the Court ruled that nothing could be proved 'on the subject except what was said by the defendant or the executor at the time' of the payment of the money ; to which ruling of the Court defendant’s counsel excepted.</p> <p>Defendant’s counsel then asked what was said by said defendant as to receiving the money before said receipt was handed to him. This question was objected to, and the Court overruled the same, and defendant’s counsel excepted.</p> <p>Counsel for deféndant asked the Court to charge the jury "that if the schedule of the defendant fairly apprise the creditors of the nature of the assets, so as to enable them to hunt them up and do all in bis power to place the effects in the knowledge and power of the creditors, that is all the law-will require of an insolvent debtor in cases where the effects ;are not in possession of the defendant.”</p> <p>The Court refused so to charge, but charged the jury "that when defendant’s Avife received the money from the executor of her deceased father’s estate, it vested in her husband eo instcmti, and her possession was his possession. If the plaintiff was indebted at that time, any engagement made or permitted to be made by him to secure the money so received through his wife to and for her separate use, was a fraud upon his creditors. There Avas a process by Avhich his Avife’s equity to the separate use of the money coming to her from her father’s estate could have been asserted and maintained ; but failing to use that process when she received the money, his marital right attached^’and it became his property; and if the jury believed, from the testimony, that he was indebted at that time, and'that he settled it upon his wife, or permitted arrangements to be made for that purpose by placing it in the hands of a trustee, that was a fraud upon his creditors, and the jury should so find. But if he was not indebted at the time his wife received the money, he had the right to settle it upon her free from his future debts; and if such was the fact, the jury should find for the defendant As they might believe the fact from the testimony, so they should return their verdict, and by it say whether or not the defendant had made a fraudulent return of his effects in his schedule. It was simply a question of fraud or no fraud. If they believed, from the testimony, that the defendant had made a fraudulent return of his effects in his schedule, they should find the issue in favor- o'f the plaintiff; otherwise in favor of the defendant.”</p> <p>To this refusal to charge, and to the charge so given, defendant’s counsel excepted.</p> <p>The jury found a verdict, for the plaintiff, and the Court, ordered the defendant to be imprisoned' until he made a full and fair disclosure of all his effects.'</p> <p>To this decision of the Court the defendant’s counsel excepted, and filed his bill of exceptions, saying that the Court erred:</p> <p>1st. In refusing to allow defendant to prove by the executor that he had uniformly refused to receive the money before it was paid to his said wife.</p> <p>2d. In refusing to allow defendant to prove by said executor that before said money was paid over, defendant refused to take it because it belonged to his wife and children.</p> <p>3d. In holding that the receipt given could not be explained, and that nothing could be proven on the subject except what was said by defendant or executor (witness) at the time of the payment of the money; also in refusing to allow defendant to prove what was said by defendant’s wife as to receiving said money before said receipt was handed to said executor (witness.)</p> <p>4th. The Court erred in its general charge upon the subject as to defendant’s sayings. '</p> <p>5th. The Court erred in refusing to charge as requested by defendant’s counsel.</p> <p>6th. The charge of the Court as given was error and contrary to law.</p>

In Equity from Troup County. Decision by Judge Bull, at May Term, 1857. . On the 15th day of February, 1856, James R. George for the use of Matthew M. Scott, brought his action of debt against Vivian Holmes, returnable to Troup Superior Court, May Term, 1856, founded on a promissory note made by said Vivian Holmes, on the 13th December, 1851, whereby he promised on the 35th of December, 1853, to pay to James R. George, three hundred and twenty dollars for value received.

Caveat to will, in Monroe Superior Court. Tried before Judge Cabiness, at August Term, 1857. The following paper was propounded for probate before the Ordinary of Monroe county, as the last will and testament of Littleberry Lucas, deceased, to-wi't: State op Georgia, Crawford County: I, Littleberry Lucas, being of sound and disposing mind and memory, do hereby publish'and declare this to- be my last will and desire, as regards my property, and the disposisition of the same.