Volume 3 — Georgia Reports

<p>[1.] The appointment of a deputy sheriff may be made by parol; and the admissions of the principal, his recognitions of the acts of his deputy, or holding him out to the world in any other way as such, would be sufficient evidence of his appointment.</p> <p>[2.] The sheriff is liable for money collected by his deputy, no matter how the execution upon which it is paid comes into his hands.</p> <p>[3.J Money paid upon an execution in the hands of the sheriff or his deputy, discharges the defendant.</p>

Ejectment. In Macon Superior Court. Tried before Judge Warren. April Term, 1847. For tbe facts of the case, and the charge of the Court below, which was excepted to, the reader is referred to the opinion delivered by the Supreme Court.

■ Indictment for misdemeanor. Tried before Judge Warren in Macon Superior Court. Verdict of Guilty, and motion in arrest of judgment argued and overruled. April Term, 1847. - The plaintiffin error was tried before Judge Warren, in Macon ■ Superior Court, October Term, 1846, upon a bill of indictment charging him with the offence of a misdemeanor.

<p>[l.J Under the act of 1838, authorizing the service of writs, rules and orders, in equity, by publication, it is necessary that four months shall elapse between the first and the last publication; and that the publications shall also be made once in each of four months next preceding the term at which the defendant is called upon to plead and answer.</p> <p>[2.] If a cause is not reached in its order on the docket, by the exercise of reasonable diligence on the part of the Court, the effect is a continuance by the Court.</p>

<p>[Í.] In a sci.fa. to make parties, the defendant, by demurring to being made a party, on the- ground that the suit set out in the record has abated, admits the existence of the action, and is estopped, by the judgment overruling the demurrer, from denying the record.</p> <p>[2,] A demurrer only admits facts well pleaded, with a view to determine their legal sufficiency, and it cannot he used as an instrument of evidence in an issue of fact. *</p> <p>[3.] After a demurrer has been argued and overruled, and the defendant has permitted the time for pleading to' elapse, the court may, in its discretion, refuse him leave, unless satisfied that it is necessary to attain justice, and that the application is not for delay and vexation.</p>

In Equity. Bill and Answer, and application for injunction. In Randolph Superior Court. April Term, 1847. Before Judge Warren. The injunction was refused, and the complainant excepted.

Assumpsit upon Promissory Note. Tried before Judge Alexander. In Stewart Superior Court. April Term, 1847. Tbe note sued on was payable to Jernigan Lawrence & Co., or bearer, and had been transferred to the defendant in error, before due.

<p>Indictment for Murder, and trial and conviction for Voluntary Manslaughter. In Stewart Superior Court. Before Judge Alexander. April Term, 1847.</p> <p>The prisoner had been indicted before for the same offence, and was put upon his trial, and a jury was impaneled and sworn to pass upon liis case, when the solicitor general was permitted by the Court, to enter a nolle prosequi upon the hill of indictment, notwithstanding the objections of the prisoner, and the fact that a jury had been impaneled and sworn.</p> <p>Upon the trial, the aforesaid proceedings under the first indictment were relied upon by the prisoner, as his defence in bar, and as tantamount in law to an acquittal. The Court below ruled out this, defence, and held that it was no sufficient bar of the indictment then pending.</p> <p>The offence charged, was committed before the repeal of .the 48th section of the 14th division of the Penal Code -of 1833 by the act of 1843, and before the change therein made, as to the mode of selecting jurors in criminal cases. It was therefore contended by the prisoner, that a jury to try him, could not be made under said 48th section of the 14th division of the Code, nor could such selection be made under the new law of 1843, the first being repealed, and the last ex post facto.</p> <p>This objection was also overruled by the Court below. Upon these decisions, error was assigned. For a more minute statement of the facts of the case, see the opinion delivered by the Supreme Court.</p>

i Bill for discovery, relief, and injunction to stay a judgment and execution at law, and demurrer. From Early Superior Court. Demurrer heard and overruled.' Judge Warren presiding. April Term, 1847.

Motion in arrest of Judgment. Before Judge Warren. In Early Superior Court. April Term, 1847. This was an action of assumpsit brought by the defendant in error, against Dill and Buchannon, two of the plaintiffs in error, having two counts, one of which was for money had and received, and the other for money laid out and expended, without_any bill of particulars being attached to the declaration.

Trespass for overflowing plaintiff’s land. Tried before Judge Warren. In Early Superior Court. April Term, 1847. For tbe facts of the case, and the questions «made and decided below, see the opinion delivered by the Supreme Court.

<p>[1.] When money is voluntarily paid by a Tax Collector to a County Treasurer, by mistake, and which was not intended to be received by the latter as belonging to the county, an action lies by the former to recover it back, especially when it do'es not appear the money has ever been paid over to the county.</p> <p>[2.] In actions against agents, for money voluntarily paid by mistake in fact, the ..true distinction is, where the agent has paid the money over to his principal in good faith he is not personally liable; but when he has not paid the money over, or before such payment he has notice of the mistake, and is required not to pay it, then he is personally responsible, although payment to his principal may have been made.</p>

<p>[l.J In a contract to pay money, in which it is expressly stipulated that the instalments shall be paid at specified times, and that if any one instalment is not promptly met, the whole sum shall be due and payable, time is of the essence of the contract, and, if the party agreeing to pay fails to do so, he is not entitled to relief in equity.</p>

Motion to set aside judgment. Before Judge Warren. In Baker Superior Court. June Term, 1847. The said Edward H. Tedlie, with William P. Tedlie, and Jesse B. Tedlie, were sued jointly, by John Dill. The said Edward H. and William P. were served with process, and a return of,' “ not to be found,” was made by the officer as to Jesse B. Pending the suit and before judgment, the said William P. died.

Ejectment. Tried before Judge Warren. In Baker Superior Court. June Term, 1847. The declaration in this case, contained a demise from the plaintiffs in error, as heirs at law of Joseph Carruthers, to John Doe. The defendant demurred,, on the ground that the heirs at law could not, in this State, maintain an action of ejectment. . The Court below sustained the demurrer and nonsuited the case, and the plaintiffs excepted.

<p>In Equity. Bill and demurrer. In Baker Superior Court. June Term, 1847. Before Judge Warren.</p> <p>The Merchants’ Bank, of Macon, was prosecutitíg an execution issuing from Pulaski Superior Court, upon a judgment rendered, July Term, 1840, of that court, in favour of said Molyneux, of the county of Chatham, against George W. Collier and James M. Brace well, as partners and principals, and Edward St. George,as security on appeal, and caused the same to be levied in the county of Baker, by the sheriff of that county, upon certain lands and slaves, as the property of said Collier; to which property DaVis, the defendant in error, interposed a claim, Which w'aS pending in the Superior Court of Baker county, wherein the land levied on and claimed, lies.</p> <p>The hill states the complainant’s purchase of the property (levied on and claimed) from Collier, with other property, Collier’s embarrassed circumstances at the time, and his agreement with hito to take up all the just debts against him, which were to go as credits upon his note given for the property. That the aforesaid execution was amongst the outstanding claims then against Collier ; that he was advised, and believed, that said John Rawls,' then in life, was the sole owner and proprietor of said execution, having obtained the same from Molyneux, with knowledge of the insolvency of said firm of Collier and Bracewell, and that with such knowledge he was induced to agree with Collier, that if he would apply his yearly labour to the payment of one-third part of said execution, he would release and discharge him from all further or other liability upon the same ; which was accepted by Collier, who entered upon its performance, and paid, and caused to be paid, the said one-third part in conformity thereto.</p> <p>That Rawls admitted to complainant, that Collier had fully complied with his part of said agreement, and promised complainant not to collect said fi.fa. out of said property; that St. George (who the bill alleges was a partner in the said firm of Collier and Bracewell, and as such liable in this case,) had placed in his, Rawls’, hands, effects tosatisfy one-third part of said claim, under a like agreement as the one he had made with Collier; and the remaining third part of said claim, the bill alleges, should have been paid by the defendant Bracewell, who, by the negligence of RawlSj Was permitted to remove, with his property, out of the jurisdiction of the court, notwithstanding said Rawls had promised complainant to collect out of said Bracewell. That after this, Rawls died; and his administrator and administratrix aforesaid took upon fhemsplves the burthen of the administration of his estate ; the said Taylor residing in the county of Pulaski, and Caroline Rawls residing in the county of Bibb. The bill further alleges, that the complainant informed the administrator of the circumstances aforesaid, the agreement, and of Collier’s discharge by Rawls under said agreement, yet the said administrator and administratrix, after-wards, in 1845, knowing also that said execution was a part of the assets of the estate of Rawls their said intestate, caused Molyneux fraudulently to tranfer said execution to the Merchants' Bank of Macon, located in the county of Bibb, and that Molyneux tranferred the same, well knowing the circumstances.</p> <p>The bill alleges, that the property in said execution at the time of said transfer, was in the estate of Rawls.</p> <p>The bill then states the levy, and claim, and pendency thereof and concludes with a prayer for relief and injunction.</p> <p>At the June Term, 1847, of the Court below, the defendants in the bill demurred thereto, on the following grounds :</p> <p>1st. Because none of the defendants resided in the said county of Baker, except the sheriff who made the levy, and he was not a proper party, and therefore the Court below had no jurisdiction in the cause.</p> <p>2d. Because there was no equity in' the bill — the alleged agreement was not evidenced by any writing, &c.</p> <p>3d. Because the complainant had an adequate remedy at law; that he did not pretend that the facts alleged rested in the knowledge alone of the defendants, or of any of them, or show that a discovery from them was necessary to his defence.</p> <p>At the term aforesaid, the demurrer was argued before Judge ~Warren, who overruled the same and ordered that the defendants-answer the bill.</p> <p>To which decision- the defendants excepted.</p>

<p>[1.] The power of reviewing all the decisions, interlocutory and,final, of the Superior Courts, even those depending upon mere discretion, of right belongs to the Supreme Court; yet it will not interfere to correct the abuse of discretionary power, unless it has been exercised in an illegal, unjust, or arbitrary manner.</p> <p>]2.J Courts of chancery being clothed with greater amplitude of discretion than courts of common law, a Court of Errors will interfere more sparingly with the exercise of the discretionary powers of the former than the latter, notwithstanding the duties of both are discharged by the same incumbent, in Georgia.</p> <p>[3.] The act of 1811, (Prince., 438,^ which declares that, “in all cases of injunction, they shall be disposed of and a decision made at the second term of said court, held in and for said county where such suit originated,” means the second term after the parties are served and the cause set down for trial.</p>

<p>In Equity. Decatur Superior Court. June Term, 1847. Before Judge Warren.</p>

Motion by principal to discharge his hail for nonconformity between the amount sworn to and that indorsed. In Muscogee Superior Court. May Term, 1847, Before Judge Alexander. The amount sworn to be due as principal upon the note sued, was #412 50, besides interest, but no specific sum was claimed to be due as interest. The amount indorsed on the writ as the amount sworn to was $468 50. The party was held to bail in double the amount indorsed, $937.

<p>[1.] A obtains a judgment guando accidermt against B, the administrator of C. D gets an absolute judgment against B, the administrator, for the surplus estate in his hands coming to D, as the oniy heir and distributee of C. E, the security of B, upon his administration bond, pays off the judgment of D. Held, that A has no right to subject this money, in the hands of D, to the satisfaction of his judgment quando.</p>

In Equity, Bill and demurrer. Tried before Judge Alexander, in Muscogee Superior Court. May Term, 1847. N This was a bill in equity, brought by the plaintiff in error, against the defendants in error, in Muscogee Superior Court, returnable to May Term, 1847.

Motion to set aside judgment in attachment, by a junior attachment creditor, and issue tendered suggesting want of consideration or cause of action, to support the prior attachment judgment. In Muscogee Superior Court. Before Judge Alexander. May Term, 1847. For the facts of the case, and the issue tendered in the Court below, see the opinion delivered by the Supreme Court.

Claim. Tried before Judge Alexander. In Muscogee Superior Court'. May Term, 1847. Ezekiel levied an attachment sued out against one Nathan Licbton, upon certain merchandise, which was elaimed-by Dixon. Upon the trial, Dixon read in evidence a deed to himself'and one Simon Lichton, executed by said Nathan Lichton, assigning the goods, wares and merchandise, to them, in trust for the benefit of certain-specified creditors, who were to release Lichton from all further liability.

<p>Claim. From Muscogee Superior Court. Judge Alexander presiding. May Term, 1847.</p> <p>At April Term,-1842, of Muscogee Superior Court, the plaintiffs in error, who petitioned for the use of Arthur B. Davis, administrator of Benjamin P. Tarver, deceased, obtained, a rulenisi for the foreclosure of a mortgage made by one James S. Moore and Milton J. Tarver, on certain lots in the city of Columbus. At OcTOber Term, 1842, the rule was made absolute, and the property ordered to be sold. On the 30th day of January, 1843, a mortgage fi. fa. was issued, which on the 3d day of March, 1846,- was levied on the property mortgaged. Oft the 2d day of June the defendants in. error, James N. Bethune and Daniel McDougald, interposed- a claim.to the property levied on, and the claim was- returned to the November Term, 1846, of the Court below.</p> <p>At that term the claim was tried and the property found subject j and the claimants appealed.</p> <p>At May Term, 1847, the claimants suggested on the record the death of said Arthur B. Davis, administrator, fyc.</p> <p>Whereupon, the Court below ruled that the claim cause should be suspended, until the personal representative of said Tarver should he made a party.</p> <p>To this decision of the Court below, the plaintiffs- in error excepted, and assign the same in this Court for error.</p>

<p>[1.] In a bill filed to enjoin the collection of a judgment against the surety on a usurious contract, J>y the principal, an order passed at chambers, before the return term of the bill, directing the principal and legal interest tendered in thebilltobe accepted by the plaintiifin full satisfaction of the judgment, is in the nature of a final decree, and void; because'the judge of the Superior Court, as chancellor, has no right to pass such an order; nor can he decree finally in any cause without the intervention of a jury.</p> <p>[2.] If usury is paid by a surety to the contract, cognizant to its being nsurious, ha cannot recover the usurious interest from his principal.</p> <p>[3.] In Georgia the jury and the judge constitute the chancellor.</p>

Attachment lien. Before Judge Alexander. Muscogee Superior Court. May Term, 1847. Various attachments against Benjamin Hurd, had been levied on the satire property at different times. That of the defendant in error was levied the 7th February, 1846, and that of the plaintiff in error, McDougald, on the ISth day of the same month. McDougald’s claim being for rent, he obtained the first judgment.

Foreclosure of Mortgage. Objections thereto by a third person, not a party, overruled. From Muscogee Superior Co'urt. May Term, 1847. Judge Alexander presiding. Hai’vey Hall filed his petition for- foreclosure of a mortgage, made to him by Wheelock and Willard, of certain lots of land. A rule nisi was granted and duly served on the mortgagors; and, at the May Term, 1847, of the Court below, the said Hall moved that bis rule be made absolute.

<p>['!.] Courts of justice will not lend tlieir aid to enforce ail immoral or illegal contract; if it be executed, they will not disturb it, but leave the parties where they fiiid them.</p> <p>[2.] No action can be maintained upon a contract growing out of an immoral or illegal transaction, when the transaction was not subsequent or collateral, but directly eoiinected with the unlawful act.</p>

<p>[1.] The improper granting or refusal of a continuance, is ground for a writ of error.</p> <p>[2.] Upon a motion for a continuance on account of the absence of a material witness, the court may compare the facts expected to be proved with the pica, and decide whether or not the testimony is material.</p> <p>[3.] The Charter of the Insurance Bank of Columbus prescribes the mode in which contracts shall be executed to be binding on the Company, namely, that they shall be signed by the president and countersigned by the cashier. In a suit at the instance of the holder of a bill against the indorser, on a bill drawn by himself as president of the said corporation, and in his own favour, he cannot object to the regularity of the contract, nor is he protected on his indorsement by its want of conformity to the statute.</p> <p>[4.] The 26th section of the Central Bank Charter, dispensing with proof of demand and notice, in order to charge indorsers, applies to suits upon notes payable elsewhere, as well as to those payable at that Bank.</p> <p>[5.] If the indorser of any note or bill which is negotiated to the bank, is discharged for want of demand and notice, it is his duty to plead it by way of defence.</p>

In Equity. From Stewart Superior Court. April Term, 1847. Tried before Judge Alexander. These cases are predicated upon the same record, in which each of the parties filed bills of exceptions to decisions, on points arising in the progress of the trial, affecting their interests.

Rule against sheriff, requiring him to put purchasers of land at his sale into possession thereof, resisted, and retention of possession claimed under right of dower. In Decatur Superior Court. June Term, 184-7. Before Judge Warren. For the facts of the case, see the opinion delivered by the Supreme Court.

<p>[l.J Some general rules stated, respecting writs of error and bills of exception.</p> <p>[2.] Where two judgments are obtained in different courts, by the same plaintiff against the same defendant, for the same cause of action, a satisfaction of either may be shown, on motion made for that pur]>ose, in discharge of the other.</p> <p>[3.] A receipt for money may be explained by parol testimony, when there has been imposition practiced in the giving of it, and any facts maybe proved at law, which if true would entitle the party to relief in equity.</p> <p>[4.] Parol satisfaction of a judgment may be shown, even when the payment was for a less sum than the whole amount due, provided it was actually received and accepted in full discharge of said judgment.</p>

<p>[1.] In all applications for new trial in the Supreme Court, a biief of the testimony in the cause must be filed by the party applying for such new trial, under the revision and approval of the court, at the term of the court at which the application is made, in conformity to the 61st rule of practice.</p>

<p>This was a claim case. Tried before Judge Warren. In Macon Superior Court. At the April adjourned'Term, 1847.</p>

In Equity. Bill and demurrer. In Lee Superior Court. May Term, 1847. Before Judge Warren. For the facts stated and questions made below, see the opinion delivered by the Supreme Court.

' Illegality. Tried before Judge Floyd. In Crawford Superior Court. February Term, 1847. Frederick Hartley was exercising the office and duties of a collector of taxes in and for the county of Crawford, and in that character had collected the sum of $344 51 from persons liable to pay taxes therein.

In Equity. — Motion to rescind order dissolving injunction, and to permit complainant to proceed to trial on the bill and answer, and the evidence taken in the cause. Tried before Judge Floyd. In Crawford Superior Court. February Term, 1847. The. facts of the case, and errors,assigned, being fully.stated in the opinion delivered by the Supreme Court, to which the reader is referred, are omitted here.

Motion to dismiss appeal. Before Judge Hill. In Coweta Superior Court. March Term, 1847. The grounds of this motion, and the facts of the case, are fully stated in the opinion delivered by the Supreme Court, to which the reader is referred.

Trover for a slave. Tried on the appeal. Before Judge Floyd. In Monroe Superior Court. March Term, 1847. The action was brought by the plaintiff in error, against the defendant in error, returnable to Monroe Inferior Court, December Term, 1844. The defendant pleaded the statute of limitations.

<p>[1.] An affidavit taken for the issuing of an attachment, signed by Daniel Herman and attested by a judicial officer, which in its body describes the person sworn as Daniel Harman, is a sufficient oath under our attachment laws.</p> <p>[2,] An attachment bond which contains the conditions prescribed by law, and the further condition, that the plaintiff shall prosecute his suit with effect at the term to which it is returnable, is substantially in conformity with the statute, and sufficient to prevent the dismission of the attachment.</p>

<p>[l.J If an execution is not ban-etl under, the Dormant Judgment Act, at the time it comes into court to claim money, the statute cannot subsequently attach, pending the litigation respecting the distribution of the fund.</p>

In Equity. Upson Superior Court. Tried before Judge Floyd. April Term, 1847. For the facts of the case, and the points made and determined, the reader is referred. to the opinion delivered by ,the Supreme Court.

This was an action of Assumpsit, brought by the plaintiff in error, against the defendants in error, and 'William Robertson, then in life, but who died pending the action, in Upson Superior Court, and was tried before Judge Floyd, April Term, 1847.

<p>[1.] An exemplification of the record of a ease, under the hand and seal of the clerk, exhibiting, among other things, the assignment by the plaintiff of the writ of fieri facias, is admissible in evidence to prove the transfer.</p> <p>[2.j It is not necessary to give notice of the first suit, in order to recover over against the security or other party ultimately liable; with notice, the former judgment is conclusive; without it, prima facie evidence only of liability.</p>

In Equity. From Henry Superior Court. Bill and answer and exceptions to answer, and motion to amend bill overruled. Before Judge Floyd. April Term, 1847. This was a hill in equity for discovery and injunction, brought by the plaintiff in error against the defendant in error, in the Superior Court of the county of Henry.

Indictment for an assault with intent to murder. Tried before Judge Floyd. In Bibb Superior Court. May Term, 1847. The prisoner was convicted, and sentenced to four years’ hard labour in the Penitentiary. The defence set up on the trial, was mainly, the insanity of the prisoner.at the time of the commission of the dffence charged. The bill of indictment alleged the assault to have been made upon one John Knight, in .the county of Bibb, on the 18th day of May, 1847.

In Equity. Bill to enforce vendor’s lien. Tried before Judge Floyd. In Bibb Superior Court. May Term, 1847. The facts and circumstances of the case, and the error assigned, are fully stated in the opinion delivered by the Supreme Court, to which the reader is referred.

<p>[l.j By the marriage settlement, the property of the intended wife was vested in trustees, to be held in trust for the use of the husband during his life; he was to have the entire possession, and to exercise reasonable ownership over the same, and to alter and change the same by and with the consent of the trustees, and provided,, it was for the benefit and advantage of the trust estate: if the wife survived the husband, then she was to have the entire use during her natural life, with the power of disposing of the one half thereof by will; in the event of offspring between them, the whole estate to vest in said child or children; the trustees to have the right at any time to re-scttle the property, with the consent of bot}i husband and wife ; and several years after, this was done, so far as to allow the wife the right to dispose of a moiety of said estate, in any event. At the death of the husband, he surviving his wife, and there being no offspring, the trust to cease, and the legal to unite with the equitable estate, and descend to the heirs at law of the husband:</p> <p>Held, that the legal title remained in the trustees, and that the equitable interest of the husband in the property, was not liable to be seized and sold by the sheriff, under an execution at law, and that the proper remedy for the creditors was in a court of equity.</p>

<p>[1.] Under the judgment of the Supreme Court, pronounced in Collins vs. The Cen Bank et ol., a person having purchased the bills of the Monroe It. It. and Banking Company, after that judgment was pronounced, which were filed under the decree of the Superior Court of Bibb county before the judgment of the Supreme Court, Í3 not entitled to receive upon them the amount which he paid for them, but the amount paid by the person who was the owner at the time they were filed.</p>

Assumpsit. Tried before Judge Floyd. In Bibb Superior Court. May Term, 1847. Defence, Usury. The Central Bank of Georgia obtained a judgment in Bibb Superior Court against the plaintiff in error, as one of the indorsers of a note for $2,000, made by Story & Pratt,'and payable at the Merchants’ Bank, New York; and which was transferred by the indorsements to the Central Bank.

The bill of exceptions in this case referred to .divers documents, as having been used in evidence on the trial below, an The counsel for the plaintiffs in error moved a suggestion of a diminution of the record ; which' was overruled. The counsel for the defendant in error then moved to dismiss the writ of error, on the ground of the incompleteness of the bill of exceptions ; the documents and other evidence omitted, being material to a hearing in the Supreme Court.

In Equity. Bill, &c. Tried before Judge Floyd. In Bibb Superior Court. May Term, 1847. For the facts of the case and the errors alleged, the reader is referred, to the opinion delivered by the Supreme Court.

Rule against sheriff. Heard before Judge Floyd. In Bibb Superior Court. May Term, 1847. The defendants in error sued out a capias ad, satisfaciendum, against one Maria Watkins and the said Joseph A. White, upon a judgment recovered in the Court below for the sum of $100 principal, with interest and costs. There was a return upon the ca. sa., entered by the deputy sheriff, of non est inventus as to Maria Watkins, and of the arrest of White under the ca. sa.

In Equity. Tried before Judge Floyd. In Pike Superior Court. February Term, 1847.

Motion to enter this case upon the docket of the Supreme Court, at the G-ainesvilie September Term, 1847. The writ of error was made returnable to the March Term, at Cassville, 1847, being the first term in that judicial district after the signing of the bill of exceptions, and the proper term to which the writ was returnable, under the constitution and the law creaating and organizing the Supreme Court.

Indictment for an assault with intent to commit a rape. Tried before Judge Dougherty. In Gwinnett Superior Court. March Term, 1847. The prisoner was convicted, and a motion made for new trial, and also in arrest of judgment. For the grounds in support of each of these motions, and the questions made, the reader is referred to the-opinion delivered by the Supreme Court.

<p>' [1.] A dies intestate, leaving a widow and four children, his only heirs and next of kin. B, one of the sons, upon coming of age, takes possession of the property, and manages the same for the benefit of all concerned, advancing t<5 the distributees money and property for their maintenance, and settlement as they marry or come of age. The heirs being all of age, submit the division and settlement of the estate to arbitrators, who make an award which is acquiesced in and executed. Subsequently, administration is taken out and a bill filed against B to recover the assets. Held, that the submission and award could not be set up as a defence to the original bill; and that the defendant could get relief only by a cross bill against the administrator and his co-heirs. '*'</p>

Debt upon judgment rendered in the State of Virginia, against the executor of the testatrix, resident in that State, brought by the plaintiff in error, who was plaintiff in the Virginia judgment, against the defendant in error, as administrator, &c. of the same testatrix, in the Superior Court of the county of Franklin. Tried before Judge Dougherty. April Term, 1847. For the facts of the case and the error assigned, see the opinion delivered by the Supreme Gourt.

In Equity. From Floyd Superior Court. Bill and answer, and motion to dissolve injunction. Before Judge Weight. At Chambers,'July 8th, 1847. The injunction was dissolved, and the decision excepted to, and assigned for error. The following is a statement of the facts. This was a bill in equity, filed by the plaintiffs in error, against the defendants in error, in Floyd Superior Court.

<p>[1.] Where a purchaser of land without notice of any fraud or defect in the title, purchases from one affected with notice, the former will be protected.</p> <p>[2.] So where a purchaser with notice, purchases from one without notice, the purchaser with notice will be protected, for otherwise, a bona fide purchaser might be deprived of the benefit of soiling his property for its full value.</p>

In Equity. From Jasper Superior Court. Tried before Judge Meriwether. April Term, 1847. It appears from the record, that several persons were indebted to Cuthbert Reese, the defendant in. error, on divers small notes, on which suits were brought and judgments recovered in a justice’s court. Pending the cases, the defendants executed mortgages on the whole of their property to John Thurmond, the plaintiffin error.

Indictment and conviction for murder. From Richmond Superior Court. Tried before Judge Holt. June Term, 1847. This cause was tried upon a plea of not guilty.

In Equity. Tried upon bill and answers. Before Judge Meriwether. Richmond Superior Court. June Term, 1847. Ann Cumming instituted her bill for foreclosure against George L. Twiggs and John P. Eve, executors of Grace Rowell, deceased, and Henry H. Cumming and Joseph Ware, as trustees. The bill charged the following facts.

<p>[1.] The act of 1836, malting the certificates of notaries public, evidence of the facts stated therein, not only makes them prima facie evidence of the non-payment of a note, but evidence of notice also, when so stated in the certificate under the hand and seal of the. notary.</p> <p>[2.] The statement of the notary in his certificate, that he had deposited in the post office notices addressed to the indorsers at their respective places of abode, held prima facie sufficient to make out the plaintiff’s case, without stating the particular place to which the notices were addressed.</p> <p>[3.] Where indorsers of a promissory note resided in the county of Richmond, the one seven and a half, and the other twelve miles from the city of Augusta, and were in the habit of receiving their letters and papers at the Augusta post office, at least unce a week, held, that notices of the dishonour of the note, deposited in the Augusta post office, addressed to them, was sufficient to make them liable, ugh there was a post office at the Richmond Factory, nearer to them than, ce at Augusta.</p>

<p>[l.] The case of Stephens -us. George W. Crawford, Governor, for the nse of Ward, reviewed.</p> <p>[2.] Upon such a bond there can be but one recovery, and a former recovery upon the same bond may be plead in bar of a subsequent suit.</p> <p>[3.] Official bonds, when not conformable to the statute which requires them, although they may be good at common law, can only be enforced according to the rules of the common law.</p>

Trover for a slave. Tried before Judge Sayre. In Wilkes Superior Court. September Term, 1847. Upon tlie trial below, the plaintiffs attempted to prove a' gift of Jenny, the mother of Jerry the slave in dispute, to Mrs. Carter, when she was quite a child, by her grandfather Jacob Bull.

Assumpsit. From Wilkes Superior Court. Tried on the ap_peal. Before Judge Sayre. September Term, 1847. The plaintiff on the trial in the Court below, produced in evidence the note declared on, which was for $2000 principal, dated 28th July, 1840, due by the first of January thereafter, made by Story & Pratt, payable to the order of Luke J. Morgan, defendant’s intestate, and indorsed by him and the plaintiff Howard and Addison Pratt.

Indictment for bastardy. Tried before Judge Holt. Washington Superior Court. September Term, 1847. Verdict guilty. It was not averred in the indictment that the plaintiff in error was the father of the alleged bastard child. For a copy of the charging part of the indictment, see the opinion delivered by the Supreme Court. Several grounds of error were taken by counsel for the plaintiff in error.

<p>[1.] A court of equity will aid a judgment creditor who has pursued his legal remedies to every available extent, to reach a distributive share of an estate to which an insolvent debtor is entitled in his own right, in the hands of an administrator, held in trust for such judgment debtor.</p> <p>[2.] The husband has no interest vested in him in his wife’s dioses in action, until he reduces them into his possession, and as a general rule, a court of equity will not compel the husband to reduce them into possession, so as to defeat the wife’s right of survivorship thereto.</p> <p>[3.] Creditors of the husband who claim to be subrogated to his rights, as against the property of the wife, have no other rights than the husband who is their debtor, against such property.</p>

In Equity. Bill and demurrer. From Washington Superior Court. Tried before Judge Holt. September Term, 1847. ■ The plaintiffs in error are judgment creditors of William and Benjamin Brantley. Their executions were levied upon property in possession of the Brantleys which had been devised to them by their father, Edward Brantley, in and by his last will.

Trover. From Warren Superior Court. Tried before Judge Sayre. October Term, 1847.

<p>[1.] Equity cases are not embraced in the term “ civil cases,” as used in sec. 1, art, 3, of the constitution of 1798.</p> <p>£2.] The creditors of D. G., deceased, filed their bill in the Superior Court of Hancock county, against R., as administrator de bonis non, cum testamento annexo of said deceased; R. had none of the assets of the estate in his hands, neither was there any allegation oí non-feasance or malfeasance; H., the removed executor, and T. G., both of the county of Stewart, were made co-defendants, and were charged to have colluded together for the purpose of defrauding the estate while under the management of said executor: held, that the bill was properly demurrable for want of privity between the parties, and also on account of the misjoinder of the defendants.</p>