Volume 30 — Georgia Reports

Assumpsit, in Putnam Superior Court. Tried before Judge Hardeman, at the September Term, 1859. This was an action of Assumpsit, by the trustees of the Monroe Female University against James M. Broadfield and Tunis Tunison, to recover damages for a breach of the following contract, viz: “State oe Georgia, County oe Monroe.

Certiorari, in Catoosa Superior Court. Decision by Judge Crook, at the November Term, 1859. This was a certiorari sued out by Isaac B. Nichols against L. W. McAbee, to have reviewed and reversed a judgment of a Justices’ Court, rendered in favor of McAbee, a case in which he was plaintiff, and Nichols was defendant.

Murder, in Chattooga Superior Court. Tried before Judge Crook, at the March Term, 1859. This was an indictment charging the defendant in the Court below, with the murder of E. M. Hall.

<p>Unless the Judge of the Superior Court manifestly abuses his discretion, in refusing to dissolve an injunction, this Court will not interfere, especially where it is apparent that no particular injury will accrue to the defendant by the delay, and where it is desirable that there should be first a final hearing upon the merits.</p>

<p>1. A railroad company is liable only for such damages as result from its mismanagement, neglect, or the want of due care and attention. And it is necessary for the plaintiff to show some act that will cast the burden of proof on such railroad company. The fact that a negro is run over and injured, while being transported by the road as a passenger, is not sufficient for that purpose.</p> <p>2. The liability of a railroad for injuries to slaves in their transportation, is to be measured by the law applicable to passengers, rather than by that applicable to the carriage of common goods.</p> <p>3. .Less care and caution is necessary by the employees of a railroad, when stopping for wood and water only, than when stopping to take on or put off passengers.</p> <p>4. It is no error in the Court to refuse to charge a principle of law, however sound, unless such principle has some application to the case on trial.</p> <p>5. The fact that the superintendent of the road is on the train, and in the same car where the negro injured was seated, is not even a circumstance to charge the road for injuries received by the negro at that time.</p> <p>6. If the train stop at a wood and water station, and start again in an unusual short time, or with unusual speed, or without blowing the signal whistle at all, or sufficiently long before starting to put persons on their guard, and an injury happens at the time to a slave passenger, any one of these facts will be sufficient evidence of neglect or mismanagement, to charge the road for all damages received at the time by such negro.</p>

Indictment for Riot, in Whitfield Superior Court. Tried before Judge Crook, at November Term, 1859. The plaintiffs in error were indicted for a riot. At the trial, their counsel moved to quash the indictment, on the ground that there was no averment or allegation therein that defendants committed any act in a violent and tumultuous manner, and because it is alleged that they fought, or had a fight only, which does not, in law, amount to a riot.

Assumpsit, in Whitfield Superior Court. Tried before Judge Crook, at October Term, 1859. This was an action originally brought by Peyton L. Wade, trustee of Mrs. Sarah A. Powell, against Jacob L. Cobb, on an account for flour sold and delivered to defendant, amounting to $79 00. Upon the trial, plaintiff introduced, as a witness to prove the sale and delivery of the flour, Jacob S. P. Powell, the husband of Sarah A. Powell, cestui que trust.

Complaint, in Gordon Superior Court. Tried before Judge Crook, at October Term, 1859. This was an action by Chamberlain, Miller & Co., of Charleston, South Corolina, against Newton McDill, principal, and Stephen McGinnis, security, on a promissory note for $1,168 00, payable eight- months after date, and dated Charleston, South Carolina, June 11th, 1856.

Certiorari, in Gordon Superior Court. Decision by Judge Crook, at October Term, 1859. Held: that the verdict was contrary to the evidence, and ordered the same to be set aside, and that a new trial be had. To which decision counsel for Ware excepted.

Complaint, in Catoosa Superior Court. Tried before Judge Crook, at November Term, 1859. This was an action by Doctor George B. T. Maddox, against William M. Boswell, on an account for board and medical services, rendered by plaintiff for defendant.

Attachment, in Gordon Superior Court. Tried before Judge Crook, at October Term, 1859. Thomas Neal sued out an attachment against the defendants, the Bookouts, on the ground that they abscond. The debt sued for was a promissory note for $295 00, and the attachment issued the 18th May, 1857, returnable to the July Term, 1857, of the Inferior Court of Gordon county. At that term of the Court nothing was done, except the filing of the ^declaration, as provided by law.

Assessment of Damages, in Dade Superior Court. Tried before Judge Crook, at June Term, 1859. , This was a proceeding to assess damages sustained by James H. Jones for, and on account of, the right of way for the construction of a railroad through his land. Upon the trial on the appeal, counsel for Jones (the railroad being the appellant) moved to dismiss the appeal, upon the ground that the same was not taken within the time prescribed by law.

In Equity, in Gordon Superior Court. Decision by Judge Crook, at Chambers, January, 1860.

Claim, in Chattooga Superior Court. Tried before Judge Crook, at September Term, 1859. This was a claim interposed by F. W. Cheeney to a lot of land levied on as the property of A. G. Robinson, by virtue of two ji. fas. issued from a Justices’ Court in Hall county, in favor of Chastain & Luck, for the use of C. & J. Peeples, against said Robinson.

Debt, in Murray Superior Court. Tried before Judge Crook, July, 1859. This was an action of debt by Alexander J. Leonard against John H. Peeples, on a promissory note, of which the following is a copy, viz: “ $424 87. One day after date we, or either of us, promise to pay John A. J. Leonard, or bearer, the sum of four hundred and twenty-four dollars and eighty-seven cents, for value received of him October 1st, 1853.

Murder, in Cobb Superior Court. Tried before Judge Rice, at September Term, 1859. This was an indictment against Jeptha Gann, charging him with the murder of William Collins.

Equity, in Cobb Superior Court. Tried before Judge Cabaniss, at September Term, 1859.

Equity, iu Lumpkin Superior Court. Decision on demurrer by Judge Rice, at July Term, 1859. That in 1839, complainantojjdgred the under said executions to bJfljj^Hssed, beiL^Bg that they could not be sustained, an^.Wígyd fi. fas. relevied upon lots of land Nos. 1,080 and@'Á- Min the 12th district and 1st section of Lumpkin coo ¿É^íNwKit at the time said last levy was made, the defendant in fi. fas. had the title to said lots of land.

Assumpsit, in Lumpkin Superior Court. Tried before Judge Rice, at January Term, 1860. This was an action of assumpsit brought by Henry J. Sprayberry, Esq., against George W. Merk, for services rendered as an attorney and solicitor for Ann W. Merk, the wife of the defendant, in instituting and conducting a libel for divorce on behalf of said Ann W. Merk against her husband, the defendant, and in filing a bill in equity for ne exeat, relating to the divorce cause.

<p>Ejectment, in Fannin Superior Court. Tried before Judge Nice, at the May Term, 1859.</p> <p>This action was brought by John Doe, ex dem, Mordecai McKinney and Miles W. Whitlow vs. Eichard Eoe, casual ejector, and Nathaniel S. Payne, tenant in possession. Porter Fleming was subsequently made co-defendant.</p> <p>On the trial, plaintiff read in evidence the grant from the State of Georgia to Mordecai McKinney for the lot of land in controversy; proved the possession of Payne at the time suit was commenced, and that the land lay in the county of Fannin. ■ He also proved that Whitlow, as the agent of McKinney, sold the land to John Patterson, taking his note for the purchase money, and executing a bond for titles to John Patterson and Enoch Patterson, jointly; that John Patterson took possession of the land in 1840, asserting title and claiming it as his own; that after he had kept possession of the land for several years, an action was brought in the Superior Court of Gilmer county, in which the land then lay, in favor of John Doe ex dem, Mordecai McKinney vs. Eichard Eoe, casual ejector, and Enoch Patterson, tenant in possession, in which action a judgment was rendered in favor of the plaintiff on the 19th of September, 1848; that after the termination of said suit, Enoch Patterson held the land as tenant of Whitlow for about two years, and then left it, giving Whit-low written notice that he was his tenant no longer, and would not hold under him ; that Enoch Patterson rtf-entered upon the land, setting up title in himself, and then sold it to Payne, who went into the possession of the land, and remained on it until this suit was commenced in July, 1854; that Enoch Patterson paid John Patterson in full for the land, but John Patterson never paid Whitlow. Plaintiffs also offered in evidence, a power of attorney, made by McKinney to Whitlow for a valuable consideration, and irrevocable, dated the 6th of April, 1839, empowering Whitlow to sell and convey the land in dispute. The power of attorney was attested by a Justice of the Peace, and recorded the 12th of August, 1847. Defendants objected to the introduction of this power of attorney, on the ground that its execution was hot proven, and that the attestation thereof by a Justice of the Peace, and its registration did not make it admissible in evidence without proof of its execution. The objection was overruled by the Court and the power of attorney admitted.</p> <p>The defendants then introduced the following testimony, to-wit: The grant to McKinney aforesaid; a deed from John T. Bailey, Sheriff of Gilmer county, to John Lamar, dated the 8th- of August, 1836, recorded 5th of November, 1836, and made pursuant to a sale of the land in dispute, as the property of McKinney, under a fieri faeias issued from a Justice’s Court of Wilkes county, in favor of a man by the name of Dooley, for the use of Peter Lamar against said McKinney, and after showing the loss of the'^/i. fa., proved its contents, and that it had all the entries on it necessary to authorize a Valid sale. Also, a deed from John Lamar to Porter Fleming for the land in dispute, dated 9th of January, 1855; also, a deed from B. B. Moore and LaFayette Lamar, to Porter Fleming, for the land in dispute.</p> <p>The jury returned a verdict for the plaintiffs. Defendants moved for a new trial on the following grounds, to-wit:</p> <p>1. Because the verdict was contrary to the evidence in the cause.</p> <p>2. Because the verdict was greatly against the weight of the evidence.</p> <p>3. Because the Court erred in admitting as evidence, an exemplification of the record of a suit in Gilmer Superior Court, against Enoch Patterson, for the land in dispute.</p> <p>4. Because the Court erred in admitting as evidence the power of attorney from McKinney to Whitlow, without proof of its execution.</p> <p>5. Because the Court erred in charging the jury “that if Enoch Patterson entered under a joint bond to himself and John Patterson, with' a transfer from John to Enoch, such transfer from John to Enoch for full payment, would make Enoch’s possession adverse to John Patterson, but not adverse to McKinney.”</p> <p>6. Because the Court erred in charging the jury that if land be sold by the sheriff, and the defendant afterwards takes possession, claiming the land as his own, the right of the purchaser is barred in.seven years.</p> <p>There were several other grounds taken' in the motion which it is not necessary to set out.</p> <p>The motion was overruled by thé Court, and the judgment is assigned as error.</p>

Ejectment, in Gilmer Superior Court. Tried before Judge Rice, at December adjourned- Term, 1859. This was an action of ejectment by Doe, ex dem, Thomas H. Turner and Ward Keeler, against Roe, casual ejector, and .........Adams and Daniel Carroll, tenants in possession, for the recovery of lot of land No. 33, in the 7th district and 2d section of Gilmer county.

Dower, in Dawson Superior Court. Decision by Judge Rice, at February Term, 1860. Nancy Pinion, widow of Stokes Pinion, deceased, made application to the Superior Court of Dawson county, for the appointment of commissioners to lay off and assign to her dower in lands, of which she alleged her late husband died, seized and possessed.

Deceit, in Cobb Superior Court. Tried before Judge Hammond, at March Term, 1859. This was an action on the case brought by Townsend, Crane & Co., against John H. Glover, to recover damages for deceitful representations, respecting the solvency of one Samuel Lawrence, whereby they were induced to sell goods to Lawrence, and, on account of his insolvency, they lost their debt.

In Equity, in Gilmer Superior Court. Tried before Judge Rice, at December Term, 1859. This was a bill filed by Samuel Jones and William Cox, administrators of Jonathan Cox, deceased, against Kerr & Hope, to enjoin an action at law, and for discovery.

<p>1. Where one person agrees, as agent, to buy land for another as his principal, and does buy it, but takes the title in his own name, this title in his hands stands affected with a resulting trust for the benefit of the principal by operation of law, and the case is not within the Statute of Frauds, resulting trusts being expressly excepted from the operation of the statute.</p> <p>2. Equity will decree the whole performance of an agreement which is within the Statute of Frauds, whenever there has been such a part performance as that the whole performance is necessary to prevent a fraud; and the whole performance is necessary to prevent a fraud in a case where the parties have proceeded so far on the faith of the agreement, that they can not be restored to their statu quo nor adequately compensated in damages, by avoiding the agreement and leaving them to their action for damages.</p>

Illegality, in Lumpkin Superior Court. Tried before Judge Eice, at January Term, 1860. Force, Brothers & Company, and others, creditors of the Dahlonega Tanning and Leather Manufacturing Company, brought suits and obtained judgments in Lumpkin Superior Court, against said incorporation. From these judgments, fi. fas. were issued and levied upon the private property of Zelotes H. Mason and David H. Mason as stockholders in said Company.

Caveat to will in Paulding Superior Court. Tried before Judge Hammond, March, 1859. This was a caveat filed by John B. Adair and others, beirs at law, to a paper propounded as the last will and testament of Bozeman Adair, deceased. The grounds of caveat, were in substance as follows: 1. That deceased was not of sound and disposing mind and memory at the time he executed said alleged last will and testament. 2.

<p>Certiorari, in Carroll Superior Court. Decision by Judge Hammond, at the October Term, 1859.</p> <p>Griffin, as bearer, brought suit against Benson, in a Justice Court, on a promissory note for forty dollars. The note was given by Benson for a horse, which he had purchased. Defendant pleaded the general issue and failure of consideration, in that the horse bought, and for which the note was given, was unsound.</p> <p>The jury, in the Justice Court, found for the plaintiff the full amount of the note, and defendant sued out certiorari to review and correct said finding, on the ground that it was against the evidence.</p> <p>The Court, after argument, dismissed the certiorari, and counsel for Benson excepted and assign said decision as error.</p>

Claim, in Carroll Superior Court. Tried before Judge Hammond, at the October Term, 1859. Held: there being no law authorizing said Court to be held on the 2nd Monday in October, 1859. 11.

Debt, in Coweta Superior Court. Tried before Judge Hammond, at September Term, 1859. This was an action by Worthan against Hugh Brewster, security on a promissory note, of which the following is a copy, viz: “ $60 00. Two weeks after date we, or either of us promise to pay McRunnells, or bearer, sixty dollars for value received. December 23, 1853. (Signed,) WM. ¡*j BESHEARS. mark. HUGH BREWSTER. Test: W. B. Wilkinson.” Plaintiff read in evidence the note and closed.

Assumpsit, in Campbell Superior Court. Tried before Judge Hammond, at September Term, 1859.

<p>1. Parol proof of the contents of a written contract, cannot go to the jury without satisfactory preliminary proof to the Court, that the writing was executed and is lost.</p> <p>2. When the question between parties is, what was the state of accounts between them at a particular time ? it is error to admit evidence against objection, touching an item which was at that time barred by the Statute of Limitations.</p> <p>3. It is within the discretionary power of the Court to allow a witness to be sworn, after the evidence on both sides has been announced closed, and the argument has been commenced ,• and a liberal practice in this respect is most favorable to the ends of justice.</p> <p>4. But the practice of recalling a witness to restate a point in his testimony, after counsel have disputed about it in the argument in his hearing, while also under the control of a sound discretion in the Court, is one which ought to be allowed with great caution, and not at all where there is reasonable ground to suspect the fairness of the witness.</p> <p>5. Trover is an action for damages done to the right of possession, and amount of the damages depending therefore upon the extent of the</p> <p>/ right, it is competent for the defendant to reduce the damages by show- \ ing the quantity of the plaintiff’s interest.</p> <p>o. Where two parties make a written contract of pawning, one advan- . cing money and the other pledging a negro, to be reclaimed at any time by payment of what the pledger may owe the pledgee, the negro can be redeemed only by the payment of all that may be due at the time of the redemption. ~~ — = — »</p>

Certiorari, in Fayette Superior Court. Decision by Judge Bull, September Term, 1859. This was a certiorari, sued out by Usebius Slayton against William J. Russell, to correct a judgment rendered by two Justices of the Peace in a proceeding by possessory warrant before them, instituted by Russell against Slayton, for the restoration to Russell’s possession of thirty-five or forty barrels of corn.

In Equity, in Meriwether Superior Court. Tried before Judge Bull, at August Term, 1859. This was a bill in equity by John Low against Allen Ar-grove and Mary Argrove, his wife, and Joel Hood and Mary A. Hood, his wife.

Debt, in Fayette Superior Court. Tried before Judge Bull, at September Term, 1859. This was an action of debt, brought by William N. Cook, executor of Hubard Cook, deceased, against William Glass, and Jesse L. Blalock, upon a promissory note for seven hundred and twenty-five dollars, payable to plaintiff, executor aforesaid, and dated 3d Nov., 1857, and due twelve months after date.

<p>Case, in Troup Superior Court. Decision by Judge Cab- . aniss, at May Term, 1859.</p> <p>This was an action by William A. Speer against the Atlanta and West Point Railroad Company, to recover damages for breach of contract; said damages alleged to have been sustained by reason of the failure and refusal of defendant to perform a certain agreement made with plaintiff relative to certain privileges and favors to be granted and allowed him, in consideration of his conveyance to defendant of the right of way for said road through plaintiff's land.</p> <p>Defendant pleaded to the jurisdiction of the Court, on the ground that its principal office or place of business was not in the county of Troup, but in the county of Fulton, and was liable to be sued and impleaded in Fulton county, and not elsewhere. And further, that the President and chief officer of the Atlanta and "West Point Railroad Company did not, nor does not, reside in the county of Troup, but in the county of Richmond.</p> <p>Plaintiff demurred to said plea, which demurrer was overruled by the Court and the plea sustained, and the action dismissed — to which decision counsel for the plaintiff excepted.</p>

<p>Indictment for Assault with intent to Murder, in Fayette Superior Court. Tried before the Hon. D. F. Hammond, Judge, at September Term, 1859.</p> <p>John H. Miller, the plaintiff in error, was indicted for an assault with intent to murder, and convicted. He moved for a new trial on the grounds — 1st. That the verdict was contrary to law and the evidence. 2d. That the Court refused to charge the jury as requested by counsel for defendant, that if they believed from the evidence that the prosecution was' unfounded, they should not only acquit the defendant, but should return the prosecution unfounded and malicious — the Court refusing so to charge, and saying that there was no evidence to warrant such charge, thereby expressing an opinion on the facts of the case. 3d. That since the trial defendant had discovered new and material evidence not known to him before.</p> <p>The Court refused the motion for a new trial, and counsel for defendant excepted, and assigned as error said refusal.</p>

Certiorari, in Fayette Superior Court. Decision by Judge Hammond, at September Term, 1859. Morton N. Burch sued out a certiorari to correct the verdict and judgment rendered in a Justices’ Court in certain suits wherein he was plaintiff and Miles Ward was defendant. The suits were brought on dormant judgments, alleged to have been formerly obtained by Burch against Ward in said Justices’ Court.

Action for Bent, etc., in Fulton Superior Court. Tried before Judge Bull, at October Term, 1859. This was an action by S. and L. Mowry against Jackson & Brothers for the rent of a store house in the city of Atlanta, from 1st June, 1858, to Tst October, 1858. There was also a count for use and occupation.

<p>Case, in Fulton Superior Court. Tried before Judge Bull at April Term, 1857.</p> <p>This was an action brought by James Mullins against James F. Cooper, superintendent of the Western and Atlantic Railroad, to recover damages for an injury, received by the plaintiff, and resulting from a collision of trains running on said road.</p> <p>Plaintiff proved by the attending physicians the nature and extent of the injury he received; that his left arm was broken in several places; the elbow was seriously and materially injured; that the injury was received in September, 1855, and that he was confined, by reason of said wounds, till the last of December thereafter; his elbow joint was still (at the time of the trial) stiff, and incurable in that respect ; Dr. Dealing’s bill for attention was about twenty-five dollars.</p> <p>Plaintiff further proved, that he was in the employment of the Georgia Railroad, at the time of the injury, as an engineer; that he was formerly a machinist, and that he was incapaciated, by reason of said injury, for a machinist, but not for an engineer, but that he could not, as an engineer, be able to reverse an engine so promptly as before.</p> <p>The circumstances under which the plaintiff went upon the Western and Atlantic Railroad, upon-the occasion of receiving the injury, were as follows:</p> <p>The machinist of the Georgia Railroad shop, in the city of Atlanta, was applied to by an officer of the Western and Atlantic Railroad for an engine and engineer, to go up the Western and Atlantic Road, to bring down from Chattanooga a train of cars, as that road did not have sufficient motive power to bring down the cars, which belonged to the Georgia Road, as fast as they were needed below ; said officer saying that he wanted an engine and engineer to make a trip up the road after them. In consequence of this application, Mullins was sent up the road with an engine, with instructions from the Georgia Railroad to bring down only empty cars belonging to the Georgia Railroad. Plaintiff was willing to go, and was selected because he knew the Western and Atlantic Road, having made similar trips before. There was a general agreement between the two Roads that such service was to be paid for, and for similar services before rendered, the Georgia Road had been paid by the. Western and Atlantic Road. This trip was not a gratuity ; Georgia Road expected to be paid for the trip; plaintiff, while making this trip, was subject alone to the orders of the officers and agent of the Western and Atlantic Road.</p> <p>Plaintiff farther proved by the witness, Bruner, that, in making the trip under the circumstances above stated, on his return down with the cars, when about forty miles from where the accident occurred, he got behind with his train on account of his engine foaming, there seemed to be several trains coming down at the same time,) and was, therefore, not suited to run in front. The witness, who was engineer of the front train, displayed a flag, which indicated that another train was following — a signal well known to railroad men. Plaintiff’s train had the right to the track, even if he had been three hours behind the schedule time, the flag having preceded him; he was only about twenty-five minutes out of time when witness left him. There was no rule of the road which required regular trains which might be out of time, to stop ; the rule required other trains to wait for them and to keep the track clear. Plaintiff’s train consisted of Georgia Railroad cars and a caboose belonging to the Western and Atlantic Road, and he was accompanied on the trip by a conductor of the Western and Atlantic Road, whose business it was to regulate the running of the train.</p> <p>Plaintiff having closed, defendant read the depositions of Henry G. Cole, taken by commission, who deposed: That he had control of the engine and train at the Etowah embankment, in September, 1855; the engine and train were used for hauling earth into the embankment at the Etowah river; deponent and Kendrick were the contractors for said work; it was their daily practice to send the earth train after water to the station, about three miles and a half from the works; usually sent it after the express train; on the day of the collision, two express trains passed at schedule time, and we waited one hour and a half for the third, and finding our water was giving out, the engine was sent to the station for water; about fifteen minutes after it started, witness saw the train, of which Mullins was engineer, approaching; witness immediately took position at a conspicuous place near the track, and several times made the usual sign for stopping trains, called to the engineer and pointed to the pit, to show him that the earth train engine was not there, as he passed, witness called aloud and told him that the way engine was on the track; plaintiff made a sign with his hand which witness understood to mean that he would run the earth engine to Alatoona sideling. The sign made for stopping plaintiff was the usual sign for stopping trains. Plaintiff disregarded the signal, and his engine and the earth engine came together about three miles from the embankment. Witness walked to the place when he heard the collision, thinks neither engine was thrown from the track. The earth engine belonged to the Western and Atlantic Railroad, but was controlled by the contractors for dong the work at the embankment; don’t think the engineers would have been hurt if they had remained on the engines.</p> <p>The testimony being closed, counsel for defendant requested the Court to charge the jury, that if plaintiff had hired himself to the Georgia Railroad, and that road had with his consent hired him to the defendant for the service in which he was employed at the time he received the injury, then plaintiff was the servant of defendant. That such contract need not be an express one; if in the usual course of dealing between them it had been customary for a compensation to be made for such services, then the law would imply a contract in the absence of proof of an express contract, and of any stipulation to the contrary. Which charge the Court gave with this qualification, to-wit: “ But if the plaintiff was in the employment of the Georgia Railroad, and engaged in the business of that road for its benefit, and paid by that road for his services, the fact that he, during that trip, was subject to the orders of defendant,- or its officers, and the fact that defendant paid the Georgia Railroad for said services, would not constitute plaintiff the servant of defendant in such sense as would bar his right to recover for injuries he received by the gross neglect and misconduct of the officers or employees of defendant, committed by them in the service of defendant.</p> <p>To which charge counsel for defendant excepted.</p> <p>The Court, amongst other things, further charged the jury, that to entitle plaintiff to recover, it was not necessary for him to prove any specific pecuniary damages, but that they could find such damages (if any) as under all the circumstances of the case, and the extent and nature of the injuries, they thought he was entitled to, but that they could not in this case give vindictive damages — counsel for defendant having requested him to charge that before plaintiff could recover, it was necessary for him to prove some pecuniary damages.</p> <p>To which charge and refusal to charge, counsel for defendant excepted.</p> <p>The jury found for the plaintiff thirty-five hundred dollars. Whereupon counsel for defendant moved for a new trial on the grounds of error in the charges and refusals to charge as above stated, and because the verdict was contrary to law and the evidence, and the damages found thereby excessive.</p> <p>The Court overruled the motion for a new trial, and counsel for defendant excepted and assigns said refusal as error.</p>

Complaint, in Coweta Superior Court. Tried before Judge Hammond, at September Term, 1859. This was an aetion brought by Jeffers & Cothrans, as endorsees against Uriah B. Wilkinson, the maker, on a promissory note, of which the following is a copy : “ $302 22-100. One day after date I promise to pay G. L. Anderson or order, three hundred and two (22-100) dollars, for value received. August 21st, 1857.

Complainant in Floyd Superior Court. Tried before Judge Hammond, at the January Term, 1860. This was an action by the defendant in error, who was plaintiff in the Court below, against the Mayor and Council of the City of Rome, to recover compensation for certain lands belonging to plaintiff, which had been seized upon and appropriated by defendant for a public street in the city of Rome.

In Equity, in Clayton Superior Court. Decision on demurrer by Judge Bull, at November Term, 1859. This was a bill filed by Mary Kirksey, (by her next friend) against Elisha H. Kirksey, her husband, Jesse L. Blalock and others, and its object was to set up an ante-nuptial verbal agreement between complainant and the said Elijah H. •relative to the property owned by her prior to their marriage, and which she might subsequently acquire. The marriage occurred about June, 1857.

<p>Action for Breach of Warranty and Non-suit, in Troup Superior Court. Decision by Judge Bull, at November Term, 1859.</p> <p>This was an action brought by Michael Woodruff against John W. McGehee, to recover damages for the breach of a warranty of soundness of a horse sold by defendant to plaintiff. The declaration alleged that plaintiff purchased the horse, by his agent, William M. Lee, for the sum of two hundred dollars, and that defendant waranted said horse to be sound, whereas he was unsound and of no value.</p> <p>Preliminary to the introduction of the paper or receipt containing the warranty, plaintiff read the answer of James N. Bethune to interrogatories, who deposed that “ the purchase of the horse was made by Wm. M. Lee for Woodruff.” Also, the answer of W. H. Griswold, as follows: “I do</p> <p>know of a horse purchased by Wm. M. Lee for plaintiff from defendant. Wm. M. Lee, as before said, purchased the horse for plaintiff at his request, Lee having engaged in the horse business, and being, as Woodruff thought, a judge of horses.” Plaintiff further proved that the horse purchased by him as aforesaid was a sorrel horse. He then offered in evidence the following paper containing the warranty relied on, viz:</p> <p>Columbus, Ga., April 1, 1857.</p> <p>“Received of Wm. M. Lee, two hundred dollars for a sorrel horse, which I warrant sound on delivery.</p> <p>(Signed) John W. McGehee.”</p> <p>To the introduction and reading of which in evidence counsel for defendant objected. After argument, the Court sustained the objection, and excluded the paper, and plaintiff excepted and assigns said ruling as error.</p>

<p>Garnishment, in Meriwether Superior Court. Decision by Judge Bull, at August Term, 1859.</p> <p>James L. Stephenson instituted his action of complaint respectively against James Eenfroe and James W. Eenfroe, returnable to the February Term, 1858, of Meriwether Superior Court, and on the same day before David Ellis, a Justice of the Inferior Court, he made affidavits that he apprehended the loss of said debts, or some part thereof, unless summons of garnishment issued. He gave the bond and security required by law in such cases, and the same with the affidavits were filed in the Clerk’s office, and the sheriff notified that Catlett Campbell was the person to be garnisheed. On the same day, to-wit: 1st Dec., 1857, the Clerk gave the certificate required by law, and handed the same, together with a copy of the affidavit, to the sheriff, who attached them to a summons of garnishment, for said Campbell to appear at the February Term, 1858, and answer upon oath what effects of defendants he had in hand, or had at the time of service; said summons was signed by John S. Blalock, sheriff of said county, and upon it was the following entry, “ Served Catlett Campbell with a copy of the within personally, this 1st December, 1857.” Said Campbell refused to answer at the February Term of said Court. At the August Term, 1858, judgments went against defendants, and Campbell still failing to answer, on the last day of said term the usual order' was taken to enter judgment against him; the judgment not having been entered at that term, at the February Term, 1858, an order was taken to enter judgment nunc pro tunc. At the August Term, 1859, a motion was made to set aside said judgment upon the grounds that the affidavits did not allege that deponent had reason to apprehend the loss, etc., and because the summonses of garnishment were illegally issued, the same having been signed and" issued by the sheriff instead of by the Justices of the Inferior Court. Plaintiff insisted that the affidavit was in compliance with the statute, and that it was too late, after judgment, for the garnishee to come in and plead any matter going to show that the proceedings were irregular or illegal.</p> <p>The Court after argument granted the motion and set aside said judgment, on the ground that the summonses of garnishment should have been issued by the Justice; and the sheriff having no authority to issue the same, the garnishee was not bound to answer or notice it.</p> <p>To which decision counsel for plaintiff excepts.</p>

Motion to set aside and revoke Probate of Will, and Caveat thereto, in Monroe Superior Court. Decision by Judge Cabaniss, at February Term, 1859. At the instance of Septimius Myrick, an heir at law of Nathaniel T. Myrick, deceased, a rule nisi issued from the Court of Ordinary of Monroe county, calling upon Isaac Vineburgh and Benj.

Assumpsit, in Floyd Superior Court. Tried before Judge Hammond, at January Term, 1860. This was an action brought by Joshua King against Daniel R. Mitchell, Esq., an attorney-at-law, for recovery of damages for neglect of duty in failing to collect a note which plaintiff had put into his hands for collection.

<p>Bill in Equity, in Pike Superior Court. Demurrer sustained by Judge Cabaniss, at Chambers, 1st of February, 1860.</p> <p>This was a bill brought by the children of Sarah Willis, deceased, against the executor of her father John Jenkins, deceased, for the recovery of a residuary legacy contained in the 6th item of the will, in these words: “ All the rest of my estate, not herein specially disposed of, real as well as personal, I give to my beloved wife, Polly, during her life and the continuance of her widowhood, and after her death, the land I now live on, in the county of Pike, to go to my son, John R. Jenkins and his heirs forever, and the rest of my estate, real and personal, to be equally divided according to valuation, among such of my children (sons and daughters) as may, at the death of my wife, be in life.” Mrs. Willis, the mother of complainants, and daughter of the testator, died before her father. The widow survived the testator. The complainants claimed on two grounds: 1st. That under the words as they stand, they were entitled to what would have been their mother’s share, if she had been in life at the death of the testator’s wife : and 2d. That the legal effect of the words, as they stand, had been mistaken by the testator, he having intended to give, and supposing that he had used such words as did give to the complainants what would have been their mother’s share, if she had survived the widow. The prayer of the bill was accordingly in the alternative. That their construction of the words used might be decreed, or that failing, then that the will should be so reformed as to express the true intention of the testator. A general demurrer to this bill was sustained by the Judge, and that decision is excepted to and assigned as error.</p>

In Equity, in Butts Superior Court. Decision by Judge Cabaniss, at Chambers, 10th September, 1859.

In Equity, in Pike Superior Court. Decision by Judge Cabaniss, November Term, 1859. James E. Dupree and his wife, Uriah E. Dupree, filed their bill in equity against Uriah Askew, for an account of the estate of Mrs. Dupree in defendant’s hands, as her guardian, and also to recover the remainder of her distributive share of the estate of her deceased father, in the hands of defendant, as administrator.

Motion to set aside verdict, etc. Decision by Judge Caba-Niss,.at the August-Term, 1859, of Monroe Superior Court. This motion was predicated upon an alleged misunderstanding and mistake as to the terms and effects of an agreement made by the parties and their attorneys, to settle and terminate the litigation and controversy which had been long pending, relative to the estate and wills, or papers propounded as wills, of the late Littleberry Lucas, deceased.

Possessory Warrant. Tried in Monroe county, at Chambers, on the 3d March, 1860, by Judge Cabaniss. This was a possessory warrant brought by the defendant in error against the plaintiff, for the recovery of certain negroes.

Assumpsit in Butts Superior Court. Tried before Judge Cabaniss, at September Term, 1859. This was an action by Levin J. Stewart against Theophilus Williams, on a promissory note given by Williams to one Richard L. Harvey, and held by plaintiff, as bearer. The note was dated 2d October, 1851, payable 25th December, 1853, for $150 00.

Iu Equity, in Spalding Superior Court. Tried before Judge Cabaniss, November Term, 1859. This was a bill in equity, brought by Sally Pitts, wife of Laban Pitts, by her' trustee, and Alexander Kendrick and Bethena, his wife, against Thomas Thrower, for the recovery of an interest in certain negro slaves, etc., in the possession of said Thomas.

Possessory Warrant for negroes. Heard before Judge Cabaniss, at Forsyth, Monroe county, 3d March, 1860.

Trover, in Upson Superior Court. Decision by Judge Cabaniss, November, 1859.

Trespass vi et armis, in Pike Superior Court. Tried before Judge Cabannis, at October Term, 1859. This was an action brought by Allen G. Fambro against Richard W. Williams, for the recovery of damage for killing a negro man slave, named Jim, alias Jim Sheet, the property of plaintiff. The declaration alleged that the negro was worth $1,200 00, and that he came to his death by wounds inflicted upon him by defendant. The defendant pleaded the general issue.

Rule, iu Upson Superior Court. Tried before Judge Cabaniss, at November Term, 1859. In an equity case pending between James S. Walker and others, against Nathaniel F. Walker, an award was made against defendant under a rule of reference. He, in part payment of the amount awarded against him, paid to James M. Smith, Esq., one of plaintiff’s solicitors, a considerable sum of money, between ten and fifteen thousand dollars.

Case, in Newton Superior Court. Tried before Judge Rice, at September Term, 1859. This was an action on the case brought, in the first place, by William H. Smith, against BenjaminH. Overby, a physician, to recover damages for the neglect and want of care, skill and attention of defendant in delivering plaintiff’s wife of a child, defendant being called in as an accoucheur, or man-midwife, on said occasion. The defendant pleaded the general issue.

Assumpsit, and Motion for New Trial, in Pike Superior Court. Decision by Judge Cabaniss, at Chambers, January, 1860. The above two causes were argued together, and one opinion pronounced, covering and deciding the questions and points made in the bills of exceptions in both cases.

Caveat to Will, in Monroe Superior Court. Tried before Judge Cabaniss, August Term, 1859. Peter M. Curry and others, heirs at law of Wiley Curry, deceased, filed their caveat to the probate of the second and fourth items of the last will and testament of said deceased, on the ground that said items were in violation of the statutes prohibiting the manumission of slaves, and were therefore void.

In Equity, in Greene Superior Court. Tried before Judge Harris, at March Term, 1860. On the Appeal.

Claim, in Wilkinson Superior Court. Tried before Judge Hañsell, at April Term, 1860. This was a claim interposed by James M. Ware a trustee of the children of John M. Ware, to certain negroes levied on by virtue of an execution in favor of John G. Gates, and transferred to Samuel M. Carswell, against John M. Ware, the father of the alleged cestui que trusts.

Case, in Baldwin Superior Court. Tried before Judge Lamar, at March Term, 1860. This was an action by Eichard Patten, for the use of Sea-born Jones, against Isaac Newell, on a draft drawn by New-ell, of which the following is a copy: “Gordon, 1st December, 1855, “ Sixty days after date please pay to the order of Eichard Patten, Esq., sixteen hundred dollars, and charge to account. “ Yours respectfully, “Isaac Newell. “ To Messrs.

Escheat of Free Negroes, and motion for New Trial, in Baldwin Superior Court. Tried before Judge Lamar, February Term, 1860. This was a proceeding by John Hammond, Ordinary of Baldwin county, and ex officio escheator thereof, to condemn escheat certain negroes, as being the property of a free man negro, Joe. Candler interposed a claim, as owner of these negroes, and denying that they were free. There was a trial at February Term, 1857, and verdict for escheator.

Debt on Guardian’s bond, in Wilkinson Superior Court. Tried before Judge Hansell, at April Term, 1860.

Attachment, in Jones Superior Court. Tried before Judge Harris, at April Term, 1860. Sarah L. Pearman instituted her action by attachment against Ezra D. Morton for breach of marriage promise — ■ damages laid at five thousand dollars. The ground for suing out the attachment, as stated in the affidavit, was, that defendant “absconded.” Defendant appeared and traversed the truth of the affidavit, and denied that he absconded at the time said affidavit was made.

<p>Complaint, in Laurens Superior Court. • Tried before Judge Hansell at October Term, 1859.</p> <p>This was an action by Spicer, an attorney at law, against Yopp, administrator of B. H. Horn, deceased, brought to recover one hundred and eighty dollars, as counsel fees for services rendered in a claim case, wherein deceased was plaintiff ya fi. fa., and James D. Hampton was defendant, and also claimant as trustee for his children.</p> <p>Plea — General issue.</p> <p>Plaintiff proved that he represented the plaintiff in the case; that his services were worth 10 per cent, upon the amount in controversy ; that the amount involved was about $1,300 00. The ft. fa. which was offered in evidence had endorsed on it a transfer from Horn to defendant, Hampton, as trustee, expressed to be for value received, dated 10th March, 1856. Plaintiff further proved that he had been employed by Horn, and that the case was settled and arranged by Horn, taking some negroes from defendant, Hampton.</p> <p>The jury found for the plaintiff $58 21, who thereupon moved for a new trial on the following grounds :</p> <p>■ 1st. Because the verdict was contrary to law and evidence.</p> <p>2d. Because the verdict was contrary to the charge of the Court.</p> <p>The presiding Judge refused the motion for a new trial, and plaintiff excepted, and assigned said refusal as error.</p>

Trover, in Putnam Superior Court. Tried before Judge Harris, at March Term, 1860. This was an action of trover brought by Oliver. H. Bonner and Eichard W. Bonner, trustees of Nancy C. Andrews, wife of James G. Andrews, against Davis E. Andrews, for the recovery of three negro slaves, to-wit: Ellen, a woman about twenty years of age, and her two children, Emma, about eighteen months old, and an infant named Lorenzo— all of the value of $1,800 00.

In Equity, in Putnam Superior Court. Tried before Judge Harris, March Term, 1860. This was a bill filed by John A. Cogburn, administrator of John Newsome, deceased, for direction as to the proper administration and distribution of the estate of his intestate.

Case, in Putnam Superior Coui’t. Tried ^before Judge ‘Harris, at March Term, 1860.

<p>■A verdict and judgment was obtained at common law for the defendant, in a statutory form of action, for a lot of land. The Statute of Limitations having been relied on and supported in the trial by a deed antedated eight years, without which the recovery could not have been had, one of the witnesses to the deed swearing that the deed was made at its apparent date. A bill was filed by the plaintiff to restrain the defendant from using such judgment, so fraudulently obtained, as a bar , to a subsequent action for the same lot: Held,</p> <p>■1. That it was not necessary to allege in the bill or prove that the witness swearing falsely had been prosecuted to conviction for perjury, under the provision of 8th sec. 8th div. Penal Code; that the case did not fall within its provision, nor was affected by it.</p> <p>2. That although the bill showed that defendant had been in actual possessipn of a part of the lot more than seven years before the commencement of the suit, still, the verdict on the entire lot could not be maintained without the deed,</p> <p>3. That a Court of Equity will grant relief against a judgment obtained by fraud, as thejudgment in this case was.</p> <p>4. In matters of fraud the party agrieved has a right to go into either a Court of Equity or Law for. relief, and having gone into Equity, he cannot be sent back to a Court of Law, although his remedy there might, be equally adequate.</p> <p>6. Injunction is a proper remedy to stay waste in cutting down and selling from the lot the valuable timber thereof.</p>

<p>Complaint, in Pulaski Superior Court. Tried before the Honorable A. H. Hansell, at April Term, 1860.</p> <p>This was an action by Lewis Jones, bearer, against Darius R. Mathewson, Thomas D. L. Ryan and John H. Oakley, on the following promissory note :</p> <p>“ $2,010 00.</p> <p>“ By the 25th day of December next, we, or either of us, promise to pay Charles E. Clark, or bearer, two thousand and ten dollars, with interest from date. Value received.</p> <p>“ February 13th, 1858.</p> <p>(Signed) . “D. R. Matheson,</p> <p>“Thomas D.- L. Ryan,</p> <p>* “J. Henry Oakley.”</p> <p>With the following credit endorsed: “ Eeceived, December 14th, 1858, of Dr. D. E. Mathewson, sixty-five dollars on the within note.”</p> <p>The defendants pleaded the general issue. Mathewson, one of the defendants, further pleaded, that he was only surety to said note, and had been induced by Clark, the payee, to become surety, by representing to defendant that there was a settlement to be had between him, Clark, and Eyan, of their partnership accounts, and that there would be due and coming to Eyan about four hundred and fifty dollars, and which he assured and promised defendant should be applied to, and credited on said note; and that it was upon this representation and assurance that he became surety, and that said representation was false, and that no such amount has ever been applied or credited upon said note, and that plaintiff had notice of these facts before he traded for said note, and became the owner thereof, with full knowledge of this defense. v</p> <p>At the trial, plaintiff moved to strike said last-mentioned plea. ■ The Court granted the motion and struck the plea, and defendant excepted.</p> <p>The jury found for the plaintiff the full amount of the note, minus sixty-five dollars credited thereon. Whereupon, defendant tenders his bill of exceptiofis, assigning as error the aforesaid decision.</p>

In Equity, in Wilkinson Superior Court. Tried before Judge Hansell, at April Term, 1860. This was a bill brought by James Mason, as administrator of Susan Lowe, formerly Susan Mason, deceased, and the other plaintiffs in error, as her brothers and sisters, and heirs at law, against Joel Deese, as administrator of Lunsford Lowe, deceased, the husband of said Susan.

Citation, to show cause why probate of will should not be set aside — appeal from the Ordinary in Putnam Superior Court. Tried before Judge Harris, at March Term, 1860.

<p>Complaint, in Taliaferro Superior Court. Tried on the Appeal, before Judge Thomas, at February Term, 1869.</p> <p>This was an action by Arnold against the plaintiff in error, as administratrix of Johnson Jarrett, deceased, to recover for services rendered testator, as nurse, in his last illness. The declaration was in the common form of complaint, and had annexed the account for said services, amounting to $500. The quantum meruit count was afterwards added by way of amendment.</p> <p>The testimony being closed, the presiding Judge charged the jury, stating the grounds upon which the plaintiff relied to support his action, and upon which the defendant resisted it, and commenting upon the points presented by the record and evidence. The jury found for the plaintiff five hundred dollars; whereupon defendant filed her bill of exceptions, assigning as error said charge.</p> <p>1st. In excluding from the consideration of the jury important testimony as to the character in which plaintiff rendered the alleged services, whether as a hireling or as a friend and relation, without intending or expecting to charge therefor.</p> <p>2d. In excluding from their consideration the proper amount of compensation for said services, if he were entitled to compensation at all.</p> <p>3d. In excluding from the consideration of the jury the question as to whether the remarks proven to have been made by testator were to be considered as words imparting a gift or bequest, or a contract and legal liability.</p> <p>4th. In expressing an opinion upon the value to be put upon the evidence in the case.</p>

Indictment for Malicious Mischief, in Warren Superior Court. Tried before Judge Thomas, at April Term, 1860. The plaintiff in error was indicted for malicious mischief, in the shooting and killing a mule belonging to John T. Baker. Dr. Baker, the owner of the mule, testified: That defendant told him that he shot the mule some time last summer; said he shot him for getting into his corn field, and while he was in the field.

Certiorari, in Habersham Superior Court. Decision by Judge Hutchins, at October Term, 1859. This was a certiorari sued out by ~W. C. and A. Price, to correct certain errors alleged to have been committed in a Justice Court, in a cause therein pending by petitioners for certiorari, against John Shirley. Plaintiff’s action was brought on a note, and Shirley pleaded a set-off.

Complaint,- in Hancock Superior Court. Tried before Judge Thoaias, at October Term, 1859. This was an action brought by Reese & Linton, Warehouse and Commission Merchants, of the city of Augusta, against Frances A. Grimes, administratrix of the estate of Thomas C. Grimes, deceased, to recover the balance due on an account, principally for money paid and advanced to defendant upon orders drawn by her on plaintiffs. The balance claimed was $1,476 50.

<p>1. A married woman has the right to dismiss her bill in Chancery in relation to her separate estate, against the wish of her next friend.</p>

Complaint for Land, in Elbert Superior Court. Tried before Judge Thomas, at March Term, 1860. This was an action brought by William T. Yanduzer, administrator of Ira Christian, deceased, against Jesse G. Christian, for the recovery of a certain tract or parcel of land situated in the county of Elbert, on the waters of Deep Creek, containing one hundred and six acres, more or less.

A ppeal from Ordinary on proceedings to probate Will in solemn form, in Hancock Superior Court. Tried before Judge Thomas, at April Term, 1860. This case originated in an application by Susan Green and her husband, William Green, to have the paper, which had been admitted to probate and record in solemn form of law, as the last will and testament of Seaton Francis Trawick, deceased, again propounded and proved in solemn form.

Assumpsit, in Gwinnett Superior Court. Tried before Judge Hutchins, at September Term, 1859. This was an action of Assumpsit brought by Valentine S. Doebler against Thomas J. Waters, as drawer upon the following draft or bill, viz : $500 00. Philadelphia, Oct. 22d, 1856. On the first day of December, 1856, pay to the order of ValentineS. Doebler, five hundred dollars, and charge to account of Thomas J. Waters.

<p>In Equity, in Elbert Superior Court. Decision on demurrer by Judge Thomas, at March Term, 1860.</p> <p>This was a bill in equity filed by Thomas Oglesby against Adkins Oglesby and Claiborne Webb, executors of the last will and testament of William Oglesby, deceased, seeking the value of a negro bequeathed to complainant by the 11th item of said will, which was as follows:</p> <p>“ I give to my son, Thomas Oglesby, a negro boy named Clark, at five hundred and fifty dollars; Henry, a boy, at two hundred and fifty dollars, also two hundred acres of land, more or less, lying above, and adjoining the Dorner tract, herein given to my son Adkins, at three dollars per acre — $600 00 — and is the balance of the John Hall tract; one horse, saddle and bridle, bed and furniture, and cow and calf, at one hundred and sixty dollars, and also eight hundred and seventy-four dollars in money, when he becomes of lawful age, making in all $2,384 00.”</p> <p>The bill further alleges that in, and by the seventeenth item of said will, testator provided as follows: “ In the event that any of the negroes herein given to any of my minor children should die, or become of little or no value before such minor becomes of lawful age, then, and in that case, it is my desire that such deficiency or loss be made up to such child or children so losing out of my estate.”</p> <p>The bill further states that the negro boy, Clark, above given and bequeathed to complainant, died in April, 1855, and was thus entirely lost to him, and that this was before complainant attained the age of twenty-one years. That the boy Clark, at the time of his death, was about sixteen years old, young, active and likely, and worth the sum of $1,200 00. Said will was made 4th August, 1852, and testator placed the valuation on said negroes mentioned in said will, for the purpose of making an equal division amongst his children, and was relatively, and for that purpose, just and proper, although far below their real value. The complainant claims that the defendant’s executors aforesaid, ought to pay to him the sum of $1,200 00, the worth or value of said negro, out of the assets of said estate in their hands, instead of five hundred and fifty dollars, which the bill admits they have paid, in and under the seventeenth item of said will, to make up his loss aforesaid.</p> <p>To this bill defendants demurred for want of equity. The Court overruled the demurrer, and defendants excepted.</p>

Ejectment, in Habersham Superior Court. Tried before Judge Hutchins, at April Term, 1860. This was an action of ejectment brought by John Doe ex dem.

Trover, in Elbert Superior Court. Tried before Jüdge Thomas, at March Term, 1860. This was an action brought by Lemuel Black and his wife, and Willis Scroggins and his wife, against William T. Thornton, to recover damages for the alleged conversion of certain slaves.

Misdemeanor, in Hancock Superior Court. Tried before Judge Thomas, at December Adjourned Term, 1859. Held: so far as I know, to be an excuse for its violation. To establish such a principle would be to uproot and destroy the protection of society, and render nugatory, in a great sense, the criminal laws. “ It is argued before you that intention is a necessary ingredient of crime.

<p>1. O. permits bis wife to sell^cakes, etc., on her own accouunt, from the earnings of which she buys a negro, taking the title in her own name, by his consent. She keeps and holds the negro as her separate property, paying the taxes all the time:</p> <p>Held, that the negro vested in the wife as her separate property against her husband, and one claiming under him as a volunteer.</p>

<p>1. The defendant in every equity cause may deny on oath the execution of any document exhibited to the bill, and thus put the complainant on proof.</p> <p>2. A party having two distinct titles to property may disclaim one and rely entirely on the other, and after such election made, the admissions of his privies in the disclaimed title are not evidence against him.</p> <p>3. To admit a copy as secondary evidence at common law, it is necessary to show: 1. The genuineness of the original. 2. Its loss or destruction, and 3. That the copy offered is an examined, sworn or true copy.</p> <p>4. Under our Registry Laws, a copy-deed is not evidence, unless the original appears to have been properly admitted to record.</p> <p>5. Under the Act of 1856, a prima facie presumption in favor of proper probate is raised, where the records have been burnt. But this may be rebutted, and the Judge may hear evidence in rebuttal before admitting the copy as secondary evidence.</p>

Murder, in Gwinnett Superior Court. Tried before Judge Hutchins, November, 1859. The plaintiff in error, John Fundy, was indicted for the murder of Hardin Colson, and pleaded not guilty. The following is a brief of the evidence introduced on the trial: Testimony for The State.

Illegality against a proceeding for the foreclosure of a mortgage on personal property. Tried before his Honor Wm. B. Fleming, in Liberty Superior Court, December Term, 1859. The decision of the Court embodies the facts of this case.

<p>In Equity, in Bulloch Superior Court. Decision on Demurrer,, by Judge Fleming*, March Term, 1860.</p> <p>This was a bill in equity filed by Nathan Brewton and Benjamin Brewton, administrators with the will annexed of Nathan Brewton, deceased, against the heirs and legatees of deceased, for an account and settlement of the estate of complainant’s testator, and calling upon defendants, children of testator and his sons-in-law, to account for and bring into hotch-pot the property and estate, and money which had been, loaned and advanced to them by testator in his lifetime.</p> <p>To this bill defendants demurred, on the ground that the deceased having died testate, they are not bound, and cannot be compelled to account for, and bring into hotch-pot the advancements or gifts made to them by testator; that the doctrine of advancements and hotch-pot applies only in cases of intestacy.</p> <p>The presiding Judge sustained the demurrer, and ordered the bill to be dismissed as to so much thereof as seeks an account for property or money advanced by testator to defendants. To which deoision counsel for complainants except.</p>

<p>1. In a suit for the price of a negro sold and warranted to be sound, if the proof shows that there was unsoundness at the time of the sale, the verdict must make some deduction from the agreed price, whether the negro in the unsound state was worth more than the agreed price or not.</p> <p>2. The proper measure of damage in such a case, is the difference between the value of the property, if sound, as it was warranted to be, and its value unsound, as it actually was at the time of the sale — the agreed price being taken as the standard of sound value,'and the unsound value being proportioned to it.</p> <p>3. A. witness cannot express his opinion upon facts stated by another witness, unless he is an expert.</p>

<p>Case, in Bryan Superior Court. Tried before Judge Fleming, December Term, 1858.</p> <p>The facts are embodied in the opinion of the Court.</p>

Indictment, in Richmond Superior Court. Decision by Judge Holt, at January Term, 1860.

<p>1. Why is not a transfer of an execution by plaintiff’s attorney good as an equitable assignment, the plaintiff having received the money paid on the assignment ?</p> <p>2. A levy of personal property which has been dismissed by plaintiff or plaintiff’s attorney, without being productive, and when no injury has resulted from such dismissal, sufficiently accounts for, and explains such levy to authorize plaintiff to proceed with its collection, and to enable it to participate in the distribution of a fund in Court raised from the sale of the defendant’s property according to its priority.</p>

<p>This was a garnishment sued out by Seymour, Fanning & Co., calling upon-E. Molyneux to depose what he was indebted to, or what effects of one Carmichael he had in his hands.</p> <p>The facts of the case are sufficiently stated in the opinion of the Court.</p>

Statutory proceeding in Richmond Superior Court. Decision by Judge Holt at January Term, 1860. This was a petition filed for the purpose of enforcing alien under the mechanics lien laws of this State. It appeared from the petition and bill of particulars annexed, that more than twelve months had elapsed from the last date of the account, sued on, before the petition was filed. The defendants demurred and the Court sustained the demurrer.

Complaint for slaves, in Burke Superior Court. Decisión by Judge Holt, May Term, 1860. This case was tried in the Court below by a petit jury, and a verdict rendered for the plaintiff for $6,394. The defendant moved the Court for a new trial, which was granted by the Court below. An ante-nuptial settlement was entered into between Ephraim Tweedy and Isabella M. Hadley in contemplation of a marriage between them.

<p>Certiorari, in Chatham Superior Court from the City Court of Savannah, decided by Judge Fleming, at the May Term, 1859.</p> <p>This was an attachment in favor of E. C. Wade & Co. against James Hamilton, levied on five bales of cotton as the property of defendant in attachment. Lawson & Addison interposed their claim to the cotton, and the validity of that claim was the question. The Judge of the City Court held it to be invalid; Judge Fleming reversed the decision, and that reversal is the error assigned. The facts of the case were agreed as follows: James Hamilton obtained an advance of $250 00 from the claimants, upon a promise that he would send them five bales of cotton, out of the proceeds of which they were to reimburse themselves and pay over to him any surplus. He accordingly placed the cotton upon a steamer, having marked it “Lawson & Addison,” and with instructions to deliver it to them on its arrival at Savannah. The-steamer discharged the cotton upon the wharf when she arrived at Savannah. E. C. Wade & Co., levied their attachment, (founded upon an advance made by them as factors,) and the claimants interposed their claim.</p>

<p>Tried before Judge Fleming, in Chatham, in May, 1859.</p> <p>On the 26th day of May, in the year 1859, during the regular Term of the Superior Court of Chatham county, his Honor, ¥m. B. Fleming, one of the Judges of the Superior Courts of the State of Georgia, presiding, the cause of John Doe on the demise of Solomon Sheftall and Abigail M. Hart, heirs and devisees of Levi Sheftall, against Richard Roe — that is to say, Hiram Roberts, tenant in possession, being an action of ejectment pending on the common law side of the Superior Court of Chatham county aforesaid, on appeal, came on to be heard; whereupon, it was then and there agreed in open Court, between the Counsel for the plaintiff and for the defendant, that the construction of the last will and testament of Iievi Sheftall, (a copy of which is hereunto annexed as a part of this bill of exceptions,) under which the lessors of the plaintiff claimed title, and the plaintiff asserted his right to recover, should be submitted, upon argument, and a special verdict to his Honor the presiding Judge, who might render his decision thereupon in vacation. In pursuance of which agreement, argument was then and there had for the plaintiff and defendant; and afterwards, on the eighth day of June, in the year aforesaid, during the said regular Term of the said Court, the jury, having been regularly empanneled and sworn, rendered, by consent of counsel for the plaintiff and defendant, a special verdict in the said cause, which appears of record.</p> <p>The said Judge afterwards, to-wit: on the 2d day of August, in the year 1859, rendered and filed his decision in writing, wherein, among other things, he decided that the children of Levi Sheftall, under whom the defendant claims, did not take under the will of the said Levi Sheftall, estate for life only, but estates of inheritance in fee-simple, in the property in question; and that the limitations over, in favor of the survivor or survivors of the children of. the said Levi Sheftall, contained in the concluding clauses of the said will, are too remote.</p> <p>Whereupon, counsel for the plaintiff excepted, and say—</p> <p>1st. That his Honor erred in deciding that the children of Levi Sheftall, under whom the defendant claims, did not take, under the said will, estates for life only in the property in question.</p> <p>2d. That his Honor erred in deciding that the children of the said Levi Sheftall, under whom the defendant claims, took, under the said will, estates of inheritance in fee-simple, in the property in question.</p> <p>3d. That his Honor erred in deciding that the limitations over, in favor of the survivor or survivors of the children of the said Levi Sheftall, in the concluding clauses of his said will contained, were too remote.</p> <p>4th. That, the decision of his Honor is erroneous and contrary to law.</p> <p> Copy of Will of Levi Sheftall. </p> <p>“STATE OF GEORGIA, Chatham County:</p> <p>“In the name of God, Amen. I, Levi Sheftall, of the city of Savannah, in the county and State aforesaid, being of sound mind and memory, and knowing that it is appointed for all men to die, but being certain of the resurrection of the dead, do hereby declare this to be my last will and testament, in manner and form following, revoking all former wills and testaments heretofore made or done by me, imploring my Creator to receive my soul into His holy keeping. Respecting my burial, I have left written directions to my family; therefore it is useless to mention it here. As to my worldly affairs, which it has pleased God to bless me with, it is my will that my executors and executrix have full power and liberty to sell and dispose of any part of my estate, either real or personal, if it is thought by them and my heirs to be of benefit to the estate, but not otherwise, except that tract of land known by the name of the Tanyard, contiguous to Savannah, which will be hereafter mentioned in what manner it is to be disposed of. All sales made by my executors and executrix must be with consent of my heirs, or the Court of Ordinary, and the monies arising from such sales must be invested in other property, real or personal. Should it so happen that any dispute arises between my heirs, every such dispute shall be left to, and determined by three respectable and indifferent persons chosen by the parties, and whose decision shall be final and binding, and if either of the parties should be dissatisfied with the said decision, and institute an action, he, she or them so doing shall only be entitled to ten dollars as their share of my estate, both real and personal, and such forfeited share or shares shall be equally divided amongst my heirs — I mean my sons and daughters at present unmarried, and them only. This I do in order to prevent my heirs going to law with each other. It is my will that my dear wife, Sarah Sheftall, shall keep in her possession my houses, negroes, and every species of my property for and during her life; but in case she marries, then and in that case, she shall only draw an equal share of my estate with my heirs.</p> <p>“ It is my will that what I leave to my heirs — the profits of which being sufficient to maintain them decently — they keep together and live in the house or houses until a division takes place — that is, if they think proper. No division of my estate shall take place during my wife’s widowhood; that when the time arrives when a division must take place, it shall be in the following manner: The value of the property shall be first ascertained by three respectable appraisers, then be sold agreeably to advertisement on a particular day, to the highest bidder, on a reasonable credit, taking bond and mortgage on the property sold or disposed of and further security, if my executors and executrixes think proper. The purchase-money must be paid by installments, so that the youngest child may have an equal chance with the eldest, as it is my wish that every one of my heirs may be well satisfied with what is done; therefore, whenever my sons and daughters arrive to the age of nineteen years, then they be considered my executors and executrixes equal to those that may be qualified.</p> <p>“Respecting my tract of land called the Tanyard, it is my will that the same be equally divided between my heirs hereafter named, but that they shall not have it in their power to dispose of or sell any of. their shares for twenty years after my decease. It must be clearly understood that the whole of the tract of land is meant by the name Tanyard, which contains upwards of forty acres, including the surplus, for which said surplus I have a grant of upwards of thirty 3rears old. My heirs may lease or build on any part of it for them to reside on; (if leased) the profits must be for the benefit of them all. Lot (20) twenty I recommend the greatest bare of, its being this city, its value is great.</p> <p>“ It is my will' that whatever part or share of my estate, either real or personal, which shall come to either of my daughters hereafter named, the same shall not be liable, under the control or subject to any debt or debts of any husband they may intermarry with ; that before any such marriage shall take place, the portion of my estate which they inherit shall be settled on trustees for their sole and only use, and to be disposed of by said daughters as they may think proper..</p> <p>“ My son, Levi Sheftall, was possessed of a half lot of land in Savannah, (adjoining Robert Greer’s,) and a negro boy named Carolina, and as he died in Charleston, and on his death-bed requested his uncle, Mr. Emanuel He Lamotta, to remember he left his property to his god-son and brother Abraham Sheftall, and my said son Levi Sheftall being a minor at the time of his death, and leaving no will, and the property coming to me, as his father, under the laws of the State, I therefore, in compliance with his request, bequeath to my son,-Abraham Sheftall, the said half lot and negro boy named Carolina, as his property forever after the decease of his mother, this property to be his, exclusive of his share of my estate, real or personal, which he may be entitled to.</p> <p>“I give and bequeath to my son Solomon, my negro boy named Cork, as also the sum of three hundred dollars, this sum to be paid him when my estate is divided; these gifts are exclusive of his equal share of my estate, both real and personal. I give to my son Emanuel Sheftall, my negro1 boy named London. This gift is also exclusive of his equal share of my estate, both real and personal. I give to my son Mordecai Sheftall, a negro wench named Sprouncer, with her four children, to-wit: Rose, George, Venus and Jane, and her future issue and increase, to him forever after the decease of his mother. This gift is exclusive of his equal share of my estate, both real and personal.</p> <p>“It is my will that my estate be divided in the following manner, and to the following named person only; that is to say, to my dear wife, on the conditions before mentioned; to my son Benjamin Sheftall, one share, under certain conditions that will be hereafter mentioned; to my daughter Hannah Sheftall, one equal share of my estate; "to my daughter Judith Sheftall, one equal share of my estate; to my son Mordecai Sheftall, one equal share of my estate; to my son Emanuel Sheftall, one equal share of my estate; io my son Abraham Sheftall, one equal share of my ,estate; to my daughter Abigail Minis Sheftall, one equal share of my estate; to my daughter Perla, the wife of Isaac Russell, I give the sum of five dollars; this is all she shall have of my estate, both real and personal — this to be paid her after the division aforesaid. No support shall be given her out of my estate on any pretence, and it is my will that my executors and executrixes do not, on any consideration, suffer her to dwell on any part of my land or live in any of my houses; I give to my dear daughter Sarah DeLyon, the wife of Abraham DeLyon, the sum of ten dollars; this to be considered a full share of my estate, both real and personal. I gave my daughter Sarah DeLyon, at her marriage, a valuable property — more than any of my children will enherit from me; this is the only reason, and not a want of parental affection, that I have left her in my will ten dollars.</p> <p>. “The part of my estate, real and personal, which I give to my son Benjamin Sheftall, is subject to the following conditions, and absolutely bound by the following trust, and upon no other terms or conditions shall he enjoy any part of my estate; to my sons Mordecai Sheftall and Emanuel Sheftall, in trust for my son Benjamin Sheftall, an equal share of my estate, both real and personal, the said Benjamin Sheftall to have and receive the rents and issues and profits of the property aforesaid for his support and maintenance during the term of his natural life, and not to be subject to the debts of the said Benjamin Sheftall; but in case he should marry and die without issue legally begotten, then and in that case the said property, both real and personal, and the profits thereof, shall be divided between my heirs, hereafter named, to-wit: Hannah Sheftall, Judith Sheftall, Mordecai Sheftall, Emanuel Sheftall, Solomon Sheftall, Abraham Sheftall, and Abigail Minis Sheftall, and no other person whatsoever. But should he leave issue at the time of his death, lawfully begotten, in that case, they shall have and receive that portion of the estate which was vested in the hands of the trustees for the use of the said Benjamin Sheftall, provided they live to the age of eighteen years, not otherwise; and in case they do not live to the age of eighteen years, then and in that case the property shall revert to my heirs, Hannah, Judith, Mordecai, Emanuel, Solomon, Abraham and Abigail Minis Sheftall.</p> <p>“Incase of the death of either of my children, to-wit: Benjamin, Hannah, Judith, Mordecai, Emanuel, Solomon, Abraham or Abigail before the division takes place, or after, without issue legally begotten, then and in that case the portion of him or them so deceased shall be only inherited and divided between my heirs, the survivor or survivors of my eight children, heretofore named. Lest a false interpretation may be given to my meaning in this my will, I deem it highly proper to say, that in no case are my daughters Sarah DeLyon and Perla Russell, to inherit any part or portion of my estate on the decease of any of my eight children.</p> <p>“In case any of my sons or daughters should intermarry and die, leaving issue legally begotten, they shall not inherit their father’s or mother’s portion of my estate before they attain the age of eighteen years; and in case of the death before they attain that age, the property of the father or mother so deceased shall return to my children : I mean the eight which I have so often mentioned.</p> <p>“It is my particular request and desire that my old faithful negro man, London, who has labored hard with me forty years and upwards, be kindly, carefully and well treated as long as he lives.</p> <p>“ I do hereby appoint my dear wife, Sarah Sheftall, executrix, my sons Benjamin, Mordecai and Emanuel Sheftall, executors, and my daughters Hannah and Judith Sheftall, executrixes to this, my last will and testament, resigning myself to the mercy of my Creator, hoping that my soul will be received by Him.</p> <p>“ Done at the city of Savannah, this fourth day of July, eighteen hundred and eight, and in the thirty-third year of American independence.</p> <p>“Levi Sheftall, [l. s.j”</p> <p>This will was duly proved and recorded.</p>

Caveat to Application for Letters of Dismission, on the Appeal, in Chatham Superior Court. Tried before Judge Fleming, at May Term, 1859. The ground of this caveat was, that Allen, the administrator, by his treatment of the fund, had made himself liable for interest upon the proceeds of sales within the year next after his appointment, and had not accounted for such interest.

Rule against the Sheriff, from Richmond comity. Decision by Judge Holt, in vacation, on 25th April, 1860. These four cases were consolidated and argued together.

Action on Notes. Decision by Judge Holt, at April Term, 1860, of Jefferson Superior Court. This was an action in the short form, upon two promissory notes, purporting to have been executed by defendant’s intestate. The pleas were the general issue, non est factum, and failure of consideration.

<p>1. A payment by the principal or maker of a promissory note, before barred by the statute, does not constitute a new point for the running of the Statute of Limitations as against the indorser or surety, unless such indorser or surety be a party to such payment.</p>

Complaint, in Chatham Superior Court. Tried before Judge Fleming, at May Term, 1859. This was an action by the defendant in error against the plaintiff in error, on three promissory notes, which he read in evidence, and closed.

Action to subject Trust Property, in Columbia Superior Court. Decision by Judge Holt, at March Term, 1860. This was a common law suit, brought by the Georgia Female College against Sarah Tompkins, seeking to subject her trust estate to the payment of a debt contracted by her.

<p>1. When one who is sheriff, has been compelled to pay off an execution, and the defendant therein pays a third person to paythedebt, andsuch third person promises to pay the sheriff the amount he has paid on the execution for the defendant, having received the money for that purpose, the promise is good, and not within the Statute of Frauds, or obnoxious to public policy.</p>

<p>1. Answers of one of the parties to interrogatories sued out under the Acts of 1847 and 1850, to compel discovery at law, are not evidence for such party, unless in response to questions asked.</p> <p>2. Evidence that is relevant cannot be kept from the jury by a waiver of proof on that point or admission of the fact, if the party desires to have the testimony out.</p> <p>3. In a question of bona fides as to a settlement on wife and children by a debtor, proof of debts existing and outstanding against him at the time of the settlement is proper evidence, and a transcript from the record, of a mortgage, is competent for that purpose.</p> <p>4. A settlement in favor of wife and children, or either, will be supported, if made in good faith and with no intent to defraud creditors; but one by debtor in greatly embarrassed circumstances, of the bulk of Ills estate, leaving but a pittance, and insufficient for the debts, cannot be supported.</p> <p>5. A verdict of the jury, supported by the evidence and law, will not be set aside, especially when no error of the Court is complained of.</p>

<p>Decision on Demurrer at April Term, 1859, of Chatham Superior Court, by the Hon. William; B. Fleming.</p> <p>Mr. Justice Lumpkin states the facts of the case in his opinion.</p>

Decision by Judge Worrill, at Taylor Superior Court, at April Term, 1860. The complainant, Sarah Jane Griggs, filed her bill in Taylor Superior Court, against John Daniel, whereby she alleged that she was the duly and legally qualified trustee of Nancy Griggs.

<p>Tried before Judge Kiddoo, at June Term, of Webster Superior Court, 1859.</p> <p>The opinion of the Court embodies the facts.</p>

Statutory Proceeding to enforce Claim against Steamboat and Owners, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1859. This was a proceeding under our Statute, (Cobb’s Digest, p. 427,) to enforce and collect a debt due by the owners of the Steamboat Cusseta, to John W. Freeman, for services rendered as captain of said boat. Upon making the affidavit required by law, Judge Crawford ordered an execution to issue, which was levied upon the boat.

In Equity, in Muscogee Superior Court. • Decisions by Judge Worrill. These two cases, relating to the same subject-matter, and involving the same facts and legal questions were argued and decided together. The object of the bills — one filed by Jaques and others, the other by the Solicitor General, ex rel — was to enjoin the City Council of Columbus from the erection of a new market house, in the course of construction, in Oglethorpe street in said city.

Debt on Bond, from Muscogee county. Decision by Judge Worrill, November Term, 1859.

<p>1. One cannot be tried and convicted for an offense different from that for which he is prosecuted or called upon to answer.</p>

<p>Case, in Harris Superior Court. Tried before Judge Worrihl, April Term, 1860.</p> <p>This was an action on the case brought by Elijah Cook, against Thacker Y. Walker, to recover damages alleged to have been sustained by plaintiff, by the suing out a writ of ne exeat, and seizing ujion about 80 negroes of plaintiff’s, having a receiver appointed, etc.</p> <p>Plaintiff opened his case and offered in evidence the bill and proceedings in the equity case, in which the ne exeat issued. Also, the ne exeat bond executed by plaintiff, with Mary Walker as security, and the record of the Court of Ordinaiy, appointing him administrator on the estate of said Mary Cook, deceased, his wife, and his bond as administrator, with said Mary Walker thereto.</p> <p>Plaintiff further, amongst other things, offered to prove the value of the estate of Mary Walker, his security, on his ne exeat and administration bonds. This testimony the Court refused, and counsel for plaintiff excepted.</p> <p>Plaintiff having closed, counsel for defendant moved for a non-suit, which the Court below granted, and counsel for plaintiff excepted.</p>

Ca. Sa., in Marion Superior Court. Decision by Judge ~WOB.UILL, March Term, 1860. Thomas Dozier, sen., having obtained a judgment against Thomas H. Dozier, and desirous of issuing a capias ad satisfaciendum against him, made affidavit under the Act of Dec. II, 1858, “ that he has just cause to believe that the defendant, the said Thomas H. Dozier, has money which he cannot reach by fieri facias. Upon this affidavit a ca. sa. issued, and defendant was arrested.

Complaint, in Taylor Superior Court. Tried before Judge Worrill, at November Term, 1859. Fox was employed by Eucker to lath and plaster a house. After the wox-k was done, the parties came to a settlement, and after deducting payments made, Eucker fell in debt to Fox $256 35, for which he gave his note, specifying therein that the araouixt was due Fox for plastering.

In Equity, in Taylor Superior Court. Tried'before Judge Worjrill, at April Term, 1860. This was a bill filed originally by William X. Lowe, executor and legatee in remainder, of William H. Lowe, deceased against Martha T. Lowe, widow of testator, to compel her to give bond and security for the forthcoming of certain negroes and other personal estate, which the bill alleged she held only for life, under the terms and provisions of the last will and testament of said testator.

Claim, from Clay Superior Court. Tried before Judge Allen, at March Term, 1860. This was a claim issue, in which William Castleberry was plaintiff in fi. fa., Thomas J. Watts, defendant, and Shelton R. Weaver, claimant. The lots levied on were 259, 260, and 262, in the 7th districts of formerly Randolph county. The judgment on which the ft. fa. was founded was obtained in April, 1844.

On Appeal, in Sumter Superior Court, from Report of Commissioners, assigning Year’s Support to Widow and Children. Decided by Judge Allen, October Term, 1859. The plaintiffs in error, being the widow and children of H. W. Shaw, deceased, having been awarded the sum of $800 00 for their twelve month’s support, by commissioners appointed by the Ordinary for that purpose, and being dissatisfied with that allowance, carried the case to the Superior Court by appeal.

Garnishment, from Dougherty Superior Court. Decided by Judge Allen, June Term, 1860. Robert L. Tomlinson, pending an action of complaint in his favor against Thomas A. Janes, made his affidavit and gave bond for process of garnishment in his behalf in said case.

In Equity, from Lee Superior Court. Decided by Judge Pekkins, at March Term, 1860.

Complaint, from Lee Superior Court. Tried before Judge Pekkins, at March Term, 1860. The defendants in error brought an action against Samuel Lindsay for the amount of money due on a certain draft accepted by him, returnable to the Inferior Court of Lee county. The defendant having confessed judgment at the judgment Term, carried the case, by appeal, to the Superior Court.

In Equity, from Taylor county. Tried before Judge Wok-kill, at October Adjourned Term, 1859.

Ejectment, in Lee Superior Court. Tried before Judge Perkins, at March Term, 1860. The plaintiffs in error brought this suit against defendants to recover lot of land No. 30, in the 14th district of said county. On the trial, plaintiffs put in evidence a grant from the State for said lot, issued to William Hooper’s orphans, of Merritt’s district, DeKalb county, dated 9th April, 1835.

<p>1. While it is true, that in suing one as executor in his own wrong, you must charge him as executor generally, still if the cabalistic gibberish de son tort are dropped in all the subsequent proceedings, and the judgment is entered and execution issued against the defendant as executor, it is sufficient.</p>

Covenant, in Muscogee Superior Court. Tried before Judge Woeeill, at November Term, 1859.

In Equity, from Dougherty Superior Court. Decision by Judge Allen, June Term, 1860.

Debt, from. Muscogee county. Tried before Judge Wobrilb, May Term, 1859.

Decided by Judge Lamar, November Term, 1859. This was an action of ejectment in the fictitious form, containing four demises : The first was a demise from George W. Adams, alleging that he had leased the premises to the nominal plaintiff, beginning from February 24th, 1855 ; the second was a demise from Lewis L. Griffin, alleging a lease for thirty years, from February 5th, 1836; the third was a demise from the Merchants’ Bank of Macon of a lease for twenty years, from the…

Ejectment, from Worth Superior Court. Tried before Judge Lamar, at April Term, 1860. The defendant in error brought an action to recover lot of land No. 16, in the 16th district of Worth county. After the plaintiff, on the trial, had introduced his evidence and rested his case, defendant, among other things, offered in evidence a deed from one Burch to Eliza Calhoun for one-half of the premises in dispute.

Assumpsit, in Talbot Superior Court. Tried before Judge W'oebill, at March Term, 1860. This was an action of assumpsit, brought by William E. Johnson against John B, Gorman to recover the sum of three hundred and fifty dollars, the amount agreed to be paid by defendant to plaintiff for overseeing for the year 1858.

Tried before Judge Allen, April Adjourned Term, 1859. Matthew G. Hodges and his wife Elizabeth, formerly Elizabeth E. Herring, Mary J. Herring, Haywood Herring and Woodberry Herring, minors, suing by their next friend, Matthew G. Hodges, brought their action of complaint against John B. Herring for the recovery of five certain slaves.

Complaint in Ejectment, in Sumter Superior Court. Tried before Judge Allen, at April Term, 1860. This suit was brought by Durham against Holeman to recover lot No. 221, in the sixteenth district of Sumter county. On the trial, the plaintiff introduced the grant from the State to himself, dated June 2d, 1843, and having shown the defendant to have been in possession at the commencement of the suit, closed his ease.

Rule against Sheriff, in Harris Superior Court. Tried before Judge Worrill, at April Term, 1860.

In Equity, from Lee Superior Court. Decision by Judge Allen, September Term, 1859. This case having before been up to this Court, a statement of the facts of it will be found, in substance, in the 28th Vol. Supreme Court Rep., p. 597.

Ejectment, in Quitman Superior Court. Tried before Judge Perkins, and New Trial granted, at May Term, 1860. The plaintiffs in error brought this action to recover lot ®f land No. 79, in the 8th district of originally Lee, now Quit-man county. On the trial, plaintiff read in evidence the plat and grant to Boswell Cook, of Treadwell district, Richmond county. Also, a deed from Boswell Cook to W. P. Dearmond, made in Green county, and dated September 26th, 1829.

Complaint, from Dougherty county. Tried before Judge Allen, December Term, 1859. Edward Denmead brought his action against Glass, Laws & Co., on an account for 150 sacks of superfine flour, sold by plaintiff to defendant in error at $2 50 per sack. It was proved, on the trial, that Edward Jones, as one of the firm of Glass, Laws & Co., being in Marietta, at the plaintiff’s place of business, gave a verbal order for the flour in March, 1858. Defendants resided in Albany, Ga.

Complaint for Negroes, in-Schley Superior Court. Tried before Judge Worrill, at April Adjourned Term, 1860. This was action of complaint brought by Burton against William A. Black for certain negro slaves. The only question in this case arises upon the last will and testament of Mrs. Elizah Burton, the mother of plaintiff and to whom the negroes sued for formerly belonged. The substance of the bequest may be found in the opinion of the Court.

<p>Motion to recover Negroes, in Randolph Superior Court. Tried before Judge Lamar, at the May Term, 1860.</p>

Illegality, from Lee county. Decided by Judge Perkins, March Term, 1860. A fieri facias, endorsed “ alias fi. fa.” in favor of the plaintiff in error, against the defendant, “ to be levied of the trust property of said Mary A. Johnson, in the hands of said Jesse H. Watson, trustee,” had been levied by the sheriff on a slave as a part of such trust property.

In Equity, from Marion county. Decision by Judge Worrill, at Chambers, 30th day of November, 1859. This bill was filed by defendant in error to enjoin the collection by suit at law of certain promissory notes given by the defendant to Matthew M. Carter, the husband of plaintiff in error, in his lifetime, (since deceased,) for certain tracts and parcels of land in the bill described.

Complaint for land, in Sumter county. Tried before Judge Allen, at the April Adjourned Term, 1859. This suit was brought on the 17th day of February, 1857, by the administrator of Jesse Harris against Reason Buckner, the plaintiff in error, to recover lot of land No. 210, in the 26th district of originally Lee, now Sumter county.

Complaint, from Lee county. Tried before Judge Allen, March Term, 1859. This was an action of complaint brought for the recovery of a slave by Matthew Averitt against Robert Freeman! Pending the suit both parties died, and afterwards, Sarah Averitt, as administratrix of Matthew Averitt, deceased, and John H. Pope, as administrator of Robert Freeman, deceased, were made parties plaintiff and defendant.

Soire Faoias to Revive Judgment, in Marion Superior Court. Tried before Judge Worrill, March Term, 1860. This was a scire facias to revive judgment by Stewart & Fountain, for the use of Charles D. Stewart, against George McDuffie, administrator cle bonis non of Benjamin Story, deceased.

Samuel Dawson, Sheriff of Sumter county, was called on by rule ni si to show cause why he should not pay to the defendant in error the principal and interest due on a fi. fa. in favor of The Merchants’ & Planters’ Bank against John Y. Price, principal in said fi. fa., and Thomas C. Sullivan, security on stay, which had been in his hands for collection.

In Equity, from Sumter county. Decided by Judge Allen, at Chambers, 17th April, 1860.

In Equity, in Dougherty Superior Court. Decision by Judge Allen, at the June Term, 1859.

Habeas Corpus. Tried before Judge Allen, 27th June, 1859, from Decatur County. Upon the petition of Noah McNabb and wife, one of the Justices of the Inferior Court of Decatur county issued a writ of habeas corpus, directed to, and commanding Ephraim D. Waters to bring before said Justice the body of Lucian N. Waters, a minor about ten years of age, and a child of Mrs. McNabb, by a former marriage.

Motion to dismiss rule for New Trial, from Decatur county. Decided by Judge Allen, October Term, 1859. An action on the case having been brought in favor of Milton Crawford, against John P. Gauldin, resulted in a verdict for the defendant. The plaintiff then moved a rule for a new trial to be heard at the next, viz: the October Term, 1859.

Certiorari, in Taylor Superior Court. Decided by Judge Worrill, at October Term, 1859. Sanders was brought before the Commissioners of the town of Butler on the charge of retailing spirituous liquors in said town without having obtained a license from said commissioners in violation of an ordinance passed by them. After hearing evidence, the commissioners fined him $60 00.

Claim Issue, in Dougherty Superior Court. Tried before Judge Allen, at June Term, 1860.

Rule Nisi to set aside Judgment, from Muscogee county. Decision by Judge Worrill, May Term, 1859. The plaintiff in error moved a rule nisi, calling upon the Bank of Brunswick to show cause why two certain judgments embraced in the rule should not be set aside for want of jurisdiction in the Court rendering the same.

In Equity, in Dougherty Superior Court. Tried before Judge Allen, at June Term, 1859.

<p>Tried before Hon. Edmond H. Worrill, in Muscogee Superior Court. May Term, 1859.</p> <p>There was but one question in this case, and the facts are sufficiently stated in the opinion of Judge Lumpkin.</p>

<p>Motion for New Trial, from Chattahoochee Superior Court. Tried before Judge Perkins, at November Term, 1859.</p> <p>The facts of this case are fully stated in the opinion of the Court.</p>

Trover, in Sumter Superior Court. Tried before Judge Perkins, at April Term, 1860. The children of Elizabeth Dinkins sued Joseph White and John S. Moore to recover a negro boy named Levi.

<p>1. While a tract of land is held and known as a whole, a possession of a part may be a possession of the whole, to the extent of the paper title under which it is held. And so, too, where the whole tract, as such, is claimed by the adverse party, then perhaps the possession of a part may be construed into the possession of the whole. But where a tract or settlement of land is made up of different lots or parcels, and the adverse claim is to one only, then the possession of another part of the tract cannot ripen into a statutory title as against the particular lot claimed.</p> <p>2. Where five or ten acres of a lot of land, covered by water, is inclosed by a fence, in the absence of all proof to the contrary, the presumption is, that the act is done by virtue of the claim of right to the premises so inclosed; and especially when the act is accompanied by a cotemporaneous declaration that both that lot, and the one contiguous, all belong to the occupant.</p>

<p>Motion, etc., in Chattahoochee county. Decision by Judge Kiddoo, June Term, 1859.</p> <p>The bill of exceptions sets forth the facts of this case as follows:</p> <p>William Dougherty, Esq., moved the Court to grant an order, placing upon the docket of said Court a claim case of Maitland, Kennedy & Co., plaintiffs in fi. fa., against James C. Watson, defendant, and Duncan McDougald, claimant; and in support of said motion exhibited the papers in the ease, and two orders granted by the Superior Court of Muscogee county, ordering the papers in the case transferred to this county. Said Dougherty stated that the laud levied on was in the county of Chattahoochee, and that, when the first order was taken, the affidavit, bond and execution in the case were lost or mislaid; that the affidavit and bond, after diligent search, were not found until about twelve months since; and that the fi. fa. was not found until after the last term of this Court; and that the papers were not transferred sooner because of said loss. And he further stated: That he could not establish the bond and affidavit because he had never seen them; that the sheriff, on whose affidavit they had been once established, was dead, and, therefore, he continued the search, as.before stated.</p> <p>The claimants showed the claim docket of this Court, on which the case was entered, and that a certified copy of the first order, transferring the case, was brought from Muscogee, and the case put on said claim docket; and, also, an order on the minutes of the Court, at the August Term, 1858, dismissing the levy in the case.</p> <p>The plaintiff’s counsel then showed that the case was on the appeal docket in Muscogee, and should have been placed on the same docket in this Court; that he had no notice of the-order dismissing the levy, and did not know of the same until to-day; that he had not attended the previous terms of the Court because of the loss of the papers aforesaid — believing the same had not been transferred.</p> <p>On this showing of counsel for plaintiff, the Court granted an order, rescinding the former order dismissing the levy, and ordered the papers to be filed and the case placed on the docket for trial.</p> <p>The counsel for claimant excepted thereto.</p>

<p>Claim, in Stewart Superior Court. Tried before His Honor Wiliam C. Perkins, October Term, 1859.</p>

In Equity, from Clay County. Decided by Judge Kiddoo, September Term, 1859. The plaintiff in error filed his bill, as the administrator of William P. Ford, deceased, against Ann.

Motion to set aside Judgment, in Baker Superior Court. Decided by Judge Allen, at May Term, 1860. A ca. sa. process having issued in favor of Rawson & Moriman, against James D. Hampton, returnable to the November Term, 1858, said Hampton was arrested thereon by the sheriff during the session of the Court at the preceding May Term, and was, by order of the Court, discharged because he was then in attendance upon the Court as a party in another suit.

<p>1. It is error in the Court to charge the jury on a state of facts not warranted by the evidence.</p> <p>2. If one who claims title to property be present when another makes a voluntary conveyance to third persons and does not object to the making of such deed, it is a circumstance to show that such person had no title to the property conveyed, but recognized the title to be in the donor. t</p> <p>3. Although the charge excepted to is evidently a mistake, still, if it stands in the record as the act of the Court, and is erroneous, such error must be corrected.</p> <p>4. Although a party impliedly admit title to be in another, he may, notwithstanding, shoyp that he had the title, and if he does, satisfactorily, his title will be protected against such admission.</p> <p>5. It is illegal for a witness to testify that one made other deeds of gift of all her property among her children. The deeds themselves are the best evidence of the fact, as well as of what they conveyed.</p>

<p>Certiorari, in Randolph Superior Court. Decided by Judge Perkins, at May Term, 1860.</p> <p>In the year 1859, the Justices of the Inferior Court of Randolph county appointed certain commissioners to review and report on the laying out of a certain road to lead out of Cuthbert, Ga., through a ten acre lot adjoining the town of Cuthbert, in the possession of the plaintiff in error. The commissioners reviewed the premises and made a report in favor of opening said road, etc.</p> <p>Afterwards, the Inferior Court appointed certain persons to assess the amount of damages accruing to the owner of the land on account of the proposed road, and which appears to have been done without notice to the owner of said lot.</p> <p>The assessors reported the damages to be one hundred dollars, to be paid to the owner of said ten acre lot on the termination of a suit between John Roe and Mrs. Frith respecting the titles to said lot.</p> <p>It further appeared that the commissioners and assessors acted in the premises without being sworn. The reports above stated were made the judgment of the Court, and an order passed making a highway through said lot.</p> <p>Mrs. Frith being dissatisfied with these proceedings, carried the same by certiorari to the Superior Court, asking that the same be set aside on various grounds: Want of notice of the proceedings in their several stages; uncertainty as to the width of the road; the damages to be paid to her upon a condition, and not absolutely; the failure of the reviewers and assesors to be sworn, etc.</p> <p>On hearing the certiorari, the Court adjudged that the same be sustained as to the assessment of damages, and that the judgment of the Inferior Court be affirmed as to their right to open the road to the extent of thirty feet.</p> <p>Tq which decision the plaintiff in certiorari excepted.</p>

Complaint, from Sumter county. Tried before Judge Allen, at August Adjourned Term, 1859. Densmore & Kyle brought suit against McLain & West for the recovery of $1,270 92, being the price of goods sold and delivered by defendants in error, who were merchants in Baltimore, to the plaintiffs in error, merchants in Americus.

Complaint, in Quitman county. Tried before Judge Perkins, November Adjourned Term, 1859: James Newsou brought suit against the plaintiff in error to recover the sum of #900 00, or, being the amount of a promissory note which the latter had agreed to give for the purchase of a slave, named Joe; the note being made payable to E. R. Graddy, or bearer — dated the 14th day of June, 1854, and due by the 1st day of January next thereafter.

<p>In Equity, from Dougherty county. Decided by Judge Allen, at June Term, 1859.</p> <p>This was a bill filed by George W. Collier, and has heretofore been before this Court, as stated in 17th Georgia Reports, page 46. The material allegations of the bill are about as follows:</p> <p>Collier, Braeewell and St. George, entered into a copartnership in 1838 for the purpose of merchandizing at Hawkinsville, under the name of Collier & Braeewell. Edward Molyneaux recovered judgment against Collier & Braeewell, with St. George as security on the appeal, for $9,360 00, with interest and costs. The firm was insolvent, and the partners, individually liable, were ip doubtful, if not insolvent, circumstances. John Rawls, with a full kfiowledge of these facts, purchased this fi. fa. from Molyneaux, and held it against the partners. He was President of the Bank of Hawkins-ville, and a large stockholder therein, and as such controlled large fi. fas. and mortgages against St. George. Braeewell had possession of some property, but there was a cloud over his title — it being claimed by his son-in-law. Collier, the complainant, was insolvent.</p> <p>Under these circumstances, and in view of these facts, Rawls proposed to Collier, Braeewell, and St. George, that if each one of them would, from his personal efforts and yearly labor, pay to him one-third of the amount of said fi. fa., he would release and discharge the one so complying with this offer from all further liability thereon. Collier and St. George, each, complied with this proposition. Braeewell failed to comply, and in 1840 removed beyond the limits of the State, carrying with him the property, negroes, and stock in his possession. Rawls permitting him so to remove without attempting to stop him or to levy on and try the title to said property, against and in spite of the remonstrances of Collier and his earnest appeal to levy thereon. Rawls died, and his widow and C. Taylor, became administrators on said estate. With the view to defraud Collier and St. George, the administrators procured Molyneaux to transfer the said fi. fa. to the Merchants’ Bank of Macon, in whose name it was proceeding at the time of the filing of the bill, having been levied on the property of Collier for the payment of the remaining third due thereon.</p> <p>In the bill, as originally filed, it was alleged that Brace-well carried away property amply sufficient to pay said fi. fa., and that Rawls permitted him to remove. In an amendment this allegation was modified as previously stated. The amendment also alleged that St. George, although possessed of a considerable estate, was, nevertheless, largely involved, and that Rawls had a large claim against him; and if all his debts were pressed against him, he would have proved to be insolvent.</p> <p>Exhibits of the mortgages and debts due by St. George, were not attached to said bill. The amendment alleged various payments by St. George, and also claimed a credit from the sale of a negro, the property of Collier, and prayed discovery as to the payment on said ft. fa. The prayer was for injunction and general relief.</p> <p>The bill was subsequently amended, and charges that in 1842, John Rawls, in consideration that complainant was in insolvent circumstances, agreed with Jonathan Davis and complainant that if they would secure the payment of one-third of said ft. fa., by giving him a negotiable note on one Harrison Jones who was then negotiating with Davis for some negroes originally owned by complainant — the note to be for two thousand dollars, and the balance agreed on to be paid by Davis — he, Rawls, would release complainant from all further liability on said ft. fa.</p> <p>The defendants filed their answers which do not admit any of the material allegations of the bill.</p> <p>On the trial of the case the following evidence was introduced by complainant:</p> <p>Joseph Caruthers testified :1 That he was Sheriff or Deputy Sheriff of Pulaski county, in the years 1840-1-2-3-4; and frequently during those years held ft. fas. against St. George; does not remember ever to have made any other return on them than satisfaction. St. George, in 1842, had about forty negroes and about twenty-three hundred acres of land. The country was then suffering under a great financial crisis, and if St. George’s negroes had been forced to sale, thinks they would not have averaged more than $300 00 each, and his lands would have brought in specie funds about five dollars an acre. St. George was largely indebted to James Everitt and others, and if his property had been sold at that time for specie funds at sheriff’s sale, does not think the same would have paid his debts. Nothing could have been made out of Collier and Bracewell in the Spring of 1842; does not remember in what year Bracewell left Pulaski county; witness, as sheriff, used to make money out of him when required, as long as he staid there, and never should have made an entry of nulla bona. St. George left at his death some thirty-five or forty thousand dollars worth of property, most of which was inherited by the Colliers, complainant included. St. George’s property, if sold in 1842 for other than specie funds, would have brought a good deal more than $25,000 00. His credit was then good and witness considered him responsible.</p> <p>Complainant next put in evidence exemplifications of executions and mortgages against St. George, as follows: r-</p> <p>A fi. fa. issued on a judgment obtained in July, 1840, in favor of the Bank of Hawkinsville for the principal sum of $16,025 25, upon which were various credits from April 5, 1842, to November 8, 1850, showing satisfaction in full. A mortgage to the Bank of Hawkinsville, dated February 18, 1841, to secure three notes due on the first days of January, J 842-3-4 respectively, and being for the aggregate amount of about $6,730 00, the mortgage covering all of St. George’s land and negroes. A fi. fa. in favor of Molyneaux against Collier and Bracewell, and St. George security on appeal issued on a judgment obtained in July, 1840, for principal $9,306 10. A fi. fa. in favor of Washburn ánd Lewis against the firm of Collier, Jelks & Co., composed of Bryan W. Collier, J. O. Jelks, and Edward St. George, issued on a judgment obtained in July, 1840, for principal sum of $349 51. A fi. fa. against said last named parties, and issued on a judgment obtained at the same time for the principal sum of 13 dollars and 25 cents. A fi. fa. in favor of Miles Fields against said firm of Collier, Jelks & Co., on a judgment obtained in January, 1841, for principal sum of $116 28. A fi. fa. in favor of Silas Bronson against Collier, Bracewell, and St. George, on a judgment obtained in July, 1841, for principal sum of $579 26, A fi. fa. against the firm of Collier, Bracewell & Co., and St. George, security, on appeal on a judgment obtained in July, 1841, for principal sum of $324 81. A fi. fa. against Bracewell as principal, and St. George as security on a judgment obtained in July, 1841, for principal sum of $558 54. A fi. fa. against Collier, Bracewell & Co., and St. George as security on a judgment obtained in July, 1841, for principal sum of $514 82. A fi. fa. against Collier, Bracewell & Co., and St. George security on a judgment obtained in July, 1841, for the principal sum of $1,855 36. A fi. fa. against Collier and Bracewell, and St. George as security, on a judgment obtained in July, 1841, for the principal sum of $404 95. A fi.fa. against Collier, Bracewell and St. George, on a judgment obtained in July, 1841, for principal sum of $673 67. A fi.fa. against Collier, Jelks and St. George, on a judgment obtained in April, 1842, for principal sum of $1,043 00. A fi. fa. against Collier and Bracewell, and St. George as security, on a judgment obtained in April, 1842, for principal sum of $412 91. A fi.fa. against Jelks, Brace-well and St. George, on a judgment obtained in October, 1841, for principal sum of $416 00.</p> <p>The transcript from the execution docket of Pulaski county-showed, that the above named fi. fas. for the principal sums of $340 51, $116 28, $324 80, were satisfied in full in April, 1842; and the fi. fas. for the principal sums of $412 91, $1,324 35, were satisfied in full in January and March, 1844.</p> <p>Complainant also put in evidence the record of fi. fas. against Bracewell and George W. Collier, amounting to several thousand dollars issued on judgments obtained in 1841, 1842, 1843, etc.</p> <p>Thomas Collier testified : That he understood from John Rawls, that he controlled the_/i. fa. in favor of Molyneaux against Collier, Bracewell and St. George, during the years 1842. Witness and Jonathan Davis were in Hawkinsville during the Fall Term, 1841, of Pulaski Superior Court, or the Spring Term thereafter, at which time a conversation occurred between said Davis and said John Rawls, in which Davis stated to Rawls that he was there to .have George W. Collier released from the Molyneaux fi. fa., and pointed out to said Rawls certain negroes of Bracewell. John Rawls said to Davis that, by virtue of a contract between him, Davis, and George W. Collier, said Collier was to be or had been released by his paying one-third of said fi. fa. Witness heard Rawls say the same thing at Albany, prior to the conversation referred to. George W. Collier was worth but little at the time referred to; does not know whether he was considered solvent or not. The firm of Collier, Bracewell and St. George, was solvent, if the individual property of each partner were to be taken into consideration.</p> <p>The same witness also testified, in answer to a second set of interrogatories, that he was present when John Rawls, George W. Collier, Jonathan Davis, Harrison Jones, James B. Mayo, and Green Tinsley, were together in Albany; a credit of $2,000 00 was then paid on the Molyneaux fi. fa., in a note made by said Jones as a final settlement of George W. Collier’s part of saidjft. fa. Rawls then agreed to release said Collier, and saying he would take the fi. fa. to Pulaski county and make the balance of it out of the other parties. This was prior to the conversation testified to in Hawkins-ville. The payment that was made in Albany was on the occasion of the purchase by Harrison Jones from Jonathan Davis of certain negroes which Davis had bought of Collier, it being admitted that the negroes were liable to the Molyneaux fi. fa.</p> <p>Complainant then offered Jonathan Davis as a witness. Defendants objected on the ground that he was interested in the result of the suit, and in support of their objection, showed the Court that said Davis had filed a bill to enjoin the collection of the Molyneaux ft. fa. out of certain lands and negroes, upon which it had been levied, and which land and negroes said Davis had bought of Collier, the complainant. It was also shown that Davis had claimed the land levied on, and that the claim case was still pending; also, that Davis had given an injunction bond on filing said bill conditioned for the payment to said Molyneaux of the eventual condemnation money and costs, in the event said injunction and bill were not sustained. And further, the order of the Court dismissing said bill was produced and shown.</p> <p>The Court overruled the objection made as to the competency of Davis,'it appearing that complainant had given bond with security to save Davis harmless from the effect of any decree that may be rendered in this suit, and to protect him against the lien of said fi. fa., and complainant offering to deposit the costs in the Clerk’s office accruing in said claim case.</p> <p>Complainant also offered to give a bond to cover all damages and costs that might be recovered against Davis in the claim case, which proposition was not accepted by defendants, and no such bond was given by complainant or required by the Court.</p> <p>Jonathan Davis was then put on the stand, and testified relative to many material points in the case.</p> <p>Peter E. Love testified, that Bracewell had possession of property in 1842, consisting of two slaves and a small plantation, which he claimed as his own; thinks the two negroes were worth $1,200. Bracewell had other negroes in his possession at that time, which he claimed as the property of his son, worth about $4,000 00. He carried all these negroes, except one, off with him when he removed from Pulaski county.</p> <p>E. J. Stow testified relative to the ownership of the stock of the Bank of Hawkinsville. His testimony shows that John Rawls in 1842 owned 442 shares in that bank.</p> <p>The Molyneaux fi. fas., with the entries thereon, was then put in evidence.</p> <p>Lott Warren testified, that in 1841 or ’42, after complainant conveyed his property to Jonathan Davis, he, complainant, was considered insolvent. Complainant here closed.</p> <p> Defendants introduced the following evidence: </p> <p>Joseph Caruthers testified, that St. George died in 1850, or 1851, and left an estate worth $45,000 00, one-fourth of which was inherited by complainant. St. George was solvent in 1841-2-3. He owned forty or fifty negroes and at least two thousand acres of land at that time. Witness was' intimate with St. George ; his condition in 1844 was about the same as in 1842; does not know the exact amount of his indebtedness during those years, but does not suppose he owed at any time more than $25,000 00. Thinks if his property had been sold at that time, it would have paid his debts. James Everett held the largest claim against him. Does not know the amount for which St. George was sued, but the amount was large.</p> <p>John J. Anderson testified, that he was intimately acquainted with St. George eight or ten years prior to his death; was acquainted, to some extent, with his pecuniary affairs in 1842 and ’43, and thinks he owned about forty negroes and between sixteen hundred and two thousand acres of land; considered him solvent at that time, but greatly embarrassed. Heard him frequently say, if his creditors pushed him they would break him up. He left an estate worth about $40,000 at the time of his death. Witness thinks he heard St. George say in his lifetime, that he would have to pay for the two firms of Collier & Jelks and Collier & Bracewell, thirty or forty thousand dollars. James Everett held the largest claims against him. Witness thinks if his creditors had pushed, him they would have broke him.</p> <p>Daniel Matthews testified, that he got the Molyneaux fi. fa. from complainant in September, 1843, and delivered it to John Rawls. Complainant was then acting as Deputy Sheriff. In a conversation which occurred at the time, complainant stated that he did not think Rawls would sell his property, but would give him time to raise the money. Rawls held another claim against complainant, he thinks it was a fi. fa. The conversation had reference to all the claims that Rawls held or controlled against complainant.</p> <p>Daniel Mathews was re-examined and testified, that in 1843, he called on complainant to get the Molyneaux fi. fa. and a fi. fa. in favor of one Wilcox against Collier & Brace-well. Witness got those fi. fas. for Rawls, who wished to raise money on them from Bracewell’s property. In a conversation at the time with complainant, he said that Mr. Rawls would at least give further time to pay the fi. fas., if he failed to make the Sheriff of Pulaski responsible for the negroes Bracewell run off to Florida.</p> <p>A. H. Hansell testified that he had a conversation with complainant, in which he stated that he was desirous of settling the Molyneaux fi. fa. by turning over lands which he said were worth the amount of the debt, and wished witness to get an order passed authorizing the administrator of Rawls to take the lands in settlement. Witness was acquainted with the condition of Bracewell and St. George in 1842. Bracewell was insolvent; St. George was a good deal involved. but owned property to the amount of thirty or thirty-five thousand dollars, besides a life interest in\ about thirty negroes. Witness thinks the oldest lien against him was the Molyneaux fi. fa., and states that there would have been no difficulty of collecting the fi. fa. out of St. George. At the time of the conversation with complainant, witness was the attorney for the estate of Rawls. He states that the Bank of Hawkinsville held mortgages on St. George’s property, the exact amount of which he does not know, but thinks fifteen to eighteen thousand dollars. It was understood that St. George was to work his negroes and land, and pay,every year as he could; and witness thinks hd did reduce his indebtedness very rapidly.</p> <p>The testimony of Edward St. George, taken in September, 1848, was then read. He states that some ten years prior to that time, complainant owned a plantation and some twenty-five or thirty negroes; and witness thinks he can state with safety since he has known him, that Bracewell owned ten or twelve negroes and a part of a plantation in 1841 and ’42. Witness had a conversation with Jonathan Davis in 1843 or 1844, in which Davis told him that if he failed to arrange the Molyneaux fi. fa., that witness was safe because the fi. fa. was older than the title which he, Davis, had from Collier to the lands in Baker county. In no conversation which he ever had with Collier and Davis, did either of them pretend that Collier was discharged from liability on said fi. fa., but Collier always spoke of being liable to pay the whole of it.</p> <p>Green Tinsley testified, that he was present at Albany at the time Jonathan Davis sold to Harrison Jones some negroes previously bought by Davis from complainant. The transaction took place early in the year 1842; does not think Thomas Collier was present, but Jonathan Davis, Harrison Jones, John Rawls, and James J. Mayo, were present. There was this difficulty in the way of the purchase of the negroes by Jones: Rawls had placed in the hands of witness as sheriff,, the Molyneaux fi. fa.; Jones refused to buy the negroes, unless Rawls would release them from the lien of said fi. fa.; Davis or Jones, or perhaps both of them, agreed to give a note for $2,000 00, to be paid thereafter, provided Rawls would release the negroes from said lien, so that Jones could get a good title. This Rawls agreed to do, and the note was executed. Rawls did not agree to release complainant from liability on the fi. fa.; the agreement related only to the release of the particular negroes bought by Jones from Davis. In 1842, complainant had property consisting of land and negroes, but cannot state the quantity or value. Complainant was also present at the time referred to, and assented to, or did not dissent from, the agreement that was made.</p> <p>A letter from Jonathan Davis to Rawls was then read, dated February 22, 1842, in which he excuses himself for not having called on Rawls at Hawkinsville, speaks of the hard time and asks Rawls’ indulgence and refers to the Brace-well land having been advertised for sale, and ■ asks Rawls to run it up and have the money applied to the Molyneaux fi. fa.</p> <p>A letter from complainant to Rawls was then read, dated 22d February, 1843, in which he promises to pay $600 00 as soon as the river got high enough to allow cotton to be shipped, and says he expected to pay about one-half of his debts that winter, and hoped Rawls would give him indulgence for the balance. He refers to the levy made on the Bracewell land, and expresses the hope that Rawls will run up the land and protect him as far as he could.</p> <p>A bill of sale from complainant to Jonathan Davis, dated February 23d, 1841, was then read in evidence, conveying, for the sum of $8,360 00, twenty negroes, besides horses, mules, cattle, etc.</p> <p>A deed from complainant to Davis, dated February 23d, 1841, was put in evidence, conveying a number of lots of land in Baker county for the alleged consideration of $11,375 00.</p> <p>The bill filed by Jonathan Davis, enjoining Molyneaux fi. fa., already referred to, was then read to the jury.</p> <p>The defendant then proposed to read the depositions of Jonathan Davis, taken by commission, for the purpose of impeaching his statements made on the stand. Objection being made, the Court ruled out all of said depositions, except those parts which had been read over to Davis and to which his attention had been called whilst he was on the stand.</p> <p>Samuel T. Bailey testified, that he had a conversation with Jonathan Davis prior to Rawls’ death, and he thinks it was in 1843, in which Davis said he had come to Hawkinsville to make an arrangement about Collier’s debt, and wanted to employ witness as attorney at law for Collier, to protect the property he, Davis, had bought from Collier from the Molyneaux fi. fa., said property being subject to that fi. fa. The ground on which he desired witness to resist the collection of said fi. fa. out of Collier, was that Collier was released because Rawls failed to have the fi. fa. levied on Bracewell’s property when Davis had pointed out the same; Rawls then agreeing to make such a levy. Davis said nothing whatever about Rawls having agreed to release Collier. Witness afterwards named to Collier what he would charge him; Collier declined to give the price, and there the matter ended. Witness was never employed in the case neither by Collier or Davis.</p> <p>James J. Mayo was then sworn by complainant in rebuttal, and testified that on the day Rawls released the negroes bought by Jones from Davis, Eawls asked witness if the property of complainant not included in the release was sufficient to pay off the Molyneaux Ji. fa. Witness asked Eawls if that was the oldest Ji. fa. against Collier. Eawls replied tnat it was, and witness then told him there was a plenty of property left. The release of said negroes made by Eawls to Jones was in writing. Negotiations between the parties were going on all day — the difficulty being how much of the proceeds of said sale Eawls should get on his fi. fa. It was finally agreed that $2,000 00 of the sale should be paid over to Eawls, as well as witness remembers,the $2,000 00 was paid by Jones in a draft to Jonathan Davis on Savannah, which was received by Eawls and credited on the fi. fa. at that time. Eawls then agreed to collect $2,000 00 out of each of the other defendants, and to look to complainant only for what might then remain due, which it was estimated would be from three to five thousand dollars. The parties present at this transaction were: Eawls, Davis, Jones, G. W. Collier, Tinsley, witness and, he thinks, Thomas Collier.</p> <p>The evidence in the case here closed, and the jury having returned a verdict for complainant, counsel for defendants moved for a new trial on the following grounds:</p> <p>1st. Because the Court erred in admitting the transcript of the execution docket of Pulaski county, of certain fi. fas., with copies of entries purporting to have been made by the sheriff — the Clerk having certified that the originals were not on file in his office.</p> <p>2d. Because the Court erred in admitting in evidence the fi. fa. of John Eawls, for the use of the Bank of Hawkins-ville vs. Collier & Braeewell, with the entry of “ no property ” thereon, it appearing from the record that Collier was not served or made a party to said suit, .and was not a citizen of that county when the said entry was made.</p> <p>3d. Because the Court erred in admitting the transcript of the execution docket from Baker county — the objection made being the same as that to the transcript from Pulaski.</p> <p>4th. Because the Court erred in admitting the evidence of Thomas Collier, it being shown that he had a fi. fa. against complainant of a junior date to the Molyneaux fi. fa., and therefore interested in defeating said last named fi. fa,</p> <p>5th. Because the Court erred in allowing Jonathan Davis to testify.</p> <p>6th. Because the Court erred in rejecting the depositions Jonathan Davis offered.</p> <p>7th. Because the jury found against that part of the charge in which the Court told the jury that if Rawls never made any contract to release Collier, then complainant cannot recover. And, again, if the jury believe such a contract was made because Collier induced Rawls to believe that defendants to said jñ. fa. were insolvent and not able to pay it in full, when, in fact, they were solvent, then said contract was void for fraud. And again, that, if the jury believe that Rawls agreed to get one-third of the debt out of Bracewell, another third out of St. George, and leave only one-third for Collier to pay, this would not relieve Collier from liability for the whole debt — such agreement not being binding for want of consideration, that is, if the jury shall further believe that there was no contract to release Collier, based upon the insolvency of the defendants to the fi. fa., or that such contract was fraudulent.</p> <p>8th. Because the Court erred in giving the following charges to the jury:</p> <p>That the answers of defendants upon hearsay, or when they deny any knowledge respecting the allegations of the bill are not evidence to be overcome.</p> <p>That the jury must reconcile all the evidence in the case, so as to let each witness speak the truth, if possible.</p> <p>That the letters of Collier and Davis, and the statements of Col|ier to Hansell and others, are evidence only to prove or disprove the contract set up in the bill, and if the jury believe, after carefully looking into all the evidence, that the contract was made, then the complainant will be entitled to a verdict.</p> <p>That if the jury believe from the evidence, that Rawls agreed with George W. Collier in consideration of the personal labors and services of said Collier to be applied in payment of the one-third part of said fi. fa., the said Collier was to be discharged from all liability on said fi. fa., and the said Collier, in consideration of said contract, did enter upon the performance of that contract, and performed the same by paying $1,000 00 in money and $2,000 00 in a note on Jones, and that said payment was made and accepted in full of Collier’s liability, and in discharge of said contract, then the contract was executed and complainant is entitled to a verdict.</p> <p>That said original contract alleged for Collier to apply the proceeds of his yearly labor until he paid one-third of said fi. fa., when he was to be discharged, was legal and binding upon Rawls, if the jury believe that under it Rawls took the legal possibility of a benefit from the embarrased condition of the parties, or the better to secure his younger mortgages and judgment.</p> <p>That if the jury believe from the evidence, that a contract was made in Albany, in 1842, between Collier, Davis, and Rawls, by which Rawls took and accepted in full satisfaction of Collier’s liability, $2,000 00 in Harrison Jones’ note, with cotton to secure it, then the said fi. fa. is satisfied as to Collier.</p> <p>That if Rawls received and accepted what was paid by Davis, in full of Collier’s liability on the fi. fa., then the same was a good contract and executed, and this is true whether the parties were insolvent or good and though a less sum was paid.</p> <p>That declarations and statements made in ignorance of one’s legal rights do not bind him, and when explained, become worthless; and if Collier wrote the letter and made the statement and admissions under the apprehension that the contract would not protect him, then if you believe the contract has, been proven, the admissions are explained.</p> <p>9th. Because the jury found against the charge of the Court, in substance, as follows:</p> <p>The complainant must prove the allegations in his bill to the satisfaction of the jury.</p> <p>That in order to determine what was the contract between the parties, the jury will look at the evidence as to what was agreed on when it was consummated ; all previous offers, etc., are merged in the final contract. Again, that if the jury believe there was such a contract as stated in the bill, and it was beneficial to Collier and detrimental to Rawls, it is void for want of consideration; and further, that the verdict was against the charge of the Court respecting the credit to be given to the testimony of witnesses where there is a conflict in the evidence.</p> <p>11th. Because the Court erred in refusing to charge the following request of defendant’s counsel: “ In weighing the ci-edit to which a witness is entitled, his connection with the parties, his interest in the suit, the length of time about which he testifies, his manner of testifying, his hesitation and equivocation, the circumstances of his testifying, and all the circumstances are to be taken into the consideration of the jury.”</p> <p>12th. Because the finding was against law, against equity, and against the weight of evidence.</p> <p>The Court overruled the motion for a new trial on all the grounds taken, and counsel for defendant excepted.</p>

Assumpsit, from Sumter County. Tried beftme Judge Allen, at October Term, 1859.

Petition in Chancery, from Webster county. Decided by Judge Kiddoo, September Term, 1859. Joseph Chappell, as trustee for Susan Lingo and her children, filed his petition, alleging that Samuel Hawkins, an attorney of said Court, had in his hands the sum of $3,300 00, which belonged to petitioner’s cestui que trusts, and praying that said money be paid over to him accordingly.

Indictment for Simple Larceny, in Muscogee Superior Court. Tried before Judge Wore ill, at November Term, 1859. The plaintiff in error was indicted and found guilty of simple larceny.

Rule against the Sheriff, from Lee County. Decided by Judge Perkins, March Term, 1860. James W. Wilkinson, being the plaintiff in a ft. fa. against James W. Cross for the principal sum of $285 86, moved a rule against William C. Gill, sheriff of said county, calling on him to show cause why he should not pay over on said ft. fa. the sum of $180 00, being a balance in his hands after satisfying other ft. fas. which brought the fund in Court.

<p>Assumpsit, in Muscogee Superior Court. Decision by Judge Worrill, at November Term, 1859.</p> <p>Tommy sued Hull on a promissory note for $3,300 00, to which suit Hull entered an appearance and informed his counsel of his defense to said action.</p> <p>At the common law trial, plaintiff had a verdict for the amount of the note with interest and cost. Hull appealed and the cause coming up for trial, no counsel appeared or was present, for Hull, and counsel for plaintiff submitted his note to the jury, and claimed damages for a frivolous appeal. The jury, under the charge of the Court, found for the plaintiff the sum of $3,300 00, principal with interest and cost, and twenty per cent, on the principal sum as damages for a frivolous appeal.</p> <p>Defendant, afterwards and during the same term of the Court, moved to set aside the verdict, and for a new trial, on the grounds that he had employed counsel who were absent at the time the case was called on the appeal, but which absence was without his consent or fault; that he had informed his counsel of his defense, and relied entirely upon them to conduct it, and to attend to the case; and, further, that plaintiff had found no special damage sustained by reason of said appeal, etc.</p> <p>R. J. Moses, of the firm of Moses & Lawes, made affidavit that his firm had been employed by Mr. Hull to appear and defend said action; that they were advised of Mr. Hull’s defense and thought it good, to the extent of two or three hundred dollars. Don’t remember how, or under what circumstances the verdict at common law was rendered; advised an appeal. If present when the case was called on the appeal, did not hear it. Was probably absent, as it is impossible for an attorney during the five or six weeks that the Court usually sits in Muscogee county, to be present all the time, without a great neglect and sacrifice of other business and interests.</p> <p>The Court, after argument, refused the motion to open and set aside the verdict and judgment, and counsel for defendant excepted.</p>

In Equity, from Baker Superior Court, decision by Judge Allen, at November Term, 1859.

Debt, in Quitman Superior Court. Decision by Judge Perkins, at December Term, 1859. Morgan sued Algernon S. and Howell T. Ely, for causing him to be arrested on a bail process after he had taken the insolvent debtor’s oath, they having had notice of his application to take said oath, and their debt being in existence at that time.

<p>1. Where a bill-holder sues the assignee of a bank upon its notes, and no plea of non est factum is filed, the plaintiff need not prove the execution of the bills.</p> <p>2. The Chattahoochee Railroad & Banking Company made an assign ment, in 1841, to Van Leonard, W. P. Tonge, and John Bethune, of its effects, to collect and pay its debts. There is no evidence that Van Leonard ever accepted the trust. There is proof that the other two did. In December, 1843, the Legislature passed an Act, in which it is recited that an assignment had been made by said Railroad & Banking Company, to John Bethune, and confirming and making valid said as. signment for all purposes, both in law and equity ; and declaring that said assignee might sue and be sued in his said character of assignee for any demand due to and from said banking institution. Held, That said Act is constitutional and valid, and that the subsequent renunciation by John Bethune, in December, 1844, of this legislative ratification of his appointment by the Bank, does not discharge him from liability.</p> <p>3. Where a common law remedy is given to enforce an equitable right, to which the Statute of Limitations cannot be pleaded, it cannot be pleaded to the proceeding at law.</p>

<p>Ejectment and Motion to make parties, in Randolph Superior Court. Tried before Judge Perkins, at May, Term, 1860.</p> <p>A suit was brought by defendants in error, against Jeremiah H. Allen, as administrator on the estate of J. J. Allen, deceased, for the recovery of a certain lot of land. Pending this suit, the administrator, Allen, died. His death having been suggested of record, and scire facias having issued and been served on George W. Hay, as administrator de bonis non of J. J. Allen, deceased, to show cause why he should not be made a party defendant as such administrator de bonis non. The said Hayes came before the Court, at said May Term, and objected to being made a party defendant, on the following grounds, viz:</p> <p>Because the lot of land, the subject of dispute, is not the property of him, the said Hay, as administrator, de bonis non, of the estate of said J. J. Allen, deceased, but that said land had been sold and regularly disposed of, and fully administered upon by the former administrator of J. J. Allen, deceased.</p> <p>The Court overruled the objection, ordered said Hay, administrator, de bonis non, to be made a party defendant, and counsel for defendant excepted.</p>

In Equity, from Clay county. Decided by Judge Kiddoo, at Chambers, .........day of........., 1859.

In Equity, in Twiggs Superior Court. Tried before Judge Lamar, at September Term, 1859.

Case, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1859. This was an action brought by Joel E. Hurt, for the use of Alexander H. Sheffard, against the Union Dray Company, to recover the value of about 35 bales of cotton, alleged to have been received by defendant as common carriers, and which cotton was burnt and destroyed after it came into defendant’s possession.

<p>Complaint, in Dougherty Superior Court. Tried before Judge Allen, at June Term, 1859. ^</p> <p>Mr. Justice Lumpkin gives a full statement of the facts of this case, in the opinion of the Court, delivered by him.</p>

Assumpsit, in Sumter Superior Court. Decided by Judge Allen, at October Term, 1859. Webster & Palmes sued John V. Price on a guaranty. On the trial, plaintiffs read the guaranty in evidence, which is as follows: “Oglethorpe, January 22d, 1853. “Messrs. Webster & Palmes: Gents — The objects of this letter is to say to you that one Mr. Thomas M. Allen, a relative of mine, has taken an interest with Mr. F. M. Davis, of this place.

In Equity, in Sumter Superior Court. Decision by Judge Allen, at October Term, 1859. Held: etc. It is further alleged, that said Way & Taylor are pressing their said suits now in the appeal in Sumter Superior Court, and that Way & Taylor are insolvent, etc. The prayer of the bill was for an injunction to restrain said common law action, etc. This bill was presented to the Chancellor for his sanction at the October Term,…

Caveat to Will, in Early Superior Court. Tried before Judge Allen, at April Term, 1860. Ewell Webb filed his caveat to the will of Mark Sanders, on the following grounds : 1. Because said testator did not sign said paper in the presence of all said witnesses, nor either of them. 2d. Because he did not sign said paper purporting to be a will. 3d. Because the witnesses did not sign said paper in presence of each other. 4th.

<p>C. gives his note to A., in consideration that he is to receive two-thirds of the professional profits of the medical firm of H. & C. H. collects one-half instead of one-third of the profits, and appropriates it to his own use. H. sues C. upon the note : Held, That, at law, it was competent for C. to plead as a defense to the note, the excess of profits received by H., and have the same applied as a credit upon the note.</p>

Decided by Judge Perkins, at November Term, 1859. Jacob Johnson filed a bill in equity against Moses H. Baldwin, alleging that said Baldwin had previously sold to one Sikes a lot of land, taking his notes for the purchase-money, which notes Baldwin had transferred for value; that complainant had purchased said lot from Sikes and paid him for it, and that Baldwin had recently commenced his action of ejectment to recover said land, etc. When the case was called for trial,…

Action on Sheriff’s Bond, in Muscogee Superior Court. Tried before Judge Worrill, at May Term, 1859. The defendants in error brought suit on the bond of Seymour R. Bonner, deceased, late Sheriff of Muscogee county, against Alexander J. Robinson, his administrator, and the administrators of the securities to said bond; alleging that Bonner had collected money on a fi. fa. in favor of said defendants in error against Thomas Moore and had failed to account for it.

<p>Debt, in Bibb Superior Court. Tried before Judge Lamar, at May Term, 1860.</p> <p>The plaintiff in error brought an action of debt against the defendants on the bond of a former Sheriff, Davis J. Davis, to recover an amount of money claimed to be due the estate of Henry Gr. Eoss, the former Clerk of the Superior Court of said county, on account.of his costs, collected and retained by said Davis, Sheriff, in his lifetime, on fi.fas. and other processes placed in his hands for collection.</p> <p>On the trial of the cause, counsel for the parties agreed to submit to the Court, for decision, the following questions : In a suit by the administrator of the late Clerk vs. the administrator of the late sheriff, and his securities for costs of Clerk, collected by the sheriff on various fi. fas. alleged to have been placed in the hands of the sheriff, is the regular execution docket of Bibb Superior Court and the entries thereon, which docket and the entries are kept either in the hand-writing of the Clerk or his deputy — evidence to show prima faeie the amount of costs due the Clerk on cost fi.fas., and that ihefi.fas. were delivered to the Sheriff?</p> <p>If the usual proof is made by the Clerk, that the dockets are correctly kept, etc., as in case of merchants’ books, are the dockets then prima facie evidence to charge the sheriff as above ?”</p> <p>After considering the above propositions, the Court decided against each of them, “ holding that the docket was not evidence, either as record or as private books, and that the same be excluded as such evidence.” To which counsel for plaintiff excepted, and assigned the same as error.</p>

<p>A bill of review will not be sustained when it does not make a case which requires a reversal of the former decree, nor which would authorize a new trial.</p>

Complaint, from Terrell Superior Court. Tried before Judge Perkins, at May Term, 1860. This was an action brought by defendant in error against Moses H. Baldwin, to recover an amount claimed to be due on a promissory note.

Complaint, in Muscogee Superior Court. Tried before Judge Worrill, at May Term, 1859. Sheldens, Morgan and Slason shipped a lot of marble from New York to McCauley, at Columbus, and got one L. J. N. Stark, a commission merchant in New York, to have the same insured to the extent of $1,200 00.

<p>Trover, in Houston Superior Court. Decided by Judge Love, at April Term, 1859.</p> <p>It appears from the record in this case, that the Court below having, at the above named term of said Court, refused to grant a new trial at the instance of the plaintiff in error; his counsel sued out a bill of exceptions, and had the same certified by the Judge on the 4th day of June thereafter, the certificate directing the Clerk to transmit the record of the case “ to the Macon Term of the Second District of the Supreme Court.” Service of the bill of exceptions was acknowledged by counsel for defendant in error, on the 9th day of June, 1859, and the said bill, with the entry of service thereon, was filed in the Clerk’s office two days thereafter, to-wit: June 11th, with instructions to the Clerk to send the record of the case to the Macon January Term, 1860, of the Supreme Court, which was accordingly done. It further appears that the said April Term of Houston Superior Court adjourned on the 6th day of May, 1859.</p> <p>When the case was called in the Supreme Court on the docket of the January Term, 1860, counsel for defendant in error, brought the foregoing facts to the attention of the Court, and moved to dismiss the writ of error on the ground that the bill of exceptions was filed in the Clerk’s office more than fifteen days prior to the June Term, 1859, ana the record of the case should have been brought to that term of the Supreme Court.</p>

Complaint, from Sumter county. Tried before Judge Allen, at April Term, 1860. The plaintiff in error brought this action to recover the sum of $350 00, alleged to be the balance due him on an account for a negro slave sold by plaintiff to defendant.

In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Worrill, at November Term, 1859. This was a bill filed by Hervey M. Cleckley, against John R. Hull and Alexander Sheppard.

In Equity, from Muscogee county. Decision by Judge Worrill, May Term, 1859. This bill was filed by the plaintiffs in error, against the defendants, to enjoin a suit at law, in favor of the Marine Bank against the plaintiffs in error, as endorsers of a certain draft.

<p>Illegality, in Muscogee Superior Court. Decision by Judge ~Worrill, at November Term, 1859.</p> <p>A tax ft. fa. was issued by authority of the Mayor and Counsel of the City of Columbus, directed to the marshal of said city, commanding him of the goods and chattels, lands and tenements of Bass & Cleghorn, of the Perry House, to levy and sell so much as would he sufficient to raise the sum of four hundred and seventeen dollars and fifty cents, being the amount of the corporation and railroad tax assessed against them for the year 1859, execution dated 15th April, 1859.</p> <p>By virtue of said execution, the marshal levied upon city lots Nos. 219, 220, 221, and 222, situated on Bryan and Oglethorpe streets, said lots known as the premises on which the Perry House is situated; also, on lots 227, 228, 229, and 230, on which is situated the Oglethorpe House.</p> <p>To this levy Bass & Cleghorn filed an affidavit of illegality, on the following grounds, to-wit:</p> <p>1st. That a tax is levied for the purpose of paying bonds issued by the Mayor and Council of the City of Columbus for the building of the Mobile & Girard Railroad, and said Council had no authority to levy such a tax according to law.</p> <p>2d. That the Mayor and Council of the City of Columbus have no authority to levy and collect a tax to pay the bonds issued for stock for the purpose of building the Mobile & Girard Railroad, said railroad being without the limits of the State of Georgia, to-wit: in the State of Alabama; and that said tax fi. fas. are for this purpose.</p> <p>3d. That said Mayor and Council of the City of Columbus have no authority to levy and collect a tax for the purpose of paying the bonds of said City Council, issued to the .Montgomery & West Point Railroad Company — the said company being a foreign corporation, and without the limits of said State of Georgia, and without the limits of said City of Columbus; and that said tax fi. fa. is in part for said purpose.</p> <p>4th. That said tax fi. fa. is issued for the purpose of collecting a tax to pay for stock, or bonds issued for stock, in the Mobile & Girard Railroad Company, corporation chartered and wholly existing in the State of Alabama, and that said tax fi. fa. is proceeding for said purpose without the authority of law.</p> <p>5th. That said fi. fa. is illegal in this: That the citizens of the City of Columbus instructed said Mayor and Council to subscribe for stock in the Mobile & Girard Railroad, and in the Montgomery & West Point Railroad, under a contract to be signed and executed by said companies, that they, nor either of them, should ever hereafter, by virtue of any power or authority which said company may obtain from either the Mayor and Council of the City of Columbus or the Legislature of the State of Georgia, ever to extend the track of said road beyond a certain point, or in any manner connect the track of said road within the corporate limits of said city, which was signed and executed before said subscriptions were made by said companies, and that said companies have violated said contract and agreement, by proceeding to connect said railroad, to the great and irreparable injury of affiants, without their consent, and against their protest — -thus compelling affiants to pay money which brings certain ruin upon their property — contrary to law and contrary to said contract.</p> <p>6th. That saidjft. fa. is proceeding illegally in this: That in the year 1857, affiants paid this railroad tax, which, in the year 1858, the Supreme Court declared illegally collected ; and affiants repeatedly, during the year 1858, both before and after said decision, offered and tendered the amount of taxes legally assessed against them, if said Mayor and Council would deduct the amount illegally collected of them in the year 1857, which said Mayor and Council refused to do.</p> <p>7th. That said tax fi. fa. is proceeding illegally in this: That said fi. fa. is based upon an Act of the Legislature of Georgia, assented to on the 11th day of December, 1858, entitled “ An Act to make valid and binding the subscriptions heretofore made by the Mayor and Council of the City of Columbus to certain railroad companies;” which affiants are advised and believe to be unconstitutional and void.</p> <p>9th. That said tax fi. fa. is proceeding illegally in this: That the subscriptions of stock in the Mobile & Girard Railroad and in the Montgomery & West Point Railroad Companies, which said fi. fa. is levied to pay, was made under solemn covenant and agreement which have been violated; therefore said subscriptions are not binding upon the tax payee — so affiants are advised and believe.</p> <p>10th. That said tax fi. fa. is proceeding illegally in this: That said Mayor and Council are indebted, and were from the last of the year 1857, to affiants a large sum of money, illegally collected for that year on railroad tax for the Mobile & Girard Eaih’oad which said Mayor and Council refused to allow as an offset to affiants, affiants offering to pay the balance at least twelve months previous to the issuing of said tax.</p> <p>After argument, it appearing to the Court that the grounds stated in said affidavits of illegality are insufficient: It is therefore ordered that said fi. fas. do proceed.</p> <p>To which decision counsel for Bass & Cleghorn excepted, and assigned the same as error.</p>

<p>Indictment for Shooting, in Quitman Superior Court. Tried before Judge Perkins, at May Adjourned Term, 1859.</p> <p>The plaintiff in error was indicted and put on trial for shooting at one Richard Gay with a pistol.</p> <p>The first panel of jurors, consisting of forty-eight, having been exhausted before the jury to try the case was made up, it was agreed that twenty-four more tales jurors should be summoned, which was done. The Court announced in the hearing of these last, that prejudice or bias for or against the accused, as used in the statute, meant prejudice or bias in the particular case before the Court.</p> <p>Whilst selecting the jury, C. McKinney, one of the tales jurors, being called, in answer to the questions prescribed by statute, stated, that he had been acquainted with prisoner about twenty-five years, and that he had a prejudice against his conduct; but being restricted by the Court to a direct answer of the questions propounded, was pronounced competent and put upon the prisoner. He was then referred to triors, and proved the statement made as aforesaid; and the Court held the juror competent.</p> <p>Another juror, Harrison, answering, in effect, the same way, was also declared competent.</p> <p>A jury having been empannelled, the only evidence developed in the case was that of Richard Gay, who testified as follows:</p> <p>Witness went to the Court ground on the first Saturday in May, where he had business; when he got there, the defendant and a man named Ussory were in the piazza talking; some one asked him what he was going to do with the measures, and he said he was going to have them ironed, and then walked into the Court room; in a few minutes, walked out and had a settlement with Wilkins; was not there exceeding half an hour; Court adjourned; the defendant was missing; no one knew where he had gone; witness started on to the shop, and was attacked by a dog that rushed out of the bushes at witness; after fighting him awhile, the dog went back the way he came; witness walked on a piece, and was either hailed, or whether it was setting on the dog, witness did not know; it was behind him; then thought it was some one hailing him; since thought it was setting on the dog; witness turned on the right, and as he turned half around, the prisoner was standing in the road bare-headed, with a pistol presented, and fired it; witness was doing nothing to the prisoner; did not know he was there; prisoner fired at witness, as he thought; it was in this county; thought at the time it was about forty yards; that would cover the .distance; was going to James Cole’s shop; prisoner raised the pistol again, and he knew it was a repeater; he tried it as much as twice; but if the cap bursted or the hammer fell, he did not know it; continued to set the dog on witness; walked off about fifteen steps before he looked around; when he looked around he was advancing with the pistol in front of him; the dog had stopped; walked then; when he looked around, prisoner and dog both had stopped; bushes intervened; thought he would go to Cole’s and get a gun and come back and make himself even with him; Cole had no gun ; Shirley had one but no shot; then determined to go and take a warrant for him, which he did. This is about what transpired.</p> <p>The jury returned a verdict, finding the “prisoner guilty of the charge as stated in the bill of indictment.”</p> <p>Council for defendant moved for a new trial on the following grounds:</p> <p>1st. Because the Court erred in announcing to the second panel of twenty-four jurors, that prejudice, as used in the statute, meant prejudice or bias for or against the accused in the particular case then before the Court.</p> <p>2d. That the Court erred in declaring the jurors, McKinney and Harrison, competent to try the case.</p> <p>3d. That the Court erred in refusing to charge the jury, as requested: “That they were the judges of the law and facts, and were bound under their oaths as jurors in this case, to decide the law according to their own opinion of the law, although they may differ with the Court in its charge to them as to the law.”</p> <p>4th. That the Court erred in refusing to charge the jury as requested by prisoner’s counsel: “ That if the jury believe from the testimony that the accused was guilty of the assault with intent to murder, he is not guilty, under the law, of shooting at another person, and is entitled to a verdict of acquittal.”</p> <p>5th. That the Court erred in refusing to charge as requested : “That if the jury believe from the evidence that prisoner did shoot off a pistol at Richard Gay, still, they cannot find the prisoner guilty of the offense with which he stood charged unless the State went further and proved that the pistol was loaded with powder and ball, or powder and shot, or with ball and shot.”</p> <p>6th. Because the Court refused to charge the construction the Supreme Court had put upon the Act of 1856, in the case of Allen vs. The State, in 28 Ga. Rep., p. 473, as the law governing and controlling this case — counsel for defendant having handed the case to the Court with the request so to charge.</p> <p>7th. That the verdict was without sufficient evidence to support it, and contrary to law and the evidence.</p> <p>The Court refused the motion for a new trial, and counsel for defendant excepted.</p>

New Trial, from Decatur county. Tried before Judge Allen, October Term, 1859. Held: belonging to defendant, and accordingly paid it over to plaintiff, amounting (to the best of witness’ recollection) to between four and five hundred dollars.

Assumpsit, in Muscogee Superior Court. Decided by Judge Worrill, at May Term, 1859. Chamberlain & Bancroft sued the firm of Stone & Johnson on a note, putting in their declaration a count also for goods sold and delivered.

Trespass, from Dougherty Superior Court. Tried before Judge Allen, at June Term, 1860. This was an action brought by John Love against Joab Gilliam and Thomas Berry, for trespass upon the person and property of plaintiff.

Case, in Bibb Superior Court. Tried before Judge Lamar, at May Term, 1860. This was an action bought by Joseph Hertzfield against the executor of Dermad Dempsey, deceased, to recover damages for failure to repair a certain store house, rented by plaintiff from said Dempsey, as had been agreed on, whereby loss accrued to the plaintiff by injury to his stock of goods from rains, etc. It was alleged that the store was rented for a dry-goods store.

Indictment for Larceny, in Mitchell county. Tried before Judge Allen, May Term, 1860. The plaintiff in error was indicted for larceny. On the trial, Counsel for defendant in the Court below, moved to quash the indictment on the ground that there was but one count therein, and that it alleged three distinct offenses. The Court overruled the motion, and counsel for defendant excepted.

Ejectment, in Marion Superior Court. Tried before Judge Worrill, at March Term, 1860. This was an action of ejectment brought by Doe, ex dem. William A. Pierce, against Roe, casual ejector, and Catherine Tidd, tenant in possession, for the recovery of lot of land number 259, situated in the fourth district of Marion county. Upon the trial, plaintiff offered and read in evidence, a grant from the State of Georgia to William A..

Complaint, in Bibb Superior Court. Tried before Judge Worrill, at November Term, 1859. This was an action brought by John A. Sutton, against plaintiffs in error, to recover the amount claimed to be due on a promissory note for the principal sum of $1,000 00.

Rule against Sheriff, from Taylor county. Decided by Judge WORRlLli, October Term, 1859. This was a rule against the sheriff on a fi. fa. for principal sum of $162 38, besides interest and costs, in favor of William M. Brown, plaintiff, vs. John A. Moss, defendant.

In Equity, in Bibb Superior Court. Decided by Judge Lamar, at May Term, 1859. Isaac Winship individually, and the firm of Isaac Win-ship & Son, filed their bill against Eliza J. Scott and William B. Scott in Bibb Superior Court.

Complaint, in Talbot Superior Court. Tried before Judge Worrill, at September Term, 1859. This was an action of complaint, under the form of the Act of 1847, brought by Terrell Barksdale against Francis T. Weathers, for the recovery of seven negro slaves, Sylvia and her six children.

<p>Case, from Harris county. Tried before Judge Worrill, October Term, 1858.</p> <p>This action was brought by Henry Wood against Elijah Cook, to recover damages of the latter for criminal conversation had with plaintiff's wife. The defendant plead the general issue ; and also, that for years previous to the institution of the suit, plaintiff’s wife was a person of loose habits, notorious bad character, and a common prostitute.</p> <p>On the trial, the plaintiff proved by one Ransome Wood, the guilt of defendant as alleged.</p> <p>The defendant, on his part, proved by John Moore, that one Tomlinson had intercourse with plaintiff’s wife in 1855, and that he witnessed the act. By Joseph Dent, that plaintiff once told him that he believed Edward Nance had had intercourse with his wife. The witness also stated that he once heard Wood abuse his wife and call her a whore, that he was quite angry at that time, and greatly excited.</p> <p>Thomas Moore testified, that as far back as 1855, he had heard plaintiff say he believed Cook kept his wife, or words to that effect; he had also heard him say Cook was the man that had destroyed his peace and ruined his happiness at borne. Dent stated that he knew Mrs. Wood before plaintiff moved to Harris, and that her character was bad. He also stated that plaintiff told him that when he, plaintiff, first went to Harris, he could not borrow five dollars from him, and he thought he was a mean man; but afterwards his wife could get as much money from him (Cook) as she wanted, and he thought he was a very fine man.</p> <p>In rebuttal, it was proved by James Biggers that he had heard things said about" Mrs. Wood both ways, but knew nothing against her. That she ■ was received into good society, and associated with the. best people in the neighborhood. Moore testified that she was a member of the Baptist Church in good standing; that there were reports against her, which had caused him to watch her close, and he had never discovered anything improper in her conduct.</p> <p>When the evidence closed, counsel for defendant asked the Court to charge the jury that, “ it is not always necessary that the husband be proved to have connived at the particular acts of adultery charged, for if he suffers his wife to live as a prostitute, and have criminal intercourse with third persons, he can have no action — it is damnum obsque injuria.” This charge the Court refused to give.</p> <p>The jury found a verdict for plaintiff for $2,000 00, and thereupon counsel for defendant moved for a new trial, on several grounds, of which the above refusal to charge was the chief.</p> <p>The rule was refused, and counsel for defendant excepted.</p>

In Equity, from Talbot county. Decided by Judge WOR-rill, at Chambers, 5th July, 1859.

Trover, in Talbot Superior Court. Tried before Judge Morrill, at March Term, 1860. Held: that if these facts were true, the same amounted to a delivery — whereupon, the defendant excepted and assigned the same for error.

Complaint, in Dougherty Superior Court. Judge Allen, at June Term, 1860. Tried before The plaintiff in error brought his action against defendant on the draft of which the following is a copy : “ $625 00.

<p>Complaint, from Dougherty county. Tried before Judge Allen, June Term, 1859.</p> <p>j The defendants in error brought suit against William B. Cheever on an account for 840 bushels of corn at $1 00 per bushel, and 50 bushels of peas at the same price.</p> <p>On the trial, A. H. Brown, one of the plaintiffs in action, produced a book which he stated, under oath, to be the original book of entries of the plaintiffs; the entry against Cheever was in his (Brown’s) hand-writing, and was made by him from notches on a stick, reported by William Moore as to the loads of corn delivered, and partly from his own knowledge. Moore, the overseer of Cheever, also kept a stick, and the corn was delivered to him. The book was the private memorandum book of witness, and he entered in it this transaction of the firm. He was not present when all the corn was delivered, but made the entry from what was told him. Moore received the corn for Cheever and knows all about the matter of this entry.</p> <p>The book exhibited was a small pocket memorandum book, mutilated by two leaves partially torn out, one of them showing part of an entry. It contains a few scattered entries and memoranda, being for cash paid to one person for goods, to another for board of negroes, etc., time of hiring negro, corn bought of Cheever, etc.; and among them is the account for the corn and peas formally charged to Cheever, this being the only regularly stated aooount in the book.</p> <p>Plaintiffs proved by one Hampton, that he, witness, had had one settlement of a business transaction with A. H. Brown, and found that one correct; could not say plaintiffs kept correct books; did not know they kept books; in the settlement with A. H. Brown, he had no books ; he stated to witness what he said witness owed him “ from his head,” and the settlement was made in that way.</p> <p>There having been a verdict for the plaintiff, a new trial was asked for on the following grounds:</p> <p>1st. The Court erred in admitting the book produced by plaintiffs to the jury.</p> <p>2d and 3d. The verdict was contrary to law and the evidence.</p> <p>4th. The verdict was contrary to the charge of the Court in this: the Court charged the jury, that they would consider, in making, up their verdict, the appearance of the book, and all mutilations and appearances of incorrect entries would affect its credibility.</p> <p>The Court refused a new trial, and counsel for defendant excepted.</p>

In Equity, from Sumter County. Decision by Judge Allen, at August Adjourned Term, 1859.

In Webster Superior Court. Tried before Judge Pebkins, March Term, 1860. This was an action of assumpsit by King against Hawkins, on a promissory note for $450 00, dated 7th January, 1856, payable 25th December thereafter to Sterling Clark or bearer. The note was transferred by Clark to plaintiff for valuable consideration before its maturity.

Case, from Bibb County. Tried before Judge Lamar, November Term, 1859. Rodolphus Lester brought an action on the case to recover of the plaintiff in error damages for a horse alleged to have been run over and killed by the cars of said Company, on the Macon & Western Railroad..

In Equity, in Terrell County. Decision by Judge Perkins, at Chambers, 26th January, 1860.

Motion, etc., from Baker county. Decided by Judge Allen, May Term, 1860.

Assumpsit, in Webster Superior Court. Tried before Judge Perkins, at March Term, 1860.

Fi. Fa., and Issue of Payment, in Terrell Superior Court. Tried before Judge Perkins, at November Adjourned Term, 1859. There was an issue made up in this case to try the question whether the fi. fa. in favor of plaintiff in error against defendants was paid off and discharged or not — the issue being formed at the instance of other creditors of defendants. On the trial, the following transfer of the fi. fa. was put in evidence: “ Noble A. Hardee vs. I Fi.

Garnishment, from Marion Superior Court. Decision by Judge Worrill, September Term, 1859. A summons of garnishment was served on John T. Chambliss, requiring him to answer at March Term, 1859. The garnishee having failed to answer at that Term, the case was continued.

New trial, from Sumter County. Decided by Nudge Allen, at October Term, 1859. The plaintiffs in error brought an action of complaint to recover from defendants a promissory note for $5,350 00, alleged to have been in the possession of the latter, to which the former claimed title by transfer from the payee, James R. Rouse. G. C. Carmichael was the maker of it.

Debt, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1859. This was an action of debt brought by the Governor of the State of Georgia, for the use of Ann Adams, executrix of Patrick Adams, deceased, against William H. Lamar, •Sheriff of Muscogee county, and James H. Bradford and others, the sheriff’s securities on the official bond of said sheriff.

Complaint, in Sumter Superior Court. Tried before Judge Allen, at April Term, 1860. This action was brought by Rowland and Ansley, the defendants in error, ágainst Miles Mountain, to recover the amount claimed to be due on an account. In the progress of the trial, the defendant offered to prove by the attorney of the plaintiff in the action, that a suit for the same cause of action had been commenced prior to the present suit, and was still pending between the same parties.

Motion in Equity, from Terrell Superior Court. Decided by Judge Perkins, May Term, 1860.

<p>In Equity, in Muscogee Superior Court. Decision on demurrer by Judge Worrill, at November Term, 1859.</p> <p>This was a bill filed by Alexander J. Robinson, administrator of Seymour R. Bonner, deceased, against D. B. Thompson & Co.; and the object of the bill was to enjoin the defendants from selling certain real estate in the city of Columbus, under an execution in favor of defendants, founded upon a Mechanic’s Lien as provided by Act of the General Assembly, giving mechanics and others a prior lien on property in certain cases. The bill alleged that Bonner’s estate was insolvent; that complainant had filed a bill against creditors to marshal assets, etc., but being advised, and believing that defendants claim and lien were paramount to all others, and could at all events be satisfied out of the property upon which their lien attached, they were not made parties to said bill,</p> <p>The bill further states that defendants had levied the execution on said property, and claims thereto had been interposed ; and that if said property, under the claims and litigation pending and hanging over it, were exposed to sale, it would be sold at a great sacrifice, and the creditors and estate of Bonner injured and seriously damaged. The bill, therefore, prays that defendants be restrained and enjoined from selling said property under their execution, until the claims hanging over the title may be cleared away, and the claims and rights of all parties thereto adjudicated and determined,</p> <p>To this bill defendants demurred,- and also filed their answers.</p> <p>The Court, after argument, sustained the demurrer, dissolved the injunction, and dismissed the bill. To which decision counsel for complainant excepted.</p>

In Equity, in Macon Superior Court. Decision on motion to make parties, by Judge Lamar, March Term, 1860. Joel F. Rushin et al.¡ as legatees under the will of John Rushin, deceased, filed their bill in equity for discovery, account, distribution, etc., against John C. Rodgers, executor of John Rushin, deceased, and Cicero H. Young and John M. Felton, executor of Shadrach R. Felton, deceased, who, in his lifetime, was also executor of John Rushin, deceased.

Certiorari, in Muscogee Superior Court. Decision by Judge Workill, at May Term, 1860. The plaintiff in error was summoned to appear before the City Council of Columbus for a violation of the City Ordinances under the forty-fourth section. The plaintiff in error was fined the sum of ten dollars.

Motion, in Randolph Superior Court. Decided by Judge Perkins, at May Term, 1860. James E. Duncan, by his counsel, proposed to enter a motion to establish a lost ji. fa. on the motion docket of the Court below. The Clerk objected to entering the case until he was paid the sum of one dollar, claiming that he was entitled to that sum under the rule of the Court.

<p>Complaint, in Dougherty Superior Court. Tried before Judge Allen, at June Term, 1859.</p> <p>The decision of the Court contains a statement of the fact and question in this case.</p>

Certiorari, from Clay county. Decided by Judge Kiddoo, September Term, 1859. Zadock Odom commenced his action against James W. Bennett, on account, for $12 00 in a Justices’ Court. The defendant pleaded the general issue.

<p>Assumpsit, in Muscogee Superior Court. Tried before Judge Wobkill, at May Term, 1860.</p> <p>This was an action of assumpsit by Knapp against Moiese, on acceptances by Moiese of certain drafts drawn on him by Knapp, amounting to about $1,172 21. The writ was returnable May Term, 1859, of Muscogee Superior Court, but upon being filled up, without being filed or entered in the Clerk’s office, service was acknowledged thereon by defendant, with the usual waiver of process and copy declaration and process. This acknowledgment bears date April 30th, 1859. At the succeeding November Term of the Court, by consent of parties, the case was, by order of the Court, transferred to the appeal. At May Term, 1860, the case being called in its order on the appeal docket, defendant moved to dismiss it, on the ground that the writ had never been filed in office or entered upon the record, or appearance docket of the Court. The presiding Judge held that, inasmuch as the cause had at the preceding term, which was the trial term at common law, been, by order of the Court and by consent of parties, transferred to the appeal, it was now too late for defendant to make the objection of want of file, etc., and refused the motion to dismiss, and defendant excepted.</p> <p>Defendant then filed his plea, verified by his oath, that at the time his name was written across the face of the papers, and being the acceptances sued on, “ there was no drawer to the same, nor was the name of the drawer put there in his presence, or by his order; and that said bills were drawn to his order and not endorsed.”</p> <p>To this plea plaintiff demurred. The Court below sustained the demurrer, and defendant excepted.</p>

Case, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1858. Seaborn Jones sued the Water Lot Company for damages, alleging, that defendant had built a dam on the Chattahoochee river, which backed the water upon plaintiff’s mill and lands situated higher up said river, by reason whereof, the mill of plaintiff was obstructed and his land injured.

In Equity, from Stewart County. Decided by Judge Perkins, October Term, 1859. The plaintiff in error having been sued at common law as endorser of a promissory note, filed this Bill to enjoin that suit, and to reform the contract of endorsement as written on the note, so as to make it correspond with the' agreement of the parties, which the complaint alleged was, that he was not to be held liable on the endorsement.

Assumpsit, in Decatur Superior Court. Tried before Judge Allen, at May Term, 1859. This was an action of assumpsit brought by Shehee against Gaulden on a promissory not for $2,500 — said note being part of the agreed price or purchase-money of a settlement of land lying on the Chattahoochee River, sold by Shehee to Gaulden.

<p>In Equity, in Muscogee County. Decision by Judge' Worrill, at Chambers, 20th January, 1860.</p> <p>John L. Mustian filed his bill in Muscogee Superior Court, alleging that, he being the owner, and in possession of, lot number 93 in the city of Columbus, sold the same to one Israel E. Brown for seventeen hundred and twenty-five dollars, taking Brown’s note for the purchase-money, and giving him a bond to make titles to the land when said purchase-money should be paid; that Brown entirely failing to pay the note or any part of it, the complainant brought suit on the same in said Superior Court, and at the May Term, 1859, recovered a judgment against said Brown on said note for seventeen hundred and twenty-five dollars principal and one hundred and seventy-one dollars and six cents interest to the date of judgment, with cost of suit; that after the rendition of said judgment, Brown becoming convinced that he could not pay for the lot, proposed to cancel the trade, which proposition complainant accepted, and the contract was rescinded, and complainant’s bond for titles given up to him, and the judgment satisfied as to all but the costs. Complainant rescinded the contract because he ascertained that Brown was insolvent; that shortly after the cancellation of the trade, in the month of October, 1859, complainant took possession of said lot of land, according to, and in pursuance of, the terms upon which said contract was rescinded, and has held possession of the same ever since; that about the first of October, 1859, Francis M. Brooks, then sheriff of said county, levied the fi. fa. issued from the judgment aforesaid, on said lot as the property of said Brown, and advertised the same to be sold at Sheriff’s sale on the first Tuesday in November, 1859; that on the day of sale, complainant, by his attorney, enquired of John Ligón, who was then acting as deputy sheriff, (the principal sheriff being confined at home by sickness) if the said lot so levied on and advertised as aforesaid would be sold, and was informed by the said Ligón that the property would not be sold in consequence of the illness of said Brooks, the principal sheriff; that the enquiry was made for the sole purpose of giving the sheriff instructions not to sell said land under said ji. fa., because the contract between Brown and complainant had been rescinded, and the ji.fa. satisfied as aforesaid, and that complainant had possession of said land; that one G. J. Lloyd, who had been recently temporarily sworn as deputy sheriff, and of whose qualifications as such deputy sheriff complainant at the time óf sale was wholly ignorant, put up and exposed said lot to sale in the absence of said Brooks, and Ligón and complainant, and in the absence of the ji.fa., and without any evidence of the existence of the same except the newspaper advertisement of the sale; that complainant knowing that the ji.fa. was settled, and being informed as aforesaid that the lot would not be sold on that day, did not attend the sale, and did not file in the Clerk’s office any deed to said Brown for the lot, and said lot was therefore sold and bid off by R. J. Moses, Esq., for the nominal price or sum of one hundred dollars, said Moses, as complainant is informed and believes, announcing at the time of sale and before any bid was made for the land, that he either had a mortgage on said land or represented a mortgage claim, on the same, and being the only bidder, and making but one bid, bought said land for thé price aforesaid of one hundred dollars, when the same was then worth two thousand dollars; that no mortgage was exhibited, and if any existed, complainant had no knowledge of the same whatever, and that the land sold for the nominal sum aforesaid in consequence of the representations of said Moses, that there was a mortgage lien or incumbrance on the land; that, as complainant is informed, the said R. J. Moses has transferred his bid aforesaid to Seaborn Jones, and that the said sheriff, Brooks, has executed a sheriff’s deed, conveying to the said Jones all the interest of Brown in said land, which interest complainant avers was nothing, as said Brown never had any title to the land, and had never paid a dollar of the purchase-money; that in the face of all the facts aforesaid, the said Jones is pressing the said Brooks to put him in possession of said land, which the sheriff has notified complainant he will do, and which he will do unless enjoined by a Court of Equity.</p> <p>The prayer of the bill is, that the said Seaborn Jones and E. M. Brooks may answer the charge of the bill, and that the pretended sheriff’s sale may be set aside, and the sheriff’s deed made by Brooks to Jones under the transfer of the bid of Moses may be delivered and cancelled; and for. general relief.</p> <p>The complainant offers in his bill to refund the hundred dollars bid by Moses for the premises, etc.</p> <p>Defendants answered the bill and moved that the injunction be dissolved, on the grounds, that the equity of the bill was fully sworn off by the answer, and that there was no equity in said bill.</p> <p>The Court, after argument, ordered the injunction to be dissolved, on the ground, that complainant had an adequate common law remedy.</p> <p>To which decision counsel for plaintiff excepted.</p>

<p>In Equity from Sumter Superior Court. Tried before-Judge Allen, April Adjourned Term, 1859.</p> <p>James Butler, as trustee for his wife, Mary Butler, filed his bill in equity against Timothy Renew, for discovery and account.</p> <p>He alleges, that in the year 1836, he and his wife being in possession of a certain parcel of land in said county, the defendant, Renew, the brother of said Mary Butler, executed to him in trust for his wife during her life, remainder to her children at her death, a deed of gift for the said parcel of land, and which was duly recorded; that although the deed was in form a gift, yet the said Renew received from complainant a full valuable consideration therefor.</p> <p>It is further alleged, that the said complainant and wife being about to remove to Baker county, deposited said deed of'gift with said Renew, and put him in possession of said land as their agent to take care of, rent out, etc., for them ; that there were some thirty acres of the land then in a high state of cultivation; there were good improvements on the place, and the whole were worth $500 00.</p> <p>The bill charges, that said Renew failed to account for the rents, issues and profits thereof, and denies title in complainant, and prays for a discovery and account concerning his actings and doings in the premises.</p> <p>The answer of defendant admitted the facts stated in the bill in relation to the deed of gift, and the moving of complainants to Baker county; also, that defendant had been requested to rent out the land for complainants, and that he had done so and accounted to said Butler for said rent. He denies that he was appointed as complainant’s agent to look after the said laud; admits the premises to have been worth some three or four hundred dollars.</p> <p>It is further stated, that in 1843, the premises were levied on by virtue of a fi. fa. against James Butler, when the latter tried to get him, defendant, to claim the same as his own property, which defendant refused to do — the same being in fact the property of said James Butler, he having paid for it with his own means; that afterwards the land was sold by the sheriff at public sale and was bid off by William Mims, to whom the sheriff executed a deed therefor, and that he, defendant, afterwards, in the same year, in good faith purchased the same from said Mims, receiving a deed therefor, under which he has claimed the land ever since in his own right; that said James Butler had notice thereof, made no objection, and ceased thereafter to claim or receive rent. Defendant did say, on several occasions, that he had purchased the land with the view of letting Mrs. Butler, who was his sister, have it back, as an act of brotherly kindness and favor, and would have done so if application for it had been made in a reasonable time.</p> <p>On the trial, the complainant made proof of the value of the land and improvements, which corresponded with the statements in the bill; also, that the cleared part of the land, being in 1843 some fifteen or twenty acres, was worth about $125 00 per acre.</p> <p>Complainant here rested his case — the deed of gift having been previously put in evidence.</p> <p>The defendant then read in evidence the deed from the sheriff to William Mims, dated 4th day of April, 1843, duly recorded; also, the deed from Mims to defendant, Renew, dated 31st day of October, 1843, recorded in 1834.</p> <p>Defendant then introduced Green M. Wheeler, who .testified : That he levied on and sold said land to William Mims, as sheriff, as stated in the answer of defendant; that Mims bid off the land at $25 00, and not $75 00, as erroneously stated in the deed to Mims; that at the time he executed said deed he heard Mims say, he, Mims, could make a speculation off the land, but would not, as he had promised defendant, Renew, to let him have the place, or that he would buy if for him; defendant was not then present; Mims also told witness at the sale, he had bid off the property for defendant, which was after the sale.</p> <p>Defendant also introduced William Thomas, who testified : That complainant and wife came to defendant’s house after their removal, and received the rent of the premises; that complainants never came or applied for the rent of said land after said sheriff sale, that he knew of; complainants moved from Baker countjr out of the State in 1855-6 or ’7, not certain when; that James Butler came regularly every year till Christmas, 1843, and received the rents, but did not come after that year; did not know of Renew giving any notice to Butler and wife of his claiming the property after the sale.</p> <p>The jury found for complainants the premises in dispute and $200 00 mesne profits.</p> <p>Thereupon, the defendant moved for a new trial on a number of grounds. The Court overruled the motion, and counsel for defendant excepted.</p> <p>The only ground considered by this Court was the one, that the verdict was contrary to law and evidence — the other grounds not being properly certified.</p>

Claim, from Dougherty county. Tried before Judge Allen, at December Term, 1859, Dougherty Superior Court. A fi.fa. in favor of William A. Lewis against Abraham A. Danforth was levied on two negroes named Titus and Biddy. Danforth, as agent for Robert C. Black, trustee of Danforth’s wife, claimed that the property belonged to Mrs. Danforth — the claim being made April 28th 1858.

Ejectment, from Dougherty county. Tried before Judge Allen, June Term, 1859. The heirs of John Sikes, deceased, being legatees under his will, brought their action of ejectment against the defendant in error, to recover a certain lot of land.

<p>Motion to dismiss appeal, in Dougherty Superior Court. Decided by Judge Allen, at June Term, 1860.</p> <p>Turpin & Volker brought an action against Henry A. Scott, as the trustee of his wife, Virginia A. Scott, to recover $121,99 alleged to be due them by account.</p> <p>At the December Term, 1859, a verdict was rendered in favor of the plaintiffs for the amount sued for, from which judgment Henry A. Scott entered an appeal, by affidavit, in which he states: “ That he is unable to pay costs and give security as now required by law, in cases of appeal; that he is advised, and believes, that he has good cause of appeal, and that owing to his poverty, he is unable to pay the cost and give security, as required by law.”</p> <p>At the June Term, 1860, counsel for the plaintiffs moved to dismiss the appeal on the ground, that the affidavit did not show, that Scott’s inability to pay cost and give security to enter the appeal was owing to the poverty of the trust estate in his hands, which the plaintiffs were seeking to make subject to the payment of their claim.</p> <p>The presiding Judge sustained the motion and dismissed the appeal, and that decision is the error complained of.</p>

<p>A ne exeat will be dissolved when there is other relief more appropriate to the case.</p>

Attachment, from Dooly Superior Court. Tried before Judge Lamar, October Term, 1859. Ashley B. Hamilton instituted his suit by attachment against the plaintiff in error, Williams, to recover the amount due upon a promissory note given by the latter for $150 00, on the 2d day of November, 1857.

Ejectment, from Calhoun Superior Court. Tried before-Judge Allen, at November Adjourned Term, 1859. The defendant in error brought his action against plaintiff in error to recover lot of land number 227, in the 4th district of originally Early county. On the trial, plaintiff in the Court below introduced the following evidence: William R. Hatcher testified: That he was acquainted with said lot; had known it about five years; M. A. Hays was living on it.

<p>Demurrer in Equity, from Scliley county. Decision by Judge Wokrill, October Term, 1860.</p> <p>The defendant in error, Burton A. Congleton, filed this bill to recover of the executor of Jesse Cherry, deceased, part of a residuary legacy claimed to be due John Choice, one of the legatees under the will of’deceased, and which the said Choice had assigned to the said Burton A. Congleton for value.</p> <p>It appears by the bill, that there were six legatees named in said will; among them the said John Choice and Naomi Lilly; but it is alleged that there were really only five legatees entitled to take under said will — the said Naomi Lilly having died without issue before the death of, and unknown to the testator. It is further alleged that there was due said John Choice, who resides in the State of Alabama, on the first day of January, 1853, by said executor, as the one-fifth part of said residuum, the sum of three thousand dollars or other large sum with interest thereon, except two thousand dollars paid him by the executor in 1845, which, however, did not include any part of the share left to Naomi Lilly; that at that time it was not known to either said Choice or said Springer, that said Naomi Lilly had not survived said testator.</p> <p>The bill charges that the executor, in order to defeat the collection of the share which would have gone to the said Naomi Lilly, procured Samuel Crawford, of Marion county, to take out letters of administration on the estate of said Naomi, deceased, and paid over to him as such, the sum of two thousand dollars or other large sum of said estate, and which payment was illegal and void. Prayer for ne exeat, on the ground that said Springer, executor, was threatening and preparing to remove out of the State.</p> <p>The defendants demurred to the bill on the grounds following :</p> <p>1st. There is no equity in said bill.</p> <p>2d. The complainants cannot maintain said bill, because the same is illegal and champertous, as appears from said bill.</p> <p>3rd. Because said complainants are entitled to no share or part of the interest devised to Naomi Lilly under the will of Jesse Cherry, deceased.</p> <p>The Court overruled the demurrer, and counsel for defendants excepted.</p>

<p>In Equity, from Sumter Superior Court. Decision..by Judge Allen, on 19th April, 1860.</p> <p>Charles J. Malone and Joseph W. Rowland, filed a'bill/in equity, against John W. Wooding, in which it is alleged: That pursuant to a contract between Malone and one Richard Brinn of the one part, and William M. Meadows, Moses B. Meadows, and M. L. Gardner of the other part, Malone and Brinn constructed and finished a certain building in the city of Americus on Lamar street, furnishing the materials therefor, in consideration of which Gardner and the Meadowses were to, and did execute to Malone and Brinn titles to the upper story of the building, and also to one half of the building lying nearest the public square of said city; that Malone and Brinn entered into the possession and enjoyment of the building according to the agreement, and so ref mained until interrupted by the defendant Wooding.</p> <p>The bill also alleges, that Wooding obtained Malone’s per-? mission to put some carriages and buggies in the buildings pending a negotiation between them for a sale to Wooding of the interest of Malone and Brinn in.the buildings, and that since that time he has kept possession of the premises, and has changed the structure of the house, and pretends that he has purchased the same from Malone, which is untrue.</p> <p>The bill also alleges, that there is a mistake in one of the deeds made to Malone and Brinn. and that -they have commenced an action of ejectment against Wooding .for the premises, and for mesne profits.</p> <p>The bill prays a reformation of the deed, and that Wooding may be enjoined from using or changing the buildings.</p> <p>Wooding filed his answer, setting up an absolute sale of the building by Malone to him, with Brinn’s consent; and that Rowland bought Brinn’s interest with a full knowledge of all the facts and of Wooding’s purchase. The answer denies every fact and circumstance on which the equity of the bill is based, and shows that the business of Wooding would greatly suffer by the continuance of the injunction.</p> <p>Upon the coming in of the answer, a motion was made to dissolve the injunction because the answer abnegated the equity of the bill.</p> <p>Upon the hearing, the presiding Judge not only refused the motion to dissolve the injunction, but also appointed a receiver to take possession of the buildings and rent them out pending the litigation.</p> <p>This decision is complained of as error.</p>

Complaint, in Lee Superior Court. Tried before Judge Perkins, at March Term, 1860. Eobert L. McDaniel, as administrator of Jacob Shiver, deceased, instituted suit in Lee Superior Court, against Jesse W. Hooks and Hardy Hooks, to recover the sum of a promissory note, signed toy the defendants, and payable to the plaintiff for $371 34.