Volume 28 — Georgia Reports

In Equity, from Henry county. Decision by Judge Cabaniss, at chambers, 30th April, 1858. This bill was filed by the plaintiff in error to enjoin the collection of a note given by the plaintiff in error to defendant’s administrators.

Indictment for bastardy, from Henry county. Tried Before Judge Cabaniss, at April Term, 1858. Noab Smith, plaintiff in error, was indicted for bastardy. Upon a former trial, had at April adjourned Term, 1857, he was found guilty, and upon a writ of error to the supreme court, that court reversed the judgment of the court below and ordered a new trial. (See 23d Geo.

<p>Complaint from DeKalb county. Tried before Judge Bull, at October Term, 1858.</p> <p>Thomas 0. Cains brought suit in the form of complaint, under the act of 1847, against Charles Whitlock, on an account as follows:</p> <p>Charles Whitlock,</p> <p>To Thomas 0. Cains, Dr. 1856.</p> <p>To personal service and labor.......................$110 00</p> <p>“ six months board at $8 00 per month......... 48 00</p> <p>$158 00</p> <p>Plaintiff introduced as a witness Seaborn Cochran, who testified that he was present and heard the contract between plaintiff and defendant. Cains was to work twelve months for defendant for one hundred and ten dollars, and make up all lost time, and Whitlock was to furnish Cains with tobacco. Cains commenced work in January, 1856, and quit in July following — did not know why he quit.</p> <p>Levi Chewing testified that he saw plaintiff at work for defendant from January until July — his services were worth ten dollars per month — Whitlock requested plaintiff to quit sometime in April or May.</p> <p>Defendant proved by B. E. Shumate, that in July he heard defendant request plaintiff not to leave andinsisted on his remaining and going to work. Plaintiff said he would go, and did leave in a few days. This was in July —don’t know why plaintiff quit.</p> <p>Defendant also offered and read in evidence a note which he held on plaintiff for $16 50, which he had pleaded as a set-off.</p> <p>The court charged the jury that when parties make a contract they are bound by it. That in this case, if the contract was that Grains was to work twelve months, and left of his own accord before the time expired, without Whitlock’s consent, he could not recover. If Whitlock turned him off, then he could recover the whole amount agreed to be paid : or if the parties mutually agree to abandon the contract, then plaintiff could recover for the time he worked, and the law presumed that the parties mutually agreed to abandon the contract, in the absence of proof to the contrary.</p> <p>To which charge counsel for defendant excepted.</p> <p>The jury found for the plaintiff forty-one dollars and thirty-nine cents, and counsel for defendant assigns as error the charge above excepted.</p>

Attachment from Whitfield county. Decision by Judge Tripps, at October Term, 1858. John L. Cohen sued out an attachment against Martin Manee, an absent debtor.

Case, from Eloyd county. Decision by Judge Hammond, at August Term, 1858.

In Equity, in Eloyd superior court. Decision by Judge Hammond, at chambers, Dec. 9, 1858. The defendant in error, John H. Rice, filed this bill to enjoin plaintiff in error, 0. T. Cunningham, from erecting a steam flouring mill in the city of Rome.

<p>In Equity, from Eloyd superior court. Tried before Judge Hammond, at February Term, 1859.</p> <p>This was a bill filed by John Cox against Daniel R. Mitchell, and its allegations, in substance, are :</p> <p>That one White E. Harden, formerly of Eloyd county, Georgia, w;as indebted to complainant by note and account some two or three hundred dollars, and being so indebted he removed to the State of Arkansas, where he died intestate, and probably insolvent, some time in the year 1857. That letters of administration on Harden’s estate have been taken out in Arkansas, and the administrator has refused to pay complainant’s demands. That Daniel E. Mitchell, of the county of Floyd, has in his hands money or effects belonging to said Harden of the value or amount of over four hundred dollars; that no administration has been taken out in Georgia, and that complainant knows of no other fund or property out of which to obtain satisfaction and payment of his demands, except those in the hands of Mitchell; aud that Mitchell has been paying off some of the debts against the estate of said Harden; and that complainant has applied to Mitchell for payment of his claims, which Mitchell refused to pay.</p> <p>The prayer of the bill is that Mitchell may answer and set forth what funds or effects he has in hand belonging to Harden, the deceased; what debts of said Harden he has paid, and when and to whom ; and that he be enjoined from paying over any money or effects in his hands belonging to said deceased, to any person; but that he be decreed to hold the same, subject to the further order of the court.</p> <p>There was an amendment to the bill praying that summons of garnishment be issued requiring one Alfred Buffington, (the debtor of Harden, and whose note was in Mitchell’s hands for collection,) to answer on oath what he was indebted to said deceased, or what effects he had in hand belonging to him.</p> <p>Defendant demurred to this bill. He also filed a plea, averring that at the time of Harden’s death, he, deceased, was a citizen of Arkansas; that he died in October, 1857; and that administration on his estate has been granted there to one John Hardcastle. That defendant is a practicing attorney at law, and in the latter part of 1858, said administrator placed in his hands for collection a note on one Alfred Buffington, for four hundred and seven dollars, payable to the said Harden. That in pursuance of instructions from said administrator, he had a settlement with Buffington, who had counter demands against deceased; and upon said settlement, made 13th July, 1858, and before said bill was filed, Buffington paid to defendant the balance found due after deducting his claims, and this is the fund, and only fund, in defendant’s hands belonging to said deceased, &c.</p> <p>The case coming on to be heard upon the demurrer and plea, the presiding judge overruled the same, and ordered defendant to answer. To which decision counsel for defendant excepted.</p>

<p>Assumpsit, in Paulding superior court. Decision, on demurrer, by Judge Hammond, October Term, 1858.</p> <p>This was an action of assumpsit by John K. Moneas, for the use of another, against John Stacks and John Ledbetter, to recover the sum of $319 00, besides interest on several promissory and sealed notets.</p> <p>The declaration alleged that these notes were originally, made to Henry Peck or bearer, and signed by one Eli C. Reeves and said Stacks, but that Stacks was only security, and that he paid off said notes as security and took up and acquired possession of the same, and afterwards, for a valuable consideration, said Stacks and Ledbetter as his security, endorsed said notes to plaintiff. And the declaration further alleged that if said notes were paid off by Reeves or Stacks at the time they were endorsed and delivered to plaintiff, said payment was well known to said Stacks and Ledbetter, and that they are therefore liable thereupon. The declaration further alleges that plaintiff sued Reeves to insolvency on said notes in the State of North Carolina, and that the same are wholly unpaid by said Reeves or any other person.</p> <p>Defendants demurred to the declaration. The court sustained the demurrer, and dismissed the action and plaintiff excepted.</p> <p>It was agreed by counsel in the case that the pleas of the statute of limitations, and of notice from Stacks as security, to plaintiff to suej Reeves, the principal, which he failed to do within three months, were filed.</p>

Equity, in Coweta superior court. Decision on demurrer, by Judge Hammond, at September Term, 1858. This was a bill filed by plaintiffs in error as executors of of the last will and testament of Thos.

Certiorari, in Floyd superior court. Decision by Judge Hammond, February Term, 1859. William R. Smith sued Dudley S. Jones in a justice court on a promissory note, for forty-one dollars and ninety-one cents, dated 18th January, 1850, payable one day after date.

Complaint, in Floyd superior court. Tried before Judge Hammond, February Term, 1859. This was an action brought by Mrs. Sarah George, against William R. Smith, to recover two hundred and sixteen dollars for the work and labor of her two sons. Jarrett and Joshua, alleged to have been done and bestowed in and about the erection of a bridge. The demand was in. the form of an account, as follows : Wm. R. Smith, To Sarah George, Dr. 1852.

Case in Floyd superior court. Tried before Judge Hammond, February Term, 1859. This was an action on the case brought by defendant in error against plaintiff' in error, for digging and cutting down the street adjoining his lot, whereby his fence, erected upon the line of said street, had been undermined and thrown down. Damages laid at five hundred dollars. The defendant pleaded the general issue and statute of limitations.

In Equity, from Eloyd county. Decision by'Judge Hammond, at chambers. This was a bill filed by E. M. Cabot, John IT.

Caveat to will, from Meriwether county. Tried before Judge Bull, at August Term, 1858. A paper, purporting to be the last will and testament of Elany Simpler, deceased, was propounded for probate before the Ordinary of Meriwether county, by William Simpler, the executor therein named.

<p>In Equity, in Troup superior court. Decision by Judge Bull, November Term, 1868.</p> <p>The principal object in this bill was to set up and enforce an agreement, made between complainant and his father, in relation to two lots of land, which, for a valuable consideration received, his father had agreed to devise to complainant in and by his last will and testament, and which he failed to perform, on account of a defective execution of his will, the same not being attested by three credible witnesses, there being only two witnesses to the same. There was a demurrer to the bill which was overruled ; to which decision defendants excepted, and the case coming up before the supreme court, the judgment of the court below was affirmed. (See 23rd Geo. Rep.)</p> <p>At the subsequent trial in the court below, plaintiff having filed an amendment to his bill, counsel for defendants moved to strike said amendment from the files. The court refused the motion and defendant excepted.-</p> <p>Counsel for defendants then demurred to the bill as amended, on the ground of multifariousness.</p> <p>The court overruled the demurrer and defendant excepted.</p> <p>The following is the amendment allowed:</p> <p>“ The complainant amends his bill by leave of the court, first had and obtained as follows: And your orator expressly states that the property conveyed in said will to your orator, was bequeathed under an express and distinct contract; that in consideration that- your orator would live with his -father, as alleged, and attend to his business, and execute the deed aforesaid, he would make said will and bequeath his property as specified in the exhibit to this bill-; and your orator fully and faithfully performed his part of said contract, and the said deceased performed in good faith his part, except that he failed to have three or, more credible witnesses to his will. Your orator further sheweth, that the court of ordinary of Harris county, has appointed one James H. Rowe the administrator of said Shadrach Rowe, Sr., deceased, and the application to propound said paper as a will has been withdrawn under the decision of the court. Prayer, that the administrator be made a party defendant, and that said paper writing may be set up by a decree of the court as a contract, and the estate of Shadrach Rowe, Sr., deceased, be distributed as directed by its provisions.</p>

Indictment, from Cass county. Decision by Judge Trippe, at September Term, 1858. Jesse Coucb, tbe plaintiff in error, was indicted for keeping open a tippling house on the Sabbath day.

Indictment, for forgery, in Eayette superior court. Tried before Judge Bull, September Term, 1858. The plaintiff’ in error was indicted and found guilty of forgery. He moved for a new trial on the following grounds: 1st. Because the verdict was contrary to evidence. 2nd. Because the verdict was contrary to law. 3rd.

Attachment and Garnishment, from Fulton county. Decided by Judge Bull, at October Term, 1858. Hull, Frierson & Co., sued out an attachment in Muscogee county, against Thomas M. Caldwell and James F. Cummings, partners'in trade, resident in the State of Tennessee,. under the firm and name of Caldwell & Cummings, for the recovery of a debt amounting to four hundred and thirty dollars.

<p>Debt, from Troup county. Decision by Judge Bull5 at November Term, 1858.</p> <p>This was an action of debt, by the ordinary, for the use of certain heirs at law, against Harriet Lipscomb, administratrix of Mildred Bowling, deceased, and her securities on the administration bond.</p> <p>Pending the suit, the administratrix intermarried with Archibald G-. Stanford, and scire facias issued and was served upon him to show cause why he should not be made a party defendant in said eause, &c.</p> <p>Stanford, by his counsel, answered and showed for cause, that he was not liable to be made a party defendant to the suit pending against his wife as administratrix, at the time that he married her.</p> <p>After argument, the court held the showing good, and dismissed the scire facias. To which decision plaintiff excepted, and assigns the same as error.</p>

Case, and appeal in Eorma Pauperis, from Fayette county. Tried before Judge Bull, at September Term, 1858. This was an action on the case by Henry Holsenback against William Martin, for criminal conversation with plaintiffs wife.

In Equity, in Fayette superior court. Tried before Judge Bull, March Term, 1858. Held: and who is in the enjoyment of the hire and profits of said negroes and their increase, and complainant is thus deprived of their services, and her right and title to the same denied.

Assault with intent to murder, from Fayette county. Tried before Judge Bull, at September Term, 1858. This was an indictment against William Coleman and Hardy Richardson for an assault with intent to murder one Jackson Grizzard. The defendants severed, and Coleman was put upon his trial, and the following is the Brief of Evidence. Eor the State.

<p>A part of the 8th section of the tax act of 1804, says, that “If any person” “shall be convicted of” “making a false return” of his “taxable property,” “he” “shall be liable to pay to the Clerk of the inferior court of the county, a fine of ten dollars for every hundred dollars valuation so neglected or concealed.”</p> <p>Held, That this part has been repealed, aud still stands repealed.</p>

<p>Nonsuit, in Pike superior court. Decision by Judge Cabaniss, at October Term, 1858.</p> <p>This was a proceeding under the statute, by Sherrod Sims against the Macon & Western Railroad Company, to recover the value of a negro man slave, killed by said road.</p> <p>It appeared from the evidence of plaintiff, that the negro, about fifty years old, was sitting on the end of a cross-tie on said roadj and was struck by the cow-catcher attached to the front of the locomotive, and killed — he was sitting on the outside of the road, but the cow.-catcher being wider than the road, he was caught by it and terribly mangled, and killed instantly. He could have been seen by the engineer at the distance of several hundred yards — the whistle was not blown until the cars came within about twenty steps of him — he gave no heed to the notice, (the presumption is he was asleep,) and was struck and killed as above stated. It was a timber train proceeding down grade at the rate of about twenty miles per hour, and the place was not at or near any crossing, and it was in the day and the sun shining. The negro was sober and of good character, and worth about a thousand dollars. He could have seen the train a thousand yards up the road. When killed he was sitting with his axe between his legs — his thigh and leg were torn off.</p> <p>The case was submitted to a jury under the provisions of the act of ——, who found for the plaintiff one thousand dollars, from which verdict defendant appealed.</p> <p>Upon the trial on appeal before Judge Cabaniss, the plaintiff offered to prove the saying and declarations of the conductor and engineer in relation to the killing. These sayings were made at Milner, a station about a mile below where the accident occurred, and after the train arrived there, and while stopping there. The train had previously stopped a short time immediately after the accident occurred. Defendant’s counsel objected, and the court sustained the objection and repelled the evidence, on the ground that the sayings were not made when the killing occurred, and that they were made when not acting as agents for defendant, and that they constituted no part of the res gestee. And plaintiff excepted.</p> <p>Plaintiff having closed, defendant’s counsel moved for a non-suit, on the ground that the proof showed that defendant was not liable. The court sustained the motion and ordered a non-suit, and plaintiff excepted.</p>

Caveat to Will, from Eayette superior court. Tried before Judge Bull, at September Term, 1858.

Bower, from Newton county. Decision by Judge Cabaniss, at September Term, 1858. This was an application for dower on the part of Robert Bayne, and Martha 0. Bayne, his wife, formerly Martha 0. Dunn, widow of William G. Dunn, deceased, late of the county of Jasper. .

<p>Attachment. Erom Merriwether county. Decision by -Judge Bull, at August Term, 1858.</p> <p>George Prothro, by his attorneys Adams & Knight, sued out au attachment against William L. Bethea. The affidavit upon which the attachment issued, was made by John Knight, one of the firm of Adams & Knight, who swore that William L. Bethea was indebted to said Prothro one hundred and twenty-four dollars and three cents? according to the best of his knowledge and belief, and that said William L. Bethea absconds.</p> <p>At the return Term of the attachment, defendant appeared and pleaded that he did not abscond as alleged by plaintiff iu said affidavit, and upon this issue being submitted to a jury, counsel for defendant claimed the right to open and conclude. The court held otherwise, and decided that plaintiff was entitled to the opening and conclusion, and to this decision counsel for the defendant excepted.</p>

<p>Case, from Cass county. Tried before Judge Trippe, at September Term, 1858,.</p> <p>This was action on tbe case brought by Martha Kinney, against the Superintendent of the "Western and Atlantic Railroad, to recover damages for the killing of her son,</p> <p>John Choice Kinney, a minor, while a passenger on the cars of said road.</p> <p>The jury found for the plaintiff three thousand nine hundred and sixteen dollars and sixty-two and two-third cents. -</p> <p>Whereupon the defendant moved for a new trial, which the court refused, and defendant excepted.</p> <p>The facts of the case and the grounds of the motion for a new trial, are sufficiently stated in the opinion of the court.</p>

In Equity, from Spalding county. Decision by Judge Oabaniss, at Chambers, 17th November, 1858. The facts of this case are sufficiently stated in the opinion pronounced by the court.

Mandamus, from Whitfield county. Decision by Judge Trippe, at October Term, 1858.

Ejectment and motion for a new trial, in Paulding Superior court. Deci ded by Judge Hammond, August Term, 1858. This was an action in the ejectment form by William E. Grimes, Benjamin IT. Swearengin and Wilson Lump-kin, lessors, against W. Ragland, tenant in possession for lot of land No. 330, in the second district and third sec. tiori of said county.

Illegality, from Fulton county. Decision by Judge Bull, at October Term, 1858. Plaintiffs in error sued out a capias ad satisfaciendum, against William H. Thurmond, for forty dollars, besides interest and cost, dated 2d September, 1856, returnable to the succeeding term of the superior court of Eulton county, to be held on the first Monday in October next, thereafter.

Ejectment, from Union county. Tried before Judge Rice, at May Term, 1858. This was an action of ejectment brought by John Doe, ex dem. George H. Young, against Richard. Roe, casual ejector, and Charles Long, tenant in possession, for the recovery of lot of land number 90, in the eleventh district and first section of Union county. The defendant relied upon the statute of limitations. Evidence for Plaintiff.

In Equity, from Polk superior court. Tried before Judge Hammond, at April Term, 1858. This was a bill in equity filed by Baxter M. Garrison and Dorcas M., his wife, against Joel L. Elanegan, for an account and settlement of the estate of Mrs. Garrison, formerly Dorcas M. Sausing, former ward of defendant. The bill alleges that Benj.

<p>Arbitration and Award, in Upson superior' court. Decision by Judge Cabaniss, at May adjourned Term, 1858.</p> <p>James S. Walker and others, children and heirs at law of William W. Walker, deceased, filed their bill in equity against Nathaniel F. Walker, as executor of Allen M. Walker, deceased, and in his own right, for an account and settlement of the estate of their father which came into the hands of said Allen M. Walker, as administrator of said William W. Walker, deceased, and who was also the guardian of complainants, during their minority.</p> <p>Pending this cause in the superior court of Upson county, the parties entered into the following agreement to submit the case to arbitration, viz :</p> <p>Whereas, a matter of controversy is pending in equity in Upson superior court, between dames S. Walker, Freeman Walker and Frances C. Walker, complainants, and Nathaniel F. Walker, in his individual capacity, and also as the executor of the nuncupative will of Allen M. Walker, deceased, though not yet made a party defendant, which involves questions of law and fact; the latter to be ascertained by lengthy calculations, and the parties believing that the same can be settled more correctly by submitting them to arbitrators chosen by the parties, than by submitting said cause to a jury, do hereby enter into the following agreement: The parties agree to submit the case made by the bill, answer and replication filed, in said cause, in its totality, to two arbitrators to be chosen by the parties, and that the parties shall have the right to adduce all legal proofs pertinent to all the issues made as though the cause were on trial before a court and jury.</p> <p>The pleadings in said case if not complete, shall be made so with all convenient dispatch, and if the defendant should desire to file a cross bill he shall do so with as little delay as possible, and the complainants shall as soon as practicable file their answer thereto, and the same shall go to the arbitrators, with the other pleadings in the cause.</p> <p>The parties agree that Thomas P. Stubbs, Esq., shall be the arbitrator selected by the complainants, and Washington Poe, Esq., shall serve, as the arbitrator chosen by defendant, and that these two shall have the power of selecting an umpire to decide all questions of law and fact, upon yhich they may not be able to agree. The parties hereby further agree that Joel Mathews, Esq., of the county of Upson, shall act as commissioner, to take testimony in said cause, to be used before the arbitrators. The party desiring to take the testimony of a witness shall make out written interrogatories and file the same, with the commissioner giving the adverse party notice thereof, together with a copy of said interrogatories, (unless copy and notice should be waived) on the day of filing. Notice shall also be given of the time and place of the examination of the witnesses, which shall be at least ten days from the time of filing the interrogatories with the commissioner.</p> <p>Each party shall be allowed by himself or attorney to be present at the execution of the interrogatories, and shall be allowed to suggest other questions to the commissioner. The answers shall be sworn to and taken down in writing by the commissioner, signed by the witnesses and attested by the commissioner, and the whole being sealed up shall be directed to the arbitrators, by whom they shall be opened under such rules as they may adopt.</p> <p>The arbitrators shall sit at Thomaston,' Georgia, after giving the parties ten days notice of the time of such meeting, and shall proceed to try said cause Upon the evidence submitted to them. There shall be no continuance except for providential cause, except in the sound discretion of the arbitrators. The rules of practice as to argument of counsel, which obtain in the courts shall be observed.</p> <p>The parties having closed, the arbitrators, assisted if need be, by an umpire chosen as aforesaid, shall proceed to make an award within thirty days after the cause is finally submitted to them, which shall be binding except for fraud.</p> <p>The parties agree that the award shall be entered upon the minutes of Upson superior court, and at the November Term, 1856, if possible, and that judgment shall be entered up. for the sum awarded, and that the costs in said cause shall be paid under and according to said award.</p> <p>When the agreement shall be signed by the parties, and the arbitrators shall have accepted the trust, the power hereby conferred upon them, shall be considered irrevocable. And if after their acceptance, either arbitrator, from providential cause, be unable to discharge the duties of the trust, the party whose arbitrator shall become thus unable, shall within twenty days from the happening of such providential cause, choose another arbitrator to act in his place, and in default of such choice the remaining arbitrator shall have the power to fill such vacancy. The parties shall proceed to make up the testimony, and to prepare the case for trial at as early a day as practicable, and shall by the twentieth day of October next notify the arbitrators of their readiness to proceed with the trial, (unless providentially hindered,) and the parties and arbitrators shall so direct the case as to have the award ready to be entered on the minutes of Upson superior court at the term heretofore specified, if possible.</p> <p>The bill filed in said cause was filed by complainants against Jesse L. Owen as the executor of the estate of Allen M. Walker, deceased, and the said Nathaniel F. Walker, and the said Jesse L. having departed this life, and the said Nathaniel E. having been qualified as executor of said estate, but not yet made a party, it is agreed by the parties that the said Nathaniel E. shall be bound in his representative capacity by said award as though he had been made a party to said bill. To be signed before binding, by the parties themselves.</p> <p>August 16th, 1856.</p> <p>O. C. GIBSON, Def’ts Attorney.</p> <p>J. M. SMITH, Comp’s Attorney.</p> <p>Signed by the parties 9th Sept. 1856.</p> <p>Attest, JAMES S. WALKER</p> <p>J.M. SMITH. FREEMAN WALKER</p> <p>FANNIE C. WALKER.</p> <p>N. F. WALKER, Ex’r.</p> <p>N. F. WALKER.</p> <p>Under this submission the arbitrators made the following award:</p> <p>Macon, G-a., January 7th, 1857.</p> <p>We, the arbitrators to whom was referred the matter of difference between the parties set forth in the above submission, after hearing all the testimony on both sides, and after argument of counsel being fully had, find and award as follows, to-wit:</p> <p>1. We find that no sufficient proof has been submitted to us, to authorize or justify us in charging defendant with the value of the two lots of land, lying somewhere in south-western Georgia, (the numbers and other description not given,) and the proof as to the value, being, in our opinion, vague and indefinite; therefore as to said two lots of land, we find and award in favor of defendant.</p> <p>2. As to the hire of Hannah and her children, that question or matter having, on motion of defendant’s counsel, been stricken out from the bill, we ratify and reaffirm our judgment as to said Hannah and her children, and now refer to the same.</p> <p>As to all other matters submitted to us, (except as to the amount of money on hand at the death of William W. Walker, and as to which, we have called in the Hon. Eugenius A. Nisbet, as umpire,) we find and award as follows:</p> <p>1st. We find and award in favor of the complainant, James S. Walker, the sum of ($20,629 19,) twenty thousand six hundred and twenty-nine dollars and nineteen cents, with interest thereon from the first day of January, 1857.</p> <p>2d. We find in favor of the complainant, Nathaniel Freeman Walker the sum of ($20,585 48,) twenty thousand five hundred and eighty-five dollars and forty-eight cents, with interest thereon from the first day of January, 1857.</p> <p>3d. We find and award in favor of complainant, Frances Charity Walker, (who sues by her guardian, Thomas W. Goode,) the sum of fourteen thousand, nine hundred and forty-eight dollars and ninety-seven cents, ($14,948 97,) with interest thereon, from the first day of January, 1857, with costs of suit in this cause, to be levied of the goods and. chattels, rights and credits, lands and tenements in the hands of the legal representative, (the defendant,) of Allen M. Walker, to be by Mm administered. Here the arbitrators called in the Honorable Eugenius A. Nesbit, as umpire in the cause, and adjourned the further proceeding of this cause until Saturday next, at 12 o’clock, M., this 7th January, 1857.</p> <p>THOMAS P. STHBBS, Arbitrator.</p> <p>WASHINGTON POE, Arbitrator.</p> <p>Macon, Ga., 10th January, 1857.</p> <p>The arbitrators having differed and disagreed as to the amount of money on hand at the death of William W. Walker, which came to the hands of Allen M. Walker, as his administrator :</p> <p>The said Washington Poe being of opinion that there was no sufficient evidence submitted to them to authorize or justify the arbitrators in charging defendant with a greater amount of cash on hand than is returned by Allen M. Walker, to-wit: $3,200, and Thomas P. Stubbs differing in opinion with him, they unite and agree in calling in the Hon. Eugenius A. Nesbit, as umpire, and on this day after due notice to counsel on both sides met at 12 o’clock, M., at Macon, at the office of Stubbs, Hill & Tracy, according to adjournment, and said Nesbit being present and consenting to act as umpire, and after argument and a careful review of all the testimony taken in the cause, the said Eugenius A. Nesbit and said Thomas P. Stubbs, find the sum, after deducting one-fourth of the award shown to be $5250,00: that is, on hand.............$7000,00</p> <p>Less one-fourth.......................................... 1750,00</p> <p>—-</p> <p>Hue to complainants..................................$5250,00</p> <p>Which, with interest added as calculated by us at the rate agreed upon, makes the sum due on the first day of January, (1857,) eighteen hundred and fifty-seven, of ($24,547,00) twenty-four thousand five hundred and forty-seven dollars, which sum we find and award in favor of the three complainants; that is, the sum of eight thousand one hundred and eighty-two dollars and thirty-three cents in favor of each of said three complainants.</p> <p>This last finding and award upon condition that the said complainants do pay the compensation of the arbitrators and umpire in this cause, which said compensation so to be paid, they by the authority vested in them by consent of counsel on both sides, fix, and determine as follows, to be paid out of said fund:</p> <p>To Washington Poe, ($1000,00,) one thousand dollars.</p> <p>To Thos. P. Stubbs, ($1000,00) one thousand dollars.</p> <p>To Eugenius A. Nesbit ($500,) five hundred dollars.</p> <p>The amount of money first aforesaid, to-wit: $24,547,00 to be levied of the goods and chattels, rights and credits, lands and tenements of Allen M. Walker, in the hands of defendant his legal representative to be administered.</p> <p>And to all this the said Eugenius A. Nesbit and Thos. P. Stubbs agree.</p> <p>THOMAS P. STUBBS, Arbitrator.</p> <p>E. A. NESBIT, Umpire.</p> <p>Washington Poe consents to the above so far as the compensation of arbitrators and umpire is concerned. We, Thomas P. Stubbs and Washington Poe, find and award in favor of our clerk, Mathew H. Sandwich, the sum of one hundred dollars, one-half to be paid by de. fendaut and the other half by complainants, 10th January, 1857.</p> <p>WASHINGTON POE, Arbitrator.</p> <p>THOS. P. STUBBS, Arbitrator.</p> <p>Upon the coming in of this award, and upon motion by complainant’s solicitors to enter the same on the minutes and make it the judgment of the court, solicitors for defendant filed their exceptions to said award and to its being entered on said minutes and made the judgment of the court. Evidence was introduced on both sides in support of the motion and exceptions, and after hearing the same and, argument, the court made the following order ; Whereupon it is ordered by the court that the award be entered on the minutes of the court, and that that part which was made by the arbitrators, Washington Poe and Thomas P. Stubbs, Esqs., on the 7th day of January, 1857,-be made the judgment of the court, and that execution issue in favor of the complainants for the amounts respectively awarded to them : And it is ordered that that part of the award made by Thomas P. Stubbs, Esq., one of the arbitrators, and the umpire E. A. Nesbit, be set aside, and that complainants’ solicitors have leave to enter judgment in accordance with this order.</p> <p>To this order and judgment both parties excepted.</p>

Trespass, vi et armis, in Paulding superior court. Tried before Judge Brown, at April Term, 1857. This was an action of trespass brought by Asa Hendricks against Jesse Umphreys and others, for assaulting, beating and wounding the plaintiff. The testimony is very voluminous, and its insertion not deemed necessary to a clear understanding of tbe points adjudicated.

In. equity, in Heard superior court. Tried before Judge Rice, August Term, 1858.

In equity, in Spalding superior court. Decision on demurrer, by Judge Cabaniss, at November Term, 1858. This was a bill by Peter Knight against William Knight, to enjoin and restrain him from the collection of a note against complainant amounting to over one thousand dollars.

<p>A trustee brought trover. Afterwards, he moved that he might be removed from the action, and another person be put in his place ; and, in support of the motion, he showed that, by regular order of court, he had been removed from the trusteeship, and that person appointed to his place. Held, that the motion ought to have been granted.</p>

<p>Claim, from Spalding. Tried before Judge Cabaniss, at November Term, 1858.</p> <p>This was a claim case, and tbe facts and proceedings had in the court below are as follows:</p> <p>Cloud & Shackleford obtained judgment against Charles T. Dupree and John F. Dupree, at November Term, 1855, of Spalding superior court, -and execution issued thereon dated 9th January, 1856, which was levied upon two negroes — Dock, a boy, and Rosetta, a girl, as the property of Charles T. Dupree. Levy made 29th September, 1858.</p> <p>To this property a claim was interposed by C. L. Dupree, as trustee of Mrs. Mary A. G. Dupree, the wife of said Charles T. The property.was claimed for her under a marriage settlement, made prior to her marriage, and by which said negroes and other property therein mentioned were secured to said Mary A. G. and her children. The marriage settlement bears date 29th November, 1854, and was'recorded 4th April, 1855.</p> <p>At the trial, claimant offered to prove the sayings or declarations made by Charles T. Dupree, one of the defendants in Ji. fa., before the suit against him, to the effect that he was holding the property as trustee for Mrs. Dupree, while it was in their joint possession. Counsel for plaintiffs objected to this testimony; the court overruled the objection so far as to allow the sayings and declarations of defendant to be given in evidence, which were made relative to his possession of the negroes before the commencement of the suit.</p> <p>The evidence being closed, plaintiffs requested the court to charge the jury that the property is subject to the execution, if the marriage settlement was not recorded withir the time prescribed by law — that is, within three months from its execution, — unless the claimant shows that plaintiffs had notice of it at the time or before they gave credit to defendant. The court refused so to charge; but charged the jury, that marriage settlements must be recorded within three months from the execution thereof, in the office of the clerk of the superior court of the county of the husband’s residence; if so recorded, they are good against a bona fide creditor without notice, but if not recorded within this period, they are are not absolutely void, but void only as to a bona fide creditor who may give credit to the husband before the same is recorded; and a bona fide creditor is one who gave credit upon the faith of the property contained in the marriage settlement and in the possession of the husband. To be a bona fide creditoi’, the credit must be given without notice of the marriage agreement, and upon the belief that the property belonged to the husband and was liable for his debts. To which charge counse* for plaintiffs excepted.</p> <p>The jury found for the claimant, and plaintiffs in fi. fa. moved for a new trial upon the ground that the court erred in the rulings, charge and refusal to charge, as above excepted to, and on the further ground that the verdict was contrary to law and evidence.</p> <p>The court refused the motion for a new trial, and plaintiffs excepted, and assigned the same as error.</p>

Trover, for two negroes, from Henry county. Tried before Judge Cabaniss, at October Term, 1858.

Complaint, in Floyd superior court. Tried before Judge Hammond, February Term, 1859. This was an action by C. F. Cunningham, as endorsee, against W. S. Cothran & Co., endorsers, on the following promissory note: $357 00. Nov. 17, 1857.

<p>1. The jury are to determine on the credit they will give a witness, who has been impeached on one side for want of character, but who has been supported on the other hy counteyproof. That the jury believed him is no ground to set aside a verdict as being against evidence.</p> <p>2. When the State engaged in the carrying business on the W. & A. Rail Road, it assumed the obligations and liabilities incident to that business when carried on by individuals, and subject to the remedies by suit against the superintendent of the road, when the claim cannot be otherwise adjusted.</p> <p>3. The plaintiff, in a suit against the superintendent of the road is not restricted to the amount claimed when he presented his account to that officer for settlement. As in other cases he recovers according to his proofs under the law.</p>

<p>Assumpsit, from Spalding county. Tried, before Judge Cabaniss, at November Term, 1858.</p> <p>Upon this case being called for trial, the defendant moved for a continuance, and in support of his motion submitted the following affidavit:</p> <p>“ Georgia, defendant, states that he Spaulding County, i witnesses in said cáse who</p> <p>are absent, without his procurement or consent, namely: W. R. Phillips, and M. M. Lockhart; that W. R. Phillips has been subpcened, and that he resides in the county of Spaulding — that he expects to prove by him, that Egbert Daniel was the agent of the plaintiff, and as such agent of the plaintiff, received from the defendant notes to the amount of about five hundred and fifty-eight dollars, which he was to apply to the note sued on by the plaintiff in this case, which this defendant relies on in his defence as payment to that extent of said note. That he expected to prove by Lockhart the admission of said agent, that he had received said notes from this defendant— that said Lockhart from the best of defendant’s information and belief, now resides in the State of Alabama; and that he has so recently left this State that it has not been in defendant’s power to take his depositions — that he endeavored to take them, but could not get the interrogatories crossed in another case in which said Daniel was a party.”</p> <p>The court refused the motion for a continuance, on the ground that the affidavit did not specify what particular notes had been received by plaintiff’s agent, nor the amount due thereon, nor was it stated that defendant expected to prove that said notes had been collected, and. that he was entitled to credit for the ambunt thus collected. And plaintiff was allowed to take a verdict for the full amount sued for. Whereupon counsel for defendant excepted, and assigned said decision as error.</p>

Case, in Carroll superior court. Tried before Judge Hammond, October Term, 1858. This was an action by Graham against Grice, for maliciously and illegally suing out' an attachment against plaintiff, and seizing his horses and buggies, whereby he was damaged to the amount of three hundred dollars.

Case, for false and deceitful warranty of soundness of slave, in Polk superior court. Tried before Judge Hammond, April adjourned Term, 1858. This was an action on the case brought by Joseph M. Norris against David Clopton, for the recovery of damages for falsely and deceitfully warranting a negro woman sold by defendant to plaintiff to be sound.

<p>Indictment, from Gordon county. Tried before Judge Tripps, at October Term, 1858.</p> <p>Henry Mosely, the plaintiff in error, was indicted for malicious mischief.</p> <p>Upon the trial, Benjamin A. Rollins, on the part of the State, testified that four of his cows were shot; be went up to where defendant lived and asked him if he shot them ; defendant replied that he did shoot them, and he had plenty of money to pay for them, if they died; that he shot them with peas, then with small shot, and then with large shot. Thei’e was no ill-will between witness and defendant, and they were friendly before defendant shot his cows. "When he saw the cows after they were shot, they were a short distance from the mill where defendant lived; that one of the cows died in eight days after she was shot, and another died from the effects of the shooting afterwards.</p> <p>The testimony here closed, and the court charged the jury, that it was not necessary that defendant should have entertained ill-will or malice towards the owner of the property, or should have intended to injure, the owner, to constitute the offense of malicious mischief; that if the jury believe that the defendant shot the cows wantonly and recklessly, the law will presume malice, whether he intended any injury or not.</p> <p>To this charge defendant excepted.</p> <p>The jury found the defendant guilty; whereupon his counsel moved for a new trial, upon the grounds:</p> <p>1st. Because the verdict is contrary to law ;</p> <p>2d.. Because the verdict is contrary to evidence and without evidence;</p> <p>3d. Because the verdict is strongly and decidedly against the weight of evidence;</p> <p>4th. Because the court erred in its charge to the jury.</p> <p>The motion for a-'ftew. trial was overruled, and defendant excepted.</p>

Indictment for Riot, from Milton county. Tried before Judge Rice, at November Term, 1858. Lewis Tucker, Asberry Carnes, Amos Chapman, Toliver Bettis, and James Pettit were indicted for a riot. The jury found Carnes, Bettis and Tucker guilty ; and acquitted Pettit.

Bail Process, from Chattooga county. Decision by Judge Crook, at March Term, 1859, Weatherford sued out hail process against Shegag and another, under the provisions of the act of 1857, allowing… Held: owing to the prevalence of small pox In the vicinity; and the court was adjourned by order of the judge to the next March Term, without his coming to the court.

Complai nt, from Chattooga county. Tried before Judge Crook, at-March Term, 185'9. This was complaint on an account by William Mitchell against Joseph Sentell and' Thomas Pursell, for two hundred and eleven dollars. The hill of particulars attached to the petition was as follows, viz: Joseph Sentell & Thomas Pursell, Dfi. To William Mitchell. 1856.

<p>Murder, in Spalding superior court. Tried before Judge Cabaniss, •- Term, 1858.</p> <p>The plaintiff in error was indicted for the murder of Harvey "Williams, as principal in the second degree.</p> <p>At the conclusion of the testimony, the court charged the jury as follows :</p> <p> Charge of the Court. </p> <p>The court charged the jury as follows* The defendant, David Brown, stands indicted as principal in the second degree for the murder of William H. Williams; Shildrake Brown is charged in the same indictment, as principal in the first degree; but David Brown is alone on trial before you, and it is upon his guilt or innocence that you are to pass.</p> <p>In criminal cases you are the judges of the law as well as of the facts; it is, however, the duty of the court to explain the law to you, but you are not concluded by the opinion of the court as to the law ; but it is your province to judge of that as well as the facts, and to be governed by your judgment in one case as in the other. The defendant is charged with the crime of murder — he is presumed to be innocent until the contrary is made to appear; it is incumbent on the State in the first place to prove the killing, to show that the crime has been committed as charged in the indictment, and to show that the defendant is guilty of the offence with which he stands charged, and you are to look to the testimony to determine these facts. If the proof is sufficient to satisfy you that a homicide has been committed, and that the defendant was concerned and participated in the killing, you will then look to the circumstances which have been proved, and from your opinion as to the facts in proof determine the grade of the homicide — whether it be murder, manslaughter, or justifiable homicide: and to enable you to determine as to the grade of the killing, the court will read to you from the penal code the sections applicable to the case before you. (Here the court read various sections of the penal code.)</p> <p>You will in the first place enquire if the circumstances in proof are such as to connect the defendant, David Brown, with the homicide of the deceased — if he wTas present, aiding and abetting the perpetrators of the act, he is in law equally guilty with the one who struck the mortal blow. When two or more persons are engaged in the same illegal purpose, any act done by one of the party in pursuance of that purpose, and with reference to it, is in contemplation of law the act of all; and proof of such act is evidence against any or either of the others who were engaged in the combination. To make out the guilt of the principal in the second degree it must appear that he aided and abetted the perpetrator of the deed, and that he gave his assent to the commission of the crime; and presence with participation in the act committed is evidence from which the jury may infer consent and concurrence.</p> <p>The jury must look to the circumstances which have been proved, and from these circumstances determine the question whether the defendant aided, abetted or participated in the killing of the deceased. If he did not, he is not guilty of the crime charged, and must be acquitted.</p> <p>If he aided and abetted and participated in the homicide, your next enquiry will be as to the grade of the of-fence — whether the facts are sufficient to bring it under the definition of the crime of murder; that is, whether the deceased was killed with malice aforethought, either expressed or implied. No case of homicide can be a case of murder if it is not accompanied by malice aforethought, either expressed or implied. Express malice is the deliberate intention to take away the life of a fellow creature manifested by external circumstances capable of proof. If express malice has not been shown, you will look to the facts in proof, and enquire whether they imply malice. Malice shall be implied when no considerable provocation appears, and when all the circumstances of the killing show an abandoned and malignant heart. To rebut the presumption of malice and to reduce the killing from murder to manslaughter, the provocation by words, menaces, threats, or contemptuous gestures, shall in no case be sufficient to free the person killing from the guilt of murder. And if life be taken in consequence of such provocation by words, threats, menaces or contemptuous gestures, it will be taken under circumstances which imply malice. In all cases of homicide in which the provocation is by words, threats, menaces, or contemptuous gestures, the offence is not reduced from murder to manslaughter. But where there is some actual assault, or some considerable provocation other than provocation by words, threats, menaces, or contemptous gestures, the of-fence may be reduced from murder to manslaughter, if there is not sufficient time for passion to cool between the assault or the considerable provocation, and the killing. If the defendant was connected with the killing of the deceased, if he aided, abetted, and participated therein; and if he received no assault from the deceased or no considerable provocation, the law in such a case implies malice, and he is guilty of the highest grade of homicide, viz: murder. You will look to the evidence, and from all the facts determine this question. But if the facts in proof are not sufficient to make this a case of murder, then you will enquire whether it is manslaughter. Every case of homicide not accompanied by malice, expressed or implied, is a case of manslaughter or justifiable homicide. Manslaughter differs from murder in the important particular of the absence of malice, as when it happens in a sudden heat of passion — when passion has obtained dominion over reason and the gentler feelings of the heart. From a respect to human infirmities the law in such case mitigates the offence and reduces it from murder to manslaughter. Still this is unlawful, the law not permitting any man to avenge his own wrongs by killing the supposed offender unless in a case of great emergency.</p> <p>There must be some actual assault on the person killing, or an attempt by the person killed, or some considerable provocation by him other than provation by words, threats, menaces, or contemptuous gestures, and the killing must be the result of that sudden, violent heat of passion, supposed to be irresi stable under such assault, such attempt or such considerable provocation, to reduce the offence from, murder to manslaughter. But if there be no such assault, no such attempt or no such considerable provocation, the offence is murder; and manslaughter, if there was an actual assault on defendant by deceased, or some attempt by deceased to commit a serious personal injury on. the defendant, or if the deceased gave the defendant a considerable provocation and before his passions had time to cool and subside; if the defendant under such circumstances participated in the killing, he is guilty of voluntary manslaughter and not murder, unless the evidence further shows it to be a case of justifiable homicide ; and if it is such a case the defendant is entitled to a verdict of an acquittal. But before you give the defendant a verdict of entire acquittal, you must enquire whether the case is a case of justifiable homicide.</p> <p>The cases of justifiable homicide, are : 1st. An execution of public justice as where an officer executes a criminal pursuant to the sentence of the law. 2d. In advancement of public justice; as when an officer in the clue execution of Ms office kills a person who assaults or resists Mm. 3d. In self-defence against one who intends to commit a felony, as muder, robbing, or tbe like — the intent of the aggressor must be to commit a felony : If it be only to commit a trespass as to beat the party, it will not justify the killing of the aggressor. The assault or the trespass as above described on the person killing, may reduce the offence from murder to manslaughter, but cannot justify the killing. To authorize the killing and make it justifiable homicide, it must be an attempt to commit a felony on the habitation, property, or person of the slayer. 4th. Against persons acting in a riotous or tumultuous manner. In such a case there must be more than one person.</p> <p>Sections 12, 13, and 15. of the code, relate to the right of self-defence, and they constitute the law which must govern you in your determination upon this branch of the case. The right of self-defence is given by the 12th section against one who manifestly intends to commit a felony by violence or surprise on the habitation, property, or person of another.</p> <p>Section 13th limits this right by requiring that the circumstances to justify the killing must be sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of these fears, and not in the spirit of rev'enge.</p> <p>And the 13th section still further restricts the right by providing that the danger shall be so urgent and pressing at the time of the killing that in order to save his own life, the killing of the other was absolutely necessary. If the deceased intended, or was endeavoring by surpi’ise or violence to commit a felony on the habitation or prop•erty or person of the defendant, or the habitation, property, or person of his son; and if the defendant acted under circumstances which were sufficient to excite the fears of a reasonable man and was influenced by those fears and not by a spirit of revenge; and if at the time of the killing the danger was so urgent and pressing that to save his own life, or the life of his son, the killing of the deceased was necessary, and the deceased was the assailant, then the defendant was justifiable, and you should acquit him. But if there was no such attempt to commit a felony on the habitation, person, or property by the deceased, or the habitation, person,‘or property of the principal perpetrator, and if there was no reasonable ground to fear such an attempt, and if at the time of the killing the danger was not so pressing and urgent that the killing was absolutely necessary to save his life, or the life of the principal actor, then he was not justifiable in aiding, abetting and participating in taking the life of the deceased. You will take into consideration all the facts as proven by the witnesses in this case, and from those facts determine whether the killing of the deceased was murder, manslaughter, or justifiable homicide. If murder, and you are satisfied beyond a reasonable doubt that the defendant aided, abetted and participated in the killing, find him guilty of murder. If it be a case of manslaughter, and the defendant aided, abetted or participated in it, find him guilty of voluntary manslaughter. If it be a case of justifiable homicide, acquit him. If the circumstances proven are such as to raise a reasonable doubt in your minds as to the guilt of the defendant, acquit him. Though you may have no doubt of the guilt of the principal in the first degree, yet if you have a doubt whether the defendant gave his consent and concurrence to the act of the principal in the first degree, give him the benefit of that doubt and acquit him. But the doubt must be a reasonable doubt, it must not be assumed to be used as a pretext for acquitting the defendant, but must actually exist and must arise from such a state of facts as to leave the mind in doubt on which side the truth lies. When such a doubt exists, the humanity of the law gives the accused the benefit of it and acquits him. If the doubt is as to his guilt, acquit him. If it is as to the grade of the offence, that is whether it is murder or manslaughter, in the latter case give him the benefit of the doubt and find him guilty of the less offence. If you should come to the conclusion that the defendant is guilty of the offence with which he stands charged, the form of your verdict will be :</p> <p>“We the jury find the defendant, David Brown, guilty of murder.”</p> <p>If you think him guilty of manslaughter, you will say: “We the jury find the defendant, David Brown, guilty .of manslaughter.”</p> <p>If you think him not guilty, you will say: “We.the jury find David Brown not guilty.”</p> <p>The jury found the defendant guilty of voluntary manslaughter, whereupon his counsel moved for .a new trial upon the following grounds :</p> <p>1. Because the court erred in refusing to permit defendant’s counsel to read to the witness, Wm. R. Moseley, his testimony as taken down on the trial of Shildrake Brown, but held that they might read the testimony themselves, and ask if he had testified to such and such facts and then introduce witnesses who heard him testify and contradict him if they could by such witnesses ; but that they could not contradict by showing from his testimony, as written down, that he had testified differently from his former testimony.</p> <p>2. Because the court erred in refusing to permit defendant’s counsel to cross-examine Wm. H. Bishop, a witness introduced and sworn by the State for the purpose of identifying the knife of Shildrake Brown, but which testimony was objected to and excluded by the court; and said witness not having been examined any further, the court held that as the State had not examined the witness the defendant had not the right to cross-examination ; yet might introduce him as his own witness if he saw proper to do so.</p> <p>3. Because the court erred in refusing'to permit defendant’s counsel to have a reply from'Robert Wise, a witness for the State, to the following question, to-wit: Did you immediately after the difficulty hear Holcomb cry out to Wooten, the sheriff, to arrest the Browns for they had killed Harvey Williams ?</p> <p>4. Because the court erred in charging the jury that presence and participation in the act committed is evi-. dence from which the jury may infer assent and concurrence.</p> <p>5. Because the court erred in charging the jury, that if the defendant now on trial, to-wit, David Brown, was connected with the killing.of the deceased — if he abetted and participated therein, and he had received no actual assault from the deceased or no considerable provocation, the law in such case implies malice, and he was guilty of murder.</p> <p>6. Because the court erred in charging the jury, that if there was an actual assault upon the defendant by the deceased, or some attempt by deceased to commit a serious personal injury on the defendant, or if the deceased gave the defendant a considerable provocation otherwise, and if under a sudden heat of passion arising from such assault or such attempt, or some considerable provocation, and before his passions had time to cool or subside, the defendant under such circumstances participated in killing the deceased, he is guilty of voluntary manslaughter and not murder; unless the evidence further shows it to be a case of justifiable'homicide.</p> <p>7. Because the court erred in failing to read the 16th section of the Penal Code, in connection with other sections relating to justifiable homicide. [The court failed entirely to read such portions of the code as had no connection with the case made by the evidence, and charged that the sections of the code which the court did read constituted the law which must govern the jury in determining the question. The court read on this branch of his charge only the 12th, 13th and 15th sections of the code.]</p> <p>8. Because the court erred in charging the jury “if it be a case of manslaughter, and the defendant aided, abetted and participated, find him guilty of voluntary manslaughter:” thereby withholding from the jury the right to find him guilty of involuntary manslaughter in the commission of an unlawful act, or of a lawful act without due caution or circumspection.</p> <p>9. Because the court erred in instructing the jury, that if they believed the defendant guilty of manslaughter the form of their verdict would be, “we the jury find the defendant, David Brown, guilty of voluntary manslaughter;”' and failed to give them any form for a verdict of involuntary manslaughter, giving only the form of a verdict for murder and of voluntary manslaughter, and a general verdict of not guilty; and thereby in effect charging them to find the defendant guilty of murder, or of voluntary manslaughter, or to acquit him entirely.</p> <p>10. Because the whole charge as delivered to the jury was calculated to mislead them.</p> <p>11. Because by the indictment Shildrake Brown was charged with the offence of murder as principal in the first degree, and David Brown as aiding and abetting him, and the court failed to charge the jury that it was essential to'make out the charge as to said David Brown that the State should prove to the satisfaction of the jury, that David Brown, at the time of the committing of the act by the said Shildrake Brown, knew of his intention and design to commit a murder, manslaughter, or other felony, on the body of the deceased.</p> <p>12. Because the court erred in failing to charge the jury, that in order to constitute a principal in the second degree, three things were necessary, to-wit: 1st, That there must be an actual or constructive presence at the committing of the act, 2d, There must be an aiding and abetting in the act committed. 3d, That such aiding and abetting must have been with a felonious design, and with knowledge of the design of the principal actor.</p> <p>13. Because the court erred in charging that presence and participation in the act was evidence of consent and concurrence.</p> <p>14. Because the jury found contrary to the evidence.</p> <p>15. Because the verdict is against the weight of evidence.</p> <p>16. Because the jury found contrary to law.</p> <p>17. Because the jury found contrary to and against the charge of the court.</p> <p>18. Because the principal actor having been convicted of voluntary manslaughter only, David Brown could not be •convicted of any crime under the indictment.</p> <p>19. Because the defendant’s counsel argued before the jury, that in order to convict David Brown as principal in Ike second degree, the State was bound to prove a common purpose of the defendants to commit an unlawful act or felony, and tliat in the absence of such proof David Brown could not be affected by the act of Shildrake Brown, which the court omitted or failed to charge.</p> <p>20. That if the fact done by Shildrake Brown was the result of bis own intention exclusive of any influence or abetting of David Brown, then David Brown could not be affected by Shiklrake’s act — which the court failed to charge.</p> <p>21. That to implicate David Brown in bis son’s act or guilt, the evidence must show the act to have been done in furtherance of a common purpose — which the court failed to charge.</p> <p>22. Because one of the jurors, to-wit, Waldrop Warren, while the jury was out on said ease and before the jury made up their verdict, said to his fellow jurors that it could have been proved by the State that David Brown saw his son and conversed with him when he went out of the grocery, when the difficulty took place, before the fatal blow was given, and before his son came into the grocery.</p> <p>23. Because since the trial defendant’s counsel have discovered that defendant can prove positively, by William M. Cline, that neither defendant nor any other person told Shildrake Brown had gone out at the back door.</p> <p>The court overruled the motion for a new trial, and defendant by his counsel, excepts and assigns said decision as error.</p>

Certiorari, from Chattooga county. Decision by Judge Crook, at March Term, 1859. Rosser, Scurry & Co., sued John Harlow on an account for goods, wares and merchandise, in a justice court.

Debt, on foreign judgment, from Lumpkin county. Tried before Judge Rice, at January Term, 1859.

Certiorari, from Merriwetber comity. Decision by J udge Bull, at February Term, 1859. Jacob Stroman was an illegitimate. After bis birth, his mother married Samuel E. Rickenbacher, by whom she had children. Jacob died in Merriwetber county in 1854, intestate, without a wife or lawful issue, and the children of Rickenbacher by bis mother, bis half brothers and sisters, were bis nearest of kin.

<p>Indictment, from Catoosa county. Tried before Judge Crook, at November Term, 1858.</p> <p>James S. Jobe, the plaintiff' in error, was indicted for keeping and maintaining a lewd house. Upon the return of the verdict of guilty, the presiding judge directed the solicitor general to take an order that defendant be fined twenty-five dollars, and imprisoned thirty days. The presiding judge, at the request of defendant’s counsel and one of his securities, to increase the fine and remit the imprisonment, and also not to permit the sheriff to place the defendant in jail that night, stated in open court that he should not interfere with the sheriff' in the discharge of his duty, but that he might do as he pleased in the matter, knowing his duty; but that he would consider the request to remit the imprisonment until morning.</p> <p>On the following morning, the defendant being in court, the presiding judge stated that, upon reflection, he would not change the order he'had given in relation to the sentence the evening previous. The defendant in the meantime was not confined in the jail, the order of the court not having been signed by the judge nor entered on the minutes of the court.</p> <p>On the 20th November, the last day of the term of the court, the sheriff announced that the defendant had escaped. The court ordered the sheriff to call defendant, who failing to answer or appear, the court ordered the solicitor general to forfeit defendant’s bond, and to draw an order fining defendant twenty-five dollars, and that he be imprisoned sis months in the common jail of the county, if the sheriff deemed said jail sufficient to detain him; if not, that he be sent to the jail of Whitfield county.</p> <p>To which order and sentence defendant’s counsel excepted.</p>

Debt, from Henry county. Tried before Judge Cababtss, at April Term, 1859. This was an action by William. B. Fields, for another, against Andrew W. Walker, on a promisory note given in part payment for the building of a merchant mill.

Trespass, in Campbell superior court. Tried before Judge Hammond, at September Term, 1858. This was an action of trespass brought by Adderholt against Cantrell, for killing plaintiff's hogs.

Debt, from Floyd county. Tried before Judge Hammond, at August Term, 1858. The facts of this case are as follows: In 1838, T. W. A. Sumter made his note for a thousand dollars, payable, sixty days after date, to the order of James M. Sumter. The note was endorsed by James M. Sumter, and finally by Jacob Stroup, to whom it had been endorsed, to Benjamin F. Patton. The parties at the time, all resided in Habersham county.

<p>R. agrees to sell to L. a place known as the Brick Yard place, and to receive pay in work. L. does the work, and R. agrees to make a title, but afterwards uses the property and conveys it for his own purposes. L. has a right to sue R. and .recover for the work.</p>

In equity, in Floyd superior court. Decision on demurrer, by Judge Hammond, March, 1859.

Rule against sheriff, from Catoosa county. Decision by Judge Crook, at November Term, 1858. ' Jesse Felker, the sheriff of Catoosa county, under and by virtue of an execution in favor of Jacob Keiralff, against William Fulcher, levied upon and sold a tract of land as the property of the defendant, and there remained in his, the sheriff’s hands, after satisfying the fi. fa. the ¡aum of seven hundred and twenty-five dollars.

Indictment, for hog stealing, in Haralson superior court. Tried before Judge Hammond, October Term, 1858. The plaintiff in error was indicted for hog stealing and found guilty. His counsel moved for a. new trial o.n the following grounds : 1. Because the court erred iu not permitting defendant to prove what he said in explanation of his possession of the hog, when found in his possession. 2.

<p>1. When proof of a credit to which the losing party is entitled, has beon rejected by the court, a new trial Will be awarded, unless the judgment is abated by the amount of said credit-.</p> <p>2. When the point at issue between the parties, is whether a certain transaction was an absolute or conditional salo, and the court charges in both aspects of the case, and there is evidence to justify the charge, the verdict Will not be disturbed.</p>

<p>In Equity, from Henry county. Decision by Judge Cabaniss, at April Term, 1858.</p> <p>This was a bill in equity, filed by John A. Smith, executor of the last will and testament of Elijah S. Boynton, deceased, for the aid and direction of a court of equity in the execution of said will, and especially to have the 9th clause of said will construed and expounded.</p> <p>Said clause is as follows:</p> <p>r “ Item 9th. At my death I give 'and bequeath to my wife, Elizabeth Boynton, during her lifetime or widowhood,, the west half of my lands, with a good house and farming tools, two cows and calves, and one year’s provisions for the family, and household and kitchen furniture sufficient for the use of the family. Also Solomon’s labor is to go to raise the children. When the youngest becomes of age, he shall be the property of my wife, Elizabeth Boynton, and also Floyd, a negro boy, and fifty dollars for the use of the family.”</p> <p>Defendants answered the bill, and upon the hearing, they proposed to prove by John A. Smith, the complainant, that at the time the will was written, he heard testator instruct the draftsman to give the “ slave, Solomon’s labor, to assist in raising his yorrngest children, and when the youngest child came of age, the said slave Solomon, to go to his wife, Elizabeth Boynton.” She then remarked to him, “who would then have him?” The testator then replied, “ that makes no difference, I will give you Floyd as your own,” and instructed the draftsman accordingly, who immediately made the entry as found in the will, with which testator and wife were satisfied; and that since that time the said boy had been recognized and treated as the poperty of Mrs. Boynton, now Mrs. Boyal —recollects no instructions in relation to the land sufficiently distinct to state it.</p> <p>The court refused to admit this evidence; holding that it went.to alter, add to, or explain said will, and was inadmissible; and defendants, Boyal and wife, and the younger children exeepted.</p> <p>Befendants then proposed to r ead the answer of Elizabeth Boyal, to the bill of complainant, giving her explanation of said will. The court, refused to admit said answer in evidence, as explanatory of the intention of testator. To which decision counsel for Boyal and wife, and younger children excepted.</p> <p>The court then adjudged and decided that the land was devised to Mrs. Boynton during her lifetime or widowhood, and upon her marriage, and termination of her widowhood, the remainder in fee being undisposed of by the will, rests in and belongs to the heirs at law of testator.</p> <p>The court further adjudged the slave Solomon’s labor to be appropriated to raise the younger children of the testator, and after they are raised, and the youngest attains age, then Solomon becomes the property of Mrs. Boynton, now Mrs. Boyal, and rests in her absolutely and free from any trust; and that the labor of Eloyd was to he appropriated in the same way as that of Solomon, and for and during the same period, and he was then, in like manner, to become the property of Mrs. Boynton, and to rest in her absolutely.</p> <p>To which judgment .counsel for defendant excepted.</p>

In Equity, from Monroe county. Decision on demur, rer, by Judge Cabaniss, at February Term, 1859, This was a bill in equity, filed by John H. Jossey and wife, against the remaindermen under the last will and testament of Reuben Brown, deceased, the father of Mrs. Josey, for direction and instruction as to the following clause of said will, to-wit: “Also I give to my daughter Lucinda Mildred Brown, the following property, to-wit: Jack, a man28 years old, .and his wife Ally,…

Assumpsit for cotton reclamations, in Spaulding superior court. Tried before Judge Cabaniss, at May Term, 1858. Charles Hartridge, of Savannah, in bis lifetime, accepted two drafts for plaintiffs in error, one amounting to §13, 074 04; and the other to §13,074 03, both at thirty days. These acceptances were made on the faith and credit of 605 bales of cotton, consigned to him by plaintiffs in error.

<p>1. A pica, which, in effect, is a plea, of partial failure of consideration, that- in ascertaining the price of lands sold, which was to be arrived at by estimating the number of acres in all the lands, there was a fraud or mistake in setting down the number of lots of land by which one lot was added improperly, is a good plea.</p> <p>2. A plea, filed as a plea of non estfatium, and of no value exceptas such plea, need not be stricken out, if the affidavit of its truth bo expunged, It cannot benefit the defendant nor harm the plaintiff.</p> <p>3. Evidence of fraud or mistake, in making .the estimate of the price to be paid for a settlement of land, in a suit on a note given for the land is admissible, although notes and a bond for titles expressive of. the contract were signed by the parties, and such evidence does not vary or contradict the written testimony.</p> <p>4. A party cannot support the testimony of his own witness before he is attacked either for want of character or because he has made contradictory statements.</p> <p>5. If, on a note given in part of the consideration agreed to be paid for lands, the payee enter that the principal of the note is reduced one thousand dollars in consequence of the correction of an error in the bond for titles, such entry does not bind the party making it; it depends on whether the error was in the contract, and in the process uspd in arriving at the aggregate price of all the lands, to give effect to which the bond for titles was given.</p>

Covenant, in DeKalb Superior Court. Tried before Judge Bull, at October Term, 1858. This Was an action of covenant by William Crew againt Charles W. Whitlock, to recover damages for the breach of warranty of title, contained in a deed executed by Whitlock, conveying a certain lot of land situated in the county of Muscogee.

Petition for mandamus, from Forsyth county. Decision by Judge Rice, at February Term, 1859. This was an application by Elisha King, for a mandamus to be directed to Hubbard Barker, ordinary and commissioner of the poor school fund, for the county of Forsyth, to compel said Barker to pay to petitioner the amount of certain claims and accounts due to him, out of said fund in the hands of said Barker.

Trespass, from Floyd county. Nonsuit, by Judge Hammond, at August Term, 1858. This was an action of trespass brought by Warrington Hunt against Daniel S. Printup, Esquire, an attorney at law, for unlawfully levying upon and seizing and taking possession of about ten negroes belonging to plaintiff. under and by virtue of an attachment sued out in favor of one Martin Ketzmiller against Jacob Davault.

In equity, in Thomas Superior Court. Decision by Judge Love, January, 1859. This bill was filed by 'Carey S. 'Cox against Ephraim G. Ponder, to enjoin the collection of a judgment at law, obtained against complainant.

The verdict of a jury on an issue, on a plea in abatement to the jurisdiction of the court, sustaining their jurisdiction, when there was evidence on both sides, will not be disturbed. Motion for New Trial, in Thomas Superior Court. Decision by Judge Love, February, 1859. James W. Smith brought suit against William H. Hendry, returnable to the May term, 1854, of the Superior Court of Thomas county. The writ was filed in office 31si December; 1853.

Assumpsit, in Greene Superior court. Tried before Judge Hardeman, March Term, 1859. This was an action of assumpsit, brought by James W. Godkins, as bearer, against George O. and Lucien W. Dawson, administrators of William C. Dawson, deceased, upon a promissory note made by deceased in his lifetime, dated 3d July, 1835, and payable one day after date to Grant & Hall, or bearer.

Assumpsit, in Greene Superior Court. Tried before Judge Hardeman, at March Term, 1859. This was an action by Elijah Osborne against David Herron, on the following promissory note: Peneield, September 16th, 1857. $ 100. Six months after date I promise to pay to E. Osborne, or bearer, One Hundred Dollars, value received, with interest from date. (Signed) ' D. Herron.

Trespass, in Greene Superior Court. Tried before Judge Hardeman, at March Term, 1859. This was a proceeding, under the statute, to recover the value of four cows, alleged to have been killed by the cars.

In Equity, in Putnam Superior Court. Tried before Judge Hammond, March Term, 1859. John D. Diomatari filed his bill against Thomas W» Choate, Uriah Ward, and John W. Caswell, to enjoin an action at law, brought on a judgment, formerly obtained against said Diomatari and Edward C. Clarke, as partners under the style and firm of Clarke & Diomatari.

Attachment, in J ones Superior Court. Decision by Judge Hardeman, April Term, 1859. This was an attachment sued out by Sarah J. Rearman against Ezra D. Morton, to recover damages for the breach of a marriage contract.

In Equity, in Hancock Superior Court. Decision by Judge Thomas, October Term, 1858. This was a bill filed by William P. Cato and James E. Cato against Samuel T. Gentry, Sterling G. Cato and Lewis E. Cato, executors of the last will of Green Cato, deceased. Green Cato died in 1888, after having made and executed his last will, dated November 14th, 1837.

<p>Caveat, in Madison Superior Court. Tried before Judge Thomas, March Term, 1859.</p> <p>At the trial upon the appeal, the following paper was propounded for record and probate as the last will and testament of Geore:e Brao-o'. deceased, viz :</p> <p>State of Georgia, 1 This indenture, made this, the Madison County. / 17th day of July, 1857, between Geo. Bragg, of the above State and county, of the one part, and Jeremiah T. Hall, son-in-law, of the same place, and Jefferson Jones, son-in-law, and'Thomas Z. Bragg, son, of the State of Mississippi, Newton county, of the other part, witnesseth, That the said George Bragg, after his burial expenses and the payment of all just debts, in consideration of the love and affection which he has and bears to his said sons-in-law, J. T. Hall and J. Jones, and son T. Z. Bragg, hath given, granted and conveyed, and does, by these presents, give, grant and convey, unto said J. T. Hall and J. Jones, sons-in-law,, and T. Z. Bragg, son, as aforesaid, and their heirs and assigns, all the property that he, the said George Bragg, owns and is possessed of at his death, except thirty dollars, which he gives to Lucy Parlee, the youngest child of Pamela Tucker; all the rest unto the said J. T. Hall and J. Jones, sons-in-law, and T. Z. Bragg, son, to have and to hold, and for their own use and benefit forever in fee simple.</p> <p>George Bragg, [seal.]</p> <p>Signed and sealed in the presence of Attest: Wilson P. Berryman. his William -|- Hall, mark. R. M. Brown. j</p> <p>After proving the execution of the paper by the subscriber’s witnesses, the propounder tendered it in evidence as the last will and testament of George Bragg, deceased. Counsel for caveatrix objected to the introduction of the paper, on the ground that it was not a will, but a deed, and as such, not the subject of record and probate in a court of Ordinary. The presiding judge sustaiued the objection and excluded the paper, and counsel for propounder excepted. The jury found for caveatrix, and counsel for propounder tendered their bill of exceptions, assigning as error said decision.</p>

Debt, for money won at cards, in Glasscock Superior Court. Decision by Judge Thomas, February Term, 1859. This was an action of debt brought by William M* Neal against William Todd and Jeremiah Killebreed, to recover money won at cards by defendants of John P. Bagget and Robert L. Niblet, under the provision, and by virtue of the act of 25th March, 1765, and the several acts passed before that time.

In Equity, in Elbert superior court. Decision by Judge Thomas, March Term, 1859. This was a bill filed by Robert McMillan against ¥m. T. YanDerzer, administrator of Ira Christian, deceased, and others. Complainant moved to amend his bill by striking out all that part which sought a discovery from the defendants, and to-insert a waiver or disclaimer of any discovery or answer as to the charges and allegations of the bill. Defendant objected to the amendment.

Proceedings against tenant holding over, in Warren superior court. Tried before Judge Thomas, April Term, 1859. This was a proceeding under the act of 1827, by Francis M. Usry, and Isaiah G. Usry, against Cullen R. Lockett, to recover possession of premises rented to Lockett, aud which he refused to deliver up at the expiration of the lease.

Attachment, in Hart Superior Court. Decision by Judge Thomas, at January adjourned Term, 1859. Erancis G-. Stowers sued out an attachment against James M. Carter, returnable to' Hart Superior Court. At the trial term, defendant moved to dismiss the attachment, because in the affidavit, which was made by the attorney of plaintiff, the ground of attachment was sworn to “ according to the best of the knowledge and belief ’’ of the deponent.

In equity, in Glasscock Superior Court. Decision by Judge Thomas, at Chambers, November 8, 1868. This was a bill for relief and injunction, filed by Asa Johnson, against Agustus C. Reese, Sheriff of Glasscock county, and others. The object of the bill was to set aside a sale of complainant’s land, made by Reese, as Sheriff under certain fi. fas.

In equity, in Elbert Superior Court. Tried before Judge Thomas, March Term, 1859. . This was a hill of interpleader, filed by John C. Burch, executor of Elizabeth Burch, deceased, against Thomas J.'Heard, administrator of Middleton C. Upshaw, deceased, Jeptha Harris and wife, John Upshaw, Joseph Brawner and wife, Seaborn J. Brawner and wife, Thomas B. Clark aucl wife, and Charles Hardeman.

Scire Facias, against Bail, in Oglethorpe superior court. Tried before Judge Thomas, April Term, 1859.

<p>An administrator is not subject to garnishment within twelve month's after his appointment.</p>

<p>Indictment for Forgery, in Gwinnett Superior Court. Tried before Judge Hutchins, at March Term, 1859.</p> <p>Chancy Couch, the plaintiff in error, was indicted and tried for forgery. The jury found the following verdict: “We,-the jury, find the defendant guilty of publishing and passing the receipt in question, knowing it to be a forgery — but we recommend him to mercy.”</p> <p>Whereupon, counsel for the prisoner moved in arrest of judgment upon the following grounds:</p> <p>1st. Because the verdict does not find the defendant guilty of any .crime or offence for which judgment or sentence can be pronounced against him.</p> <p>2nd. Because the verdict is a special and not a general verdict, and therefore illegal, and no judgment can be pronounced thereon.</p> <p>The court overruled the motion, and defendant excepted.</p>

In Equity, in Jackson Superior Court. Decision at Chambers, by Judge Hutchins. This was a bill filed by the executors of the last will and testament of William Parker, deceased, for direction as to the execution of said will, &c. The principal questions made by the bill were disposed of when the cáse was first before this court. — 19 Geo. Rep., 127.

Exception to award of arbitrators — in Wilkes Superior Court. Decided by Judge Thomas,-Term, 1859. The facts of this case are sufficiently stated in the following opinion pronounced by the Court.

<p>1. A will should be so construed, if possible, as to give effect to every ,, part; and hence, words which make a plain inequality between sons, on the one hand and daughters on the other, will not be overruled by other words, unless the latter words are incompatible with the. first.</p> <p>2. A bequest to daughters and their children, the daughters having no children in life at the time of the bequest, and if they shall die without issue then over — would create an estate tail in real estate, and hence under our law creates an estate absolute passing to the husbands on marriage ; and such husbands having received such estate consisting in part of proceeds of a sale of land, and having for many years acquiesced in such sale, cannot afterwards set it aside on the ground that the executor was a purchaser at his own sale, the sale having been a fair one at the time.</p>

<p>1. On the trial of a caveat, the court having put to the jurors the question, whether they had formed and expressed an opinion as to which party ohght to prevail, was requested by the caveator to ask those of them who answered this question, yes, the further question, what was the foundation of their opinion; and the court refused to put this further question.</p> <p>Held, That such refusal was not a sufficient ground for a new trial.</p> <p>2. A person who, by a release, has freed himself from all interest on the event of the suit, is competent as a witness.</p> <p>5. It is sufficient that the will of a person nearly blind, is read to him ; it is not necessar}' that the jading should be in the presence of the witnesses.</p> <p>4. That a jury may not think the provisions of a will, morally right, is not sufficient to authorize them to set the will aside.</p> <p>5. A juror, during the progress of the trial, slept one night in the same room with one of the counsel for the prevailing party, but it was a room in a tavern, and the only spare lodging place left; he paid his own expense ; slept in the same bed with the sheriff; there was no conversation about the case ; and there was evidence quite sufficient to support the verdict.</p> <p>Held, That this was not a sufficient cause for setting aside the verdict.</p>

Trover in Wayne superior court. Tried before Judge Cochran, at February Term, 1869. This was an action of trover by William M. Brown, as administrator of Aaron Strickland, deceased, against John Strickland, jr., for the recovery of a family of negroes, alleged in the declaration to belong to plaintiff, as administrator aforesaid.

Murder, in Glynn superior court. . Decision by Judge Cochran, at February Term, 1859. The case of Carey ~W. Styles, plaintiff in error, against the State of Georgia, was brought by writ of, error and bill of exceptions to the supreme court, held at Savannah, January term, 1859.

<p>A representation, that a person may be safely credited, if it does not indicate, with reasonable certainty, the amount for which it will be safe to credit him, is too uncertain to give a right of action.</p>

<p>1. The case of a witness introduced to impeach another witness, forms no exception to the general rule against the asking of leading questions.</p> <p>2. A request by defendant to charge that he was justified in shooting after prosecutor had attempted to shoot him, is objectionable, because it assumes the fact that prosecutor had attempted to shoot him ; and also because that fact alone, without its appearing ’for instance whether or not the prosecutor was continuing the combat, does not constitute a justification.</p> <p>3. Under an indictment for shooting at another, it is a very material matter whether or not the gun is loaded, and how loaded.</p>

Award, in Eiehmond Superior Court. Decision by Juge Holt, at November Term, 1858.

Complaint for rent — iu Chatham Superior Court. Tried before Judge Fleming, at May Term, 1858. This was an action by John Devanny, administrator or John Doyle, deceased, against Carl Epping,,fo.r the recovery of rent for a house and lot in the city of Savannah, for the term, of three years, at eight hundred dollars per annum.

<p>Suit on appearance bond, in attachment. In Chatham Superior Court. Decision on demurrer, by Judge Fleming, at January Term, 1859.</p> <p>Williams & Ratcliff sued out an attachment against John Reilly, returnable to the Superior Court of Chatham county, which was levied by Cole, sheriff of said county, on a grocery store occupied by Reilly, and the stock of goods therein, as the property of defendant; whereupon Reilly executed to the sheriff a bond, with McMahon as his security, conditioned “that if the said John Reilly should well and truly appear before the Superior Court of Chatham county, to which said attachment was returnable, and should then and there abide by and perform the order and judgment of said Court, touching said attachment, then said obligation to be void and of no effect, otherwise to remain in full force and virtue.” After-wards plaintiffs in attachment recovered judgment against Reilly for $575 damages, and $26 for cost. The plaintiff’s declaration alleged the foregoing facts, and further averred that Reilly, although often requested, had not paid said judgment, nor in any manner performed the same, but wholly refused and neglected so to do, by reason of which said breach the said bond had beeome forfeited, and an action had accrued to plaintiff, &c.</p> <p>To this declaration defendants demurred, and Judge Fleming, before whom the cause was heard, after argument sustained the demurrer.</p> <p>To which decision plaintiff, by his counsel, excepted, and assigns the same as error, on the following grounds:</p> <p>3. Because the Court erred in deciding that the bond, executed by the defendants, and upon which suit is brought, was an ordinary bail bond.</p> <p>2. Because the Court erred in holding that the condition of said bond was performed by the appearance of defendant, without satisfying the judgment.</p> <p>8. Because the Court erred in sustaining the demurrer.</p>

<p>1. A plaintiff amended liis declaration by substituting another person for himself. This amendment- was struck out, on the objection of the defendant.</p> <p>Held, that the effect was to restore the case to its first condition, and therefore was to make him become the plaintiff again.</p> <p>2. An argument drawn from matter not contained in the record, must be disregarded.</p> <p>3. To a scire facias to make • a party plaintiff, the defendant pleaded a retraxit by the previous plaintiff, and a “settlement” with the previous plaintiff. The Court declined to divido these pleas, but saved them for a defence to the defendant on the trial of the action.</p> <p>Held, that this action ought not- to be disturbed.</p>

Tndietment for Forgery- and Counterfeiting. Motion .for new trial. In Chatham Superior Court. 'Tried before Judge Fleming, at January Term, 1859.

In Equity, in Tatnall .Superior Court. Decision on demurrer by Judge Fleming, May, 1859. This -was a bill filed by Benjamin Brewton as the administrator, cum testamento annexe, of Edward Kennedy, deceased, late of Tatnall county, and as the next friend of the infant children of deceased, against William Smith and Ebaline, his wife. The object of the bill was to enjoin an action at law and to reform certain deeds executed by the said Edward Kennedy in his lifetime.

<p>Certiorari, in Chatham superior court. Decision by Judge Fleming, at January Term, 1859.</p> <p>Willis, and about forty other slaves belonging to Wm. B. Giles, were arrested and brought,before a court of magistrates charged with the crime of murder. Upon examination of the witnesses, the magistrates were of opinion that there was sufficient evidence to warrant the commitment of Willis to the jail of Chatham county, to stand his trial for the alleged offence, and he was accordingly committed. As to the others, there being no evidence at all against them, the court ordered that they be discharged from arrest, upon the payment of the jail fees and all the costs of the examination.</p> <p>To this order, William B Giles, the owner of the slaves, excepted, and the question was brought by certiorari before the superior court, when, after argument, Judge Fleming made the following decision, viz :</p> <p>William B. Giles, v vs. I Certiorari. The State of Georgia, j</p> <p>By the 11th section of the Act of 1811, it is enacted ££ when any person charged with any offence and brought before a justice or justices of the peace, shall be discharged for want of sufficient cause of commitment, the justice or justices may, in his or their discretion, discharge the party with costs, or direct the costs to be paid by the prosecution.” As I understand this Act the costs are to be paid by the party charged or by the prosecutor, and it is left to the justice or justices to say which party shall pay costs. I do not understand that the justices may throw the costs upon the county. This discretion given by the statute may perhaps sometimes be exercised arbitrarily, and in such cases I do not doubt the power of this court to review it. In the absence of any proof that this discretion has been arbitrarily exercised, I do not feel myself at liberty to interfere with it. I should say the prosecutor ought never to be burdened with costs where the justice is satisfied that he has acted in good faith and with a view to the public good. Public policy requires this, for otherwise no man would move in a prosecution from considerations .of public good or for the ¡momotion of public justice. This record furnishes no proof that the prosecutor in this case acted from malicious motives. We must therefore assume that he acted in good faith, and if he acted in good frith, he ought not to be made to pay costs.. True, it seems hard that the accused should be made to pay, but this is his misfortune. So far as appears from this record, my opinion is that the discretion was properly exercised. I except from this, of course, the case of the slave committed for trial. In that case the costs should wait the result. Let the judgment be affirmed.</p> <p>W. B. FLEMING.</p> <p> Judge JS. D. Geo. </p> <p>To which decision counsel for Giles excepts, and assigns the same as error.</p>

Ejectment, in- Tatnall superior court. Before Judge Fleminu, at March Term, 1859. ’This was an action of ejectment brought by Samuel Davis against James B. Stripling, for the recovery of one hundred acres of land situated in the county of Tatnall.

Trover and Nonsuit, in Stewart Superior Court. Before Judge Kiddoo, April Term', 1859.

Summary proceedings, to eject tenant holding over. In Terrell .Superior Court, Allen, Judge, presiding, at May Term, 1859. .This was a summary proceeding, urtderthe act of 1827, by William J. Parker, to evict from the possession of premises leased, Emanuel P. Beeman, a tenant holding over after the termination of the lease.

Dower) in Houston Superior- Court. Decision by jUdge Lamar, April Term, 1859. Abigail M. Hart, as the widow of Levi Hart, deceased, filed her petition to have dower assigned to her, in lot of land No. 9, situated in the thirteenth [13) District of Houston. The defendant pleaded— 1st. That applicant was not the Widow of Levi Harts 2d. The statute of limitations. Plaintiff'proved her marriage with Levi Plart, the de* ceased, 15th July, 1818, and that he died in December, 1853.

Motion to distribute money, in Terrell Superior Court. Decision by Judge Kiddoo, at May adjourned Term, 1$59. Robert McLin instituted bis action of trover against Matthew E. Williams, for the recovery of a negro woman and child, alleged to be the property of McLin. Pending this suit, the sheriff of Terrell county, by virtue of sundry fi. fas. against Williams, amongst other property, levied upon the negroes sued for in the trover suit and sold them. They were sold for $925.

Ejectment, in Clay Superior Court. Tried before Judge Xiddoo, and motion for new trial heard and decided at March Term, 1859. This was an action of ejectment upon the several demises of Absalom Hanby and Azariah Doss, against Sarah E-Tucker, tenant in possession, for recovery of lot of land number 383, in the seventh district of originally Lee, but now Clay, county.

Nonsuit, and motion to reinstate the case. Decision by Judge Lamar, in Talbot Superior Court, March Term, ' 1859. Brown & McCoy brought suit (for the use of Thomas A. Brown) against Simeon Deloach on an account for goods, &c., furnished by said firm to Seaborn Deloach and charged on the books of the firm to Seaborn Deloach.

<p>When the verdict is contrary to the evidence, a judgment ordering a new trial ought not to be disturbed.</p>

<p>The return of service on the writ, by the sheriff, cannot be traversed, except for fraud or collusion.</p>

In Equity, in Olay Superior Court. Decision by Judge Kiddoo, at Chambers, 10th June, 1859. This was a bill in equity, filed by Shelton R. Weaver against Thomas Garner and others, to enjoin the collection at law of a promissory note of three thousand dollars, given by complainant to Garner, and which, by successive transfers, had come to the hands of Alexander E. Green, who had instituted his action at law for its recovery.

Trover, in Randolph. Superior Court. Tried before Judge Allen, at November Term, 1858. Rule1 nisi, for a new trial, heard at May Term, 1859. This was an action of trover brought by John B. Mulligan, plaintiff in error, against John Bailey, defendant, for a negro man named Dave, alleged to be the property of plaintiff.

<p>Complaint for land, in Lee Superior Court. Tried before Judge Allen, April Term, 1859.</p> <p>This was an action for the recovery of lot of land No. 86, in the first district of Lee county.</p> <p>Plaintiffs having closed, defendant- tendered in evidence a deed from David Hataway, the grantee, and under whom plaintiffs claimed — deed dated in 1841, which purported to be, and was executed by one Simeon Nicholson as the attorney in fact of said David — power of attorney executed in 1827 or 1828, recited to be made for value received and irrevocable on its face, and by which. Nicholson was authorized to sell aud convey the lot of land in controversy.</p> <p>Other evidence was offered, bringing the title down from Hataway’s vendee under the deed executed by Nicholson, to defendant.</p> <p>Counsel for defendant requested the court to charge the jury, that if they believed, from the evidence, that David Hataway, in his lifetime, executed the power of attorney, and it was for value received and made irrevocable, and empowered Nicholson to sell said land, then the deed of conveyance was good and valid, and that, notwithstanding the death of Hataway, if Nicholson, the attorney, had no notice of his death; and that a subsequent purchaser, without notice, held the better title as against plaintiffs, the heirs-at-law of Hataway.</p> <p>The court refused so to charge, but, on the contrary, charged the jury, that the death of Hataway revoked the power of attorney, and that, whether the attorney had notice of his death or not.</p> <p>To which charge, and refusal to charge, defendant excepted.</p> <p>Defendant moved to strike out the amendment to the declaration, making other parties plaintiffs. The court refused the motion and defendant excepted.</p>

<p>A decree for damages in a bill filed for indemnity by a vendor against ^his warrantor, is premature, notwithstanding the eviction of the vendee, it not appearing that the vendor has been actually damnified ; he is only entitled to be secured against future loss by his Warrantor.</p>

Caveat to grant of administration, in' Randolph and Quitman Superior Courts. Decisions by Judge Kiddoo. The facts of this case, as presented in the bill of exceptions, are about as follows : John Glisson applied to the Court of Ordinary of Randolph county for letters of administration on the estate of William H. Carter, deceased. Joseph H. Carter filed his caveat to this application. The Ordinary granted the letters and Carter appealed.

Certiorari. Tried before Judge Worrill, Taylor Superior Court, March Term, 1859. George W. Radcliff brought suit in the Justiees’ Court of the 807th district G. M., against James L. Brasington, and garnisheed Lamb & Mathis, partners, and one David Golden. The garnishees answered, denying that they had any effects of Brasington in their hands.

<p>Demurrer in Marion. Decided by Judge Worrill, March Term, 1859.</p> <p>Thaddeus Oliver filed his hill to the February Term, 1855, of Marion Superior Court, against George W. Mc-Duffie. The bill stated that during the year 1850 the complainant followed the business of school teaching, and taught and instructed Isabella Everingham and Mary Everingham, orphans of Lewis Everingham; that their tuition amounted to the sum of forty-four dollars and eight cents; that subsequently the defendant, by the ordinary of said county, was appointed guardian for these minors, and, as such guardian, received into his possession about three thousand dollars; that the defendant, since his appointment, had often admitted the justice and correctness of the account, but refused to pay it, because the services were rendered prior to the appointment.</p> <p>The defendant demurred to the bill on two grounds:</p> <p>1st. Because there was n.o equity in the bill.</p> <p>2d. Because the case made by the bill showed that the complainant had a clear, complete and adequate remedy at law.</p> <p>The court sustained the demurrer and dismissed the bill; and complainant excepted and now assigns the same for error.</p>

Assumpsit, in Randolph superior court. Tried before J udge Kiddoo, at May Term, 1859.

Eoreclosure of mortgage, in Sumpter superior court. Tried before Judge Allen, April Term, 1859. This was % proceeding to foreclose a mortgage. Plain* tiff' offered and read in evidence his mortgage and notes, and closed.

Complaint, in Stewart superior court. Tried before Judge Kiddoo, April Term, 1859. The facts in these two cases being the same, they were heard and determined together. The first was a case brought by the Mechanics’ Savings Bank, against Cox as acceptor, and John A. Tucker as drawer and endorser of a bill of exchange; the other was against Burke as acceptor, and Tucker & Beall as drawers and endorsers. Plaintiff introduced the bill in evidence and closed.

<p>The return of service on a writ by the sheriff cannot he controverted except for fraud or collusion. — See Tillman vs. Davis, decided at the present term.</p>

Caveat to will, in Harris superior court. Tried before Judge Worrill, April Term, 1859.

A capias ad satisfaciendum issued from the superior court of Baker county at the instance of William H. Davidson, against Walter B. Mason.

Complaint, in Baker superior court. Tried before Allen, Judge, at May Term, 1859. This was an action by Matthew Whitfield, administrator of John Tompkins, deceased, against James Bond, on a copy draft, which had before been established by proceedings had for the purpose, in lieu of the original which was lost. The following is a copy of the draft sued on: “ $2644 81. Albany,-Geo., March 26,1857.

<p>Claim, in Talbot superior court. Tried before Judge Worriil, at March Term, 1859.</p> <p>By virtue of an ‘execution in favor of Levi B. Smith, executor of Janies Stanford, deceased, against "William Caraway, the sheriff of Talbot county levied on a negro man, named James, as the property of defendant. Caraway, as the legally appointed guardian of his infant children, interposed a claim, alleging that said negro belonged to them, and was not subject to said.fi. fa. against him. Issue was joined and the following testimony introduced:</p> <p>’William Caraway, the defendant in fi. fa., and guardian, claiming the negro, introduced by plaintiff, and without objection on the part of his, Caraway’s, counsel, testified, that the boy Jim, was received by him from Levi B. Smith, the executor of the last will and testament of James Sandford, deceased, for his wife, the daughter of testator, in the year 1858, and that he so held him for her until her death in ,1856. That he had been appointed guardian of her children, since her death, by the ordinary of Upson county, and that he held said negro as guardian of said minor children. That the negro Jim levied on, is the negro “James” mentioned in the third item of the nuncupative will of said James Sanford, and that he had been in witness’ possesion from the death of James Sanford up to the time of the levy.</p> <p>The 8d item of the nuncupative will of James Sanford is as follows:</p> <p>“ 3. He settles by will James, Sukey, and Emily on Mrs. Mary Ann Caraway and the natural heirs of her body after her death.”</p> <p>In the last paragraph Levi B. Smith is appointed executor.</p> <p>The testimony being closed, the court held and charged that under the above clause of said will, the negro, James, vested absolutely in Mrs. Caraway. The jury found the property subject to the execution, and claimant moved for a new trial on the following grounds :</p> <p>1st. Because the court erred in refusing to dismiss the levy, moved for by counsel for claimant, upon the ground that there was no evidence showing that the title, in the negro levied on, was in the defendant in fi. fa.</p> <p>2. Because the court erred in holding that the will of James Sanford vested an absolute title, to the slave levied on, in his daughter Mary Caraway.</p> <p>3. Because the verdict is contrary to the evidence and without evidence.</p> <p>4. Because the verdict is contrary to law.</p> <p>5. Because the court erred in allowing the defendant, Caraway, to testify on the part of plaintiff in fi. fa. — no objection being made at the time or during the trial.</p> <p>The court overruled the motion and refused to grant a new trial, and claimant excepts, and assigns error.</p>

Case, in Muscogee superior court. Tried before Judge Worrill, at November Term, 1858. Motion for new trial, decided at May Term, 1859. This was an action by the executors of Doctor Samuel Boykin, deceased, against Thomas Berry and others, owners of the steam-boat Franklin, to recover the value of one hundred and thirty-four bales of cotton, shipped on said boat and destroyed by fire. This is the second time this case has been before this court. — See 21 Vol. Geo.

Assumpsit, in Webster Superior Court. Tried before Judge Kiddoo, at March Term, 1859.

Habeas Corpus, iu Muscogee Superior Court. Decision by Judge Worrill, at May Term, 1859. This was an application by plaintiff in error, to be discharged from an alleged illegal imprisonment to which he was subjected, under, and by virtue of, a warrant issued by the city council of Columbus, for a violation of one of the market ordinances of said city.

<p>Security upon a ne exeat bond, when sued thereon, cannot object to the sufficiency of the affidavit upon which the bill was sanctioned.</p>

Complaint, in Lee Superior Court, and Nonsuit, by Judge Allen, March Term, 1859. This was an action on the following contract brought against Wootten, administrator de bonis non, with the will annexed, of Enoch Johns, deceased.

Caveat to will, in Twiggs Superior Court. Tried before Judge Lamar, March Term, 1859. This was an appeal from the Ordinary, in the matter of propounding for probate the last will and testament of John W. Allen, deceased, late of the county of Twiggs. Wyatt Meredith and wife, who was the sister of decedent, filed their caveat to the probate of said will.

Indictment for an attempt to poison, in Harris Superior Court. Tried before Judge Worrill; at April Term, 1859. .

<p>In Equity, in Randolph Superior Court. Decision by Judge Kiddoo, at Chambers, June, 1859.</p> <p>This was a bill filed by Smith & Lennard, partners, to 'enjoin proreeedings under an execution, which had been levied on certain property alleged to belong to complainants.</p> <p>The hill states, that complainants purchased, in October, 1856, frorq, Lodwich E. Lard a lot or parcel of land in the town of Cuthbert, and took his deed of conveyance for the same. That at the time, there was an execution against Lard, in favor of E. H. Marlin, amounting to about fourteen hundred dollars, which execution had been transferred to John M. K. Gunn, who became, and is now the legal owner thereof.</p> <p>The bill further states that about the 1st October, 1856, said execution was levied upon certain property, as that of defendant Lard, and said levy advertised by the sheriff as “ one-third interest of steam mills and fixtures, together with one-third interest of eleven hundred acres of land immediately attached, being the interest formerly owned by Thomas Douglas; one-third of one-half of lot of land, No. 118; one-third interest of lot of land lying east of the mill, and cornering on the Hugh McKinnon lot, number not known; one-third saw timber on lot of land No¿ 112; one-third saw-timber on lot No. 29, all in the 6th district of Randolph county, levied on as the property of L. E. Lard and Martin D. Kendrick, under a ji. fa. issued from the Superior Court of Randolph county, in favor of E. H. Marlin, against L. E. Lard and M. D. Kendrick, makers, and Thomas D. Douglas and William E. Callier, endorsers, and others, in my hands.”</p> <p>That underpaid levy and advertisement, said property was offered for sale on the first Tuesday in January, 1857, and bought by one John Hendricks, at and for the sum of $ 1810, he being at that price the highest bidder, but said purchaser refused to comply with his bid and pay the amount thereof, on the ground that the sale was illegal and void.</p> <p>The bill further states that the property was re-advertised for sale, and that this advertisement stated that the’ property had been levied on as the property of Lard, to be sold at the risk of the purchaser; and that in May, 1857, it was again offered for sale by the sheriff, when John M. K. Q-unn, the assignee of the ji. jfa. became the pui’chaser of the lot, and for the sum of one thousand dollars, he being at that price the highest bidder, and the sheriff executed and delivered to him a deed for the property, and put him into possession of the same.</p> <p>The bill further states, that tinder legal proceedings had to enforce the bid made at the first sale by Hendricks, or the difference between that bid and the last sale, it was held and determined by the Supreme Court of the State, that said sale was void. And complainants allege and submit that the first sale being adjudged void, the second sale made in May, thereafter, was also null and void, and that said property still belongs to Lard, and subject to said ji. fa. The levy endorsed by the sheriff'on the ji. fa. designated the property as that of all the defendants in the execution, while the advertisement mentions or describes it as the property of Lard alone, and for which reason, said sale was held and adjudged illegal and void.</p> <p>The bill further charges, that if the first sale had been legal, the purchaser would have complied with his bid, and thus an amount sufficient to satisfy said Execution would have been raised and paid thereon. And that if the levy and advertisement had corresponded at the last sale, the property would have sold for more than enough to satisfy said fi.fia., and thus the property purchased of Lard by complainants discharged from its lien, whereas there is still due on said fi. fa. about $900, and the same has been levied upon complainant’s lot, and advertised to be sold. That Lard is insolvent, and the warranty contained in his deed to complainants, unavailing and worthless.</p> <p>The prayer of the bill is, that said fi. fa. be enjoined, and that the sheriff and Gunn be restrained from proceeding with said levy and sale, &c.</p> <p>The Judge refused to sanction the bill and to grant an injunction as prayed for, and complainants except, and assign error. .</p>

<p>Case, in Muscogee Superior Court. Tried before Judge Worrili, at November Term, 1868. Motion for new trial granted at May Term, 1859.</p> <p>This was an action on the case brought by Ann C. Cook against Seaborn Jones, for building and erecting a mill dam across the Chattahoochee river, thereby wrongfully causing the water of said river to back upon and overflow the premises ot plaintiff, lying and situated on said' river, above said mill dam.</p> <p>The defendant pleaded, first, the general issue; second, a license from the former owner of the premises alleged to be overflowed, to erect and build said bridge to its present height; and third, the statute of limitations, that said dam had been erected more than seven years, and that defendant had been in the quiet andpeaceable enjoyment of the right to back the water and overflow the land of plaintiff, for and during all that period.</p> <p>At the trial, plaintiff introduced in evidence a grant from the State to James C. Cook, for the premises overflowed. The last will and testament of said Cook, by which the land in question was devised to Ann C. Cook, his widow, the plaintiff, for and during her natural life.</p> <p>William H. Mitchell, for and on the part of plaintiff, testified that the land of the plaintiff is bounded on the west by the Chattahoochee river — went to' the dividing line between plaintiff and defendant, in 1840 — he thinks, with his step-father, James C. Cook, who showed witness the line, one that has been so considered for twenty-five years — the fence is on the line — it is some three-quarters of a mile from the city of Columbus — knows but little abopt water-power — -thinks that the water was raised in the channel of the river on plaintiff’s line — don’t know how much, but thinks some two or three feet; that the defendant erected a dam on the Chattahoochee river, upon his own land, and below the land of the plaintiff, about the year 1889 — thinks this dam caused the rise of water on plaintiff’s line — went to defendant’s mill some time after the dam was broken- in the spring of 1841, when the mill was rented to one Bridges; he was grinding with the dam some three or four feet high, as witness thinks, and with a peculiar kind of wheel, thinks it was a cast wheel — don’t know how high the dam was, and has not been to the mill in fifteen years — thinks that the water-powTer of the plaintiff was damaged by the dam at least one hundred dollars. James 0. Cook died in the autumn of 1844.</p> <p>N. Nuohols «worn, for plaintiff, testified that he was a mill-wright — knows all about mills and water-power — knows the line between plaintiff and defendant — went to the line in 1855, when the dam was broken, and the river low, and nailed a measuring rod to the root of a tree at plaintiff’s line, in the water, and went there one year after, when the dam was mended, and found the water raised in the channel of the river, on plaintiff’s line, five feet eight inches’and three-quarters higher than when he measured it a year previously. That the measurements were made when the water in the river was at an ordinary stage, at its average height. Thinks that if plaintiff wished to use or sell her water-power, that the dam would injure its value from one to two thousand dollars, maybe ten thousand dollars.</p> <p>Here plaintiff rested.</p> <p> Evidence for Defendant. </p> <p>Richard Powell testified that Ur. Ingersoll built thefirst dam before the year 1839. Upton erected a dam for Jones in 1839, this dam raised the water higher than the old dam; the dam built by Upton, in 1839, was partially destroyed in the spring of 1841 by a freshet, sixty or eighty yards next the eastern bank, leaving the mill house near the middle of the river. In the fall of 1841 or 1842, Jonathan Bridges, under the direction, and in the service of defendant, moved the mill house to the then eastern bank, and about fifty yards lower down, and the dam was repaired, and a low basin dam was built round to the mill house. The dam repaired did not supply a sufficient quantity of water, and witness assisted Bridges to place rafts upon the dam to raise the water higher — by this means the water was raised some four or five feet high on the dam — the rafts were placed there some time between 1841 and 1843, but does not know the precise time — does not know when J. C. Cook died, and therefore cannot say whether it was during his life ; thinksgdefendant has expended upon the mill and machinery five or ten thousand dollars. Since the erection of the dam by Upton, there is from 12 to 18 inches fall from the orignal site of the mill to where it now stands (some fifty steps lower down the river.) The freshet of 1841 did not entirely stop the mill, but it continued to grind a little up to the time the mill house was removed below by Bridges.</p> <p>Joseph Jefferson sworn, says that he went to the mill in in 1845 — witness repaired the dam in 1845 — the dam as repaired was lower than the old dam, as can be seen by the water falling from the old dam — the new dam is some fifty yards below the site of the original dam on the eastern side of the river, and is lower than the old dam — was planked and the cracks stopped, because the old dam leaked, and had sunk in places, and would not hold water enough for the mill, and has continued to be repaired up to this time.</p> <p>B. L. Bass testified that he was a civil engineer — examined the premises — took the level of the water on the 24th May, 1858, when the water was running over the dam, and found the level of the water at the dam to be 30-100 of a foot lower than at the line between plaintiff’s and defendant’s land above. In taking this level, did not take the level of the bottom of the river, owing to the irregularities of the bed of the stream, no accurate level could be taken on a general average, but the level of the surface of the river can be accurately taken, and was taken as stated; upon the day the level was made, the dam did not back the water to plaintiff’s line; from the point to which the back water reached, to plaintiff’s line, there was a fall of 30-100 of a foot — from the level of the water in the waste-way under the wheel (which was blasted out) to the level of the water in the pond was about seven feet.</p> <p>David W. Upton examined by commission, deposed that he knew James Cook in his life time — built a house for him at one time. Witness is a mill-wright, and has worked at the trade since 1822. He was employed by Seaborn Jones to build a mill dam across the Chattahoochee river, just above the city of Columbus, and to erect a grist mill — commenced in May, 1838, and finished the latter part of 1839. He took the level of the river from where the dam was built to the line that divided the land of Jones and James Cook, he took this level in order not to overflow Cook’s land by raising the water too high, intended to build the dam five feet high. While he was framing the dam, Cook was there a number of times, had a conversation with him, and informed him that the dam was to be built five feet high, but that it would be better to raise it six feet. Cook at first objected to its being raised six feet, but concluded by giving witness permission to raise it six feet, as he, Cook, did not think that it would materially injure his land above, and the dam was raised accordingly. -Jones was absent from' home at the time the plan of making the dam six feet high, instead of five, was thus made, with the consent and approbation of Cook. After Jones returned, witness informed him of the change in the dam, and he seemed satisfied with the arrangement.</p> <p>To Gross Interrogatory. — Dam was finished, according to the best of his recollection, in the latter part of 1839— does not know where the present dam is. The levels were taken to the line dividing the lands of Cookand Jones, from the dam', and the fall was just five feet, and that was the height first intended for-the dam, but-by Mr. Cook’s consent the dam was built one foot higher — he consented to the erection of the dam, but witness did not state to him that the dam when built would back water- on him — if Cook.made any mark on the tree, or notified witness or Col. Jones that if the dam backed water on hinrhe would object — -witness has no recollection of the same, and does not believe that- such Was the case. The dam did back water on Cook’s land, and he did not object to it, as witness knows — does -not know of any of suit being, brought by Cook against Jones after the. dam was built, but before the dam was framed,- .Cook threatened suit against Jones, but afterwards, when the dam was erected, he appeared satisfied. The freshet did not wash away the dam, but as to doing away the necessity- of-the suit, deponent saitk not. Did not state to Cook that the dam would not back water on him, but told him that it would.</p> <p>Ii'ere defendant closed.</p> <p>Plaintiff in reply, proved by David Wynn, that in 1845. he worked on the dam for Bridges, the lessee. o.f Jones-put some rafters on it, and planked up the dam, and raised the water some four or five feet on the dam. Did not measure the water, but calculated the depth of the head by the velocity of tfie wheel, as is customary among millers — placed the rafters over the old dam because it was sunk down in places, leaked and would not hold water, enough. Repaired dam in 1851, and made it raise the water higher than before, it having-sunk down in parts and leaked. Built another dam in 1855, lower down, by the order of J ones, commenced on the western bank of the river, as near the old dam as he could, and run diagonally across the stream to the island where the mill house now stands, to assist the old dam to hold the water; the new dam was built because it was cheaper and easier to build ,a new dam than to repair the- old one — new dam raises the water about five feet — there are 12 or 18 inches more fall at the place where the mill now is than at the place where it originally stood. Is well acquainted with the river, and it was over the average height on the 24th of May, 1858.</p> <p>. Benoni Smith for plaintiff, testified that he_ worked on the dam for Bridges, Jones’ lessee, in the fall of 1844, and suggested to Bridges to put flash boards on the dam, but he did not do it. Saw James C. Cook at the mill while he was working on the dam — was stopping the cracks, and planking the dam, because it leaked and did not hold water enough. Bridges tried to work a breast wheel, but could not succeed. Has been a great deal on the river, and on the 24th May, 1848, the river was high, above an average height.</p> <p>JD. W Upton for plantiff, deposed that he had been examined in the case by defendant. Witness in his answers then did say, that James Cook consented to the erection of a dam six feet high. Witness meant to say that Mr. Cook came to the mill site one day when witness was ' framing said dam, designing to build it five feet high — witness said to Mr. Cook that it would be very desirable to have another foot added to the height, to which he objected. Witness then explained to him that he had leveled the river from the mill site up to the place Col. Jones had pointed out as the line between them, and found five feet fall from the bottom of the shoal at the mill site up to the top of the water at said line. Witness further explained to Mr. Cook that he thought the sheet of water which would pour over the dam would be one foot thick, and that taking the dam to be five feet high, the water would be raised one foot above its natural state or level at said line, and by making it one foot higher, the water would be raised another foot at said point. Mr. Cook then said if that were the case, he had no objection, for that he did notjbelieve that the two ieet back water would overflow, or at all injure his low grounds — he expressed fears that in time of a freshet the dam six feet high would cause the water to back upon him and overflow his low grounds, more than it otherwise would do. Witness told him bethought he need not apprehend such a result, as a freshet was less perceptible -above a dam than elsewhere, after this statement, Mr. Cookseenied satisfied, and. gave his consent to the erect ion of the dam six feet high. Witness went on and built the dam six feet high, and don’t recollect that he ever had. any other conversation after-wards with Mr. Cook, relative to the dam. Mr. Cook consented to have the water raised two feet high at the time, but objected all the time to its- being thrown back on- his-low grounds. Both witness a-nd Cook understood that a dam six feet high would raise and back the water two feet at the line between him and Jones, and believes that the consent of Mr. Cook "was given to the raising of the dam one foot higher, under the belief that the water would not be raised more than two feet above its ordinary height at said line — when he said that he did noc think the six foot dam would injure him, he meant that two-feet of back water would not, as witness understood him;witness has no recollection of making the fall seven feet and a half, or six feet and half — his recollection is that it was five feet or thereabouts. He did not report seven and a half or six and a half feet to Mr. Cook, either alone- or in the presence of any one or more persons.</p> <p>Here the testimony closed.</p> <p>The court charged the jury, who returned a verdict of one thousand dollars for the plaintiff, whereupon defendant moved for a new trial, upon the following grounds, to-wit:</p> <p>First. Because the jury found contrary to láw.</p> <p>Second. Because the verdict is contrary to evidence.</p> <p>Third. Because the verdict is contrary to the weight of evidence.</p> <p>Fourth. Because the jury found contrary to the charge -of the court.</p> <p>Fifth. Because the damages are excessive.</p> <p>Plaintiff offered to write off the damages to an amount which the court might deem reasontfble, if it thought them excessive.</p> <p>After argument, the presiding judge set aside the verdict and granted a new trial, to which decision counsel for plaintiff excepted.</p>

In Equity, in Lee Superior Court. Tried before Judge Allen, at March Term, 1859. An action of ejectment was brought against the defendant in error fox lot No. 14 in the 2nd district of Lee county, at the instance of James Bond, in the names of Ransom Cain and James Morris. At the trial on the appeal the case turned on the question whether a deed made by Cain to Morris, and one by Morris to Bond were void under the statute. — 32 Henry 8th, ch. 9th.

<p>An answer that admits enough of the bill to entitle the complainant to the decree he prays for, is sufficient, whether it answers all of the bill or not.</p>

<p>The indictment charged the defendant as a principal.. The evidence showed that another inflicted the mortal blow — the prisoner being present, aiding and abetting. Held, That the variance was immaterial ; both being principals in law, as well as in deed; and the stroke of one being in larv the stroke of the other.</p>

Rule, against sheriff. Motion to have fi. fa. returned and entered satisfied. Decision by Judge Allen, at Baker superior court, May Term, 1859. On the 17th of June, 1847, a writ of fieri facias was issued from the superior court of Baker county, in favor of Josiah Respass, against William H. Luckie, as principal,' and Anderson D. Moore and Carna Burnam, -as securities..