Volume 29 — Georgia Reports

Ejectment, in Marion Superior Court. Tried before Judge Worrill, at March Term, 1859. This suit was brought by plaintiff in error, for the recovery of lot ofland number one hundred and three, in the eleventh district of Marion county.

In Equity, motion to reinstate cause, &c. Before Judge Worrill, in Muscogee Superior Court, May Term, 1859.

<p>[1.] An administrator is not entitled to commissions on property turned over by him lo a distributee.</p> <p>[2.] The statute organizing the Supreme Court, makes no provision for the hearing of ex parte cases.</p>

<p>In Equity, in Dooly Superior Court. Decision by Judge Xamar, at Chambers, January, 1859.</p> <p>Homer M. Key and Edward O. Sheffield filed their bill against Alexander J. Robison, administrator of Seymour R. Bonner, deceased, to enjoin certain actions at law5 pending in Dooly Superior Court, against complainants, on certain promissory notes. These notes were given by complainants to Bonner in his lifetime, in part of the purchase money of three lots of land, sold to or bought for them by Bonner, situated in the county of Worth. Bonner resided in the county of Muscogee, where his administrator,. Robinson, the plaintiff in the actions .at law, also resides; ' complainants, who were the defendants at law, reside in the county of Dooly.</p> <p>The Judge refused his sanction to the bill and to grant the injunction prayed for, on the grounds that the defendant Robison, did not reside in the county of Dooly, but in the county of Muscogee, and that the bill not only prayed to enjoin the actions at law pending in Dooly county, but sought a decree against the defendant, to set aside and cancel the alleged fraudulent sale, and to compel him to refund money-paid and expended in the action of ejectment, wherein one of the lots of land had been lost. That it was not merely a bill for injunction and discovery, but also for relief.</p> <p>To which refusal and decision, counsel for complainants excepted.</p>

Indictment, in Bibb Superior Court. Tried before Judge Cochran, at May Term, 1859. The plaintiff in error was indicted and found guilty of unlawfully furnishing a slave with spirituous liquor. Her counsel moved for a new trial on the following grounds, to-wit: 1st. Because the Court erred in refusing to allow prisoner to challenge peremptorily, seven of the panel of petit jurors put upon her.

lu Equity, from Muscogee Superior Court. Decided by dodge Worrill, at May Term, 1859.

Bill for discovery, relief and injunction. Decision by Judge Lamar, at chambers, 6th April, 1859. This bill was brought by Stephen K. Ham, against Benjamin B. Hamilton, of the county of Dooly. The bill charges, that some time in the month of December, 1856, Hamilton proposed to sell to Ham, a settlement of land in Dooly county, containing five hundred and thirty acres. There were three parcels of the land — two whole lots and a parí of another lot.

<p>When the maker of a note offers it in evidence to prove that he has paid it oil* it is incumbent on him first, to prove that the paper which he offers is the one which was in circulation.</p>

Ejectment, in Stewart Superior Court. Tried before Judge Ejddoo, at April Term, 1859. .This was an action of ejectment by Doe, ex dem., against Doe, casual ejector, and Norman H. Lewis, tenant in possession, for lot of land No. 33, in the 20th district of Stewart county. The declaration contained four demises; from Jonathan Stanford, George Gunby, Benjamin T. Bethune, and Robert M. Gunby, administrator of Benjamin T. Bethune, deceased.

Debt. Decided by Judge Worrill, June Term, 1859, of Muscogee Superior Court. At the July Term, 1S42, of the Inferior Court of Muscogee county, L. J. Davies sued A H. Flewellen, as the administrator of N. H. Harris, on a note made by Harris. The administrator filed a plea to the action, in which he set out, that the only assets he had in hand, belonging to the estate of Harris, were certain notes. It was not plead that there were any other creditors of Harris.

In Equity, in Macon Superior Court. Tried before Judge Worried, at March Term, 1859. Dudley Snead filed this bill against Needham Massee, returnable to the Superior Court of said county, March Term, 1859. The bill alleges, that co m plain ait t, in Lee Superior Court, at September Term, 1857, under the Act of 1856, (Pamph. p, 260J adopted John Needham Massee, son of Needham W. Massee; that both the father and mother of said child were dead at that time.

Certiorari, in Dougherty Superior Court. Decision by Judge Allen, at chambers. The facts of this case are as follows: ■ Bennett Adams was brought up before the Mayor of the city of Albany, (the honorable Richard F. Lyon) on a charge of selling spirituous liquors in quantities over one quart and permitting the same to be drank in his house.

Ejectment and nonsuit, in Dooly Superior Court. Before Judge Lamar, April, 1859. Upon the trial of this case, plaintiff offered and read in evidence a copy grant from the State, for the premises in dispute, to Patrick Prescott, dated 23dMarch, 1824; then a certified copy from the records of the Inferior Court of Richmond county, proving the marriage of said Patrick, to Sarah Bush.

Case, and motion to make parties, in Baker Superior Court. Decision by Judge Allen, May Term, 1859. Jackson brought his action on the case against Csesar A. Savage for deceit. Pending the action and before trial, Savage died, and Newsom his executor was served with scire facias, to show cause why he should not be made a party-defendant in the place of his testator, and the cause proceed.

<p>Case, in Muscogee Superior Court. Tried before Judge Worrill, at May Term, 1859.</p> <p>This was an action on the case, brought originally by Birdsong & Sledge, against Peter' McLaren, for maliciously and without probable cause, suing out an attachment against plaintiffs, whereby their business as merchants was greatly damaged — in fact broken up. Damages laid at ten thousand dollars. Pending suit Birdsong died, and the action proceeded in the name of Sledge, the surviving partner.</p> <p>This is the second time this case has been before this Court, and the facts will be found fully reported in the 24th vol. Geo, Rep.</p> <p>Upon the former trial, the jury found for the plaintiffs <$3,250 00, and upon a writ of error to this Court, the judgment was reversed, and the case remanded for a new trial.</p> <p>At the May Term, 1859, of Muscogee Superior Court, the case coming up again for trial, the parties submitted their testimony, upon which no point was made in the Court below, or in this Court</p> <p>The Court below charged the jury, amongst other things, «that the plaintiff must prove a want of probable cause, or he cannot recover in this action, the foundation of which is malice, and without proof of malice plaintiff cannot recover. That plaintiff must prove a want of probable cause before defendant can be required to show that there was probable cause, and the want of probable cause is affirmative proof to be made out by the plaintiff.” To which charge counsel for plaintiff excepted.</p> <p>The jury found for the plaintiff one thousand dollars, and. plaintiff filed his bill of exceptions, and assigned as error the -charge of the Court above given.</p>

<p>[1.] The verdict in this case held to be supported by the evidence.</p> <p>[2.] Where husband and wife are parlies on one side to an agreement for the benefit of the wife and children, and they have become entitled by an advantageous part performance by the other side, to a full performance for the benefit of the wife and children, the husband cannot defeat the rights of his wife and children by a release.</p> <p>[3.] it is no error to allow a complainant to give evidence in mere diminution ■ of the defendant’s proot) although the bill contains no obligation covering the evidence so introduced by complainant.</p> <p>[4.] Where a complainant places a fi.fa. in the hands of defendant to be collected and the money used fora particular purpose, proof that the Sheriff collected the money affords a presumption that the defendant (who is legal owner of the/ fa by transfer) has got the money — because it places the money where he may easily get it, and where, if he does not get it, the failure is his own fault.</p> <p>[5.] A bill by a wife, alleging that her husband, who was deeply in debt, had negroes, derived from her by marriage, going to sale under executions, and alleging an agreement under these circumstances on the part of her and her husband on the one side, and her brother on ihe other, that her brother should buy the negroes at such sale, and after reimbursing himself for his outlay, in pursuance of the agreement, should then convey the negroes to a trustee for the wife and children; and alleging that the brother has bought the negroes at prices which were greatly reduced by his making it known that he was buying for the benefit of the wife and children ; and alleging further that he has reimbursed all his outlay made in pursuance of the agreement; and asking a full and specific performance of that agreement on his part — is a good, bill.</p> <p>[6.] And in such case the complainant is entitled to any overplus of Jnrtt, after allowing the brother all proper reimbursements for his outlay in pursuance of the agreement.</p>

Indictment for hog stealing, in Houston Superior Court. Tried before Hon. Peter E. Love, presiding, at April Term, 1859. Tilman Cook, the plaintiff in error, was indicted for stealing four hogs, the property of Daniel Adams. He was found guilty of stealing one hog.

Ejectment, in Lee Superior Court. Tried before Judge Allen, April Term, 1859. This was an ejectment by John Doe, upon the demises of Charles Day, and T Plaintiff read in evidence a grant from the State, dated 4th January, 1847; proved the locus and possession of defendant at the commencement of the suit, and closed.

In Equity. Tried in Dougherty Superior Court, before-Judge Allen, November Term, 1S57. This was a bill filed by Cyrus A. Royston, and wife, formerly Mary Frances Calaway, against Mildred A. F. Royston, administratrix with the will annexed of Geo. D. Royston, deceased, former guardian of said Mary Frances, for an account and settlement of her estate, which came into the hands and possession of said guardian.

Arson, in Calhoun Superior Court. Tried before Judge Allen, May Term, 1859. The plaintiff in error was indicted for arson, in burning; the jail of Calhoun county. A panel of jurors was put upon the prisoner, to which he objected on the ground, that said panel was composed of citizens of Calhoun county, tax payers thereof, and the crime for which he was to be tried being for setting fire to the jail belonging to said county.

Illegality, in Webster Superior Court, Decision by Judge Kiddoo, March Term, 1859. This was a motion to quash and set aside an execution against plaintiff in error, upon the following grounds: 1st. Because said execution issued upon an order or judgment granting alimony to plaintiff inJi.fa. 2d. Because the order granting alimony, was made in vacation, and at chambers, and without notice to the defendant.

Debt on bond. Tried before Judge Worrim, iu Talbot Superior Court, September Term, 1858. On the 24th day of May, 1844, James K. Giddens, then Sheriff of the county of Talbot, having in his hands three ft. fas. against Charles Evans and Jlenry D. Evans, executors of John Evans, deceased, levied them on a negro man named George. The plaintiffs in fi. ja. were Ezekiel B. Smith, Levi i urner, and Stallings and Persons.

<p>The wife has an equity to a settlement out of her share in her father’s estate, \mtil her husband’s marital right has attached to that share.</p>

Ejectment, in Stewart Superior Court. Tried before Judg© Kiddoo, April Term, 1857. This was an action in the ejectment form, by 'Benjamins May, lessor of John Doe, against Robert B. Helms, tenant, in possession, and claiming to be the true and lawful owner for lot of land No. 239, in the 22d district of the first sections of Stewart county. This case was before this Court at June Term, 1858, and! will be found reported in 26 Ga.

Indictment for obtaining chattels by color of counterfeit writing. Tried before Judge Worrill, in Taylor Superior Court, April Term, 1S59. The substance of the testimony submitted to the jury on the trial of this case was as follows: On the 9th of March, •1859, the plaintiff in error, John Barfield, and Warren Bar-field, went to the house of John Hudson, in the county of Taylor, and proposed to buy a mule from Hudson.

Complaint, in Stewart Superior Court. Tried before Judge Kiddoo, at April Term', 1859. This was an action by Sion D, Boon, plaintiff in the Court below, against Ratliff Boon, on a promissory note of which, the following is a copy: “$250 00. Bastrop, January 10th, 1853.

Decision by Judge Kiddoo, in Randolph Superior Court, May Term, 1859. James C. Rivers brought suit in the Superior Court of Randolph county, against Willoughby Jordan, upon the following paper: li Cuthbert, August 28th, 1851. This is to show, that I am to let James C. Rivers have the amount of one hundred and twenty-five dollars, in accounts which are on the books of Rivers & Jones, the same being in payment for the entire interest of said Rivers, in said firm.

Debt on bond. Tried before Judge Love, in Houston Superior Court, April Term, 1859. Suit wa-s brought, in Houston Superior Court, by David B. Hamilton, against William L. Franks and Clemenia J. Stephens, on a bond, in the sum of one thousand dollars, made by said defendants and payable to plaintiff. The bond was dated 23d September, 1852.

Motion to dissolve injunction, and to distribute money, in Sumter Superior Court. Decided by Judge Allen, April Term, 1859.

Decided by Judge Worrill, in Talbot Superior Court, March Term, 1859. In August, 1855, suit was brought by William Reedy against John Howard, for the recovery of the south half of lotof land number 131, in the 22d district of Talbot count}?-. On the trial, the plaintiff offered in evidence several deeds, which showed a complete paper title to said half lot.

<p>Certiorari. Decision by Judge Allen, at chambers.</p> <p>At the January Term, 1858, of Lee Inferior Court, Jesse M. Davis moved to set aside, as to him, a fi. fa. and judgment issued by the Justices of the inferior Court of said county, when sitting for county purposes, in their own favor, as justices aforesaid, against Stephen U. D. Hunt, a former defaulting Treasurer of said county, and Turner Hunt, Daniel A. J. Sessions, Jesse M. Davis and Stephen R. Weston, his securities.</p> <p>The grounds for said motion were as follows:</p> <p>1st. That said judgment was obtained, and said fi,. fa. issued, without any notice to him; and that he had no day in Court, nor an3r opportunity to object to the same.</p> <p>2d. Thai the judgment is for a larger amount, by at least three hundred dollars, than was due to said county, by the principal in said bond.</p> <p>3d. That said movant was liable on the said bond only as security for said Stephen U. D. Hunt, with the other securities thereto; that ne signed the same, to a large^ extent induced by the fact that he saw the name of Turner Hunt thereto, and that he is informed and believes that said Turner Hunt never signed the same, nor authorized any one to sign for him, and that he is not therefore liable as security on said bond.</p> <p>4th. That said bond was not taken or authorized by the Inferior Court, and was not a statutory bond.</p> <p>On the calling of the motion, Davis asked the Court to submit the questions of fact heretofore set forth, to a jury-The Court refused to submit them to a jury, but proceeded to hear and determine them for itself.</p> <p>Davis proved by Stephen Gay, that he was Clerk of the Inferior Court at the time when the execution was issued. The Court (not at a regular Term) passed an order requiring Hunt to settle, as county Treasurer, with the Court, within ten days after notice of the order, as in default thereof an execution would issue against him and his securities. Hunt was served with a copy of this order, as an extract from the minutes. -More than ten days afterwards, a judgment was passed, and the execution issued. No notices were issued to the securities. The bond, record and judgment were destroyed with the court-house.</p> <p>Dr. Richardson testified, that he was a member of the Inferior Court of Lee county, at the time when Stephen Hunt was elected Treasurer. The election took place some time after the first Monday in January, 1S5S. Hunt was allo_wed a short time (perhaps a week) after his election to give the bond. The bond was not signed in presence of the Court; it was presented by the principal already signed, and was accepted by the Court. Davis’s and Weston’s names were not on the bond when it was first presented. The bond, without their signatures, was not satisfactory to the Court, and they signed it before it was accepted by the Court.</p> <p>Wm. C. Gill swore, that he had seen the bond before it was burnt; had heard some doubts expressed about old Mr. Hunt’s signature, but not until after the death of Stephen U. D. Hunt. Witness had examined the bond, with reference to that matter. Had seen Turner Hunt write at least three times ; once he was drunk, and wrote a bad hand ; on the other occasions he was rather sober, and wrote a much better hand. The signature to the bond was in some respects rather unlike Mr. Hunt’s. He was an old man. In the opinion of witness, Turner Hunt did not sign it; he had doubts about it; the signature to the bond was “some” smoother hand than he had seen him write. Is the Sheriff of the county, and as such has sold, since the death of Turner Hunt, some of his property, under this ji. fa. Jesse M. Davis bought it. Took a deed and took possession. Davis gave one hundred and ninety-five dollars for the land that was sold; the land is worth twenty-four hundred dollars.</p> <p>After hearing the proof, the Court overruled the motion, and ordered that the fi. fa. proceed.'</p> <p>Davis then excepted to the decision of the Court, on the grounds:</p> <p>1st. That the Court refused to submit the questions of fact connected with the motion, to a jury, but heard and determined those questions for itself.</p> <p>2d. Because the Court having heard said proof, overruled the motion to set aside said judgment and fi. fa.</p> <p>The Court then overruled these objections.</p> <p>Davis, by his counsel, then petitioned for a writ of certiorari, which was granted by his Honor Judge Allen. To the granting of the certiorari the said justices, by their counsel, excepted, and in this Court assign the same for error.</p>

<p>Attachment. Decision by Judge Allen, in Lee Superior Court, April Term, 1859.</p> <p>On the 5th day of January, 1858, Philip P. Monroe sued out an attachment against John A. Bishop, on an instrument in writing, of which the following is a copy:</p> <p>“$>1,828. By the first day of January, eighteen hundred and fifty-nine, I promise to pay M. N. B. Outlaw, or bearer, eighteen hundred and twenty-eight dollars, in notes good and solvent, when this becomes due, with interest from date. The 29th day of December, 1856.”</p> <p>(Signed) “JOHN A. BISHOP.”</p> <p> Credit. </p> <p>“Received, on the within note, eleven hundred and fifty dollars. January 4th, 1858.</p> <p>(Signed) “P. P. MONROE.”</p> <p>At the April Term, 1859, of the Superior Court of Lee County, counsel for Bishop moved to dismiss the attachment, on the ground that it was founded on the foregoing instrument, which was an unliquidated demand.</p> <p>The Court sustained the motion and dismissed the attachment, whereupon plaintiff excepted, and now assigns the same for error. •</p>

In Equity, in Muscogee Superior Court. Decision on demurrer by Judge Worrill, May Term, 1859. This was a bill, filed by Josiab A. Roberts, against Hockley C. McKee, to enjoin and restrain the exhibition and publication of certain letters written by complainant to defendant.

All the facts necessary to a full understanding of the points adjudicated in this case, are embodied in the following opinion of the Court.

<p>[1.] If one of the attorneys for the plaintiff in judgment collects the judgment, the others may, by motion against him, enforce their liens on the money for their fees.</p> <p>[2.] One of several of the attorneys for plaintiffs in a judgment, collected money on the judgment, and was ruled by the other attorneys for so much of it a3 would pay their fees. He was properly served with the rule. Two of the plaintiffs in the judgment came m and defended the rule in his place. They appeared by another attorney, and he urged against the motion, amongst other things, that his clients had not had sufficient notice of the motion. He* did not say he was not ready, did not ask for time, or suggest anything to call for delay. The Court overruled the objection.</p> <p>Meld, That the Court did right.</p> <p>J3.] He then requested that the ease might be tried by a jury.</p> <p>Heldy That this request ought to have been granted.</p>

In Equity, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1859. This was a bill in equity, filed by Jackson G. Brown, and Susan, his wife, and James W. Brown, and Martha, his wife, against John McWilliams, Senior, the father and former guardian of said Susan and Martha, his daughters, for an account and payment of a legacy bequeathed to them by the will of their grand-father, John McGowan, deceased, of Laurens district, South-Carolina.

Certiorari, from Cass county. Decision by Judge Crook, March Term, 1859. The following are the facts of this case: Henry D. Leitner brought suit against Charles A. Hamilton, and held him to bail, in the Inferior Court of Cass county. John C. Aycock became his surety in the bail bond. Judgment was obtained against Hamilton, November 24th, 1856, and a Ji. fa. issued December 10th, 1856, which was returned by the Sheriff “ no property” 23d May, 1857.

Assumpsit, in Troup Superior Court. Tried before Judge Cabaniss, May Term, 1859. ■ This was an action of assumpsit, brought by Nathan Renwick against the LaGrange Bank, to recover for services rendered by plaintiff, as President pro tem. of said bank y and also one hundred and sixty dollars, the amount claimed to be due from dividends declared on the capital stock of said bank, he being the owner of ten shares thereof.

<p>Joseph McConnell died in 1840. By his will, he gave a life estate in his negroes to his widow. He directed that all of his children should have an equal share of his property. And at the division, which was to take place at the deathj of his wife, he gave Esther, a woman, to Sarah Wardlaw, his widowed daughter. Sarah afterwards, and since the death of the testator, intermarried with James Martin.</p> <p>Held, That Sarah took an equal share only of her father’s estate, to be ascertained and determined at the death of her mother; and that it vested in her Jmsbamd, James Martin,. That the provision in the statute requiring claims, at administrator’s sale, to be made previous to sale day, is directory only j and that failure to do so, does not invalidate the claim.</p>

<p>Assumpsit, in Spaldiug Superior Court. Tried before .Judge Cabaniss, at May Term, 1859.</p> <p>This was an action of assumpsit by Egbert P. Daniel, against James L. Johnson, on three promissory notes; one for $1,150, payable 25th December, 1851; one for $200, payable 25th December, .1854, and one for #140, dated 8th January, 1852, and payable one day after date.</p> <p>The following credits were endorsed on the eleven hundred and fifty dollar note, viz :</p> <p>“ One half of James L. Johnson’s stock, when ascertained, at wholesale prices, is to be placed to his credit on this note. 1st June, 1852, which is #556 28.”</p> <p>“Received on the within note an account on James Daniel for $28. 25th December, 1855.”</p> <p>“Received on the within note #35 25, from McCune’s note. 22d February, 1854.”</p> <p>On the #140 note was the following'credit:</p> <p>“ Received on the within note $28 00, October 1st, 1853, from Harleston’s note.”</p> <p>“ Received on the within note $5 00, from Bozwell’s note. 1st August, 1855.”</p> <p>The defendant pleaded payment and set-off.</p> <p>At the trial plaintiff offered in evidence the note sued on and rested.</p> <p>Defendant, amongst other things, offered to prove that plaintiff had admitted some two or three years before, that defendant had turned over to him notes amounting to about $550, amongst which was a note on Burrell Orr for #150, to go in payment of defendant’s indebtedness to him. Plaintiff objcted to this testimony; the Court overruled the objection and plaintiff excepted.</p> <p>Defendant having closed, plaintiff in reply offered in evidence, a note made by Daniel and Johnson (plaintiff and defendant, who had been partners in a tanning business) dated 3d November, 1851, payable to Thomas C. Trice, or bearer, for #445, with the credits thereon, and which plaintiff ■claimed he had paid off. Defendant objected to this evidence, on the ground that said note was against the partnership of Daniel & Johnson, and the payment or possession thereof by plaintiff, was not an individual demand against defendant. The Court sustained the objection and plaintiff excepted.</p> <p>The plaintiff then offered in evidence the records of the proceedings of a chancery cause then pending, in which defendant was complainant, and plaintiff was defendant, the answer of defendant to said bill, being a part of said record, and in which answer it was alleged that the notes now plead as payment or set-off, was pleaded as payment to Daniel, as agent for Martha C. Martin. Defendant objected to the admission of this record, on the ground that the answer was not competent evidence for plaintiff.</p> <p>The Court sustained the objection as to the answer, but holds that plaintiff might introduce the bill. To which ruling plaintiff excepted.</p> <p>The Court charged the jury as follows:</p> <p>“ That when a debtor makes a payment to a creditor, who has several demands against him, the debtor has the right to apply it to any demand he pleases, and may specify; and if he makes no application, the creditor has the right to apply it to any of his demands he may see proper; if no application is made at the time of payment by either party, the law will then apply it to the debt of the lowest grade. In the case before you, if the payment made by the defendant and which he has pleaded, was by agreement of the parties to be applied to an indebtedness of defendant other than the notes sued on, it must be so applied. If the defendant intended, and directed the payment to be applied to the notes sued on, he was then entitled to a credit to that amount; but if no application was made by either at the time of payment, then it was for them, under the direction of the Court, to make the application,and they {jad no right to apply the individual funds of defendant, to the payment of his share or proportion of partnership debts, which had been paid ofij or taken up by the plaintiff; but his individual assets must be first applied to the individual debts of defendant, before any could be applied to the payment of partnership demands or liabilities. His individual funds could not be legally applied o advances made by one partner for the partnership, until an account had been taken between the partners and a balance' found against him.</p> <p>The jury found for the plaintiff two hundred and forty-two dollars and six cents; whereupon, plaintiff moved for a new trial upon the following grounds :</p> <p>1st. Because the verdict is contrary to the evidence.</p> <p>2d. Because the verdict is decidedly and strongly against the weight of evidence, and without evidence to support it.</p> <p>3d. Because the Court erred in the rulings and decisions on the evidence as above stated, and excepted to at the time.</p> <p>4th. Because the Court erred in its charge to the jury.</p> <p>5th. Because, the verdict is contrary to the charge of the Court and the law.</p> <p>The Court refused the motion for a new trial, and plaintiff excepted.</p>

Rule against Sheriff, in Cass Superior Court. Decision by Judge Crook, at March Term, 1859. This was a rule taken out by Silas Bell, tax collector, against John F. Brown, former Sheriff of Cass county, to show cause why he had riot, or should not pay to movant, the amount dne on certain tax executions, placed in his hands for collection. The receipts of the Sheriff were attached, showing that (ax fi. fas. from Bell, amounting to $365 65J principal; $107 66 interest and cost.

Debt, in DeKalb Superior Court. Tried before Judge Bull, April Term, 1859. This was an action by William New, administrator of Samuel FI. Pruitt, deceased, against Luke J. Robinson, principal, and John M. Robinson and Edmund J: Bailey, securities. Bailey only was served with process, and appeared and pleaded that he was discharged, by reason of the failure of the holder of the note to sue the principal within three months after he was notified to do so.

<p>Motion to discharge from custody, in Whitfield Superior Court. Decision by Judge Crook, April Term, 1859.</p> <p>The parties in this case were both citizens of the State of Tennessee, and each sued the other in the Superior Court of Whitfield County, in the State of Georgia, each requiring bail. Spangler was served and arrested by the Sheriff in the suit against him. Henegar was not arrested at the suit of Spangler against him, but upon his return to Georgia, and while attending this present Term of the Court, as a suitor in his case against Spangler, he was arrested by'virtue of the bail process, before sued out by Spangler against him, and he makes this motion to be discharged from said custody and imprisonment, on the ground that being in attendance on the Court as a suitor and party, he is privileged from arrest.</p> <p>The Court refused the motion, and defendant excepted.</p>

<p>Assumpsit, in Fulton Superior Court. Tried before Judge Bull, April Term, 1859.</p> <p>This was an action of assumpsit, by Francis M. Jack, for the use of Jesse M. Butt, against James C. Davis, on a due bill given by Davis Jack, for one hundred dollars, dated 23d September, 1857.</p> <p>The defendant pleaded as a set off, a balance due to him on an account, for goods sold and delivered to the plaintiff, Jack; said account running from 26th September, 1856 to 9th April, 1S57, and amounting to $271 13, and acknowledged to be correct and just by Jack.</p> <p>The defendant further pleaded in abatement, tbe infancy of the plain tiff, Jack, before and at the commencement of the suit.</p> <p>The due bill, which was the foundation of the action, had no words of negotiability.</p> <p>At the trial, plaintiff moved to strike defendant’s plea of set-off, on the ground, that the demands were not mutual; the due bill sued on and the account set-off, not being due and owing to and by the same parties in the same right. The Court overruled the motion and plaintiff excepted.</p> <p>Plaintiff tendered and read in evidence the due bill, and closed.</p> <p>Defendant proved the account pleaded as a set-off, by proving the hand-writing of Jack, the plaintiff, signed to the written admission or acknowledgment at the foot of the account, that it was correct and just'</p> <p>It appearing that Jack, the plaintiff, was a minor, counsel for plaintiff, moved to amend the declaration, by inserting the name of--as prochein ami. The Court refused to allow said amendment, and plaintiff excepted. 5</p> <p>The Court then, on the motion of counsel for defendant, dismissed the action, on the ground, that being an infant, plaintiff could not maintain the suit. And counsel for plaintiff excepted.</p>

Information, in Henry Superior Court. Nonsuit by Judge Cabaniss, April, 1859.

Trover, in Coweta Superior Court. Tried before Judge Rice, March Term, 1859.

Ejectment, in Catoosa Superior Court. Tried before Judge Crook, May Term, 1859. This was an action of ejectment to recover lot No. 164, in the 2Sth district and third section of originally Cherokee county. Plaintiff submitted his proofs and closed, when defendants, amongst other things, tendered in evidence a deed for the premises in dispute, from Littleton D. Glass, the grantor, to William B. Mann, dated 6th February, 1838.

<p>The owner of the land on which, the city of Griffin stands, laid it out, into streets, squares, and lots, some of the latter for building lots, some tor ¡public purposes, some for churches; according to a plan. Afterwards, the owner sold the building lots at auction, and caused it to be proclaimed at the ■sale, that the lots were sold according to that plan. Deeds were made to the purchasers, but nothing of the matter stated in the proclamation, was put into them. Afterwards, ten months or more, the owner made a deed in fee, .to the Baptist church for the lot set down on the plan, for the Baptist church, in this deed, nothing was said, as to preventing the Baptist church, from fusing the lot for other purposes, than those of worship. The Baptist church was not, by agent, or otherwise, present at the auction. The Baptist church entered on the lot, erected a house of worship, and, some time afterwards advertised a part of the lot for sale, with a view to raise money io build a better house of woiship on another part of the lot. Certain lot owners in the city of Griffin, filed a bill against the church, to prevent it from so doing. They claiming, that they had, in the facts aforesaid, an easement in the lot, that it was never to be used for any other purpose, than that of a place of worship.</p> <p>Held, That the facts were not sufficient, to give them a title to such easement.</p>

Trespass, in Gordon Superior Court. Tried before Judge Crook, April Term, 1859.

Ejectment, in Pike Superior Court., Tried before Judge Cabaniss, October Term, 1858. This was an action of ejectment by Doe, upon the several demises of Bivins, Burrows, Lewis, Spurlin, and Jones, against Roe, casual ejector, and oggin Gregg, and Matthew Coggin, tenants in possession, for the recovery of sixteen acres of land, on the east side of lot of land No. 177, in the. ninth district of Pike county.

<p>Certiorari, in Fulton Superior Court. Decision by Judge Buel, at April Term, 1859.</p> <p>James F. Johnson brought suit in a Justices Court against the Bank of Fulton, on five bank bills, each of the denomination of five dollars, and sought to recover, in addition to the-amount of the bills, the expenses of protest of each bill. The defendant pleaded the general issue; and specially that plaintiff was not entitled to recover the fees of the notary public, for noting and protesting the bills. Each bill was presented at the bank and payment demanded on each separately, and refused, and each was separately noted and protested.</p> <p>At the trial in the Justices Court, plaintiff offered in evidence the certificate of the notary public, to prove the demand and protest, which, upon objection was rejected by the Court, upon the ground, that a protest was not necessary, and the bank was not therefore liable for the cost and fees of said notary. To which ruling plaintiff excepted, and the case coming up before the Superior Court by certiorari, that Court dismissed the certiorari, and affirmed the judgment of the Justices Court. To which decision plaintiff excepted and assigns the same as error.</p>

In Equity, in Polk Superior Court. Decision by Judge Hammond, at April Term, 1859.

- Indictment for keeping a gaming house, in Gordon Superior Court. Tried before Judge Crook, April Term, 1859. • The plaintiff in error, Reuben Scott, was indicted for keeping a gaming house; he pleaded not guilty. At the trial,.

Complaint, from DeKalb Superior Court. Tried before Judge Bull, April Term, 1859. This was an action originally by Walker, as bearer, against John H. Morris, principal, arid Henry W. McDaniel, security, on twelve promissory notes, each for thirty dollars, dated 31st February, 1853, and due 35th December, thereafter. There was a verdict for plaintiff at common law, and the ■security, McDaniel, appealed.

<p>An action was brought on an instrument in the following words; “$177. On or by the 25th Dec., 1855, I promise to pay B. J. Wilson, or bearer, one huudred and seventy-seven dollars, with interest from date. This 19th June, 1S53, for value received ; said note to be paid out of a certain note, I have this day traded to said Morrison, on L. B. Perryman, when collected, due at the same time as the above. J. J. Morrison.” There was no evidence that the Perryman note had been collected, or that it might have been collected, by the use of due diligence.</p> <p>Held, That a nonsuit was right.</p>

Indictment for assault and battery, in Whitfield Superior Court. Tried before Judge Crook, April Term, 1859. Hugh C. Metts was indicted for an assault and battery upon his wife.

Ejectment, in Floyd Superior Court. Tried before Judge Hammond, February Term, 1859. This was an action of ejectment by Farley B. Adams, lessee, against William J. Lawton and Gilbert Box, tenants in possession, to recover lot of land No. 272, in the fourth district and fourth section of originally Cherokee, now Floyd county. The action was commenced in April, 1849.

In Equity, in Floyd Superior Court. Decision by Judge Hammond, February Term, 1859.

Divorce, in Coweta Superior Court. Tried before Judge Hammond, March Term, 1859. This was a libel for divorce a vinculo matrimonii by James Word against Emily D. Word, his wife, on the ground of willful and continued desertion, on her part, for three years.

Complaint, in Chattooga Superior Court. Tried before Judge Chook, March Term, 1859. \ J. S. & L. Bowie & Co., of Charleston, South Carolina, brought suit against George B. T. Maddox, Josiah E. Maddox, and Andrew J. Goldsmith, partners in trade under the name and firm of Maddox & Goldsmith, on a promissory-note for $735 99, dated 15th October, 1857, and payable six months after date, signed “ Maddox & Goldsmith.” George B. T. Maddox pleaded the general issue; and further,…

In Equity, from Spalding County. Tried before Judge Bull, at May Term, 1859. This was a bill filed by Benjamin Barfield, administrator de bonis non, of Winifred Barfield, deceased, against William V. King, Milly Barfield and Sarah Barfield.

Assumpsit, in Catoosa Superior Court. Tried before Judge Crook, at May Term, 1859.

<p>In Equity, in Monroe Superior Court. Decision on demurrer, by Judge Cabaniss, at chambers, 21st June, 1859.</p> <p>The following judgment pronounced by Judge Cabaniss, die presiding Judge, sustaining the demurrer, sets out all the facts necessary to a full understanding of the case, and the opinion of this Court, viz:</p> <p>The bill in this case is filed by R. L. Roddy and wife, W# JL. Lampkin and wife, R. N. Martin, and Andrew Dunn, and alleges that they are children, and heirs at law of Josee Dunn, deceased; that they are the only sisters and brother of David A. Dunn, of Pike county, Alabama, deceased, and claim to be heirs at law of said David A. Dunn, together with his widow; that said Josee Dunn, before his death, made and executed his last will and testament, in and by which he gave and bequeathed to his said son, David A. Dunn, certain negroes and property therein named, which he left in the possession of Stephen H. Martin, as trustee for his said son, and his heirs, and not to be subject to any of the debts of his said son, but that he should have the income thereof yearly ; that said Stephen H. Martin took possesion of said property and held the same in trust for said David A. Dunn, to pay him the income thereof yearly during his life, and to hold the remainder for his heirs; that said David A. Dunn never had any estate in said property, except the annual profits thereof; that said Stephen H. Martin held said property in trust as aforesaid for many years, until said David A. Dunn removed to the State of Alabama, when he delivered said property to a trustee appointed in said State, viz: Franklin A. Rutherford, who took charge of the same in terms of the original trust; that said David A., married Octavia Rutherford, in said State of Alabama, and afterwards died, leaving no child, but leaving his said wife Octavia, and his sisters and brother, the complainants in this bill, his heirs at law, and his estate is subject to distribution among them according to the laws of said State, his widow being entitled to one-fourth, and his next of kin to the remaining three-fourths.</p> <p>It is further alleged, that said Franklin A. Rutherford filed a bill in the Chancery Court of Pike county, Alabama, and had the estate of said David A. Dunn decreed insolvent, and that said property was not subject to his debts, but that he had only a life interest in the same, and thereupon the said property was turned over to said Rutherford for distribution among the heirs at law of said David A., and the complainants charge that said property is subject to distribution between them and the widow of the said David A. Dunn.</p> <p>It is alleged, that the widow of said David A., has intermarried with one Aaron J. Cox, to whom said Franklin Rutherford has turned over all of said property and negroes, except one, and that he has since moved to some distant State, and that he and said Rutherford both reside beyond the jurisdiction of this State.</p> <p>It is further alleged, that one of said negroes, by the name of Troup, ran away from said Cox, and came to the house of Robert L. Roddy, one of the complainants, in. whose possession he has since been with the approval of the other complainants.</p> <p>It is further charged, that said Aaron J. Cox has commenced his action of trover in Monroe Superior Court against said Robert L. Roddy for said negro Troup. And complainants allege that they are jointly interested with said Aaron J. Cox, in said negro, and are entitled to have said negro partitioned among them, share and share alike, and for this purpose they pray that he may be sold, and that the proceeds of the sale and hire of said negro be divided amongst them, if it shall be found that said Cox has not received more than his share of the estate of said David Á. Dunn, deceased, but they charge that he has received, and has now in his possession some where in the western States, all the remainder of said estate, amounting to greatly more than the value of said negro Troup.</p> <p>They pray that said Cox be enjoined from further prosecuting said action of trover, and that said Cox and Rutherford may be decreed to account to and with the complainants for the amount and value of the negroes, which are in the possession of said Cox, together with their hire, deducting from the same his share, acquired by virtue of his intermarriage with the widow of said David A. Dunn, and his share of the boy Troup.</p> <p>To this bill, defendants have demurred, upon the following grounds, viz:</p> <p>1st. For want of equity in the bill.</p> <p>2d. That the complainants have no interest in the property sued for, and no right to recover it, but that it passed under the will of Josee Dunn, deceased, to Octavia Dunn, widow of said David A. Dunn, as his sole heir at law, according to the laws of this State, where said will was made; and upon her intermarriage with Aaron J. Cox, the negro in dispute vested absolutely in him by virtue of his marital rights.</p> <p>3d. That the bill is multifarious.</p> <p>The first two grounds of demurrer may be considered together, as they are virtually the same, for if the second is true, the first is necessarily so ; if the complainants have no interest in the negro sued for, it follows as a necessary consequence, that there is no equity in the bill to entitle them to relief.</p> <p>The question made by the demurrer is, who are the heirs at law of David A. Dunn, deceased, in the sense of the term “heirs,” as used by Josee Dunn in his last will and testament? Are they only to be considered “heirs” who are such according to the laws of Georgia, where the will was made, or are they to be held to be his heirs, who are such according to the laws of Alabama, where David A. Dunn was domiciled at the time of his death ? According to the allegations in the bill, the last will and testament of Josee Dunn was made and executed in Georgia, where the testator „at that time, and at his death, was domiciled. By that will, he bequeathed the negro in controversy together with other property, to his son David A. Dunn, to be held in trust by Stephen H. Martin for said David A. Dunn and his heirs, not to be subject to any of the debts of his said son, but he was to have the annual profits of the same. David A. Dunn, »fter the death of his father, moved to Alabama, and the negro was removed to the same State, and went into the possession of the trustee appointed in that State. David A. Dunn-there intermarried with Octavia Rutherford, and after the lapse of some years, died, leaving no issue.</p> <p>According to the laws of the State of Alabama, the heirs at law of a man, who dies without issue, leaving a widow, are his widow and next of kin, the next of kin being brothersand sisters, if any; the widow is entitled to one-fourth, and his nest of kin to three-fourths of his estate.</p> <p>Admitting (and that is the question made by the demurrer) that only a life estate in the negro sued for was bequeathed to David A. Dunn with remainder to his heirs, the complainants insist that, according to the law of the domicil of said David A. Dunn, at the time of his death, they are heirs at law of said David A., and are entitled to their respective shares of his estate, and, being his heirs, are, in that right, entitled to their shares of the negro Troup.</p> <p>The defendants reply, that the property passes under the will of Josee Dunn, deceased, and his will must be construed according to the law of his domicil, and according to that law, the widow of David A. Dunn, who died without issue, is his sole heir at law, and is entitled to the property bequeathed to him and his heirs.. They insist that the word “ heirs,” must be construed according to the law of the domicil of Josee Dunn, and not according to the law of the domicil of David A. Dunn.</p> <p>In consideration of this question, it is essential to bear in mind, that the property in dispute descends, not as the property of David A. Dunn to his heirs at law, but as the proper- „ ty of Josee Dunn, first to his son David A., during his life, and after his death to his heirs.</p> <p>If it is to be distributed as the property of the estate of David A. Dunn among his heirs, it would unquestionably go to, and be distributed among those, who are his heirs at law according to the law of his domicil at the time of his death. But it was his property only during his life; at his death all his right, title and interest in it, and all dominion and control over it, ceased forever. According to the facts admitted by the demurrer, he had no right to direct the disposition of it by will, nor did it derive any inheritable quality from him under the law of his domicil; its inheritable quality comes from another source; from Josee Dunn, and the disposition made of the property in his will. After the death of David A. Dunn, it descends not from his estate to his heirs, but from the estate of Josee Dunn to the heirs of David A. Dunn. Who, then, are the heirs of David A. Dunn, in the sense and meaning of that term, as used by Josee Dunn in his will ?</p> <p>The rule of construction in such cases, long and universally recognized by the Courts of all countries, where systems of enlightened jurisprudence prevail, must settle this question. The rule in regard to wills and testaments of personal property is thus laid down in Story's Conflict of Laws, Sec. 469, a :</p> <p>“In such cases, where the will or testament is made in the place of the doinicil of the testator, the general rule of the common law is, that it is to be construed according to the law of the place of his domicil in which it is made. A will, therefore, made of personal estate in England, is to be construed according to the meaning of the terms used by the law of England; and this rule equally applies, whether the judicial enquiry as to its meaning and interpretation arises in England or in any other country.”</p> <p>“ A will must be interpreted according to the law of the country where it is made, and where the party making the will has his domicil.”</p> <p>Lord Ch. Lyndhurst, in Trotter vs. Trotter, 4 Bligh's Reports, N. S. 502.</p> <p>“The same rule-will apply to the ascertainment of the persons who are to take under a will or testament, when it is made by words designating a particular class, or description of persons. Who are the proper persons entitled to take under the designatio personarum is a point to be ascertained by the law of the place where the will is made, and the testator is domiciled. Thus, for example, if a testator should bequeath his personal estate to his “ heir at law,” who is the person entitled to take under that description, will depend upon the law of his domicil. If domiciled in England, it will be the eldest son ; if domiciled in most of 'die States of America, it will be all his children. So if a person domiciled in Holland, should bequeath his property to the “male children” of certain persons, and the question •should arise, as well it might, whether by “male children” be meant male descendants, that is, descendants claiming through males only, the question would be decided by the the interpretation put upon those words by the law of Holland.” Story’s Con. of Laws, Sec. 479, e.</p> <p>The same rule is laid down by the Supreme Court of the United States in the case of Harrison et al. vs. Nixon, 9 Peters, 483.</p> <p>In that case, the testator, Matthias Aspden, willed that his -estate, real and personal, should go to the party, who would be his lawful heir, in case there might arise any doubts on that head.</p> <p>The bill was filed in the Circuit Court of the eastern district of Pennsylvania, by Samuel Packer vs. Henry Nixon, executor of the last will and testament of Matthias Aspden, in which he alleged, “that on the 6th day of December, in the year of our Lord, 1791, one Matthias Aspden, Esquire, a citizen of the State of Pennsylvania, made and executed his last will and testament, bearing date the same day and year, wherein and whereby he gave and bequeathed all his estates, real and personal, to his heir at law.” The complainant alleged himself to be the heir at law of the deceased, and prayed an account and distribution of his personal estate.</p> <p>The defendant answered, among other things, that the property of the testator was claimed by John Aspden, of London, as entitled thereto, under the devise of said testator, as his heir at law.</p> <p>Pending the suit, petitions were filed by George Harrison and others, who claimed to have distribution among them, of the estate of the testator, as the party contemplated by the will, and prayed that the Court would direct inquiries to be made as to their respective claims. The Court ordered that it be referred to a Master to examine, and state the next of kin to the testator</p> <p>The Master reported that John Aspden was “ heir at common law,” and the Circuit Court decreed that the executor should account to, and pay over to John Aspden, the heir at law of the said Matthias Aspden, deceased, the personal estate in his hands, after paying debts, &c. From this decree George Harrison and others took an appeal to the Supreme Court.</p> <p>The domicil of the testator was not distinctly averred in the bill, and the Supreme Court Held that an averment of the testator’s domicil was indispensable, and that a true interpretation could not be made until the country by whose laws the will was to be interpreted was first ascertained; and the case was remanded to the circuit Court for the purpose of having suitable amendments made in this particular.</p> <p>Mr. Justice Story, who delivered the opinion of the Court said:</p> <p>“ The present is the case of a will: and so far, at least, as the matter of the bill is concerned, is exclusively confined to personalty bequeathed by that will. And the Court are called upon to give a construction to the terms of the will; and in an especial manner to ascertain, who is meant by the words heir at law, in the leading bequest in the will. The language of wills is not of universal interpretation, having the same precise import in all countries, and under all circumstances. < They are supposed to speak the sense of the testator, according to the received laws or usages of the •country where he is domiciled, by a sort of tacit reference, unless there is something in the language, which repels or controls such a conclusion. In regard to personalty, in an especial manner, the law of the place of the testator’s domicil governs in the distribution thereof, unless it is manifest, that the testator had the laws of some other country in view.</p> <p>“No one can doubt, if a testator bom and domiciled in England during his whole life should, by his will give his personal estate to his heir at law, that the descriptio personce would have reference to, and be governed by the import of the term in the sense of the laws of England. The import of them might be very different, if the testator were born and domiciled in France, in Louisiana, Pennsylvania, or in Massachusetts. In short, a will of personalty speaks according to the laws of the testator’s domicil, where there are no other circumstances to control their application: and to raise the question, what the testator means, we must first ascertain what was his domicil, and whether he had reference to the laws of that place, or to the laws of any foreign country.</p> <p>“ The opinion of the Court distinctly and clearly recognizes the doctrine that the import of the words “heirat law, is to be ascertained by reference to the law of the testator’s domicil; and he, and no one else, is heir at law, whom that law makes such. And the case was remanded to have an averment of the testator’s domicil at the execution of the will, and at his death, inserted, so that the country by whose laws the will was to be interpreted might be ascertained. When that was done, there was no doubt as to the application of the rule.”</p> <p>' The same rule is recognized by Chancellor Kent, in Holmes vs. Remsen, A Johnson’s Ch. Rep. 460.</p> <p>“The succession to and distribution of personal property is regulated by the law of the owner’s domicil, and not by the lex loci rei silcc.”</p> <p>Sec. .481, Story’s Con. of Laws, is quoted and relied on by counsel for complainants.</p> <p>“The universal doctrine now recognized by the common law, although formerly much contested, is that the succession to personal property is governed exclusively by the law of the actual domicil of the intestate at the time of his death. It is of no consequence what is the country of the birth of the actual intestate, or of his former domicil, or what is the actual situs of the personal property at the time of his death ; it devolves upon those who are entitled to take it as heirs or distributees, according to the law of his actual domicil at the time of his death.”</p> <p>It has been already remarked, that the properly in dispute does not descend as the property of David A. Dunn — if it did, the doctrine in the section above quoted would be applicable. It is not inherited from him, but passes under the will of Josee Dunn, after the termination of the life estate of David A. Dunn, to the heirs of David A. Dunn. Who those “ heirs” are, and who answer that descriptio persona-rum, must be ascertained by reference to the import of the term according to the laws of Georgia, the place' of the testator’s domicil at the making of the will, and at his death. When he used the word “heirs,” the presumption-is, he meant those who are heirs according to the laws of Georgia, and not those who are heirs according to the laws of Alabama — until this presumption is removed, it is conclusive — it may be removed by showing that at the time the will was executed, the testator had. reference to the laws of Alabama, and not to those of Georgia, but this does not appear in the will itself, or otherwise. Construing, then, the word “heirs” according to the laws of Georgia, the widow of David A. Dunn, who died without issue, is his sole heir at law — and as such the property bequeathed by the will of Josee Dunn to his son David A., and after his death to his heirs, passed to her and her alone, and not to her and the next of kin of David A. Dunn, jointly, according to the laws of Alabama.</p> <p>If the Court is correct in this construction of the word “heirs” in the will of Josee Dunn, the complainants have no interest in the negro sued for, and no right to recover.</p> <p>This view being decisive of the case according to the question made by the demurrer, it is unnecessary to determine the other ground, further than to say, that in the opinion of the Court the bill is multifarious, but that defect can be cured by amendment, and the bill will not be dismissed on that ground.</p> <p>The Court- will not consider and decide the question, whether the property bequeathed by Josee Dunn in his will to his son David A. Dunn did not, according to the legal import and effect of the terms used, vest absolutely — that question not being raised by the demurrer, and being reserved for argument on the plea. If the judgment of the Court on the demurrer should be reversed, the Court will then hear and determine the other question at the proper time.</p> <p>It is ordered and adjudged by the Court, that the demurrer be sustained, and that the bill be dismissed on the ground that the complainants have no interest in the negro sued for, and have no right to the relief they seek, the widow of David A. Dunn being his sole heir at law, and as such is entitled to the property bequeathed to him and his heirs in the will of Josee Dunn, deceased.</p> <p>To which decision, counsel for complainants except.</p>

Trover, in Butts Superior Court. Tried before Judge Cabaniss, March Term, 1859. This was an action of trover, by Ruth J. McCune, against Leroy McMichael, for the recovery of six negroes. The negroes were by the last will and testament of James A. Mc-Cune, bequeathed to plaintiff, who was his wife, for and during her life, remainder to his four children.

Assumpsit, in Coweta Superior Court. Tried before Judge Hammond, March Term, 1859. This was an action by Richard H. Edwards and William H. Hackney, merchants and partners in trade, under the name and firm of Edwards & Hackney, against Charles Whelan, for, the recovery of one hundred and fifty dollars; and was predicated upon the promise contained in the following letter written by defendant, and addressed to one of the plaintiffs, to-wit: “ Greensboro’, April 30, 1856.

Complaint, for land, in Haralson Superior Court. Tried before Judge Hammond, April Term, 1859. This was an action (brought in the form prescribed by the Act of 1847) by Edward Gresham, against William C. Webb, and Elihu M. Williams, for lot of land number 195,' in the seventh district of Haralson county. Plaintiff proved that the defendants had adverse possession of the land at the commencement of this suit, and had had for more than a year before.

<p>Certiorari, in Gordon Superior Court. Decision by Judge Crook, April Term, 1859.</p> <p>This was a certiorari sued out by Obediah Chastain, against the Town Council of Calhoun, to reverse certain proceedings of said Council, imposing and levying a tax of one hundred dollars on petition.</p> <p>• The facts of the case are as follows: On the 18th day of November, 1858, Chastain obtained from the Clerk of the Inferior Court, of the county of Gordon, a license to retail spirituous liquors in said county, for the term of one year from the date thereof, for which he paid the license fee of $5 00. On the 11th December, 1858, the General Assembly passed an Act, authorizing said Town Council of Calhoun to impose a “corporation tax not exceeding one hundred dollars, upon any and all retail establishments, for the retail -of spirituous, malt, or intoxicating liquors of any kind, within the corporate limits of said town of Calhoun, and that all conflicting laws are hereby repealed.”</p> <p>Under the authority of this Act, the Town Council, on the 14th January, 1859, passed an ordinance imposing a tax of ■one hundred dollars on all persons then retailing, or who might thereafter retail liquors within the corporate limits of said town. The Marshal of said town proceeded to collect said tax of one hundred dollars out of Chastain, and he refusing to pay the same, an execution was issued and levied upon his property.</p> <p>At the hearing, the Judge of the Superior Court dismissed the certiorari, and affirmed the proceedings of respondents — ■ the said Town Council. To which decision counsel for Chastain excepted.</p>

<p>In Equity, in Polk Superior Court. Dissolution of injunction, by Judge Hammond, April Term, 1859.</p> <p>This was a bill to enjoin a judgment at law, for discovery, relief, &c., filed by Balinger Gravely against Amos L. Southerland.</p> <p>The bill alleges that in the year 1831, complaiuant, then of the State of South Carolina, gave to one Amos L. Southerland, since deceased, his promissory note for $200. $100 due 35th December, 1831, and $100 due 25th December, 1832. That he paid the first installment about the time it became due, and it. was so credited on the note. That he paid upon the second installment the sum of $59 38, by an account against said Southerland, but which was never entered as a credit on the note; that complainant moved to the State of Georgia, in the year 1833 ; that Southerland the payee of the note died in South Carolina lhe same year, and after complaiuant had removed; that in 1836, he paid $18, which was credited on said note, leaving then due on said note a balance of $32 97, and which sum with interest thereon, is justly due, and which complainant is ready to pay; that afterwards, in 1845, the defendant, Amos L. Southerland, the son of the payee, applied to complainant and agreed that if he would give him a new note, that he, defendant, would return in the fall thereafter, and allow said credits and payments, and represented to complainant that he desired it so arranged at that time, in order that the heirs might see the amount of the claim originally, and that- they would then settle, by deducting the credits, to. whiehjcomplainant was eutitled that complainant having married the cousin of defendant, relied on said promise, and said defendant knowing of said relationship, falsely and fraudulently availed himself of it, and procured the new note aforesaid, leaving out the credits, to v hich complainant was entitled; and complainant gave to him his note under seal, due one day after date, for the sum of $204 25.</p> <p>The bill further states, that defendant did not return, and allow complainant the credit which he had promised to do, and which complainant was entitled to have entered on said note, but sued out bail process on said note against complainant, returnable to the March Term, 1854, of Polk Superior Court, and at the September Term, thereafter, complainant confessed judgment for the amount of said note, with interest thereon, reserving the right of appeal; that on Monday thereafter, it being within four days from the adjournment of said Court, complainant went to the clerk’s office, and applied to enter his appeal, and was informed by the deputy clerk, the principal clerk being absent, that he need not then attend to it, but to wait until his attorney should return, and that there was ample time; and complainant relying on this statement, returned home without entering his appeal, and rested contented until about two weeks thereafter, when upon intimation that he would be too late, he again went to the deputy to enter said appeal, which the deputy refused to do, and issued execution upon the confession, and which execution now in the hands of the Sheriff of said county, has levied on the property of complainant, and the same is advertised for sale.</p> <p>The bill further alleges, that at the time said confession of judgment was given, complainant did not know that he could prove the payments which he had made on said note, but he has been lately informed, by a letter received from the State of South Carolina, that he could prove the fact of said payment by one Pleasant E. Ladd, of that State, and others residing there.</p> <p>The bill prays that the judgment at law be set aside and dec ared null and void, and that defendant be decreed to receive and accept from complainant the balance due on said note, in full payment and satisfaction thereof, or that said note be reformed according to said agreement, and the facts of the case, and that said judgment and execution be perpetually enjoined, &c.</p> <p>Defendant answered the bill, and upon the coming in of the same, moved that the injunction be dissolved, on the ground, that the equity of the bill was fully denied and sworn off by said answer.</p> <p>The Court sustained the motion, and dissolved the injunction. To whieh decision counsel for complainant excepted.</p>

Trover, in Carroll Superior Court. Decision by Judge Hammond, April Term, 1859. This case being called, and the parties having announced ready, and a jury being empanneled to try the issue, counsel for defendant moved to dismiss the action on the ground, that the process was incomplete, and void, in this, that the name of defendant was not set out therein, but was wholly omitted.

Assumpsit, in Fayette Superior Court. Tried before Judge Bull, March Term, 1859. This was an action of assumpsit by Scranton, Kolb & Co., merchants of Augusta, Georgia, against Stephen Rentfrow and Bucket Rentfrow, partners in trade, under the name and style of Rentfrow & Brother, on several promissory notes, amounting in the aggregate to about six hundred and twenty dollars.

<p>The Homestead Exemption Acts in this State, do not protect property from judgments founded on torts; they apply expressly and exclusively to judgments founded on contracts.</p>

In Equity, in Newton Superior Court. Decision on demurrer, by Judge Cabaniss, March Term, 1859. In the year 1850 John Sawyer departed this life, leaving a will, the third and fourth items of which are as follows, viz : “ Item Third.

In Equity, in Butts Superior Court Decision by Judge Cabaniss, at chambers, 8th October, 1858.

Trover, in Cherokee Superior Court. Tried before Judge Hammond, March Term, 1859. This was an action of trover brought by James Hampton, against William M. Bell, for the recovery of certain negroes, to-wit: Rose and Mary; and the children of Mary, viz: Moses, Hannah, and Ben.

<p>In, Equity, from Spalding county. Decision at chambers, by Judge Cabaniss, 14th June, 1859.</p> <p>IgAdam B. Dulin presented to Judge Cabaniss, at chambers, for his sanction, and fiat for an injunction, his bill inequity, against R. & I. Caldwell & Co, it being a supplemental bill for relief, discovery and injunction.</p> <p>The Judge refused to sanction the bill, on the ground that the matters therein contained and set forth, had been adjudicated; and on the further ground, that a bill identically -the same as the one presented had been before presented to him for his sanction and refused, and exceptions taken to said decision, and a bill of exceptions signed and certified and now pending and undetermined, to correct and revise said decision.</p> <p>To which decision of the Chancellor, refusing his sanction to this last J>ill, complainant excepts, and assigns the same as error.</p>

Action on sealed note, and motion for a new trial. Tried before Judge Crook, in Chattooga Superior Court, March Term, 1859. This was an action by Alfred T. Smith, against James M. Smith, on a sealed note, dated 13th day of June, 1832, payable oné^day after date to John W. Smith, or bearer, for one hunáred and fifty-seven dollars.

Complaint, on account, in Fulton Superior Court. Tried before Judge Bull, April Term, 1859. This was an action by J. H. McClung & Co., merchants, against Thomas U. Wilkes, to recover the sum of $63 20, on account of goods, wares and merchandise, sold and delivered to defendant’s son during the year 1856. Thomas U. Wilkes, the defendant, was charged with the goods. At the trial R. F. Hutchins’s depositions were read, who proved that he was a clerk for plaintiffs.

In Equity, in Henry Superior Court. Tried before Judge Cabaniss, April Term, 1859. Held: claimed and treated them as his own absolutely; and he denies that complainants have any right, title or claim, in or to the same or any part thereof. Defendant Morris, further pleaded the statute of limitation and lapse of time.

<p>Where property left by a testator to his children, has been fraudulently disposed of, by collusion, between the executrix and the purchaser, the legatees may file a bill in their own name, against the purchaser, the executrix hav-'' ing died insolyent, and there being no representative upon her estate, or th.e estate of the testator.</p>

<p>[1.] Plaintiff’s attorney endorsed upon the declaration in the Clerk’s office, in vacation, the following entry: “ I hereby discharge and dismiss the bail process, and bail sued out at the commencement of the action.”</p> <p>Held, That the effect of the entry, was to dismiss the bail process only, and not the suit upon which it was grafted.</p> <p>[2.] Judgment is entered up against A. as principal, and B. as security on appeal ; C. another security being, through inadvertence, omitted.</p> <p>Held, That upon a motion to amend the judgment, so as to include C., A. the-principal, was not entitled to notice.</p>

Certiorari, in Campbell Superior Court. Decision by-Judge Hammond, April, 1859. Thomas C. Glover, the defendant in error, a practicing physician, brought suit against the Sweet Water Manufacturing Company, the plaintiff in error, in a Justice Court, on an account for medical services rendered to an employee of said company.

In Equity, in Pike Superior Court. Decision on demur- - rer, by Judge Cabaniss, at chambers, 27th June, 1859.

<p>Trover, in Fayette Superior Court. Tried before Judge Bull, March Term, 1S59.</p> <p>This was an action of trover by William M. D. F. Elder, (by his next friend, Jeptha Landrum,) against William J. Russell, to recover a negro man named Ephraim.</p> <p>It appeared that this negro originally belonged to Joshua Elder, who sold him to his brother, Sterling Elder, in 1843, and executed a bill of sale to him. Sterling, by deed of gift, dated 22d April, 1846, conveyed said negro to the plaintiff, an infant son of Joshua Elder. This deed was recorded 23d April, 1846 ; afterwards, about 1848, the negro, Ephraim, was sold at Sheriff sale, as the property of Joshua Elder, under a fi. fa. against him, of prior date, to the bill of sale, or deed of gift aforesaid. At this sale. Sterling Elder became the purchaser, and the negro went into the possession of Joshua Elder again. Subsequently, in 1853, the negro was again sold by the Sheriff, under a fi. fa. controlled by Sterling Elder, as the property of Joshua Elder, and purchased by Mary Nixon, and by her, afterwards, sold to William J. Russell, the defendant.</p> <p>After the testimony had closed, which was voluminous, the Court charged the jury, amongst other things, that the title acquired by Sterling Elder at the Sheriff's sale, did not inure to the benefit of the plaintiff, to whom Sterling Elder had previously given the negro; that the Sheriff's sale in 1S48, could not affect plaintiff's title in anyway; for if title vested in him before that sale, the sale could not divest it; and if he had no title before that time, the Sheriff’s sale could not enure to his benefit; that where a Sheriff levied an execution on personal property sufficient to satisfy it, and the levy was dismissed by order of the plaintiff, or his attorney, it was prima facie a satisfaction of the fi. fa. If the fi. fa. under which, the negro was sold was fully paid off, no title could pass to the purchaser at Sheriff sale, and defendant claiming under said purchaser, had no title. But if he purchased from Sterling Elder for a valuable consideration, without notice of plaintiff’s title, he was protected, even if the fi. fa. was paid off, provided the deed of gift previously executed by Sterling Elder to plaintiff was purely voluntary, and defendant had no notice of it. For though a deed made without valuable consideration, or to defraud creditors, is good between the parties, it is not good against subsequent purchasers, for value, and without notice.</p> <p>To which charge plaintiff excepted.</p> <p>The Jury found for the defendant, and counsel for plaintiff tender their bill of exceptions, and assign as error the charge aforesaid.</p>

<p>F. sells a town lot to R. and S., and takes their notes for the purchase money, giving them a bond to make titles, when the money is paid-The vendees go into possession, and employ C. to make certain improvements; C. files and records his mechanic’s lien, and sues and recovers judgment on his claim against R. and S. lathe meantime the purchasers finding they are unable to pay, agree to rescind the contract, taking up their notes and surrendering to F. his bond for titles. The lot is levied on by the Ji. fa., in favor of C., against R. and S., and claimed by F.</p> <p>Held, That the property is not subject to the debt, notwithstanding F. had knowledge oC the work, while it was being done, and made no objection.</p>

Trover, in Pike Superior Court. Tried before Judge Cabaniss, at April adjourned Term, 1859. This was an action of trover brought by William Perkins, as administrator de bonis non with (the will annexed, of Moses Perkins, deceased, against John P. Brown, for the recovery of two negro slaves, Mary and Warren, alleged to be the property of plaintiff’s testator. The defendant pleaded the general issue.

Motion to set aside judgment, in Upson Superior Court. Decision by Judge Cabaniss, at May Term, 1859. This Avas a motion by Terrel Barksdale, administrator of Macharina Bunkley, deceased, to set aside a judgment rendered in the Superior Court of Upson county, against said Barksdale, for counsel fees.

<p>A controversy not in suit, was referred to tho arbitrament of two persons, with power to them to choose a third, as am umpire. The two made an award, without having chosen an umpire, and one of tho parties -moved, that the award should be made the judgment of the Court.</p> <p>Held, That, as the arbitration was not under, either the Judiciary Act of 1799, or the arbitration Act of 1856, there was no power or authority in tho Court to make the award the judgment of the Court.</p>

Indictment for Bastardy, and motion for new trial, in Whitfield Superior Court. Tried before Judge Crook, May Term, 1859.

Debt, in Cass Superior Court. Tried before Judge Crook, March Term, 1859. All the facts necessary to a full understanding of the points adjudicated in this ease, are stated in the opinion of the Court.

Misdemeanor, in Fulton Superior Court Tried before Judge Buel, April Term, 1S59. . All the facts necessary to a full understanding of the points adjudicated in the case, appear in the following opinion ©f the Court.

<p>Quo Warranto, in Walker Superior Court. Decision by Judge Crook, May Term, 1859.</p> <p>This was an application for a writ of quo warranto, to be directed to certain persons therein named, requiring them to show cause by what authority they exercised the powers, privileges and immunities of the corporation, created by the Act of the General Assembly of the State of Georgia, passed 22d day of January, 1852, under the name of “The Coosst and Chattooga River Railroad Company.”</p> <p>The petition states that said Act provides for the construction of a railroad from the Western & Atlantic Railroad at or near Ringgold, through the counties of Walker and' Chattooga, to the line of the State of Alabama. The capital stock of said company to be $400,000, and certain persons were appointed commissioners to open books of subscription, &c.; that the commissioners opened the books for subscription, and petitioner subscribed to the amount of seven shares, and others subscribed various sums, which subscriptions the petitioner alleges are not valid and binding on the subscribers, on account of the failure to pay at,the time of subscribing five dollars on. each share as required by said Act of incorporation; nor did said commissioners issue certificates according to the provisions of said charter: that the entire stock was taken, and subscribed for, by eleven persons, who did not intend to construct said road, and that the only organization of said company was under the stock thus subscribed, and that organization was null and void, and that no sufficient amount of stock has ever been subscribed to authorize the formation and organization of said company as provided by law; and further, that the charter requiring said road to be commenced within four years, has not been complied with, and that said charter thereby-expired by the terms and provisions therein contained.</p> <p>The petition further states, that Edwin Dyer, Augustus JB. Culberson, Samuel McWhorter, James C. Wardlaw, Samuel Hawkins, John Woods and M. R. Allen, claim and insist that said company has been legally organized, and that they are the directors thereof, and that they have elected Edwin Dyer President, and Augustus B. Culberson, Secretary and Treasurer j and said board of directors are assuming to act as a corporation, and exercising all the powers and privileges conferred by the charter aforesaid, and are proceeding to collect money and make contracts in relation thereto without lawful authority, and contrary to the provisions of the Act of incorporation, and have made calls on the subscribers of the stock aforesaid for installments thereof.</p> <p>The petition prays that they be required to show cause, by what authority they assume to exercise the powers and privileges aforesaid.</p> <p>The respondents in response to the rule nisi, answer, that the General Assembly of the State of Georgia, did pass an Act for the incorporation of the Coosa and Chattooga River Railroad, as stated in the petition, and that the commissioners opened books of subscription as required by said Act, and they admit that instead of five per cent, being paid in cash on the capital stock at the time of subscription as required by said charter; that the commissioners received the notes of subscribers for that amount payable on demand.</p> <p>They admit that the original subscription of the capital stock of $200,000 was made by only eleven persons; that the period having nearly elapsed for securing the charter under the provisions of the Act of incorporation, these eleven persons did subscribe for stock to the amount of $200,000, not intending to hold or pay for the same, but for the purpose above stated of saving the charter; that the company was organized by these original subscribers, and afterwards others, upon becoming subscribers, were let in, and a certain portion of the stock thus originally subscribed for, was transferred to said new subscribers, and after about $125,000 was thus taken by others, there was a transfer of stock to this amount to them and the present board of directors elected and officers appointed, and operations have been commenced on said road, contracts let, and the work is in progress, &c.</p> <p>Upon hearing the foregoing petition and answer, the Court dismissed the rule nisi, and counsel for petitioner excepted.</p>

Ejectment, in Walker Superior Court. Tried before Judge Crook, May Term, 1859. This was an action of ejectment by Doe, exdem., Lewis A. Dugas, against Robert Anderson, tenant in possession, to recover lot of land No. 134, in the eighth district and fourth, section of originally Cherokee now Walker county. Plaintiff's lessor offered and read in evidence a grant from the State of Georgia to Wm.

Claim, in Meriwether Superior Court. Tried before Judge Bull, at February Term, 1859. This was a claim interposed by Wiley B. Ector, guardian of Elizabeth Victoria Johnson, to certain negroes, levied on as the property of Joseph L. Welsh, by virtue of an execution in favor of George D. Sharp, against said Welsh, and transferred to Walton B. Ector.

Ejectment, in Gordon Superior Court. Tried before Judge ■Crook, April Term, 1859. This was an action of ejectment by Doe, ex dem., Dawson A. Walker, guardian of the minor children of Amos Lane, against Roe, casual ejector, and Andrew J. Wells, tenant in possession; to recover lot of land No. 282, in the 13th district and 3d section of originally Cherokee now Gordon county.

Assumpsit, iu Fulton Superior Court. Tried before Judge Bum, April Term, 1859.

In Equity, in Troup S'uperior Court. Tried before Judge Cabaniss, at May Term, 1859.

Murder, in Cobb Superior Court. Tried before Judge Rice, at March Term, 1859. Albert J. Lingo, the plaintiff in error, was indicted for the murder of Robert Duncan. He pleaded not guilty, and the case came on for trial at March Term, 1859. In making up the jury, after the first panel of forty-eight had been exhausted, the Judge ordered the Sheriff to summon a second panel of talesmen, and to notify them as he summoned them, to come into Court.

In Equity, in Carroll Superior Court. Tried at April Term, 1859. This was a bill filed by M.athew J. Holding against Larkin A. Allen and John Catlett, to enjoin an action of ejectment brought by Allen against complainant, for lot of land No. 3, in the sixth district of Carroll county.

In Equity, in Cass Superior Court. Decisions at chambers, by Judge Crook,May, 1859. These two cases were heard and argued together, and the decision of this Court being predicated upon a general principle or rule of law, relating to the discretion of the presiding Judge or Chancellor, it is deemed unnecessary to state all the facts contained in two voluminous records.

In Equity, in Catoosa Superior Court. Decision by Judge Crook, May Term, 1859. This was a bill in equity, filed by Nathan C. Monroe and Skelton Napier, next friend of Thomas N. Maxwell, a minor, and son of Manfredona Maxwell, deceased, formerly Napier, and of James R. DeLauney, Mary B. DeLauney, Zachariah T. DeLauney and Virginia P. DeLauney, minor children of James L. and Sarah C. DeLauney, deceased, formerly SaTah C. Napier, against Thomas S. Napier.

In Equity, in Troup Superior Court. Tried before Judge ..Bull, at May Term, 1859. These two cases were argued together.

In Equity, in Polk Superior Court. Decision by Judge Hammond, April, 1859. This was a bill filed by Lovick P.. Garrison, against John.

Petition to revoke probate of will and letters testamentary in Putnam Superior Court. Tried before Judge Hardeman, at September Term, 1859. Held: that the probate was not only in solemn form, but that it estopped plaintiffs from moving to revoke it, even after the proof of a later will revoking the one admitted to probate. 3d. Because the charge of the Court, in the language of the second, third and fourth requests, was erroneous.

<p>Where the husband has a clear estate of twelve thousand dollars, twenty-five dollars per month is not excessive temporary alimony for the wife, nor is five hundred dollars excessive counsel fees for her, she having been of high character previously, and her character for chastity being attacked by the defence.</p>

Caveat to granting. administration, in Morgan Superior Court. Tried before Judge Hardeman, at September Term, 1859. This was ail application to the Court of Ordinary of Morgan county, by Thomas H. Moody, for letters of administration on the estate of John L. Moody, deceased, the father of applicant.

Indictment for furnishing a slave with spirituous liquors, and motion in arrest of judgment, and for new trial. In Laurens Superior Court, before Judge Hansele, at October Term, 1859. At the October Term, 1857, of Laurens Superior Court, four presentments were made by the grand jury, against James M. Reinhart, the plaintiff in error, all for furnishing spirituous liquors to a slave.

<p>[1.] A note though given on Sunday, and given in a work not of “ necessity er charity,” is yet, not within the Act of 1762, for keeping holy the Lord’s day, and other purposes, if it he made otherwise than in the exercise of the “ ordinary callings” of the parties to the note.</p> <p>[2.] On the party pleading the said Act of 1762, is the onus of showing, that the contract resisted, was made by the parties to it, in the exercise of 11 worldly labor, business, or work, of their ordinary callings.”</p>

<p>Trover for negroes, in Putnam Superior Court. Tried before Judge Hardeman, at September Term, 1859.</p> <p>This was an action of trover brought by plaintiffs in error, against the defendant in error, fora negro woman named Malinda and her increase.</p> <p>The defendant pleaded the general issue and the statute of limitations.</p> <p>Upon the trial plaintiffs proved that the negroes in controversy were in the possession of defendant, and held and used by him as his own property. He further proved the value of said negroes and their hire. That defendant got Malinda from David Perryman, and that they were claimed by Nancy Perryman or her children, the present plaintiffs. That Nancy Perryman died in 1850. That plaintiffs arc the children of David and Nancy Perryman. That they had no children in 1828 ; plaintiffs were born after that year.</p> <p>Plaintiffs then offered in evidence the following deed, via: “ Georgia, Green County.</p> <p>Know all men by these presents, that I, James Fretwell, of the county and State aforesaid, for and in consideration of the sum of five dollars to me in hand paid, as well as for the good will and affection which I have and bear to Nancy Perryman, have given, granted, bargained and conveyed, and hereby give, grant, bargain and convey, and deliver to Cullen Fretwell, his heirs, executors and administrators, in trust for the sole and separate use of the said Nancy Perryman, during her natural life, a certain negro girl named Malinda about 15 or 16 years of age, to have and to hold said negro girl Malinda and her increase, unto him the said Cullen A» Fretwell, his heirs, executors and administrators, for the sole use and benefit of the said Nancy Perryman, during her natural life, and at her death the right and title of said negro girl Malinda and her increase, to go to and be vested in such children as the said Nancy Perryman may have living at her death.</p> <p>In testimony whereof I have hereunto set my hand and seal. This 5th January, 1829.</p> <p>(Signed) JAMES FRETWELI* [seal.]</p> <p>In presence of</p> <p>Jno. S. Carey,</p> <p>James S. Park, J. I. C. G. C.”</p> <p>Defendant objected to the introduction in evidence of this deed, unless its execution was first proved, it not having been recorded agreeably to law, and therefore not admissible in .evidence without proof of execution. The Court sustained the objection; whereupon, plaintiffs proved the execution of said deed by the subscribing witnesses thereto, as well as by James Fretweli, the donor, and closed.</p> <p>Defendant’s counsel moved fora nonsuit,upon the ground that plaintiffs had shown no title to the negroes sued for, the deed from Fretweli not being evidence in itself of title in him, when it appeared from his depositions that he never had the possession of said negro Malinda, and there being no evidence of title in Fretweli.</p> <p>The Court stated that it would sustain the motion for a nonsuit upon the case, as then made by plaintiffs, but permitted them to adduce further proof, and to proceed with .their case. To which ruling plaintiffs excepted.</p> <p>It was admitted by defendant’s counsel that Martha Henderson, daughter of John Henderson, was the wife of James Fretweli.</p> <p>Plaintiffs further proved by the depositions .of. Cullen A. Fretweli and Elizabeth Fretweli that, in the year 1824, John Henderson, the father of Mrs. Fretweli, loaned said negro Malinda to Nancy Perryman. He said to deponents, “that he was taking the said negro girl Malinda to loan.to-Naucy Perryman, as she was a negro he had given to his.daughter Martha,” and they saw him taking her down .to Nancy. Martha Henderson held the negro by will and deed of gift made in the year 1823. Elisha Perryman obtained possession of said negro by moving David Perryman and family into his housem 1831, and said that he held her for loaned money-four hundred dollars — two hundred of which had been repaid to him. James Fretwell was the brother-in-law of Nancy Perryman, and was perfectly solvent in 1829. That David Perryman never considered the negro his, but said she was loaned to his wife. When they first knewMalinda, in the year 1821, she was in the possession of John Henderson.</p> <p>Defendant’s counsel objected to this proof going to the jury, on the ground that it appeared from the answers of the witnesses, that Martha Henderson held the negro by will and a deed of gift, referred to by witnesses, and that said will and deed being higher evidence, should beproduced. The Court sustained the objection, and plaintiffs excepted.</p> <p>Plaintiffs then offered in evidence the will of John Henderson, the fifth clause of which, and upon which they relied, was as follows :</p> <p>“ I confirm unto my daughter, Martha Henderson the land and negroes given her by me, in a deed of gift bearing date 29th July, 1823, and vest in her the right of said negroes and land.”</p> <p>To the introduction of which defendant objected, upon the ground that reference Was made in said will to a deed of gift, which should be first'produced. The Court sustained the objection, and plaintiffs excepted.</p> <p>Plaintiffs then proposed to show, that John Henderson had said that he had willed Malinda to Martha Henderson. Upon objection, the Court repelled this evidence, and plaintiffs excepted.</p> <p>Plaintiffs then proposed to show, that defendant had admitted the title of James Fretwell, and to this end offered the depositions of certain witnesses. The Court refused, upon objection, to allow the depositions to be read, and plaintiffs excepted.</p> <p>T-Iere plaintiffs closed,and the defendant offered no evidence.</p> <p>The Court charged the jury as follows: “ Plaintiff in trover must show title in himself before he can recover; and in this case, if they should believe from the evidence, that James Fretwell, under whom the plaintiffs claimed, was not in possession of the property, and never had been in possession then they should find for the defendant.” To all of which charge plaintiffs excepted.</p> <p>The jury returned a verdict for defendant; whereupon, counsel for plaintiffs tendered their bill of exceptions, assigning as error, the rulings, decisions and charges aforesaid excepted to.</p>

Assuiftpsit, in Lownds Superior Court. Decision by Jndge Cochran, June, 1859. These two cases being against the same party, and involving the same legal questions, were heard and decided together These cases were brought in the Inferior Court, and at the second or trial Term in said Court, defendant confessed judgment, reserving the right of appeal, and the cases were accordingly transferred to the appeal in the Superior Court, as provided by law.

Claim, in Putnam Superior Court. Decision by Judge Hardeman, at September Term, 1859. This was a claim interposed by Oliver H. P. Bonner and Richard W. Bonner, trustees of Nancy C. Andrews, to a negro woman named Mary, levied on under and by virtue of a fieri facias, in favor of Kinchen Little, against James G. Andrews, Thomas G. Andrews, and John D. Diomatari; the negro was levied on by the Sheriff as the property of James G. Andrews.

Assumpsit, in Greene Superior Court Tried before Judge Hardeman, at September Term, 1859. This was an action of assumpsit by William A. Wilson, against Greene H. Thompson, on a promissory note, dated 24th May, 1855, for two hundred and five dollars and sixty-two cents, payable one day after date, to said Thompson or bearer.

In Equity, in Elbert Superior Court. Tried before Judge 'Thomas, September Term, 1859. This was a bill filed for direction, by John Eberhart, administrator of William F. Eberhart, deceased, against Horatio J. Goss, Jr., and his wife, Melita Goss, and William B. Eberhart and Zilla A. Eberhart, infant children of Mrs. Goss, by a former husband, the said'William F. Eberhart, deceased, complainant’s intestate.

Decision by Judge Hutch-ins, at August Term, 1859. This ivas an application to the Court of Ordinary of Clark county, by the plaintiff in error, for letters testamentary on the estate of Robert Sims, deceased. This application was resisted by the defendant in error, who filed a caveat to the same.

In Equity, in Hancock Superior Court. Tried before Judge Thomas, at October Term, 1859. This was a bill filed by Emma Ingram and Ella Ingram, by their next friend, against William Fraley, for a discovery and account of the estate of LaFayette Ingram, deceased, and that defendant be decreed to pay over to complainants their distributive share thereof, as heirs at law of decedent, they being the children of a deceased brother.

<p>On an issue of will, or no will, tlie executor presented himself as a witness, to prove the affirmative; and, to render himself competent, he offered to deposit a sum sufficient to pay the costs.</p> <p>Held, That he, would still be interested in the event of the suit, to the extent of the costs, because, if he gained the case, the costs would come out of the other party, and he would get back his deposit.</p>

<p>The executor of a will is the proper administrator of the whole estate, .as well of that part of which the will does not dispose, as of that disposed of by the will.</p>

In Equity, in Warren Superior Court. Decision by Judge Thomas, at October Term, 1859. This was a bill filed by'Turner P. Oliver, administrator, against Thomas F. Persons.

Ejectment, in Hart Superior Court. Tried before the Honorable Thomas W. Thomas, presiding Judge, at July adjourned Term, 1859.- This was ejectment by John Doe, against Richard Roe, casual ejector, and Hugh McDonald, tenant in possession, for the recovery of a tract or parcel of land, situated in the county of Hart.

<p>Certiorari, in Hall Superior Court. Decision by Judge Hutchins, September Term, 1859.</p> <p>Carter instituted suit against Wood, in Hall Superior Court, in "which hail was required and given. Pending suit, Carter sued out an attachment against him on the same cause of action, returnable to the Inferior Court of Hall county. Defendant Wood moved to dismiss the attachment, on two grounds:</p> <p>1st. Because bail had been given in the common law action.</p> <p>2d. Because the Superior Court alone had jurisdiction of the attachment, the same having issued pending the common law suit, and.for the same cause of action. The Superior Court refused the motion and defendant brought the case, by certiorari, for review and reversal before the Superior Court.</p> <p>The presiding Judge of that Court, (Hutchins,) dismissed the certiorari, and affirmed the judgment of the Inferior Court, and to this decision defendant excepts and assigns the same as error.</p>

In Equity, in Elbert Superior Court. Tried before Judge Thomas, at September Term, 1859. This was a bill filed by Lindsay H. Smith, against Thomas M. Hilly, and wife, to recover certain sums paid and expended by him, as guardian of Mrs. Hilly, formerly Miss Smith,' over and above his receipts as her guardian.

Petition from Warren. Tried before Judge Thomas, at October Term, 1859. The facts of this case and the points adjudicated will be sufficiently understood, from the following opinion oí the Court, together with the head note made out by the Judge delivering said opinion.

Ejectment, in Emanuel Superior Court. Tried before Judge Holt, at September Term, 1859. This was an action, under the form prescribed by the Act of 1847, brought by Abner Sutton against Duncan McLeod, for the recovery of a tract of land situated in the county © Emanuel, containing five hundred and ninety acres. The defendant pleaded the general issue and the statute of limitations.

<p>•’ -Mttrdfer; ih Rifeh'riióricl Superior Cbuk.’! )Tbded’before Judge HÍóxiyat MáyiTerhi) Í859;--:‘; ■’ ’’ ;i-‘ -'-íHv-' ■> *></p> <p>‘ o Tile plamtiñbm- error, -Tiiomas-Jon-es, was indicted; fot? the ¡.murder'of 'William Osborne.!- At the-trial,' the (following-’testimony ¡was submitted1 eon the <pait.of.itfteiState v«íí>.</p> <p>■: Owen- Gilfoyle;. sworn: Wasr employed: byn.the «Augusta and Savannah Railroad-'Company,, last .ChristmaS;.iS,aw¡:the ¡difficulty between defendant ®nd deceased,whose; name -was ¡ Willi’am .Osborne p it tookopláfee -in Kahifsf.'bar-room which is, oppositeithe ’Savannah) depot, -in the: bit $ of Augusta/coun■■■ty-of Richmond,!1 State ’of Georgia; it-mas .imcthe-iMth of i December, ISSS/between-teri'and elevéií o.’ clo ck. lb th e. morn - ing,.'. 'Wentwith WllliaPioOsborne, the deceasedpto the-bar- ) ¡room p when' We ar,rived ¡there defendant.;andi sonre'one -else, i-were ttfateng some.noise-’ behind the: blinds.'.;- II- was oh the •• other side -df nthe". blinds,íin-the¡:bai--rbona-; ¡tbePfirst-I ¡saw of ’.the defendant he-.came 'from: behind'the blinds with Harney .. Willis and.'some other, manp whose maniegljdb rnot -.know. As soon as defendant saw.dhe ¡deceased, bet.walked .towards ¡where deceased.-was/ who was -talking wi’th-G’eorge ¡Carl, and ■ said two or-three times «hercould.-whip the deceased-'; J: did - not hear. Osborne make, any reply,, Then Jones drew what T-think was®-knife, and struck- t-he„<deceased;j he-.¡drew it . from some part of; his clothes,as I did not see, it in his.hands before thiat time ;■ I call, the knife®;, dirk knife;,,after .giving ■ the stroke ¡upon-.'the;shoulder/ on the-left. side, Carl®nd,Hous- .: ton- took hold of1 defendant; when .they, didstí, Osborne made a stroke at Jones; can’t say whether he struck' him, or.not. ■Carl and Houston, then put Jones, out .of the door there may have been some others that assisted them ingoing ,so.. A ' young.man hy the. name,of Crissp-who staid-with .Ruhr, ■ then pushed the dobr - to p¡ there was considerable .noise outside for some two-or three - m i n u t e s;;; J o n e st he n game push- - ing to’the-door again;' .the-young man,pushed, the, door . against defendant;- after a little-while Jones pushed the door in; he had the knife in his hand; Osborne was standing by the counter; defendant cut him again about five inches from the navel, on the left hand side; defendant backed then, and Barney Willis and some one else took hold of him. Osborne walked out of the door in the store part of the house, and some one asked him to go up stairs to see if he was hurt; saw no more; saw Willis and the other man throw defendant on the floor and take the knife out of his hand. I was standing some three or four yards from the parties when it occurred; could not see all things in the house, but saw all I testified to. Did not hear Osborne say any thing to Jones; he made the stroke at him which I testified to. Osborne was sober; saw Osborne afterwards up stairs on the bed; saw the wounds ; he lived until three or four o’clock next morning. I sat up with him all that night; he died between three and four o’clock on the morning of the 26th. Saw the wound on the shoulder-blade; it did not look more than skin deep to me. The wound on the loin was a pretty large one, his in festines came out through it; don’t know if they were cut; the doctor put them back.</p> <p>Cross. — Mr. Jones looked to me as pretty tight; he did’nt look very drunk; he seemed to be able to go where he desired ; he staggered about considerably; was not much acquainted with him to know if he was devoid of sense or not, and could not say when he was very drunk. Could not swear he had a knife until he (Jones) came back the second time; I saw what I thought was a knife the first time; am sure I saw it the second time. If Osborne said any thing to defendant, I did not hear him.</p> <p>Osborne was standing at the counter when defendant approached him; am certain that defendant struck the first blow. Defendant was out about two or three minutes after he was put out. Did not see any effort made to get Osborne out; did not hear Osborne say he would stay there. They got Jones down before they got his knife away ; did not see him try to cut his friends; two persons had hold of him; he tried his best to keep the knife. Did. not see Osborne take hold of Jones when he returned; he did not have hold of Jones when defendant cut him. Osborne and myself worked together, and had been acquainted a good while; went with the deceased there that morning. Osborne took two drinks that day; we were there about five minutes; could not tell what the fuss behind the screen was about. James Rooney sat up with the deceased a part of the night, and Andy Benny also sat up with him that night.</p> <p>Direct. — George Houston went away from here; don’t know when. Barney Willis, saw him on the day of the Mayor’s election ; have not seen him since. Last I heard of Houston he was in Macon.</p> <p>■ Diderick Kahr, sworn: Heard the evidence of Owen Gilfoyle; it was my brother’s bar-room. I stayed there at that time, and saw the difficulty; it was on the 25th December last, about ten o’clock in the morning. I walked to my brother’s bar-room, which was opposite the Waynesboro’ ticket office; when I got there I saw some friends there, Myers and Jacob Sanchas, and some others. I stayed a little while. I saw Tom Jones, Barney Willis, William Day and some others come towards the bar-room ; saw Tom Jones was very drunk; they came in and there was loud talking. Saw Sanchas and Mr. Coker standing before the bar at that time; Sanchas asked Tom Jones to take a drink with him; Jones declined. Barney Willis came in and said defendant should not drink any more, that he had enough, that if he got any more he would throw it out again. Jones, Willis and the others walked towards the store and sat down. Jones was talking loudly : did not notice what he said. I then saw Owen Gilfoyle and William Osborne come over; 1 met them in the front store, and when they came in I told them “ Christmas gift.” They went to the bar-room to get a drink or segar, I don’t know which. I walked around, saw Jones and the others go to the door which leads to the store; saw Jones stop at once and say, as I supposed to Osborne, “I cap.jyfi-ip yop.f .-.i^erhen tfiok^orttkis kpifp; it appeared to,, me,fp4W-í*s<?$cgge^wept towards,0s,-{. bome^arrdijtpEtde^Jickai: Jiim with it.j.jtlie.jtjase, .Ti^as. on,it at thejime, gjf geempd,tpsme,that 0shprneffjefen<ied.that lick;, don’t ,fhinly]jat it^ur^imj-af, that fiiue,;. §aw, that .George . CarI.-jy:,asIbet\Y->een;fíipm;,.saw[ Osborne strike at Jones pn the. left,.side,; ,am pot certain vyhpther - he, stfuck.himif seemed,, to mipRe,struck himson.fhe,-leftside;,; ^aw Carl ,p,ush Jon.es;, back through fkp,bariroonidporviij,to the store,. Jy/tent tpwardpi,. Osborne an/I told, him, Rill, go. ,outipf..the side., door leading into ■the ;enfry,;keep put of the fuss, don’t .have no fuss here./ He,gave, nap torundei:s,tandhp \yas.;ript, gofng .oftf.;. he said,, I think, that he did not want to have^a.fuss there.. ,I turned round,to the dpor which leads.,to- the.front store to shut..the door;.,;uf the same timfe( Jones,had come .hack; I. ca,Ught, Jones between-the^oor...as I was.^huffing, i,t. ,.I.let go the. door and-yrent round the,ypunter;;. Jopes went right up.to., Osbprne,,.. 'Vyhen,. I. was ..around the..counter sa\y Osborife,. haveNoidj.of Jones pushing him hack; ,he.ha,d one hand .ojtt, the thro fit and. the other,, on, the, arm of defendant I.saw ■ Tom Jones stab, at Osborne ajt the same time, with what appeared the same dirk; sa\y ffim;stab.0s,borue on the side, the place.,- cfescpib.ed by 'Mr.- Gilfoyle.., I then .saw Willis,,and, another person whom I did not knp\y, takerthe , knife ,away; from, defendant after parting, therm Jpnes .told mp.after they took the knife away .from him, that ,he was a friend to - Jake Clarksqn,,and that he,had imposed on him, meaning, as I,suppqsed, Osborne. .1 theiR saw. .Willis and, the others.take, Tom Jones pff. Saw Osborne’s .clothes.,cut,.and .blood coining through it;. the ,.cut.was. on, the. side. ¡ If. seemed,to. pie • that Jopes,knew.. Osborne. Á7\fery .short fimqkad ejapse^, between the time that.Jones was. taken, .out and- returned., Osborne.was..pu.shing defenc^Rt .back when I sp,ty-fhem3fro.iri behind the c.pu.ntgr.,.;. I suppo.se. if was to defend.himself., WpU. lis .took . Jones’s, knifaj .a\yay:; , they had. fo. scuffle .to-.talrRit,. away; they seemed to haye 'him offthe "floor "to falce thé~ . ./tí i ;:iu a ¡kií'C.- J :¡ni >! a ■ ',iv; <_> j s o ■ ? --,•»> knife away.</p> <p>Cró'ssto understand t'hiñ^else; tilt JPwak in 'such'a Entry ’ that i dicfnbt understand''wháí fie lshi&.'' Jonéé’’ ñfehdh'"were Ufyihgíó get^him1’ of híkihihcl." ’ísá^Tom Jones'haWéa'Mife" in his haiid^ was afraid he would cut me, I therefore left the door,' knowing that die\4ouM ’Ho' só whfeii drunk.’ '1 Did riot notice whether hi’s'fíiéiids' Were'catitiouá of'nót WHéní the^ disárnied Him. Barney' Wiilis 1 did _say! he wak foolish, and hé'shóiüd-drmkno ihore; this Was "before Osborne carné fThe lóüd’talking1 behiiid the “blih'fe* Was" the -effort of JHnes’sTriehds to -take3hinf bff/’i't Wuk t'heirtliey Hiét'Osbdrhé' and Gflf<tyl& -'WEbir I saW'ihetn ffbin behind the counter,'Ostíbfnétía’d'hdvánced a short distancerfrom'the,'píláce'>Whéi<é;Í kaw him ás‘T;went’ behirid thb counter; he wak pushing’liim when the' libk'-was given. *; 5sborne‘Wa:s the largest' miih, and "Weighed about ISO bv'iido póhiids, jdeféndaní/abó'ut'l25 pburíds;} fhifilc that lick-wangiVeh 48■ deceased ifrth'efoin, whilst-'he' was''plish-’ing defehdhiii ¿oblé four‘tii3five-feet f "He ':hdd3defendknt tty1 the thrbát* and right 'armY Défendáht whéif; sbb'er, was upright' 'áhdfgeriílériiánljr ihJ hfs'fcbñfltíct:' ''(Wtíérí Hrfáütíéktfed' off ihat'tifcaMónwére His acts'kihh'-’as'if He knew'Whát lie3 wás'^abotit1? ' Objected 4ol Objection" biístained.)'-' ■ Heard' Joneá'tsíik;1 Hé thlH4dllóüd; !He'saí’d a"heap^bf things which? I did íio't notice. ‘ The ‘impression mádé upon my mind from wh'afhé safd’wák' that lié' was toó" drtrtñc tó"khów;'WHatf Ke; was nn.■•.ifi,-' t;Jü ■ ÍJ TfiJ</p> <p>iHrect. — WHelí ffbñes ’'cat¿'e: hack,- Osbcirné Was ■sfánditig’ ing'iñ'thé MbfióbiH’, EbmewHere ifí HofítíBflithe0ébüíitéf ;íl:Ké' went right towards Osborne, and I wenf-behíhHthé'cbiintefj Osbbrhé^' áhd débéa^éH ‘tóoted fflHrá!íéie:Hb,ri‘fiÉfeif,-5tóWalctó a little' /table ;:fÓsbot'AeJI Was !ipúsHiiig £déféii'dánf ‘ badil1’’ Saw Jones go up to Osborne; don’t think Osborne walked up to-meet defendant. Jones, when he came in the door, advanced to Osborne with his dirk.</p> <p>Cross. — When I turned, after I passed around the counter, I saw defendant and deceased together. Osborne had pushed defendant back about three feet from where he stood when I went around the counter, and he pushed him some four or five feet afterwards; defendant was cutting at the deceased at the same time.</p> <p>Robert li. Corker, sworn : On the morning of last Christmas, as I was sitting by the stove in that bar-room, Jones and others came in while I was sitting there; they came around and took a seat by the stove, and I got up ; just as I was going out, Osborne came in; Osborne asked me to take a drink with him; I declined, and walked on to the front part of the store, near the door; I remained between three to five minutes, my attention was attracted to a noise in the bar, I turned and saw them putting Mr. Jones out of the bar. Saw Osborne standing at the bar about the same place where I had left him. The parties tried to close the doors upon Mr. Jones; Jones had a knife in his hand, a long, slim knife, it had the appearance of a dirk. They did not succeed in fastening the door, and he rushed back. I then stepped towards the bar-room door, and Osborne walked out into the front room. I stepped to the door and saw Willis and others have Jones upon the floor trying to take his knife away. I stepped to Osborne and told him he had best to leave; he said he could not leave, that he was cut; he pulled up his vest and showed me where the blood was coming through his clothes at his side. Saw Jones scuffling with knife in hand to come back; he made a remark to Mr. Kell, that he would cut. him or any body else who would prevent him from coming bade</p> <p>Cross. — Did not see them take the knife away; saw Barney Willis and others make the effort to take it away. There were two or three persons there I did not know; think I saw Kell and defendant together several times; don’t know as to the extent of their friendship ; Kell was there taking-care of defendant, and seemed to be acting as his friend that day.</p> <p>The following evidence admitted by defendant’s counsel:</p> <p>The description of the wounds.</p> <p>The death of William Osborne.</p> <p>The wounds which caused his death were those described in the indictment, and that the death occurred at the time stated in the indictment.</p> <p>State closed.</p> <p>The defendant offered no evidence, and his counsel requested the presiding Judge to charge the jury:</p> <p>1st. That mental alienation or unconsciousness from any cause whatever, at the time the deed was done, to the extent that the accused did not know what he was doing, will rebut any presumption of malice arising merely from the apparent recklessness of his conduct, so as to reduce the offence from murder to manslaughter; the Court stating that he gave the instructions as asked, except as to the furor brevis of drunkenness or fit of drunkenness; the Court further adding, in substance, that, if a party be deprived of reason by the act of God, such as occurs in the case of lunacy or idiocy, or permanent insanity, then, he is not responsible; but this exemption does not apply when he voluntarily, and of his own accord, induces temporary mental alienation by intoxicating drink. Which charge, so requested, the Court failed and refused to give, to which failure and refusal, and to which addition and exception to the language of said charge, counsel for prisoner excepted.</p> <p>2d. That the existence of malice is not presumable in-this case, if on any rational theory consistent with all the evidence, the killing was either justifiable, excusable, or an act of manslaughter.</p> <p>The Court refused, to give the charge as requested, adding, “ the qpestion, of malice is left distinctly to the jury.”</p> <p>To which failure and refusal 'to' charge in the language as '#)'• ' rJ :C‘ 5! I* ‘ E ‘ T k, jj y.- . ■ ' • £/ requested, counsel for prisonér éxcéptedk '‘</p> <p>3d. That the jury must find from the evidence that at the i ¡; t * j ‘ kjf,16 , /* * •'? " N v- y, -y - {' í ’ time or thelalling, Jones was a person of sound" memory arid discretion, otherwise the defendant cannot lie 'convicted 'of , 1 :¡ ; o ¡ ¡. murder. ,</p> <p>The Court stating that the instruction was given as risked, '-o si.tt ; -:t : -P.-sir j:.i : •>.•! . except the unsoundness or Avant of discretion Eiro.su from a furor brevis, or fit of drunkenness, as before stated. ’</p> <p>To which failure and refusal to charge, as requested, counsel for prisoner excepted.</p> <p>To each'arid all' o'f which failures and ’refusals to charge as requested, and' chrirg'es as given, counsel! for prisoner ex'-’ eeptéd, and now excepts arid assigns the same as' error.,' '</p> <p>A'verdict' of guilty was rendered'; whereupon,1' counsel fob prisoner moved’the Court for a'new trial, on the following’ grounds: ■</p> <p>1st, Because 'the Court' erred iii refusing 'to charge ‘the jury, in,the' words TolÍo\ving,* as 'asked' by prisoner’s cqunf-r sel,'to-wit“That rirental alienation'or' unconsciousness" from any cause whatever, at the time the aéed was done, to the extent that tlie' accused' did. riot’ luiów 'Ávhát 'Iie Avas' dqmg^'will pjehút any presumption of mrilice arising' merely"from , the apparent recklessness’ of his' condtict, so as to reduce"thé offence from murder "to ' ha'a&slktightóíl The Gpur't’.stating Jthat he' gave the instructions 'ah',kgkfed’,"except as j:(0''théyMror‘5re¿ií of drunkepnes^'-or a? fit of drunkenness! ' The Court' further' ridding;, hi' substance',' thkt>'if'a; party’be dépnved'o’f rérisón by ttie'acfbf'Go<h sUch^akobcWfk' in the case of lunacy or idiocy, or permanent insanity,' ‘then’ he is not'responsible; but this' exemption does Vot apply whérk he vbiuhtá'íity'áhd'pf hik oVk'üribbíd tinkijbés' tempóray^méh'tai’aiiénatióh'hjr'iufoxicatiiíg'dfihk.^ " ” “</p> <p>2d. Because the Court erred in his ruling,híiidin réfhsihgtó' charge the following words asked by; defendant’s counsel,-to be given in charge to the jury: “ The existence of malice is not presumable in»this-ease,iif ,©n any rational theory, consistent with all the evidence, the killing was either justifiable, ex'cüsáble', :or an aCtof manslaughter;” ■ The- Goúrí refusing to'give sUCli'chargef adding, “the -question of'malicffiiíí' left distinctly to* thé jury.” ! »' : '• ■" ■ •• ..«•</p> <p>3d. Because the: Court érred iii his ruling 'and Charging - upon the following-instructions asked for by defendant’s counsel, to-wit: That “théjury must find from the evidence that at the time of the killing, Jones-Was a person of sound memory and discretion,'otherwise the- defendant1 cannot be' convicted of murder -f the Court stating that the instruction was given as asked, except the unsou'ndness or.want ’of dis-'! cretion arose from a furor brevis, or fit of drunkenness^ its ■ before stated; ' - - ,</p> <p>4th. Because One of the jurors who' sat upon the trial of the cause, and; who rendered' the verdict of guilty as above stated, to-wit, Charles W. Gruber, was not an impartial and unbiased jurar,, between the State and the defendant,for that said juror had before said trial, expressed, very decided . .opin-' ions against the-defendant; -that he knew him,, and that. des fondant ought to be-hung;- which was wholly unknown to the defendant ox his counsel at-tlie time he.was put.upon the. prisoner by -the.-State, and until after said verdict was -ren-; dered.' . In support of which last- mentioned ground for .-new trial the annexed -affidavits- were submitted, marked exhibits A, B, C, &c.. The said juror, Charles ,W. Gruber, having been previously asked the questions prescribed by the statnutos, had by his- answers thereto rendered himself.a coin-pe-. tent juror. »,..<. •- . ■ .</p> <p>The presiding .'Judge - refused to grant a. new-trial, Where-; upon, defendant excepted,; and assigned said refusal as, erron</p>

<p>The penalties imposed by the Act of 23d December, 1333, “to prevent the-drawing of lotteries, or sale of lottery tickets in this State, for a violation of its provisions, cannot be enforced by indictment.</p>

In Equity, in Washington Superior Court. Tried .before Judge Holt, at September Term, 1859. ,. . This was a bill in equity by ■ Thomas E. Brown against Henry C. Lang, setting forth that complainant and defendant, in the year of 1840, bought from Morgan Brown, the father • of complainant, a tract of land containingniue hundred acres, and formed a partnership for the purpose of erecting a saw. and grist mill.

Attachment, in Charlton Superior Court. Before Judge Cochran, at October Term, 1859. This was an attachment sued out by Elijah B. Wilson,, against Oliver, on the ground, that he “ absconds defendant traversed the ground upon which said attachment issued, and denied that he did abscond, as alleged in said attachment.

<p>Complaint, in Richmond Superior Court. Tried before Judge Holt, at October Term, 1859.</p> <p>This was an action by James F. Lugrue against Minus W. Woodruff, on a draft, of which the following is a copy, viz:</p> <p>“ Chattanooga, January 23d, 1S5S. $164. Three days after date, pay to the order of myself, one hundred and sixty-four dollars, value received, and charge the same to account of 202 sacks oats, marked W.</p> <p>. (Signed,) R. HOOPER.</p> <p>To M. W. Woodruff, Augusta, Ga.”</p> <p>(Endorsed,) “ pay James F. Lugrue.</p> <p>(Signed,) R. HOOPER.”</p> <p>Noted and protested for non-acceptance, January 27th, 1858.</p> <p>Noted and protested for non-payment, January 29th, 1858.</p> <p>Plaintiff at the trial, offered the draft in evidence, to which defendant objected, on the ground, that it was not accepted on its face. The Court sustained the objection, and plaintiff excepted.</p> <p>Plaintiff then offered in evidence the following letter from defendant to Hooper, the drawer of the draft, as evidence of acceptance:</p> <p>“Augusta, January 26th, 1S58.</p> <p>Mr. R. Hooter :</p> <p>Dear Sir: Your draft on the oats at three days was presented to day for payment, and the oats not yet arrived, and money as tight as bricks, it is almost impossible to collect any thing here, it is utterly impossible for me to pay the draft to-day, but as soon as the oats get here, I can realize on them immediately, and will then attend to the draft; it will be all right in a few days. If the draft should come back to you have it sent down again, and I will certainly arrange it; and send on all the oats you can, our market is almost entirely bare of them and a good demand at 60 to 65 cents.</p> <p>Respectfully,</p> <p>M. W. WOODRUFF.”</p> <p>Defendant objected to this letter, on the ground, that it was not an acceptance as to third persons, whatever it might be as to Hooper. The Court sustained the objection, and plaintiff excepted.</p> <p>Plaintiff then proposed to prove that the conditions expressed in the letter had been performed; that the oats did arrive and were sold, and the draft sent back to defendant. The Court rejected this evidence also, and plaintiff excepted.</p> <p>There being no further evidence, plaintiff was nonsuited, and therefore tendered his bill of exceptions, assigning as error the above rulings and decisions.</p>

In Equity, in Chatham Superior Court. Before Judge Fleming, June Term, 1859, This was a bill in equity, by Richard W. Adams, against Emily… Held: as tenant for life, in his individual right, conjointly with his brother, Augustus Guerard ; and that the said Robert G. and Augustus, were the only surviving children of said Peter and Elizabeth, at the time of his, Peter’s, death; and defendants deny that said Robert G. ever held said property as trustee, under said deed, or as…

Trover, from Washington county. Tried before his Hon- or, W. W. Holt, at March Term, 1859. This was an action of trover, by John Kittrell, as administrator of Noah Kittrell, deceased, against Isaac Moye, and others, for certain negroes and other things, alleged to be the property of said deceased, at the time of his death.

• Indictment, in Burke Superior Court. Tried before Judge Holt, at May Term, 1859. The plaintiff in error was indicted for furnishing liquor to a slave contrary to law. The State haying announced ready for trial, the defendant moved for a continuance, on account of the absence of two witnesses. This motion was supported by the affidavit of defendant, as to what he expected to prove by the absent witnesses, &c. The Court ruled the showing sufficient cause for a continuance.

<p>[1.] The contents of a judgment or decree, rendered in the Courts of another State, cannot be proven by parol.</p> <p>[2.] Testimony will be rejected, unless its relevancy is made to appear.</p> <p>[3.] The sayings of the former owner are inadmissible to prejudice the title conveyed, if made subsequent to the time when the title and property are parted vvith.</p>

Case, in Richmond Superior Court. Decision by Judge Holt, at October Term, 1859.

In Equity, from Richmond county. Decision on demurrer, by Judge Holt, July, 1859. This was a bill filed by Thomas Wynne and Cecelia, his wife, by her next friend, against James H. Alford, executor of Guilford Alford, deceased.

Claim, in Burke Superior Court. Before Judge Holt, April Term, 1859. These were claim cases, in which Holiday and others were plaintiffs in fi. fas, D. G. White, defendant, and Hodges, claimant. There were five executions levied on certain negroes as the property’of defendant White, and claims respectively interposed.

<p>Complaint, in Richmond Superior Court. Tried before Judge Holt, at July adjourned Term, 1859.</p> <p>This was an action in the form prescribed by statute, brought by John Milledge, assignee, against James Gardner, as security on the following bond and endorsement, viz:</p> <p>“ Georgia — City of Augusta :</p> <p>$2,600. Know all men by these presents, That I, John F. McKinne, late of the city of New York, am held and firmly bound unto James Gardner, Jr., of the city and State aforesaid, in the just and full sum of two thousand six hundred dollars ; for the true payment of which, with interest from date, I do hereby bind myself, my heirs, executors, administrators, and assigns, unto the said James Gardner, his heirs, executors, administrators and assigns, firmly by these presents.</p> <p>Witness, my hand and seal, this tenth day of June, eighteen hundred and thirty-seven.</p> <p>(Signed,) JOHN F. McKINNE, [L. A.]</p> <p>In presence of Thomas W. Miller, Not. Pub.” (Endorsed,) “ For value received, I do hereby assign the within obligation to John Milledge, June 10th, 1837.</p> <p>(Signed,) JAMES GARDNER, Jr.”</p> <p>The defendant pleaded:</p> <p>1st. The general issue and payment.</p> <p>2d. The statute of limitations.</p> <p>3d. Set-off.</p> <p>4th. Payment, settlement, accord, and satisfaction.</p> <p>5th. An amended plea of set-off in the nature of a debt due by plaintiff to defendant as an accommodation endorser on a note of nine hundred dollars, dated 5th January, 1842, and payable four months after date, at the Bank of Augusta, endorsed by James Gardner, Jr., Ann Milledge, John Mil-ledge ; and upon which three several judgments were obtained by the President, Directors and Company of the Bank of Augusta, against the said maker and each endorser respectively; and alleging that John Milledge and Ann Mil-ledge, having failed and refused to pay the judgments against them, the defendant, who alleges himself to have been an accommodation endorser, as such paid off and discharged the one against himself, and that an entry to that effect was made on th ef.fa. against him, by the plaintiff’s attorney in said case; and that thereby a right of action accrued to the defendant against the plaintiff, to the extent of the amount thus paid; and that by virtue thereof, under the laws of Georgia, he became entitled to the use and control of the fierifacias against the said John Milledge; and the debt thus became an indebtedness in favor of the defendant, in the nature of a judgment debt, or of a debt by statutory liability, and was so plead as a set-off to the plaintiff’s claim; and that the plaintiff, by means thereof, became indebted to the defendant in said sum of money as so much money paid, laid out and discharged, for the use of plaintiff, &c. Said amended plea annexing exemplifications of three several judgments against the said John Milledge, James Gardner, Jr., and Ann Milledge, in favor of the President, Directors and Company of the Bank of Augusta.</p> <p>To the said amended plea, with the exemplifications an nexed, plaintiff’s counsel excepted, and moved that it be stricken out:</p> <p>1st. Because, as contended, there was no privity between the plaintiff in those judgments and the defendant in the present proceeding, except as to the judgment against himself, which was paid off and satisfied on the second day of January, eighteen hundred and fifty, and the judgment, if unsatisfied, would be dormant, by the statute of limitations, and in no event could be plead as a set-off against the plaintiff, in this cause.</p> <p>2d. As to the judgments against John Milledge and Ann Milledge, by defendant’s own showing, executions had never issued on either of them, and therefore they were both dormant and barred by the statute of limitations; the judgments, as well as judgments andfi. fas., if fi.fas had been issued.</p> <p>3d. Because the defendant, even as an accommodation endorser, is not entitled under the statute, in such cases provided, to use such fi. fas. except permitted by order of the Court, after having paid the costs; both of which he failed to show.</p> <p>4th. The plaintiff’s counsel insisted, that as to the exemplification of the judgment against Ann Milledge, in any event that should be stricken out of the amended plea, as irrelevant and tending to complicate and encumber the pleadings, it appearing by his own showing, that she was a subsequent endorser to the said James Gardner, Jr., upon the note on which the judgments were obtained.</p> <p>The Court overruled the objections of the plaintiff as to said amended plea, both in whole and in part, and sustained the defendant by deciding (though with some apparent reluctance,) that the whole of said amendment should be received, for the then present; to which'rulings and decisions of the Court, plaintiff’s counsel excepted and assigned as error.</p> <p>And in the further progress of the trial of said issue, the plaintiff having read the pleadings, original and amended, and introduced in evidence the bond and]endorsements and transfer thereof, before described, closed his case.</p> <p>The defendant, by his counsel, moved for a nonsuit, because defendant’s liability was alone upon a parol endorsement of a sealed instrument, and that he was]protected by the statute of limitations after six years from his undertaking — it being a collateral undertaking, and he not being liable under the statute of limitations applicable to instruments under seal.</p> <p>Plaintiff’s counsel contended that by his endorsement the defendant became security on the bond he endorsed, and as such was liable, until the same should be paid off and discharged.</p> <p>The Court, after argument, granted the nonsuit, holding that the cause of action, arising on said endorsement and assignment of said bond, was barred after six years from the date or making thereof.</p> <p>To which decision and order counsel for plaintiff excepted.</p>

Rule Nisi, in Jefferson Superior Court. Tried before Judge Holt, at the April Term, 1859. This was a rule against Mullings, as deputy Sheriff, calling on him to show cause why he should not pay over to the plaintiff in fi. fa. the amount due on a fi.fa. placed in the Sheriff’s hands.

Assumpsit, in Columbia Superior Court. Nonsuit by Judge Holt, at September Term, 1859. This was an action of assumpsit, brought by Lallerstedt, endorsee, against Griffin, on a draft, of which the following is a copy, to-wit: '• “Augusta, Ga., 29th Oct., 1858.

Certiorari, from Richmond county. Decision by Judge Holt, at October Term, 1859. This case arose in the City Court of Augusta, upon a rule sued out at the instance of Curtis H. Shockley, against Isaac Levy, the Sheriff of said city, to show cause why he should not pay over the amount due on an execution, placed in his hands, in favor of said’Shockley against one James M. Simpson.

<p>Certiorari, in Richmond Superior Court. Decision by Judge Holt, at October Term, 1859.</p> <p>This cause arose in the City Court of Augusta, being an action on the case brought by William If. Ifitchen, against Stephen 33. Robbins, to recover the value of a gold watch and eighty-five dollars in money, alleged to have been stolen from plaintiff, on the night of 27th day of December, 1858, from the room occupied by him in the inn or hotel, kept by defendant in the city of Augusta, and while plaintiff was asleep in the room.</p> <p>After proving that the defendant kept a common inn in the city of Augusta, on or about the 27th day of December, 1858, and that on or about that day, plaintiff and his family were guests at said inn, plaintiff proved by Curtis H. Shockley, who was examined by commission, that during the month of December, 1858, the defendant, Stephen 33. Robbins, informed him, that the plaintiff had lost some money and (as witness thought) a gold watch also.</p> <p>Plaintiff, by his attorneys, then offered as evidence, his own testimony, taken by commission, for the purpose of proving his actual loss; the amount of money and the value of the watch; upon the ground that from the necessity of the case, no other evidence could be procured to show a loss which occurred while the plaintiff was asleep; and upon the ground of public policy, springing out of the necessity of the case and the nature of the subject. The Court ruled out the testimony of the plaintiff) who excepted at the time to the decision.</p> <p>The plaintiff then placed the defendant, Stephen B. Robbins, on the stand; by whom he proved that on the night of the 27th day of December, 185S, the plaintiff, his wife and daughter were guests at his inn, and that he had been paid in full for their board.</p> <p>Plaintiff's counsel then asked of the defendant whether or not he believed that the plaintiff was robbed of said watch and money on said night, and requested him to give the reasons of his belief. The defendant replied that he had no belief except what was founded upon the statements of the plaintiff to him.</p> <p>The Court refused to allow the defendant to give his belief, though insisted upon by plaintiff’s counsel; to which refusal the plaintiff excepted.</p> <p>Plaintiff again offered in evidence his own testimony, upon the grounds aforesaid, which the Court refused to allow as evidence, and plaintiff again excepted. The case was then submitted to the jury, who found for the defendant.</p> <p>Upon this statement of facts, a writ of certiorari was granted; and after argument on both sides in the Superior Court for said county, the Judge of that Court ordered a new trial, upon the grounds that “ the loss having been proven by the admissions of the defendant,” the “testimony of the plaintiff was admissible to prove the amount and value of the property lost.”</p> <p>And, secondly, that the plaintiff, when the defendant was put upon the stand, “ was entitled, on the direct examination, to have his belief, and the reasons of his belief.”</p> <p>To which decision defendant, by his counsel excepted, and tenders this bill of exceptions, and says that the Court erred:</p> <p>1st. In holding that the admissions of the defendant, founded upon the statements of the plaintiff, was sufficient evidence of the fact of loss, to admit any evidence of the value of the loss.</p> <p>3d. In holding that the rule of law which admits a party, in an action against a common carrier, to testify in his own behalf as to the contents of his trunk which had been lost, is also applicable to innkeepers, in cases of this kind.</p> <p>3d. In deciding that the defendant when placed upon the stand by the plaintiff as his witness, might be compelled, on the direct examination, to give his belief, and the reasons of his belief, as to any fact not within his own knowledge.</p>

<p>[1.] The communications of one person to another are incompetent testimony, being hearsay only.</p> <p>[2.] Confessions of parties against themselves are admissible in a libel for a divorce, when there is no suspicion of collusion.</p> <p>[3.] In a suit for divorce, the fact that the plaintiff had a friendly interview with his wife, and requested her to return home and live with him, does not amount in law to a condonation of the libel.</p> <p>[4.] To a libel for divorce, on the ground of cruelty in the wife, she may re* criminate the adultery of the .plaintiff, her husband.</p>

Indictment, in Richmond Superior Court. Tried before Judge Hoi-t, at October Term, 1859. Held: that shooting at the adulterer under such circumstances, would be a violation of the Act of 1856 on that subject; but that unless an act of criminal connection be shown in this case, these remarks had no application to the case, and are principles not necessary to be considered by the jury. 7th.

In. Equity, in Buike Superior Court. Decision on demurrer, by Judge Holt, at May Term, 1859.

<p>[1.] A bill in equity filed by one who has the equitable title, for the purpose of enjoining several common law suits, at the instance of one who has the legal title, and ostensible right to recover possession of the property, will be retained to avoid circuity of action and unnecessary expense and litigation, unless it appears that there is a legal necessity for the common law actions to proceed — especially after a decree has been had settling the fights of the parties as the law fixes them.</p> <p>[2.] Upon the death of the wife, having a separate property, the title to such property vests in the husband; and that right is not lost to his representatives, although the husband failed to administer on his wife’s estate during his lifetime.</p> <p>[3.] 'When the parties go to trial on the bill and answer, and there is no question of fact in issue, and there is nothing involved but a question of law, it is not improper for the Court to instruct the jury to sign a decree in accordance with the legal or equitable rights of the parties.</p>

<p>[1.] A testator, by the sixth item of his will, made in the State of Virginia, in 1793, where he resided, made the following bequest: “I lend to my granddaughter, Jincey Jordan, during her natural life, the use and services of the following slaves and their increase, to-wit: Edy, &c., (which said negroes I had lent to my son, Henry Haily, at my discretion,) and at her decease, I give the said slaves and their increase to the heirs of her body, lawfully begotten. But if she should die without such issue, in that case, I give the said slaves and their increase to my grand-children, Letitia and Richard Ilyde Haily, aforementioned, or the survivor of them, and the heirs of their bodies, lawfully begotten. And in default thereof, then to my grand-sons, Henry and Hud. son Haily, or the survivor of them, and their heirs forever.”</p> <p>Held, That Jincey'Jordan took an estate tail in the negroes, which was enlarged by the laws of Virginia into an estate in fee simple.</p> <p>[2.] That the word “ lend" used in said clause, imports the same sense as “give,” and is so to be construed.</p> <p>[3.] That the gift of the use and services, in said item, carries the corpus of the property with the use.</p>

Trover, in Charlton Superior Court. Tried before Judge Cochran, at April Term, 1859. This was an action of trover, brought by JBenj. F. Williams, against Harold Dollner, Gilbert Potter, and John Camerden, partners, under the name of Dollner, Potter & Co., to recover a turpentine still and fixtures. Service of the writ was effected on Potter alone, and the action proceeded against him, under the provisions of the statute in such case made and provided. Brief of testimony.

Caveat to survey and grant of land, in Emanuel Superior Court. Before Judge Holt, at September Term, 1859. This was an application by William B. Milier, under the head rights laws for a survey and grant of a certain parcel of land in Emanuel county, under a warrant issued by a Justice Court of said county, in favor of Berryman Doughtey, and by Doughtey assigned to Miller.

In Equity, in Columbia Superior Court. Tried before Judge Holt, September Term, 1859. This case came before this Court, and was heard upon the following bill of exceptions: John M. Cutliff and Wife, } vs. 't Bill for discovery and se «John Cartledge and Wife, J tlement. Be it remembered, that at the.