Volume 27 — Georgia Reports

<p>If a Court of Equity has jurisdiction of any caso of will probate, the case can be only one in which, the probate is, for some reason, not attainable in the Court of Ordinary.</p>

In Equity, from Schley county. Decision on demurrer, b}r Judge Worrill, at August Term, 1858. This was a bill by Job Turner, against Henry B. Jones, John Joiner, Cullen R. Lockett, John Hodges, and YFinstead Spicer, to establish a lost deed, and for an account and relief.

Certiorari, from Muscogee county. Decision by Judge Worrill, at November Term, 1858. Bartly McCrary brought suit in a Justice Court against Tomlin King and Luke Dimond, on a promissory note, of which the following is a copy: $50. By the first day of November, we or either of us promise to pay Bartly McCrary, or bearer, the sum of fifty dollars, for value received, this February 18, 1857. (Signed,) ' TOMLIN KING, LUKE DIMOND.

Motion to enter up judgment on ca. sa. bond. Made before Judge Kibdoo, in Terrell Superior Court, at September adjourned Term, 1858. A writ of capias ad satisfaciendum issued from the Superior Court of Terrell county, at the instance of the plaintiffin error, against the defendant in error, returnable to tire September Term, 1858, of said Court. The defendant, Williams, having been arrested by the Sheriff of said county, gave bond, with S. F. Lassiter and Wm.

In equity, in Talbot Superior Court. Decision by Judge Worrill, September Term, 1858. In 1825, Seaborn Jacobs died, owning a small estate, and leaving a widow and two infant children, George M. Gullett became the administrator, and took possession of the estate. In 1831, letters dismissory were granted by the Ordinary of Monroe county, to the administrator. Gullett afterwards, died, and Joseph Pou was appointed administrator of his estate.

In equity, in Marion Superior Court. Tried before Judge Wo mull, at September Term, 1858. This was a bill filed by Josiah C. Powell, against James L. Powell and Martin L. Bivins, for the purpose of correcting a mistake in deeds.

In Equity, in Schley Superior Court. Decision by Judge Worrill, at August Term, 1858.

<p>[1.] A payment by the debtor to the creditor is, when there are more debts than one, to be applied to that debt to which, the debtor directs it to be applied, if he makes any direction.</p> <p>[2.] In the eye of equity, all creditors are equally meritorious. Consequently, if there are several funds of the debtor, and there are some creditors haying liens on one fund, and some, on another fund, and there is one creditor having a general and superior lien on all the funds, equity will not permit this creditor, to take the whole of his pay, out of any one of the funds, but will compel him to take it,pro rata, out of all of the funds.</p> <p>[3.] Courts may require amendments to sworn bills, to be themselves sworn to*</p>

<p>Debt, from Schley county. Decision by Judge Worrill, at August Term, 1858.</p> <p>This was an action by Sterling J. McCrary, against Samuil Caskey, on a promissory note of which the following is a copy:</p> <p>“ By the 25th day of December next, I promise to S. J. McCrary, or bearer, two hundred and thirty-five dollars, for value received. This December 1st, 1852.”</p> <p>(Signed,) "SAMUEL CASKEY."</p> <p>The note was endorsed with a credit for one hundred and fifty dollars, January 17, 1853.</p> <p>The second Count in the declaration, set out and averred that defendant made his certain other instrument in writing, called a promissory note, “ whereby, by the twenty-fifth day of December next, (meaning the 25th day of December, then instant,) the defendant promised,” &c.</p> <p>The defendant pleaded the general issue and failure of consideration.</p> <p>Upon the trial, plaintiff introduced the note and closed.</p> <p>Defendant moved to dismiss the case upon the ground, that suit was commenced before the note was due.</p> <p>The declaration was filed in the Clerk’s office, 21st December, 1853, and defendant served 9th January, 1854.</p> <p>Plaintiff offered to prove that the note, though payable the 25th day of December next, and dated the first day of the same month, was so written by mistake, and was in fact, intended t© be payable the 25th day of December, then instant.</p> <p>The Court refused to admit this proof, and dismissed the action, and plaintiff excepted.</p>

Debt on Bond. Tried before Judge Worrell, September Term, 1858. Talbot Superior Court. Bryant Fanning, the father of plaintiff’s usees, was the drawer in the Land Lottery of 1827, of two lots of land viz : ' lots number sixteen in the tenth district of Troup county, and number fifty-four in the ninth district of Muscogee.

Ejectment, from Randolph county. Tried before Judge Kiddoo, November Term, 1858. This, was an action of ejectment by John Doe upon the demise of William P. Dearmond, against Richard Roe, casual ejector and Isaac Brooking tenant in possession, for lot of land no. 79, in the 8th district of Randolph county. The declaration contained a demise to John Doe from Wm. P. Dearmond for the use of John R. M. Neal and laid no other demise.

Certiorari, from Taylor county. Decision by Judge Worrell, at October Term, 1858. John Joiner sued out an attachment against Russell W. Smith, returnable to the Inferior Court of Taylor county, on a promissory note. The Inferior Court, on the trial, upon motion of defendant’s counsel, dismissed the attachment on the ground that the attachment bond given by the plaintiff, was not attested by the Justice who issued the attachment.

Ejectment. Tried before Judge Worrili., October Term, 1858, Taylor Superior Court. Suit was brought by the plaintiff in error, on the several demises of John L. Brooks, Charles J. Davenport and others, against the defendants in error, for a lot of land in Taylor county. On the trial, plaintiff read in evidence a copy plot and grant from the State to said John L. Brooks, of the land in dispute.

, from Harris county. Decision by Judge Woreill, at October Term 1858. Seaborn L. Dean applied for letters of administration on the estate of Elizabeth Holcombe, deceased, when a will was produced for probate, and upon proof was admitted to record as the last will and testament of said Elizabeth — G. W. Epps being the executor thereof. An appeal was taken from the judgment of the Ordinary admitting said will to probate, by Dean, a son and heir at law of deceased.

Complaint on account, in Schley Superior-Court. Tried before Judge Worrier, at August Term, 1858. This was complaint, on an account for medicinal services rendered by Joseph E. Blount, against Jimsey B. Hunter.

In Equity, from Schley county. Tried before Judge Womiill; and motion for new trial refused, at August Term, 1858. This was a bill filed by William H. Binion, and Thomas M. Bailey and wife, against Emson Miller, administrator, in right or stead of his wife, of the estate of William Binion, deceased, late of Columbia county.

<p>An affidavit filed under what is usually termed the Pauper Act is not traversihle.</p>

Trespass, vi et armis. Tried before Judge Worrill, m Talbof Superior Court, September Term, 1858. This was an action of ¡trespass, brought by the defendants in error, as trustees of Jackson Academy, in the county of Talbot, against the plaintiff in error.

In Equity, in Mucogee Superior Court. Decision by Judge WoititiLL, at November Term, 185S. This was a bill in equity filed by Randolph L. Mott, and ■others, against Paul J. Semmes, and others. By consent of parties in open Court, the demurrer filed to the bill, and the motions, submitted by defendant, Semmes, were argued and decided together.

•• Trover, in Houston Superior Court. Motion for new trial. Decided by Judge Lamar, at June adjourned Term, 1858. This was an action of trover, brought by Mrs. Elizabeth A. Kearney, widow of the late Richard R, Kearney, deceased, against Benjamin T. Russell, for the recovery of a negro man slave, John. Plaintiff claimed said slave under the last will and testament of Mrs. Sally Thrift, deceased, late of Warren county, North Carolina, the mother of her deceased husband.

Divorce, in Houston Superior Court. Tried before Judge Lamar, at October Term, 1858. This was a libel for divorce, at the suit of John W. Brown, as the guardian of Richard N. Westbrook, a lunatic, against Catherine Westbrook, the wife of said Richard N. The alleged ground of divorce was the lunacy and insanity of Richard N. Westbrook, at the time of his marriage with said Catherine, in the year 1848.

Case, in Bibb Superior Court. Tried before Judge Lamar, at November Term, .§58. This was an action by James M. Davis, as administrator of Willis Boon, deceased, against the Macon and Western Railroad Company, to recover the value of a negro man slave and a carriage. The slave killed, and the carriage destroyed by the cars, running on defendant’s railroad. All the facts necessary to a full understanding of the points adjudicated, are stated in the opinion of the Court.

In Equity, in Taylor Superior Court Tried before Judge Worrier, at October Term, 1858. The facts of this case are fully set forth in the following opinion of the Court.

<p>Although time may be running against an equitable title, yet, if that title comes to an infant, time will cease to run against it, during the infancy; equity in this respect, following the statute of 1817.</p> <p>As to when the evidence is sufficient to warrant particular charges.</p>

Assumpsit, from Randolph county. Tried before Judge Kiddoo, at November Term, 1858. This was an action by Richard Davis, Sheriff, for the use of Lodwick Lard, against John Hendrick, to recover eight hundred and ten dollars, being the difference between a first sale of Lard’s property made by the Sheriff, and bid off by Hendrick, and a second sale thereof, Hendrick failing and refusing to comply with his purchase, and said property resold at his risk.

Complaint, from Miller county. Decision by Judge Kid-boo, at October Term, 1858. This was complaint by Webb & Allen, on an account, against William R. Hargrove. Upon the case being called for trial, on the appeal, defendant moved an amendment to his plea, to the effect that Allen G. Webb, one of the plaintiffs, was a free person of color, and not entitled to sue, nor to make contracts without the written permission of a guardian. Plaintiffs’ counsel objected to the amendment.

Complaint, from Randolph county. Tried before Judge Ejddoo, at November Term, 1858. This was an action, under the Jones Forms, by Behn & Foster against John T. Howard, on account. The following bill of particulars was filed with the declaration, viz: MR. JOHN T. HOWARD, IN ACT. WITH BEHN & FOSTER. 1854. A bill of bagging, rope, twine, set out by items, amounting to ... $451 3S 1855. Jan. 15.

<p>In Equity, from Bibb county. Decision by Judge Lamar, at December Term, 1858.</p> <p>See the facts of this case reported in 23c? vol. Ga. E.p. 242.</p> <p>Upon this cause again coming up to be heard, defendant’s solicitors asked leave to amend his answer, by alleging that complainant was embarrassed in his circumstances, if not insolvent; and that the parties entitled, under the last will and testament of John Bowman, deceased, as contingent remaindermen to the property bequeathed to William Henry Long, would be prejudiced, and their interests in said property seriously jeoparded, unless the said Jesse L. Long, the complainant, be required to give good and sufficient security for the forthcoming of said property, in the event of said William Henry Long dying before he attained the age of twenty-one years ; and praying the Court to decree that, upon defendant’s turning over to said complainant said property, he should be required to enter into bonds, with good security, in such sum as may be deemed sufficient by the Court, to said defendant, as the executor of the said John Bowman, deceased, for the security, forthcoming and delivery of said property, in the event of said William Henry Long dying before he attains the age of twenty-one years $ which request to amend the Court refused, and defendant excepted.</p> <p>Defendant’s solicitors then moved for a continuance of said cause, to afford them time and opportunity to file a cross bill against complainant, setting out therein the same matters, and praying the same relief that they had proposed by way of amendment to the answer. Which motion the Court refused, on the ground that Jesse L. Long, being a resident of the county of Troup, the Court did not have jurisdiction : to which decision counsel for defendant excepted.</p>

Certiorari, in Houston Superior Court. Decision by Judge Lamar, at chambers, July, 185S. The Sheriff of Houston county, under two mortgage fifias. issued at the suit of Felix McNair, against Alexander Lee, levied on and sold a negro man named George, mentioned and contained in the mortgages.

In Equity, from Calhoun county. Decision by Judge Allen, at May Term, 1858.

Ejectment, from Twiggs comity. This was an action of ejectment by Doe, upon the several demises of Drury Williams and Henry Williams, against Roe, casual ejector, and James H. Cowart, tenant in posses-session, for the recovery of a fractional lot of land lying on the Ocmulgee River, in the county of Twiggs, No. 194, containing one hundred and ninety-six acres, known as the “Dawson” or “Lewis” fraction.

In Equity, in Macon Superior Court. Decision by Judge Lamar, at September, Term, 185S. Albert S. Elmore filed this bill against Wiley Spear, John Spear and Samuel M. Strong, of the State of Alabama, and Davis Gamage, of Macon county, Georgia. The hill states that about the 1st of May, 1854, Wiley Spear being indebted to John Spear, his son, the sum of $2,025 00, executed and delivered to him forty-five promissory notes, each for $45, payable the 25th December, 1854.

Indictment for Assault and Battery, in Dooly Superior Court. Decision by Judge Lamar, at October Term, 1858. The grand jury made a special presentment against William McDaniel, charging him with the offence of assault and battery upon Elizabeth McDaniel, his wife. The defendant pleaded not guilty. Bill of indictment waived and consent that the special presentment stand in lieu thereof.

Claim, in Bibb Superior Court. Decision by Judge Lamar, at November Term, 1858.

Certiorari, from Sumter county. Decision by Judge Au:ubn, at September Term, 1858.

Levy and claim, in Sumter Superior Court. Tried before Judge Allen, at September Term, 1858. On the trial of this cause in the Court below, the plaintiff in fi. fa. introduced in evidence, a mortgage fi. fa. against lot of land number two hundred and fourteen, in the twenty-eighth district of Sumter county, which had been levied on said land. The mortgage had been properly recorded.

Complaint, in Bibb Superior Court. Tried before Judge Lamar, at November Term, 1858. This was au action by Needham Mims against Abner M. Lockett, for the recovery of six or seven negroes, which the «declaration alleged were the property of plaintiff, and in defendant’s possession, &c. It appeared that Lockett married a daughter of plaintiff, ■and sometime thereafter, about 1850, the negroes went or ■came into the possession of Lockett, and had remained there ever since.

Ejectment, in Lee Superior Court. Tried before Judge Alden, at September Term, 1858. This was an action of ejectment by the lessee of John Rawls and John R. Dyer, executor of Anthony Dyer, deceased, against Richard Roe, casual ejector, and Edward Harris, tenant in possession, for the recovery of lot of land, number one hundred and twenty-nine, in the thirteenth district of Lee, containing one hundred and seventeen acres.

In Equity, from Lee county. Decision by Judge Allen, at December Term, IS58.

. In Equity, from Muscogee county. Decision by Judge Worrill, on demurrer, at May Term, 1858. This case was before the Supreme Court at Macon, January Term, 1857, and the facts will be found fully stated in 21st Ga. Rep. 433.

<p>Notice is given by an insolvent debtor to his creditors, that he will appiy at the next Term of the Superior Court for an order, appointing a time to hear his application for a discharge. At the Court, he moves to take the oath, the creditor by his counsel being present, making no complaint that he is surprised by the form of the notice, and on that account asking for time to show cause against the motion.</p> <p>Held, That the iaw has been substantially complied with. And further, that our insolvent laws are to be liberally construed in favor of liberty.</p>

Complaint, in Sumter Superior Court. Decision by Judge Allen, at September Term, 1S5S. This was an action by John W. Shepherd, executor of Andrew H. Tarver, deceased, against William J. Reese, of Sumter county, and William M. Brown, of the county of Marion, on a promissory note.

Rule against Sheriff, from Muscogee county. Decision by Judge Worrill, at November Term, 1858. This was a rule against William IT. Lamar, late Sheriff of Muscogee county, to shew cause why he should' not pay to the plaintiff the amount d'ue on a fi.fm. placed in his hands, at the suit of Pleasant J. Phillips, Executor of H. IT. Lowe, against Alfred Iverson.

In Equity in Muscogee Superior Court. Decision by Judge Worrill, at May Term, 1858. This was a bill filed by Seaborn Jones against James H. Shorter, administrator of Eli S. Shorter, deceased.

<p>Caveat to will, from Muscogee comity. Tried before Judge Wokkill, at June Term, 1858.</p> <p>The facts of this case will be found fully stated in the 21st vol. Ga. Reps. 552.</p> <p>The judgment of the Court below, upon a former trial, having been reversed by the Supreme Court, the case was remanded and came up again for trial, and after the testimony was closed and argument had, the Court amongst other things, charged the jury as follows:</p> <p>“if you shall believe that John L. Lewis was the guardian of the testator at the time the will was executed, that it was executed in the guardian’s house, that the testator at the time, was living with his guardian, that the guardian haJ any thing to do in having the will written, and he takes a considerable benefit under it, then the presumption of law* is against the validity of the will, and that undue influence was used by tlie guardian in procuring it to be executed, and you will find against the will, unless the proof is clear and satisfactory, that Phillips, the ward, in making the will, acted of his own volition, and that the guardian exercised no influence over him. But if Lewis was the guardian of testator, and the will was executed in his house, and testator lived with him, and the guardian had any thing to do in the writing of the will, yet you will find in favor of the will, provided the proof shows that the testator acted of his own volition in the execution of the same, and that the guardian exercised no influence over him.”</p> <p>The jury found for the will. Whereupon, caveators moved for a new trial on the grounds:</p> <p>1st. Because thejverdict was contrary to law.</p> <p>2d. Because the verdict was contrary to the evidence</p> <p>3d. Because the verdict was contrary to the charge of the Court.</p> <p>The Court after argument, refused the motion for new trial, and counsel for caveators excepted and assign said refusal as error.</p>

Assumpsit, in Muscogee Superior Court. Tried before Judge Woriull, at November Term, 1858. Thomas W. Stanford sued out bail process in an action of assumpsit, against James M, Pruet, as endorser upon a promissory note, of which the following is a copy, to-wit: Columbus, April 16th, 1S56. “ $300. Three months after dale, we promise to pay to James M. Pruet, or order, three hundred dollars for value received.

Foreclosure of mortgage, from Muscogee county. Decision by Judge Worrill, at November Term, 185S. Richard R. Cuyler, administrator of James Holford, deceased, filed his petition for the foreclosure of a mortgage of certain real estate, executed by Daniel McDougald to said Holford.

<p>[1.] Where a bank is sued, an appearance by the bank to take advantage of an important privilege secured by the charter, is a waiver of any irregularity in the service of the writ.</p> <p>[2.] Where a bill of exchange or draft is endorsed m full by the payees, suit cannot be maintained in the name of the payees, while 'the endorsement stands.</p> <p>[3.] Where two sets of notarial protests upon the same bill, are filed under the act of 1836, both are entitled to be read without further proof by the Notary.</p> <p>[4.] Under the 17th section of the charter of the Southern Bank of Georgia, no action can be brought against said bank under said charter, until special demand is made of the debt or due claimed by the creditor.</p>

Caveat to will, from Schley county. Tried before Judge Worrild, at August Term, 1858. Elizabeth Wimbish, the widow and executrix of William Wimbish, deceased, propounded his will for probate in solemn form before the Ordinary of Sumter county. The case was, by consent, transferred to the appeal in the Superior Court of said county. Pending the appeal, Schley county was created, and the case transferred to that county.

Vagrancy, from Marion county. Tried before Judge Worrill, at September Term, 1858. ( Jacob Waddel of the county of Marion, was indicted for vagrancy and convicted. He moved for a new trial, on the ground that the verdict was contrary to the evidence. The Court refused the motion, and counsel for defendant excepted.

Assumpsit, from Schley county. Decision by Judge Wonrxll, at August Term, 1858. This was an action brought in Sumter county, by Henry J. Lamar, against Thomas P. Cottle of Sumter county, as maker, and Abner Burnam of Houston county, as endorser, of a promissory note. The writ issued 29th January, 1856. The Sheriff of Sumter county returned “the defendant Thomas P. Cottle not to be found in the county.

<p>In Equity, from Calhoun county. Tried before Judge Allen, at November Term, 1858.</p> <p>This was a bill in equity, filed by Elizabeth Jones, against Jesse Robson.</p> <p>The bill states that plaintiff first intermarried with Drury Stokes, by whom she had one child, Georgia Ann Stokes, the wife of defendant. After the decease of Stokes, plaintiff married James Jones, who became the guardian of her infant daughter ; that her first husband left a considerable estate, and by agreement before marriage with Jones he was not to use any part of Stokes’s estate, but the whole was to be kept together undivided in his hands, and plaintiff’s share was not to be subject to his marital rights. That after their marriage, in pursuance of this agreement, all the estate of Stokes, which came into the hands of Jones, was returned by him, as guardian of the said Georgia Ann, one-half of which plaintiff alleges belonged to her.</p> <p>The bill further states, that Jones purchased from funds received of the estate of Stokes, four negroes, Ned, Dolly, Louisa and Winny, all of which he mortgaged to the security on his guardianship bond, as an indemnity, and that Jones died in the county of Washington, in the year 1841, leaving his estate greatly embarrassed; that suit was instituted in equity by the surety on the guardian bond, to enjoin creditors and to enforce the prior rights and lien of the ward upon his estate, as provided by statute.</p> <p>The bill further states that Robson, the defendant, who had intermarried with said Georgia Ann, and well knew that plaintiff was entitled to one-half of said estate, proposed that if she would interpose no obstacle, but would consent that said estate might be sold in satisfaction of defendant’s claim against said deceased, as guardian of his wife, that he, Robson, would buy all the negroes, and plaintiff and himself would divide iliem; that confiding in Robson, plaintiff agreed to this arrangement, and the property was sold under a decree of the Court of Equity, and purchased by Robson at a very inconsiderable sum, which was credited on his demand; that shortly afterwards in fulfillment of said agreement, Robson turned over to plaintiff a negro girl named Louisa, which girl has been in plaintiff’s possession ever since; and that Robson promised from timejo time to carry out in full their agreement, but delayed and postponed the same, falsely representing that if said property was divided that plaintiff’s share would be taken for the debts of heríate husband; and the more effectually to deceive plaintiff, Robson induced her to sigua note to one Cain, which was put in suit and judgment obtained in a Justice Court, and transferred to Robson, who had all the perishable property belonging to plaintiff sold, and after buying it in, reconveyed it to her and her children.</p> <p>The bill further states that Robson denies and repudiates said agreement, and claims the whole of said property, and has commenced his action of trover for the recovery of the girl Louisa, the only property which plaintiff has ever received under said agreement. That from the proceeds of the sale of one of said negroes, Robson bought two others, which with those purchased by him as aforesaid, he has had since 1845.</p> <p>The prayer of the bill is, that an account be taken of the hire of said negroes, and that there be a partition of the same between plaintiff and defendant, according to said agreement.</p> <p>The bill was amended, charging defendant with having received, as part of the estate of Drury Stokes, deceased, several tracts of land, which he had sold, and appropriated the proceeds to his own use, and to one-third of which plaintiff, as the widow of said Stokes was entitled.</p> <p>Defendant answered the bill, and admitted that he married Georgia Ann Stokes, the daughter of plaintiff, but denies that Stokes died possessed of much property; does not know whether the estate was ever divided, but alleges that James Jones, the second husband of plaintiff, and guardian of Georgia Ann, received the effects, whatever they were, of the said estate, and believes that he made a division thereof, and retained plaintiff’s share; knows nothing of any agreement between plaintiff and her husband, Jones, before or after marriage, and never heard of it until recently, and if there was one, believes it was in parol, and disregarded and forgotten, until recently, when such pretended agreement was thought to be of service in combatting defendant’s rights; and that whatever property or funds said Jones returned and charged himself with, as guardian, defendant believes rightfully belonged to his ward, the said Georgia Ann; admits that Jones in his lifetime purchased the negroes named in the bill, but believes and charges that said negroes were purchased with the money of his ward, received from the estate of Nancy Stokes, the grand-mother of said Georgia Ann; that Jones mortgaged the negroes as mentioned in the bill; that after his death, Samuel Robson became the guardian of Georgia Ann, and he filed the bill in equity, seeking to sell so much of Jones’s estate as would satisfy the claim of said Georgia Ann; that pending this proceeding defendant married said Georgia Ann, and was made a party to the bill, but he denies all knowledge of any claim of plaintiff to any part of the sum, that by the decree in said case was award ed to him, or that she had any rights or interests aside from that of her late husband, the said Jones, and denies that he ever made, or entered into any such agreement or arrangement as charged in the bill; states that he purchased the negroes referred to by the bill, at the sale made under the decree, and the amount of his purchases was credited on his judgment — never recognized any such contract as that set up by plaintiff, but from kind and friendly regard, allowed the girl Louisa to go into plaintiff’s possession; denies all the charges in the bill in relation to any contract, false representations, or deceitful practices; denies the charge in relation to the note given by plaintiff to Cain; but avers that upon her earnest request, he bid in the property as charged in the bill, and conveyed it as she desired and directed; knew of no claim or title set up by plaintiff to the negro Louisa, until 1850 or 1851, when he immediately commenced suit for her. He also pleads the statute of limitations,- &c.</p> <p>The case was submitted upon the pleadings, proofs and charges of the Court, and the jury found for plaintiff two thousand eight hundred and eighty-five dollars and forty cents.</p> <p>Whereupon, defendant moved for a new trial on the following grounds, to-wit :</p> <p>1st. Because the Court erred in not dismissing the bill for want of equity.</p> <p>2d. Because the Court refused to dismiss the bill after the complainant closed the evidence on the ground : 1. That from the evidence of complainant, it was shown that complainant rested her recovery on the fact of combination between complainant and respondent, to defraud the creditors of James Jones, her husband, and that a Court would not interfere to compel an execution of the contract, and if executed would leave the parties where they were. 2. That from the bill and evidence, there was no consideration passing from complainant to respondent, on which the alleged contract or promise could be sustained.</p> <p>3d. Because the Court erred in admitting in evidence the deed of gift by defendant to complainant and her children, of personal property; defendant objecting to it.</p> <p>4th. Because the jury found contrary to the charge of the Court and the evidence.</p> <p>5th. Because the Court erred in charging the jury that when a subsisting trust existed, that the statute of limitations does not commence to run until the trustee give notice of an adverse holding, and that it was proven that a subsisting trust existed, and it had not been proven that he had given notice of his adverse holding.</p> <p>6th. Becausé the Court erred in charging the jury, that if they believed/ the contract as charged, was proven, they should find for complainant, one-third of the value of the property, amyhire of one-third, after deducting the amount shown by James Jones’s return, to have been received from the estate of Nancy Stokes.</p> <p>7th. Because the Court erred in charging the jury that if James Jones received the amount of the estate of Drury Stokes, and under an arrangement with his wife, to have no division until Georgia Ann became of age, and charged hint-self with it, as guardian of Georgia Ann, then it was not a reduction of Mrs. Jones’ portion of Drury Stokes’s estate, to possession, and it would in proper proceeding in equity, have been settled on her, and that this was a sufficient consideration to sustain the promise set up in complainant’s bill.</p> <p>8th. That the jury found contrary to law and equity.</p> <p>9th. That the jury found contrary to evidence, and the weight of evidence, and the justice of the equity of the case.</p> <p>The Court, after argument refused the motion for a new trial, and defendant excepted.</p>

<p>Money in Court, on a rule for its distribution, must be applied, as far as it goes, to the oldest lien attached thereon, provided there be nothing to affect the validity of the lien.</p>

In Equity, from Taylor county. Decision on demurrer, by Judge Worrill, at October Term, 1858. This was a bill in equity, to reform a written contract, (bill of sale of a negro,) and to enjoin an action at law; bill 'filed by Thomas J. Drawhorn against Asa Marshall, administrator of James M. Marshall, deceased.

Ejectment, from Randolph county. Tried before Judge ICiddoo, at June adjourned Term, 185S. Plaintiff introduced in evidence a grant from the State to Thomas Long, for the lot of land in dispute, and a deed from Long to himself. He also read the depositions of two witnesses, taken by commission, which it is not necessary to set out He proved that defendant, Cook, was in possession at the commencement of the action, and closed.

Garnishment, from Muscogee county. Decision by Judge WoKRiLL, at November Term, 1858. The Columbus Omnibus Company brought suit against the Manufacturers and Mechanics Bank, and pending suit served Paul J. Semmes with a summons of garnishment.

Murder, from Lee county. Tried before Judge Allen, January, 1858. Thomas Thomas, the plaintiff in error, was indicted for the murder of Joseph Gross. HA was tried at the January adjourned Term, of Lee Superior Court, and convicted. Whereupon his counsel moved for a new trial, upon the following grounds.

Trespass, vi et armis, from Harris count}''. Tried before Judge Worrill, at October Term, 1858. This was an action of trespass, vi et armis, by James A. Gorham against Rabun G. Hood and James M. Gordy, for entering plaintiff’s close, and seizing and carrying away four negroes, of the aggregate value of about four thousand dollars, the property of plaintiff] and detaining said negroes for two days.

In Equity. Tried before Judge Kiddoo, Chattahoochee Superior Court, August Term, 1858.

<p>Assumpsit, from Randolph county. Decision by Judge Krnroo, at the June adjourned Term, 1858.</p> <p>Benjamin F. Lennard, bearer, brought suit against John H. Jones, trustee of Mary A. Jones, to recover the sum of ninety-five dollars aud twenty-three cents, (#95 23) besides interest, the amount of a promissory note given by said Mary A. Jones, to James D. Lennard, dated 7 July, 1856, payable one day after date, and afterwards for valuable consideration transferred to plaintiff.</p> <p>The declaration alleged that said Mary A. Jones, and her children, were the cestui que trusts of two negro slaves, conveyed to them by deed, from Jemima W. Poole, and that said slaves were in the possession of John II. Jones, as trustee; that said note was given for goods, wans, and merchandise, sold and delivered to said Mary A. Jones, for the use and benefit of herself aud children, and said estate, aud that said estate was liable for the same.</p> <p>The action is brought against the trustee under the provisions of the Act of 5th March, 1856,y?. 22A</p> <p>The defendant pleaded that when said note was given, said Mary A. Jones was a married woman, the wife of defendant.</p> <p>After reading in evidence the note sued on, plaiutiff introduced a book, containing the original entries of part of the goods sold and delivered, and for which the note was given; said entries amounting to $64 31. Plaintiff then proposed to prove the loss or destruction of another book, containing the original entries of the balance of the. goods sold, and making up the amount for which the note was given. Defendant objected to the testimony as inadmissible, the objection was sustained by the Court, and plaintiff excepted.</p> <p>Plaintiff then moved to amend the declaration, by striking out the name of John H. Jones, and inserting that of Mary A. Jones, the cestui que trust, as defendant; which motion the Court refused, and plaintiff excepted.</p> <p>Defendant moved for a nonsuit, which the Court granted; on the grounds, that plaintiff had failed to make out his case — had failed to show how the trust estate was subject to the payment of the note sued on; and that the corpus oí a trust estate could only be subject to sale when necessary for the benefit of the estate. To which decision plaintiff excepted.</p>

Debt, from Crawford county. Tried before Judge Lamar, September Term, 1858. This was an action of debt on a prison bounds bond brought by Lewis F. Hicks, sheriff, for the use of Elijah Bond, against Henry H. Horton, principal in the bond, and W. W* Matthews and others, sureties.

Complaint, from Bibb Superior Court. Tried before Judge Uamar, at November Term, 1858. Suit was brought by James Hardin against George Brown, on a note made by Brown, for the sum of eight hundred dollars, of which the following is a copy: “ $800 00. On or before the 35th day of December next, I promise to pay James Hardin or bearer, eight hundred dollars, for value received, with interest from date. This 23d August, 1S56.

In Equity,- in Houston Superior Court. Decision on demurrer, by Judge Lamar, at November Term, 1858. Gabriel Clifton, and others, children of Nancy Clifton, deceased, filed this their bill against Robert O. Holton, administrator, de bonis non, with the will annexed, of Samuel Holton, deceased, for their share of a legacy, claimed by them as remaindermen, under the will of said Samuel.

In Equity, from Macon county. Decision on demurrer, by Judge Lamar, at September Term, 1858.

In Equity, from Randolph county. Decision by Judge Kiddoo, November Term, 1858. This was a bill in equity, by John P. Irving, guardian of the infant children and distributees of McKinny Melton, dedeased, against Elbert Meltqn, administrator of the estate of said deceased, for an account and settlement.

In Equity, from Randolph county. Tried before Judge Kiddoo, at the May adjourned Term, 1858. This case was before the Supreme Court at January Term, 1858, and is reported in 24 vol. Ga. Rep., p. 583.

In Equity, from Twiggs county. Decision on demurrer, by Judge Lamar, at September Term, 1858. This was a bill in equity, filed by William Hunter and others, heirs at law of Charles Hunter, deceased, against Charles Walker and David S. Walker.

<p>One ground of a motion for a new trial, was, newly discovered evidence, viz, a judgment which -would operate as an estoppel, on the other party. The evidence received, contained nothing about any judgment at all.</p> <p>Held, That the newly discovered evidence was evidence that was “not merely cumulative in its character.”</p>

Ejectment, in Lee Superior Court. Tried before Judge Allen, at October Term, 1858. This was an action of ejectment, by Robert D. Carmichael, against Adolphus Strawn, and others, for the recovery of lot of land number 94, in the second district of Lee county.

Subpoena fi. fa. and illegality, from Randolph county. Decision by Judge Kiddoo, at November Term, 1858. The following is the agreed statement of facts, upon which the judgment in the Court below was pronounced, viz: In an action between Nancy Crozier and John Crozier, in which said Nancy was plaintiff, Samuel Berry was subpoenaed as a witness by said Nancy.

Claim, from Early county. Tried before Judge Kiddoo, at September Term, 1858. On the 12th December, 1851, James B. Brown, executed a mortgage of certain lands to E. B. Lightfoot, to secure the payment of certain notes. The notes bore even date with the mortgage. In February or March, 1854, Lightfoot assigned the notes and mortgage to John T. Howard, for valuable consideration.

<p>An objection to a bill on the ground that the complainant has an adequate remedy at law, comes too late at the hearing. It should be taken advantage of the'first opportunity by plea or demurrer; otherwise it will be considered as waived.</p>

<p>[1.] By the 12th section of the Act of 1856, the Inferior Court of Terrell county, were authorized to .collect an extra tax for county purposes, of such per cent on the Siale tax, as to the said Court might seem necessary and proper. From the sale of town lots the Court House had been paid for, and likewise the jail, lacking $1,300, and there were some $4,000 of assets still in hand^ Three Justices of the Court met in chambers, and after imposing 00 per cent, on the State tax for county purposes* and ten per cent for bridges, they assessed 20Ó per cent, on the Stale lax, for “ Public Buildings.”</p> <p>Held) That this latter tax was without authority of law and void.</p> <p>[2.] The provision in the 21st section of the Tax Act of 1804, prohibiting judicial interference with the levy and collection of taxes imposed by that Act •does not extend to county and corporation taxes, nor to taxes which are not authorized by that Act, and the general tax Acts.amendatory thereof.</p> <p>[3.] Where the tax payers of a county resist the collection of a tax, they may unite by bill, asking an injunction, and each will not be. driven to his affidavit of illegality.</p>

Case, from Bibb county. Tried before Judge Lamar, June, 1858. This was an action on the case by Mary Meath, by her next friend, Darby Meath, against David Flanders, to recover damages for injuries received by plaintiff from the dray of defendant, in the streets of Macon; said dray, at the time, being driven by a negro belonging to, and in the employment of defendant. The damages were laid at five thousand dollars. The defendant pleaded the general issue.

Illegality, in .Sumter Superior Court. Decision by Judge Allen, at September Term, 1858. William A. Ross brought an action, under the Jones Form, against Perry H. Oliver, as endorser of a promissory note.

Bail Trover, in Lee Superior Court. Decision by Judge Allen, at September Term, 1858. Outlaw brought his action of trover against Gilmer, for two negro slaves, returnable to the Superior Court of Lee county, to be held on the fourth Monday in September, 1858. The statutory affidavit for holding the defendant to bail was made and filed, and the papers placed in the hands of the Sheriff.

<p>Entries, in a merchant’s book, made by himself, may be proved by his books, notwithstanding he keeps a clerk who charges a portion of the items in the account.</p>

Decision by Judge Allen, at chambers, December 11th, 1858. This was an application, by the plaintiff in error, to the Judge of the Superior Courts of the South-Western Circuit, for a mandamus to be directed to the defendants in error, as arbitrators, requiring them to set as a Court, and pass upon the following submission: « Georgia, Lee County. — Articles of agreement made and entered into, this 25th day of August, 1858, between Samuel Lindsey and Jonathan Davis, as…

In Equity. Decision on demurrer, in Dougherty Superior Court, by Judge Allen, at November Term, 1858. This was a bill in equity, filed by Lessoms Faircloth, in his own right, and as guardian, against Leonidas A. Jordan, administrator of Benjamin S. Jordan, deceased.

Slander, from Houston county. Tried before Judge Lamar, at September Term, 1858. This was an action for slander, brought by Samuel Gurr against Seaborn C. Bryan.

<p>Complaint, in Randolph Superior Court. Tried-before Judge Eiddoo, at May adjourned Term, 1858,</p> <p>This was an action by William Ingram against Willis J„ Bone, on a promissory note for $>200, payable to James R. Gause, or bearer, dated 8th November, 1853, due 1st January, 1857.</p> <p>After several witnesses had been sworn, and examined on the part- of the defence, defendant’s counsel proposed to recall Ramsay, a witnees, who had been examined; counsel stating that he had just learned that he could prove a material fact by the witness, which he did not know, when the witness was on the stand. Plaintiff’s counsel objected to the witness being recalled. The Court sustained the objection, and defendant excepted.</p> <p>The plaintiff in reply, proved by a witness named Bridges, that six or eight months after defendant bought the mule, (for which the note sued on was given,) he, at the request of William W. Massey, went to buy the mule; that Massey authorized him to give one hundred and seventy-five dollars, that he offered defendant one hundred and eighty dollars, which he refused to take.</p> <p>After the cross-examination of this witness, the testimony closed, and the Court adjourned till the next morning.</p> <p>Upon the opening of Court next day, the defendant proposed to re-open the case, so far as to allow him to introduce and examine the said William W. Masse}?-, by whom he would prove, that said Bridges was never sent or authorized by him to buy said mule; that he Massey, did not consider the mule worth twenty-five dollars.. Defendant further proposed to make affidavit that he did not anticipate the testimony of said Bridges; that when his counsel announced the evening before, that he had closed, Massey was not in the county, but was in Webster county, where he resided ; that he, defendant, had gone after him during the night, and had him then in Court, ready to be sworn. The Court refused the application to re-open and allow defendant to examine the witness, and defendant excepted.</p> <p>The jury found for the plaintiff, and defendant tendered his bill of exceptions, assigning as errors the foregoing rulings and decisions.</p>

Claim, in Bibb Superior Court. Tried before Judge Lamar, at November Term, 1858. This was a claim interposed by Peter Solomon, to certain lands levied upon by the Sheriff of Bibb county, underand by virtue of a mortgage ft. fa., issued from the Superior Court of said county, at the suit of Ovid G. Sparks, the mortgagee, against Willis S. Breazeal, the mortgagor.

In Equity, in Muscogee Superior Court. Decision by Judge Worrill, at May Term, 1858. This was a bill filed by the Farmers and Exchange Bank of Charleston, South Carolina, against Ruse, Patten & Co., of Columbus, Ga.

Assumpsit, in Randolph Superior Court. Decision by Judge Kedjdoo, at November Term, 1858. This was an action of assumpsit, by William West and Bedford S. Worrill, executors of Philip F, Sapp, deceased, against Henry L. Taylor, administrator de bonis non of William Taylor, deceased, upon a receipt given by William Taylor in his life, who was an attorney at law, for certain notes received by him for collection, from the testator, Philip F„ Sapp.

Covenant, tried before Judge Lamar. Bibb Superior Court, May Term, 1858.

Complaint, in Terrell Superior Court. Tried before Judge Kiddoo, at September Term, 1858. This was an action of complaint brought by the plaintiff in error against the defendant in error, for lot of land number-244, in the third district of originally Lee, but now Terrell county.

Complaint, in Baker Superior Court. Tried before Judge Allen, at May Term, 1858. This was an action by Jeremiah Rhame against Isaac E. Bower, on the following note, viz: $300. On the first day of January next, I promise to pay Jeremiah Rhame, three hundred dollars, for one stock of cattle, for which the said Rhame has this day given me a bill of sale. 7th May, 1853. (Signed) I. E. BOWER. Endorsed with the following credits: “March 20th, 1854, $200 00 pd.

Complaint, in Randolph Superior Court. Tried before Judge Kiddoo, at the May adjourned Term, 1858. This was an action by William Moore, against James L. Roberts and Simpson Moore, on a promissory note, for the sum of six hundred and sixty-one dollars and thirty-five cents, payable to William G. Gay or bearer, and due the first day of January, 1S57.

In Equity, from Houston county. Decision on demurrer, by Judge Lamar, at October Term, 185S. This bill was filed by John Fulton and wife, against William P. Gilbert, executor of William Smith, deceased, Thomas Pollock, administrator of Risden Smith, deceased, M. S. Burney, administrator of Needham Smith, deceased, and the widow of said Needham, who was the daughter of the testator, William Smith, deceased, Alexander Smith, Josiah Hodges and wife, Garat Smith, and Jesse…

Ejectment, in Clay Superior Court. Tried before Judge Kiddoo, at September Term, 1858. This was an action of ejectment, by John Doe, ex dem., Dial Peavy, and others, against Richard Roe, casual ejector, aud Stephen Blacker, tenant in possession, for lot of land No. 69, in the fifth district of originally Early, now Clay county.

Assumpsit, in Macon Superior Court. Tried before Judge Eamar, at September Term, 1858. This was an action by Travis Huff, against Dickinson W. Orr, administrator of Andrew J. Orr, deceased, to recover damages for the breach of warranty, of the soundness of a slave sold by the intestate, in his lifetime, to plaintiff The following is the bill of sale, containing the warranty, for the breach of which the action is brought: “ Georgia, Bibb County. April 13th, 1850.

<p>The security to be exacted of a party who asks that .another may be required to produce his deed, or other writing, to be annexed to interrogatories, ought at least to be as much as a bond of indemnity and a consent that if the deed or writing be not restored, objections to it shall be waived and the copy of it on file be read in its place, not only in that ease, but in all subsequent cases.</p>

In Equity, from Webster county. Tried before Judge Kikdoo, at September Term, 1850„ This was a bill filed by JohnS. Me Junkins against William A. Rawson, assignee, to enjoin proceedings on a fi. fa., and for relief.

In Equity, in Randolph Superior Court. Tried before Judge Kiddoo, at November Term, 1858.

In Equity, in Crawford Superior Court. Tried before Judge Lamas, at September Term, 1858. This was a bill originally filed by Lemon M. Causey, against Wiley, Banks & Co., and others. The complainant subsequently dying, his executor, Samuel IJ. Causey, was made the party complainant, in whose name the cause proceeded to a hearing.

Complaint on note, from Cass county. Tided before Judge Crook, at March Term, 1859. This was an action by Enoch Nelson, executor of Hervey H. Nelson, deceased, against Joseph R. Dukes, on the following promissory note: On or before the first day of January, 1855, I promise to pay H. IT. Nelson, or bearer, the sum of nine hundred and fifty dollars for value received, this December 25th, 1854. (Signed, JOSEPH R. DUKES. The plaintiff read the note in evidence and closed.

Divorce, from Gordon county. Decision by Judge Crook, at chambers, January 15th, 1859. Maiden A. Godfrey filed her petition against John T. Godfrey, her husband, for a divorce, on the ground of wilful and continued desertion.

Ca. Sa. and Certiorari, from Murray county. Decision by Judge Crook, at March Term, 1858. John B. Elrod, was arrested under a capias ad satisfaciendum, issued at the suit of Gilliland, Howell & Co. The ca. sa. bore date 2d October, 1858 ; he was arrested, and on the 13th November, 1858, gave bond for his appearance at the January Term of the Inferior Court, to take the benefit of the Act of 1823, for the relief of honest' debtors.

Assumpsit, from Floyd county. Tried before Judge Hammond, at August Term, 1858. This was an action by Printup against Mitchell. The jury returned the following verdict: “ We the jury find for the defendant three hundred and fifty dollars, with costs of suit; and find further, that the plaintiff has one-half interest in the Buena Vista property, and entitled to one-half of the rent from the time Mrs, M. Á.

Petition and motion, from Catoosa county. Decision by Judge Crook, at November Term, 1858. The facts of this case are as follows: Bogle & Fields sued out an attachment against Edwin W. Hunter, which was levied upon a lot of land; and at the October Term, 1856, of the Superior Court of said county, recovered judgment, in said attachment, against Hunter.

Attachment for contempt, from Floyd county. Decision by Judge Hammond, at February Term, 1858.

Complaint, from Whitfield county. Decision by Judge Trippe, at October Term, 1858. William W. Alexander brought suit (under the form prescribed by Act of 1847,) against David M. Davis, as maker, and Berry Gazzaway, as endorser of a promissory note.

Assessment of damages, from Fayette county. Tried before Judge Bull, at September Term, 1858.

Peace warrant, from Whitfield county. Decision by Judge Trippe, at October Term, 1858. Upon the affidavit of Patrick C. McOvven, a peace war- ■ rant issued against the plaintiff in error, William J. Keith, and he was recognized to keep the peace, and to appear at the next Term of the Superior Court of Whitfield county.

In Equity, from Floyd county. Tried before Judge Hammond, at February Term, 1859. This hill was filed by Dickerson Lumpkin, against Burrell Johnson, to compel the specific performance of an agreement for the sale and conveyance of lot of land, No. 212, in the twenty-second district, third section, of originally Cherokee, now Floyd county.

Assumpsit, from 'Campbell county. Tried before Judge Hammond, at September Term, 1858.

In Equity, from Gilmer county. Decision by Judge Rice, October Term, 1858. This was a bill filed by William H. Collins, against Porter Fleming, administrator of John A. Meigs, deceased, to enjoin Fleming from prosecuting an action of ejectment against complainant, for lot of land No. 175, in the seventh district, and second section of Gilmer county.

Rule against Sheriff, in Polk Superior Court. Decision by Judge Hammond, at April adjourned Term, 1858. Verderey & Burton held a mortgage against Augustus N. Verderey, to secure a debt of about seventeen hundred dollars.

In Equity, in Floyd Superior Court. Decision on demurrer,.by Judge Hammond, February Term, 1859. This was a bill in. equity, by-the Rome Railroad Company-against Cornelius T. Cunningham to enjoin and restrain defendant from trespassing on lands of complainant, adjoining its railroad, and from locating and erecting certain steam-flouring mills thereon.

In Equity, from Spalding county. Tried before Judge Cabaniss, at November Term, 1858.

Ejectment, in Cass Superior Court. Tried before Judge Tbippe, at September Term, 1858. This was an action of ejectment by Doe, ex clem., Jesse Cash, against Roe, casual ejector, and Benjamin F. Williams, tenant in possession, for the recovery of lots of land Nos. 1141, 1163 and 1164, in the seventeenth district, third section, of originally Cherokee, now Cass county, each containg forty acres. Brief of Evidence.

Machinist’s Lien and Claim, from Henry county. Tried before Judge Cabaniss, at October Term, 1858. This case was heard upon the following agreed statement of facts: Thomas C. Nisbet, the plaintiff in execution, is a machinist, and on the 25th April, 1S55, he furnished to Austin C. Miller, the articles mentioned in his pleadings.

Assumpsit, from Henry county. Nonsuit by Judge Cabakiss, at October Term, 1858. This was an action of assumpsit, brought by Eldridge G. Barlow, administrator of Thomas Stalworth, deceased, against Edmund Stalworth, for the recovery of three hundred and ninety-eight dollars and fifty cents, alleged to be due and owing by defendant to the plaintiff as administrator aforesaid.

Certiorari, from Carroll county. Decision by Judge Hammond, at October Term, 1858. James M. Gray being arrested under a ca. sa. issuing from a Justice Court, in favor of Marcus L. Culberson, administrator of F. D. Palmer, deceased, gave bond, with James Backus as his security, conditioned, to appear at June Term, 1858, of the Inferior Court of Carroll county, to take the benefit of the Act for the relief of honest debtors.

Complaint, in Floyd Superior Court. Tried before Judge Hammond, at February Term, 1858. This was an action in the form of complaint, by plaintiffs in error, against defendants in error, on a promissory note, for $120, dated 28th May, 1856, and payable in six months after date. The consideration of the note, was gin and blackberry wine, sold to defendants by plaintiffs, and which ¿hey alleged were worthless, and refused to pay the note.

Ejectment, from Floyd county. Tried before Judge Hammond, at August Term, 1858. Jehial Jackson, of Habersham county, was the drawer of lot of land No. 411, of the third district and fourth section, originally Cherokee county, to whom a grant issued. He died in 1834, in Habersham county, without ever going in possession of said land.

Arbitration and award, from Upson county. Tried before Judge Cabaniss, at November Term, 1858. This was a motion by Washington Hartsfield, to enter an award of arbitrators on the minutes of the Court, and to make the same the judgment thereof. To which motion D. T. and F. M. Richardson, the other parties to said award, objected, and filed their exceptions thereto. The following is the submission under which said award was made: State oe Georgia, Upson County.

Case, from Whitfield county. Tried before Judge Trippe, at Oclober Term, 1858. This was an action on the case brought by Albert G. Whittle, against the East Tennessee & Georgia Railroad Co'mpanys for the recovery of damages for a lot of hogs belonging to Whittle, which were suffocated and killed in the cars of defendant, in and upon which they were shipped at Cleaveland, Tennessee, to be transported to Dalton, Georgia.

Ejectment, from Cherokee county. Tried before Judge Hammond, at September Term, 1858. This was an action of ejectment by plaintiff in error, against the defendant in error, for the recovery of lot of land No. 114, in the fourteenth district, and second section of Cherokee county, containing one hundred and sixty acres.

Ejectment, from Cass county. Tried before Judge Trippe, at September Term, 185S. This was an action of ejectment brought by John Doe, upon the demise of Jefferson Johnson and wife, against Richard Roe, casual ejector, and Augustus R. Wright and John H. Walker, tenants in possession, for the recovery of lot of land No. one hundred and twenty-four, (124,) in the fifth district and third section of originally Cherokee, now Cass county.

Scire facias to make parties, from Troup Superior Court. Decision by Judge Bull, at November Term, 1858. Francis Irwin, the plaintiff in error, instituted an action of assumpsit against William H. Sterling, on two promissory notes. Sterling appeared and pleaded the general issue, but died before the trial Term.

Complaint, in Floyd Superior Court. Tried before Judge Hammond, February Term, 1859. This was-action by Solomon Stallings, endorsee, against A. T. Harden maker, and Riley J. Johnson endorser, of a promissory note for $1,000, dated 3d June, 1854, and payable 25th December, 1855. The note was signed by Harden, as maker, and endorsed by Johnson, who was the payee.

Trover for negroes, in Floyd Superior Court. Tried before Judge Hammond, August Term, 1858. Held: under the third provision or trust thereof, were of age before the death of the said Warner Washington. And that William Garrett was substituted as trustee in the place of Needham L. Washington, by a Court of Equity of competent jurisdiction, before the commencement of this suit.

<p>[1.] The only source, in general, from which an administrator with the will annexed, can derive the power to sell the slaves held by him, as administrator, is the will, or, an order of the Court of Ordinary.</p> <p>[2.] An administrator and one C. referred a dispute between them as to some negroes, to arbitrators, who awarded the negroes to the administrator, and a sum of money to C., to be paid out of the negroes. The negroes •were worth ten times the sum of money. The administrator proceeded to take steps to sell the negroes; the next of kin prayed an injunction to prevent the sale.</p> <p>-Held, That the injunction was properly granted.</p>

Claim, from Troup county. Tried before Judge Bull, at November Term, 1858. The facts of this case are as follows: William B. S. Gilmer recovered judgment against William L. Stanley, principal, and William Reid, security, for one hundred and seventy-three dollars and twenty-four cents, besides interest, upon which execution issued, dated 26th June^ 1855.

Caveat to will, in Monroe' Superior Court. Tried before Judge Cabaniss,.at August Term, 1858. This case was heard upon the following bill of exceptions: The evidence annexed thereto being very voluminous, and not deemed material to a full and clear understanding of the points adjudicated, is -omitted. See 24 Ga. Rep., 640, for a report of this case, on a former hearing before this Court. Bill of Exceptions.

Proceedings to set aside and vacate will, and to declare an intestacy, in Henry Superior Court. Before Judge Cabaniss at April Term, 185S. Appeal from Ordinary. This case was heard in the Court below, upon the following agreed statement of facts: Charles Knight died in the county of Henry, and his will was admitted to probate in common form, in the Court of Ordinary of that county.

Ejectment, from Fannin county. Tried before Judge Rice, at October Term, 1858.

<p>Murder, in Fulton Superior Court. Tried before Judge-Bull, at October Term, 1858.</p> <p>The following is the bill of exceptions, upon which this case was heard, and which with the opinion delivered by the Court, contains all, the facts necessary to a full understanding of the points adjudicated.</p> <p>Georgia, Fulton County:</p> <p>Be it remembe?'ed, That during the October Term, eighteen hundred and fifty-eight, of the Superior Court of said county, his Honor, Orville A. Bull, Judge of said Court presiding, the case of the State of Georgia vs. John Cobb?, jr., being an iudictment for murder, was called, and with, consent of parties, set down for trial on a given future clay in said term; after which his Honor, the presiding Judge, advised the Sheriff to cause the different constables of the •county to summon a large number of persons, qualified to serve as jurors, living outside of the city of Atlanta, and in. tremóte parts of the county,and have them at the court-house •on the day appointed, in order that a jury might be had, which She Court thought otherwise impossible. This suggestion was given to the Sheriff, and notice of it was not communicated by the presiding Judge to the defendant, or his counsel, in time to enable them to urge it as a cause of challenge, because the Court had no doubt, and has none now, that the counsel knew it at the time the jury were empanneled. When the day of trial arrived, many of the persons so summoned by the constables, being in attendance under the above named order, were put upon the defendant as tales jurors, though not until after having been selected as such from among the by-slanders, by the Sheriff, under the usual order from the Court, given at the time, directing him to take whom he pleased from the by-standers at large: and the panel was made up from the by-standers at large. To this anode of bringing in, summoning and selecting said tales jurors, and to the first above mentioned order and instructions of the Judge to the Sheriff, and through him to the Constables, the defendant excepts and assigns the same for error. No objection being intimated at the time of- empanaieling the jury, and no evidence offered afterwards that the «defendant and his counsel did not know a fact so notorious.</p> <p>From said tales jurors and others, and from the regular panels, a jury was impanneled and sworn to try the prisoner, when the following evidence was introduced, under the circumstances, and objections hereinafter detailed, to-wit:</p> <p>The State first introduced Jam.es Rill, rvho being duly •sworn, testified as follows: He was coming up the McDonough road about three miles from the Court-house, Mr. Little and Mr. Gammon hailed to witness and said, there was a man in a bad fix: witness got out of his wagon, went ■down to the body of the man; tried to get him to speak but he could not; made an effort to do so; left him; then came on back to the road, making search if they could find any weapons. In doing so, saw where he had been dragged over leaves and bushes and a couple of poles ; got to the edge of the road, a little boy was with them. The boy was looking about, saw a leather string; caught hold of it; pulled it up out of the leaves; a slung-shot was fastened to it. Witness took hold of the ball and looked at it; handed it to some other-person. Told Mr. Little and Mr. Gammon to remain there; W. came on to town after the coroner and physician. This was on the 8th day of April, 1858, in the county of Fulton the body was 30 steps from the slung-shot and near the track where the body was dragged; did not examine the slung-shot very particularly; thinks he would know it if he were to see it; the one exhibited in Court is the one found there on that day. The condition of the deceased was very bloody; his mouth was full of blood ; his head was very bloody; saw a vehicle thereabouts next day on the opposite side of the road — one horse — no animal to it. It-had formerly had a top to it, which was sawn off; did not know the deceased'; his age was about .sixty years; had on home-made, woolen clothes; the deceased lived from Thursday evening until Monday morning; it was between four and six o’clock; W. went to the place where deceased was; the vehicle was a carry-all and about a hundred yards distant from the road. This was on the McDonough road, you go out McDonough street to get in said road. Mr. Little’s brick-yard is on the right hand side of the road; it is on a direct route to the place where deceased was found. The brick-yard is about a mile from town. This brick-yard is two and a half miles from the place where deceased was found. Geo. W. Mobb’s house is on the road you go from Atlanta to the scene of the killing. His house is about a mile from the place where deceased was found.</p> <p>The State next introduced Josicth Gammon, who being duly sworn, testified as follows: Witness and his wife were in town; started home, and as they went on saw Mr. Little; he and a negro man about starling down the road; W, and wife stopped a Avhile and went on Avith them; got doAvn to witness’s house. Hutchins,Little and W.Aventón down the road to Avhere deceased was; when they got there he Ayas lying on his side rather; saw Mr. Hill and his wife coming up the road; said to him there Aims a man in a bad fix. Mr. Casey and family came up; they were looking around; Mr. Casey’s little boy picked up a slung-shot; said, what is this ? The parties present concluded to send Mr. Hill on to town after the coroner and doctor; soon after he left, several came up. Mr. Garrison sent to the house, got some rags and water and washed the dry blood out of deceased’s mouth. He was moved to the house of Mr. Aaron Garrison. It was on the Sth day of April, 1858, on Thursday evening; thinks the sun was about one and a half hours high; it was in the county of Fulton. The slung-shot was found about twenty-five or thirty steps from the body of deceased; thinks he would know the slung-shot if he were to see it; thinks the one exhibited in Court is the same one found near the body of deceased. It was about twenty-five or thirty steps from the road Avhere they found deceased. The slung-shot was found near the road-side and near the place Avhere it was found, Avas some blood found on the leaves; knows Avhere the brick-yard is, near Mr. Little’s. There is a house between the brick-yard and Mr. Little’s; some one Avas living in it at the time. These points are all on the McDonough road; you go out McDonough street to get into said road in going out from town.</p> <p>Cross-Examined. — It may be nearly one-fourth of a mile from where W. and Little left the negro, to where deceased was found. It Avas woods all the way down from the road to where they found deceased ; did not see the negro after leaving him until nearly dark. From the time the negro left witness until Hutchins fold him of the condition of deceased, was about thirty minutes; the negro was going in the direction Avhere the body Arms found; it was a negro man ; thinks it was about two miles from the brick-yard to where the body was found. W. thinks widow Cole lived in the house between the brick-yard and Mobb’s; thinks it was about a mile from Mobb’s to where the body was found. The negro was on his way for wood at the time W. left him.</p> <p>The State next introduced Lawrence Hutchins, who, being duly sworn, testified as follows: Joseph Gammon,Mr. Little and W. were together when they found the body. Mr. Little’s black man first told W. about the body. Mr. Little, Gammon and W. went to the place where the body was; the body was about twenty-five or thirty steps from the road; was not acquainted with him; he was badly hurt; did not see any carriage about there that day or the next; saw a slung-shot; was not there when it was found.</p> <p>Cross-Examined.. — Witness was about a half mile from where the body was found.</p> <p>The State next introduced Er. Willis F. Westmoreland, who, being duly sworn, testified as follows: He was the physician who attended Mr. Landrum; saw him first in the road near where he was murdered; saw him next at Mr. Garrison’s; saw many wounds upon him; had several wounds upon the head, some e;ght or ten; his skull was fractured; broken probably into twenty pieces; he was able to speak when W. saw him, but was not rational; he lived from Thursday evening until Monday morning after. Blows upon the head caused his death. He died at Mr. Garrison’s, in this county; was first called to him on Thursday, somewhere about 1st of April, 1858; sometimes he would speak and give his right name and then some other. lie was not rational; was not acquainted with him before. The wounds were inflicted with a blunt instrument; one of the wounds seemed to be bruised; inflicted with an instrument, bruising with contusion around it; the other was lacerated — torn. (The slung-shot was here presented.) Thinks it would cause such wounds; a number of the wounds must have been inflicted with a round instrument, breaking the skin only in -one place in the center and contusion immediately around; saw the deceased’s coat; it was a short coat with pockets in the side; thinks it was a sack made of yellow or brown jeans; no other garments W. can describe. W. got to the wounded man after dark; the blood was dry on his clothing; thinks it would require several hours to dry as it was.</p> <p>Cross-Examined. — Thinks he left town about deep dusk to go out; the deceased gave his name several times Samuel Landrum; could not say from the condition the deceased was in when he saw him, when he was wounded.</p> <p>The State next introduced Silas B. Kent, who being duly-sworn, testified as follows: He is acquainted with John Cobb, jr.; Witness was working at Mr. Williams’s briclryard 1st of April, 1858. It is outside of the incorporation on McDonough road ; was working there the time Mr. Landrum was killed ; heard of his death the day after it happened. The day the killing took place witness was working at the same place; saw on the day of the killing the gentleman that got killed pass in a little carry-all and then saw Mr. Jones, Mr. Cobb and another man pass; did not know the other man at the time; has since found out it was Mr. Crockett. The vehicle in which the old man was riding had one mule to it; it did not have any top; did not notice it particularly; did not notice the man in it much; saw them all when they -crossed the branch; the man in the buggy was ahead ; Cobb and Jones and the other man were not right up with the old man — close behind; this was between ten and eleven o’clock. W. has known Cobb and Jones about five years; did not know Crockett at the time ; saw him several times since, here in jail and when he was executed; W. is positive Cobb and Jones were following the old man in the carry-all at the time mentioned. When W. alludes to John Cobb, he means young John Cobb. (Witness here pointed out the defendant in the court-house.) They were going down McDonough road when W. saw them; saw them about two hundred „yards before they got out of sight. When W. last saw them Ihey were going down McDonough road. Two of the Mr, Helton’s, Mr. Cox, Mr. Archibald Brown and Mr. William® were at the brickyard the time W. was at work there; say® he sees Mr. Jones in the court-house — points him out. Whem W. last saw Cobb and Jones and this other man, they were-still together.</p> <p>Cross Examined. — Says he is eighteen years of age: it was about fifty yards from McDonough road to where they were at work ; was doing regular work when parties passed — pitching brick ; does not remember any other persons that passed) the day of the killing; recollects seeing some ladies pass— the Misses Robinson ; Mr. Brown said he thought he knew the old man in the carry-all; never noticed particular the-third person with Jones and Cobb; thoughtCockett was the-man from his looks afterwards; if W. had seen them alS three together, he thinks he would have known Crocketty. saw themall three together in the court-house last Court; doe® not knowhow many days it was after Cobb, Jones and this other man passed the brick-yard before he heard of the murder does not recollect to have seen them pass at any other time-than the one he mentions ; thinks it was in March he saw them pass — about the last of March; it was not a common buggy — sorter of wagon. The parties, Jones and Cobb, were about 25 or SO yards behind the wagon. Nothing happened to fix it upon witness’ mind that it was ten or eleven o’clock when they passed.</p> <p>Re-examined by the Slate. — When the men passed, there-was something said about knowing them — that called his attention ; knows it was before dinner they passed; about ara hour or an hour and a half; does not know when he heard of the killing; thinks it was on Wednesday; does not know the day of the month or week; does not think the Superior-Court was sitting at the time he saw them pass; thinks he heard of the killing about the middle of this year; it was the day after he saw them pass the brick-yard he heard of the killing ; heard of the killing the day after it happened ; never saw Cobb and Jones and Crockett pass at any other time than the one he testifies to; heard of it the next day after he was found; heard of it from some young men who went from brick-yark to see him; does not know how long it was after Jones and Cobb passed; don’t know who told him; don’t know what time of day it was ; some person had stopped at the brick-yard and told them of it — before the hands went to see him.</p> <p>The State next introduced John U Helton, who being duly sworn, testified as follows : He was working the early part of this year on McDonough road, making brick at Mr. Williams’ brick-yard; saw Gabriel Jones and John Cobb pass by said yard; 3mung Kent was working there; one of the boys saw them passing, spoke of it and called W’s attention to them. Saw three women pass the same day. If he saw a man pass in a vehicle does not recollect it; thinks it was the 8th of April, 1858. This all took place somewhere between 8 and 11 o’clock, A. M.; did not see Cobb and Jones come back by brick-yard. Witness worked there a little over a month ; saw Cobb and Jones out at the brick-yard once before; stayed there a while and came back to town; saw Jones and Cobb pass out on the 8th day of April, 1858: saw the body of deceased on the 9th of April.</p> <p>Cross-Examined. — He was summoned to go before the Coroner’s jury on the 11th or 12th of April, 1858 ; that was She time he first commenced thinking it was the 8th of April, 1858, Cobb and Jones passed; thinks he is positive it was the 8th of April, 1858; he recollected back when he was called before the coroner, and that makes him remember the date. Mr. Kent was hauling brick in a wheel-barrow; when lie would go after a load he would be about 20 yards from witness; were all busy at work in brickyard; Hamilton Davis, and two of the Cox’s were at work in the yard; Mr. Williams might have been there in the morning; was not there when these men, Cobb and Jones passed; Archibald Brown was there; women were ahead of Cobb and Jones; about ten minutes ahead ; looked at Cobb and Jones ; and did not see any person with them;' W. just threw his eyes out, saw them; was busy at work ; a wagon might have passed in fifty yards of these men and W. not see it, as he was busy at work. The time Cobb and Jones came out to the brickyard before, they stayed two or three hours. Witness was kilning brick at the time of the passing on the 8th day of April, 1S58. Witness was sitting on kiln, catching brick; the boys bringing brick to him had a better chance to see any one passing than W.; W’s mind was first called to the fact of Cobb and Jones passing the next day after the murder; thinks it was on Thursday they passed. When W. saw Jones and Cobb pass he just threw his eyes upon them and took them off again.</p> <p>The State next introduced James B. Lofton, who, being duly sworn, testified as follows: He had a slight acquaintance Avith Samuel Landrum ; satv him on the morningbefore he Avas said to be killed; he had on an old white hat, inclined to he smoked; inquired the Avay to Mr. Almond’s — Mr. Asmos Almond’s; did not notice his coat particularly; thinks it Avas a striped, greenish color — is not positive what the color was; did not see his vehicle; told W. he hada buggy; thinks the time he saAv him in town was between 10 and «leven o’clock; thinks Landrum was about 60 or 65 years of age; saw him when he was dying, and was the sama man who told W. in town his name Avas Samuel Landrum. You take the McDonough road and go it about six miles to turn to the right to go to Almond’s. There is a brick-yard ■on the Avay; Mr. Little also lives on the way; Gammon also lives on the route to Almond’s; pass Mr. Little’s first^ then cross a creek; the brick-yard is next; next house is Mr. Mobb’s; next place is Mr. Gammon’s house. Does not think there is any other house between that and the scene of the murder; thinks it is betAveen half a mile and a mile from Mobb’s house to the scene of murder; did not see the deceased start out of town.</p> <p>Cross-Examined. — Witness had never seen deceased before the day he was killed; thinks he might have been wit|i him an hour, or less than an hour; thinks the pockets in his coat were in the side.</p> <p>The State next introduced E. E. Mmond, who, being duly-sworn testified as follows: He is acquainted with Samuel 25. Landrum; knew him in Alabama. The last time he saw him was at the house of Aaron Garrison; he was. awfully mangled; died at his house in Fulton county; it was three and a fourth miles to where he was killed from the courthouse; he knew the deceased well; had dealings with him. It was the early part of April, 1858, he saw him at the house of Aaron Garrison; he had on a dingy, white hat — was fur; thinks he was fifty or sixty years of age; nearer sixty than fifty; saw his coat; has seen it on the deceased in Alabama; it was a dark grey ; did not notice where the pockets were; did not see him in town before he started out.</p> <p>The State next introduced Stephen Cox, who, being duly sworn, testified as follows: Was working at the brick-yard of Mr. Williams’ on McDonough road in the early part of April last; saw Mr. Cobb pass there when he was at work' there; does not know Cobb and Jones; remembers the time Mr. Landrum was killed, that is, remembers hearing of it; heard of it about the 10th day of April last; saw three young men and an old man pass the brick-yard or. the 8th day of April; it was after dinner time; never saw Crockett to know him. The four men he saw pass were going towards the mill on the McDonough road ; saw a carry-all among them; had two seats in it; had one mule hitched to it; had no top to it. There was one man in it, an old looking man; had on a high white hat; brim was mashed down; the other three men were walking along side of the wagon; saw them when they crossed the branch; stopped at the branch until the mule drank; saw a man take down the bridle reins until the mule drank; saw three women pass about half an hour before these men went on; did not see the women come back.</p> <p>Cross-Examined. — Witness worked at the brick-yardrall last summer; had worked there abouta month beforehe saw these men pass; had never seen the men he saw pass before in his life; had never seen Cobb and Jones before he saw them pass on the 8th of April, if it were them. Two young men came there sometime before and stayed about half an hour; was there every day Mr. Helton was there; has never seen the two young men, that stayed at the brick-yard about half an hour, since; does not recollect of any other two young men coming to the brick-yard while he and Helton were there; does not know it was the 8th of April he saw them pass; does not know the day of the week; it was about two o’clock he saw them pass. Mr. Helton, Mr. Brown, witness, Mr. Kent and a brother of W. were there; W. was rolling brick to the kiln; was about ten yards from the road. Kent was at the same business as W.; Kent pitched up some of the brick, and W. some; Kent was pitching when they passed. W. and Kent were near the same place. The young men were walking side of the wagon when W. first saw them; they were on this side of the brick-yard about one hundred yards; all came on down the hill together; the boys were talking to the man in the carriage; W. did not stop work; saw them all the way down to the creek; creek is this side of brick-yard. The young men crossed the creek on a foot-log ; the old man crossed in his carriage. Mr. Helton said it was Mr. Crockett that let down the bridle for the mule to drink; told him so the day they passed; it was John Helton — and W. is not mistaken about this. Has not read Crockett’s confession — heard no person read it. After they crossed the branch, the young men still walked by the side of the wagon ; saw them about one hundred and fifty yards from the branch to where they went out of sight; was at work all the time ; saw them all the time, from the time they came in sight until they went out; they were not up with the carriage when he first saw them; they were not as much as five or six steps behind the carriage — he is certain of this. The young men walked on the same side of the carriage as iar as W. could see them; went after brick while these people were passing; went more than once. In going after brick, he went from the public road. W. is perfectly certain he had eaten dinner when they all passed; is certain he is not mistaken about this mattter; finds it is easy to be mistaken about things of this sort; is certain the women passed after dinner. Mr. Williams was in the habit of going to the brick yard every morning. The men passed the brickyard on Thursday, and witness heard of the killing on Saturday. Does not know how long after the murder occurred until he heard it Swore a while ago that he did not know what day of the week these men passed ; it just comes to his mind now the reason he now knows; heard Mr. Little’s negro man tell the boys at the brick-yard the next day after the killing, about a man being killed. It was on Saturday the negro told about it at the brick-yard; there was nothing said about it the next day after the killing; all hands worked’at the brick-yard the next day after the killing. He is positive as to the above statements.</p> <p>The State next introduced Robert Helton, who, being duly sworn, testified as follows: He was working in the brickyard of Mr. Williams the early part of April last; heard of the killingjabout that time; was working in the brick-yard at the time; thinks he heard of the killing the next evening afterjt was done. The day on which it happened, saw three men and three women pass the yard ; saw an old man, with a white hat on, pass in a carriage; had a mule to it; had no top to it; the man in the carriage looked like an old man; the three men were one hundred and fifty yards behind the carriage; they were behind the carriage going out from town; saw them first after they passed the brick kiln. After they crossed the creek they were about fifty yards or more from witness, when he first saw them; did not know them ; it was next evening he heard of the murder; can see a right smart piece each way from the brick-yard ; hill on each side; you can see them farthest going from town. It was about 10 or 11 o’clock when they passed ; it was before dinner; has not seen the three men since to know them; two Heltons, two Coxes, Hamilton, Kent and Davis saw them just as they passed the brick-yard ; thinks the three men were about fifty yards from the man in the wagon, when witness saw them; the women were between the men and the wagon when witness saw them; the old man had on a white hat</p> <p>Cross-Examined. — Witness had been working at the brickyard a month or so before he saw them pass; his employment on the day was first one thing and then another; was rolling a wheelbarrow at the time they passed ; witness, Cox and Kent were at the same work when they passed; was positive it was before dinner they passed. When witness first saw the wagon, it was past the brick kiln ; the women were between the men and the wagon; the women were about thirty yards behind the wagon — the men about fifty yards; the creek is not fifty yards from the brick-yard; the creek is on this side of the brick-yard; there is no creek or branch in sight after they pass the brick-yard; thinks the wagon could go a quarter of a mile beyond the brick-yard before it got plumb out of sight; the boys were all busy at work; thinks he heard of the murder the same time John Helton heard it; thinks he was at the brick-yard when he heard of the killing ; it had rained, he thinks, alter the young men passed, before he heard of the murder; he was sometimes absent from the yard ; did not know the women who passed ; it is a public road — the McDonough road. •</p> <p>The State next introduced McDonald Davis, who, being duly sworn, testified as follows: Witness was working in Mr. Williams’ brick-yard in early part of April last; was bearing off brick; heard of some one being killed out there about that time. Thinks heard of it on Monday after it happened; thinks it was four or five days before he heard of the killingj^is acquainted with Cobb and Jones; has known them about four years; does not know Crockett; Jones and another man who they said was Crocket, came to the brickyard about a Aveek before ; saAV Jones and Cobb going out the McDonough road, and another man who looked just like the man they said was Crockett; this was on Wednesday or Thursday. Witness thinks they passed between eleven and twelve o’clock; does not remember seeing any one pass in a carriage; saw, about fifteen minutes before Cobb and Jones passed, three women pass; does not know them; it Avas before witness saAV them pass that he saAV Jones and a man they called Crockett, about a week before, when he saw them at the brick-yard; saw the three men along the road some íavo or three hundred yards; did not see them until they crossed the branch; there is a hill the other side of the brickyard ; saw them to the top of it; the women Avere ahead of theAhree men; thinks it was Wednesday or Thursday, heard of the murder the first of the next week; thinks it was Monday; saw Crockett when he was hung; saw him Avell; thinks he was the same man he saw with Jones at the brickyard.</p> <p>Cross-Examined. — Had been at work at the brick-yard as much as two weeks ; Jones was at the brick-yard only once, and then a man Avas with him who they said was Crockett; when they passed, he knew the man with Cobb and Jones was the same man he saw out there with Jones ; was Avith them. If Jones had been at the brick-yard more than once, witness had not seen him, and he Avorked there all the time. Bud Hamilton, Benjamin Bowen and witness were bearing brick; Avitness was about 20 or 30 steps from McDonough road ; the women had gone out of sight before the men came along; had been gone ten or fifteen minutes ; thinks it is about two or three hundred yards from brick-yard to where they Avent out of sight; did not see any wagon or carriage pass about that time; all the hands stopped and looked at them when they were passing; there were three women ; did not see the rvomen come back; went on at work there ; worked every day the next week that any one could work ; first heard of murder at home, then at the brickyard ; when witness heard of it deceased was not dead.</p> <p>The State next introduced Mrs. Elizabeth Brown, who, being duly sworn, testified as follows : Heard of a man being killed on McDonough road last Spring; remembers seeing a middle aged man pass in a wagon, a mule hitched to it; ■was very ordinarily dressed ; had on an old white fur hat; looked as though he was between forty-five and fifty years of age; he inquired the way of witness to Mr. Almond’s; this was on Thursday ¡ does not know the day of the month; heard of his being killed, the next day; witness’s house is on McDonough street, just out of the incorporation; witness’s house is between a half and three-quarters of a mile from Williams’s brick-yard; it was not far from 11 or 12 o’clock when she saw him pass; he had on a sort of a brown, jeans coat; the old man went on the McDonough road.</p> <p>The State next introduced J. P. Knight, who being duly «worn, testified as follows: Heard of a man being killed last Spring; does not know the day of the month; it was the first of April last; thinks he heard of it on Saturday first after the killing; saw a man on Thursday passing out in a vehicle ; thinks it was somewhere about 11 or 12 o’clock ; he was going to Mr. Almond’s, deceased said ; his wagon was a four-wheeled concern; it was what you might call a carry-all, with the top off; it was drawn by a mule ; witness thinks by a sorrel mule; he had on an old white hat — saw him on McDonough street; he was an old man, about 40 or 50 years of age; saw the man who was killed ; was the same man ; it was right at Arche Brown’s door witness saw the ■old man when he was going out.</p> <p>The State next introduced George W. Mobbs, who, being duly sworn, testified as follows: He heard of a man being killed the 8th day of April last; saw the man; was at home in the first part of the day; saw three men coming by; one had a gun; fired it off; went to work in the blacksmith shop about 11 o’clock; was watching out for Mr. Meredith Brown; heard a carriage passing or coming from out of town; stepped to the door to see if it was Brown ; saw a gentleman passing in a kind of Jersey concern; saw it was a single man riding in it; went back to work and heard another coming •; went to the door again; carriage passing; two men in it; they passed by; the mule in a trot; turned back to the fire place and discovered two men against apile of lumber near witness’s house, all going down towards McDonough; when witness saw the two men, thought one was Meredith Brown; he was stoop shouldered sorter; there was a man with him near a head taller than he was, and a good deal larger. This was about half past eleven o’clock, just before dinner; my house is something near a mile from Williams’s brick-yard, on the other side from town ; the first carriage passed had only one person in it; it was about 15 or 20 minutes from the passage of the first carriage to the second carriage ; there were two persons in the second ; it was a Jersey concern, and had no top; had one mule to each wagon passed ; it was long enough for a man to walk 15 or 20 steps from the time he saw the second carriage pass until he saw the two men on footpass; three women came by between the first and second wagon — inquired the way to Benjamin Thurmond’s ; they were the Miss Robersons; the women had passed about long enough to walk a hundred and fifty or two hundred yards; did not notice the tallest man’s clothes; dressed in dark clothing. If he ever saw Crockett it was on that day; he noticed, as he passed, his head pitched forward and his shoulders seemed to be higher than usual; can’t say whether he believes it was Crockett; the make of the shoulders and the head pitching forward, is all that makes him think it was Crockett he saw that day; knows where the body of Landrum, the deceased was found; it was three-fourths of a mile from witness’s house on the road to Almond’s.</p> <p>Cross-Examined. — It was 25 or 30 minutes from the time, the first three young men passed until the first carriage passed ; one of the carriages was a blue one and the other a black one; the blue one was ahead ; there was a plain fork in the road, leading to Rough and Ready, the other side of witness’s house; soon after he saw the second carriage pass, he saw-two gentlemen pass; one was Mr. Ed. Webb ; he lives here in town; saw the carriage found near the deceased ; it was a carriage fixed for carrying four persons; had no top; it. was pretty well worn ; the harness were worn; fixed to work one mule to it; color of it black ; thinks it had had posts, butt had been sawn off; would call it a carriage, a kind of Jersey concern; it was like the one witness saw pass his house-last ; witness is positive there was a difference in color the reason why he knows the blue carriage passed first, is because Meredith Brown’s carriage was black, and he noticed the first one passed was blue.</p> <p>The State next introduced Samuel P. Wells, who, being duly sworn, testified as follows : Heard of a man being kill-■ed on McDonough road; heard of it in a day or two after it was done; was out hunting on the 8th of April last; Mr. Landes and Mr. Crawley were with him; they passed Mr. Mobb’s house, one of the party fired off a gun near Mr. Mobb’s house; this was about 9 or 10 o’clock; went out to fish and carried a gun to kill birds for bait; turned off from theMcDonough road at Mobb’s house round his stables ; this; was on the 8th day of April last.</p> <p>Cross-Examined. — Passed Williams’s brick-yard and talked with the hands and then went on.</p> <p>The State next introduced Mrs. Salina Bolin, who, being duly sworn, testified as follows: Heard of the death of Mr. Landrum about the time he was killed; saw Jones and Cobh next morning after she heard of the murder; thinks it was Friday morning; does not know the day of the month ; they were coming from towards the grave-yard, going towards the railroad. Witness knew Mr. Jones and Mr. Crockett; this was between 9 and 10 o’clock, A. M.; did not speak to them; «ame dose to W’s house ; W’s house is near the water station ; passed outside of W’s yard; did not see any signs of ¡traveling; it was in the month of April last; about the first <of the month.</p> <p>The State next introduced James W. Clay, who, being duly sworn, testified as follows: About the time deceased was killed, saw Cobb, Jones and Crockett near his house; the house is .about three and a half miles from Atlanta, in direction of Decatur, off to the right of the public road three-fourths of a mile. When witness went up, Cobb and Jones were sitting on a log; Crockett was squatted down with a valise, tying up clothes in a handkerchief; witness and Crockett went down to witness’s house; Crockett asked Cobb and Jones to go with them; they refused; Crockett went down and took dinner; Crockett carried Jones’s and 'Cobb’s dinner to them; witness went with Crockett; as they went up to them after they ate dinner up in the woods, W. ■look the plates and went back to the house; they all three went on withW. towards the house, in about 70 yards of the ¡house; they all turned off the fence side and went towards Decatur; that is the last W. saw of them; they had two bundles of clothes in their pocket handkerchiefs; Crockett had one and Cobb one; W. carried the valise to the house; W. Is a relation of Crockett; a second cousin; thinks this was <on Friday; thinks it was in April last, the ninth of that month. No public road runs by W’s’father’s house; it was about three-fourths of a mile from Decatur road ‘where he saw Cobb, Jones and Crockett; they were on the side of the ■settlementroad; this was some time between 10 or 11 o’clock, A.M.</p> <p>Cross-Examined — They went out after dinner and struck another road; went through"a neck of woods.</p> <p>The State next introduced John S. Shipley who, being duly sworn, testified as follows: On Friday morning after the murder, saw some men coming down the road; is not acquainted with Crockett, Cobb and Jones; knew one of them was Crockett; two other men with him; just below the rolling mill they left the Decatur road or railroad. Thinks the the murder was committed on Thursday; was in Aprillast; thinks about the 8th of April the murder was committed: thinks he saw those men on the 9th; knows it was Friday morning. The other two men with Crockett he thinks were young looking men. The rolling mill is on the Georgia Railroad and on Decatur wagon road; does not think he saw them more than ten steps; one of them had avalise; thinks this one was Crockett; does not think there was any road where they turned off; it was about ten o’clock when W. saw them; knows by the train passing; they were traveling the railroad; turn to the right hand going; Decatur is on the left side of the railroad from Atlanta.</p> <p>Cross-Examined. — Thinks Cobb and Jones were with Crockett; cannot say positively that it was them. It has always been on his, W’s mind it was the Sth day of April ever since he first heard it; had heard of the murder at the time he saw them going from Atlanta; had heard it talked of by the people that they were the guilty parties. They got off on the right side of the railroad ; the public road is on the left where they got off.</p> <p>The State next introduced John D. Williams, who, being duly sworn, testified as follows: Heard of the killing on Mc-Donough road; was at work down below the Rolling Mill; thinks it was the same day he heard of the murder he saw two men on the railroad and one the wagon road. They met, passed' down beyond the Rolling Mill and took the woods; went off on the right side of the railroad, going from Atlanta; in the woods — no road; thinks they had a valise; thought it was Cobb, Jones and Crockett at the time he saw; is not acquainted with them; knows them when he sees them; was about one hundred and fifty yards from them on the morning referred to; the public road is on left sido of railroad ; the railroad does not cross it under a mile from there ; thinks it was in April: it was the day W. heard of the murder; was about ten o’clock; Mr. Shipley was with W. when he saw them; the witness who just testified. They traveled the railroad about fifty or one hundred yards after they all got together.</p> <p>Cross-Examined. — They were about the water station when W. first saw them; W. and Mr. Shipley were right together, and did not separate while they saw them; there is a crossing where they got off; goes into the woods and stops. The man with the valise came up with the other two at the Soiling Mill; got on the railroad.</p> <p>The State next introduced Coleman Ford, who, being duly sworn, testified as follows: Heard of the killing about the time specified and testified ; saw Cobb, Jones and Crockett on the 9th of April last, east of the city of Atlanta about two and a quarter miles on south side of the Georgia railroad ; were not on any public road; it was about one and a half miles from Sam’l Clay’s house; that road intersects the road going by the grave-yard; one of them had a valise; is acquainted with Jones and Cobb; was not with Crockett; thinks it was between ten and eleven o’clock, A. M.</p> <p>The State next introduced John N. Fate, who, being duly-sworn, testified as follows: Remembers hearing of the killing; saw Cobb, Jones and Crockett on the 9th day of April last; saw them at the Decatur depot,between one and two o’clock; thinks they had two handkerchiefs tied up; clothes in them ; they passed down the railroad and then took the wagon road to Stone Mountain. Is well acquainted with Mr. Crockett; has seen Mr. Cobb several times; did not know Jones at the time; now recognizes Jones ; Williamson Cobb came up ; after he came, he, W. saw the parties; Wm. Cobb and John are brothers; Jones is a cousin ; came down railroad from Atlanta; this was Friday evening.</p> <p>Cross-Examined. — Saw them go into the wagon road to Stone Mountain; noticed them particularly; passed the road some few steps; stopped, turned back and took the road.</p> <p>The State next introduced George TV. Wheeler, who, being duly sworn, testified as follows: Heard of the killing that took place last spring in this county; saw Jones and Cobb Sunday after it took place; does not know the day of the month ; they were at Mr. Jones’ brother’s house in the county of Newton ; this is about thirty-six or thirty-seven miles from Atlanta.</p> <p>Cross-Examined. — Mr. Cobb said he was indicted in Fulton county and Court was in session and he did not want to appear. By forfeiting the bond he would only have to pay eight or nine dollars; said he was going to his grand-father’s; would be back to Atlanta in three or four days; Jones said he expected to live with Mr. Dean ; said he had been thinking of it for some time; had not got off; Dean lived four or five miles from where W. saw them; said they were so lonesome they wished they had come back Sunday morning;, was coming back on Monday morning; W. was at the same place on Tuesday; they were gone; Cobb’s grand-father •íiyes near the corner of Clark county ; Jones was going to work with Mr. Dean.</p> <p>The State next introduced William P. Seioell, who, being duly sworn, testified as follows: He has seen the slung-shot exhibited in Court before; saw it last in this place last April; W. made it for a man by the name of Radford J. Crockett; made it some time in April last; don’t know the day of the month; made it at Tomlinson & Barnes’s copper shop, and delivered it to Crockett.</p> <p>The State next introduced Thomas Calloway, who, being duly sworn, testified as follows: He was in jail soon after the killing testified to in Fulton county. Jones and Cobb asked witness if they could not turn State’s evidence against Crockett; they were afraid Crockett would turn State’s evidence against them; witness told them there was away to get out of it that way; Mr. Cobb said he would know the slung-shot if he were to see it; went on to describe it; said the string it was fastened to was a piece of soft leather, instead of gum elastic; there was a. wire fixed in the sling-shot, to fasten the leather to; they described it as an eye on each side of it; did not say of what material it was made; said a man by the name of Sew-ell made it; Cobb said they left town with Crockett; went out and took dinner with a relation of Crockett’s; they •did not go in the house; Crockett brought them something to eat; they did so; went on then three miles below Decatur; Crockett Avent to his aunt’s, Mrs. Richardson; Mr. Cobb said they were sorry they left town Avith Crockett — if they had not,they Avould not have been suspected; Mr. Jones said if ever he got out of this scrape, it would be the last; that he intended to live by his labor. This conversation took place the second evening after Jones and Cobb were confined in Fulton jail, and before it Avas known Crockett was arrested. Mr. Cobb said if Crockett turned State’s evidence it would hang them; Mr. Jones said it would; says he Avould knorv the slung-shot from the description given; says the one exhibited in Courtis the one.</p> <p>Cross-Examined. — Mr. Cooper, Solicitor General, showed him the slung-shot last Aveek; did not knoAV Cobb and Jones personally before in jail; had seen them before; has been in and about Atlanta, for six or seven years; there Avere several in jail; Rice, Carter, and others; they must have heard the same; told his brother-in-laAV, Noel Inge, of what he had heard in jail; Avitness has a case in Court himself; charged Avith assault and batterry; Avas on bond and came to his case from South Carolina; .talked Avith Mr. Cooper first, after he Avas subpoenaed; Cobb said he had seen the slung-shot, and would knorv it if he were to see it; Avitness never described the slung-shot before he saw it; the first time witness saw the slung-shot exhibited in Court, he recognized, it as the one described by Cobb ; Avitness examined very particularly when he first saw it, and his mind came to the conclusion it was the one described by Cobb in jail.</p> <p>The State now tendered in evidence the above mentioned slung-shot, but on objection from the prisoner, the Court rejected it as not being such an instrument of evidence as had to be formally tendered and submitted to a jury, as in the case of a deed or bond.</p> <p>The State next introduced JR. W. Craven, who, being duly sworn, testified as follows: On the day the murder was committed, he was out in the direction of the same; left town about one o’clock; does not recollect the day of the month or week; thinks it was on Thursday; not positive^ thinks he heard the murder was committed late the same evening. He rode out, went on, after passing Mr. Mobbs’s a half mile or three quarters, saw a mule standing beside of the road ; passed by; went down and saw the man Perkins ; they went to see, and came on back; saw the mule as they came on back near Mr. Gammon’s; the mule had on the forepart of the harness; the breeching was gone; the chain® were dragging the ground ; the lines were dragging on the ground; it was a pale bay or sorrel mule; where witness first saw the mule was about three-fourths of a mile from Mr. Mobbs’s house. It was not attached to any vehicle when: witness first saw it; the time of day when witness first saw the mule was about two o’clock; knows this because it was about four o’clock when witness got back to Atlanta; heard of the murder that evening after he came in town; it was six miles to where witness went in the country; this was on the McDonough road.</p> <p>The State next introduced Gen. Eli McConnell, who, being duly sworn, testified as follows: Says he is principal keeper of the Penitentiary ; has been holding that office during the time that Cobb and Jones were confined in the Penitentiary for safe keeping; (letter handed to witness,) says he received it the latter part of May; when witness opened i£ he found the body of it addressed to Cobb and Jones; when lie found the letter was addressed to these men with a note to witness he took the letter and went to the Penitentiary; read the letter first to Mr. Cobb; also read the note addressed to witness, on the letter; after he had read the letter to Cobb, witness stated to Cobb, you see now what this man Crockett has written to you and witness, observed he had no motive only for your good, and that witness having no motive himself only to give Cobb’s answer to it; witness then asked him what he had to say in reply. His reply was that he should make no confession; thinks the exact words used by Cobb in reply were, I wont confess. (The letter was then read to the jury.)</p> <p>The following is a copy of said letter:</p> <p>Atlanta, May the 27 1858.</p> <p>Hear friends i noxv take this opportunity of dropping you a few lines to inform you that i am well at present — Gabe i would like to see you and John very much but i dont gess i will ever see you any mor as my time is close at hand to go but i hope i will meet you in a better world than this. Gabe i want you to send me word how you are a getting on and if you think god has forgave you yet al of your sins and whether you intend to try to meet me in heaven or no. Gabe i think if you will come out and make a full confession of the murt der of Landrum and look to god for mercy you would be better satisfied if you dont you can never get to heaven i dont think Gabe if i could get out of Jail and be free- by giving up my hope in the Lord and my chance for heaven, i would not do it if you had the love and fear of god in your heart i think you would not give it up for the sin ful world and all that is in it religion is worth a thousand such worlds as this religion is a fortune and heaven is a home yes and a’ happy one two the Lord ses seak me with your hoal hart and you shal find me pray with your hoal hart an you shal nevr die but heve eturnal life You think of the owful torements of hell you will then turn to god i think and try to seak a home in heaven Gabe you and John may think that i am just a trying to get you to confess so that you will be hung: but it is not so if it was in my power to turn you loos or clear you i would do iti no that you will both be hung there is na ■chance for you to escape it if you had staid here you would have ben hung without any trial i only want you to try to serve god and prepare for a better world while you have got the chance i think if you will study on it you will think that i am giving you good advice Gabe i would like to no that i would meet you and John in heaven I remain yours until death</p> <p>RADFORD J. CROCKETT.</p> <p>To the principal Keeper, I received your letter and was .glad to hear from the boys i was thankful to you for the information y gave me of them read this letter to them if you please and see if it wont have some effect on them and which it seems to take the most effect on and talk with them and tell them to answer my letter and write to me what they say or whether they seem to not wan to talk about it or no write to me how they are getting on you rote that Gabe was sick write how he is rite as soon as possible I remain yours with respect RADFORD J CROCKETT</p> <p>Cross-Examined. — At the time Cobb made this reply witness was his keeper in the Penitentiary; unlocked the cell and went in to him; after reading the letter to Cobb, he kept it in his possession; does not know how it came here.</p> <p>The State here closed.</p> <p>The counsel for the defence then introduced Jacob Carter, who, being duly sworn, testified as follows: Was subpoenaed iri this case to-day; was confined in Fulton county; was in about the spring Term of the Superior Court; was in jail when Cobb and Jones were put in jail; they were committed to jail on Tuesday evening about sun down; Powell Rice and Thomas Calloway were in jail with witness, before Jones and Cobb were put in ; we three were together before they were put in; Jones and Cobb were confined in the cage with us; did not hear anything said to Cobb or Jones or any conversation with any other person in reference to the murder of Landrum; did hear Calloway say to Jones and Cobb about Tuesday night of (he same day they were put in;, never heard but one conversation between them; we were all in the cage together; Powell Rice was lying down ; don’t know whether.he heard it or not; the other four were sit-sing up; Thomas Calloway told Cobb to turn State’s evidence against Crockett, and John Cobb told him he didn’t know anything to turn State’s evidence for ; Calloway then asked Gabe Jones what he thought about it; Gabe Jones told him he did not know anything to turn State’s evidence for; that is all witness knows; there was nothing said about a slung-shot or a sling-shot on fhat occasion or at any other that witness heard; there was nothing said about Jones and Cobb leaving Atlanta with Crockett; nothing said about their traveling together.</p> <p>Cross-Examined. — Says he is about twenty-six years ©f age; does not know (he day of the month or year he, witness, was put in jail; has gota good memory, and is perfectly positive that he did not hear any conversation between Calloway, Jones and Cobb; says he was put in jail on Monday; knows that Dink Carlton was not in jail when witness was in jail; thinks he knows this month is October; thinks last month was December; March, May, June, July, November, December and August; these are all the months-witness knows of in a year and can name; Cobb and Jones were put in about a half an hour by sun on Tuesday evening, and is certain that the conversation Calloway had with Cobb and Jones, was on Tuesday evening; he cannot instance anything that impressed it on his memory that it was Tuesday the conversation ; thinks it was about nine or ten o’clock the conversation took place; is positive it was dark and they had no light in the room; it was perfectly dark in the cage; had a little talk with Cobb and .Jones; nothing about the difficulty; had no conversation with Powell Rice; just talked backwards and forwards; witness did not talk any with Cobb and Jones on Wednesday; saw Wm. Cobb this morning at W’s mother’s house; was coming to town with him and met McDonald the constable; came on with him; is positive Calloway did not have any other conversation than the one he testifies to with Cobb and Jones; witness came in town about eleven o’clock; eat dinner at old man'Cobb’s; Wm. Cobb passed as his son ; witness don’t know the reason why he was turned out ot jail; had sometimes one meal in jail and sometimés two.; had but one meal on Monday; that was Monday night; eat two meals on Tuesday, and one on Wednesday; did not mention to any one what his testimony would be at any time; not a single soul until he went on the stand ; no person has conversed 'with him to-day; or at any time before to-day in regard to his testimony, and he knows he is right; no lawyer or any . other person.</p> <p>Counsel for the defence next introduced Mrs. Missouri Cobb, who, being duly sworn, testified as follows: She is the mother of the prisoner; her. son left on Friday the 9th of April last; prisoner was at home the day before at twelve o’clock on Thursday, dined at twelve o’clock; Savannah, Missouri, Eveline and old man and prisoner at witness’s, were at dinner that day; when she says twelve o’clock she is governed by a clock and the Georgia Railroad shop bell; those that work out come home at that hour, twelve o’clock, and dinner is always ready; lived on Collins street, on the East side of the Georgia Railroad ; Mrs. Thurman and Mrs. Craven were witness’s nearest neighbors; it was the forepart .of the day prisoner left witness’s house; he left for Skull Shoals; don’t recollect what he said he was going for; did not state what he was going for; said he was going down there on account of a womán; never saw prisoner any more after he left for Skull Shoals until now in the court house.</p> <p>Counsel for defence next introduced Savannah Cobb, who, being duly sworn testified as follows: Says she is a sister of ihe prisoner; he left her father’s house on the 9th of April last; the day before that at dinner, mother, father, sister, brother, and self and prisoner; twelve o’clock generally is the dinner hour; are. controlled by a time piece and the Georgia Railroad bell; has uot seen her brother since he left on Friday morning till now; heard him say he was going to-Skull Shoals; the inducement to go was on. account of a letter he received from a woman ; he received the letter on the 8th of April last, and started the next'morning; does not ■recollect the hour; those that work come in about twelve o’clock, and they have dinner about that time; controlled by a clock and a bell.</p> <p>Counsel for- defendant next introduced A. B. Love, who being duly sworn, testified as follows: He is the Sheriff of Fulton county; was at- the last Term of the Court; Crockett, Jones and Cobb, were not in the court-house during last Court together; all of them were in the court-house, but' thinks on different days.</p> <p>Counsel for defence next introduced Elkannah Bean, who, being duly sworn, testified as follows: He lives in Newton county, hear Jasper Jones, about six miles from him; he is a brother of Thomas Jlones; Gabriel- Jones was under an engagement to be at witness’s house on the 1st to the 15th of April, 1S58; witness hired him for four months ; the contract was made the last of March, of the present year; is second cousin to prisoner and to Gabe Jones.</p> <p>Cross-Examined. — John Cobb, Jr., was not under any. obligations to be at witness’s house at the first of April last; Inrows where Skull Shoals are; would, go on by Covington to go there; Jasper Jones lives some 8 or 9 miles from Conyers’ Station; there is a fork in the road at Conyer’s, near Dr. Steward’s; Jasper Jones’s house is not on the most direct ¡route from here to Skull Shoals.</p> <p>Counsel for defence next introduced Buhe II. Brannon, who being duly sworn, testified as follows: He arrested Jones and Cobb on Monday evening, after Landrum was reported killed; arrested him at the crossing this side of the depot at Decatur, near Mr. Wilson’s; Jones and Cobb were coming this way, towards Atlanta.</p> <p>Cross-Examined. — John Cobb looked very bad when witness arrested him; he looked like a dead man ; his countenance changed when we arrested him ; his countenance changed; he looked very much alarmed; when witness first saw them they were coming out of a woods pasture; witness concealed himself when he saw them; they were near the crossing when arrested; when witness first'saw them they were about half a mile off; there was no person with them; they were coming by themselves; it may be half a mile from depot at Decatur, to where they arrested them, or more or less.</p> <p>Counsel for 'defence next introduced .Anderson Powell Rice, who, being duly sworn, testified as. follows: Was in. jail last April; Mr. Carter, Mr. Jones, Mr. Cobb and Mr. Calloway; does not. recollect the day Jones and Cobb were put in; all were together in the same cage; did not hear any conversation between Jbnes, Cobb and Calloway, in regard to turning State’s evidence; heard nothing about the death of Landrum; did not hear anything in reference to a slung-shot; did not hear anything about Jones and Cobb having left with Crockett; Mr. Calloway was put in jail with witness; don’t know how long they were in before Jones and Cobb; Calloway and witness went in together and came out' together.</p> <p>Cross-Examined. — Witness was put in jail the second week o'f Court; staid in there about.three days; does not know how long it was after witness was putin until Cobb and Jones were put in; witness did not have any conversation with them, or any others of them about Crockett and Landrum; does not remember any conversation had the night they were put in ; did not pay particular attention to all the talk had in jail; Cobb and Jones might have talked, and he, witness, not heard; never talked about the Landrum killing none at all; no talk in jail about nothing of that kind; it was in the month of April, 2d week of Court, as well as witness recollects; never heard any thing of the Landrum killing until he came out jail; never knew what Cobb and Jones were putin for; don’t know that he did hear all that was talked about in jail; knows Jacob Carter, was in jail with him, in same cell; did not hear Calloway advise Cobb and Jones to confess the night after they came in ; on Sunday, before witness was put in jail, was at home,4 miles from town; was not in town any the week before he was putin; he, witness, staid about the Court-house nearly all day the day he was put in jail; there was quite a crowd around the court-house that day; did not hear anything the day he was about the court-house, about the killing of Landrum, or any other man; was put in jail on Monday; came out on Wednesday or Thursday; bailiff found witness at his father’s to-day; nothing said to witness by Cobb and Jones about confessing; could not swear they did not say something about it to Calloway; the cage is about 8 feet wide. The defence here closed.</p> <p>On closing the examination of each of the following named witnesses, James Hill, Josiah Gammon, Lawrence Hutchings, and Willis F. Westmoreland, and at the close of the direct examination of Silas B. Kent, and before said witnesses respectively left the stand, the Court, at the request of the Solicitor General, and against the objection of defendant, permitted the notes of their evidence which, had been taken down by an amanuensis, appointed by the Court but not sworn, which notes the presiding Judge himself had never read, to be road over to said witnesses respectively, (his own evidence to each witness,) in the presence and hearing of the jury, for the purpose of having the witnesses to say whether their evidence was taken down correctly or not, and having them to point out any alteration or addition that might be requisite to make the said notes conform to the eviHence as actually delivered. And the Court, in each instance, allowed the witness to assent, in presence of the jury, to the correctness of the notes as they were read to him, either by his silence, or by a general “yes,” or if he (the witness) thought them incorrect, to have them altered or added to, till he (the witness) could endorse them. To all which reading, assenting to, and altering said notes, in the presence and hearing of the jury, the defendant objected in every instance as soon as the reading was proposed, and the Court, in every case, overruled the objection. And to which several decisions of the Court overruling said objection and permitting said notes to be read, assented to as correct, or altered, the defendant excepts, and assigns the same for error.</p> <p>When the slung-shot was exhibited to Willis F. Westmoreland, as stated in the foregoing notes of his evidence, and the witness was asked if he thought such wounds as some of those he had described, could be caused by such an instrument; defendant objected to his expressing any opinion on that point to the jury. The Court overruled the objection and permitted the witness to give his opinion as evidence; to which decision of the Court the defendant excepts, and assigns the same for error.</p> <p>During the examination of Thomas Calloway, by the Solicitor General, he was asked whether if he were to see the slung-shot, described to him by Cobb, he thought he would recognize it from the description ? He said he would. The slung-shot, in Court, was then shown to him. Defendant objected to his stating whether or not this was the one Cobb described. The Court overruled the objection, and permitted the witness to state that he recognized it from the description given by Cobb; and to this decision of the Court, defendant excepts, and assigns the same for error.</p> <p>When Eli McConnell was on the stand, and after he had stated all the facts set forth in the foregoing notes of his evidence, down to where he asked Cobb what he had to say in reply, (the letter referred to by the witness having also been read over to the Court,) defendant moved the Court to exclude any evidence of the reply, on the ground that said reply, if tending to criminate the defendant, was rendered inadmissible by the circumstances under which it was made, and by the improper influences brought to bear on defendant’s mind, through the letter and statement of witness as to Crocket’s motive in writing, &c. The Court overruled this motion, and permitted the reply to go to the jury as evidence, and to this decision of the Court defendant excepts, and assigns the same for error.</p> <p>As soon as the reply as testified to by McConnell, came out, defendant moved the Court to withdraw the same from the jury, together with all the previous statements of said witness, on the ground, 1st, that the reply was no confession, but a refusal to confess; 2d, that if a confession or in the nature of a confession; it was not legal evidence for the same reasons before urged against its admission. The Court overruled this motion also; and to this decision of the Court defendant excepts, and assigns the same for error.</p> <p>When the letter referred to by McConnell, a copy of which is above inserted, was offered in evidence by the State, defendant objected to its being read to the jury; 1st, because there was ho proof whose letter it was, or by whom written; ad, because the contents were illegal testimony, and wholly irrelevant to the issue. The Court overruled the objection, and permitted the letter to be read to the jury, (without any proof, whatever, of its execution,) to which ruling of the Court defendant excepts, and assigns the same for error. The Court admitted the. letter for the sole purpose of explaining the import of Cobb’s reply to McConnell, and so charged the jury.</p> <p>Notwithstanding the slung-shot had been offered in evidence, and ruled out, as stated in Üre notes of the evidence, the Solicitor General, in his concluding argument to the ju*y, brought it before them, and holding it up in their presence said, it was a witness in the case, and commented upon it as such, alleging that it proved divers material facts, and especially the fact that Cobb and Crockett were together on the day of the killing. To this course of the Solicitor the defendant at once objected, and called upon the Court to. prohibit it, but the Court declined to interfere, holding thal the Solicitor might exhibit the weapon to the jury, it having been frequently exhibited and identified in their presence before, and saying that the calling it a ivitness was a mere matter of taste. To this ruling and refusal of the Court the defendant excepts, and assigns the same for error.</p> <p>The Solicitor, after this decision of the Court, persisted in displaying said slung-shot to the jury, and remarking upon it as abova</p> <p>Arguments having been closed, the Court charged the jury, among other matters, as follows:</p> <p>Gentlemen oe the Jury: — You have been often reminded, during the progress of this trial, of the importance of the cause committed to you, and I again remind you that it is a case of most momentous importance, both to the State, and to the accused. To the State, because society is deeply-interested in the maintenance of the majesty and dignity a»ff the laws, and the protection of its citizens. For neither yow or I have any security for our lives, our liberty, our reputations, or our prqperty, except in that law which spreads the broad shield of its protection over us, as well in our defenceless slumbers, as while pursuing our daily avocations. To the accused, because, with him, it is a question of life or deatb, or of liberty or imprisonment.</p> <p>But important as the issue is, it is to be determined like every other question of fact — by the evidence detailed from the stand ; and however momentous the results may be to the State, or to the prisoner, when 3ou have discharged your duty according to your oaths, and your consciences, you) are no further responsible for consequences.</p> <p>You have been cautioned against the influence of popular prejudice. After the oaths you have taken, I will not insult you by presuming the possibility that your verdict can be influenced either b}r prejudice on the one hand, or misplaced sympathy on the other.</p> <p>Three defendants were jointly accused in this bill of indictment — Radford Crockett, Gabriel Jones and John Cobb, Jr. The case of Crocket has been disposed- of. The other iwo defendants have severed in their trial, as was their right, •and John Cobb is now alone on his trial, and his guilt or innocence is the only issue to be determined.</p> <p>The prisoner is charged with the murder of Samuel Landrum, on the 8th day of April, 1868, in the county of Fulton, and upon the State rests the burden of establishing it by proof. The law presumes every man innocent, until he is proven guilty. It clothes him with a mantle of innocence which can be stripped off only by proof, and such proof as convinces the mind beyond a reasonable doubt.</p> <p>Murder is defined to be the unlawful killing of a human being in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied. Express malice is that deliberate intention to take the life of another which is manifested by external signs ■capable of proof, such as lying in wait, previous threats, or the like. And malice is implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart. Where the homicide is proven to have taken place by violence, the Saw presumes malice, unless the circumstances show the absence of it.</p> <p>In this case, it is unnecessary to charge you upon the lower-grades of homicide. There can be no intermediate verdict between that of guilty of murder, and that of not guilty. If the prisoner is not guilty of murder, he is guilty of nothing; and whether he is guilty or not, it is to be determined by the evidence — the only way known of arriving at truth in judicial investigation.</p> <p>Evidence is distinguished into two kinds — -positive, or direct, and presumptive, or circumstantial. Positive testimony is, when a witness speaks directly from personal knowledge of the principal fact to be proven. Circumstantial evidence is, when the witness does not testify to having witnessed the main fact, but to circumstances tending to prove the existence of the main fact. By way of illustration, .suppose that, in a charge of murder, a witness swears that he saw the fatal blow inflicted; that would be positive testimony. But in a case when a dead body has been found, with marks of fatal violence upon it, and no witness saw the deed perpetrated, but A. testifies to the fatal character of the wounds; that is one circumstance. Another witness swears to the finding the bloody instrument of death in close proximity to the body; that is another circumstance. A third witness proves (hat he saw the accused in the immediate neighborhood of the killing, about the time it must have taken place, and a fourth identifies the instrument found, as having been recently in the possession of the accused; this is presumptive, or circumstantial evidence, and affords either a violent or a weak presumption of the truth of the principal fact, to-wit: the guilt of the accused, in proportion to the number of the circumstances — their character — their connection with each other, and their probable relation to the main fact.</p> <p>It matters not by which of these kinds of testimony a fact is established, provided it is sufficiently convincing in its character to authorize a jury to find the fact true. And, perhaps, the best test of the weight of evidence, whether positive or circumstantial, is the impression it makes upon the minds of reasonable and prudent men. Many kinds of offences can rarely be proven in any other way than by circumstances — such as forgery, arson, and secret assassination, are usually perpetrated in darkness, and with all the precaution of cunning to hide them. Now, one isolated circumstance may afford but very slight indication of guilt, but, connected with others, it may assume a very grave importance ; and one circumstance may explain another. To illustrate this idea: suppose that a human body is discovered with an .incised-wound in a vital part. Now, if it should he proven that a certain individual was seen close to the scene of the 'killing, near the time at which it must have taken place, that would boa circumstance indicating that this individual was the slayer'; but by itself, it raises too slight a probability to authorize bis conviction. But, suppose, further, that a bloody knife were found near the body, with a blade corresponding to the width and depth of the wound, and identified as' the property of this individual Then the first circumstance mentioned, though by itself affording but a slight presumption, when connected with the second, assumes a much graver character; and every additional circumstance, tending to the same point, increases •the force of the presumption until it may amount to absolute conviction. But the circumstances, to authorize a conviction in a criminal charge, ought to be such as to satisfy . the mind to a reasonable - certainty — such as to exclude all other reasonable hypothesis than that of the guilt of the .accused ; for if you can, taking all the circumstances to be true, reasonably account for the killing of Landrum in any other way than by the agency of the accused,you are bound, to do so; but if you believe them to be proven true, and cannot make them consistent with his innocence, you must find him guilty.</p> <p>The Court having laid down these general principles of law, it is for you to apply them to the facts of this case.</p> <p>The first inquiry will be, “ has a homicide been committed?” “Is Samuel Landrum dead?” “What caused his death?” “■ Did he die by the act of Providence, by his own hand, or by the hand of violence ?” “ if he met a violent death, who was the guilty agent?” “ Was it the prisoner at the bar?” And in this connection, I lay down another legal proposition: Where two or more persons, actiug together with a common intent and purpose, arc present at the commission of a crime, though the deed may be wrought by the hand of one alone, all who are-present, aiding, abetting, or giving countenance to it, are alike guilty. The law makes no distinction between them. And if Cobb and Jones and Crockett were all present at the killing of Landrum, acting together with joint purpose and intent, it makes no difference b}r whose hand the fatal blow was inflicted; they are all equally guilty of murder.</p> <p>Taking these rules for your guide — and you are judges of the law as well as of the fact — is John Cobb, Jr., guilty, or is he not guilty ?</p> <p>A good deal of argument has been had upon the discrepancy between the witnesses in this case. When an apparent discrepancy exists between the testimony of different witnesses, it is the duty of a jury to reconcile the whole together, if it can be done, so as not to impute perjury to any one. And when witnesses agree as to the important fact testified to, slight discrepancies in the collateral attendant facts, afford no ground to discredit them. For instance, suppose the important fact to be proven is, whether a certain man passed along a certain highway on a given day. Half a dozen witnesses might see him pass, and all differ as to the time of day he passed — the color of his clothes, the persons who preceded or followed him; yet, if they all agreed as to the main fact, there would be no reason to discredit their veracity.</p> <p>I am requested to charge you upon the subject of positive and negative testimony. It is a rule, that a witness swearing positively to a fact is to be believed in preference to many who swear negatively to the same fact; that is, that they did not see it. To give a familiar illustration: If the twelve jurors in that box were in a certain room in which there was a clock, and after coming out, the question should be raised, whether the clock struck a certain hour while they had been, there; if three were to swear that they heard it, and the other nine that they had not heard it, the three must be believed rather than the nine; but, if they had all gone in there, for the purpose of ascertaining whether the clock would strike at a certain hour, and all equally attentive, then the testimony of all would be positive.</p> <p>The charge of the Court has also been invoked upon the subject of confessions.</p> <p>The rule of law is, that evidence of confessions is to be received with great caution. This salutary rule is founded on our experience of the infirmity and uncertainty of human memory. A witness testifying to a confession may not have heard it distinctly. The loss of one word may change the import of a whole sentence. The witness, if he hears it distinctly, may not remember it accurately. For these reasons, it would be very unsafe to convict, on a confession alone, uncorroborated by other proof. The same principle applies to a response made by an accused, to the declaration of another. The letter purporting to have been written by ■Crockett, (and it matters not whether written by him or not,) was admissible, not to prove any fact asserted in it, but for the purpose of ascertaining the import of the response made to it, when read to him, and for no other purpose.</p> <p>Taking, now, these rules of law, and applying them to the facts of this case, are your minds satisfied, beyond a reasonable doubt, that the prisoner is guilty ? If they are, it is your duty — your sworn duty — by your verdict, to find him so. If they are not, it is equally your sworn duty to find him not guiltj'’. By a reasonable doubt,is meant sucha doubt as, arising from the evidence, would fasten upon the mind of a reasonable man, and prevent his coming to any settled conclusion. Absolute certainty is not attainable by any mode of human investigation. A reasonable certainty is all, therefore, that it is possible to attain to.</p> <p>And now, gentlemen, the case is fully committed to your hands, and it remains for you to discharge your part of this important duty, and I doubt not that you will discharge it fearlessly and impartially.</p> <p>Three defendants were indicted by this bill of indictment, Crockett, Jones and Cobb; Crockett’s case has been disposed of and Jones is not on trial. The issue therefore, for you to try is, “is John Cobb, Jr., guilty of the murder of SamueB Landrum,” and you have nothing to do with the guilt or innocence of any one else at present; and prisoner by his counsel excepted.</p> <p>Murder is the killing of a human being in the peace of the-State, by a person of sound memory and discretion ; with malice aforethought, express or implied — this definition was repeated three times; and prisoner, by his counsel, excepted. The Court then gave the definitions of malice, express and implied, and remarked, where the homicide is proven to have taken place by violence, the law presumes malice, unless the circumstances show the absence of if; and prisoner by his counsel excepted. The Court proceeded, “ in this case it is unnecessary to charge you as to the lower grades of homicide; there can be no intermediate verdict between guilty of murder and not guilty. Whether he is guilty or no£ can be determined by the evidence alone;” and prisoner by his counsel excepted.</p> <p>The Court, in explaining to the jury the difference between positive and circumstantial evidence, and in telling them what circumstantial evidence was, and what weight ought to be given to it, used this language : “ If, in a charge of murder, a witness swears that he saw the fatal blow inflicted, that would be positive evidence. But in a case where a dead body has been found, with marks of violence on it, and no witness saw the deed perpetrated, but A. testifies to the fatal character of the wounds, that is one circumstance. Another witness swears to finding the bloody instrument of death near the body, that is another circumstance. A third witness proves that he saw the accused in the immediate neighborhood of the killing about the time it must have taken place, ánd a fourth identifies the instrument as having been recently in the possession of the accused — this is presumptive evidence and affords either a violent or weak presumption of the principal fact, to wit: the guilt of the accused in proportion to the number of circumstances, their character, their connection with each other, and their probable relation to the main fact;” and prisoner by his counsel accepted.</p> <p>The Court said it was immaterial by which of these kinds of evidence a fact is established, provided it is so convincing as to authorize a jury to find the fact true, and perhaps the best test of the weight of evidence, perhaps better than all technical rules, whether the evidence is positive or presumptive, is the impression it makes upon the minds of reasonable and prudent men ; and prisoner, by his counsel excepted, ánd excepted to the next sentence of the ch arge, to wit: many kinds of offences can rarely be proven otherwise than by circumstantial evidence, such as forgery, arson and secret assassination, arc usually perpetrated in darkness and with all the precaution of cunning to hide them.</p> <p>The Court said, “the circumstances, to authorize a conviction on a criminal charge ought to be such as to satisfy the mind to a reasonable certainty, such as to exclude every reasonable hypothesis, other than the guilt of the prisoner. For if you can, taking all the circumstances to be true, reasonably account for the killing of Landrum, in any other-way than by the agency of the accused, you are bound to do so, but if you believe them proved true and cannot make them consistent with his innocence, you must find him guilty; and prisoner by his counsel again excepted.</p> <p>The Court said, when two or more persons, acting together with a common interest and purpose, are present at me commission of a crime, though the deed may be done by the hand of one alone, all who are present, aiding or abetting or giving countenance to it, are alike guilty; and prisoner by his counsel exeepted.</p> <p>The Court further said, when an apparent discrepancy exists between the testimony of different witnesses, it is the duty of the jury to reconcile the whole together, if it can be done, so as not to impute perjury to any one. And when witnesses agree as to the important fact testified to, slight discrepancies in the collateral attendant facts, afford no ground to discredit, them. For instance, suppose the important fact to be proven is, whether a certain man passed along a certain highway on a certain day, half a dozen witnesses might see him pass, and all differ as to the time of day he passed, the color of his clothes,the'personswho preceded or followed him, yet if they all agree as to the main fact, there would be no reason to discredit theirveracity — such discrepancies are of no consequence at all; and prisoner by his ■counsel excepted.</p> <p>The Court proceeded : I am requested to charge you upon the subject of positive and negative testimony. It is a rule that a witness swearing positively to a fact, is to be believed •in preference to many who swear negatively to the same fact — that is, that they did not see it. To give a familiar ■illustration. If the twelve jurors in that box were in a certain room in which there was a clock, and after coming out, a question should be raised as to whether the clock struck a ■certain hour while they had been there, if three were to swear that they heard it, and the other nine that they did not hear it, the three must be believed rather than the nine. But if they had all gone there for the purpose of ascertaining whether the clock would strike at a certain hour, and all ■equally attentive, then the testimony of all would be positive ; and prisoner by his counsel again excepted.</p> <p>The Court then charged the jury, that the evidence of a ■confession ought to be received with great caution, and that the letter purporting to have been written by Crockett, was admissible, to show the purport of Cobb’s reply, and nothing more; and then closed by saying, taking these rules of law, and applying them to the facts of this case, are your minds satisfied beyond a reasonable doubt, that the prisoner is guilty? If they are, it is your duty — your sworn duty — to find him so. If they are not, it is equally your sworn duty to find him not guilty. By a reasonable doubt, is meant, such a doubt as arising from the evidence, would fasten upon the mind of a reasonable man, and prevent its coming to any-settled conclusion. Absolute certainty is unattainable by any mode of human investigation — a reasonable certainty, is all, therefore, that it is possible to attain to; and prisoner by his counsel again excepted.</p> <p>The jury retired, and returned a verdict of guilty.</p> <p>Afterwards, upon a day during said Term, a motion for a new trial was made by the defendant, upon the following grounds:</p> <p>1st. Because the Court erred in permitting the letter signed', R. J. Crockett, to be read to the jury, as evidence.</p> <p>2d. Because the Court erred in admitting in evidence, the declarations of defendant, made in the penitentiary, as testified to by Eli McConnel.</p> <p>3d. Because the Court erred in -overruling the motion of defendant’s counsel, to strike out, and withdraw from the jury, all the evidence of Eli McConnel.</p> <p>4th. Because the Court erred in charging the jury that murder is the killing of a human being in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either expressed or implied.”</p> <p>5th. Because the Court erred in saying to the jury, that the evidence justified him in giving them in charge the rule;' that when two persons do an act with a common intent, it is immaterial by which the blow was stricken, provided the other is present, aiding, abetting, or giving countenance to the act.</p> <p>6th. Because the Court erred in charging the jury, that they had nothing to do with the guilt or innocence of any person except the individual on trial.</p> <p>7th. Because the Court erred in charging the jury, that discrepancies in evidence or between witnesses, were of no consequence, unless they were upon the main fact.</p> <p>8th. Because the Court erred in instructing the jury, that there was a common sense rule for determining the weight and sufficiency of evidence, better than all technical rules.</p> <p>9th. Because the Court erred in allowing its notes of the evidence of James Hill, Josiah Gammon, Lawrence Hutch-ins, Willis Westmoreland and Silas B. Kent, to be read over, in the presence and hearing of the jury, before said witnesses retired from the stand.</p> <p>10th. Because the Court permitted the Solicitor General, to bring before the jury the “slung-shot,” while making the concluding argument, and speak of it as a witness, when it had previously been offered in evidence and ruled out.</p> <p>11th. Because the verdict of the jury was contrary to evidence, and the decided weight of evidence, and contrary to Law.</p> <p>12th. Because Peter Ball, was an incompetent juror, having said before he was impanneled, that if he was a juror in said, Cobb’s, case, he would stay there until he rotted but that he would find him guilty.</p> <p>13th. Because Jackson Jett, was an incompetent juror, having made declarations previous to his being impanneled, to the effect, that he would, if on the jury, be certain to find the prisoner guilty.</p> <p>14th. Because the Court instructed the Sheriff, previous to the trial, to direct the different Constables of the county, to summon tales jurors for said trial, and the said Constables did accordingly summon a large number of the tales jurors who were put upon the prisoner.</p> <p>The affidavits of Jno. W. C. Evans, in support of the 12th ground, of Wm. Kile, in support of the 13th ground, and the affidavit of Jno. Cobb, Jr., that he was ignorant of the facts sworn to by them, until after verdict, were submitted by the prisoner: (which affidavits charged as set forth in said grounds.)</p> <p>The affidavit of Peter Ball, denying the charge as to himself, and of Jackson Jett, denying the charge as to himself, and the affidavits of Wm. Markham, James L03M, W. W. Jtoak, et al, ,to the effect, that they were acquainted with the character of said John W. Evans, and would not.believe him upon oath in a Court of Justice, were submitted on the part of the State. (And which said affidavits were made a part of this bill of exceptions, and certified by the Clerk to the Supreme Court.) Prisoner by his counsel, proposed to show by witnesses, that Jno. W. Evans, was worthy of belief on oath, and the Court said, if that were done it would leave the oath of Jett against the oath of Evans, and Evans’s character still doubtful, and therefore, ho would refuse it; and prisoner by his counsel excepted.</p> <p>- Jones, made oath in open Court, that William Pucket had informed him, that he heard said Jett say, before said trial, that if he were caught upon the jury, he did not see how he could get around hanging the boys— meaning prisoners; and that said Pucket had been taken violently ill, since said trial; that he had gone to get his affidavit; that Pucket had a spasm, and that the Physician attending on him, said he was not in a proper condition to give an affidavit. One of defendant’s counsel stated the same thing as lo Pucket’s illness and inability to give an affidavit. This was on Monday morning, and the Court postponed the mo-lion, and gave defendant’s counsel until the next Monday to procure the affidavit of Pucket.</p> <p>The Court proceeded on Tuesday morning to hear and determine the motion for a new trial, further time to procure Puckei’s evidence not being asked for, and no evidence offered that he was still unwell, and after reading the affidavits on file, and hearing argument, overruled said motion, and refused the new trial; to which refusal defendant excepts, and assigns the same for error.</p> <p>And now the said defendant on this, the twenty-second day of November, 1858, being within thirty days after the adjournment of said Court, tenders his bill of exceptions, and. says the Court erred.</p> <p>1st. In all the several orders, decisions, rulings, overrulings, and other matters hereinbefore excepted to.</p> <p>3d. In charging the jury as hereinbefore set forth, and. specifically excepted to; and in the whole charge as given to the jury, and in every part thereof.</p> <p>3d. In refusing a new trial, and in overruling defendant’s motion for the same.</p> <p>4th. In not suspending the decision of said motion for a new trial, for the purpose of giving the defendant an opportunity to procure Pucket’s affidavit, and bring forward evidence in support of the credibility of John W. Evans.</p> <p>And as the facts aforesaid do not appear of record, the said, defendant prays that this, his hill of exceptions, may be signed and certified in terms of the law, &c.</p> <p>CLARK & LAMAR,</p> <p>A. W. HAMMOND & SON, .</p> <p>OVERBY & BLECKLEY,</p> <p>Defendant’s Attorneys.</p>