Volume 31 — Georgia Reports

' In Equity, from Murray Superior Court. Decided by Judge Crook, at the October Term, 1859. Peyton L. Wade instituted two actions of Trover in Murray Superior Court, against Jacob S. P. Powell, for the recovery of divers negro slaves. In one of the actions he was plaintiff in his own right, and in the other he was plaintiff as trustee for Mrs. Sarah A. Powell.

<p>1. A demand once barred by the statute of limitations, and afterwards revived by a new promise, cannot be pleaded, at Law, as a set-off to an action commenced during the existence of the statutory bar.</p> <p>2. The defendant, in an action at Law, cannot plead, as a set-off to plaintiff’s demand, a judgment existing against plaintiff, unless defendant had a legal title to that judgment when the action was commenced, eve'n- though he may then have had an equitable interest in it.</p> <p>3. In either case (above specified,) where there arc peculiar equities between the parties, such as, that the indebtedness of the defendant at Law was created with reference to his demand against the plaintiff, and with the understanding that they should be included in a future settlement; and that plaintiff at Law is insolvent, Equity will relieve the defendant by enjoining the action, at Law, and taking cognizance of the matters in. controversy.</p> <p>SET-OFF IN EQUITY. “Upon the assumption that this plea set forth a demand by the defendant against the plaintiff, it was, in substance, good. The general rule, that in order to authorize a defendant to plead a set-off, his demand against the plaintiff must have been in existence before the bringing of the latter’s suit, is not applicable when there is a valid equitable ground for allowing the defendant to pleaa as a set-off a demand against the plaintiff originating after the commencement of the action. Both insolvency and non-residence have been recognixed by this court as constituting good grounds for equitable set-oif. See Lee v. Lee, 31 Ga. 26; Camp v. Pace, 42 Ga. 161; Harwood v. Andrews, 71 Ga. 784; Livingston v. Marshall, 82 Ga. 281; Barrow ®. Mallory, 89 Ga. 76.” Bibb Land-Lumber Company v. Lima Machine Works, 104 Ga. 118. “In oases of Insolvency, there are peculiar equities which will be seized upon and enforced.” Harwood v. Andrews, 71 Ga. 786.</p> <p>“The right of a court of equity in this State to take jurisdiction to enforce a set-off extends to cases where there is an intervening equity not reached by the law, or where the set-off is of an equitable nature. See Civil Code, §3996. Insolvency has been recognized as a distinct eqmitafele ground of set-oil. Lee ■ v. Lee, 31 Ga. 26; Moody Ellerbie, 36 Ga. 666; Tommey v. Ellis, 41 Ga. 260; Camp u. Pace, 42 Ga. 161; Melson v. Dickson, 63 Ga. 682; Harwood v. Andrews, 71 Ga. 784; Georgia Seed Co. v. Talmadge, 96 Ga. 256 (1); Bell v.* Ober, 111 Ga. 668. In the following cases non-residence is recognized as a sufficient reason for equitable interference, though no direct ruling is made on the subject; Bonaud v. Sorrell, 21 Ga. 108; Barrow v. Mallory, 89 Ga. 76; Giles v. Bank, 102 Ga. 702; Harden v. Lang, 110 Ga. 392; Bell v. Ober, 111 Ga. 668. In Livingston v. Marshall, 82 Ga. 281, it was held that the fact that a party was a non-resident and had no property in this State would authorize a court of equity to decree a set-off in favor of a person against whom the non-resident was seeking to enforce a judgment. In Bibh Land-Lumber Company v. Lima Machine Works, 104 Ga. 116, there is a direct ruling to the effect that non-residence alone constitutes a good ground for equitable set-off.” Hecht v. Snook & Austin Co., 114 6a. 924-5, 926.</p> <p>SET-OFF MUTUAL DEBTS. “Only mutual demands oí the same nature can lie set-off against each other; but the debts need not grow out of the same transaction, nor be the result of mutual dealings, nor have arisen between the same parties. Hence, a transferred chose in action which can be sued on in the name of the assignee may be used as a set-off.” Nix v. Ellis, 118 Ga. 345 (1, 2), 346. As to right of defendant to purchase choses in action and to use the same by way of set-off, see Whittaker v. Pope, 48 Ga. 13; Morrow v. Merchants" Bank, $5 Ga. 267; Civil Code, §3746; Meriwether v. Bird, 9 Ga. 594, 597.</p>

Debt on a Judgment in Troup Superior Court. Tried, before Judge Bull, at the November Term, 1859. William R. Morton instituted an action, in the Inferior Court of Troup county, against James Sharman and Clement B. Sharman, composing a firm using the style of James Sharman & Co., to recover , the amount of a judgment obtained in the Circuit Court of Russell county, Alabama, in favor of the said Morton against the said defendants.

Trover and Bail, in Meriwether Superior Court. Decision by Judge Bum,, at the August Term-, 1859. Edward J. Dawson instituted his action of Trover and Bail against James Callaway, for the recovery of four negro slaves. The action was made returnable to the February Term, 1849, of Meriwether Superior Court. To this action, the defendant filed his pleas' of the general issue, and the Statute of Limitations.

In Equity, in Eulton Superior Court. Decided by Judge Burr, at the October Term, 1859.

In Equity, in Fayette Superior Court. Decision by Judge Bur,!,, on the nth of May, i860.

Assumpsit, in Fulton Superior Court. Tried before Judge Bum,, at the April Term, i860. The Bank of Fulton brought an action in Fulton Superior 'Court against James C. Davis, as drawer and endorser, and Williams, Rhea & Co., as acceptors, to recover the sum due on a bill of exchange, drawn by James C. Davis, addressed to the said Williams, Rhea & Co., and accepted by them.

Debt, in Troup Superior Court. Tried before Judge Buu,, at the May Term, i860. This was an action brought against Mrs. Harriet Lipscomb and her securities, on a bond given by her, as the administratrix of the estate of Mildred Bowling, deceased, to- recover the amount due Thomas J. Bowling, William- D. Bowling,, and Archibald W. Tyre, in right of his wife, Mary M. Tyre, formerly Mdry M. Bowling, as distributees of the estate of the said Mildred Bowling, deceased.

In Equity, in DeKalb Superior Court. Decision by Judge Bum,, at the October Term, 1859.

<p>1 Mistake of Law is a good defence against an action to recover money, under ' a contract of purchase, where there is a full knowledge of all the facts, provided, the mistake be clearly proven, and the plaintiff can not; in good conscience, receive the money sued for.</p> <p>2. This defence is available (the proofs being clear and indisputable,) in an action brought by a Sheriff for the use of a defendant in execution against the first purchaser at a Sheriff’s sale, to recover the difference m amount between the first and second sale, under the Act of the 27th December, 1834. GoWs Digest, 513.</p> <p>ACTION BY SHERIFF — DEFENSE. “That parties have a right to claim the proceeds of the sale at any time before the money is paid out by the sheriff.” With this proposition as applied to money actually in the hands of the sheriff, we have in this case no concern, and must not be understood as dissenting- from it in that sense. We, however, distinguish money in the sheriff’s hands, from money for which he is compelled to sue, and the recovery of which may be resisted on various grounds. An idea' seems to obtain, to a greater or less extent, that nothing more is necessary to insure a recovery under this statute, than to prove a sale by the sheriff with competent authority, and that the defendant made the last or highest bid, and then failed or refused to comply with the bid. In Collier u. Perkerson, at the present term, we have given a different construction to the statute, holding that the Legislature did not intend to make the particular class of contracts embraced in its provisions more sacred than any other — did not intend to deny to the party sued a defense.” Glenn v. Black, 31 Ga. 399.</p> <p>“Where a sheriff sold lands under two fi. fas., and it was bid off by the plaintiffs in one of them, who refused to comply with the terms of the sale, and nothing- was paid on their bid, and the sheriff then levied upon the property by virtue of two older fi. fas. in favor of wholly different plaintiffs against the same defendant, advertised it for sale at the risk of the bidders, and at the sale under this new levy the same bidders purchased the property at a less price, complied with the terms of that sale and took a conveyance from the sheriff, this did not fall within the provisions of §5466 of the Code of 1895, so as to give a. right of action in the name of the sheriff for the use of the defendant against the bidders for the difference between the amounts of the two bids; nor, under the general law, would the action lie.” Barlow v. Toole, MeGarrah & Toudee, 80 Ga. 9, 11.</p> <p>MISTAKE OF LAW AS A DEFENSE. “On the argument here-, counsel for the plaintiff. ill error contended,that a-creditor Is, In equity entitled to be relieved from ‘the consequences' of his voluntary acts, when it appears, as at the case at bar, solely because of a misapprehension, on his part, of the law of the land, he in good faith purgues a line of conduct which, instead of inuring to his benefit, as he expected, by giving him a preference over other creditors of his debtor, has the legal effect of placing them in a more advantageous situation than they would have occupied had he taken the proper steps to subserve hftl interests. In support of this contention the following cases were cited and relied on: Culbreath v. Culbreath, 7 Ga. 64; Wyche v. Greene, 16</p> <p>Ga. 49; Adams .«. Gierard, 29 Ga. 651; Lucas v. Lucas, SO Ga. 191; Collier v. Perkerson, 31 Ga. 117; McCrary v. Austell, 46 Ga. 450; McCallum v. Brandt, 48 Ga. 439; Langston v. Aderhold, 60 Ga. 376; Werner v. Rawson, 89 Ga. 619; Bohler v. Verdery, 92 Ga. 715; DuBignon v. Bruns- . wick, 106 Ga. 317; Woodside v. Lippojd, 113 Ga. 877.' A casual examina- ■ tion of the rulings made in these cases will suffice to show that while this court has constantly recognized that relief against mistakes of law, as well as mistakes of fact, may under certain circumstances be granted by a court of equity, in no instance has this court held that such relief can be granted to á party who, like the plaintiff in error, offers no better excuse for his failure to take proper steps to protect himself than that he-was ignorant as to the law and supposed he would acquire an advantageous position bv voluntarily doing precisely what he ought not to have done in attempting to gain and preserve a preference." Atlanta Trust & Banking Co. v. Nelms, 116 Ga. 923-4.</p>

<p>Possessory Warrant, in Newton Superior Court. Tried before Judge Cabaniss^ at the March Term, i860.</p> <p>The record in this case exhibits the following state of facts, to wit:</p> <p>On the 10th day of February, i860, Richard Roseberry obtained a possessory warrant against Robert Roseberry, to obtain the possession of four negro slaves, to wit: Malissa, a woman, about 24 years old; Nancy, a woman, about 22 years old; Jesse, a boy, about 16 years old; and Esther, a girl, child of Malissa, about 4 years old.</p> <p>On the 14th of February, i860, the case came before J. W. B. Summers, B. F. Carr, and P. Reynolds, Justices of the Inferior Court, for a hearing, when the said Justices passed the following order (Justice Reynolds dissenting), to wit: “On motion of counsel, ordered that the warrant be dismissed, after the testimony had been heard, and argument had.”</p> <p>On the same day that said order was passed, the said Richard Roseberry obtained another possessory warrant against the said Robert Roseberry, to recover the possession of the same negroes.</p> <p>On the 21st of February, i860, the case made by the second warrant came before the same Justices of the Inferior Court for a hearing, when said Justices passed the following order (the said Reynolds again dissenting), to wit:</p> <p>“It is ordered tjy the Court, that the warrant, and proceedings thereunder, be dismissed.”</p> <p>On the said 21st day of February, i860, the said Richard Roseberry obtained a third possessory warrant against the said Robert Roseberry, for the recovery of the possession of the same negroes.</p> <p>On the 29th of February, i860, the case made by the third warrant came up for trial, before P. Reynolds, W. S. Lee, W. B. Perry, and B. F. Carr, Justices of’ the Inferior Court of Newton county.</p> <p>Counsel for the defendant, Robert Roseberry, moved the Court .to dismiss the said third warrant, on the ground that the rights of the parties had been settled and adjudicated upon a former warrant, in the same Court, and between the same parties, and relative to the same subject-matter, and that the plaintiff, Richard Roseberry, was thereby precluded by the said former judgment from further proceedings by possessory warrant.</p> <p>The said Justices overruled the motion, and counsel for the defendant excepted.</p> <p>The plaintiff, Richard Roseberry, introduced .several witnesses, who • testified: That the negroes in dispute had been in possession of the plaintiff for a number of years, one of them for ten or twelve and another for eight years, and the others for several years; that the defendant, who is the son of the plaintiff, lived at the same place with his father; that the negroes were kept on the old man, Richard Roseberry’s place, and worked thereon, and waited on the plaintiff, and seemed to be under his control; that, for these reasons, they thought that the negroes were in possession of the plaintiff; that, although the defendant lived at the same place with his father, and sometimes, and most generally, kept the negroes at work, and superintended and controlled them, the witness thought and supposed, that he was doing so as agent and overseer for his father; that the defendant, a short time after the death of General Williamson, was heard to say that he wanted to be appointed trustee for his father, as the old man would spend and dissipate the property, if he had control of it; that the defendant bought meat, some two' years before the trial, and promised to pay for it when the old man’s cotton was sold, which he did; that, after the plaintiff married, the defendant moved, said negroes away from .the old man’s place to another place, some half a mile distant; the removal occurred some time after the 25th December, 1859-</p> <p>Counsel for defendant, again, moved to dismiss said warrant, on the ground that it was not sustained by the evidence, and that the evidence did not make such a case as would in law authorize a judgment in plaintiff’s favor.</p> <p>The Justices overruled the motion, and counsel for defendant excepted.</p> <p>The defendant then introduced several witnesses, who testified : That in December, 1858, and at other times, and to •different persons, the plaintiff said that he had given up the negroes to defendant, who was to keep them and control them; that, to another, the plaintiff said that he had given the negroes to defendant, that he was to keep-, control and use them, and support the plaintiff; that, to another, the plaintiff said that he had given up all his claim to the negroes to defendant, in consideration that the defendant would support the plaintiff during life; that the defendant used, worked, and controlled said negroes, feeding and clothing them, and paying the physician’s bills for attending the said negroes; that the defendant supported the old man, and paid the expenses of the farm, living with the plaintiff at the time.</p> <p>After hearing the evidence and the argument of counsel in said case, the said Justices (Carr dissenting) gave the following judgment, to wit:</p> <p>“Upon hearing evidence, as to the question -of possession, it is adjudged and ordered by the Court, that the defendant do deliver the possession of the said negroes, mentioned in said warrant, to the plaintiff, and that the said plaintiff do execute his bond with good security in the sum of $6,500, according to the terms of the statute in such case made and provided, and on .his failure so to do, the property to be turned over to the defendant on his giving a like bond.”</p> <p>The defendant, after excepting in writing to all the aforesaid rulings and decisions of the said Justices, applied for and obtained a writ of certiorari, to bring up all of the proceedings of said case before the Superior Court of said county.</p> <p>Upon hearing the said certiorari, his Honor, E. G. Cabaniss, dismissed the certiorari and affirmed the judgment of the said Justices, and the writ of error in this case is brought to review the said judgment dismissing the certiorari.</p>

Assumpsit, in Fulton Superior Court. Tried before Judge Bum,., at the April Term, i860. James A. Collins brought an action of assumpsit in Fulton Superior Court against James Loyd, to recover the sum due on a promissory note given by the defendant, payable to the plaintiff, dated the 27th of July, 1851, and due the 25th of December, 1852 for eight hundred dollars, with interest from the date of the note.

Action for Damages, in Clayton Superior Court. Tided before Judge Burl. This was an action, brought by William N. McConnell, ¿gainst the Macon & Western Railroad Company, tO' recover damages for certain buildings and other property of the plaintiff, which, he alleged, was destroyed by fire, through carelessness and negligence of the said company, and its agents and employees.

<p>Debt on a Judgment, in Fulton Superior Court. Tried before Judge Bupu, at the April Term, i860.</p> <p>This case was heard, upon the following state of facts, as exhibited by the record, to wit:</p> <p>An action of debt was instituted in Fulton Superior Court, by George W. Hicks, against Loyd, Perryman & Mills, to recover the amount of a decree, rendered by the Chancery Court of Hamilton county, Tennessee, in favor of the said Hicks, against the said Loyd, Perryman & Mills.</p> <p>James Loyd, one of the defendants, filed the plea of nul tiei record, to said action of debt.</p> <p>On the trial of the case, the plaintiff offered in evidence, an exemplification of the record of the proceedings in Chancery, and the decree sued on; to the introduction of which counsel for the defendant objected on the following grounds, to wit:</p> <p>1. Because two of said defendants, to wit: James Loyd and George M. T. Perryman, were non-residents of the State of Tennessee at the time the bill was filed in which the decree was. rendered.</p> <p>2. Because there was no judgment in said case.</p> <p>3. Because the decree was not against Loyd, Perryman Sc Mills.</p> <p>The Court overruled the objection, and admitted the exemplification, because it appeared from said exemplification that Enoch R. Mills, one of the defendants, was served with process, and answered the bill; and that James Loyd, another one of the defendants, also answered said bill, which, by agreement, was used and considered as the joint answer of the said Loyd, and of George M. T. Perryman, the other defendant; and because it also appeared from the exemplification, that the decree was rendered against the same defendants, although the firm, name and style used in the decree was “Mills, Loyd & Perryman,” instead of “Loyd, Perryman & Mills.”</p> <p>To this ruling1 of the Court, the defendants excepted.</p> <p>The Court, amongst other things, charged the jury: That a decree in chancery was itself a judgment, and that no further judgment was necessary to be entered on the decree in order to maintain an action against the defendant in such decree; and defendants excepted.</p> <p>The jury returned a verdict in favor of the plaintiff, for two hundred and seventy-two dollars and ninety-three cents, with interest and cost.</p> <p>Counsel for defendant then moved for a new trial, on the.grounds following, to wit:</p> <p>1. Because the Court erred in admitting the said exemplification in evidence.</p> <p>2. Because the decree in said case, if any existed, was in' favor of George W. Hicks, as receiver of the effects of Gains; & Co., and not in favor of George W. Hicks, in his own right; and because the decree was against Mills, Loyd & Perryman, and not against Loyd, Perryman & Mills.</p> <p>3. Because said exemplification did not show that any judgment had been entered up- in said case.</p> <p>4. Because the Court erred in charging the 'jury, that ar. decree in chancery was itself a judgment, and that no further judgment was necessary to be entered on the decree in ■order to maintain an action against the defendants in such decree.</p> <p>5. Because the verdict of the jury was contrary to law, and contrary to evidence, and without evidence, as the decree was rendered for only two hundred and fifty-two dollars and sixty-three cents, and there being no evidence that the plaintiff ever paid any costs, “in the first instance,” as said decree required.</p> <p>The Court overruled the motion for a new trial, and error is assigned upon this decision, and a reversal of the same asked for.</p>

<p>1. When goods are sold, and nothing is said as to the time of delivery, or'the t!me of payment, and everything the seller has to do with them is complete,, the property vests in the buyer — the seller being bound to deliver them whenever they are demanded, upon the payment of the price — the buyer having no-right to the possession of the goods till he pays the price.</p> <p>2. The assent of the vendee to take the specific chattel, and to pay the stipulated price, is equivalent to his accepting possession; and the effect of the contract is, to vest the chattel in the bargain, etc.</p> <p>BREACH OE CONTRACT OE SALE AND DELIVERY. “Where two acts are to be done at the same time, as where one agrees to sell and deliver, and the other to receive and pay, in an action for the nondelivery it is necessarry for the plaintiff to- aver and prove a readiness to pay on his part, whether the other party was at the place ready to-deliver or not.” If no time for delivery is specified in the contract, a demand and refusal must be alleged. The allegation that the defendant», failed to deliver “at the time specified,” there being no other allegation showing that any time was in fact specified in the contract, is not sufficient, in the absence of other requisite allegations, to set forth a breach of the contract. See Biggers v. Pace, 5 Ga. 171; Hotchkiss V. Newton, 10 Ga. 560, 565; Bruce «. Crews, 39 Ga. 544 (3), 548; Allen V. Hollis, 31 Ga. 143, 147; Maxwell, Code Pleading (ed. 1892;, p. 81, and; cases «ited. in note 1.” Pusey & Co. v. MeElveen Co., 93 Ga. 775.</p>

Levy and Claim, in Butts' Superior Court. Tried before Judge Cabaniss, at the March Term, i860. This case came up for review, and was heard upon the following state of facts, as exhibited by the record, to wit: On the 19th day of December, 1854, David A. Moore commenced an action, on the case for words, in Butts Superior Court, against Henry Jester.

In Equity, in Clayton Superior Court. Tried before Judge Bum,, at the May Term, i860'.

<p>A. purchased from B. certain hides, in vats, at a stipulated price per hide, and of an assumed number, with the understanding that there should be a count made of them, and if they fell short of the number assumed B. should account to, or pay A. for the number deficient, at the price fixed. A count being made, the number was found deficient. A. raised an account against B. for such deficiency, in accordance with the agreement, amounting to $31.00. To a suit afterwards brought by B. against A., on a note, A. pleaded first, failure of consideration, in that the note sued on was given in part consideration of the hides, setting out the agreement and the ascertained deficiency. He also pleaded his account, so raised against B., as a set-off. The proof of the consideration of the note was not clear; but the sale of the hides, the agreement, and deficiency, as stated, were clearly proven. Weld> that A. was entitled to the allowance of his demand, under one plea or the other.</p>

Indictment for Murder, in Newton Superior Court. Tried before Judge Cabaniss, at the March Term, i860. At the September Term, 1859, °f the -Superior Court of Newton county, a bill of indictment was found true by the grand jury, charging and accusing Richard Aaron, otherwise called Richard Bryant, with the murder of James H. Reynolds.

Trespass, in the Superior Court of Spalding county. Tried before Judge Cabaniss, at the May Term, i860.

Tried before Judge Cabaniss, at the April Term, i860. This case came up and was adjudicated on the following statement of facts, to wit: Elijah S. Boynton died in the year 1849, and John A. Smith was qualified as the executor of his will in the same year.

Assumpsit, in Upson Superior Court. Decision by Judge Cabaniss, at the May Term, i860. _ Henry Williams, as executor of.

In Equity, in Henry Superior Court. Tried before Judge Cabaniss, at the April Term, i860. Held: that the same disposition was-made of Floyd that was made of the negro Solomon in the same item; that the words “also Floyd” meant that Floyd was disposed of in the same manner that Solomon was; that “also” meant “likewise” — “in the same way” — “in* the same manner;” that, when the item said that “the labor of Solomon was to be used…

Trover, in Troup Superior Court. Decision by Judge BuBi/, at the May Term, i860. This was an action brought by Mary B. Thrash, against James Hardy, to recover damages for a.n alleged conversion of a negro man slave by the name of Sam, of black complexion, and about thirty years old.

Indictment for a Misdemeanor, in Meriwether Superior Court. Tried before Judge Bum,, at the February Term, i860.

Motion to reinstate a case, in Fannin Superior Court. Decision by Judge Rice, at the May Term, i860. The record in this case exhibits the following state, of facts, to wit: Davis & Campbell made two notes, dated the 18th of August, 1856, due six months after date, payable to the order of Vanzant & Jamerson, .for $447.25 each.

In Equity, in Troup Superior Court. Decision by Judge Bum,, at the May Term, i860. On the 18th of December, 1858, Nathan Truitt made and published his will, and in a short time after the execution of the will, the testator died, leaving the same in force. The first item of the will gives direction as_to the testator’s burial.

Libel for Divorce, in Towns Superior Court. Tried before Judge Rice, at the May Term, i860. The record in this case discloses the following state of facts, to wit: On the 5th day of October, 1854, John B. Standridge and Dulcinea Padget were married in due form of law. The parties lived together in harmony until some time in the spring of 1855, when the said Dulcinea, being in feeble health, went back to her father’s house, and remained there sick until August, 1855.

In Equity, in Troup Superior Court. Tried before Judge Bull, at the May Term, i860. This case came up for a hearing upon the following state of facts, to wit: On the 26th of October, 1850, Jeremiah Horton made and published his will in due form of law.

Indictment for a Misdemeanor, in Milton Superior Court. Tried before Judge Rice, at the June Term, i860. At the August Term, 1856, of Forsyth Superior Court, John Brown, John J. Stewart, John Stewart and John Isom were indicted in the same bill, for the offence of misdemeanor, in disturbing and interrupting a congregation of free white persons, assembled for religious worship.

Indictment for Murder, in Forsyth Superior Court. Tried before Judge Rice, at the April Adjourned Term, i860. Isaac Freeland, Jacob Pettyjohn, Devi Q. C. McGinnis, and William R. Braunon, were jointty indicted for the murder of Claiborn Vaughan. The first count in the indictment charged them all as principals in the first degree; and the second count charged Isaac Freeland as principal in the first degree, and tlie other four defendants as principals in the second degree.

Trover, in Coweta Superior Court. Decided by Judge Bum,, at the September Term, 1859.

In Equity, in Coweta Superior Court. Decision by Judge Bull, at chambers on the 28th of September, 1859.

Complaint, in the Superior Court of Cobb county. Tried before Judge Rio;, at the March Term, i860. On the 22d day of May, 1858, Leonard A. Simpson contracted and agreed with the Board of Visitors of the Georgia Military Institute, to construct and finish a building on the premises of said Institute, for the sum of forty-two hundred and fifty dollars. The building was to be constructed and finished by a specified time, and in accordance with certain prescribed specifications.

Complaint, in Floyd Superior Court. Tried before Judge Hammond, at the July Term, i860.

In Equity, in Floyd Superior Court. Tried before Judge Hammond, at the July Term, i860.

In Equity, in Heard Superior Court. Tried before Judge Hammond, at the March Term, i860. Hugh L. Speer, as the administrator of the estate of Zadock, filed a bill in equity in the Superior Court of Heard county, against the heirs and creditors of said deceased, for the purpose of marshaling the assets of said estate, and seeking direction as to the payment of the debts against the same.

<p>The defendant, against the consent of the plaintiff, employed a negro man belonging to the plaintiff, to cut timber for him. While, so engaged, the negro received an injury from the fall of a tree, from which the negro, after being returned to the plaintiff, died. Held, for this defendant is liable, in Trover, for the negro.</p>

In Equity, in Eloyd Superior Court. Tried before Judge Hammond, at the July Term, i860. This was a bill in equity, -filed by Henry Burns and his wife, Cynthia Bums, formerly Cynthia McKinney, and their minor children, suing by the said Henry Burns, as their father and next friend, against John McKinney and Charles McKinney, administrators of Samuel McKinney, deceased.

Complaint, in Eloyd Superior Court. Tried before Judge Hammond, at the July Term, i860.

In Equity, in Eloyd Superior Court. Decided by Judge Hammond, at chambers, on the 22d of May, i860.

<p>1. Where the damages are excessive, resulting probably from the fact that the whole Law of the case has not been presented so full to the Jury as it should have been, a new trial will be ordered.</p> <p>2. Where unchastity is imputed to a female, evidence of actual prostitution, two months after the speaking of the words, is not admissible.</p>

Trover, in Spalding Superior Court. Tried before Judge Cabaniss, at the May Term, i860. This was an action brought by Abel A. Lemon against Charles W. C. Wright, to recover damages for the alleged conversion of a negro girl slave named Ann, and her infant child, Jack. The action was commenced on the 26th of April, 1859. The defendant pleaded the general issue, and statute of limitations.

Certiorari, in Floyd Superior Court. Decided by Judge Hammond, at the July Term, i860.

Case, in Haralson Superior Court. Tried before Judge Hammomd, at the April Term, i860. This was an action, brought by Andrew J. Goggans against Duncan Monroe, to recover damages, which the plaintiff alleged he had sustained, by reason of a malicious prosecution for the offence of arson, instituted against him by the defendant.

<p>Complaint, in Floyd Superior Court. Tried before Judge Hammond, at the July Term, i860.</p> <p>Durham, Ailing & Co-, brought suit, in the Inferior Court of Floyd county, against Johnson, Mitchell & Co., in which Court a verdict was rendered in favof of the plaintiffs for the sum of $230.</p> <p>From this verdict the plaintiffs entered an appeal to the Superior Court.</p> <p>There was no plea in writing filed in said case, although the names of D. R. Mitchell and A. R. Wright'were marked on the docket as attorneys for the defendants, and a set of interrogatories had been taken out by plaintiffs, and served upon and crossed by said Mitchell, as defendant’s attorney, which interrogatories were read, and on the trial the answers thereto- were the only evidence to- prove a part of plaintiff’s demand ; and said case had been once continued by the defendants through the said Mitchell and Wright, as attorneys.</p> <p>When the case came up for trial on the appeal, the said defendants proposed to defend said case, through their said attorneys, Mitchell and Wright, which the presiding Judge r{on objection being made thereto), refused to permit, unless ¿he default was opened, by the defendants paying the costs • of said case, and pleading instanter to the merits of the ac-¿ion.</p> <p>This decision is the error complained of in this case.</p>

Complaint, in Dade Superior Court. Decision made by Judge Walker, at the May Term, i860. Allison, Anderson & Co. brought an action in the Jones’ form, against Robert H. Tatum, maker, and Emanuel Mann, endorser. The writ of the plaintiffs was signed by “H. L. W. Allison, attorney in fact for Allison, Anderson & Co.,” said H. L. W. Allison being at the time deputy clerk of said Court.

Motion to distribute money, in Whitfield Superior Court. Decided by Judge WapkER, at the May Term, i860. This case came up and was heard upon the following state of facts, to wit: Joseph McDowell .placed a certain grey stallion horse at the livery stable of Jesse Holland, in the town of Dalton, where said horse was fed, kept and cared for, for a period of thirteen months.

In Equity, in Dade Superior Court. Decision by Judge Warner, at the May Term, i860.

<p>The plaintiff brought suit against defendant on account, in which were charged articles as sold to defendant “per Pate” and “per” others. In proof of the account, plaintiff introduced his book of original entries In evidence, and proved that he kept correct books. Held, in the absence of proof to the contrary, that the presumption was that the goods so charged were sold to defendant.</p> <p>BOOKS OF ACCOUNT AS EVIDENCE. “Our law on this subject is plainly and fully presented in the Civil Code- of 1895, §5182, and is as follows:</p> <p>“The books of account of any merchant, shop-keeper, physician, blacksmith, or other person doing a regular business and keeping daily entries thereof, may be admitted in evidence as proof of such accounts, upon the following conditions: “1. That he kept no clerk or else the clerk Is dead, or otherwise inaccessible.</p> <p>“2. .Upon proof, (the party’s oath being sufficient) that the book tendered is his book of original entries.</p> <p>“3. Upon proof (by his customers) that he usually kept correct books.</p> <p>“4. Upon inspection by the court to see if the books are free from any suspicion of fraud.”</p> <p>This codification of the Georgia law upon this subject embodies the substance of the adjudication of this court from 1st Kelly to this day. 1 Kelly, 233; 5 Ga. 239; 8 lb. 74; 13 lb. 496, 508; 17 lb. 65; 18 lb. 318, 457, 698; 20 lb. 365; 21 lb. 334; 23 lb. 582; 24 lb. 17; 27 lb. 366; 28 lb. 272; 30 lb. 121, 904; 31 lb. 346; 51 lb. 121; 57 lb. 145; 61 lb. 30.” Bracken & Ellsworth v. Dillon & Sons, 64 Ga. 248-9.</p>

Case in Catoosa Superior Court. Tried before Judge D. A. WadkKr, at the November Term, i860. This was an action, brought by John Harlow against Theron B. Thompson and William L. Witherspoon, to- recover damages for a horse, hired by said Harlow to the defendants, and which, the plaintiff alleged, was killed by the careless, negligent and improper driving of said horse in a buggy, by the said defendants.

Trover, in Haralson Superior Court. Tried before Judge Hammond, at the October adjourned Term, 1859, and motion for new trial decided by Judge Ric£.

Motion to enter an Appeal, in Whitfield Superior Court. Decision by Judge Walker, at the April Term, i860. An action was brought in Whitfield Superior Court, in the name of the Central Bank of Georgia, for the use of James Edmondson, against Robert A. Holt, as endorser on a note, payable at the Central Bank, and negotiated in the same. The case was tried at the October Term, 1859, and a verdict rendered in favor of the defendant.

<p>A Clerk of the Superior or Inferior Court is not authorized, by Law, to collect money on judgments or executions obtained in, or sued out of, their respective Courts, and a payment made to a Clerk, on a judgment or execution, Is not good as a payment against the plaintiff.</p> <p>SUPREME COURT OF</p> <p>.The Bank of Georgetown vs. Auit & Ault.</p>

Assumpsit, in Fulton Superior Court. Tried before-Judge Bule, at the April Term, i860. This was an action brought by Charles E. Welker, against Alexander M. Wallace, as the surviving partner of Wallace & Robinson, to recover the sum of three hundred and sixty-five dollars, with interest, alleged to be due to the plaintiff, from said defendant, as survivor of the said firm.

Complaint, in Whitfield Superior Court. Tried before Judge WaukH-R, at the April Term, i860. The Augusta Manufacturing Company brought suit against Chapley B. Wellborn, for the purpose of recovering the . amount due on the following account: “1854. “April 26th. “C. B. WELLBORN, “To the Augusta Manufacturing Company. Dr. Eor 4 Bales f/% Bro. Cotton : $133 54 6.84 ■ 133 67 .6.95 133 72 6.85 133 75 7-°3 — 27^7 @ 7C- $W3 69 Eor one Bale f Bro.

Assumpsit, in Whitfield Superior Court. Tried before Judge Warner, at the April Term, i860. This was an action brought by John Erwin, to recover the sum of one hundred and twenty-five dollars, due on thirty-four bank notes, dated Dalton, July 1st, 1855, and purporting to be the notes of the Planters’ & Mechanics’ Bank of Dalton. The notes were signed by S. C. Hull, as vice-president, and countersigned by M. Hobart, as assistant cashier.

<p>For a debtor to protect himself against loss, by remitting money to his creditor by man. he must show either the express authority of the creditor to send in that mode, or a usage to that effect in business, from which the creditor’s authority may be inferred.</p>

In Equity, in Coweta Superior Court. Decision by Judge Hammond, at the March Term, i860.

In Equity, in Cass Superior Court. Decision by Judge Waiter, at the March Term, i860.

Assumpsit, in Chattooga Superior Court. Tried before Judge Walker, at the March Term, i860. This was an action brought by Charles D. Black, as sheriff of Chattooga county, for the use of divers judgment creditors of Little B. Strange, against Jesse A. Glenn, to recover the purchase price of a lot of land sold by said sheriff, at sheriff’s sale, as the property of said Strange, and bid off by said Glenn.

<p>1. The liability of one of two defendants, depending upon the question whether he was the partner of the other, who signed a note sued on with a signature purporting to be that of a firm, and of articles of partnership between them being offered in evidence, and their execution proven, it is not competent for the defendant, resisting a recovery against him, on cross examination to ask the witness who proved the execution of the articles, what was said between the parties contracting, • immediately after the execution of the articles, as to reason why a firm name was not adopted, and also as to the right of one partner to sign the name of the other.</p> <p>2. I11 such a case, it is competent for the plaintiff, by proving dealings of the defendants with other persons, before the making of the note sroú on, to show dealings on joint accounts, the use of a firm name, and its recognition by both parties.</p> <p>3. It is not necessary that a firm name be inserted in the articles of partnership. The name irt which their business is done, and by which they are generally known, becomes legitimately their firm name.</p> <p>4. Declarations of one partner, in the course of casual conversations, are incompetent to show either a dissolution of a partnership, or, (if tnat were established by other evidence,) to affect parties not present, with notice of a dissolution. Public or personal notice of a dissolution of a co-partnership once existing, is necessary to affect persons not previously dealing with the firm.</p> <p>ADMISSION OR PARTNER. “In a suit against a partnership in which a plea is filed by the only party served that he is not a member of the firm, but not denying in terms the existence of such a firm, me admission of the person so served that he is a meinher of the partnership is competent evidence against him to prove his connection with the firm. If there is a return of non est as to the other members, and they fail to appear, the "judgment will hind the individual property of the jmrty served, and the property of the firm of which he is so proved to be a member at the date of the contract, but of no other firm.” Fleshman & Co. v. Collier, 47 Ga. 253 Í2). Collier ®. Cross, 20 Ga. 1, overruled in Pursey v. Ramsey, 31 Ga. 403. See Pleishman’s case, supra, p. 256.</p>

Indictment for stabbing, in Whittled Superior Court. Tried before Judge Walker, at the April Term, i860. Juan McAfee was indicted in the Superior Court of Whitfield county, for the offence of stabbing William O. Fincher. The defendant was put upon his trial on the 4th day of May, during the week intervening the fourth Monday in April and the first Monday in May, i860.

Certiorari, in Whitfield Superior Court. Decided by Judge Walker, at the May Term, i860. Held: and during the term, the-ca. sa. of Roberts against McCard was called, and the defendant not appearing, and having filed no .schedule, nor made' any motion to take the insolvent oath, a judgment was rendered on his bond against him, and the said Green as his security, for the amount of said ca. sa>.

Indictment for murder, in Eulton Superior Court. Tried before Judge Bum,, at the October Term, 1859. At the April Term, 1859, °f the'Superior Court of Eulton county, a bill of indictment was found and filed, charging William A. Choice with the murder of Calvin Webb. On the trial of said indictment, at the October Term, 1859, the following testimony was introduced and submitted to the jury, to wit: Bvidence on part of the State.

<p>John W. Allen, by the tenth item of his Will, directed certain slaves to tse manumitted, which clause was declared void. By the twelfth item of his Will, he “desires all the remaining portion of his property, consisting of household and kitchen furniture, crop, provisions, cotton, stock of ail kinds, lands, and the following named negroes to be sold, to-wit: Jim, Yinab, Dave, Katy, Aaron, Jerry, Moses, Jim, Mike, and all other property, belonging to me and not heretofore specified, and the proceeds of such sale to be appropriated to the payment of all my debts; and if there should be anything remaining — after all my debts are paid — it shall belong to the children of Theophilus D. Boothe, in the manner specified in the eighth item of this Will.” Held, That the negroes specified in the tenth item of the testator’s Will — the same being void by the Laws of this State — belong to the heirs at Law of John W. Allen, the testator, and not to the children of Theophilus D. Boothe, as residuary legatees under the twelfth item of the Will.</p> <p>LAPSED OR. VOID LEGACY. «When a legacy falls either by laps® or because it is void at law, it falls into the general residuum and passes to residuary legatees, and not to the next of kin. This is the general rule, and tliere is nothing in that case constituting it an exception thereto.” Word v. Mitchell, 32 Ga. 624. “A legacy failing either by lapse or because void at law, falls into the residuum and passes to the residuary legatee, and not to the next of kin, where there is no contrary intention expressed in the will: Word v. Mitchell, 32 Ga. 623. The residuary legatees who were living at the time of the testator’s death and 'named in his will, and the Issue of those named therein as residuary legatees who were dead, take under the will as provided therein, to the exclusion of liis lieirs-at-Iaw. There are no words in this will which so narrow the title of the residuary legatees as to exclude them from taking the lapsed legacies, as in the case of Hughes v. Allen, 31 Georgia Keports, 481.” Thweatt v. Kedd, 50 Ga. 191. To same, extent, see Williams v. Whittle, 50 Ga. 525. And see Silcox v. Nelson, 24 Ga. 84.</p>

Assumpsit, in Thomas Superior Court. Tried before Judge Harris, at the June Term, i860. James T. Ellis instituted an action of assumpsit in Thomas Superior Court, against Simon D. Hadley, to recover the price of a horse, which Ellis alleged he had sold and delivered to. Hadley.

In Equity, in Thomas Superior Court. Decision made by Judge Harris, at the June Term, i860.

Motion to dismiss actions, in Jasper Superior Court. Decided by Judge Harris, at the April Term, i860. These two cases involved the same questions, and were consolidated, and heard together, by consent. Two actions of assumpsit were pending in Jasper Superior Court, against William A. Ballard; one in favor of Dyer C. Bancroft, and the other in favor of Dyer C. Bancroft and Andrew J. Watters, executors of John C. Watters, deceased.

<p>A verbal contract made on the 14th December, 1859, for the rent of house and lot, for the year 1859, is an agreement not to be performed within the space of one year from the making thereof, and, therefore, void under the Statute of Frauds, etc.</p> <p>CONTRACTS BETWEEN LANDLORD AND TENANT. "The contract for the rent of the place was made on the 25th of December, 1875, for the year 1876, and it is insisted that it is within the statute of frauds, and must be in writing. We think that the Code controls it now, whatever may have been the rule before, as laid down in 31 Ga. 507, for §3117 of the Code of 1895 declares that ‘contracts creating the ‘relation of landlord and tenant for any time, not exceeding one year, may be by parol.’” Steniniger v. Williams,' 63 Ga. 476 (1): Civil Code, J3117.</p>

In Equity, in Putnam Superior Court. Tried before Judge Harris, at the September Term, i860.

In Equity, in Jasper Superior Court. Tried before Judge Harris, at the October Term, i860.

Ejectment in Laurens Superior Court. Tried before Judge Hanssdu at the April Term, i860.

Assumpsit, in Thomas Superior Court. Tried before Judge Harris, at the June Term, i860.

<p>In Equity, in Morgan Superior Court. Tried before his Honor Judge Harris, at the September Term, i860.</p> <p>On the 5th day of September, 1853, Albert O. Mosely, his wife, Mary Jane Mosely, and Ann Eliza Mosely, filed their bill in equity, in Morgan Superior Court, against John J. Eloyd and others, in which, among other things, they alleged:</p> <p>That in the year 1838, John Eloyd, then of said county of Morgan, departed this life, leaving unrevoked and in full force, a will, in which Stewart Eloyd, and the said John J. Eloyd, were nominated executors; that the will was duly proven and recorded, and the said executors were regularly qualified as such; that the fourth item of said will is as follows, to wit: “It is my desire that all of the balance of my property of which I am possessed, or of which I may die possessed, both real and personal, be sold; out of which, I first desire that all my just debts be paid, and out of the money remaining after the payment of my debts, I give to my sons, Stewart and John J. Floyd, the sum of five thousand dollars to be held by them, or kept out in safe hands at interest, and-it is my will and desire that the interest accruing annually from said sum of money be annually paid over to my beloved wife, Mina, by my said sons, for her comfort, support and maintenance, during her natural life or widowhood, and at her death, or marriage, it is my will and desire, that said sum of five thousand dollars be divided among my children, in the following manner: Mary Alford, Stewart Eloyd, Martha Reese and John J. Eloyd each one share, etc., etc.”; that the same item gave four other shares of said five thousand dollars, after the death or marriage of said Mina, to four other children in trust estates; that by a codicil to said will, the testator, after reciting that the said Martha Reese, wife of Thaddeus B. Reese, had died subsequent to the making of said will, bequeathed unto the complainants, Ann Eliza and Mary Jane, daughters of the said Martha Reese, one share of his estate between them, to be held in trust for them by the said Stewart and John J. Eloyd, until the said Ann Eliza and Mary Jane married, or attained the age of twenty-one years, and then to be paid them, with interest; that said bequest in favor of the said Mina depended on the condition, that she did not elect to take her dower; that it was the testator’s intention that the complainant’s, Ann Eliza and Mary Jane, should have and enjoy a full share of his estate, in the place of the said Martha Reese, their mother, and the said Mina Eloyd having failed to elect to take her dower in the lands of the testator, the female complainants have a vested remainder in one-eighth part of said five thousand dollars, with interest, thereon from the year 1838; that the complainants have never had a final settlement with the said executors; that the complainant, Ann Eliza, having previously intermarried with one William Johnston, Jr., her husband received from said executors eight hundred and three dollars and eighteen cents on the 21st of January, 1845, and the complainant, Mary Jane, having attained the age of twenty-one years, received from said executors some seven hundred dollars on the 15th of November, 1850; that there is still due the complainants, from said executors, six thousand dollars, or other large sum; that the said Stewart Floyd, one of said executors, departed this life in August, 1853, intestate, without having come to a final settlement with the complainants on account of their interest and share in the estate of the said John Floyd; that said Stewart died utterly and hopelessly insolvent; that his property, chiefly personal, was, at the timé of his death, encumbered with mortgages, judgments, and other liens; that said property, or the great bulk of it, is now levied on and advertised for sale under various writs of fieri facias in favor of sundry plaintiffs, to wit: Benjamin M. Peeples, Albert G. Foster, and others; that said Stewart Floyd having died without accounting to the complainants for their share of the estate of which he was the representative, they have a, right to be paid out of the estate of the said Stewart Floyd before the claims of said execution creditors or any other person whatever; that the complainants have reason to believe that the executors aforesaid have not raised said sum of five thousand dollars, although the property directed to be sold was ample for that purpose, after paying all the testator’s debts, and that if the executors did raise the sum, they have not set it apart for the purpose directed, or put it at interest in safe hands, but have used it for their own purposes; that complainants apprehend that their remainder interest in said sum of five thousand dollars will not be forthcoming at the termination of the life-estate of the said Mina Floyd, unless the chancellor will interpose in their behalf, especially as they are uncertain how far the said John J. Floyd, surviving executor, participated in the management, and as they believe and charge that the said Stewart was engaged in the management and control of all the business connected with said estate; that there is not, and will not likely be, any administration on the estate of the said Stewart Floyd, as he died utterly insolvent; that as they are otherwise remediless, the complainants pray, by their bill — «st, That the parties defendant may fully answer the charges of the bill; 2d, That said execution creditors may be enjoined from selling the property levied on until the complainant’s case is heard; 3d, That a receiver be appointed to take charge of the property of the said Stewart Floyd, and hold the same for the benefit of all the parties interested; and 4th, That the complainants have such other relief as their case entitles them to.</p> <p>John J. Fhoyd filed his answer to the bill, in which he makes the following statements, to wit: He admits the death of testator, the probate of the will and codicil, and the qualification of Stewart Floyd and himself as executors, as charged in the bill; he also admits the provisions of the will as quoted in the bill; that Stewart Floyd, one of the executors, took charge of the property and had the same appraised and an inventory and appraisement thereof returned to the proper Court, but denies that he, as executor, ever took the charge or possession of any portion of the property of the said estate, either real or personal; that then, as now, he resided in the county of Newton, and he and all the legatees and creditors of said estate having entire confidence in the said Stewart Floyd, suffered him to manage and control the property of said estate, just as if he were the sole executor of the testator’s will; that he has no reason to doubt the.correctness of the exhibits to the bill of complainants; he admits that the fourth item of his father’s will is as the complainants have quoted it; he also admits that the second item of the codicil is correctly quoted, and that it was the testator’s desire that said female complainants should have one share of his estate between them, to be held in trust for them by his sons, Stewart and the defendant, until they married or attained the age of twenty-one years, and then to be paid to them, with interest — that is, one equal share, when added to what he had given to their mother, Martha Reese, and to them before that time; that whilst he will not undertake to say, with absolute certainty, what was the intention of the testator, in the premises, he will say that he does not believe that the said testator, by the second item in the codicil to his will, or any other part of said codicil, ever intended to convey to the said Ann Eliza and Mary Jane, any interest whatever in the remainder-of the said five thousand dollars, after the marriage or death of the said Mina Floyd, for the. reason, among others, that at the time of the execution of said will and codicil, he had two grandchildren, the offspring of a deceased daughter, one of whom lived with him as one of his family, and for whom he had as strong natural affection as he had for said female complainants; and yet, whilst he bequeathed to his immediate offspring an interest in remainder, in said five thousand dollars, he did not convey to his said grandchildren (the children of Ann Swift, deceased), any such interest in said five thousand dollars — that if he intended by his will and the codicil thereto, to give the said female complainants an interest in 'the said five thousand dollars, and not to give the same interest to the Swift children standing in exactly the same relation to him, it would have been a discrimination against the latter for which no reason existed, and which he does not think the testator would have done. Again: the codicil directs that one share, that is, one equal share of the testator’s estate, when added to what had been given to their mother, and to them before that time, should be held by. the executors for the said female complainants, and to be. paid to them with interest, when .they married or attained the age of twenty-one years, and the defendant can not believe that the testator intended that the executors should pay to the said Mina Floyd the interest annually accruing on the •said five thousand dollars, and also pay to said female complainants interest for the same time, on one-eighth of the same money — -moreover, the share of the said female complainants was directed to be paid to them, with interest, so soon as they, or either of them should marry, or attain full age, and if made to apply or extend to an interest in said five thousand dollars, would, to the extent of 'that interest, defeat the provision made by the testator for his wife, the said MinaFloyd, and the defendant does not believe that such was the wish or intention of said testator; that the said Mina is still living and unmarried; that whatever may be the rights of female complainants, under a proper construction of the said will and codicil, the defendant submits to the Court; that he admits the marriage of Albert O. Mosely and the said Mary Jane, but can not say as to- the exact time of the marriage - — -that the.said Mary Jane was twenty-one■ years old before the marriage — that the said Mina did not elect to take dower —that he admits that the portions of the female complainants in the estate of testator was payable immediately on their marriage or majority with interest from the time the residuum of said estate commenced to bear interest in the hands of the said Stewart Floyd, which defendant believes was the 25th of December, 1839 — that said female complainants never did have any settlement with the defendant on account of their interest in the said testator’s estate, nor does he know whether any final settlement as to such interest ever took place between them and the said Stewart Floyd and William Johnston in right of his wife Ann Eliza Johnston, and between the-said Stewart and the said Mary Jane, intended by the-parties to be final, and was in fact final — that in pursuance of such' settlement the said Stewart Floyd on the 21st day of January, 1845, paid to the said William Johnston all that was due him in right of his wife, the said Ann Eliza, from the said estate under the said will and codicil, and that in consummation of such settlement the said William Johnston delivered to the said Stewart Floyd his receipt, of which the-following is a copy, to wit:</p> <p>“$803.18.” “Received of Stewart Floyd and John J. Floyd, executors of John Floyd, deceased, eight hundred and three dollars and eighteen cents, it being the amount due by them on the first day of January, instant, of principal and interest coming from the estate of said deceased to Ann Eliza Johnston, formerly Ann Eliza Reese, who is entitled to one-half share as legatee of said estate.”</p> <p>“January 21st, 1845.” “WM. JOHNSTON, Jr.”</p> <p>The, defendant further states that a settlement also occurred between the said Stewart Floyd and the said Mary Jane, after she became of age, in which settlement she was aided by her father, Thaddeus B. Reese — that pursuant to such settlement and in consummation of the same, the said Stewart Floyd paid to her the full amount to which she was entitled under the said will and codicil of the testator aforesaid, and received from her a receipt, of which the following is a copy, to wit:</p> <p>“Received of the executors of John Floyd, deceased, twelve-hundred dollars under the will of the said John Floyd.</p> <p>“MARY JANE REESE.</p> <p>“15th November, 1850.”</p> <p>The defendant pleads these settlements in bar of any other or further recovery in behalf of said complainants against this defendant — defendant admits that the said Stewart Floyd died insolvent in August, 1853, as stated in the bill — that he left considerable property which is encumbered as charged, and that the same was levied on, and since the filing of the bill the same has been sold, and the proceeds of the sale distributed by order of Morgan Superior Court at the March Tefm, 1854, and the defendant refers to the return of the sheriff, the ñ. fas. and order of distribution, all of which are of file i,n said Court — that after exhausting all the property of the estate of the said Stewart Floyd, the defendant will be still a large loser by him — that so far as the defendant knows, all the property of said testator was sold by the said Stewart Floyd, which the said will directed to.be sold, and that the said Stewart considered the said five thousand dollars in his hands for the benefit of the said Mina Floyd — that the said John Floyd died in July, 1838, and the property was sold mostly in January, 1839, and since that time and up to some short time before his death the said Stewart Floyd had made payments to the said Mina Floyd of the interest accruing -on the said sum of five thousand dollars in whole or in part, and the defendant repeats his positive denial, that the said sum, or any part of it, or any part of the interest thereon, ever came into his hands or was converted by him — the defendant admits that most of the lands belonging to testator’s estate were purchased by the said Stewart Floyd for himself and the defendant, and the defendant and said Stewart also purchased some of the negroes, the defendant buying at the sale Isaac, Willey, and Tom, an old man now dead.</p> <p>In March, 1855, the complainants amended their bill by alleging: That the settlement's set up in the defendant’s answer were in fact no settlement, and that they proceeded upon a false basis — that if any accounting was had at all it was to Thaddeus Reese, the father of the complainant, Mary Jane Mosely, and to' the husband of the said Ann Eliza Johnston, neither of whom were aware of the rights of the sáid female complainants — that said pretended settlements were made without a due examination into the said accounts and returns of the said Stewart Floyd which returns show a large balance still due to said complainants — that there was a gross mistake made in said settlements by a failure to include in the charges notes of said Stewart against the said Stewart Elóyd and J. Floyd, and one Francis Johnston now mentioned in the list of insolvent notes due to the testator’s estate which complainants insist are justly chargeable against said executors, and which amounted to over six thousand dollars on the 25th of December, 1839 — that in the settlement with the said Mary Jane the said Stewart Floyd only paid her seven hundred dollars in money, and gave his note for the balance of five hundred dollars, not as a payment, but as a mere memorandum of the balance which he admitted was due to her — that at that time, the said Stewart was .largely embarrassed, and on the verge of hopeless insolvency, of which the said Mary Jane was not aware at the time of the pretended settlement, and insists that said note, under the circumstances, was not a payment, and did not release the said Stewart from his liability to the said Mary Jane, as executor and trustee, or impair her right to charge the estate- in his hands for the amount of said note — that she is willing and hereby offers to turn over, and deliver to the administrator of the said Stewart Floyd the said note, copy of which is as follows, to -wit :</p> <p>“By the 1st January next, I promise t'o pay Mary Jane Reese five hundred dollars for value received.</p> <p>“1st Nov., 1850. _ S. FLOYD.”</p> <p>The complainants further allege that said note was given as a memorandum only, and because the said Stewart Floyd was unable to pay the money — that the said John J. Floyd well knew that said sum of five thousand dollars had not been raised and loaned out by said Stewart as directed by said will, and that he was consenting to a breach of trust and consented thereto long after the said Stewart Floyd became embarrassed, and was knowing and consenting to the conversion of said five thousand dollars by the said Stewart Floyd to his own use — and that he was also' knowing and consenting to his own use and the use of the said Stewart, of the amount of said notes so neglected to be paid, and returned by themselves as received for the estate of the said testator.</p> <p>This amendment to the bill was answered by John J. Floyd, as follows: That his brother, Stewart Floyd, informed him— and he believed it to be true — that Earnest L. Wittich, Esq., then the clerk of the Court of Ordinary of said county of Morgan, made out for him a balance sheet of the estate of the said testator, counting the interest up to the first day of January, 1845 i that he now has the balance sheet so made out by Mr. Wittich, and, after a careful examination of the same, he is unable to discover any mistake in it, and he appends it to his answer by way of exhibit; that the said Stewart Floyd, as defendant is informed, and believes, settled with the said William Johnston, according to the said statement and balance sheet, and paid him the amount specified in his receipt exhibited in his former answer; that the said Mary Jane was entitled at that time to the same, as her sister, the said Ann Eliza Johnston, which she afterwards received with the interest on the same, from the settlement with Johnston, to the settlement with her; that he believed the father of the said Mary Jane was present at the settlement with her, because the body of the receipt which she gave, is in his handwriting, whilst the signature is in her own; that he ■does not know how thoroughly the said Thaddeus B. Reese ■examined the account and returns of the said Stewart Floyd, •at the time of the settlement, but he verily believes that the .■said Reese understood the basis of the settlement, for this ■defendant does know that he usually looked closely to any interest he, or his children, had in the estate of their maternal grandfather, and has no doubt but what said Reese 'thought, and was well satisfied, that the settlement exhibited 'the true amount due to the said Mary Jane; this defendant ■not knowing the facts, has heard, that seven hundred dollars ■only was paid to the said Mary Jane, and that a note ■was given by the said Stewart Floyd for five hundred, .but this defendant does not believe that said note was given as a mere memorandum, but was accepted and receipted for by the said Mary Jane as cash, or in lieu of cash, and that it was deemed an evidence of indebtedness from the ■said Stewart Floyd to the said Mary Jane; the defendant ■can not say how far the said Mary Jane was familiar with 'the pecuniary condition of the said Stewart Floyd at the time of said settlement, but verily believes that her father was thus familiar, because he lived in the same town with "him at the time, and had so lived for many years; and whilst the defendant admits that when said note for five hundred dollars was given, the said Stewart was in debt he does not "believe that he was insolvent, but believes he was then able to pay all his just debts; the defendant denies that he knew of, or consented to,, any neglect or failure to raise said sum of five thousand dollars' as directed by said will, but believes that the said Stewart Floyd did raise it as directed; the defendant also denies, that he knew of, or consented to, any breach of trust, on the part of the said Stewart, in relation to said five thousand dollars, or that he knew of any neglect or failure to pay, or collect, any notes due to the estate of said testator on the part of the said Stewart Floyd, as this defendant had nothing to do with the management of said estate, the defendant has long since paid off, and fully discharged all his indebtedness by note or otherwise to said estate, not dreaming but that it was safe and proper for him to do so; that he had no doubt, but what the said Stewart was fully able to pay all his debts and liabilities until a short time before his death; that on . the sick-bed from which he never arose the said Stewart informed him that he had used the said sum of five thousand dollars, and was not able to replace it; that this announcement not only astonished the defendant, but came too late for him to remedy the difficulty, but the defendant believes that, in the settlements aforesaid with the said Mary Jane and the said William Johnston, the said Stewart Floyd included, and accounted for, all his liabilities to them, and to the said estate of said testator, and again pleads said settlements in bar of a recovery by com-plainant. The defendant repeats, that although he qualified as executor of the testator’s will, he did not take possession or control of any portion of the estate; that he was not cognizant of, or consenting to, any waste of the assets of said estate by the said Stewart Floyd; on the contrary, the defendant, and all the legatees, had entire confidence in the fact that the said Stewart would wind up said estate according to law and the will of the testator; that the said Stewart owned and held a large property in land and negroes in the vicinity of most of the legatees, and especially of the complainants, which was of an aggregate value equal to, if ■not greater, than the estate of which he had the management; that from the time of the testator’s death, up to the marriage of said female complainant, the defendant lived in Newton county, and knew little or nothing of the management of the testator’s estate, and believed that the complainants had been, fully settled with; that some time after the testator’s death, defendant was informed that it was the wish of the said Mina Floyd, that the sole management of' the five thousand dollars set apart for her support and maintenance, should be confided to the said Stewart, as he lived near her, and would be more convenient tO' transact her business with him, than with him and defendant jointly, and in furtherance of this wish of the said Mina, the said Stewart on the ist day of January, 1840, gave to this defendant a receipt, of which the following is a copy:</p> <p>“Received of the executors of John Floyd, deceased, -the sum of five thousand dollars, as the portion of said estate from the interest of which Mrs. Mina Floyd, widow of the said deceased, was to be supported.</p> <p>“January ist, 1840. S. FLOYD.”</p> <p>And after that time the said Mina Floyd dealt with the said Stewart as her sole trustee; the defendant further states, that on the ist day of January, 1842, the said Stewart Floyd made a calculation of said estate, so' aa to ascertain the amount due to each legatee under the will of said testator, from which it appeared that each share of said estate amounted to twelve hundred and ninety dollars, and on that day the said Stewart, as trustee for the female complainants, gave to defendant a receipt, of which the following is a copy, to wit:</p> <p>“Received of the executors of John Floyd, deceased, the sum of twelve hundred and ninety dollars, as the portion of the children of Martha Reese, deceased, in the estate of said deceased, which has been sold.</p> <p>“January ist, 1842. S. FLOYD,</p> <p>“Trustee.”</p> <p>The defendant accounts for the fact, that the receipts of William Johnston, and Mary Jane Reese, express the sums therein named to have been received from the executors, instead of from Stewart Floyd as trustee, only that the body of said receipts were not written by the said Stewart, and that it was an oversight in him not to have observed their form, and this defendant is well satisfied that the said Mary Jane and her father intended to- rely solely on the. said promissory note of the said Stewart, taken in said settlement, as neither of the complainants, or the said William Johnston, or the said Thaddeus B. Reese ever said anything to the defendant indicating an intention to look to him for anything concerning the interest of complainants in the estate of John Floyd, deceased, or that would indicate' an opinion that the defendant had anything to do with it, or was in any manner liable for it, until their said bill of complaint was filed.</p> <p>The exhibits to the complainant’s bill were:</p> <p>1. An inventory and appraisement of the estate of John Eloyd, deceased.</p> <p>2. A return of the sale of the perishable estate of John Eloyd, deceased, sold on a credit until 25th December, 1839, by Stewart Floyd, one of the executors, amounting to $4,689.78.</p> <p>3. A return of the sale of the negroes, and part of the land belonging to the estate of John Eloyd, deceased, sold on the first Tuesday in January, 1839, on a credit until the 25th of December, 1839, sale bill returned by Stewart Floyd, and amounting to $15,326.66.</p> <p>4. Return made by Stewart Floyd, showing disbursements made for the estate of Tohn Eloyd, deceased, amounting to $4,789.52^.</p> <p>5. Return showing receipts for the estate of John Eloyd, deceased, amounting in the aggregate to $770.89, and disbursements for said estate amounting to- $3,564.37^2.</p> <p>6. The will of John Eloyd, deceased.</p> <p>The exhibits to defendant’s answer were—</p> <p>The four receipts copied in the answers, and a calculation of said estate made by Earnest L. Wittich, showing the whole amount due from the executor on the 1st day of January, 1845, to be $14,457.26, which sum divided between- nine legatees make due each $1,606.36.</p> <p>On trial of the case in the Court below, the only evidence adduced were the. bill, answer, and exhibits to the bill and answer.</p> <p>The presiding Judge charged the jury as follows :</p> <p>“That John J. Eloyd, not having participated in the management of the estate, no decree could be made by the jury against him; that although said John J. Eloyd had qualified as executor, yet he was not liable if the estate had been managed entirely by his brother, and wasted by his brother, Stewart, his co-executor, although it did appear that funds enough to cover the entire claim of the complainants, arising from the indebtedness of the said John J. Eloyd, to the estate had been paid over by him to his executor, such indebtedness being for purchases made by him at the executor’s sale made by his brother; it being his duty to pay as other purchasers.” The presiding Judge further charged the jury: “that with regard to a note which the evidence showed had been made to Mary Jane Reese, now Mrs. Mary Jane Mosely, by Stewart Floyd in his lifetime, and which was admitted' to have been given to her by Stewart Floyd on a settlement of the amount coming to her as legatee under the will of the-said John Floyd, deceased, the jury might look to the matter of diligence, which had been used by Mary Jane-Reese, now Mrs. Mosely, in enforcing its collection, upon-the question, whether the taking of said note dischairged the-claim of the said Mary Jane to go- back upon the said Stewart as executor; that whilst it was true, that a note given-under such circumstances was not a payment unless it was agreed to be received as such; yet if it appeared that two-years and a half had intervened between the execution of said note, and the death of the said Stewart Flo-yd, during which time the said payee had not sought to enforce the collection of the note, was a circumstance from which the jury might find that, because she had not used proper diligence in¡ seeking to enforce the collection of the note in that time, she had lost her right tp look to her original claim against the estate, and the said note “pro tauto” should be held as-payment.”</p> <p>All and every part of this charge was excepted to by complainant’s counsel and are assigned as error:</p> <p>The jury returned the following verdict:</p> <p>We, the jury, find and decree in favor of John J. Floyd' individually. We further find and decree that the complainants, Albert G. Mosely and wife, and Ann Eliza Johnston, have each of them received their interest in the residuum under the last will and testament of John Floyd, deceased. We further find and decree that Stewart Floyd, as the-executor of John Floyd, deceased, had reduced to his possession the sum of five thousand dollars from the interest of which Mina Flo-yd, the widow of the testator, was to be supported, and that before his death, the said Stewart Flo-yd' had wasted or appropriated the same to his own use. We-further find and decree that the complainants, Mary Jane Mosely and Ann Eliza Johnston, are each entitled to one-half of one-eighth of said five thousand dollars, to wit: the-sum of seven hundred and seventy-seven dollars and seventy-eight cents, which said sums, we find and decree shall be paid over by the sheriff out of the money in his hands raised from the sale of the individual property of Stewart Floyd, deceased, to John J. Floyd, surviving executor of John Floyd, deceased, to be paid by him to Albert O. Mosely and wife, and Ann Eliza Johnston, respectively, as hereinbefore decreed, at the death of the said Mina Floyd; and we further find and decree that the costs of this proceeding be paid out of their funds in the hands of the sheriff, raised as aforesaid.”</p> <p>The charge of the Judge, and the decree rendered, constitute the errors complained of in this case.-</p>

Action for use and occupation, in Warren Superior Court. Decision by Judge Thomas, at the April Term, i860.

Debt, in Walton Superior Court. Tried before Judge Hutchins, at the February Term, i860. There is but one question made by the record in this case, and it arose out of the following state of facts, to wit: In he year 1842, prison bounds were laid off around the common jail of Walton county, including an area of one hundred acres. Plats of the survey, with a full and minute description of the lines, and metes and bounds, were made out by the surveyor.

<p>Motion to make an award the judgment of the Court, in Oglethorpe Superior Court. Decided by Judge Thomas, at the October Term, i860.</p> <p>The question made by the record in this case, arose out of the following state of facts, to wit:</p> <p>On the 30th of March, 1858, John U. Stephens instituted his action on the case, against Jonathan Hopper, to recover damages for slanderous and defamatory words, alleged to have been published by said Hopper, of arid concérning said Stephens.</p> <p>On the 28th day of March, 1859, the said parties, by an agreement in writing, of that date, under their hands, and seals, agreed to submit the matter in controversy in said action to arbitration.</p> <p>. The submission recited the pendency of the action, and gave, with particularity, the words charged to have been spoken by defendant, b.f the plaintiff, and then concluded as follows, that is to say: “Upon all of said charges, the said Jonathan Hopper joins issue, denying them in whole, and in part. And the said Jonathan Hopper, and the said John U. Stephens, for the purpose of settling said matter in a more summary or speedy way than the ordinary proceedings at law, do hereby agree to submit, and do hereby submit, the aforesaid suit to arbitration, under the Act of the Legislature of the State of Georgia, approved March the 5th, 1856, entitled, ‘An Act to authorize persons to su,bmit controversies, to arbitration.’ (See pamphlet Acts, 1855-6, page 222.) And!’ for the purposes of said arbitration, the said John U. Stephens doth select John S- Hubbard, of said county, and thp said Jonathan Hopper doth select George W. Mattox, of said county, who*, with John Eberhart, of said county, selected by the said arbitrators, and agreed upon by the said John U., and Jonathan, shall, as arbitrators, settle, adjudicate and pass upon the aforesaid several matters in controversy, under the provisions and regulations of the aforesaid Act.”</p> <p>“In testimony whereof, the said John U. Stephens, and the said Jonathan Hopper, have hereto set their hands and seals, this 28th of March, 1859.</p> <p>“JONATHAN HOPPER, [Seal.] ■</p> <p>“JOHN U. STEPHENS. [Seal.]”</p> <p>On the 12th day of October, i860, a further agreement was written on the back of said submission, a copy of which is as follows, to wit:</p> <p>“GEORGIA, Oglethorpe County:</p> <p>“We, the undersigned, parties to the within agreement, do hereby agree that the name of James Jarvis shall be placed instead of that of John Eberhart in said agreement. And we further agree to waive, and we do hereby waive, all in-formalities in this proceeding, as to< appointment of time and place of meeting, and as to all notices required by the Act of March 5th, 1856, and agree that the matters in dispute between us, as set forth in the within agreement, shall be finally settled and adjudicated between us, this day, as if said Act of 1856 had been fully complied with in every respect. Witness our hands and seals, October 12, i860.</p> <p>“JOHN U. STEPHENS, [Seal.]</p> <p>“JONATHAN HOPPER, [Seal.]”</p> <p>On the same day of the last agreement, the arbitrators made the following award, to wit:</p> <p>“We, the undersigned arbitrators, after maturely considering all the evidence submitted to us in the foregoing case, between John U. Stephens and Jonathan Hopper, do make the following award: That said Hopper pay to said Stephens one thousand dollars, due at once, and cost of the arbitrators.</p> <p>“JOHN S. HUBBARD,</p> <p>his</p> <p>“JAMES x JARVIS,-</p> <p>mark</p> <p>A rhifro fnre ” A1Dmators-</p> <p>“I dissent from the above award, and am willing that said Hopper pay to John U. Stephens the sum of seven hundred and fifty dollars, and costs of suit.</p> <p>“G. W. MATTOX.”</p> <p>Counsel for the plaintiff moved to enter the award on the minutes, and make it the judgment of the Court, as an award for one thousand dollars, and costs of suit.</p> <p>Upon objection being made to said motion, the presiding Judge overruled the motion, “on the ground that the award was not unanimous.”</p> <p>This decision is the error complained of in this case.</p>

Ejectment in Hart Superior Court. Tried before Judge Thomas, at the September Term, i860..

Trespass on the case, in Glascock Superior Court. Decision on Demurrer to plaintiff’s declaration, made by Judge Thomas W. Thomas, a.t the August Term, i860.

Assumpsit, in Hancock Superior Court. Tried before Judge Thomas, at the October Term, i860.

<p>1. Three persons being sued as partners on a promissory note, signed by a firm name, and one of the three having pleaded “non est factum,” whilst the other two made default; one of the two, so in default is incompetent on the score of interest, as a witness, to prove the liability of the party pleading non est factum.</p> <p>12. Three persons being partners in mercantile business, evidence that one of them sold out his interest in the stock of goods on hand, but not in the notes, accounts, and other assets of the firm, to a fourth party, who formed a new mercantile partnership with the other two under a different firm, style and name, Is not per se proof of a dissolution of the first partnership.</p>

Divorce, in Madison Superior Court. Tried before Judge Thomas, at the March Term, i860.

Trover, in Elbert Superior Court. Tried before his Honor, Judge Thomas, at the September Term, i860.

Complaint, in Gwinnett Superior Court. Tried before Judge Hutchins, at November adjourned Term, 1859.

<p>Trover, in Warren Superior Court. Tried before Judge 'Thomas, at the April Term, i860.</p> <p>This was an action brought by Ellen R. Lynch, against Archibald M. Jackson, to recover damages for the alleged •conversion, by the defendant, of a negro girl by the name of 'Susan, belonging to the plaintiff.</p> <p>The facts of the case are substantially as follows :</p> <p>Sometime in the year 1850, Barnard W. Eickling, the •grandfather of the plaintiff, gave, by parol — accompanied with actual delivery — the negro girl in dispute to the plaintiff, at the same time telling the mother of the plaintiff to take charge of the negro and learn her to sew, etc., until the plaintiff married, or became of sufficient age to control and manage the negro herself. Barnard W. Fielding died in 1851, and the defendant, Jackson, was appointed and qualified as executor of his will. As such executor, he instituted an action of trover for the negro in dispute, returnable to the April Term, 1852, of Warren Superior Court, against Edward .F. Lynch, the father of the plaintiff. Edward F. Lynch .•set up; by way of defence tó the action, that the title to the •negro was in Ellen R. Lynch, by virtue of the parol gift aforesaid. In that action a verdict and judgment was rendered in favor of Jackson, as executor as aforesaid, against Edward F. Lynch, for the value of the negro, to be discharged by delivering her up in ten days. The verdict was rendered at the April Term, 1857, and the judgment signed up on the 16th of April, 1857. Ellen R. Lynch attained the age of twenty-one years on the 24th of October, 1856.</p> <p>On the 16th of September, 1857, this action was commenced :and on the trial, the defendant offered in evidence the record .and judgment of the former action in his favor as executor • of Fickling, against Edward F. Lynch; to which counsel for ■plaintiff objected, on the ground that the judgment was no bar or estoppel of the plaintiff in this action.</p> <p>The presiding judge overruled the objection, and admitted record.</p> <p>After the testimony had closed, the Court charged ■ the</p> <p>“That the plaintiff was estopped by the record of the for•mer suit, and that the jury ought to find for the defendant.”</p> <p>The jury found according to the judge’s direction, and the ■plaintiff in error prosecutes his writ, to reverse the judgment, on the ground that the Court erred in admitting the record of •the former action, and in charging the jury that the plaintiff -was estopped by it.</p>

Assumpsit, in Wilkes Superior Court. Tried before Judge Thomas, at the September Term, i860. The record in this case presents the following facts and questions, to wit: Mrs. Sarah Stokes died testate. Amongst other things, she-directed, in her will, that certain property should be sold, and' that the funds arising therefrom “be put at interest, the said' interest to be applied to the support and education of her' grandson, John A. Stokes, and the support of his father,.

Pi. fa. and illegality, in Warren Superior Court. Decision by Judge Thomas, at the October Term, i860. The facts of this case are as follows, to wit: Pierce Bailey recovered a judgment against William Littleton, as administrator of Lucy Bray, deceased, and Benjamin Chapman, and Mary Hodgins, for $1,037.75, besides interest and cost. From this judgment Littleton entered an appeal, Chapman and Hodgins not appealing.

Case for Words, in Elbert Superior Court. Tried before Judge Thomas, at the September Term, i860. The opinion of Mr. Justice Lumpkin, who pronounced the judgment of the Court in this case, embodies all the facts necessary to a clear understanding of the judgment, wherefore any other statement is omitted.

Assumpsit,' in Burke Superior Court. Decision made by Judge Holt, at the May Term, i860.

Levy and claim, in Washington Superior Court. Decision made by Judge Hoi/r, at the December Adjourned Term, i860. Sundry writs of fieri facias, issued from a Justice’s Court of Washington county, against one James D. Paradise, some in favor of Thomas W. Hardwick, and some in favor of Samuel Smith, and some in favor of other persons, were levied on four hundred acres of land in the county of Washington, as the property of said Paradise.

Complaint, in Burke Superior Court. Tried before Judge Holt, at the May Term, 1859. Andrew Eloyd brought suit in Burke Superior Court, against Simeon Wallace, as administrator of Isaiah Sapp-, deceased, to recover a sum of money alleged to be due to Eloyd, from Sapp in his lifetime, for one hundred and thirty-three thousand feet of timber, at one dollar and seventy-five cents per thousand feet.

Tried before his Honor, Judge Hoi/f, at the November Term, i860. Everett Tindall, of -the county of Burke, died intestate, and Simeon Warnock applied for letters of administration on his estate.

<p>In Equity, and motion to dissolve injunction in Richmond Superior Court. Decided by Judge Hoi/t, at the October adjourned Term, i860.</p> <p>William M. D’Antignac exhibited his bill in equity against the city council of Augusta, and Foster Blodgett, in which the following charges and allegations of fact are embodied, that is to say:</p> <p>In the year 1843, a business partnership which had before that time existed between the complainant and one John Hill, was dissolved; and the settlement then had of the business of. said partnership, showed an indebtedness, by Hill, to the complainant, of about eight thousand dollars. Hill being wholly unable to cancel said indebtedness', the complainant had to grant him indulgence, with the hope that, in after -> years, Hill could and would pay it off in small sums. Hill- was elected treasurer and collector of taxes of the city of Augusta, by the city' council, which office yielded a considerable profit and salary to the incumbent. Hill agreed with complainant, that he would, out of his salary, pay the taxes due by the complainant to said city, so long as he held said office. Pursuant to said agreement and contract, and in fulfilment of the same, Hill did settle and pay the taxes due by the complainant to- said city, for the years 1846, 1847, 1848 and 1849, of which he gave the complainant a written certificate, which is made an exhibit to the bill. Upon application for a similar certificate of the payment of the taxes due for subsequent years, Hill assured the complainant that he had made, or would make, arrangement to pay and account for such taxes, and would at a future time furnish the certificate, which assurance led to a postponement, from time to time, of the obtainment of any written evidence of the payment of such taxes, until Hill died without giving it.. The following are copies of certain sections of the general ordinance of the city of Augusta, which were in force during the years 1850, 1851, 1852, 1853, 1854, 1855 and 1856, to wit:</p> <p>Sec. 103. There shall be an officer known as the collector' and treasurer of the city of Augusta, who shall be elected by the city council, by ballot, on the second Saturday in January, or at the first meeting thereafter, in every year, who shall hold 'his office until his successor is appointed and qualified, unless sooner removed by council, and who shall be allowed such salary as the city council may agree on', as a full compensation for his services; except such fees as are hereinafter particularly mentioned. He shall give bond with two- or more approved securities, for the faithful discharge of his duties, in the sum of twenty thousand dollars.</p> <p>Sec. 104. The collector and treasurer shall receive all moneys collected by the other officers of council on account of the corporation, and shall pay all demands by order of council, and keep a regular account of all moneys by him received and paid, which account shall be presented to council at their monthly meetings. All moneys received by him on account of the corporation, shall be immediately deposited in one of the banks of this city, in the name of the city council, and he shall, at every regular meeting of council, and at all times when required by the same, exhibit his bank-book settled up to the preceding day. No money belonging to the city council shall be drawn from the bank, except by a check, signed by the collector and treasurer.</p> <p>Sec. 105. The collector-and treasurer shall collect all taxes due to the city, unless the collection thereof is otherwise provided for. It shall be the duty of said collector and treasurer to give notice, in one or more of the gazettes of the city, and to call at least once at the house of each person taxed, to demand the taxes, and unless said taxes be paid within two months from the date of said notice, it shall be his duty to make a return of such defaulters to the city council, and thereupon executions shall issue against the goods or person of such defaulters, for the amount of his, her or their taxes, with the addition of ten per cent. The collector and treasurer shall, at all times, have the privilege of obtaining executions against any individual or individuals, when he has good reason to believe that such person or persons are about to leave the city, and there is danger of losing the whole or some part of the taxes due by such person or persons.</p> <p>Sec. 107. At the regular time for returning defaulters on the digest, the collector and treasurer shall become liable for the amount of the digest, after deducting the same for which defaulters are returned, and he shall become liable for the amount of all executions issued at the expiration of the period in which, by regular course of law, they might have been satisfied, unless he show sufficient'cause why satisfaction has not been obtained; and he shall be liable for the amount of all executions not satisfied, which may remain in his hands at the expiration of his term of service, unless he shall within ten days thereafter deliver them to the city council.</p> <p>Sec. 108. Whenever it shall appear that the collector and treasurer has received money on acount of the corporation, or has become liable for it under this ordinance, if he does not within ten days, deposit the same in bank, or pay it to his sucessor, as the case may require, an execution shall issue immediately for such sums against him and his securities. In case the collector and treasurer shall fail to make a settlement, and pay over the moneys by him collected, according to the provisions of this ordinance, the mayor, or chairman of council, if the mayor be absent, shall order execution to issue against him and his securities for the amount which he is in arrears, directed to the marshal of s&id city, who is hereby required to levy the same immediately on so much of the goods and chattels, lands and tenements of such collector and treasurer, and his securities, as shall be sufficient to discharge the said arrearages and costs, giving such notice of the sale thereof as the laws of the State require of sheriffs taking property under execution in similar cases, and shall be allowed the same fees for services performed by him under this ordinance as are allowed to sheriffs for similar services.</p> <p>The following are copies of certain sections of the general ordinance of the city of Augusta, which were of force during the years 1857, 1858 and 1859, to wit:</p> <p>Sec. 109. Is similar to Section 103, hereinbefore set forth.</p> <p>Sec. no. Is similar to Section 104, hereinbefore set forth.</p> <p>Sec. in. The collector and treasurer shall collect all taxes due to the city, unless the collection thereof is otherwise provided for. It shall be the duty of the said collector and treasurer to give notice in one or more of the gazettes of this city, and all persons liable for city taxes shall be required personally, or by agent, to pay the same at his office, and unless said taxes are paid within two months from the date of said notice, it shall be his duty to make return of such defaulters to the city council, and thereupon executions shall issue against the goods or person of such defaulters, for the amount of their taxes, with ten per cent. The collector and treasurer shall at all times have the privilege of obtaining executions against any individual or individuals, when he has good reason to believe that such person or persons are about to leave the city, and there is danger of losing the whole or some part of the taxes due by such person or persons. The collector and treasurer shall be required to attend at his office daily (except Sundays) from 9 o’clock, A. M., until 1 o’clock, P. M., for thirty consecutive days from the date of his advertisement in the city papers, giving notice that the digests of the city taxes for the current year have been completed, and turned over to him for collection. After that time, his regular office hours shall be from 9 o’clock, A. M., to 1 o’clock, P. M. (except Sundays). Whenever payment of any such taxes shall be made by any person or persons within thirty days after date of said notice, the amount charged against him or them on the digest shall beceduced three per cent.</p> <p>Sec. 113. Is similar to Section 107, hereinbefore set forth.</p> <p>Sec. 114. Is similar to Section 108, hereinbefore set forth.</p> <p>Notwithstanding the stringent requisitions contained in said sections of the general ordinance of the city of Augusta, no taxes were ever demanded from the complainant during the years aforesaid, nor was he returned as a defaulter during either of those years; nor did any execution issue against H'ill and his securities, for his failure to collect said taxes, due from the complainant to said city. The chairmen of the Committee on Finance, who were members of said city council, and whose especial duty it was to examine and report upon the books and accounts of the treasurer and collector, had been informed of the arrangement, and contract between the said Hill and complainant, and had allowed the accounts ’ of the said Hill to pass without objection on that account, and without requiring any demand to be made upon the complainant for his taxes, or any proceedings to be instituted for the collection of such taxes,. as, by the ordinance of said city, they were required to do-, if they deemed the complainant a defaulter. The said Hill was elected and re-elected to said office, during the years aforesaid, and was not removed by said city council, during said years, for any default or failure of his with reference to the taxes due to said city from the complainant. In view of all the foregoing facts, and of the course pursued by the said council towards the said Hill, and toward the complainant, and in view of the rigid accountability imposed by the said ordinance on the collector and treasurer, the complainant believed, and had a right to believe, that the city council were awat;e of the contract aforesaid between said Hill and the complainant, and that said council acquiesced in the same, and were willing to look to said Hill for the payment of the taxes due by complainant to said city, inasmuch as no proceedings were ever taken by the council, either against said Hill or complainant for a failure to collect or pay such taxes. Thus believing, the complainant rested easy, and took .no. steps to secure his claim against Hill, or obtain á receipt for his taxes, or to see that the books of the collector and treasurer showed that they were paid, as he might and would have done under other circumstances. But now, at this late day, the complainant finds himself disappointed in his said reasonable belief and expectation, and, since the death of said Hill, is informed that there are no entries on his books showing any payment by him of the complainant’s taxes, since the year 1849, and said city council has instructed and directed Edward Bustin, Esq., the present collector and treasurer of said city, to issue executions against the complainant for the same, which instructions the said Bus-tin has obeyed, by issuing against the complainant ten executions for his taxes for each of the years, 1850, 1851, 1852, 1853, 1854, 1855, 1856, 1857, l8S8, and 1859, with ten per cent, damages for failing to pay the same at the time prescribed by the mth section of the general ordinance of the city hereinbefore set forth. The aggregate sum of the taxes and damages for which said executions issued, amounts to more than twenty-six hundred dollars. Although the said executions purport to have been issued for the taxes due for the years to which they respectively relate, yet they were all issued on, and bear date, the 14th of February, i860, and on the 21st day of the same month and year, said executions were levied by said Bustin, collector and treasurer, on a house and lot of the complainant, in the city of Augusta. The executions, with the levy entered thereon, are all annexed to the bill as exhibits. Bus-tin threatens to, and, as complainant alleges, will, proceed to sell said house and lot, unless arrested in his course by the interposition of a Court of Chancery. Inasmuch as the .provisions of said city ordinance have not been pursued, nor their prescribed requisites complied wjth, by a demand of said taxes from complainant, and a return of him to the council as a defaulter, he alleges that the fi. fas. are proceeding against him contrary to good conscience and equity. Foster Blodget is now mayor of the city of Augusta, and a member of the city council, and has a knowledge, or belief founded on facts, which are material to the case made by the bill, and of the circumstances alleg-ed therein, and complainant claims his answer under oath, as to the truth of the facts so alleged, and as to who are the agents, officers and members of said corporation, inasmuch as he has combined and confederated with the city council to injure the complainant in the premises.</p> <p>Complainant prays by his bill that a subpoena issue, to compel the city council ■ and Foster Blodget to answer the bill and discover the facts; also, that an injunction issue to restrain the collection of the tax fi. fas., and that he have such other relief as his case calls for.</p> <p>On the 7th of April, i860, the injunction was granted, as prayed for by the bill.</p> <p>The city council of Augusta filed their answer to the bill, in which they admit a belief that a business partnership existed between Hill and complainant, and that it terminated about the time stated in the bill, but as to how the accounts stood between them, or whether Hill owed complainant a large or any balance, they know nothing; that Hill was insolvent, and so continued to the time of his death; that he was elected collector and treasurer which yielded a profit and salary as stated; they know -nothing of the agreement for Hill to pay complainant's taxes, as charged in the bill, or of his having in good faith paid such taxes up to 1849, in fulfilment of the agreement; they know nothing of the certificate of payment being furnished to complainant, nor of Hill’s assurance that other certificates of payment should be given; all they know on that subject is: that up to 1850 complainant’s taxes were paid, but how, by whom, and under what arrangement they were paid, the defendants do not know, as the fact that they were paid was the only matter that concerned them; the defendants admit that the ordinances of the city of Augusta are correctly set forth in the bill; they do mot kno-w whether Hill ever demanded from complainant the taxes he was due to the city of Augusta, and they do not believe that Hill ever reported or returned complainant as a defaulter; for if such had been done, the defendants would have proceeded to enforce the collection of the taxes. No proceedings were ever instituted against Hill and his securities, for his failure to pay or collect the taxes of complainant; the defendants admit that Foster Blodget and Benjamin Conley, who were chairmen of the Finance Committee of the city council, were told by Hill that he had agreed to pay complainant’s taxes, but information of the fact was never communicated to the city council, nor did the council assent to, or acquiesce in, such agreement or arrangement; the defendants controvert complainant’s right to assume or believe that they knew of the alleged arrangement between him and Hill, and that the city council acquiesced in such arrangement, and were looking to Hill instead of complainant for his city taxes; they insist, that if all the allegations in complainant’s bill were true (but which they do not admit), it was his duty to see to it that Hill paid the taxes, as, by the alleged arrangement, Hill was but his agent, and if his own agent proved faithless to the trust reposed in him, it neither furnishes a cause of complaint against the defendant, or any good reason why complainant should be relieved from the payment of taxes which he owes the city, and which have never been paid; the defendants deny that no demand was made upon complainant for his taxes before said executions were issued, but aver that a demand was formally, and in strict compliance with said ordinance, made by the said Edward Bustin, collector and treasurer of said city, upon said complainant for said taxes, and that upon failure to pay the same, he was presented and returned by said Bustin, to said city council, as a defaulter; that upon said demand upon the complainant, his failure to pay the taxes, and his being returned as a defaulter, and not before, the proceedings against him were instituted and the ii. fas. issued; the defendants admit that the fi. fas. were issued, dated and levied at the time and in the manner set forth in the bill, and that the collection of the sums due in said fi. fas. would have been enforced but for the injunction issued in obedience to the prayer of the bill</p> <p>Foster Blodget also filed his answer to the bill, which is substantially the .same as that of the city council, with the following additions, to wit: That he believes no execution was ever issued against complainant until after the death of Hill; that he is mayor of the city of Augusta, a citizen of said city, and a member of said corporation; that since Hill’s death he has been informed by complainant, and believes it to be true, that Hill at some time did say to complainant, that he was growing so rich, that it would keep him [Hill] poor all his life to pay complainant’s taxes; that in the summer of 1858, Hill did inform defendant, that when the partnership between him and complainant was dissolved, that he owed complainant a large amount of money which he had no means of paying, and that he had made an arrangement with complainant to pay his taxes for him; the defendant was chairman of the Committee on Finance, at the time; the defendant also believes, from the information of said Hill and Benjamin Conley, that Hill made the same statement to Conley, while he [Conley] - was either mayor, or chairman of the Committee on Finance, but at what time, or under what circumstances, the defendant does not know; he does not know whether this information was ever given to any other member or officer of the council; he believes, that owing to this arrangement for Hill to pay complainant’s taxes, the said Hill failed to demand the taxes from complainant,’or to report him as a defaulter; and he also believes, that but for such arrangement, which he believed existed, that the said chairman of the Committee on Finance would have taken steps to enforce the liability of said Hill for said taxes, under the ordinance of said city.</p> <p>Upon the coming in of the answers, counsel for the defendant’s moved to dissolve the injunction, on the grounds:</p> <p>ist. That there is no equity in the bill.</p> <p>2d. That if there be any equity in the bill, the facts and circumstances upon which it is based, are fully denied by the answers of the defendants.</p> <p>• The presiding judge sustained this motion, and dissolved the injunction, and this decision is complained of as error.</p>

Tried before Judge Hoi,T, at the May Term, i860. Simeon Warnock made application to the Court of Ordinary of Burke county, for letters of guardianship of the person and property of Martha Furania Tindall, a minor child of Everett Tindall, deceased.

In Equity, in Emanuel Superior Court. Decision on demurrer made by Judge Holt, on the 25th of September, i860. Held: treated and «managed said negroes as the sole and separate property of the complainant up to the time of his death, and so declared time and again.

In Equity, in Chatham Superior Court. Decision on demurrer, made by Judge Filming, in vacation.

<p>When the verdict is without evidence, a new trial must he granted.</p>

In Equity, in Liberty Superior Court. Decision on demurrer made by Judge Fleming.

Trover in McIntosh Superior Court. Tried before His Honor William B. Fleming. This was an action of trover, brought by Marsime J. Desverges, as administrator, de bonis non, of James C. A. Desverges, deceased, against John E. Desverges, to recover certain slaves alleged to be the property Of the estate of said deceased. The defendants pleaded the general issue, and statute of limitations.