Volume 26 — Georgia Reports

Debt in Muscogee. Superior Court. Tried before Judge Worrill, May Term, 1858. This was an action brought by defendant in error against Alexander J. Robison. The declaration alleges that Robison was a stockholder in-the “Planters and Mechanics Bank of Columbus” to the amount of 575 shares of stock, rated at $100 per share.

Complaint, from Muscogee. Tried'/before Judge Bull, May Term. 18S8. Reid sued the Union Dray Company on a note signed “ M. G. McKinnie, Tr. Union Dray Co.,” and offered on the trial said note in evidence, to which defendant objected. The Court overruled the objection, and the defendant excepted, and the note was read to the jury.

Motion to discharge security on bail bond, from Terrell. Decision by Judge Kim>oo,May Term, 1858. Pass commenced his action of trespass on the case against Johnson, and laid his damages at $2,000; he made an affidavit that he had thus commenced suit, and that he apprehended the loss of said sum, or some part thereof, unless the said Johnson was held to bail. One of the Justices of the Inferí- or Court, under the Act of 1854, granted an order for bail in the sum of $700.

<p>Trover, from Muscogee. Tried before Judge Worrill, May Term, 1858.</p> <p>The Montgomery and West Point Railroad Company conveyed a negro boy, Warrerf, from Columbus, belonging to Daniel Griffin, the plaintiff, away from his possession; whereupon he brought his action of trover.</p> <p>On the trial of the case, plaintiff proposed to prove by the admission of David Cropp, conductor of one of the passenger trains of defendant, to the superintendent, Samuel G. Jones, that he carried plaintiff’s boy, Warren, over the road, knowing him to be a negro, and that he belonged to plaintiff; the negro was passing for a white man, and he humored the joke, and charged him full fare. This admission was the Iasi month of 1855, or the first of 1856, and Cropp was then a conductor on the passenger train of defendant.</p> <p>Defendant’s counsel objected to this testimony on the ground, that it was not a part of the res gestas. The objection was sustained by the Court, and the plaintiff excepted.</p> <p>Plaintiff then proposed to prove that Cropp made the same admission to Robert Simons, the night after he carried the negro boy Warren over the road. To which defendant’s counsel objected. The , Court sustained the objection, and plaintiff’s counsel excepted.</p> <p>Plaintiff then proved the value of the negro; a demand on defendant for the negro, and a refusal by the defendant to deliver him; and the ownership of the negro Warren. The right to possession being admitted to be in plaintiff.</p> <p>Plaintiff closed his case; whereupon, defendant moved the Court for a nonsuit, which was granted by the Court, and and plaintiff excepted, and on these exceptions assigns error.</p>

<p>Certiorari, from Bibb. Decision by Judge Lamar, June Term, 185S.</p> <p>Harriet E. Experience held a judgment against John A. Holt, and garnished the Mayor and Council of the City of Macon; and in answer to said garnishment, said Mayor and Council, by its proper officer, answered that they had funds in hands belonging to said defendant. Plaintiff proceeded to enter up judgment against said Mayor and Council.</p> <p>Defendant objected upon the ground, that he was an officer of said corporation, and that the same could not be garnished for the salary of its officers — which was overruled. These proceedings were brought before the Superior Court from the Justices Court, and sustained; whereupon,' the defendant by his counsel excepted and assigns error.</p>

Equity, from Marion; motion to dismiss ne exeat. Decicided by Judge Worrill, March Term, 1858.

Notice for damages under the Act of 20th February, 1S54-, in Talbot Superior Court. Tried before Judge Worrill, March Term, 1858. This was a statutory proceeding by William R. Neal, against the Muscogee Railroad Company, for the recovery of damages for killing a negro belonging to plaintiff, upon their road, which negro was in the employ of the company.

Action on the case, in Dougherty Superior Court. Tried before Judge Allen, June Term, 1858. This was an action brought by Edward T. Taylor & Co.j against William E. Collier,' to recover damages for failure to deliver four cotton gins.

Assumpsit, from Bibb. Tried before Judge Lamar, June Term, 1858. This was action of assumpsit by William Massey against Aquilla Calhoun for the recovery of one hundred dollars, for professional services rendered as an attorney at law. The defendant came to E. A. Nisbet and stated that the parties had agreed to leave the construction of the will of his father to Nisbet, Poe, and the Ordinary.

Ejectment, from Stewart county. Tried before Judge Kiddoo, April Term, 1858.

Application to take benefit of Honest Debtors’ Act; from Randolph county. Tried before Judge Ejddoo. William Harrison was attached for failing to pay over money which had been collected by him as Sheriff. He filed his schedule, and made application to the Court to take the benefit of the honest debtors’ Act, and the Court permitted him to take the benefit of the Act. Whereupon, the counsel for Standley excepted, and assigns error.

<p>Illegality, from Webster county. Decision by Judge Kiddoo, March Term, 1858.</p> <p>Defendant Parker made an affidavit of illegality to the execution in favor of Jennings against him, that it was proceeding illegally, because he had no notice of the pendency of the suit upon which the judgment was founded, until execution issued against him; that he resided, at the time the suit was commenced, in Monroe county, and was never legally served.</p> <p>There was an entry of service on the writ, by the Sheriff, who stated that he left a copy of it at defendant’s most notorious place of abode.</p> <p>Upon motion, the Court dismissed the affidavit of illegality; whereupon, counsel for Parker excepted, and assign error.</p>

In Equity, from Bibb county, between Long, complainant, and Brown, defendant. Tried before Judge Lamar, May Term, 1853.

At the May Term, 1858, of the Superior Court of Muscogee county, Adolphus S. Rutherford as receiver of certain property belonging to the estate of Daniel McDougald, deceased, moved the Court on petition, for leave to sell some of the property of said estate, for the purpose of paying taxes on lands of said estate, in the States of Alabama, Mississippi and Arkansas.

In equity, in Muscogee county, May Term, 1858, Judge Work ill, presiding. The complainant applied to the Court for an order, requiring the defendant Cleghorn to pay into Court by a given time, the amount of money admitted in his .answer to be in his hands, belonging to the estate of McDougald, arising from the rent of a portion of the property mentioned in the deed set forth in complainant’s bill. The Court refused to grant the order, and complainant excepted.

<p>A writ of error, to reverse a judgment, directing pleadings to be amended or a defendant in equity to answer over, is not entitled to much favor.</p> <p>Where the answer of a defendant in equity is not full and complete, and that too, to the best of his knowledge, information and belief, he should be required to answer over.</p>

<p>Ill equity, in Muscogee Superior Court, May Term, 1858. Judge E. H. Worried, presiding.</p> <p>Dixon, administrator, moved 1o dismiss the bill of Rutherford :</p> <p>1st. Because the bill was served by Rutherford as Sheriff, and also, foryvant of prosecution, more than four Terms having elapsed from the filing of said bill.</p> <p>The Court refused, and overruled both of said motions, and Dixon excepted.</p> <p>For all the facts, see Rutherford vs. Cleghorn et al. seq.</p>

In equity from Muscogee county. Tried before Judge Worrill, May Term, 1858. This was a bill filed by Adolphus Rutherford, as receiver against Seaborn Jones, Charles Cleghorn, and the administrator of Daniel McDougald, deceased. Cleghorn, Jones, and Robert E, Dixon, administrator of Daniel McDougald, filed their separate answers to the bill. Complainant filed twelve exceptions to each of said answers.

Murder, in Muscogee. Tried before Judge Worriel, November Term, 1858. Dozier was put upon his trial for the murder of David Gunn, and found guilty.

<p>[1,] In an action against several persons on a note signed by one of them as “ security,” the judgment was against them generally, not specifying that it was against the latter as security, and the others as principals.</p> <p>Held, That this omission in the judgment, was not a ground for an illegality. [2.] Held also, That a failure by the plaintiff to observe instructions of the surety to make his money out of a principal is not a ground of illegality,</p>

Motion in arrest of judgment on ca. sa., from Sumter county. Tried before Judge Allen, March Term, 1858.' At September Term, 1857, McWhorter obtained judgment against McMurrain, on which a ca. sa. issued. At the next Term McMurrain moved to set aside the same, upon the ground that he had filed a plea in said cause, and that said verdict was rendered upon an irregular call of the docket, and without notice to defendant.

Equity, from Worth county. Injunction. Before Judge Lamar, at chambers. Hudson D. Taber, the complainant, alleged in his bill, that on the 18th March, 1849, he purchased of Daniel Harris, lots of land Nos. 204 and 205, in the 15th district of Worth, for which he received the said Harris’ deed, and he was then and there in the possession of the same.

Rule against Sheriff, from Randolph county. Tried before Judge Kiddoo.. The rule recites, that Davis, having in his hands a ca. sa. against one Shannon, in favor of plaintiff, arrested him, and toot bond and security for prison bounds, after Shannon had been delivered up by his former security on the ca. sa. bond, and had been ordered to jail by the Court. The term of the bond expired, but the Sheriff did not remand and commit him.

<p>Tlie complainings of negroes, as tn their diseases, are admissible in evidence.</p> <p>If unsound property is of any value either at the ti*ie of sale or afterwards, the purchase money with interest is not the proper criterion of damages.</p> <p>Although the Court charge the law erroneously, still, if the verdict of the jury ho right, no new trial will he granted</p>

Ejectment, from Lee county. Decision by Judge Allen, March Term, 1858. The facts in this case were agreed upon and submitted to the Judge for his decision, and are as follows: The fractional lot in dispute was sold by Wm. J. Davis agent of the State, on the 5th day of May, 1834, and after-wards, on the 21st day of May, 1835. the whole of the purchase money was paid.

Debt, &c. from Muscogee Superior Court. Tried before Judge Bull, May Term, 1858. David Foley was arrested on a ca. sa. from Justice’s Court, and gave prison bounds bond. In February Term, 1857, of the Inferior Court, he made application to take the benefit of the Act of 1823 “for the relief of honest debtors.” Arnold suggested fraud in Foley’s schedule, and the issue being tried, the jury found for Arnold.

Complaint for land, from Sumter county. Tried before Judge Allen, March adjourned Term, IS5S. This was an action commenced 14th February, 1856, by Stephen C. Denham, against James T. Holeman, for lot of land No. 221, in the 16th district of Sumter county.

<p>Action on the case, from Dougherty county. Tried before Judge Allen, May Term, 1858.</p> <p>Jones, the plaintiff, in company with another, put his stock of horses up at the stables of defendant, in Albany. Next morning one of the horses was found dead, with a halter around his neck, being choked to death; and Jones brought this suit to recover the value of the horse.</p> <p>On the trial, the interrogatories of Charles Conley were read, proving that defendants kept stables at Albany, and plaintiff put up his horses with them; witness told the negro boy in attendance at the stables, not to tie the horse, the subject of this suit; if he did, the horse would be liable to hurt himself, but to tie a rope behind him ; but the negro tied a rope around his neck, and the horse was choked dead the next morning; does not know the rules of the stable, or that the horse was given into the keeping of the proprietors particularly, or that they were present when he said the foregoing to the negro, or that the plaintiff gave any instructions about the horse himself.</p> <p>The value of the horse, &c., was proved.</p> <p>On motion of defendant, the Court ruled out what the witness testified he said to the negro; and also, on motion of defendant’s counsel, awarded a nonsuit, and plaintiff by his counsel, then and there excepted to said rulings of the Court, and assigned error.</p>

Equity, from Bibb county. Tried before Judge Lamar, May Term, 1858. Jane Cole, for herself, and as next friend of her three children, filed her bill for specific performance and injunction, alleging that her husband, Henry H. Cole, died possessed of a house and lot in the city of Macon ; and that Thomas B. Elfe took out letters of administration on his estate, and possessed himself of it.

Debt, in Muscogee. Tried before Judge Worrell. Zachariah Rodgers and Abner S. Mariner swapped' lots and houses in the city of Columbus, and were to deliver possession each to the other at a certain time. Mariner and Josiah Roberts entered into bond with Rodgers, conditioned in a certain sum, for the faithful execution of the agreement on Mariner’s part, if Rodgers should demand possession on the day, and offer possession.

Debt, from Muscogee county. Tried before Judge Worried, May Term, 1S58. The facts of this case are fully set forth in the opinion of the Court.

<p>A testator bequeathes a life estate in his slaves to his widow, with directions to his executors, to remove them at her death to a free country. And further, that if funds cannot be raised from the sale of his other property, sufficient to cover the expenses of their transportation, that the negroes be hired out until money enough can be raised for that purpose.</p> <p>Held, That the will is void, under our anti-manumission Acts. And further, that in order to legalize the will, it is not competent for the Court to strike out one of the provisions of the instrument.</p>

Suit on bond, from Marion. Tried before Judge Worrell, March Term, 1S58. This was an action of debt on a bond. The plaintiff, Wm. B. Shaver, had obtained execution in a Justices Court against A. J. Simmons, James M. Adams and James M. Davis, and had it levied upon a bale of cotton.

Adultery, in Sumter county. Decision by Judge Allen, March Term, 1858. When this case was called, the Solicitor General asked the Court to continue it, and defendant objected. At September Term, 1857, defendant made demand for trial in terms of the statute, there being a jury empanneled and qualified to try him, which, was entered on the minutes.

Assault, with intent to murder: Motion for new trial from Sumter county. Tried before Judge Allen, March Term, 1858. John Avery, the defendant below, was put upon his trial for an assault with intent to kill Irwin T. Harrell, and pleaded not guilty.

Ejectment, from Sumter county. Tried before Judge Allen, March Term, 1858. This was an action for a lot of land, and was tried on the appeal. Plaintiff submitted a copy grant for the lot from the State to himself, and proved that defendants were in posession about the time suit was brought.

<p>Deceit, from Baker county. Tried before Judge Allen, May Term, 1858.</p> <p>John Jackson brought his action of deceit against William Newsom, executor of Cassar A. Savage, alleging that he was damaged by the representations of Savage, to wit — that one Pembroke P. Bond was solvent and responsible, and that thereupon he had credited the said Bond for merchandize, &c., for which said Bond never paid him, and is insolvent and unable to pay; that said Savage represented that said Bond owned several negroes and other property, and that said Savage perpetrated a fraud upon plaintiff, and was interested in so doing, &c.</p> <p>The jury found a verdict for plaintiff; whereupon the defendant moved for a new trial upon the following grounds.:</p> <p>1st. That the Court erréd in not sustaining the demurrer of defendant to plaintiff’s declaration, on the ground that said declaration contained no sufficient cause of action.</p> <p>2d. Because the Court erred in permitting the evidence of Pembroke P. Bond and Israel Bond to be read to the jury, against the objection of defendant’s counsel, as to the negro property in possession of Pembroke P.* Bond, being the separate property of the wife of Pembroke P. Bond, or any part of said answer, going tojshow that the^wife of Bond had a separate property, or that the same was secured and settled on her.</p> <p>3d. Because the Court erred in permitting Lott Warren to testify against the objection of defendant, that Savage, after P. P. Bond quit business in Albany, took an assignment from Bond of his account for work done in his shop.</p> <p>4th. Because the Court erred after charging the jury in the language as requested in writing, by defendant; that if at the time the representations were made by Savage, no account was made or intended to be made by Bond, but was subsequently made from day to day, week to week, and monthly, from the first of January, 1847, or from the time the account was opened until closed, then the defendant is not liable on the representations charged in addition thereto, “unless said Savage, by his representations, intended to cover such account as might be made by Bond for the whole year.”</p> <p>5th. Because the Court erred in charging the jury that they must be satisfied, from the testimony, that the defendant made the representations charged in the declarations falsely and fraudulently.</p> <p>That the defendant, at the time of making the representations, knew them to be false.</p> <p>That the defendant, in making the representations, either-intended to benefit himself or to deceive or injure the plaintiff.</p> <p>That the plaintiff must prove that he acted on the faith of said representations, having sold goods on account of them, and thereby lost his debt.</p> <p>That if the jury believe, from the testimony, that Savage, at the end of the year after the account was opened with plaintiff, claimed all bonds, notes and accounts, and took possession of them, it is a circumstance they may consider in determining whether or not there was collusion between Bond and Savage to defraud plaintiff. ,</p> <p>6th. Because the verdict was contrary to the charge of the Court in this: that they must be satisfied defendant represented falsely and fraudulently.</p> <p>That if the representations of defendant, on which plaintiff relies, in regard to Bond’s being good, stated no amount for which he was good, then plaintiff cannot recover. That if at the time no account was made or intended to be made, but was afterwards made daily, weekly and monthly, from the time it opened until it closed, then the defendant is not liable on the representations unless they were - made to cover the account for the whole year.</p> <p>That if after representations and while the account was being made, plaintiff had other sources and opportunities to learn the condition of Bond, whether .he was fit to be trusted, and neglected so to do, but blindly trusted to the representations of defendant, he cannot recover.</p> <p>That if he regarded defendant’s representations as security or as a promise to pay the debt of Bond, then he-cannot recover.</p> <p>7th. Because the verdict of the jury was contrary to evidence.</p> <p>8th. Because the verdict was contrary to law.</p> <p>9th. Because the verdict was contrary to the weight of'evidence.</p> <p> Brief of evidence. </p> <p>Pembroke P. Bond says he moved to Albany about first of February, 1847, and soon after opened an account with plaintiff. I proposed it, and he didn’t object. Don’t know how long it was before be became aware that the negroes in my possession didn’t belong to me. Defendant and other persons in Albany knew my pecuniary situation, and plaintiff had as good chance as other people in Albany to find out. Paid plaintiff part of his debt. I told plaintiff, near the end of the year, the negroes belonged to my wife’s trustees. A t the time I went to Albany I owed more than I could pay. Defendant was aware of it, and that the negroes were my wife’s. He came to Augusta and advised me to move to Albany; stood my security on a bail process in Augusta,and borrowed money to enable me to remove.</p> <p>Israel Bond said, at the time referred to,P.P. Bond was embarrassed pecuniarily, and owned no property. Defendant was acquainted with his circumstances ; supplied him with money to remove, and became surety for him on bail bond about the time. Defendant asked me if Bond’s wife’s property was secured to her; and I exhibited to him the marriage settlement showing the fact.</p> <p>James M. Thornbury said he was clerk for plaintiff; sold goods to Bond and his family on defendant’s representations; that defendant came into the store, said his brother-in-law, Bond, was coming to Albany to do business in carriages, and he wished Jackson would help him in custom all he could: and in return Bond would do all his trading with Jackson, and that Bond was perfectly responsible, as he owned in his own right eight or ten likely negroes. Bond closed his account by note (which was exhibited) and it has never been paid, to witness’s knowledge. Thinks after he closed his account by note, his credit was discontinued. Plaintiff considered Savage as security for Bond, and did not trouble himself with Bond’s habits or actions.</p> <p>Lott Warren said, when Bond came to Albany he loaned Bond a set of blacksmith’s tools, and when Bond left he went after them, and found them claimed by Savage. Got about half oí them by identifying them. Owed Bond a small account, which was in Savage’s hands, who claimed to have taken it in order to indemnify himself, saying he was a large loser by Bond. He was idle, extravagant, and imprudent, but he would have trusted him on the representation defendant made to plaintiff.</p> <p>S. D. Irwin called on defendant for rent of the shop, used by Bond; defendant refused; said he was largely loser for board, &c.</p> <p>Platt testified lie was in debt when he went to Albany; was extravagant, reckless and imprudent.</p> <p>The Court overruled the motion for a new trial, and defendant, by his counsel, excepts.</p>

In Equity. Motion to dissolve injunction, and to dismiss bill, in Randolph Superior Court. Heard by Judge Kiddoo, at chambers, February, 1858. This was originally a controversy in relation to certain negroes. The parties agreed to submit the matter to arbitration, under the Act of 1856. Two of the arbitrators made an award, from which the third arbitrator dissented — did not join in the same, and entered his protest against it.

Case, and motion for new trial, in Bibb Superior Court. Tried before Judge Powers, at November Term, 1857. This ivas an action on the case, brought by Malinda Winn, a minor, by her next friend, Cicero A. Tharpe, against .the Macon and Western Railroad Company, to recover damages for injuries received by plaintiff, from the negligent running of their cars. The case was submitted to a special jury on the appeal, who found for the plaintiff seven thousand dollars.

<p>[1.] When the Superior Court is opened and organized, at the regular time appointed by law for holding the same, it is competent for the Judge to adjourn over to a futu e day or week, that he may see fit.</p> <p>[2.] 1st. A continuance will not be granted in a criminal case, on account of the excited state of the public mind, after five months have elapsed since the -crime was committed. 2d. Continuances are still within the sound discretion of the Court, and do r.ot fall under the New Trial Act of 1853. 3d.-Where the accused lias ample time after his arrest, to make preparation for his trial, the recent finding of the bill of indictment by the grand jury, is no excuse for postponing the cause,' especially, where the offence for which the prisoner is to be prosecuted is well known to him — the only question being as to the grade of the homicide which he has committed. 4th. The fact that the defendant is imprisoned, is no reason why he should not make preparation for his defence. 5th. If it appear to the Court that the testimony of an absent witness is immaterial, a continuance will not be granted.</p> <p>[3.] When former panels of the jury are rejected, by reason of challenges to the polls, the Court will summon new panels, until an impartial jury can be obtained to try the cause.</p> <p>The Act of 1850, regulating the mode of selecting juries in criminal cases, does not repeal all other laws upon the same subject, but such only as are in conflict with it.</p> <p>[4.] Where the prisoner, after killing the deceased, effects his escape, and to enable him to do so, takes tlie’life of another person, and attempts to shoot others, these acts of violence may be given in evidence on the trial for murder, as well to manifest the deep self-consciousness of the accused of his guilt, as to characterize the quo mivrno with whiehthe deed was perpetrated,</p> <p>[5.] To constitute murder, it is not necessary that the prisoner should entertain personal ill-will toward the deceased.</p> <p>[6.] A verdict is not objectionable for irregularity, for finding the defendant guilty of murder, instead of guilty generally.</p> <p>[7.] The jury being made the judges both of the law and the facts in criminal cases, their verdict will not be disturbed unless it be clear that the defendant has been wrongfully convicted.</p> <p>[8.] If the j ail of the county, where a conviction is had in- a criminal ease, is insecure, it is competent for the Court to order the prisoner to be committed to the jail of another county for safe keeping,</p> <p>Note. — Would it not be well to direct all capital felons to be kept in the Peniteptiary, especially after conviction ? And also, to be executed there in the presence of the convicts. Quere?</p>

<p>Claim, from Sumter county, and motion for new trial Tried before Judge Allen, at March Term, 1858.</p> <p>Sims & Nance sued and obtained' execution against the firm of Mims & Wadsworth, and the same was levied on “ the house and lot lately occupied by defendants at Americus, the same being part of lot No. 1, in the 27th, also, the front of lot No. 2, in square letter H. in Americus, 75 feet more or less back, also, on that part of lot No. 1, in square H. in said town, on which is. the grocery store lately occupied by Mims & Wadsworth, also, on the stock of goods, wares, &c., found in the dry goods store on lot 2, in letter H.; all levied on as the property of Mims.”</p> <p>Mitchell J. Morgan put in his claim to the property levied on, and on the trial of said claim, the jury rendered the following verdict:</p> <p>“We find the middle or drygoods store, or the house late-y occupied by Mims, with the lot on which it is situated, subject to this fi. fa., with ten per cent damages; the other two lots levied on we find not subject to said fi. fap Whereupon, the claimant moved for a new trial on the following grounds:</p> <p>1st. Because the Court erred in refusing to allow Wheeler, the plaintiff’s witness, to answer the question, “ if, at the time he testified as having seen defendant in the house, Jared Tomlinson and Mims did not both say the goods were Tomlinson’s, or if Tomlinson did not give orders to the clerks, and they obeyed him.”</p> <p>2d. In refusing to dismiss the levy, on the ground that plaintiff had closed without removing the onus.</p> <p>3d. In charging the jury, that the judgment, although not signed until the 19th February, commenced and related back to the first day of the Term.</p> <p>4th. In charging the jury, that if they believed from the evidence, that the defendant wa.s in possession on the first day of the Term of the Court at which the judgment was had, although the judgment was not,signed until the 19th February; that its lien commenced from the first day of the Term, and the onus was cast upon the claimant of showing-title in himself.</p> <p>5th. Because the verdict was contrary to evidence.</p> <p>6th. Because the verdict was contrary to law.</p> <p>7th. Because the verdict is uncertain, in not fixing the amount on which the damages are to be assessed.</p> <p>8th. Because the verdict does not specify with sufficient legal distinctness, what portion of the property- in dispute is subject.</p> <p> Brief of evidence. </p> <p>Plaintiff introduced the fi. fa., and explained and accounted for the levy of personal property, and proved by Wheeler, that Mims had been in possession of the dry goods store house six or eight years, and up to the week before the February Term of the Superior Court; that on the first day of the Term, he went to the store house, as Sheriff, to levy on the goods in it, by virtue of a fi. fa. in his hands against Mims ; Mims was in the back room, and Tomlinson came in ; didn’t see Mims exercise any acts of ownership, or authority at that time, over the goods or clerks. The week before Court, he had seen the clerks making an inventory of the goods. The back room where he saw Mims was a place of common resort. Tomlinson paid up the fi. fa. Witness went then to levy, and took control of it; next day the store was not opened, anawas shut until witness broke it open on the 23d of February, 1852; did not know who had the key, and the control, after it was shut; Had seen Tomlinson open the door and go in; Mims left the country in two or three days after he went to levy the execution, and had not been back since to his knowledge; proved the value of the property, &c.</p> <p>The Court refused the motion for new trial, and claimant excepts.</p>

Garnishment, Fulton Superior Court, April Term, 1858 Judge Bull presiding. The affidavit upon which the summons in garnishment in this case issued, stated that “ defendant was indebted to plaintiffs upon a fi. fa. issued upon a judgment.” Counsel for defendant moved that the garnishment be discharged, on the ground that the affidavit was insufficient. The Corn-granted the motion, and plaintiffs excepted.

Affidavit of illegality; motion for a new trial, in Gilmer Superior Court. Decided by Judge Rice, May Term, 1858. On the 18th day of September, 1851, Jehu Thomas recovered a judgment in Gilmer Superior Court, against Newton M. Foster, for $193 13-|-;jl fa. was levied on the 1st day of June, 1857, on defendant’s property, when Foster filed his affidavit of illegality, alleging payment. The issue was made up and submitted to a special jury, at May Term, 1858.

<p>Rule nisi for a new trial, Fannin Superior Court, May Term, 1858. His Honor George D. Rice, presiding.</p> <p>The case is stated in the opinion of the Court.</p>

Caveat to will, in Gordon county; motion for new trial. Decided by Judge Trippe, April Term, 1858. Jehu Nobbet made a will, dated 14th February, 1858, and appointed Willie Roberts and George H. Hogan executors and guardians of the property and children therein named. Nobbet died, and Willie Roberts, executor, propounded the will for probate, and.

<p>J. I-L made Ike following will: “ X give to my son, F. H. Heard, in trust for Nancy Sill, two negroes, Bartley and Nat, with discretionary that if the said Sill relinquishes all claim against my estate for lot No. 30, 2d district, Pike county; which lot was given to him, not sold, and the said Nancy should have living children, but both of these things must occur before the said F. II. Heard is authorized to give up the negroes^ Bartley and Nat, to the said Henry Sill. But the said F. T-I. Heard has a discretionary to give the said Nancy Sill, what he thinks is right, for the use of the negroes, Bartley and Nat, and at such times as she needs it; or in case she becomes a widow, then give her up the negroes, Bartley and Nat. Should the negroes never be given up to her, at her death they are to be equally divided between all of my children.” It is admitted that Henry Sill has not relinquished his claim against the estate of the intestate upon the warranty in the deed to the Pike land, and that Nancy Sill has no children, and a bill is filedto require the defendant, as trustee, to account to Nancy Sill for the hire of the two negroes, it being alleged in the bill that she has need for the fund.</p> <p>Held, That there was equity in the bill; this not being a naked power, the non-execution of which will never be aided by the Courts, but a trust power, in favor of one whose claim is founded upon the meritorious consideration of blood, and that the performance of the trust must not be nominal or illusory, but substantial and beneficial; and further, that the necessity of the cestui que trust need not amount to absolute want or indigence.</p>

<p>A vendor’s lien upon land for the unpaid purchase money, will not be set aside in favor of a mortgage given by the vendee to secure an antecedent debt; nor will a purchaser, with notice at a judicial sale under the foreclosure of said mortgage, be protected against said lien; especially where he is ajoint debtor, with the mortgagor, upon the debt intended to be secured, and the price at which the property was bid off by him is applied to the payment of said debt.</p>

<p>Motion for a new trial. Fulton Superior Court, April Term, 1858, His Honor, Judge 0. A. Bull, presiding.</p> <p>This was an action, in the statutory form of complaint, by Mary Stokes, against Dr. Ezekiel N. Calhoun and John S. Williams, on a promissory note, given by Calhoun as principal, and Williams as his security, for the hire of a negro for the year 1855. The note was for ninety dollars. The defendant Calhoun, plead as an off-set, an account against plaintiff, amounting to eighty-three dollars, being for medical services, &c., rendered to said negro while sick in the months of November and December, 1855, and while in defendant’s service.</p> <p>The jury under the testimony and charge of the Court, found for the plaintiff the full amount of the note sued for. Defendant moved for a new trial, which the Court below refused, and defendant excepted, and assigned said refusal as error.</p>

<p>Motion, in Fulton Superior Court, April Term, 1858, Judge Bull, presiding.</p> <p>Upon the application of Robert M. Brown, Clerk of the Superior Court of DeKalb county, the Court granted the following rule nisi, directed to Logan E. Bleckley, Solicitor General of the Coweta Circuit, viz:</p> <p>Robert M. Brown, Clerk Superior Court, DeKalb county, vs. L. E. Bleckley, Solicitor General of Coweta Circuit. Rule Nisi, in Fulton Superior Court October Term, 1856.</p> <p>On motion of counsel for plaintiff, ordered by the Court that L. E. Bleckley, Solicitor General of the Coweta Circuit, show cause to-morrow morning, or so soon as counsel can be heard, why he should not pay to plaintiff or his attorney, all monies in his hands raised from fines and forfeitures in said county, in pursuance of an order of the Superior Court of DeKalb county, passed at October Term, 1853, and an Act of the General Assembly of this State, assented to February 16th, 1854, entitled “An Act to authorize the payment of certain accounts therein specified,” to be applied towards the payment of the costs duo said Brown, as Clerk of the Superior Court of DeKalb county, before the passage of said Act.</p> <p>Respondent answers, that he has in hand . ninety-five dollars, and will pay it out as the Court shall direct. There is more than that amount due him on an order for costs granted him by the Superior Court of Fulton county. There is also a considerable balance due to B. F. Bomar, former Clerk, on an order in his favor, October 17th, 1856.</p> <p> Answer of E. E. Bleckley. </p> <p>L. E. BLECKLEY, Sol. Gen’l.</p> <p>After argument, the Court refused to make the rule absolute, and counsel for Brown excepted.</p>

Complaint, from Troup Superior Court, tried before Judge Bull, May Term, 1858. This was an action by Hockley C. McKee, against George C. Heard, to recover one hundred and ninety dollars, the balance alleged to be due for a rockaway and harness, sold by plaintiff to defendant.

In Equity, in Cass Superior Court. Tried before Judge Trippe, March Term, 1858.

<p>Motion to dismiss appeal, in Upson Superior Court. Decided by Judge Cabaniss, May Term, 1858. *</p> <p>Allen M. Walker died, appointing Jesse L. Owen and Nathaniel F. Walker his executors. Jesse L. Owen qualified in 1849, and took charge of the estate and continued in possession thereof until 1855, when he died. The estate consisted principally of two large plantations and negroes, which were managed by the said executor for the benefit of the minor children. ■ Allen. F. Owen became the administrator of Jesse L. Owen.</p> <p>After the death of Jesse L. Owen, Nathaniel F. Walker qualified as executor under the will of Allen M. Walker, and assumed the control and management of said estate.</p> <p>Allen F. Owen, as the administrator of Jesse L. Owen, filed his petition to the Court of Ordinary of Upson county, asking the Court, among other things, to allow the said Jesse L. Owen extra compensation for services rendered in the management of the estate of Allen M. Walker.</p> <p>At the January Term, 1858, of said Court of Ordinary, the case was carried to the appeal by consent of Allen F. Owen as administrator of Jesse L. Owen and Nathaniel F. Walker as executor of Allen M. Walker.</p> <p>At the May Term, 1858, of Upson Superior Court, the cause came on to be heard, when counsel for Nathaniel F. Walker moved to dismiss the appeal on the ground that he was an improper party to the case; he having qualified as executor of Allen M. Walker since the death of Jesse L. Owen.</p> <p>The Court sustained the motion and dismissed the appeal, and counsel for Allen F. Owen, administrator, excepted.</p>

Indictment for larceny. Tried in Monroe Superior Court before Judge Cabaniss, February Term, 1858. Anderson Hudgins was indicted in Monroe Superior Court for stealing a negro man slave, the property of one John D. McCowen, who lived in said county of Monroe. It appeared, in evidence, that the negro man was last in the possession of McCowen on the 18th day of February, 1854, in Monroe county.

Motion to set aside verdict, and for new trial, in Fulton county. Tried before Judge Burl, April Term, 1858. Pending an action of ejectment, William Kile, tenant in possession of a certain lot in the city of Atlanta, filed, on the 9th July, 1857, a bill for relief, discovery and injunction, against Joseph Thompson, adm’r, et al. Said bill was sanctioned, enjoining said action of ejectment, and a copy served personally upon the defendant, Thompson, 2d September, 1857.

Complaint for land, in Catoosa Superior Court. Tried before Judge--, at-Term, 1858. The facts of this case are fully stated in the opinion of the Court.

<p>Rule against Deputy Sheriff, in Cass Superior Court. Decided by Judge Trippe, March Term, 1S58.</p> <p>William Lauham obtained judgment against E. W. Attaway, Thomas J. Dodd, and A. G. Caldwell. Fi .fa. was issued and placed in the hands of James Vaughan, Deputy Sheriff of Cass county.</p> <p>At the March Term of said Court, Lauham moved a rule nisi against Vaughan, calling on him to show cause why he should not pay over the money on said y?, fa. The Deputy Sheriff filed his answer, in substance, as follows.</p> <p>“ That he levied the fi.fa. on property of the defendants sufficient to satisfy the same, on the 19th day of January, 1858. That his term of office expired before the day of sale, and that he turned over the fi. fa. with the levy thereon to his successor in office, the present Sheriff,”</p> <p>It appeared that Dodd, whose property was levied on, filed an affidavit of illegality, on the ground that the Sheriff, Vaughan, had neglected to levy the fi.fa. on property of the principal in fi. fa., who afterwards removed from the county.</p> <p>The Court dismissed the rule, and counsel for plaintiff excepted,</p>

<p>Complaint, in Fannin Superior Court. Tried before Judge Rice, at--Term, 1858.</p> <p>The facts are stated in the opinion of the Court.</p>

In Equity, in Butts Superior Court. Tried before Judge Cabaniss, June Term, 1858.

<p>In Deceit, it is indispensable, that the scienter be both alleged and proved.</p>

In Equity. Petition for re-hearing, in Fannin Superior Court. Decision on demurrer, by Judge Rice, at May Term, 1858.

<p>V. heldin his possession, certain negroes, which lie had sold and conveyed to the children of B., but he so held them, for those children; after thus holding them for some time, he delivered them to B., saying, take them, and hold them, in trust for your children. B. took them, without objection to holding them for his children.</p> <p>Held, That B’s possession thus acquired, was not adverse to his children’s title, and. therefore, that the statute of limitations would not run in favor of it, against their title.</p>

An action of trover, tried before His Honor Judge Geo. D. Rice, in Union Superior Court, Spring Term, 1858. [All the facts necessary to a full understanding of this case, are embodied in the opinion of the Court.]

In equity, in Carroll Superior Court. Tried before Judge Hammond, at April Term, 1858. This bill was filed by Isham S. Brown, in right of his wife; Thomas S. Treadwell in right of his wife ; and John T. McIntosh, complainants, against Edwin B. Sockwell.

<p>Possessory warrant, in Polk Superior Court. Decision by Judge Hammond at April Term, 1858.</p> <p>The facts in this case are sufficiently stated in the following order, passed by the presiding Judge, and to which counsel for defendants excepted, viz:</p> <p>Georgia, Polk county. Superior Court, April Term, 1858.</p> <p>Upon argument by counsel on both sides.</p> <p>It appearing to the Court that oh the — day of August, 1857, Josiah R. Parrott, administrator of the estate of Jesse Dickerson, deceased, late of Cass county, sued out before Israel P. Davis, a Justice of the Peace in and for the county of Polk, a warrant for the possession of seven negroes, slaves, in said warrant named, to-wit; (here the slavps are described &c.) against Benjamin F. Smith and Mahala Sherill, of said county, under the provisions of an Act entitled an Act more effectually to quiet and protect the possession of personal property, passed in 1821. That upon the return of said warrant, said defendants, refusing to produce said negro slaves to he dealt with according to law, were ordered to he committed to the common jail of Polk, county by said Justice. That said defendants were delivered, together with said warrant and mittimus, by William Jones, a Constable in and for -- District G. M., Polk county. • That at the October Term of the Superior Court of Polk county, said Parrott applied for a writ of mandamus to be directed to Josiah C. York, Sheriff of said county, requiring him to show cause why he should not be attached for contempt of Court in not obeying the order of said Justice, and not committing said defendants to jail as directed in and by said order; that said Sheriff, for cause, showed that there was no sufficient jail in the county of Polk. Whereupon the Superior Court ordered him to deliver the defendants to the Sheriff of the county of Cass or his lawful deputy, to be imprisoned in the common jail of said county of Cass, without bail or mainprise, until they should produce said'negroes. That said Sheriff failed to obey this order, and on the 10th February, 1858, the Hon. D. F. Hammond, Judge of the Superior Court, granted an order, directed to said York, Sheriff as aforesaid, to re-arrest the defendants and deliver them to the Sheriff of Cass county, to be imprisoned in' the jail of said county of Cass until said negroes should be produced. Whereupon the said Sheriff re-arrested the defendants, and instead of delivering them to the Sheriff of Cass county, delivered them to the Jailor thereof, and said defendants applying to the Inferior Court of Cass county for a habeas corpus, were discharged by said Court from imprisonment, without said Parrott, who resided in Cass county, or his attorney, having any notice of said application, whereby the order of the Superior Court was set aside by the Inferior Court, contrary to law.</p> <p>It is, therefore, ordered that the Sheriff of the county of Polk re-arrest said Benjamin F. Smith and Mahala Sherill, and them immediately imprison in the common jail of the county of Polk without bail or mainprise, until they shall produce said negro slaves, in said possessory warrant named, before the said Israel P. Davis, Justice of the Peace aforesaid, to be dealt with according to law.</p> <p>D. F. HAMMOND, J. S. C. T. C.</p> <p>After the above order was passed, and on the same day, defendants moved to set aside the same, which the Court refused, and defendant’s counsel excepted.</p>

<p>A judgment of this Court was, simply; “that the judgment of the Court below, be reversed;” the case in which, it was rendered, was one in which, there was a decision excluding offered evidence, and was an order dismisssing the case.</p> <p>Held, That the word, judgment, used in the judgment of this Court, referred to the order, rather than, to the decision.</p>

Illegality, in Butts Superior Court. Decision by Judge Cabaniss, at June adjourned Term, 1857. Bancroft, Betts & Marshall foreclosed a mortgage which they held against Nathan F. Camp,and issued a6th December, 1856,under which the Sheriff levied upon one of the negroesmentioned in said mortgage.

<p>Quarles sued Tumlin, and D. House, and F. H. House, on a note made by Tumlin, and payable to D. House, and by him endorsed to F. H. House, and, by him, to Quarles — the note not containing words of negotiability.</p> <p>Held, That Quarles might amend his declaration, by striking out the two Houses, as defendants, and making D. House a plaintiff suing for his, Quarles’ use.</p>

<p>Proceedings to remove tenant, whose lease had expired, in Fulton Superior Court. Decision by Judge Bull, at April Term, 1858.</p> <p>This was a summary proceeding by Howell, the landlord, to remove Carter, the tenant, from premises rented by him, after the expiration of his lease, under the Act of 24th December, 1827.</p> <p>The tenant having made oath as prescribed by the 2d section of said Act, the proceedings were returned to the Superior Court of Fulton county, to try the fact at issue between the parties. The case was submitted to a petit jury, who found for the landlord, (Howell,) that the lease had expired. Carter immediately entered an appeal from the verdict, giving bond and security, as required by law in cases of appeal, Afterwards, at a subsequent day in the same Term, counsel for Howell moved to dismiss the appeal, and for a writ of possession to issue, requiring the Sheriff to put him in possession of the premises. This motion was made upon the ground that an appeal did not lie in such cases, from the verdict of the petit jury.</p> <p>The Court sustained the motion, and dismissed the appeal, and ordered the writ of possession to issue, and counsel for Carter excepted.</p>

<p>The parties to a controversy, agreed to submit it to the decision of the Judge, and to let him fix the fees of their counsel, with the right to the counsel, to except to his decision, and bring it before the Supreme Court. The counsel submitted their claims for fees, to the Judge, and he fixed the amount of their fees. To his decision, a portion of the parties to the submission filed a writ of error, but failed to make the counsel parties to the writ.</p> <p>Held, That the counsel were necessary parties to the writ; and for want of them, the writ was dismissed on motion.</p>

Covenant, in Fayette Superior Court. Tried before Judge Bull, at March Term, 1858. This was an action t© recsver damages for the breach of a covenant contained in a deed executed by Clements to Landrum’s testator, conveying lot of land No. 147, in the 7th District of Fayette county.

<p>Any liquidation, of the damages to be paid, tin* the mere non-payment of money must, ox necessity, he in violation of the law fixing the interest to be paid, for the use, or the detention, of money; that liquidation excepted, by which the sum to be paid would be not greater, than the sum which would be to be paid by this law.</p>

<p>The Clerk of the Superior Court alone of the county in which a deed is attested, and in which it must bb recorded, can by his official attestation, with one or more other witnesses, give it such authenticity as to admit it to record.</p>

<p>The case is stated in the opinion of the Court.</p>

Debt, from Troup Superior Court. Decision by Judge Bull, at May Term, 1858. John W. Robertson brought suit, in the Inferior Court of Troup county, against John B. Gordon, as principal, and Thomas J. Bacon and Alexander A. Roberts, as sureties, upon a note given for the hire of negroes. There was a verdict for plaintiff, and an appeal.

Trover, and motion for new trial. Tried before Judge Cabaniss, November, 1857. The facts are sufficiently stated in the opinion of the Court.

Certiorari, from Catoosa Superior Court. Decision by-Judge Trippe, at May Term, 185S. Jack Harris, the plaintiff in error, brought suit in a Justice's Court against J. B. Nichols, on a thirty dollar note.

In Equity, in Upson Superior Court. Tried before Judge Cabaniss, May Term, 1858.

Slander, from Butts Superior Court. Decision by J udge Cabaniss, at July adjourned Term, 1858. This was an action for slander, brought by Joseph C. Little, against Elbridge Barlow. The declaration contained two counts. In the first, the words charged to have been spoken were, that “Joseph C. Little was a damn little thieving puppy,” with an inuendo, that defendant thereby meant that plaintiff was guilty of the crime of theft or larceny, and was a thief.

Certiorari, in Gordon Superior Court. Decision by Judge Trippe, at April Term, 1858. Emily Higdon, administratrix of the estate of Robert Higdon, deceased, brought suit in a Justice’s Court, on six promissory notes, each for thirty dollars, against Hilary Higdon, and others. These notes were given .by Hilary for property bought at the sale of intestate’s estate, and the other defendants were his sureties.

Complaint and Bail. In whitfield Superior Court. Decision by Judge Trippe, at April Term, 1858. E. B. Stoddard’ & Co. sued out bail process against William S. Townsend, returnable to April Term, 1S58, of Whitfield Superior Court. At the term to which the writ was returnable, counsel for Stoddard & Co. moved that the Sheriff and his securities “be deemed and stand as special bail,” he having failed to take bonds for defendant’s appearance as required by law in such cases.

Decided by Judge Trippe at March Term, 1858. This was a motion, on the part of Bullock, for'a new trial, on the ground that one of the jury who tried the case was of kin to defendant’s intestate, which was not known to or recollected, by counsel when they struck the jury, their client being absent, and which was supported by the affidavits of counsel.

Assumpsit, and motion for new trial, in Fulton Superior Court. Decision by Judge Bull, April Term, 1858. The facts of this case are fully stated in the opinion of this Court, pronounced by Judge Benning.

<p>Summary proceedings, under the statute to recover possession of land, in Whitfield Superior Court. Decision by Judge Trippe, at May Term, 1858.</p>

<p>In Equity, in Catoosa Superior Court, Spring Term, 1858. Judge Tbippe presiding.</p>

<p>The verdict of the jury must be decidedly against the weight of evidence to warrant the Court to grant a now trial on the ground that the verdict is contrary to evidence.,</p>

Case, in Floyd Superior Court. Tried before Judge Hammond, at April Term, 1858. The facts of this case are sufficiently stated in the opinion below, pronounced by this Court.

Trover, in Newton Superior Court. Tried before Judge Cabaniss, March. Term, 1858. This was an action of trover brought originally by John P. Booth and his wife Martha Booth, against Richmond Terrell, for the recovery of a negro woman slave Letty, and her children, named in the declaration. Pending the action, John P. Booth died, and the same proceeded in the name of his wife, until her marriage again with John McKinny, who was made a co-plaintiff.

<p>[1.] The arbitrators in a ease, were to have the powers and authority of arbitrators under the arbitration Act of 1SS6. Held, That they had power to examine a party to the arbitration, as a witness for himself,</p> <p>[2.] Equity readily receives tho “excuses of the mortgagor, not only for the purpose of giving him time to procure the money previously to the foreclosure, but also for the purpose of opening the foreclosure.”</p>

Assumpsit, in Newton county. Tried before Judge Cabaniss, at the March Term, 1858. This was an action of assumpsit, brought by N. G. Foster trustee of John W. Graves, against John E. Parke, to recover the amount of defendant’s purchases at the sale of the property of Graves, made by plaintiff as trustee aforesaid. The defendant pleaded the general issue and the statute of limitations.

Assumpsit, in Pike county. Tried before Judge E. G. Cabaniss, October Term, 1857. The facts.in this case are fully set out in the opinion of the Court.

Rule against the Sheriff. In Thomas Superior Court, at June Term, 1858. Thomas J. Bottpms obtained a judgment against Redding J. Mithvin, in Thomas Superior Court.

<p>[1.] A defendant, who has allowed a judgment to go against him in a Court of Law, even' under a misapprehension of his right to defend in that Court, cannot obtain relief against the judgment by injunction, if he has a remedy in a Court of Law, by a cross action, unless, he shows that the plaintiff In the judgment is insolvent, or is out of the jurisdiction of the Court, so as to show that his rpmedy is inadequate.</p> <p>[2.] The statute of limitations does not bar the suit of a negro for his freedom.</p> <p>[3.] A negro brought into this State, in a state o^ temporary slavery, commits no offence under the Act of the General Assembly, which makes it unlawful for free persons of color to come from other States to this.</p>

Misdemeanor, in Morgan Superior Court. Tried before Judge Hardeman, at-Term, 1858. The facts of the case, and the grounds of exceptions to the rulings and decisions of the Court below, are sufficiently set forth in the opinion of Judge McDonald, who pronounced the judgment of this Court, and in Judge Lumpkin’s concurring opinion.

Attachment, in Thomas Superior Court. Decision by Judge Allen, June Term, 1858. This was an attachment sued out by Harrill, against Humphries on a note not due at the time the attachment issued, and which defendant moved to dismiss on the ground, that the affidavit made by plaintiff did not set out or state the fact that the debt was not due. The Court sustained the motion.

Complaint for land, in Lowndes Superior Court. Tried before Judge Love, at June Term, 1858. This was an action brought by Thomas Coleman, executor of the last will and testament of Isham Coleman, deceased, against Benjamin Lane, for the recovery of lot of land No. 112, in the 15th district of Lowndes county.

<p>6th and 9th items of the will of James Bonner, deceased: “I give and bequeath to my daughter, Nancy C. Andrews, and the legitimate heirs of her body, the following property, to-wit: A woman named Polly, and her three children, viz., Mary, Susan and Ellen; also Big Mary, having given her a mare, saddle and bridle, bed, &c., heretofore.”</p> <p>“ I appoint Oliver P. H. Bonner and Richard W. Bonner, my sons, executors on my said estate, to carry into effect this my last will and testament at my demise. I also appoint them my trustees, to carry into effect that part of this 1 my last will and testament in regard to the negroes given to my daughter Nancy G. Bonner, formerly, now Nancy C. Andrews.” *</p> <p>Held, That by the terms of said will, no separate estate was created in Mrs. Andrews, the daughter of the testator.</p>

Assumpsit, and motion for new trial, in Jasper Superior Court. Tried before Judge Hardeman, April Term, 1858. This was an action for breach of warranty of the soundness of a negro woman, Lucy, sold by Broddus to Durham. The bill of salé bears date 3d January, 1852, and contains the usual warranty of soundness of mind and body.

Assumpsit, in Jasper Superior Court. Tried before Judge Hardeman, at April Term, 185S. This was an action brought by William H. Preston, against Joel C. McDowell, principal, and Daniel McDowell, surety, on two promissory notes.

In Equity, in Laurens Superior Court. Tried before Judge Love, October Term, 1858. This was a bill originally filed by Ann Jane Hampton, against Francis Thomas, administrator of Robert T. Coates, deceased. Subsequent to the filing of the bill, complainant intermarried with Robert Lunday, who was made a co-plaintiff.

<p>Certiorari, in Clark Superior Court. Decision by Judge Hutchins, August Term, 1858.</p> <p>This case was brought up to this Court, upon the following agreed statement of facts, viz:</p> <p>Everett Yerby, administrator with the will annexed, of James Rhodes, deceased, gave due and legal notice to the creditors of deceased, to present their demands agreeably to law. J. R. & L. C. Matthews held a note against deceased, of which they failed and neglected to give the administrator notice, within the twelve months as required by law, and did not present the same for payment until after he had paid, out to the legatees all the estate in his hands, except the share of one legatee residing in the State of Alabama; there were eight legatees.</p> <p>The Justice’s Court, in which suit was brought on the note, gave judgment for the defendant, and the case being brought by exception and certiorari to the Superior Court, Judge Hutchins, presiding, sustained the certiorari, and set aside the judgment of the Justice, holding that the administrator having assets, plaintiffs were entitled to a judgment, not only for one-eighth of their claim, but for the whole.</p> <p>To which decision defendant excepted, and assigns the same as error.</p>

<p>An agreement made before Christmas in 1854, to perform services as overseer for the year 1S55, not being in writing and no memorandum thereof in writing signed by the party sought to be charged, is void under the statute of ' frauds, not being an agreement to be performed within the space of a year from the time of the making thereof.</p>

Complaint, in Wilkes Superior Court. Decision by Judge Thomas, at September Term, 1858. This was an action of complaint on open account, brought by Thomas Wynn against Efford Booker, Simpson Booker and Leroy Booker, executors of Richardson Booker, deceased. The account created by the testator. The declaration and process were served on Efford Booker and Simpson, and an entry of not to be found, was made as to Leroy Booker.

Assumpsit, in Oglethorpe Superior Court. Tried before Judge Thomas, at April Term, 1858. This was an action brought by Samuel Glenn, (bearer,) against Alvin M. Robertson, on a promissory note of which the following is a copy, to-wit $852 52-100. Augusta, August 12th, 1853. One day after date, I promise to pay to E. D. Robertson, or bearer, eight hundred and -fifty-two 52-100 dollars, far value received. (Signed,) ALVIN M. ROBERTSON.

<p>Assumpsit, in Hancock Superior Court. Tried before Judge James Thomas,-Term, 1858.</p> <p>This was an action of assumpsit brought by James B. Knox against Isaac S. Whitten, upon the following written contract, viz:</p> <p>A contract between 1. S. Whitten and James B. Knox, witnesseth that said Knox agrees to putin a new pier-head and gate at the upper end of Whitten’s mill race, where there is now one, to raise the mill-dam ten inches higher than the old dam, so as to raise and to hold the water that much higher than the present one. The framing to be all of oak, the plank of pine. Whitten to furnish the plank and nails, and to haul suitable oak stocks to the mill and allow Knox to saw his scantling and frame works in his saw mill at a time when it will not interfere with the grinding. Knox is to do the work as early this spring or summer, after the weather gets warm, as Whitten may direct. To make a substantial, durable job of the pier-head, dam, and the spiling around the abutments, and warrant the whole not to leak or give way in any way from the force of freshets, &e., and not to stop Whitten’s grist mill more than one week. Whitten to board the hands while they are at work on it, and to pay Knox one. hundred and twenty-five dollars at the end of the year, if well done. The contract to be understood as to make allowance for providential and unavoidable accidents in detention.</p> <p>March 16th, 1855.</p> <p>[Signed] JAMES B. KNOX,</p> <p>1. S. WHITTEN.</p> <p> Evidence for Plaintiff. </p> <p>George I. Read, (for plaintiff,) testified that he resided in Greene county, and is a mill-wright by trade; thinks the contract between plaintiff and defendant was made in April, 1855, and that said contract was, that defendant was to pay plaintiff one hundred and twenty-five dollars (he thinks) for raising his mill dam ten inches higher, and for spiling the butments, and making a new pier-head; and plaintiff was to warrant his work to stand, and not to leak; but did not warrant the old dam. Witness did not see the work until the dam was washed away; the pier-head was standing alone, and was done in a workmanlike manner. The raising the dam and spiling was worth about seventy-five dollars ; the work on the butments and the building of the pier-head was worth fifty dollars. The part plaintiff built alone was warranted.</p> <p>John Drake, sworn for plaintiff. Never saw the work while in progress; was at the dam after it had broke. In August of that year there was the largest freshet that had been in the creek for near forty years; could not state positively whether it was the largest freshet which carried away the dam or not; there remained, after the freshet, the pier-head; the butments and one third of the dam were gone; the way sheeting is put on a dam would not make the rock work of the dam give way. Plaintiff closed.</p> <p> For Defendant. </p> <p>Defendant offered deposition of James Whitten: .About 6th January, (1857,) was at the house of defendant in Hancock county, when plaintiff came there, as he stated, to have a settlement with defendant for work done on defendant’s dam; they had a conversation about the matter, in which conversation defendant stated to plaintiff, that he, plaintiff, had warranted the work to answer defendant’s purpose, and that it had failed to do so ; which was admitted by plaintiff. In the conversation allusion was made to some previous conversation had between them while the work was in progress, in which it was stated by defendant and admitted by plaintiff, that defendant had complained to plaintiff, that the way plaintiff was doing the work, if would not stand, and requested plaintiff to change the manner of doing the work. The plaintiff refused to do the work in the manner the defendant requested hitn, and seeing that plaintiff refused to do the work as defendant requested, the defendant proposed that if plaintiff would stop the work, he would pay all the expenses up to that time, which witness understood to mean the wages of the workmen employed by plaintiff in doing the work. It was admitted by both parties that soon after the work was done (which work I understood to be mostly the top work done on an old dam, a freshet came and took away both the old dam and the new work of the dam. By which the defendant said he had been damaged five hundred dollars. In this conversation both parties agreed that ata previous time they had agreed to refer the whole matter to the arbitrament of a Mr. Reed, who had died without making a settlement between them, Elrya Whitten and some members of the family (defendant’s) were present a part of the time during the conversation ; on plaintiff’s leaving defendant’s house, he said he should sue defendant.</p> <p>Defendant then offered James Cobb, who testified that he was the overseer of defendant when the work was done; during the progress of the work, he heard defendant complain of the work; he complained of the sheeting. Witness told plaintiff what defendant said, and said (to plaintiff). If I were in your place I would do the work as defendant wished it done. ' Plaintiff replied to witness, that he would do the woik as defendant wished. Plaintiff did not change the mode or plan of the work, but finished it as he had commenced ; the length or width of the sheeting on the old dam was about fourteen feet; the rafters or girders which were put on the old sheeting for the purpose of raising the dam higher, were about half way down. The dam was raised, but witness couldn’t say whether or not it was raised ten inches; never heard defendant express any dissatisfaction to plaintiff about the work while it was in progress; witness was frequently aboutthe dam while it was in progress, helping; dam was broken in August, 1855, but does not know whether or not that was the biggest freshet of that year. Witness and defendant’s negroes were working on the end of the dam at the time it broke, and one of the negroes called attention of witness to the dam; he turned around and saw the rock part and wooden part of the dam tumbling both over at once.</p> <p>James Parks, for defendant, said that in the early part of 1857, perhaps January, he came to Dr. Whitten’s to live; since that time he has frequently seen the pier-head and hutments of the dam, portions of the plank used in the construction were rotten; there were cracks or openings between the planks, which caused them to leak very badly; that at one place in the pier-head or between the pier-head and hutments, such an opening or rent had been gained by the water as to create a waste of water; had been sent there by Dr. Whitten to examine and stop it, which he did; this was in the summer of 1857; witness is no workman; was staying at Dr. Whitten’s going to school.</p> <p>The jury found for the plaintiff. Defendant moved for a new trial, which the Court refused, whereupon defendant excepted.</p>

<p>Whether a covenant of warranty is to be so construed relatively to the quantity of land conveyed, as to be deemed an assurance to the purchaser of the existence of that quantity, will, in many cases, depend upon the manner in which the particular deed is expressed.</p> <p>Unless where the enumeration of the quantity is of the essence of the contract, and not matter of description merely, the covenant of warranty will not be broken by a deficiency in the quantity of land conveyed.</p>

Complaint, in Habersham Superior Court.. Tried before Judge Hutchins, at October Term, 1858. This was an action by Wiley, Banks & Co., merchants of Charleston, South Carolina, against Allen & Stanford, late merchants doing business in Lawrenceville, Ga., on their promissory notes — one for $1,443 11, one for $979 28, .and one $429 17. The plaintiffs offered in evidence the notes sued on, and closed.

Certiorari, in Hall Superior Court. Decided by Judge Hutchins, at September Term, 1858. Brown & Sanford sued out an attachment against McCluskey, returnable to the Inferior Court of Hall county, at January Term, 1858.

<p>A defendant pleading former acquittal, must show a record of acquittal. If on an indictment for murder, the defendant excepts to the judgment of the Court, and obtains a new trial, on a verdict of guilty of manslaughter, the whole record of acquittal is set aside, and there is nothing to support the Inference of acquittal of murder.</p>

<p>[1.] Tlie certificate of a clerk to a copy deed offered in evidence, was in this form: The within and foregoing writing is a true copy of a deed made by B. to T. on record in my office in book R. R., page 75.</p> <p>Held, That the certificate was sufficient to render the copy admissible.</p> <p>[2.] There were interlineations in the certificate, but they were in the same ink and handwriting as the interlined writing.</p> <p>Held, That this did not so vitiate the certificate as to make it inadmissible.</p> <p>[3.] Although one holds another’s land adversely for seven years, under color op title and claim of right, yet if he then abandons the land he cannot claim the benefit of the statute of limitations.</p> <p>[4.] A grant was issued to L. B. in 1788. Subsequently, nothing was heard of him, or of any heir of his, or of any will made by him.</p> <p>Held, That by 1854, it was to be presumed, that he was dead, and, that the land had escheated to the State, on due inquest; and further held, that if this inquest was one happening before the escheat Act of 1801, the land was subject, at any time after the inquest, to be regranted by the State, under the Head Rights laws; if one happening after that Act, the land was not so subject, that Act requiring the escheator, to sell and convey the land himself.</p>

Indictment for high misdemeanor, found and tried befpre Judge Thomas, in Taliaferro Superior Court at August Term, 1858. The indictment in this case charged Richard L. Cookwith “concealing, harboring, hiding and employing in his own, service” the slave of another, to the injury of the owner.

Slander, in Warren Superior Court. Tried before Judge Thomas, October Term, IS58. This was an action on the case, for words spoken, brought by Samuel S. Kelly and wife, against Ezra Castleberry and wife.

<p>Indictment for assault with intent to murder, &c. Tried before Judge Holt, in Richmond Superior Court, at November Term, 1858.</p> <p>There were two counts in this indictment; one for an assault with intent to murder, the other for shooting at another.</p> <p>Prisoner’s counsel, at the opening of the case, objected to the joinder of these two counts in the same indictment, and moved that the State be required to elect upon which count it would proceed. The Court overruled the motion, and prisoner excepted.</p> <p>After the testimony was closed, and argument by counsel, prisoner’s counsel requested the Court to charge, “ that there must be proof that the pistol was loaded with balls, as charged in the second count; otherwise, the prisoner could not be convicted under that count.” The Court refused to charge as requested, and counsel for defendant excepted.</p> <p>The Court, in commenting upon the evidence, said to the jury, that “ he, the defendant, was there armed with a murderous weapon, with a riotous intent.” To which remark defendant’s counsel excepted.</p> <p>The counsel for defendant further requested the Court to charge, “ that if they (the jury) find that the defendant had left the yard of the prosecutor, then the prosecutor was not justified in following him, defendant, out into the street, and making an assault upon him.” This request the Court refused to give in charge, and defendant excepted.</p> <p>Judge Holt, in certifying the bill of exceptions, states, in relation to the exception to his remarks and comments on the evidence, that he did not comment on the evidence, but simply referred to it — hearing that defendant came to the house armed with a loaded pistol, and when there, behaved in a very riotous and disorderly manner; that the jury were referred to this evidence, in considering the question of malice, which they were instructed was an essential ingredient of the crime charged in the first count in the indictment.</p>

Certiorari, in Richmond Superior Court. Decision by Judge Holt, at November Term, 1858. Held: that no error had been committed by the City Court, and dismissed the certiorari ; and to this decision defendant excepts.

Trover, in Chatham Superior Court. Decisisn by Judge Fleming, at January Term, 1858.

In equity, motion to dismiss appeal, in Burke Superior Court. Decision by Judge Holt, at April Term, 1858. This was a cause in equity, in forma pauperis, pending upon the appeal.

Misdemeanor, in Richmond Superior Court. Tried before Judge Holt, at November Term, 1858. Charles J. Carpenter was indicted for receiving from a slave, without the written permission of the owner of said slave, eight hides, of the aggregate value of thirty-four dollars, the property of Daniel Kirkpatrick, sen’r. The defendant pleaded not guilty. Brief of Evidence — For the State.

Caveat to will, in Jefferson Superior Court. Tried before Judge Holt, at December Term,. 1857. This was an appeal from the judgment of the Court of Ordinary, admitting to probate the will of Andrew Girtman, deceased. ' The principal question before this Court was, whether the will was executed according to law. The deceased being advanced in years, and of feeble health, sent for James S. Spier to write his will, and for Spencer G. Spivey and Zacheus L. Brown to witness it.

Simple larceny, in Richmond Superior Court. Tried before Judge Holt, at November Term, 1858. James Newman, Senior, and Wade Newman, were indicted for hog stealing. The defendants severed, and James Newman, Senior, was put upon his trial. At the conclusion of the testimony, the case was argued before the jury, who brought in a verdict of guilty with a recommendation to mercy.

Complaint for land, in Emanuel Superior Court. Tried before Judge Holt, at September Term, 1858. This was complaint for the recovery of a tract of land in Emanuel county.

<p>In Equity, in Burke Superior Court. Tried before Judge Holt, at October Term, 1858.</p> <p>The bill in this case was filed by Thomas A. Parsons and his wife Malvina, and their two infant sons, Thomas Henry and James William Parsons, by their father, as next friend, against James V. Jones and Henry W. Jones, trustees of said Malvina and her children, the said infant complainants.</p> <p>The object of the bill was to remove defendants from their trusteeship, created by the last will and testament of Henry P. Jones, deceased, and to have some other person appointed in their place.</p> <p>The bill alleges, that, by the said will, and life estate, worth about eighty thousand dollars, was devised and bequeathed to said Malvina for her sole and separate use during her natural life, remainder in fee to her children, the said Thomas Plenry and James William, and that defendants were, by said will, appointed trustees to hold said property for the benefit of cestui que trusts, which trusts they accepted and received from the executors of said will all the property and estate thus bequeathed.</p> <p>The bill further states that during the lifetime of said testator, the most friendly relations existed between complainants and defendants, and which relations were well known to testator, and operated as a strong reason with him. in selecting and appointing defendant’s trustees of complainants. That soon after testator’s death; defendants, without any good reason, commenced a series of aggressions upon the feelings of complainants, which has resulted in a cessation of all friendly intercourse between the parties, and this alienation was brought about by defendants, for the purpose of preventing complainants from understanding the condition of said trust estate in their hands, and from detecting the waste, mismanagement and destruction thereof, which the bill charges defendants contemplate committing, unless'prevented by the interposition of a Court of Equity.</p> <p>The bill further charges defendants with mismanaging the negroes belonging to said estate, making them idle, impudent and disobedient. That one of the trustees, James V. Jones, has removed from the county of Burke to the county of Fulton, and is inaccessible to complainants, and too far removed to supervise and protect said estate; and that said estate cannot be successfully managed while the present state of ill-feeling exists between the trustees and cestui que trusts. That the trustees have used no efforts to increase the property or funds under their control; that they have permitted money belonging to said estate to lie idle and useless in their hands, without putting the same out upon interest. That they refuse and neglect to cultivate the land or to repair the fences on the plantation.</p> <p>The bill further charges that defendants own no property in fee simple, are irresponsible, and unfit to manage and protect the estate committed to them by the willof testator. The bill prays that defendants be removed, and that some fit and suitable person be appointed in their place.</p> <p>The answer of defendants admitted the facts stated in the billas to the death of Henry P. Jones and the provisions of his will creating a trust estate for his daughter and grandchildren, and their appointment as trustees. But they deny that there has been any waste or mismanagement of said estate, on their part, or that they have, ever contemplated or threatened to commit such waste. They deny that they have failed to cultivate the land, or have mismanaged the negroes; but allege that Thomas A. Parsons and wife are in possession of all said land and negroes, and the same are under their control and management, and that they are in receipt of all the rents and profits derived therefrom. They deny that they have failed to invest or loan out funds or money in their hands belonging to said estate. They admit that the relations between them and said Thomas A. Parsons are not of a friendly character, but they deny that such unfriendly relations have been brought about by them for any such purpose as the bill charges, and that they have done nothing to cause or give rise to any estrangement or alienation of good feeling. That towards Mrs. Parsons, their sister, they entertain feelings of sincere affection and devotion, and that they desire to manage and protect said trust estate solely for her and her husband’s benefit and advantage, and that of their children, as required by the will of their father, and as he expected them to do.</p> <p>All the property belonging to said trust estate is in the pos- ' session of complainants except one very old negro woman Lucy, who is very aged and infirm, and who, on account of her age and her relations, the defendant, Henry W. Jones, has kept on his place, and has not sent or placed her in possession of complainants.</p> <p>That defendant, James V. Jones, resided in the county of Fulton at the time of testator’s death, but since then he has removed back to Burke county.</p> <p>After the testimony on both sides was closed, complainants requested the Court to charge the jury as follows:</p> <p>If the jury find, from the evidence, the existence of such hostility between complainants and defendants as might, under circumstances liable to occur, embarrass the management of the trust property, it will be a cause sufficient to justify the removal of defendants from their trusteeship.</p> <p>“ If the jury find from the evidence that the defendants have done any act in violation of the interests or rights of the cestui que trust, whether it be retaining a servant they should have delivered, or any other act, that such a violation of the trust is a ground for removalwhich the Court refused to give; but did instruct the jury:</p> <p>1st. That there was no incompatibility whatever between the offices of executor or trustee, held by defendants, under said will.</p> <p>2d. That a jury should believe, before they removed a trustee, that the property was in danger of suffering a serious and irreparable injury by the continuance of said trustee in office. Trusts being peculiarly subject to the jurisdiction of Courts of Equity, such Courts will always exert their power for their protection, and will control the action of trustees as far as the interests of cestui que trusts demand; and if necessary, even remove them from their office. But the power of removal, especially from trustships created by will, is never exerted but in extreme cases, and to preserve the property itself from loss or destruction, or to secure its full and free enjoyment by those entitled to the use. The object of the bill before us is to remove the defendants from a trust created by the will of Henry P. Jones, and reposed in them. In looking into that will, it is seen that the complainant, Melvina, is not the only person having a beneficial interest in the trust from which the defendants are sought to be removed; she is but a life tenant, and the interests of those in remainder are to be regarded equally with hers. The disposition made by the testator of this portion of his estate is legal, and his will, in the settlement of it, should not be disturbed but for the most weighty reasons. The Court does not say that these trustees may not be removed at the suit of the life tenant alone; but it does say that before this can be done, there must be satisfactory proof of such conduct on the part of the defendants, as that the property itself is, therefrom, in danger of destruction or loss, or its full and free enjoyment by the life tenant withheld or hindered. Two causes for removal have been insisted upon.</p> <p>First, the hostile feelings existing between the complainants and defendants. The Court instructs the jury that no misunderstanding between the parties, even though it amount to hostility, unless it lead the defendants to hostile acts, is sufficient cause for removal. Whether such acts have been proven, it is for the jury to determine. The second cause is the conduct of the defendants in regard to the slave, Lucy. As to this, the Court instructs the jury, that though this conduct should be found to be an interference with the rights of the complainants, yet it is not a sufficient cause for the extreme measure of removal. If the defendants have injured the complainant in regard to Lucy, this Court would, upon proper suit brought, give redress. But the complainants insist that the offices of executors of Henry P. Jones’ ■will, and of trustees for complainant, Melvina, under that will, are incompatible. Such is not the opinion of the Court. In each character the defendants are answerable to the complainant, Melvina, who for this purpose may sue by her next friend, answerable as trustees in respect to the trust estate, as executors, together with their co-executors, in respect to the estate of Henry P. Jones. Under our peculiar system of equity jurisprudence, juries are the triers of of equity causes; and this case is submitted to your decision under the proofs you have heard, and th e instructions upon matters of law now given you by the Court.</p> <p>The above is, in substance and effect, the charge of the Court.</p>

<p>[1.] An affidavit to a plea of non est factwm that it is true to the best of defendant’s “remetnirance,” is insufficient to support it.</p> <p>[2.] Witnesses are called to prove the execution, of notes, who are illiterate, and who testify to the time and amount, and that authority was given by the defendant to persons to sign his name, held to be sufficient to admit the notes in evidence to the jury.</p>

In equity, in Richmond Superior Court. Decision by Judge Holt, at November Term, 1858. This was a bill filed by the Georgia Railroad and Banking company, to enjoin and restrain the City Council of Augusta from enforcing and collecting certain tax executions, issued against complainant.

Mandamus, in Chatham Superior Court. Decision by Judge Fleming, at December Term, 1858. Robert W. Habersham and Mary Telfair, trustees of William B. Hodgson and wife, and the said Mary Telfair in her own right, and others, applied to the Superior Court of Chat-ham county for a mandamus, to compel the Savannah and Ogechee Canal Company, to construct a bridge over said canal, at its intersection with the Sabine fields road.

<p>In Equity, in Chatham Superior Court. Decision by Judge Fleming, at December Term, 1858.</p> <p>This was a bill filed by “ The Savannah Fire Company,” ' assuming to be a body corporate, against Alvin N. Miller, Gilbert Butler, and others.</p> <p>The bill alleges that complainant was incorporated by an Act of the General Assembly of the State of Georgia, passed in December, 1834, and authorized to hold real and personal estate; and that the interest or income arising therefrom, should be applied to relieve the distresses of the members, &c That on the 4th November, 1853, the said Savannah Fire Company was composed of Alvin N. Miller, and his co-defendants named in the bill. That at that time, said company owned a fund of about seven thousand dollars. That about said day, Miller and his co-defendants tendered their resignation, as members of said company, to the City Council of Savannah, which was accepted.</p> <p>That after this resignation was accepted, certain persons named in the bill, were appointed members of said company, and were duly organized.</p> <p>That said Miller and his associates, the defendants, notwithstanding their resignation, have retained possession of the said funds of said Savannah Fire Company, which they had in their hands at the time of their resignation, and which the bill alleges, belong to complainant, said Fire Company;. and that it has no means of ascertaining the amount of said sum, or in what manner it has been disposed of by defendants That complainant has applied to defendants to come to a settlement, and to account for said funds, and to pay over the same, which defendants refuse to do. The bill prays for an account, &c.</p> <p>To this bill defendants filed their plea in bar, denying that complainant is a body corporate. They state that defendants, about 4th November, 1853, were the duly appointed successors of the corporation styled the Savannah Fire Company, and that thus constituting said corporation, they have not appointed any successors or corporators; and that said corporation could transmit and continue its franchise only by its own voluntary action, and appointment of successors and corporators. That said corporation was dissolved by the voluntary act and assent of all its members, (without having made any election or appointment of their successors,) by the resignation of their offices, and by a surrender to the State of all its franchises; and that there is not any corporation existing under the charter aforesaid. That the persons who now style themselves the Savannah Fire Company, are not the successors of the corporation, but an unincorporated as-, sociation under that name, created by the City Council of Savannah, and were formed since the dissolution of said corporation, for certain municipal purposes, and have no rights, powers or franchises, tinier and by virtue of the Act of December, 1S34.</p> <p>The cause was heard by Judge Fleming, who, after argument, overruled the plea, and ordered defendants to answer. To which decision and judgment defendants except.</p>

<p>Trover, in Chatham Superior Court. Tried before Judge Fleming, at May Term, 1858.</p> <p>This was an action of trover brought by David F. Dickinson against Lizar Solomons for the recovery of three negro slaves, Milo, Harriet and Alfred.</p> <p>The negroes in controversy formerly belonged to Joseph Bush, who died in 1853. The plaintiff, Dickinson, claimed as purchaser from Bush in his lifetime. The defendant claimed in right of his wife, who was one of the heirs at law of Bush.</p> <p>In the progress of the trial the plaintiff offered a certified copy of an execution in favor of Albert W. Smith against said Bush, and assigned by Smith to the plaintiff, with the endorsements and entries thereon. The fi. fa. was for $964 07 principal, and interest from 30th December, 1839, and $12 50 costs. Upon this fi. fa. was an endorsement by Dickinson that he had bought and received from said Bush the slaves, Lucy and her babe Peter, Harriet, and her boy Alfred, Milo, Stephen, Zina and Ben; and in consideration thereof he, Dickinson, had obligated himself to extinguish and satisfy said (within) fi. fa., and to pay the further sum of $600.</p> <p>There was a further entry of satisfaction in full of the principal, interest and cost of thef.fas., signed by Dickinson and dated 23d December, 1845.</p> <p>Thisy?./a., with the entries and endorsements thereon, was admitted by the Court to prove satisfaction thereof, but not to prove that the plaintiff had bought and paid for the negroes in dispute, and this decision constitutes the plaintiff’s first ground for a new trial.</p> <p>The plaintiff, in rebuttal, offered in evidence a promissory note made by Bush to plaintiff, as follows:</p> <p>“ On the first of January, 1844, I promise to pay D. F. Dickinson, or bearer, sixty dollars for the hire of his negro woman and child for one year and four months’ hire.</p> <p>19th October, 1842.</p> <p>[Signed] JOSEPH BUSH.”</p> <p>The Court refused to admit this note in evidence, and plaintiff excepted.</p> <p>The jury found for the defendant, whereupon plaintiff moved for a new trial on the following grounds :</p> <p>1st. Because the Court erred in refusing to admit in evidence the fi.fa. of Albert W. Smith vs. Joseph Bush, with the endorsements thereon, a copy of which is hereto attached, which was offered by the plaintiff to prove that he had paid for the negroes in dispute by entering satisfaction on the same; the Court having admitted said fi.fa. and indorsements to show the satisfaction only, but not to prove payment for said negroes.</p> <p>2d. Because the Court erred in refusing to admit, as testimony in rebuttal for the plaintiff, the original note, of which the following is a copy, to-wit:</p> <p>“ On the first of January, 1844,1 promise to pay D. F. Dickinson, or bearer, sixty dollars for hire of his negro woman Harriet and child, for one year and four months’ hire.</p> <p>19th October, 1842.</p> <p>[Signed] JOSEPH BUSH.”</p> <p>It having appeared from the testimony for the defence that the defendant claimed as the representative of the heirs-at-law of Joseph Bush; and it having further appeared that the said Harriet and her child Alfred were two of the negroes in dispute, and the signature of said note having been proved to be the handwriting of the said Joseph Bush.</p> <p>3d. Because the said verdict was decidedly and strongly against the weight of evidence.</p> <p>4th. On the ground of newly discovered testimonyin this, to-wit:</p> <p>That since the trial of said cause, the plaintiff has discovered that he can, by the testimony of John D. Walker and George Mixon, impeach the credit'of David Ward, of Burke county, a material witness for the said defendant, whose testimony was taken by commission, and read on said trial; all of which will more fully appear by reference to the affidavits of the said plaintiff and of the said John D. Walker and George Mixon; neither the said plaintiff nor his counsel having been aware what the testimonyof the said David Ward would be, until the said commission was opened just previously to the said trial, and during the term of the Court when the same took place.</p> <p>That since the trial of the said cause, the said plaintiff has discovered that he can prove by one Thomas Ogg, of Texas, formerly of this State, that he, the said Thomas Ogg, was cognizant of the sale and delivery of the said negroes by the said Joseph Bush to the said plaintiff; that he was also cognizant of the performance of part of the consideration for such sale; that said negroes were in the possession of the said plaintiff, while the said Ogg was in his employment; that previously to the said trial, the plaintiff had been unable to ascertain th place of residence of the said Ogg, and that he did not ascertain the same until after the said trial; and that he expects to be able to procure the testimony of the ■ said Thomas Ogg by the next term of this Court; all of which will more fully appear by reference to the affidavit of the said plaintiff.</p> <p>The Court refused to grant a new trial, and plaintiff excepted.</p>

Caveat to will, in Richmond Superior Court. Tried before Judge Holt, at May Term, 1858. Appeal from Ordinary.

Ejectment, in Effingham Superior Court. Tried before Judge Fleming, March Term, 1858. This was ejectment by John Dillon against Stephen F. Keller, for a tract of pine land in Effingham county, situated on or near the Central Railroad, containing one hundred and eighty-four acres. The testimony being closed, and the Court having charged the jury, they found for the defendant.

<p>Complaint, in Jefferson Superior Court. Tried before Judge Holt, at June Term, 1858.</p> <p>This was an action by Stovall, Dunn & Co. against Edward B. Hook, on a promissory note for $630, dated March 6th, 1852, and payable on or before the 1st day of January, 1853. The defendant pleaded: First, the general issue; second, partial failure of consideration in this: that said note was given for a negro bought by defendant from plaintiffs which said negro plaintiffs warranted to be sound, whereas, the fact was otherwise, the negro being, at the time of sale, unsound, having a disease in one of her eyes, which greatly depreciated her value; third, total failure of consideration in this : that by reason of said diseased eye, said negro was of no value to defendant, and the consideration of said note had totally failed.</p> <p>The plaintiffs offered in evidence the note sued on and closed. The defendant submitted his proofs. The plaintiffs replied and closed the case. One of the counsel for plaintiffs was about to open the case to the jury late in the evening, when one of the jury complaining of indisposition, the case was adjourned over until morning. The Court permitted the jury to separate without the usual instructions not to allow any one to converse with them in relation to the case, although requested to give such instructions by defendant’s counsel.</p> <p>At the opening of the Court thexnext morning, the counsel for plaintiffs made a motion before the Court to permit them to offer other testimony which they had discovered since the adjournment of the Court the evening before, and made affidavit to that effect; which motion was resisted by defendant’s counsel, upon the grounds,, first, that there was no rule of practice allowing such a proceeding; and second, that it would be establishing a very dangerous practice; which objections were overruled by the Court.</p> <p>Whereupon the plaintiff then introduced one of the jurors, Elisha Smith, who testified that he was at defendant’s house before he left the Carson place; thinks it was in 1855 or’56, but is not certain, that it might have been in 1854; heard defendant say that he would not take one thousand dollars for the girl; is not certain whether the conversation occurred in 1854 or 1855; that he had mentioned this fact to Henry Farmer, one of his brother jurors in the case, and that he had told it to no one else. He also stated that said conversation had stayed by him, and would always do so — that it had its effect on his mind, and would always doit, and would influence him in making up his verdict. When asked by the Court if the impressions of that conversation would influence his mind in giving a verdict in said case, irrespective of other testimony in the case, he replied that it would not, and that he did not know how the fact of the conversation with the defendant, above stated, was communicated to the plaintiffs since the adjournment of the Court the evening before.</p> <p>The defendant’s counsel objected to the conversation testified to by said Smith, because it was not proven to have taken place subsequent to. the developmeht of the disease in the eye,which objection was overruled by the Court, and the witness permitted to testify.</p> <p>The defendant’s counsel then moved that the case be withdrawn from the jury, upon the ground that the testimony of the juror, Smith, clearly showed that he was not an impartial, unprejudiced and competent juror, which motion was overruled by the Court.</p> <p>The plaintiffs then introduced Reuben Oarswell, Esq., who testified that it was his impression that the defendant lived at the Carson place in December, 1855; would not be certain. It might have been in July of that year.</p> <p>Plaintiffs then introduced William, A. Stokes, who testified that defendant left the county about two years ago, and left the Carson place about three or four years ago, about the year 1854 or 1855.</p> <p>Plaintiffs then finally closed their case.</p> <p>The defendant then recalled the plaintiff’s witness, Henry Farmer, one of the jurors, who testified that Elisha Smith, one of his brother jurors, told him that he would tell him something when they went into the jury-room that would influence his (Farmer’s) verdict, but that said Smith was mistaken in his testimony when he. testified that he had told him (Farmer) what Hook had said about the value of the negro, in the jury box — that he (Farmer) had not communicated what the said Smith had told him, to plaintiffs or any one else, and does not knowhow the plaintiffs got the information. -</p> <p>Then the defendant finally closed his case.</p> <p>After argument had before the jury from both sides, the Hon. Wm. W. Holt presiding, charged the jury as follows:</p> <p>Gentlemen of the jury, much upon which you will have to pass in making up your verdict in this case, seems to be admitted, at least has not been contested before you; that the defendant made the note upon which suit is brought, that its consideration was the price of the female slave sold to him by the plaintiffs, and that in the sale she was warranted by the plaintiffs to be sound in every respect.</p> <p>It is upon this warranty of soundness the case principally turns. In the bill of sale she is described as having one eye larger than the other, and the defendant alleges that this enlargement of the eye is a disease, and that the slave being thus unsound at the time of sale, the plaintiff’s covenant is broken, and that he has a right to an abatement from her price equivalent to the damages he has thereby sustained. The question of soundness or unsoundness is therefore directly submitted to you, and is to be decided upon the evipence produced by the parties. The defendant relies upon the opinion of two physicians, whose testimony you have heard, and upon the facts testified to by the woman in whose employment the slave was when her first child was born, of an increased enlargement of the_ eye consequent upon that event.</p> <p>The plaintiffs rely upon the fact that the defendant kept the slave for three years without comp]amt of unsoundness, or offer to return her and cancel the contract of sale, he himself being a skillful physician. This he was not bound to do to entitle him to the benefits of the plaintiff’s covenant 5 yet it is a fact, being the conduct of the defendant himself, which may be considered by you in determining the question whether that covenant has or has not been broken. If you find it to have been broken, the next thing to be considered by you will be, the damages which the defendant has thereby sustained, the just measure of which is the difference in the value of the slave sound and unsound. Her value as sound is agreed between the parties in the price to be paid. Of her value as unsound, you have the testimony of the witnesses that have been examined to that point, and the admissions of defendant as they have been give'n in evidence upon which you must decide, and these admissions of the defendant should have more or less weight, according to the opportunities the defendant had at the time they were made, of knowing the actual condition of the slave. Whatever difference you may find must be deducted from the note.</p> <p>But, although you find the covenant to he broken, if you find that at the time of the sale the slave in her unsound state was worth the price for which she was sold, the defendant has sustained no damage. The whole case is submitted to you upon the testimony.</p> <p>The counsel for the defendant, amongst other things, requested the Court to charge the jury:</p> <p>1st. That before they can find the full amount of the note sued upon to be due, they must first find that the eye was not diseased at the time of the warranty.</p> <p>2d. If the jury believe from the evidence that the negro girl Mary was unsound at the time of the sale, then that the sayings of defendant as to his valuation of the negro girl are entitled to no consideration Or weight in reference to the question of soundness or valuation of the negro girl, unless said sayings are proven to have occurred subsequently to the development and increased action of the disease.</p> <p>3d. If it has not been proven to the jury • that the defendant’s valuation or consideration in relation to the valuation of said giri occurred after the development and increased action of the disease, the jury should exclude said conversation in their consideration and investigation of the issue in the case.</p> <p>4th. The opinion of Brs. Bison and Campbell in relation to what they consider the negro girl worth in their estimation, is proper evidence to be considered by the jury, as the opinion of experts.</p> <p>5th. If Hook, the defendant in this ease, had even paid portions of the purchase money from time to time, still it would, not preclude him from, .holding plaintiffs to a strict compliance with their contract under warranty.</p> <p>Which charges the Court refused to give, and defendant excepted.</p> <p>The jury found for the plaintiffs the full amount of the note, with interest and cost of suit. Whereupon defendant excepted and assigns as error the rulings, decisions, charges and refusals to charge above set forth.</p>