Volume 25 — Georgia Reports

Trover, from Spalding county. Tried before Judge Cabiness, November Term, 1857. This was an action of trover brought by Sarah C. Parker, and others, against Josiah Pyron and Lewis Pyron, executors of James Shipp, deceased, for the recovery of a negro woman slave named Caroline. Lewis Pyron, one of the executors, died pending the suit,, ■and the action proceeded against the survivor.

Assumpsit and New Trial, from Coweta county. Decided by Judge Bull, September Term, 1857. This was an action by Green B. Doster against James. Brown, to recover the amount which the plaintiff claimed for work done in the erection of a mill for the defendant. The dam of the mill was washed away and the defendant refused to pay the plaintiff the amount claimed. On the trial the plaintiff introduced a memorandum book to prove the account.

Covenant, from Spalding county. Tried before Judge Cabiness, at November Term, 1857. This was an action of covenant, by Theophilus Pearce against Lucinda Vaughn, for the recovery of damages for the breach of the warranty of soundness of a negro woman slave named Lucy, sold by defendant to plaintiff.

Trover, from Union county. Tried beforeUudge Rice, at November Term, 1857. This was an action of trover by John Butt, administrator of Robert C. Laughter, deceased, against John Reid, to recover a negro man named Cyrus, alleged to belong to the estate of his intestate. The defendant set up and claimed title to the negro under a purchase from Robert Laughter, a son of plaintiff’s intestate.

Trover and new trial, from Whitfield county. Decided by Judge Trippe, October term, 1857. This was action of trover brought by James A. Paxson, as administrator of William A. Monday, deceased, against John M. Jackson, to recover two buggies. It was claimed that the buggies belonged to Monday at the time of his death. The defendant purchased them from Bloodsworth.

Affidavit of illegality, from Cass county. Decided by Judge Trippe, September Term, 1857. An action was brought in the Court below by the firm of McWhorter & Brightwell, against Charles H. Hamilton of Cass county, as maker, and George W. Humphries, and Lloyd & Pulliam, of Fulton county, as endorsers, to recover the amount o'f two promissory notes.

Slander, from Walker county. Tried before Judge Trippe, at November Term, 1857.

<p>[1.] Aporson who sells land, receives notes for the purchase money, and gives a bond to make a title when tlie money is paid ; on the death of the purchaser insolvent, is entitled to have tho land sold and the proceeds applied to the payment of his deb\ and the excess alone can be claimed by tho creditors.</p> <p>[2.] Tho vendor, in such case, cannot claim a ratable proportion of his debt estimated at the full amount, from tho general assets of the estate, and then claim tho land, as not having been paid for. The debt of which he has a right to claim, a. ratable payment, is the balance remaining after crediting the amount for which, tho land may have been sold.</p>

In Equity, injunction from Catoosa county. Decided by Judge Trippb, October Term, 1857. The facts of this case are sufficiently stated in the opinion of the Court.

Larceny and new trial, from Fulton count3E Decided by Judge Buee, October Term, 1SS7. Nathan M. Markham was indicted for entering the house of Aaron M. Thomason, and stealing therefrom a silver watch, the property of Jeremiah Parker.

Ejectment, from Merriwether county. Tried before Judge Bull, at August Term, 1857. This was an action of ejectment to recover lot of land No. 255, in the 3d section and 10th district of originally Troup, now Merriwether county.

<p>[1.] A non-resident guardian may sue in tlie Courts of this Stale.</p> <p>[2.] If a ward attain the age of 21, during the pendency of the suit, ho may be substituted as party plaintiff in lieu of his guardian, and if he amend his declaration without leave of the Court, or an order of Court, it is no ground to dismiss the action, if he he prepared to make proof of his majority when objection is made. The Court ought to direct the order to be made, now fox then.</p>

Case, from Fulton county. Decided on demurrer, by Judg® Bull, at October Term, 1857. This was an action on the case brought by Eusebius Hutchings and John C. Hilton, bankers and exchange brokers, under the firm of Hutchings & Co., against James F. Cooper, Superintendent of the Western and Atlantic Railroad.

Award, from Upson county. Decided by Judge Cabiness, May Term, 1857. A suit in equity was pending in the Court below, and by consent of the parties, the matters in dispute were referred. to arbitration, and arbitrators appointed. These arbitrators made their award, to which exceptions were filed by the defendant in the suit.

In Equity. Decision on demurrer, by Judge Rice, at chambers, November 24, 1857. This was a bill filed by Gustavus T. Symmes, Robert H. Moore and James L. Howell, against Elizabeth Woods, administratrix of William Woods, deceased.

Claim, from Fannin county. Decided by Judge Rice, November Term, 1857. This was a claim for a lot of land. When the case came on, the administrator moved to dismiss the claim on the ground that no bond and security had been given. The Court held that it was incumbent on the claimant to file a bond as well as affidavit, which it was admitted had been filed.

In Equity, from Butts county. Decided by Judge Cabistess, at July adjourned Term, 1857. Nathan F. Camp executed a mortgage of two slaves to Bancroft, Betts & Marshall, merchants of the city of Charleston, South Carolina, to secure two promissory notes given by said Nathan F. and his brother, James B. Camp. The mortgage bears date 7th January, 1856. The notes are of the same date, and one for #535 56, due ten months after date; the other for #1383 39, and due 1st May, 1857.

Trover and new trial, from Upson Superior Court. Decided by Judge Cabiness, November Term, 1857. An action of trover was brought by James S. Walker, as administrator de bonis non, of the estate of William W. Walker, deceased, against Nathaniel F. Walker, to recover certain negroes.

Assumpsit, from Merriwether county. Tried before Judge Bull, August Term, 1857. This was an action of assumpsit by John Cartright against John P. Clopton, on the following promissory note, to-wit: Eight months after date we or either of us promise John Cartright or bearer, the sum of one thousand dollars, with interest from date, value received. April 2d, 1855. [Signed] L. C. CLOPTON, J. P. CLOPTON, Sec’ty.” The suit was against the security only.

<p>The facts necessary to an understanding of this case, are sufficiently stated in the opinion, of the Court.</p>

<p>H. died pending a suit against Mm; afterwards, an order was passed making Ms administrator, D., a party in Ms place — the order reciting, that D. had been served with a scire facias. D. moved to set aside this order, alleging that he had not been so served.</p> <p>field, that the recital in the order, did not conclude him from proving his allegation.</p>

In Equity, from Murray county. Decided by Judge Trippe, February Term, 1858. A demurrer was filed for want of equity, to a bill which had been filed by the defendants in error for an injunction* This demurrer was overruled by the Court.

Equity, from Pike county. Decided by Judge Cabiness, October Term, 1857.

<p>[1.] Where two tenements on the same lob, worth each several thousand dollars* are both levied on and sold together to satisfy a tax execution of less than one hundred dollars, the sale is absolutely null and void.</p> <p>[2.] The owner of a city lot mortgages it in 1855; in September, 1856, a tax execution is issued to collect the tux due by the mortgagor, for 1856, and soils, not the equity of redemption, but the whole property, a property worth six or seven thousand dollars, for less than one hundred.</p> <p>Held, That the lion of the mortgage is not divested by the sale.</p>

Manumission of slaves by will, from Monroe county. Decided by Judge Cabiness, August Term, 1857.

Equity, from Coweta county. Decided by Judge Hammond, September Term, 1857. A bill in equity was filed in the Court below, seeking to recover the sum of $28.

Indictment, from Polk county. Decided by Judge Hammone, October Term, 1857. At April Term 1856, Price was indicted in two cases, for “keeping open a Tippling House on the Sabbath day.” At the April Term, 1857, being the third Term afterwards, he made a demand for trial, which was entered on the minutes of the Court. At the next Term, the State was not ready for trial, and the defendant insisted on being discharged.

<p>A party arrested by ca. sa., and giving bond to take tlie benefit of tbo Act of 1825, for tbe relief of honest debtors, is not subject to be arrested a second time, by tko same ca. sa., until the case made by the giving of the bond, has been ended.</p>

Certiorari, from Fannin county. Decided by Judge Rice, November Term, 1857. This case came up in the Court below upon a certiorari. Thomas sued Ellis in a Justice’s Court on two notes. To that action Ellis pleaded the general issue ; and further, that an attachment had been sued out against one Bryson, and garnishment been issued against him, Ellis, upon which judgment had been rendered against him in Tennessee.

Ejectment, from Gordon county. Tried before Judge Trippe, September Term, 1857. This was an action of ejectment, for the recovery of a lot of land No. 282, of the 13th district and 3d section of Gordon county. Upon the trial the plaintiff introduced the grant of the lot in question, from the State, to Berry Stephens, orphan, of the 633d district of Dooly county. He also introduced his letters of guardianship.

New trial, from Heard county. Decided by Judge Hammond, August Term, 1857. Brown & Bowen brought an action in a Justice Court against Robinson on an open account for $¡28 75. The Court gave judgment for the plaintiff for the full amount. The defendant appealed. When the case came on for hearing, upon the appeal, the defendant did not appear. Plaintiff’s counsel read an affidavit made by Bowen, proving two of the items in the account, amounting to $4 50.

Murder and continuance,from Cass county, decided by Judge Trippe, September Term, 1857. The plaintiffs in error were indicted for murder. When the case came on for trial in the Court below, and the prisoners had announced themselves ready for trial, the Solicitor General stated that the State was not ready for trial, and moved the Court to continue the case without making any othershowing for the continuance.

Equity, from Fulton County. Decided by Judge Bull, October Term, 1857. Aaron Alexander filed his bill for an injunction to restrain the Sheriff from proceeding on a fi. fa. In September, 1856, William Markham instituted his action of assumpsit against the said Alexander, founded on two promissory notes, which Alexander had given him in payment of certain lands in the city of Atlanta, in the county of Fulton.

Certiorari, from Floyd county. Decision by Judge Hamtiíond, at February Term, 1858. J. R. Saxon, a citizen of Rome, Floyd county, having committed a crime, fled to the State of Alabama, where he remained ; his wife, however, continued to reside in Rome.

Motion, from Floyd county. Decision by Judge Ham-3áOND, at August Term, 1857. Francis J. Sullivan brought suit against Robert R. Richardson on a promissory note for $75, returnable to August Term, 1853; bail was required, and William Ketchum and R. D. Harvey became his sureties on the bail bond. Bail bond dated 28th April, 1853.

<p>Motion for new trial, from Cass county. Decided by Judge Trippe, September Term, 1857.</p> <p>The facts of this case are fully stated in the opinion of the Court.</p>

<p>Foreclosure of mortgage, from Spalding county. Decision by Judge Cabinéss, at November Term, 1857.</p> <p>This was a proceeding by Richard Wayne, administrator' of Robert H. Griffin, deceased, assignee of Hamilton & Hardeman, to forclose a mortgage of a house and lot, executed' by Curtis Lewis to[said Hamilton & Hardeman.</p> <p>The mortgage bears date 1st June, 1849, and was made by Lewis to secure Hamilton & Hardeman for certain funds, before that time, advanced, as well as to indemnifyand save them harmless for any advances, acceptances or endorsements, made thereafter by them for and on account of said mortgagor.</p> <p>The usual rule ra'sijwas issued and served upon the mortgagor, who appeared and showed for cause why judgment absolute should'not be entered against him :</p> <p>1. Because no copy of the mortgage deed is filed with the petition for foreclosure.</p> <p>2. Because there is no averment in the petition that the mortgage has any¿words of negotiability or assignability, by which mortgagees were authorized to assign the same.</p> <p>3. Because a mortgage deed assignable, must be assigned by an instrument or endorsement under the hand and seal of the mortgagee, and if not so assigned, any action thereon must be in the^name of the mortgagee for the use of the equitable owner oUholder thereof.</p> <p>4. Because^there is no averment in the rule nisi, that the mortgage has been assigned in any way, verbally, or in writing.</p> <p>5. Becausejjthere is no proferí made, in said rule, of the mortgage.</p> <p>6. Because no averment or exhibit of debts due to or liabilities incurred by the mortgagee, is made either in the petition or rule.</p> <p>7. Becausejthe drafts [alleged to have been accepted, bear .date after the execution of the mortgage.</p> <p>S. There, is no allegation that the drafts accepted Avere .assigned, nor were the demands of the mortgagees assignable, the same being for money advanced and due, if at all, on account.</p> <p>9. Because the drafts, copies of Avhich are annexed to the rule, Avere not the anticipated indebtedness and liabilities, Avhich the mortgage was intended to secure or indemnify against.</p> <p>10. Because no part of the amount or sums claimed to be due, is secured, or was intended to be secured by the mortgage.</p> <p>All of Avhich were overruled by the Court as insufficient, and defendant excepted.</p> <p>Counsel for plaintiff, then offered in evidence, first, the copy mortgage, and then the original. Defendant objected on the ground that no profert or exhibit thereof was made in the rule served on him, nor filed in office. The objection was overruled and defendant excepted.</p> <p>Plaintiff next offered in evidence his letters of administration 5 defendant objected on the ground that no profert thereof Avas made in the rule nisi, although made in the petition. The Court overruled the objection and defendant excepted.</p> <p>Plaintiff then tendered in evidence the original drafts, copies of which were annexed to the rule, without proving that the drawees or mortgagees had paid or advanced the money on them. Defendant objected on the ground, that the legal presumption was that the drawer had funds in the ■ hands of the acceptor and drawee sufficient to pay the drafts, ' and the plaintiff must prove that they were paid out of the draAvees own funds, and then defendant became indebted for money paid and advanced, and not as drawer of the bills; The Court overruled the objection and defendant excepted.</p> <p>The Court ordered the rule to be made- absolute, and defendant excepted.</p> <p>Whereupon council for defendant tendered his bill of ex ceptions, assigning as error the rulings and decisions above excepted to.</p>

Trover, and amendment of declaration, from Union county. Decided by Judge Rice, November Term, 1857. This was an action of trover, brought by Butt, administrator, &c., against Robert Laughter.

Ejectment and new trial, from Whitfield county. Tried before Judge Triyye November Term, 1857. This was an action of ejectment. At the trial the plaintiff introduced in evidence the grant from the State of Georgia of the lot of land in question to Lary J. Simmons, dated the 14th of August, 1835. Plaintiff then tendered in evidence a deed from Lacey J. Simmons to William Cooper, which was dated the 3d of May, 1837, and in due form.

Assumpsit and new trial, from Floyd county. Decided by Judge Hammond, August Term, 1857. Joseph J. Printup brought his action in the Court below, against Daniel R. Mitchell, upon the following instrument in writing: “Rome, 18th January, 1847. I hold a note on Dennett Lawrence for $600, due the 25th day of next December, made payable to me, in which Joseph Printup and myself are jointly interested.

Trover and new trial, from Gordon county. Tried before Judge Trippe, September Term, 1857. T*his was an action brought by a son-in-law, against the widow, as administratrix of the father-in-law, for the recovery of certain negroes, which he alleged his father-in-law had given him during his lifetime.

Decided by Judge Trippe, November Term, 1857. A motion was made in the Court below, on behalf - of the plaintiff in error, for alimony and counsel fees, in a case of libel for divorce.

Damages for frivolous appeal, from Heard county. Tried before Judge Hammond, August Term, 1857. An action was brought on three promissory notes by Lawrence, Smith & Whilden, and a verdict and judgment rendered in their favor, against McMillan and Harvey, who entered an appeal. When the case came on upon the appeal, the plaintiffs introduced in evidence the promissory notes, and closed. The defendants offered no evidence.

Ejectment, from Fayette county. Tried before JudgeBuLL, at September Term, 1857. This was an action of ejectment brought by John Doe, upon the several demises of James McCarcel, W. JB. Lambeth, Drury May, Joseph Lambeth, Jeptha Y. May and Usibious Slaton, against Richard Roe, casual ejector, and William J. Russell tenant in possession, for lot of land No. 120, in the 7th district of Fayette county, containing 202J acres.

Rule against Sheriff, from Floyd county. Decision by Judge Hammond, at August Term, 1857. J. W. Hicks & Co. instituted suit against Ferdinand De-Xiongchamp, and pending suit required bail of him; and at the August Term, 1856, recovered judgment for $90 33, besides cost. Upon this judgment a fi. fa. issued and a return thereon made by the Sheriff, of “ no property.” Application was made after judgment, for summons of garnishment, and Daniel S. Printup served with a copy.

Trover, trom Coweta County. Decided by Judge Bull, September Term, 1857. This was an action of Trover, brought by Napoleon B. Goodwyn against Nancy Goodwyn, seeking to recover certain negroes. All the facts necessary to a proper understanding of this «ase, will be found in the opinion pronounced by the Court. The jury found for the plaintiff, and defendant excepted. '

Murder, from Gordon county. Tried before Judge Trippe? September Term, 1857. The plaintiff in error was tried and convicted in the Court feelow, of the murder of Absalom W. Scott.

<p>Action for breach of warranty, from Merriwether county, fried before Judge Bull, at August Term, 1858.</p> <p>This was an action by William Hopkins against Lazarus Tilman, to recover damages for breach of the warranty of soundness "of a negro woman slave, sold by Tilman to plaintiff.</p> <p>The defendant pleaded the general issue.</p> <p>The plaintiff offered and read in evidence the bill of sale, which was as follows:</p> <p>“Received, December 31st, 1853, of William Hopkins six hundred and fifty dollars in full payment for a negro woman named Catharine about seventeen years old, the title to which, negro I bind myself, my heirs and executors, and warrant to be sound except being deaf and a small old hurt on the hand. I warrant to be sound in body and mind.</p> <p>(Signed,) LAZARUS TILMAN.</p> <p>Walton Ector, For the plaintiff, testified that he knew the girl when about 13 years old; she was sold as the property of M. D. Ector, considered the girl an inferior negro but healthy, she was a dull negro.</p> <p>Dr. Joseph T. Reese, examined fey commission, testified, that he practiced medicine in the family of defendant, and was called to see a negro girl named Catharine, did not think she was afflicted with any disease when he saw her, was called to see her in the Spring or Summer of 1853 or 1854, as well as remembered; thought the girl was practicing a deception on the family of defendant and treated her accordingly. It was the only time he ever saw her; has no idea of her worth. She was lying quietly on the bed in a natural position and condition as far as witness could judge.</p> <p>Dr. E. C. Hood, testified, that he was a physcian, and in the spring of 1854, was called to see the woman and found her in a stupid, comatose condition, with laborious respiration ; pupils of the eye dilated; after watching her symptoms about an hour and using means to restore her to consciousness, she became rational or partially so, and he gave her a cathartic and left her. Judging from the symptoms and the history of the case had little or no doubt but that the negro had had a fit? Does not know whether the case is of long or short standing. Gross examined. — The causes of fits are very numerous, and the cause is frequently so obscure that we cannot detect it; is not prepared to say as to the curability or durability of this case ; has seen the negro only a few times.</p> <p>Milton and Zimmerman Hopkins, examined by commission, for plaintiff (to 1st set of interrogatories) say they know the woman Catharine bought by plaintiff of defendant. She was not in good health at the time of purchase, did not understand the nature of her disease at that time. . She had her fast fit, after we knew her, about the last of February 1854, since that time she has had four other fits, she also has spells of sickness once a month.</p> <p>Cross examined. — Are not physicians; the disease remains about the same as it was when they first knew her; do not consider the girl worth the money that plaintiff paid for her.</p> <p>To 2d interrogatories January, 1857. They knew the girl since plaintiff bought her from defendant — has had fits ever since; she has about two fits every month, and is usually confined by sickness about five days in every month; suppose her sickness caused by the fits, have been sworn before in this case; the negro’s health has gradually become worse since they were sworn before in this case, her fits are more severe and her sickness more protracted, her mind also is more impaired.</p> <p>Cross examined. — They are the sons of plaintiff.</p> <p>William Hood, examined by commission for plaintiff, testified that he knew the girl Catharine; plaintiff sent for him in May 1854, he went over and went into the field, where plaintiff and the girl were. She was lying on the ground speechless, he supposed with a fit, and in 15 or 20 minutes he assisted plaintiff in removing her to the house, without any effort on her part, and laid her on a pallet, and in a few minutes left.</p> <p>Cross examined. — Is not a physician and does not know what plaintiff gave for her.</p> <p>Calvin Spence, proves a tender of the negro to defendant, and that plaintiff at the same time offered defendant $75, to take her back, which he refused to do. This was the last of May 1854.</p> <p>Cross examined. Was present when plaintiff tendered the negro back, as he considered her unsound — having fits, to which defendant replied “ she did not have fits” and he refused to take her back.</p> <p>The plaintiff closed, and defendant introduced no testimony. The jury returned a verdict for the defendant: plaintiff moved for a new trial on the ground that the verdict was contrary to law and evidence.</p> <p>The Court overruled' the motion for new trial, and plaintiff excepts.</p>

<p>Complaint, from Fulton county, tried before Judge Bull, October Term, 1857.</p> <p>An action was brought in the Court below by the defendants in error, against the plaintiffs in error, to recover 0120 upon an open account for cigars sold and delivered. To this action the defendants pleaded, that the contract to pay the $120 (if ever made) was obnoxious to the 17th section of the statute of frauds, no earnest to bind the contract having been given, nor part payment made or note or memorandum entered into.</p> <p>Upon the trial of this issue the plaintiffs offered in evidence, the testimony of Jacob H. Wright and Edward Hyatt taken by depositions, going to prove the contract. To the reception of this testimony, the defendants objected on the ground that the contract sued on was within the 17th section of the statute of frauds, and the evidence offered did not take it out. The Court overruled the objection and admitted the evidence and defendants excepted.</p> <p>Counsel for the plaintiffs having closed, the defendants, counsel moved the Court to dismiss the case on the ground that the contract sued on, which was an open account for cigars, sold by the plaintiffs, residing in the city of Baltimore, to the defendants, residing in the city of Atlanta, upon a verbal order was void under the 17th section of the statute of frauds. The Court overruled the motion and counsel for the defendants excepted.</p> <p>The jury found a verdict for the plaintiffs for the amount sued for, and the defendant's counsel filed his bill of exceptions, assigning the above rulings of the Court as error.</p>

Ejectment and nonsuit, from Catoosa county. Decided by Judge Trippe, October Term, 1857. An action of ejectment was brought by the plaintiff in error, to recover a lot of land from the defendant in error.

<p>The Act of 5th March, 1856, establishing a Criminal Court in the City of Atlanta, and authorizing a bill of indictment, in case of misdemeanors, to be found by nine Grand Jurors, not unconstitutional.</p>

<p>[1.] Under the Act exempting house and lot not exceeding a certain value in a city or town from levy and sale in payment of debts, and a house and lot of greater value being owned by the debtor, a salo may be made, and a sum of money may be allowed the debtor from the proceeds of sale, equal in amount to the specified value ef property exempted by the Act from sale, as an equitable mode of partitioning.</p> <p>[2.] The removal of the defendant from the house and lot, docs not subject it to the* payment of a debt, if it be otherwise exempt.</p>

<p>[1.] A tax execution levied on tract oflandNo. 224 in the 5th district of Carroll, is no evidence to support a sale of the samo number in the 3d district, and is inadmissible for that purpose.</p> <p>[2.] A promissory note, on the face of it joint and several, but signed by but one maker, who puts it in circulation, is good against him.</p> <p>[3.] It is to be presumed that a note transferred, was transferred before due, and that the holder is a bona fide holder for value, and in such case, tho note itself is evidence of no notice of a defence except such as may appear on the face of it.</p> <p>[4.] The holder is not bound to prove that hcgavo value for it, unless itbe first established that the note was lost or stolon.</p> <p>[5.] Counsel have no right to argue before the jury points to which there is no eviliciKX'.</p>

Nonsuit and new trial, from Floyd county. Decided by-Judge Hammond, August Term, 185.

Assumpsit, from Coweta county. Tried before Judge Burr, September Term, 1857. This was an action brought in the Court below by the firm of Davis, Kolb & Fanning for $49 15. On the trial the defendant proved that the plaintiffs had instructed him by letter to remit to them the said account by mail.

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

Certiorari, from Monroe county. Decision by Judge Cabiness, at August Term, 1857. John Shannon, administrator of Robert Mays, deceased, was sued in a Justice’s Court, by Mickelberry & Mobley, on five several promissory notes, four for $30 each, and one for |5 00. It was agreed by the parties, that the trial and decision in one of the cases should control and determine all. The following is a copy of the notes : *‘$30.

Complaint, from Floyd county. Tried before Judge Hammond, at August Term, 1857.

In Equity. From Coweta county. Decision by Judge Bull at September Term, 1857. This was a bill filed by John Bigby against George Powell, administrator of John B. Russell, deceased. The bill, in substance, states, that in the year 1847, plaintiff brought his action of trover against said Russell, then in life, for three negroes.

<p>Assumpsit.from DeKalb county. Decided by Judge Bule, October Term, 1857.</p> <p>This was an action of assumpsit upon a promissory note for $500, given in 1853 by the plaintiff in error, who was the defendant in the Court below, to G. J. Wright, and by the said Wright transferred to the defendant in error.</p> <p>Defendant pleaded that the payee of the note was by its terms, to present the claims of Elijah Bird, then under sentence of death for murder, and to use his influence with the Legislature and the members thereof in an illegal way, to-wit: Said payee was to resort to no other means to obtain the pardon of said Bird than by using the authenticated copy of the testimony given by the witnesses for and against said Elijah; thereby making the Legislature of the State act as an appellate tribunal.</p> <p>Plaintiff’s counsel demurrred to the plea.</p> <p>The Court sustained the demurrer, and counsel for the defendant excepted.</p> <p>The jury found a verdict for^the plaintiff, and the defendant excepted.</p>

<p>Heirs at law may, upon a special case made, as for instance upon a charge of collusion between the parties, institute suit ovor the head of the administrator, making him a party defendant in the case. It requires, however, a clear clase, to justify this interference with the due course of administration, hy the trustee appointed by the testator, or by the Ordinary.</p>

Award, from Upson comity. Decided by Judge Cabiness, May Term, 1857. A suit in equity was commenced in the- Court below, and by consent of the parties, the matters in dispute were referred to arbitration, and two arbitrators, Washington Poe and Thomas 1’. Stubbs, appointed. These arbitrators made their award, to which exceptions were filed by the defendant in the suit.

In Equity, from Henry county. Decision on demurrer by Judge Cabiness, at October Term, 1857.

Affidavit on Appeal, from Pike county, decided by Judge Cabiness, at July Term, 1857. An affidavit of illegality was filed by Herbert B. Elder the defendant in ca. sa., issued from a Justice Court in favor of Zachariah O. Whitehead plaintiff in ca. sa., and Joseph B. Askew assignee. The Court dismissed the illegality and judgment was at the same term of the Court rendered upon the ca. sa. bond in favor of the plaintiff.

Award, from Whitfield county. Decided by Judge Trippe, October Term, 1857. • This was a motion on the part of I. C. King to set aside an award which had been rendered by the arbitrators appointed to settle the matters in difference between the parties in a suit in Equity of Alvin Armstrong vs. Isham C. King and Frederick Cox.

Certiorari, from Spalding county. Decision by Judge Cabiness, at November Term, 1857. James L. Johnson was arrested by virtue of a ca. sa., in favor of Jason Burr, and applied to the inferior Court to take the benefit of the Act for the relief of honest debtors. This application was resisted by Martha C. Martin, and other creditors, on the ground of fraud in the schedule filed by the applicant. Counsel for the defendant in ca. sa. claimed the right to open and conclude.

Claim, from Meriwether county. Decided by Judge Bum,, February Term, 1858. In October 1841, George D. Sharp obtained a judgment against Joseph L. Welch for $2,833 00, upon which execution was issued. This was assigned in November, 1841, by George D. Sharp to Walton Ector, for value received. In. 1856, a levy of said fi.fa. was made by the Sheriff on certain negroes.

<p>[1.] Constructive notice of an unrecorded marriage settlement is sufficient to bind a bona fide purchaser, a Iona fide creditor, ora bona fide surety, under the Act of 184V requiring marriage settlements to be recorded.</p> <p>[2.] Such notice as would excite apprehension in ordinary minds and prompt enquiry, is constructive notice,</p> <p>[3.] A factor who has given or extended credit to a customer on the credit of shipments made to him, and property in his possession supposed to be his, aud he subsequently received notice that tho property, or a considerable part of it, is not his, which he finds to be true on enquiry, and his customer insolvent or probably so, without the property ascertained not to be his, may proooed at once, upon” his own judgment, to take the usual steps for his own security.</p>

Attachment, from Putnam county. Decided by Judge Hardeman, March Term, 1858, An attachment was sued out by Martha B, Ross, suing for the use of George W. Ross against William W. Ross and Francis D. Ross, residing without the limits of the State of Georgia, on a promissory note for $500 and interest. On. this attachment was issued ; a summons of garnishment, directed to The Eatonton Railroad ; the summons was served on Michael Dennis, President Of the Eatonton Branch Railroad.

Accessory before the fact to murder, from Greene county. Decided by Hardeman, March Term, 1858. Thornton, a slave, was indicted as accessory before the the'fact to the crime of murder, in abetting and procuring a negro slave, John, to commit the murder.

Injunction, from Thomas county. Decided by Judge Love at Chambers, 25th January, 1858¡ The questions in this case arose upon the construction of a marriage settlement executed in South Carolina in contemplation of the marriage of Alexander B. Lawton and Mary Elizabeth Brisbane on the 20th day of May, 1829. By this settlement, certain property therein described was vested in Wm.

<p>Certiorari, from Baldwin county. Decided by Judge: Hardeman, February Term, 1858.</p> <p>The bills of exception in these two cases were filed under the following circumstances:</p> <p>A warrant returnable to the Inferior Court was issued against a negro woman Lavinia, on the information of John M. Tucker, for residing in the State of Georgia without her name being inserted in the book of registry of free persons of color kept by the Clerk of the Inferior Court; enjoying the profit of her labor and not being in the employment of a master or owner, contrary to the 5th and 6th sections of the Act of 18th December, 1818, entitled “ An Act supplementary to and more effectually to enforce an Act entitled ‘an Act, prescribing the mode of manumitting slaves in this State.’ ’* Upon the hearing, the prosecutor introduced as a witness, Tomlinson Hart, who swore that the said Lavinia lived in a house not belonging to him, nor provided for her by him; that the said Lavinia belonged to him, but did not work for him, nor had she done so for ten or fifteen years, nor did she work for any white person by virtue of any contract for his benefit; witness gave her papers.</p> <p>The case being closed and argued, the prosecutor asked the Court to let the witness explain how the slave came to pass away from his premises and live alone as a housekeeper,, but the Court refused.</p> <p>Prosecutor then moved the Court to declare the said Lavinia forfeited. The Court refused the motion and decided that the said Lavinia was the slave of Tomlinson Hart, and liable to his debts. From this decision the prosecutor appealed by certiorari to the Superior Court.</p> <p>After argument, the Court dismissed the certiorari, on the ground, that the proceeding being criminal, and the defendant Lavinia having been acquitted by the Inferior Court, the Superior Court had no constitutional power to order a rehearing.</p> <p>A warrant was also issued against Wilkes a male slave, on the information of John M. Tucker, for returning to the State of Georgia from the State of New York, a non-slaveholding State, since the passing, and in contravention of the 5th section of the statute 26th December, 1835, entitled (i An Act to amend the several laws now in force, in relation to slaves and free persons of color.”</p> <p>Upon the hearing, the prosecutor proved by Tomlinson Hart that the slave Wilkes, the prisoner was in the States of New York, New Jersey, and Pennsylvania in 1853, and moved the Court to adjudge him forfeited according to the 5th section of the Act of 1835.</p> <p>The Court decided against the motion and dismissed the warrant on the ground, that the Act of 1835, did not apply criminally to the case as claimed by the prosecutor.</p> <p>From this decision the prosecutor appealed by certiorari ' to the Superior Court.</p> <p>After argument, the Court below dismissed the certiorari on the ground “ that as the original proceedings in the Court • below, viz: the Inferior Court of Baldwin county, was of a criminal nature, and the Inferior Court had decided in favor of the defendant therein, that therefore the Superior Court had no constitutional power to order a rehearing.”</p> <p>To these decisions of the Court the informer John M. Tucker filed his bill of exceptions, assigning the same as error.</p>

Claim. In Morgan Superior Court. Tried before Judge Hardeman, at March Term, 1858. This was a claim interposed by David S. Johnston to the Madison Steam Mill and the machinery thereto appertaining, which had been levied upon by the Sheriff under a mortgage jt.fa., issued at the suit of Robert Crawley against the Madison Steam Mill Company.

Claim, from Morgan county. Decided by Judge Hardeman, March Term, 1858. The defendant in error in this case filed his claim, alleging that he was the owner of certain machinery and property appertaining to the “ Madison Steam Mill,” which had been levied on by virtue of a mortgage fi. fa. from the Inferior Court of Morgan county, in favor of James A. Wade, as executor of Hudson Wade, deceased.

Certiorari, from Thomas county. Decided by Judge Love, December Term, 1857.

From Jackson county. Decided by Judge Hutchins* February Term, 1858. This case came on in the Court below, upon an appeal from the Court of Ordinary of Jackson county, upon the petition of Nancy Bonds, as widow, to be allowed the sum of $100 out of the estate of her deceased husband, under the Act of the Legislature of the 23d of February, 1850* .such estate being insolvent.

<p>Case, from Franklin county. Decided by Judge Hutch-ins, April Term, 1858.</p> <p>For statement of this case, see opinion of the Court.</p>

Equity, from Wilkes county. Decided by Judge Thomas, March Term, 1858. The bill of complaint in this case wasfiled by James N. Bolton and others, legatees under the will of James Nolan deceased, against John West and another, executors under the said will for an account.

Trover, from Lincoln county. Decided by Judge Thomas, April Term, 1858. An action ivas brought in the Court below by Thomas B„ Norwell, against Henry Freeman, to recover the penalty un•der a bond, on account of the breach of the condition of the .said bond.

<p>, In equity, from Burke county. Decided by Judge Holt, .April Term, 1858.</p> <p>This cause, wherein Samuel Warner was complainant, and Joseph A. Graves and Anderson P. Longstreet were defendants, and in which cause the said Joseph A. and Anderson P. had filed their cross bill, came on for trial upon appeal on the bill and cross bill; and the said parties being at issue upon a special jury, Warner moved the Court to compel the said Joseph A. and Anderson P. to deliver in Court, to be read in evidence to the jury, two certain deeds, copies of which had been made exhibits to the original bill, and which were charged as having been obtained through fraud, and were p>rayed to be cancelled. Which motion was resisted by the counsel for the said Joseph A. and Anderson P., and overruled by the Court, and to which ruling and decision of the Court the counsel of the said Samuel Warner excepted.</p> <p>And in the further progress of the trial of said cause, the .said Samuel, by his counsel, moved the Court to be allowed to read in evidence before the jury, the copies of said deeds, which were made exhibits to said original bill, and which defendants, in their answers, had admitted as being true copies of the originals in their possession, which latter motion was likewise resisted by the counsel for said Joseph A., and Anderson P., and overruled by the Court, the said Samuel, by his counsel, excepting. Upon the said rulings and decisions by the Court, the said Samuel, by his counsel,, moved the Court for leave to dismiss his said cause without prejudice, which the Court allowed, and the cause was withdrawn from the jury and dismissed accordingly.</p> <p>During the same term of the Court, the said Samuel Warner, by his counsel, moved the Court to re-instate said cause on the following grounds:</p> <p>1st. Because the Court refused the motion of complainants, that defendants deliver into Court the original deeds, called for in the bill, and of which defendants admitted the exhibits by their answers to be true copies.</p> <p>^d. Because the Court refused to allow complainants to. read the copies of the deeds exhibited to the bill, though admitted by the answers of defendants to be true copies, and defendants’ refusing to deliver the originals, though called for by the bill, (as contended by the counsel for said Samuel Warner.)</p> <p>3d. Because complainant’s counsel was taken by surprise,in the non-production of said deeds, in the trial on appeal^ in the last resort, when they had been brought in and delivered, and r°ad in evidence, on the first trial.</p> <p>4th. Because the Court decided that the call by the bill for the production of the deeds, was not sufficient.</p> <p>This motion, after argument, was overruled, and the following order passed by the Court: “A motion having been made pursuant to notice as above stated, was refused by the Court.” Thereupon the said Samuel Warner filed his bill of exceptions, assigning the above decision and rulings of the Court as error.</p>

, In Equity, from McIntosh Superior Court. Tried before Judge Fleming at April Term, 1858. The bill was filed by Parker, and was against Hughes.

Claim, from Ware county. Decided by Judge Love, June Term, 1857. This was a claim on the part of Austin Smith to certain property, which had been levied upon under a Ji. fa. at the suit of Donald McDonald vs. Daniel B. Smith. Upon the trial the following evidence was introduced: Plaintiff introduced the execution, and the levy thereon by the Sheriff of lot No. 193, in the 8th district of originally Appling, now Ware county.

Attachment, from Appling county. Decided by Judge Cochran, March Term, 1858. An attachment sued out by Thomas Morgan, against Hector McDuffie was levied by .the Sheriff on a steamboat, the property of the said McDuffie.

<p>£1.3 "When the mortgagor against whom a rule is taken, to foreclose a mortgage, makes no resistance, it is not competent for a third person to interposes objections; neither will the Court itself of its motion do so.</p> <p>[2.] A discrepancy between the debt and the mortgage given to secure it, may be explained by parol proof; and the creditor will not be driven into equity for that purpose.</p>

Case, from Richmond county. Decided by Judge Holt,. October Term, 1857.

Certiorari, from Richmond county. Decided by Judge Holt, October Term, 1857.

Indictment for stabbing, from Burke County. Tried before Judge Holt, April Term, 1858. John B. Whilden was indicted in the Court below for stabbing A. Floyd.

Assumpsit, from Burke county. Decided by Judge Holt, April Term, 1858. This was a motion by the plaintiff’s counsel, to amend the declaration and process in a cause wherein Thomas H. Blount and Edward H. Blount, partners under the name, firm and style of T. H. & E. H. Blount, endorsees, were plaintiffs, and James B. Hayne, principal, and Robert J. D. Roberts, security, were defendants; being an action of assumpsit, founded upon a note in the following words, to-wit: $75.

<p>In Equity, from Richmond county. Decided by Judge Holt, April Term, 1857.</p> <p>The object of the bill in this case was to obtain possession of a lot, in the city of Augusta, to which the plaintiffs set up claim, and which they allege has been inequitably withheld from them, by the defendants, and to have that full relief, which their case requires, and which a Court of Law cannot give.</p> <p>It appears that, many years ago, the elder Cleon Nally, father of complainant, owned the lot now in controversy, and died in possession of it; that he was a man of small means, and left his estate incumbered with debt, and left, as his heirs, his widow and two children, one of whom died in infancy; that his widow, who continued to reside on the lot, took administration on his estate, and on the sixth of August, 1822. the lot was sold by the Sheriff of Richmond county, under an execution against Cleon Nally and one Lud Harris, and bid off by Philip H. Mantz; but the possession of the lot was not changed, after the sale, nor any title given by the Sheriff until the third day of February, 1827, and the deed recorded 14th May; that in the mean time, to-wit: on the 8th day of December, 1824, Mrs. Nally, being about to enter into a marriage with James Johnson, father of the complainant, Jacob, an ante-nuptial contract was entered into, between the said James, and Freeman Walker and Philip H. Mantz, as trustees for Mrs. Nally, by which the said James agreed, upon the marriage being solemnized, to settle and assure to them, the said trustees, above named, their heirs or assigns, for the use of the said Mary Nally, and the heirs, now minors of Cleon Nally, deceased, all the right, title, interest, claim, or demand, which the said James Johnson, may, by the solemnization of the' said intended marriage, acquire in any property, real or personal, now belonging to the estate of Cleon Nally, deceased, or to the said Mary Nally, individually: That the marriage was solemnized, and James Johnson and Mary, his wife, continued in possession of said lot, residing thereon, until their death in the fall of 1839; and that complainant, Jacob, is the only issue of the marriage: That in 1835 or 6, application being made to Mantz, forthe purchase ©f the lot, he said he could not sell it, as it belonged to Mrs. Johnson; that he had bought the lot, or advanced on it for Mrs. Johnson, and she still owed a small portion of that advance : That after the death of Johnson and wife, to-wit: in November 1839, Mantz rented the lot to a tenant, who wished to occupy it, but that the boys were in possession, and would not give it up : That Man tz told them they had better let it be rented out, and finish paying for it. Hesaid he was their mother’s trustee; had bought the lot, when sold for her husband’s debts, and she still owed him about $65 for it: That Mantz was repeatedly heard to admit the lot to be Mrs. Johnson’s property: That on the seventh day of Majr, 1844, the said lot, having been levied on by the Sheriff of the city of Augusta, as the property of Philip H. Mantz, was exposed to public sale, and bought by Mary T. Morrison, the highest bidder, for the sum of $305: That at that sale, public notice, in behalf of complainants, was given to the bidders, that the lot was not the property of Mantz, but belonged to the orphan children of Mary Johnson, and whoever boughtit tvould buy a law-suit: That the property was at that time worth from $1,500 to $3,000; That, on the 13th February, 1846, Mary T. Morrison', for the same consideration, $305, conveyed the lot to Mary Mantz, widow of Philip H. Mantz: That in the year 1851, Mary Mantz, then Mary Henry, and her trustee, John D. Smith, sold and conveyed the lot to the defendant, Eliza, then Eliza Hackett, who had been informed that Jacob Johnson pretended to make some claim to the property, but was advised and believed the claim to be utterly groundless.</p> <p>Upon the trial the complainant offered in evidence a copy, certified from the record in the Clerk’s office of said Court, of an alleged marriage settlement, or ante-nuptial contract, between James Johnson and Mary Nally, both deceased ; which contract was dated, or purported to be dated \ on the twenty-eighth of December eighteen hundred and twenty-four, and recorded on the first of February eighteen hundred and forty ; said record being made, some three months after both the parties to said alleged contract had departed this life.</p> <p>The defendants objected to the admission of said copy in evidence, because, first, no evidence was offered of the existence of any such original paper; and secondly, if ever in existence, the original was not accounted for. Henry Johnson,, half brother of James Johnson, deceased, who had the principal management of this suit, and the litigation preceding it, as next friend of his nephew, Jacob Johnson, one of the complainants, was then sworn : and stated that he never saw the original paper, and never made any particular search for it That in order to find documents touching this case, he had examined the papers of the deceased James Johnson and wife, and a box of papers, found in the store of John D. Smith, in Augusta, said to belong to Philip H. Mantz, deceased, under whom the defendants claim title, and no such paper was found there. No other evidence was offered of the existence of the original, or by way of accounting for it. The Court admitted the copy to be read in evidence, the defendants objecting.</p> <p>In the progress of the trial, three witnesses were offered— Garey F. Parish, William Little, William W. Lawrence, to prove the verbal admissions of Philip H. Mantz, in his lifetime, that this property belonged to Mary Johnson. To which defendants’ counsel objected, as being inadmissible to show title to real estate. The Court admitted the evidence, as going to show Mantz’s acceptance of the trust, under marriage con tract.</p> <p>The evidence of said Parish and Little, respectively, was objected toby defendants’ counsel, on the ground that it provved a title, different from that setup in the bill: for that the bill claimed the property, under the ante-nuptial contract aforesaid, as part of the property of said Mary Nally, at the time of said contract, and the proof was that said Mantz admitted that he had bought the lot, for Mrs. Johnson; which objection the Court overruled, and admitted the testimony.</p> <p>The Court charged the jury, that in order to recover, the Complainants must show that the property in question was intended to be included in the marriage contract, and that Mantz had accepted the trust; but that his acceptance might be shown by his acts and declarations, without writing; that the complainants’ title must be derived, under said contract.</p> <p>The Court also charged, that if Mantz held the property nnder the purchase of 1822, in his own right, it could not be Included in the ante-nuptial contract; but if he held it for Mrs. Nally, it was so included.</p> <p>The Court further charged, that if Eliza Hackett bought the property for value, without notice of any trust in Mantzy she could hold it; but that a notice of any-claim, on the part of the complainants, was sufficient, without showing what was the character of the claim.</p> <p>Under this charge, the jury found for the complainants.</p> <p>Defendants counsel thereupon moved for a new trial on the following grounds.</p> <p>I. Error of the Court, in this:</p> <p>1st. In admitting in evidence, a copy of the alleged marriage contract of James Johnson, in prospect of his marriage with Mary Nally, without any evidence that the original ever existed, and without accounting for its non-production, if it ever did exist.</p> <p>2d. In admitting parol evidence of title to real estate.</p> <p>3d. In admitting Garey F. Parish and William Little, to prove the admission of Philip H. Mantz, under whom the defendants claimed title, made during his possession of the property in dispute, that he Mantz held the property for Mary Johnson; because the admissions were, that he had bought the lot for Mrs. Johnson, which showed a title, different from that set up in the bill, which was a title as cestui que trusty 'in Mantz under the marriage settlement above referred to.</p> <p>4th. In charging the jury, that if Mantz held the property under the sale of 1822, in trust for Mrs. Nally, the marriage settlement covered it, and it could be recovered in this proceeding.</p> <p>5th. In charging the jury that a general notice of any claim to the property, on the part of the complainants, brought home to the defendant, then Eliza Hackett, before her purchase., deprived her of the rights of a bona fide purchaser for value j although it was no notice of the character of the claim, or of the equity set up in this bill.</p> <p>II. Error of the jury, in this:</p> <p>1st. That the verdict was against the charge of the Court,, for the Court charged that a bona fide purchaser for value cannot be bound, by any secret trust of the person under whom he claims, unless notice of that trust is brought home to such purchaser. And no notice of any such trust was shown. Moreover, the Court charged that to entitle th© claimant to a verdict, Mantz must be proven to have accepted the trust, under the marriage contract, and no such acceptance was shown. Moreover, the Court charged, that if Mantz held the property in his own right, under the sale of 1822, it could not be included in the settlement; and the evidence was that he did so hold it.</p> <p>2d. That the verdict was contrary to the evidence in th® case.</p> <p>The Court below refused the motion for a new trial on all the grounds taken, and counsel for defendants excepted.</p>

Decided by Judge Hort> May Term, 1858. This cause (which was an ex parte proceeding,) came up upon the following circumstances: Abraham Jones dies testate, leaving his property to A. B. &C., appoints… Held: that it never was a part of the estate of Seaborn A. Jones, and that no irregularity of accounts, commingling of assets or return of the executor of Seaborn A. Jones could make it such.

Caveat, from Burke county. Decided by Judge Holt, April Term, 1858. Ordered, by consent of counsel, that these two cases be consolidated and argued together.

Demurrer, from Columbia county. Decided by Judge HOLT, March r2eyfl.i, 1~o7• Ordered, by consent of counsel, that the above cases be consolidated and argued together. This case came up before the Court at the January Term~ 1857, the proceedings on which argument, the facts of the case, and the will of the testator, will lie found fully reported in 21 Georgia Reporf3, 21.

<p>In Equity, from Chathám county. Decided by Judge Fleming, January Term, 1857.</p> <p>Richard H. McLeod and William F. Law, trustees of Sarah E. King, and William King, the husband of the said Sarah E. King, and others, .filed their hill of complaint against the Savannah, Albany and Gulf Railroad Company.</p> <p>To this bill of complaint the defendants filed a general demurrer.</p> <p>After argument, the Court below gave the following decision, in which will he found a statement of the facts of the case:</p> <p>In 1806 the Legislature of Georgia granted to Joseph Hillff his heirs and assigns, the right to build a toll bridge across the Great Ogechee at a designated place. The fifth section of this act provides “that it shall not he lawful for any person or persons, at any time or times, to build any bridge or keep any ferry on the river Great Ogechee, within five miles either above or below the said bridge, which is hereby exclusively vested in the said Joseph Hill, his heirs and assigns.” The above fifth section contains the obligation of the public entered into through the Legislature, to Joseph Hill, his heirs and assigns. The consideration of this obligation is, “ that the said Joseph Hill, his heirs or assigns, shall erect the said bridge in a complete and substantial manner, at least sixteen feet in width, and capable of sustaining and passing over all carriages in common use, within three years from the date of the Act, and rebuild the same when necessary, and keep the said bridge in good and sufficient repair forever.” They fix the tolls he is to receive by saying, that they shall be the same as are provided for in the Act of 1790 to Wade Hampton and James Green. In that Act the tolls are particularly specified for “loaded wagons and other four wheeled carriages, for empty carts and drays, for a man and horse, for foot passengers, for black cattle, for hogs sheep and goats, for rolling hogsheads drawn by horses.” From this it necessarily follows thg.t the bridge to be erected by Hill was to be capable of sustaining and passing over, not only all carriages in common use, but also horses, foot passengers, black, cattle, hogs, sheep, goats and rolling hogsheads. The above, then, is the obligation of Hill to the public, the consideration of which is the exclusive privilege granted to him. The bill alleges and the demurrer admits, that Hill and his assigns have fulfilled their part of this contract, they are therefore entitled to all the rights, privileges and emoluments granted in the charter. The only question is, whether the bridge constructed by the defendant infringes upon those rights and privileges, and thereby takes away, or destroys, or depreciates the value of those emoluments. I say thereby, because although subsequent legislation may impair or destroy the value of a franchise, previously granted,yet if the subsequent legislation does not violate the exclusive privilege previously granted, the party has no right to complain. For the party to have a right to redress, the subsequent legislation must have been prohibited by the first. This I understand to be now the settled doctrine of this country, and I also understand that this is admitted by the counsel for complainants.</p> <p>'But to return : The question for my decision is, whether the bridge constructed by defendant is a violation of the exclusive privilege of the complainants. I enter upon the consideration of this question with great diffidence, not only because of its intrinsic difficulty, but because the few decisions to which I have been referred in the argument, are inconsistent with each other. Acknowledging my indebtedness to the very able argument of counsel on both sides, I proceed to the consideration of the question before me.</p> <p>In the case of McLeod and others vs. Burroughs, the Supreme Court of Georgia say: “The Act of 1806 is a contract between the grantee, Hill, and the Legislature; both parties are bound by its stipulations; what its meaning is, is for the Courts to determine. The grantee ’proceeds to invest under it according to his understanding of its provisions. He does so at the peril of a different construction by the Courts ; they can only act when a caséis made.” The case is now made, and the duty is upon me to-construe this contract between Hill and the Legislature.</p> <p>One principle and an important principle in the construction of this contract between Hill and the public, is stated by the Supreme Court in the case from which the above quotation is made, and in which case this very charter to Hill was before the Court. They say: The exclusive privilege (meaning the exclusive privilege to Hill) “ is in derogation of a common right, and the act which confers it must be strictly construed.” By strict construction I understand that nothing is to be considered as granted which is not expressly granted; in other words, nothing is to he considered as granted by implication. What then is expressly granted to Hill in this charter ? The exclusive privilege is expressly granted him of erecting and keeping a bridge across the Great Ogechee, for the passing over of all carriages in common use, for the passing over of horses, foot passengers, cattle, hogs, sheep, goats and rolling hogsheads. Now a railroad bridge constructed for the purpose and the exclusive purpose of susgaining and passing railroad cars, is not a bridge capable of sustaining and passing carriages in common use, or any other article or thing for which Hill is entitled under his charter to charge toll, with the single exception of foot passengers. [Passengers in carriages are not liable to pay toll, they only-pay for the carriages in which they pass.] Railroad bridges are incapable, not because they want strength, but because they are not so constructed as to permit the passing of anything but railroad cars. Foot passengers may get over, though not very safely, and the railroad is bound to prevent it or respond in damages. The question of damages from this cause, however, is not before me, the bill having made no charges or allegation as to this matter. To construe the exclusive privilege of Hill as extending to a railroad bridge, constructed for the exclusive purpose of passing their cars, you must resort to implication; you cannot find it expressed in the words of the grant. The moment you extend it to such a bridge, you violate the principle of strict construction, which the Supreme Court say, “ is the rule for construing this charter — it being in derogation of a common right.” Again: This charter is a contract between Hill and the public. The obligation of the one is the consideration for the obligation of the other. Precisely, then, where the obligation of the one stops, the obligation of the other stops also. The obligation of each is a safe and just rule for measuring the obligation of the other. Now I ask, is Hill under his charter bound to furnish a bridge capable of sustaining and passing railroad cars ? [Let it be remembered that five miles is not the exclusive privilege, but the limits within which the exclusive privilege is to be exercised.] If the Legislature in granting to the defendant the authority to build this bridge, violated the exclusive privilege of Hill, it must be because Hill’s charter granted to him the exclusive privilege of building it The privilege and the obligation of Hill are coextensive — they go hand in hand, and where his privilege stops, his obligation stops, and where his obligation stops*his privilege stops. What is his obligation? His obligation is to furnish the public with a bridge capable of sustaining and passing all carriages in common use. Now there can be no cpiestion that this means carriages in common use at the time the Act was passed; railroad cars were not in common use at that time; indeed, they are not in common •use now, being used exclusively by railroads. Hill, then, is under no obligation to furnish a. railroad bridge, and if that is not his obligation, then it is not the privilege exclusively granted him in his charter. And if it be not his exclusive privilege, how can it be a violation of that privilege to grant it to another ? I repeat, the obligation and the privilege of Hill go together, and where his obligation stops, his privilege stops also.</p> <p>Again suppose And in this age of great, and wonderful, and rapid improvement almost any supposition may be realized,) suppose that all carriages in common use at the time Hill’s charter was granted should cease to be used at all, and that carriages should come into common use propelled by steam, electricity, condensed air, or any other motive power, that in the march of human improvement may be discovered, and which carriages the bridge of Hill could not sustain and pass over: would Hill or his assigns be compelled by the terms of their charter to furnish a bridge capable of sustaining and passing these new.vehicles ? I apprehend not; they could say, and doubtless would say, we are only bound to furnish a bridge capable of sustaining and passing carriages in common use at the date of our charter. Well, if they are not bound, then it is not their exclusive privilege, and if not their exclusive privilege, then it is no violation of that exclusive privilege to authorize some one else to erect a bridge capable of answering the wants and necessities of the public. The supposition I have made, is, I grant, a very improbable one, but no man acquainted with the improvements of the last fifty years, will say that it is an impossible one. But be this as it may, it is a stronger case for the complainants than the one actually before me. In the case I have-supposed, it might be contended by Hill and his assigns that it was their exclusive privilege to furnish a bridge for the passing of carriages in common use, without reference to the date of their charter. I have no idea that this position could be maintained in any Court of justice, but there would at least be some foundation for an argument. The case before me is very different. Railroad carSj as already stated, are not in common use. They are used only by railroads. Hill and his assigns, under no possible construction of their charter, can be held bound to furnish a bridge capable of sustaining and passing them. Now if I am right in the-proposition that when the obligation of Hill stops, his privilege stops, and that when his privilege stops, all restrictions upon the public stop, then it would be no violation of the charter of Hill, to authorize the defendant or any one else, to erect a bridge capable of sustaining and passing railroad cars.</p> <p>If the wants and necessities of the public require such a bridge, and the charter of Hill does not bind him to furnish it, then it is not only the right but the duty of the Legislature to authorize some one to provide it. This cannot be a violation of Hill’s charter, for the right and privilege of furnishing a bridge, except for the passing of carriages ira common use, was never vested in him. In other words, Hill and his assigns have no exclusive privilege of building a bridge for the passing of railroad cars. The prohibition to the Legislature stops where the exclusive privilege of Hill stops.</p> <p>This reasoning, however, will not avail, if it be true, as-contended by complainant’s counsel, that the Legislature has-not authorized the defendant to build their bridge within the-.exclusive limits of Hill. The charter of the defendant grants the right to build a road from the “ City of Savannah, or some point on the Central Railroad, hear Savannah, to Albany on the Flint river, with express power to adopt such route as the said company may select.” This necessarily involves the power to build a bridge across the Ogechee somewhere. Are the five miles excluded ? They are if a bridge within those five miles would be a violation of Hill’s charter. But if I have been right in the views I have submitted, a bridge within the five miles, for the passing of railroad cars, tvould not be a violation of Hill’s charter. The same reason that would make a bridge beyond the five miles lawful, applies to a bridge within the five miles. Why would a bridge beyond the five miles be lawful ? Because it would not’violate the exclusive privilege of Hill. Then a bridge within the five miles would be lawful for the same reason, because itwould not violate the exclusive privilege of Hill. The charter of defendant, in my view, grants the power to build a bridge for the passing of their cars across the Ogechee at any point where the route selected should strike it, provided the said bridge should not interfere with any chartered rights. I have shown, or at least attempted to show, that the bridge in its present location, does not interfere with any chartered rights.</p> <p>The above is also an answer to another proposition of complainants’ counsel, that even if the Legislature have granted the authority to build a bridge within the exclusive limits of Hill’s charter, such act of the Legislature would be unconstitutional and void. The act of the Legislature cannot be unconstitutional, unless it violates the charter of Hill; but I have already decided that it does not violate the charter of Hill.</p> <p>The demurrer is sustained, and the bill dismissed with costs.</p> <p>To this decision the complainants’ counsel filed their bill of exceptions, saying that the Court erred on the following gi’ounds:</p> <p>1st. Because his Honor the Judge erred in deciding that the bridge constructed by the Savannah, Albany and Gulf Railroad Company, thereby taking away, or destroying, or depreciating the value of the franchise previously granted to the complainants, did not violate the exclusive privilege previously granted to the complainants.</p> <p>2d. Because his Honor the Judge erred in deciding that the bridge erected by the Savannah, Albany and Gulf Railroad Company across the Ogechee river, did not violate the exclusive privilege previously granted to Joseph Hill, his heirs or assigns.</p> <p>3d. Because his Honor the Judge erred in deciding that the bridge erected by the Savannah, Albany and Gulf Railroad Company across the Ogechee river, did not violate the fifth section of the act of the Legislature of Georgia, providing that it should not be lawful for any person or persons, at any time or times, to build any bridge or keep any ferry on the river Great Ogechee, within five miles either above or below the said bridge, which was by the said Act exclusively vested in the said Joseph Hill, his heirs and assigns.</p> <p>4th. Because his Honor the Judge erred in deciding that the bridge erected by the Savannah, Albany and Gulf Railroad Company over the Great Ogechee River, is not a violation of the exclusive privilege previously vested in Joseph Hill, his heirs and assigns.</p> <p>5th. Because his Honor the Judge erred in sustaining the demurrer and dismissing the bill.</p>

Rule, from Columbia county. Decided by Judge Holt, April Term, 1858. A motion was made in the Court below by Robert H. May, for a rule nisi against Richard W. Rogers, Sheriff, to show ■cause why he should net be attached for contempt, in permitting a voluntary escape of Richard Downs, who had been arrested by said Sheriff, under a capias ad satisfaciendum in favor of Robert H. May vs. Richard Downs.

Caveat, from Burke county. Decided by Judge Holt, April Term, 1858, This was an appeal by Green G. Watson, caveator, from the following order and judgment, passed by the Ordinary of the county aforesaid, at the January Term, 1858, of his Court: Upon the application of Simeon Warnock, of the county of Burke, to set up a nuncupative will of Everett Tindall, late of said county deceased, and to have granted to him letters testamentary thereon, it appearing to the Court by the…

Divorce,from Richmond county. Decided by Judge Holt, October Term, 1857, This case was a libel for divorce. The Sheriff having returned that the defendant could not be found in his bailwick and it appearing to the Court that neither of the parties were residents of the State of Georgia, a motion was made on the part of the libellant that the Court would allow service to be perfected by publication. The Court below refused the motion, and counsel for libellant excepted.

Misdemeanor, from Richmond county. Decided by Judge Holt, at October Term, 1858.

Adultery, from Scriven county. Decided by Judge Holt, April Term, 1857. The plaintiff in error in this ease was indicted for “ living In a state of adultery and fornication” with Marion Scott.

Trover, from Burke County. Decided by Judge Holt, April Term, 1858. This was an action of Trover, brought by Drury Corker, adminisirator, with the will annexed, of Mary Churchill, deceased, against Silena A. Churchill and Almarion O. Corker. Upon the trial, the plaintiff offered in evidence, the testimony of several witnesses, to prove the signatures of Calvin B. Churchill and Rial W. Gilstrap, witnesses, and Drury Corker, J. P., attestant to a certain deed shown.

<p>[1.] When two persons are indicted together, and a true hill found against both, but one only is arrested, arraigned, and put upon his trial, a general verdict, “We the jury find the defendant guilty,” is sufficiently certain as to the individual intended.</p> <p>[2.] A juror who, while consulting with his fellow-jurors in a criminal case, refers to another offence, alleged to have been committed by the defendant, saying “ he is a bad man any how,” and especially if he acknowledges that this other imputed crime influenced the jury iu convicting the accused, evinces a bias of mind that •disqualifies him from serving as a juror.</p>

Indictment for simple larceny, in Sumter Superior Court. Tried before Judge Allen, March Term, 1858. At the March Term, 1858, Abner C. Conner was put upon his trial, on an indictment for stealing a negro man slave, the property of John F. Markett. The special presentment charged the offence to have been committed on the fifteenth day of December, 1857, and is dated September Term, 1857.

Murder, from Marion. Tried before Judge Worrill, March Term, 1858. Thomas Golden was put upon his trial for the murder of Nicholas Jordan, and found guilty.

Complaint, from Decatur. Tried before Judge Allen, April Term, 1858. The plaintiff sued defendant as acceptor on three bills of exchange, payable at the Southern Bank of Georgia.

<p>In an action of trover, to recover for the conversion of slaves, which have been sold by defendant and cannot be delivered, the purchase money with interest thereon, is a proper criterion of damages, provided the sale has beess ihir.</p> <p>3?. intermarried with S., a widow, with several minor children. Bythe consent and counsel of the brothers of his wife, F. received at the same time a negro girl, which he sold, together with her infant child; with the understanding that the debts of the former husband were tobe paid out of the proceeds and the children raised and supported. D. one of the brothers-in-law administered many years afterwards, on the estateofthe former husband,and brought trover against F. for the negroes.</p> <p>Seld, That upon a bill hied, the administrator was bound to account for the debts and expenses of the estate and family; allow F. to retain his distrib. utive share, and also to deduct the amount of certain demands paid out for one of the children, deceased.</p> <p>[1.] The acts of an executor, de son tort, will be upheld, if they are such as the regular executor would be bound to do. — Benning, J.</p> <p>[2.] When the conversion is not a continuing one, but begins and ends in a single act, as a sale, the value to be taken as the measure of the damages i» the value at the time of this act__Benning, J.</p>

<p>Complaint, from Early county. Tried before Judge Kid-3boo,-Term, 1858.</p> <p>The facts of this cause are stated in the opinion of the-Court.</p>

Equity, from Taylor. Tried before Judge Lamar, April .Term, 1858. Held: that complainants took no portion of the negroes bequeathed under the third item of the will, as representatives of their deceased parents, or because Philip Walker, living at the time of the making of the will, died before the testator, childless.

In Equity, from Chattahoochee. Decision by Judge Kid-boo, February Term, 1858.

<p>[1.] If there are equities against a negotiable note, it is to be presumed that the transferroe of it had notice of them, provided he became such transferree, when the note was overdue.</p> <p>[2.] 16 may be to the interest of one of two joint makers of a note, that the note should not be sot aside by the other. When it is, he is a proper party difundan to a hill by the other, to set aside the note.</p>

Action of covenant for breach of warranty, from Twiggs. Tried before Judge Lamar, March Term, 1858. On the trial of this case, the plaintiff read in evidence an exemplification of the record of a suit between Jonathan P. Richardson vs Joseph Hill, for lot of land No. 146 in the 7th district of Monroe county, Georgia ; which showed a judgment of the Court in favor of the defendant against the plaintiff for cost.

Assumpsit, on warranty, in Bibb. Tried before Judge Hardeman, at November Term, 1857. Francis Johnson, administrator, sued the defendant oa warranty of soundness of a negro sold by said defendant (• said Johnson’s intestate. O i the trial, plaintiif first introduced a bill of sale, signed by defendant and conveying .to him for ¡0600 a uegro gill named Rose, and warranting her to be sound in body and in tmud, dated November 27lh, 1855.

<p>Assumpsit from Bibb. Tried before Judge Lamar, May Term, 1858.</p> <p>Shaw was removed from the office of City Marshal, and brought his suit for the salary and fees which belonged to the uhexpired part of his term.</p> <p>Defendant pleaded neglect of duty on the part of plaintiff, in not reporting offenders against the law punishing gambling, and gambling on the part of plaintiff himself, while in their employ as Marshal, &c.</p> <p>On the trial, the reports and decisions of the Supreme Court in this case, and the evidence reported therein, were read by plaintiff, under agreement of counsel, which are to be found in the 16 Get. 172, and in the 21 Ga. 280, and in the latter volume, the evidence of A. R. Freeman was read instead of of using him on the stand.</p> <p>Benjamin Mien testified, that the perquisites of the office of Marshal, for the year 1853, amounted to at least two dollars a day. Plaintiff here closed.</p> <p>The defendant offered to introduce Victor Menardto prova that Shaw, while acting as Marshal in 1S53, saw John Chain and others, bet and play cards for money, and did not prosecute them. The Court refused to admit it. Whereupon defendant’s counsel excepted.</p> <p>The case proceeded, and to many of the rulings, charges of the Court, and refusals to charge, defendants excepted, and assign the same as error. All of which, except one, are omitted, as the judgment of the lower Court is reversed upon thq; exception taken to the ruling out of the testimony of Menard.</p> <p>The verdict was for plaintiff, whereupon defendants tender their bill of exceptions.</p>

<p>[1.] This Court will not interfora with the order of business, unless it appear» that th® presiding Judge e-xerciaed hia discretion in that respect illegally.</p> <p>[2.] If a party acknowledge service, at the appearance Term of tke Court, of the process and complaint, lie shall not be allowed to dismiss the cause for wantof service, at the trial Term.</p>

Equity from Talbot — bill for account. Decision by Judge Ijamar, March Term, 1858. The complainants,plaintiffs in error filed their bill against ábe defendant to compel him to account to them as the distributees of his intestate, for their distributive shares of the estate in his hands.

Assault with intent to murder, from Twiggs. Tried before Judge Lamar, March Term, 18*58. Wilson Galloway was indicted for an assault with intent to murder, and put upon his trial at the March Term of Twiggs Court, 1858, and found guilty.

<p>Complaint, from Marion. Tried before Judge Worrill, March Term, 1858.</p> <p>Turner D. Patterson sued John K. Moore, and garnisheed French & Aven, who answered, that they owed the defendant, Moore, an amount of a promissory note given him by them. Upon this answer judgment was entered against them, which they paid, for the full amount of said note.</p> <p>This note being in the hands of Charles Campbell, he brought his action against French & Aven thereon, and on the trial, read his declaration and note, and closed his case.</p> <p>Defendants pleaded full payment of the judgment founded upon said note, and their answer as garnishees, before the same came into the possession oí the plaintiff, and introduced in evidence the original summons of garnishment, showing the service to have been before the note fell due, also .their answer to the same, also the order of Court commanding them to pay over the money into Court, and that the same be applied to the payment of Patterson’s debt.</p> <p>The Court charged the jury, that defendants pleaded a judgment in bar of the plaintiff’s recovery in the action, which judgment it is admitted was obtained by Patterson, on their answer as garnishees, in which answer they admitted their indebtedness to Moore on the note. This judgment is no bar to the plaintiffs right of recovery, unless it appears that Moore was the owner of this note at the time the garnishment was sued out, or that the note was negotiated to the plaintiff after it fell due.</p> <p>Defendants’ counsel then requested the Court in writing, to charge thejury, that before they can find for the plaintiff, they must be satisfied from the evidence, that the plaintiff came into the possession of said note, and was a bona fide holder thereof, before the summons of garnishment was served on the defendants, and that the onus was on the plaintiff, and not the defendants, to show this fact, and if the plaintiff has failed to prove this fact, they must find for the defendants; which the Court refused, and to both the charge of the Court, as given, and the refusal to charge as requested, defendants’ counsel excepted, and assigu the same, as error.</p>

<p>[1.] The Superior Court may order its Clerk to revise and review a judgment for costs, and order them to be retaxed.</p> <p>[2.] A party cast in the Supreme Court liable for the costs in that Court; and if he eventually succeed in his cause in the Superior Court, he cannot re" cover them.</p>

Complaint, from Randolph county. Tried before Judge Kiddoo, May Term, 1858. Carhart, Bro’s & Co., sued John W. Shropshire, David Holman and Christopher Holman, as partners, doing business as “ Shropshire & Holman,” on a note and account against said firm.

Illegality, from Muscogee county. Decision by Judge Workill, May Term, 1858.

<p>Motion to set aside order and judgment of Court changing name of minor &c., from Lee county. Tried before Judge Allen, April Term, 1858.</p> <p>At a prior Term of the' Superior Court of Lee county, upon the petition of Dudley Sneed, John Needam Massey, a minor, six or seven years old, had been declared his adopted child, his name changed to John Needham Massey Sneed, and the rights of each to be the same as if the said miner had been born the natural legitimate child of the said Dudley Sneed. This proceeding was had under the Act of 1855-1856.</p> <p>At the next Court Robert Rives presented his petition, showing that he was the regularly appointed guardian of said minor and had been since the 3d of October, 1855, and that said Sneed, upon an ex parte application, obtained the judgment of the Court before recited, without the knowledge, consent or approbation of the plaintiff or the said minor or his friends; and that said judgment was unjust and illegal, because:</p> <p>1st. It deprives plaintiff of vested rights secured to him by letters of guardianship granted before said judgment was obtained, and previous to the Act of the Legislature under which said proceeding took place.</p> <p>2d. That by said judgment, defendant acquired valuable rights from said minor, without any fair equivalent to said minor.</p> <p>3d. That hy said judgment said child loses its name, and thus is estranged from its family and friends, to the great mortification of its father’s nearest relatives, at whose solicitation and entreaty this protest is made.</p> <p>4th. That said minor is possessed of sufficient property, together with, the proffered aid of friends and relatives of his father, to provide for him comfortably and for his proper intellectual and moral'training, and is not dependent upon the kind intentions of a stranger te h'is blood and name.</p> <p>5lh. That said judgment deprives petitioner of the custody, care and control of said child, confided and committed to him by the proper authority of Randolph county, with the consent of its paternal and maternal relatives, and confides tito same to a stranger to his blood.</p> <p>6th. Thatthe Act of the Legislature is not only unjust and unwise, but unconstitutional and void.</p> <p>Wherefore, he prays that said judgment maybe vacated and set aside.</p> <p>Whereupon the Court granted an order that defendant show cause why said application should not be granted, &c., and all proceedings under said judgment be stayed until further order.</p> <p>Defendant appeared and pleaded, that the Court there had no jurisdiction of the matter, because the question as to the validity of the judgment had been carried to the Supreme Court.</p> <p>That the proper mode to test said judgment was by bill of exceptions to the Supreme Court.</p> <p>' That, by said judgment, both defendant and minor acquired vested rights which this Court cannot defeat.</p> <p>Answering, he says, that it is not true, as stated in said rule, thatplaiutiff is the legal guardian of said minor; that Needham Massey, father of said minor, in the year 1S54 died intestate, leaving; a considerable estate of the value of-,re-</p> <p>siding at the time of his death in the county of Dougherty; that some time previous to his death, by marriage contract with his wife Lydia, the mother of said minor, he appointed and nominated Jesse Cock, of Lee county, brother of said Lydia, trustee and guardian of the person and property of said minor; and said Cock accepted the appouitmmt and has acted under it until now, superintending the child’s property. At the death of said Lydia, which took place in ihe year 1852, the said minor, then 18 months old, was brought to the house of defendant by consent of father and guardian of said child, where he'remained until 6th August, 1S57, when, without the knowledge or consent of defendant or his wife, and while the said child was away from defendant’s home, he was carried away by Sarah Rives, the wife of plaintiff, and against the will and consent of the child ; that during the lifetime of said Massey, the child’s father, he was willing and anxious to have the child, remain with defendant and his wife, who are as near of kin as Rives. That before the death of the' child’s father, plaintiff desired him to allow the child to li -e with him, and ^le father refused, and preferred the child to remain with defendant; that defendant is worth <§30,000, and the child would get more from him than he would from the child, provided he should inherit from the child.</p> <p>Denies plaintiff’s not having notice of his intention in •getting the judgment, and that the ‘judgment is right, &c., and the letters of guardianship are void because the Court granting them in Randolph had no jurisdiction, the child living in Lee, and had no property in Randolph, and that the estate of Massey, deceased, in Rives’ hands was fully administered, and that Jesse Cock was the testamentary or appointed guardian of said child, and acted as such a long time, providing for him until defendant provided for him ; admits the child will get from his father’s estate 6 or $8000 ; that said Rives has three children, defendant has none, and he and his wife are much attached to the child; Rives is insolvent, and his property is beyond the reach of his creditors.</p> <p>It was agreed that the Court should decide the application. without a jury.</p> <p>Jesse Cock testified that Sneed was a fit and proper person to take charge of the child; he was worth from'15 to $20,000 over and above his debts, and he, as the uncle of the child, was willing for him and his wife to take the minor. They had no children. Sneed was about or over fifty years of age, and his wife about forty-nine. The child’s mother died when he was an infant, and Mrs. Rives nursed him. Mrs. Rives was kind and affectionate to him, but thought more of her own children. While Rives’ family was sick, Mrs. Sneed took the child home, and it remained there until last August, when Mjs. Rives again took it home from Smithville. Massey died at witness’ house in Lee county; deceased’s plantation was in Dougherty, and he claimed his home there. Witness is trustee under the marriage contract between Mr. and Mrs. Massey, and holds the property in trust for the two children. Witness heard Massey, a day or two before he died, say he wished Mr. and Mrs. Rives to raise his children. Said it was the wish of his wife before her death, and he had no reason to change it. That Mrs. Rives was willing for Mr. Sneed to take John, but that he did not wish him to raise him; had no objection to Mr. Sneed having the child until he was old enough to go to school, but then he must go to Mrs. Rives and go to school, and both be raised together. Regards Rives insolvent; that is, money could not be forced from him by law. Rives is a religious man. The children’s property in hand is worth 7 or §8000, and altogether they are worth from 18 to $20,000.</p> <p>The marriage contract between Mr. and Mrs. Massey was introduced, by which all Mrs. Massey’s property before marriage was vested in Jesse Cock, as trustee for. her and her children, free from the debts, &c., of her husband, to be held by said trustee during coverture.</p> <p>Thomas Hughes testified that he had known Dudley Sneed and his wife a long time; had seen the child at their house. They manifested as much affection for it as if it had been their own, and corroborated what Jesse Cock testified about the wishes of Mr. Massey, expressed about the child a day er two before his death.</p> <p>It was admitted that Franklin Cock, J. T. Cock, and Jesse Cock, brothers of Mrs. Massey and uncle of the child, knew of the intention of Sneed, and were willing he should adopt the child. %</p> <p>Robert Rives then introduced letters of administration granted to him in Dougherty county in 1854 on the estate of Needham Massey, and letters of guardianship of John N. Massey and Sarah Massey, orphans of said Needham, from Randolph county, dated Sd October, 1855,</p> <p>Rives moved to Ranpolph county in the winter of 1854— 5; at the time of granting letters of guardianship, lived in Randolph at Rives’, and that John N. was at Sneed’s in Lee, and had been nearly ever since his father’s death.</p> <p>Drury Massey testified he was the only brother of Need-ham Massey, deceased; his father’s name is Needham; still living, and is a man of considerable property; and should he die without a will, these children will inherit from him a sufficiency to support, educate, and set them out well in the world. This child is named for both grandfathers, and Needham Massey Senior, is deeply mortified and bitterly opposed to his being adopted by Dudley Sneed, and to his name being changed. He corroborated the other witnesses about Mr. Massey’s expressions concerning his children, just before he died — Rives was present. His brother was speaking of and contemplating the prospect of death. He then said he wanted his children raised properly; and to Mr. Rives he said : “I want you to bring them up in the nurture and admonition of the Lord; give them a good substantial education; I had rather have them raised with a good substantial education, and start in the world without a cent, than raised by Sneed and inherit his whole fortune.” That Mrs. Rives was anxious to let Sneed have John, but he did not desire it. He might stay there until he got large enough to go to school, but then he must go home and go to school with his sister; and if Rives was notable to raise them, witness must take them. Witness desired Rives to raise them in preference to Sneed, on account of his brothers’ wish. Needham Massey said his wife was very anxious for Mrs. Rives to raise her children, and he had no desire to alter if.</p> <p>After argument, the Court refused to vacate the judgment, and plaintiff excepted.</p> <p>Ihe plaintiff then moved to have the grandfather of said child, Needham Massey Senior, appointed guardian ad-litem of said minor for the purpose of having the rights of said minor, growiug out of this transaction, properly represented.</p> <p>Which the Court refused to do, and plaintiff excepted and assigns error.</p>

In Equity, from Twiggs county. Tried before Judge Lamar, March Term, 1858. This bill was filed by James A. Rooks, administrator of Tabitha Adams, deceased, wife of Obudiah Adams, against William Bryan, executor of Daniel Massey, deceased.

Certiorari, from Bibb county. Tried before Judge Lamar, May Term, 1858. John F. Arnold sued Jacob Russell in a Justices Court, and garnisheed the South Western Railroad, and on the returns of the answer to the garnishment, plaintiff moved to enter up judgment against the garnishee ; to which the defendant objected on the ground, that the monthly wages of laborers and mechanics are exempt from the laws of garnishment..

Complaint, from Stewart county. Tried before Judge Kiddoo, April Term, 1858. This was a suit against John M. Christian on a note, signed by James C. Christian as principal, and Thomas Stovall and John M. Christian, securities.

<p>Equity, from Worth county. Decision on demurrer by Judge Lamar, April Term 1S58.</p> <p>Jeremiah D. Riodan hied his bill against Frances Holliday in which he alleged that he was the guardian of his]da tighter Frances, legitimate child of his marriage with Jarra Lane, a widow, daughter of John Smith, deceased. John Smith died leaving children by his first wife, to-wit: Frances Holliday, Elizabeth Russell and Jarra Lane, and also leaving a will which was proven and admitted to record.</p> <p>The bill further sets forth certain equitable claims of Riodan, as guardian, in right of his daughter Frances, to the property left by the will of Smith; that the balance of the property, (stating the amount) in the possession of defendant, is now in Worth county; that he apprehends said property will be removed beyond the limits of the State, and his rights as guardian, and the rights of his ward, will be impaired unless a remedy be given him against their removal, and prays for a writ of quia timet against Frances Holliday.</p> <p>Which bill was demurred to for want of equity and jurisdiction ; and because the bill does not allege the negroes were in Worth county, at the time of the filing of the bill, or are now, and that the oath verifying, the bill was not sufficient, because complainant failed to give bond, &c.</p> <p>Complainant swore to the facts in the bill, to the best of his knowledge and belief. And after the decision of the Court sustaining said demurrer, complainant moved to amend his bill by alleging the residence of defendant to be in the county of Worth, and that the negroes were there at the time of filing said bill, which the Court permitted and defendant’s counsel excepted and assigned error.</p>

Assumpsit, from Sumter county. Tried before Judge Axlen, March Term, 1858. Plaintiff, McColgan, sued defendant McKay on the following bill of particulars. Neil McKay to Neil McColgan, Dr. To balance on setdement of partnership between you and me found, and acknowledge due me, $520,00. On the trial plaintiff offered in evidence an account, stating items particularly, signed by the defendant.

Claim, from Marion county. Tried before Judge Worrill. March Term, 1858. When said cause came to be tried, it was moved to dismiss the claim, on the ground that the same was interposed on a Justice Court fi. fa., to a levy on a negro slave made before the November Term of the Inferior Court, and should have been returned to said Court. Whereas it was returned to the March Term of the Superior Court. Whereupon the Court refused to entertain jurisdiction and dismissed the case.

In Equity, from Randolph county. Decision by Judge Kiddoo, November, adjourned Term, 1857. A bill filed by the administrator of J. M. Colby against Brooks, as the surviving partner of J. M. Colby & Co., for account and settlement.

<p>Equity, from Taylor. Decision on demurrer to bill, and demurrer to plea to bill, by Judge Lamar, April Term, 1S58.</p> <p>This bill was filed by the children and heirs at law of David Shelton, deceased, against John B. Wright, administrator of Mary Martha Shelton, deceased.</p> <p>The bill alleges that David Shelton, was the father of a girl child called Mary Martha Nix; that said child was bom out of lawful wedlock; that she was recognized and claimed by said David as his child, and that in 1854,he procured an Act of the Legislature to be passed, changing her name from Nix to that of Shelton, and fully legitimating her, and making her one of his heirs at law. That said David, in life, made a will by which, among other things, he bequeathed to said Mary Martha three thousand dollars; and after-wards said David departed this life, and said will was provea and recorded, and letters testamentary granted to E. E. Worrill. That afterwards the said Mary Martha died intestate, leaving next of kin, the complainants; that after her death, letters of administration were granted to Robert H. Dixon and. John B. Wright, on her estate; that R. H. Dixon has since died, and that since his death the executor, Worrill, has paid over to the surviving administrator, the three thousand dollars by said will bequeathed to said Mary M.-, and that said sum is in the. hands of said administrator, to be divided between her next of kin; that said Mary M. dying at the age of six years, owing no debts, the administrator has waived his right of delaying this suit twelve months after letters of administration granted him; and that they have requested said administrator to distribute and pay to them the said sum of three thousand dollars, and that he has refused so to do. The prayer of the bill is, to compel the administrator to pay to and account to them for this said sum.</p> <p>The defendant plead to the bill, that complainants had no interest in the subject matter of the suit, for that they, nor, either of them, are the heirs at law of said Mary Martha^ that said Mary Martha was the illegitimate daughter of one Nancy Nix, who is still living, and that said Mary Martha, at the time of her death, had living a brother and sister, also illegitimate children of said Nancy Nix, and older than said Mary Martha, who are now living; that said Mary Martha was aged six years, aud that after her birth, said David Shelton had a lawful wife then living, and had such wife many years before that time, and that complainants are the issue of said legal marriage, and that said Shelton and said Nancy-Nix were never married; that said Shelton left a valid will, disposing of his whole estate; that said Act of 1854, legitimating said Mary Martha, and changing her name, was not procured or assented to by said Mary Martha, or by her said mother, brother or sister, or either of them, and if valid, which is denied, does not determine or prescribe who shall be the heirs at law of said Mary Martha, but left the law in relation thereto, as it heretofore stood.</p> <p>Defendant also demurred to the bill because,</p> <p>1st. The complainants had no interest whatsoever in the suit.</p> <p>2d.- Because said Act of 1854 does not constitute complainants, or either of them, the heirs at law of said Mary Martha Sheltsn.</p> <p>3d. Because there is no equity in complainants’bill; and moved the same be dismissed.</p> <p>Complainants demurred to the plea of defendant; and by agreement, the demurrer to the bill, and the demurrer to the plea, were consolidated, to be heard and decided together and after argument, the Court decided, ordered and decreed, that the demurrer to the bill tbe sustained and the bill dismissed, and further, that the demurrer to the plea be overruled; to which decisions, orders and decrees, complainant'» excepted, and on the same have assigned error.</p>

Assumpsit, in Decatur Superior Coiirt Tried before Judge Allen, April Term, 1858. Waldo, Barry & Co. brought suit on two notes against David Strauss and Jacob Strauss, which notes were signed by David Strauss only, and alleged that they were partners, doing business under the name and style of David Strauss. Defendant, Jacob Strauss, pleaded non est factum, and that he was not a partner of the firm of D. Strauss, as alleged, a£ ¿he time the notes were made.

Complaint and bail, in Muscogee Superior Court Tried before Judge Bull, May Term, 1858. D. A. Johnson, of the firm of L).

Complaint and appeal, from.Stewart county. Tried before Judge Kiddoo, April Term, 1858. This was a suit on a note, and on the appeal the deféndant moved to dismiss it, on the ground, that the process to the declaration was made returnable to the April Term, 1857, of the Superior Court, when it appeared that the said appeal was made from the October Term, 1856, of said Court.

Ejectment, from Baker county. Tried before Judge Arlen, May Term, 1858. This was a suit in ejectment for lot of land No. 243, in the eighth district of Baker county, by John Doe, upon the «Semises of Thomas J. Hand and Hamlin Cook, against Richard Roe, casual ejector, and John McKinney, tenant in possession.

Illegality, from Dougherty county. Tried before Judge Allen, May Term, 1858. Henry A. Scott as trustee for Virginia A. Scott, and the said Virginia A. Scott, made a note for the sum of $5,951 235-100, which was endorsed by said Henry A. Scott to Benj.

Equity, from Talbot county. Decision on demurrer by Judge Lamar, March Term, 1858.

Assumpsit, from Baker county. Tried before Judge Allen, May Term, 1858. Chance made his note, which B. N. Scott and Henry Summerford endorsed to the Central Bank of Georgia, After the maturity of the note, the same was sued to judgment in Houston county, and execution issued thereon. Henry Summerford paid off the Ji. fa. It appears, from the record, that Chance having removed from the county o Houston, was.not served with the writ.

<p>Complaint, from Houston county. Tried before Judge Lamar, April Term, 1858.</p> <p>Barnett sued Cook on a due hill for $220, payable to him, dated March 18, 1854.</p> <p>To this Cook pleaded this plea, that before and at the time of the institution of this action, the plaintiff was and from thence, hitherto hath been and still is indebted to defendant in the sum of $800, won by plaintiff of him at a game of cards. about the 12 March 1854, which he was ready and willing to credit with the amount of the due bill, and asked a verdict and judgment in his favor for $580.</p> <p>The suit was commenced on the 2d of September, 1856.</p> <p>The plaintiff read in evidence the due bill and closed his case.</p> <p>Defendant offered to read in evidence the answers to certain interrogatories propounded to plaintiff, which stated that the due bill was given in Albany a few days after he (plaintiff) had won from defendant about $800 at cards, which suss was paid as won. This due bill was given for money loaned, which was not loaned to bet with and was not won ©f defendant after it was loaned, as he never played witb him after the loan. The time he won the $800 was the only time he ever played with defendant, and after they quit playing, defendant owed him nothing for he paid as he lost.</p> <p>The answer also stated that the plaintiff was and had always been a citizen and resident of North Carolina, and that he left Georgia some ten or fifteen days after winning the money.</p> <p>The Plaintiff's counsel. objected to reading the said answers in evidence, upon the ground that the subject matter of defendant's set off was barred by the statute of limitations, and that they tended to criminate plaintiff.</p> <p>Which said objection was sustained by the Court, whereupon defendant’s counsel excepted.</p> <p>The verdict of the jury was in favor of the plaintiff for the full amount &c. On the exception error is assigned.</p>

Assault and Battery, from Randolph county. Tried before Judge Kiddoo, May Term, 1858. It appeared that a jury was empanneled, and qualified to try Geiger at the Term at which the bill of indictment was found, a demand for trial made by him in the usual manner, and no trial had; and no trial was had at the Term next succeeding, though there was a jury empanneled and qualified to try him and a demand for trial, made in the usual manner, again placed upon the minutes.

Trover, from Muscogee county. Before Judge Bull, May Term. 1858. It appeared upon the trial that Kenneth McKenzie, a day or two after making his will, said to Dr. Ellison his physician, that in arranging his business he had forgotten an important matter, and feared it was then too late to arrange it, that it was in regard to some money he had in Scotland.

Equity, from Crawford county. Decision by Judge Lamar, at chambers.

Assumpsit, from Worth county. October Term, 1858, Judge Powers, presiding. Smith brought an action against Ford, alleging in the first count, the making of a contract with Ford, to furnish materials and build him a house by a certain time, viz: the 18th of April, 1855, for which Ford was to pay him a certain sum ; that after performing a certain amount of labor, Ford discharged him. The second and third counts are quantum meruit counts.

Motion to enter judgment against security on the appeal,, from Lee. Tried before Judge Allen, March Term, 1858.

Claim, in Dougherty county. Tried before Judge Allen, June Term 1858. An execution in favor of Henry B. Weed, was levied on a house and lot in Albany, as the property of Andrew Y. Hampton, who was defendant in fi. fa., and the property was claimed by John A. Davis.

Claim, from Randolph county. Tried before Judge Kiddoo, November adjourned Term, 1858.

<p>Manslaughter, from Marion county.. Tried before Judg©-Worrilx., March Term, 1858.</p> <p>Newton Camp was placed upon his trial under an indictment, the language of which was as follows:</p> <p>“ The grand jurors sworn, chosen and selected for Marion county, in the name and behalf of-the citizens of Georgia,, charge and accuse Newton Camp of the county and State aforesaid, with the offence of manslaughter, for that the said' Newton Camp,, in the county and State aforesaid, on the twelfth day of June, in the year of our Lord, one thousand-eight hundred and fifty-seven, with force and arms and with a certain strap of leather, called a carriage trace, in and upon a certain negro man slave named Willis, the property of James M. Harvey, in the peace of God and said State, then and there being, did then and there make an assault, ^unlawfully, wilfully, feloniously and with malice aforethought , and the said negro man slave Willis, with the carriage trace aforesaid, which he the said Newton Camp then and there had and held in both his right and left hands, m and upon the back and in and upon the shoulders, and the-loins of him the said Willis, then and there unlawfully, wilfully, feloniously and of his malice aforethought, did strike and beat, giving to the said Willis, divers wounds of which said wounds, the said Willis, then and there died. And the jurors aforesaid, on their oaths as aforesaid, do say, that he, the said Newton Camp, him the said Willis, then and there, wilfully, unlawfully, feloniously and of his malice aforethought, did kill, contrary to the laws of said State, the good ■order, peace, and dignity thereof.”</p> <p>The jury returnéd the following verdict: “We the jury-find the defendant guilty of involuntary manslaughter, in. the commission of a lawful-act, Which probably might produce such a consequence in an unlawful manner.”</p> <p>Counsel for defendant then moved in arrest of judgment, on the following grounds:</p> <p>1st. Because the indictment does not charge that said offence was committed contrary to the Constitution of this State, and the Act of the assembly made in pursuance thereof.</p> <p>2d. Because the indictment does not charge the defendant with any crime known to and punishable by the laws of this State.</p> <p>3d. Because said indictment is void, and of no effect in law, as the same does not charge and set forth any offence known to the law.</p> <p>4th. Because said indictment charges said defendant with being guilty of manslaughter, and the allegation and specification in the same, do not support said charge of manslaughter.</p> <p>5th. Because the verdict of the jury rendered in said case, does not find the defendant guilty of any offence punishable by the laws of this State.</p> <p>The Court overruled the motion; whereupon defendant’s counsel excepted, and assigns the same as error.</p>

From Marion county. Appeal to Superior Court from the Court of Ordinary. Decision by Judge Worried. The facts were agreed upon by counsel, and referred to the Court for decision of law.

Suit on bond, from Harris county. Tried before Judge Worrill, April Term, 1858. Letters of guardianship were granted to Elias D. Hines over the person and property of his children, by the Inferior Court of Harris county, and were revoked again by the same Court.

Murder, from Muscogee county. Tried before Judge Worrill, May Term, 1858. The jury found Hinch guilty, and the Judge sentenced him to be executed on the second day of July, proximo.

l’ractice, from Muscogee county. Determined by Judge Worrill, May Term, 1858. Held: that the case should be continued. Counsel for plaintiff insisted, that the claimant should be charged with the continuance. The Court refused and ruled that the case should be continued generally. To which ruling plaintiff’s counsel excepted, and assigns the same as error.

Trover and Bail, from Muscogee county. Tried before Judge Worrill, May Term, 1858. Certain packages were sent from San Francisco, California, to Jenny Mitchell in Columbus Georgia, by Freeman & Co's Express ; Samuel H. Hill reported to Jenny Mitchell’s agent that they were in his possession, as agent for Harden’s Express Company, in Columbus, and he could have them, by paying the freight and insurance on them.

Action on the case for deceit, in Muscogee county. Tried before Judge Worrill, May Term, 1858.

Complaint, from Randolph county. Tried before Judge Kiddoo, May Term, 1S58. Kirksey and Bower were- partners, and after they had dissolved, Kirksey converted an open account against the fina into a liquidated demand, by signing the name of the firm under seal to a note in favor of Hendrick & Hunger ford. This note fell into the possession and control of Hendrick, who sued Kirksey and Bower upon it.