Volume 32 — Georgia Reports

Complaint in Dougherty Superior Court. Tried before Judge Allen, at the June Term, 1860.

<p>Where a warrantor of the title of land is notified of the pendency of an 1 action brought to evict his vendee, and he fails to make the necessary-proof to protect the title, he is liable, upon an action of Covenant for a breach of his warranty, for the purchase money and interest and costs of the case; and the failure of the vendee to produce a deed, will not excuse him, if he could have successfully defended the action without the deed, and the deed itself would not have availed without this additional proof.</p>

Complaint in Dougherty Superior Court. Tried before Judge Allen, at the December Term, 1860.

Complaint in Dougherty Superior Court. Tried before Judge Allen, at the June Term, 1860. The facts and questions presented by the record in this case, are as follows, to-wit: On the 29th of June, 1854, Daniel Hartlett and Lindsey H. Durham entered into a written contract of partnership, “ in the business of making and selling bricks,” in the city of Albany, which was to continue for three years, unless dissolved by mutual consent.

<p>To authorize an injunction, the charges in the bill should not be argumentative, and inferential only from the facts stated.</p> <p>A plaintiff in execution will not be restrained by a Court of Equity from collecting his money out of one of the defendants, even though he be security only upon the original debt.</p>

Action on a promissory note, in Bibb Superior Court. Tried before Judge Iverson L. Harris, at the May Term, 1860.

In equity, in Bibb Superior Court. Tried before Judge Lamar, at the May Term, 1861.

Ejectment, in Stewart Superior Court. Tried before Judge Perkins, at the October Term, 1860. This was an action of ejectment brought in favor of John Doe, ex. dem. William BL Irwin, against Richard Roe, casual ejector, and John McDowell, tenant in possession, for the recovery of lot of land Humber 50, in the 22d district, of originally Lee, now Stewart county. The defendant pleaded the general issue, and the Statute of Limitations.

In Equity, in Schley Superior Court. Decision on Demurrer, made by Judge Worrirr, at Chambers, on the 18th of December, 1860.

<p>1. When a guardian is charged by his former ward with being guilty of devastavit, and he has given different bonds, with additional or different securities, in the CQjirse of his guardianship ; a bill may be filed against the guardian and the different sets of securities, praying a discovery of the amount of the devastavit and the time when it occurred, in order to charge each set of securities according to their respective liabilities on their bonds—Provided, the bill charges—the total or partial insolvency of the principal, or a well grounded apprehension that the guardian will be unable to satisfy the recovery which may be obtained against him.</p> <p>2. To make the dismissal of a former bill a bar to the bringing of a second, the material allegations in both must be the same.</p>

Trover in Bibb Superior Court. Tried before Judge Lamab at the November Term, 1860. This was an action of- Trover, commenced on the 2d day of August, 1859,- by Eaton J. Mapp, against William R. Phillips, to recover damages for the alleged conversion of a negro man slave, named Isaac. On the trial of the case in the Court below the following testimony was adduced, to-wit: •EVIDENCE FOB THE PLAINTIFF.

In Equity, in Dougherty Superior Court. Tried before Judge Alleh, at the June Term, 1860.

Assumpsit, in Webster Superior Court. Tried before Judge Perkins, at the September Term, 1860. This was an action brought by Erasmus T. Beall, as bearer, against Martin M. Leverett, as administrator of John R. Leverett, deceased, to recover the amount of a promissory note, made by John R. Leverett, in his lifetime, payable to II. W. Jernigan, or bearer, dated 'the 13th of December, 1848, and due one day after date, for two hundred dollars.

<p>Motion to enter up judgment for witness’ fees, in Dougherty Superior Court, decided by Judge Allen, at the December Term, 1861.</p> <p>The facts and questions presented by the record in this case are as follows:</p> <p>Joab J. Gilliam was convicted of an assault and battery, and sentenced to pay a certain fine, and the costs of the prosecution. He paid the fine and all the costs,' except the fees of the witnesses. Christianna Axon was subpoenaed as a witness in said case, in behalf of the State, and when the prosecution terminated, she made out an account against the county of Dougherty, for her attendance, under the subpoena, twenty-six days, $25; and for traveling to and from Court, two terms, whilst she lived in the county of Calhoun, a distance of twenty-six miles from the place of trial, $6 45, and also for traveling to and from Court two terms, whilst she lived in the county of Decatur, a distance of sixty miles from the place of trial, $16 45. This account was verified by the affidavit of the witness, made on the subpoena. Upon this showing, the presiding Judge passed an order: “That the amount of said account be taxed in the bill of costs, and that the county treasurer pay the same out of the county funds.”</p> <p>At the June Term, 1860, a rule nisi was taken, reciting the foregoing facts, and that the Clerk had failed, by mistake, or other cause, to tax in the bill of cost the fees due to said witness, and requiring the said Joab'J. Gilliam to show cause why judgment should not be entered up against him for the costs and fees due to said witness.</p> <p>In answer to this rule, Gilliam alleged : That no witness residing out of Dougherty county, had ever been subpoenaed in said case; that the witness charged more in said account than was due her, both for attendance and mileage; that she attended Court under subpoena in civil cases, and other State eases, and was entitled to pay only on one subpoena; and that before he was discharged from custody by the sheriff, he paid all the cost that was due from him in said case.</p> <p>The issue thus made up, was submitted to a jury at the December Term, 1860.</p> <p>On the trial of the case, the plaintiff read in evidence the bill of indictment, with the verdict and judgment thereon, and a receipt to the defendant for the fine, and all cost, except witness' fees; also, the subpoena, the account of witness, the affidavit verifying the same, and the order of the Judge directing the amount to be taxed in the bill of cost, and paid by the county treasurer, and closed the case.</p> <p>Counsel for defendant moved a judgment of non-suit against the State, which was overruled. The jury then returned a verdict for the State.</p> <p>The error assigned, is the refusal of the Judge to grant the non-suit moved for.</p>

Certiorari, in Sumter Superior Court. Decided by Judge Allen, at the October Term, 1860.

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

Complaint, in Sumter Superior Court. Tried before Judge Allen, at the October Term, 1860. William A. Black instituted an action against fNewnan McBain, to recover the sum of money mentioned in an agreement, of which the following is a copy, to-wit: “ Whereas, Wm. A. Green has hired, from Wm. á..

<p>Ejectment in Dougherty Superior Court. Tried before Judge Allen, at the December Term, 1860.</p> <p>This was an action of ejectment, instituted on the 17th of May, 1850, in favor of John Doe, ou the demises of John S. Porter, Henry J. Porter, Abraham McLaws, and his wife Sarah McLaws, heirs at law of John 8. Porter, deceased; James Cartlege, Martin Fields, Benedict White, and Hamlin J. Cook, against Richard Roe, casual ejector, and John Boatright, and Matthew Whitfield, tenants in possession, to recover lot of land number 16, in the second district of originally Early, now Dougherty county.</p> <p>On the trial of the case in the Court below, the following testimony was adduced, to-wit:</p> <p>EVIDENCE FOR THE PLAINTIFFS.</p> <p>The grant from the State of Georgia to Benedict White, for the land in dispute, dated the 29th of December, 1820.</p> <p>A deed from Benedict White to Martin Fields, for the land in dispute, dated the 22d of May, 1824, and recorded the 28th of December, 1849.</p> <p>■ A deed from. Martin Fields to James Cartlege, for the land in dispute, dated the 16th of March, 1826, and recorded the 28th of December, 1849.</p> <p>A deed from James Cartlege to John S. Porter, dated the 2d of April, 1830, and recorded the 28th of December, 1849, for the land in dispute.</p> <p>The admissions of counsel for defendants, that the land sued • for was situated in the county of Dougherty, and that the tenants sued, as such, were in possession at the time the process was served. :</p> <p>Here the plain tiff rested.</p> <p>EVIDENCE FOR THE DEFENDANTS.</p> <p>A copy deed, duly certified from the records of Early Superior Court, from Benedict White to Edwin Huff, dated 30th</p> <p>of December, 1820, and recorded in December, 1821, accompanied with an affidavit, accounting for the non-production of the original.</p> <p>A deed from Edwin Huff to James-Anderson, dated 24th of September, 1822, and recorded 21st of October, 1823.</p> <p>Here the defendants closed.</p> <p>EVIDENCE EOB THE PLAINTIFFS IN BEBUTTAL.</p> <p>Benedict White .testified :. That he was duly released from liability in this case; that he resided in Columbia county before the war between the United States and .Great. Britain, and was a soldier in that war; that immediately after the peace, he settled in Baldwin county, and lived there from March until the second Christmas afterwards; that he drew-the land in dispute whilst he lived in Baldwin county; that from Baldwin, he moved to Twiggs county, and resided there two years; that from Twiggs, he moved to Wilkinson, and lived there one year; that from Wilkinson, he moved back to Columbia, and while a citizen of Columbia, he got Arthur Foster to take out the grant for him; that Foster sent the grant tó him, thrdugh the post office at Augusta, and when he took it out and started home, .he met with Martin Fields, got into .a drinking spree with him, and lost the land in a game of cards with Fields, and .made.him a deed; that, on the nest day, he did not know that he had gambled off his land, until Eldridge, one of the witnesses, told him of it, and he has recollected it ever since; that he never conveyed the land to Edwin Huff, and, if there was ever such a deed, it was a forgery; that he has testified in this case several times—once on the stand, and three times by answers to interrogatories; that he had never sworn that he did not know Huff; that he never-swore that he never lived in Twiggs county a day in his life;. that A.'H. McLaws gave him a note for $300 for his good will, to prevent him from setting aside the deed to Fields, because based on a gaming consideration; that he gave the note to Mullin, to get the money, and had not seen it since;, that he never swore that Mullin brought the note back to him, nor that he had delivered the note to McLaws’ brother; that the note had’never'beén paid to him; that witness once thought he would get something from the heirs of Porter, but that it had got so mixed up, that he had given up the idea; that he was ignorant and illiterate, and could neither .write or read writing’; that he had a conversation with Turpin oh the cars, but not about this shit, or the land in dispute, but about land that he was entitled to as a soldier; that he did not know whether the conversation with Turpin was about the land he drew or not, he could not remember; that he did not know whether he told Turpin that he'had been down to Albany to attend to, a law-suit or not, he did not remember; that he did not know whether he told Turpin that he was interested in the suit or not, and that, if a recovery was had for the plaintiffs, he would get half; he did not remember; that what he said to Turpin was not said under oath.</p> <p>A deed from Robert Hardy, former sheriff of Baker county, for the land in dispute, dated 4th of March, 1828.</p> <p>A deed from James Anderson to John Hickman for the land in dispute, dated 13th of December, 1831, which was objected to by defendant’s counsel, and objection overruled.</p> <p>A deed from Hickman to Wells Thompson, dated 8 th of October, 1833, and</p> <p>A deed from Thompson, by John Hickman, his attorney in fact, to Alexander Dennard, both of which were objected to by counsel for defendant, and the objection overruled.</p> <p>L. G. Sutton testified: That, in 1834, he knew John Hickman, who was then twenty-five or thirty years old, and his neighbors spoke of him as a contentious man;. that rumors were afloat of his being engaged in land swindles in 1838 ; that he ran away shortly thereafter, and witness understood on account of difficulties about a land transaction ; that lands, like the lot in dispute, could have been bought, in 1820, for $30 00, or #40 00 per lot.</p> <p>EVIDENCE FOR DEFENDANT IN SUR-REBUTTAL.</p> <p>Needham W. Collier testified : That some five or six years ago, he saw a note signed by A. H. McLaws, payable to Benedict White, for $300 00, whenever the heirs of John S. Porter should recover the land in dispute, upon the interrogatories of the said Benedict White; that he first was of opinion that White had it, but now thinks it was not White; that the man who had it, and whose name witness does not know, showed it to witness and others, on the 11th of February, 1853, and made inquiry about the status of the land, and the residence of McLaws; that witness called the attention of Pace, Plampton, and others to the circumstance,-and took a memorandum of the note, and what it said, at the time.</p> <p>Pace testified that Collier’s testimony was true.</p> <p>Col. David A. Vason and the Hon. Lott Warren both testified: That on his former examination as a witness, Benedict White swore that he never lived in Twiggs county ; that they are certain of this, because they thought that plaintiffs might rely upon a sheriff’s deed to Porter, resting on a sale under a fi.fa. from a Justice’s Court of Twiggs county, and asked the witness the question, in order to ascertain if he ever lived in Twiggs county; that after White had testified on that trial, a motion was made to continue the case, to get the Justice’s Court fi.fa., and the motion was not resisted by the witnesses, on the ground that White never had resided in that (Twiggs) county.</p> <p>William H. Turpin testified: That he had a conversation, at the request of Mr. Sullivan, with Benedict White, on the cars, in which he spoke of a law-suit in Albany, about some land he drew as a soldier, and that they were trying to defraud him out of it; that he lived in Columbia county, and drew the land; that the lawyers were to be paid if the land was recovered, and if no recover)’- no pay ; that T. C. Sullivan heard the conversation, and seemed pleased with White’s statements; that he saw nothing in White to make him distrust him, and does not believe he would swear falsely, and would believe him on his oath.</p> <p>Thomas C. Sullivan testified : That he had made diligent inquiry for Edwin Huff, and learned from his former neighbors, that he had been dead fifteen or sixteen years; that the facts testified to by Yason, and Warren, and by Turpin are true.</p> <p>William Sanford testified: That he knew Edwin Huff in 1815; or 1820, or thereabouts, in Baldwin county, but does not recollect the year he left Baldwin county, nor whither he removed; that his character was that of an honorable, correct man, whose integrity witness never heard impeached; that he was an overseer, of moderate means.</p> <p>William R. Butts testified: That he knew Edwin Huff well; that he bore the cliaracter of an honest man; that he and William Parham were the attesting witnesses to the deed shown to witness, from Edwin Huff to James Anderson, dated 24th of September, 1822; that witness also knew Benjamin Talbert, Thomas Humphries and James C. Humphries, all of whom were men of good standing, and unblemished character; that Talbert and James C. Humphries are dead, and Thomas Humphries is still living; that he has no distinct recollection of Benedict White, although the - name is familiar.</p> <p>Thomas C. Humphries testified: That the deed shown him is a copy of one purporting to be by Benedict White to Edwin Huff, both of Baldwin county, dated 30th of December, 1820, and attested by witness and Benjamin Talbert, and James C. Humphries, J. P.; that witness has no recollection of the deed or its execution; he knew White, and Huff, and the witnesses ; Huff was a man of good character, so was James C. Humphries, and Benjamin Talbert, and if any one signature to the original of the copy-deed is genuine, the deed is not a forgery.</p> <p>The depositions of Benedict White, taken on three different occasions in this case, and now offered to impeach said White:</p> <p>In the first, he testified : That he drew the land in dispute whilst' he lived in Baldwin county; that he has since resided in Columbia county, and moved from thence to Emanuel county; that he sold the lot to Martin Fields, long before he left Columbia, as the deed annexed to the interrogatories will show, and he never sold it to any one but Fields, as he, witness, is an honest man ; that he sold the land to Fields, on the road from.' Columbia to Augusta; that the land never did him any good, as he lost the consideration at cards with said -Fields; that he never knew Edwin Huff*; that he had no interest in the suit, and was a stranger to the parties in interest, except A. H McLaws, and had, therefore, no inducement to do anything but justice between the parties.</p> <p>In the second,- he testified, amongst other things, that he was acquainted with Edwin Huff, of Baldwin county; that McLaws gave him his note for $>300 00, not to set up' any claim to the land, as he had lost it at cards, and to indemnify, him against- loss, if he should go to Baker county as a witness ; that he gave the note to one Mullin, who went out to Baker county, so that if he saw McLaws, and could get anything, he, Mullin, might have it, but failing to get anything, Mullin returned the note to him, "White; that .he afterwards gave the note to a brother of McLaws; that the note was not given as a compensation to testify; that the note was to become payable on the contingency of witness having to attend Court, and pay his expenses; that he knows nothing about Edwin Huff’s character for honesty, but does not believe him to be just or honorable, or he would not-claim the land.</p> <p>In the third, he testified, that he was acquainted with Edwin Huff.</p> <p>Col. Peter J. Strozier testified: That he knew John Hickman in 1838, or 1839, and that he understood that he ran away, and it was also reported that he had some difficulties with Thomas Holmes about land trades; that Hickman, if in life, would now be about 50 years old.</p> <p>Dr. Gilbert and Joab Gillian testified about the same that Strozier did, as to Hickman’s age, if alive, and that they both knew him in 1838 or 1839.</p> <p>The testimony being closed, the presiding Judge charged the jury:</p> <p>“That if the jury believed that Benedict White made both deeds, then the deed to Huff, under which defendants claim, being the older, they should find for the defendants.</p> <p>“ The testimony of Benedict White was admitted by the Court, because, .on his voir dire, he rendered himself competent, but should the jury believe, from the evidence in this case, that he, White, will be entitled to $300 00, or any other sum of money, under the agreement with McLaws, to be paid only in the event that the plaintiffs do recover, then . this will show such an interest in him, in this case, as disqualifies him as a witness therein, and-the jury should discard his evidence.</p> <p>“' That there are several modes of discrediting witnesses, and amongst them, it is competent to show contradictory statements, made before, and if the jury are satisfied that Benedict White has made statements under oath, upon material facts in this ease, contradictory -to what he stated on this trial, then the jury should not give his testimony any weight in this case, for the reason, that it is unsafe to trust to the statement of a witness as to any matter, who has testified falsely to any material- fact in the case.</p> <p>“That if the jury should believe that Benedict White never resided in Twiggs county, then no execution could be legally obtained there against him, and the sheriff’s sale, under a fi. fa. from Twiggs county Justice’s. Court is void, and no title could pass under such a sale.</p> <p>“That if the jury should believe this lot of land was won at cards, by Martin Fields, from White, and the deed was made upon that consideration, then no title passed to Fields, by the deed, and plaintiffs cannot recover.</p> <p>“ That if the jury are satisfied that the deed to Martin Fields was made upon a gaming consideration, then the sheriff’s sale afterwards, could convey no title from Benedict White to the purchaser, because from the date of the deed in 1824, to Field,®he had no interest in the land, for- all his title vested in his next of kin—unless the plaintiffs had shown a valid and subsisting judgment against White, anterior to the deed to Fields, and as there is no evidence of the date of the fi. fa. against White, under which the land was sold in 1828, the title cannot have effect or relate to any time anterior thereto.”</p> <p>Under this charge, and the facts hereinbefore set forth, the jury returned a verdict in favor of the plaintiffs for the premises in dispute, with costs of suit.</p> <p>Counsel for defendants then made a motion for a new trial, predicated on the grounds following, that is to say :</p> <p>1. Because the verdict is contrary to law and evidence.</p> <p>2. Beeause the verdict is against the weight of evidence, and without evidence.</p> <p>3. Because the verdict is contrary to the charge of the Court, and especially so, to the following paragraph of the charge: “that if the jury were satisfied that the deed from White to Fields, in 1824, was based upon a gaming consideration, then no title vested in Fields, but thereby vested in the next of kin of the said White.”</p> <p>4. Because the Court erred in allowing the sheriff’s deed, under which the plaintiffs claim title, to go to the jury upon the following testimony of Hamlin J. Cook, to-wit: “ that he had applied in Dennard’s district, Twiggs county, for the Justice’s Court 'ji. fa., under which the land was sold, and after diligent search, was unable to find any docket for the district, or any information as to the fi. fa.; that there was now no Justice of the Peace in that district; that he had searched the clerk’s office of Baker Superior Court, but found no trace of the Ji. fa,.; that he had not applied to Robert Hardy, the sheriff, who sold the land, for thefi.fa.; that he has understood that Hardy lives somewhere in the West; that he did not apply to the Executive Department to ascertain who ■ was Justice of the Peace in Dennard’s district, Twiggs county, at the time, or before, or after the sale; that he did apply to the heirs or administrators of Porter, the plaintiffs in this case, for said fi. fa.” The defendants admitted that the fi. fa. was not in the possession, power, custody or control of the heirs of Porter, but objected to the deed going in evidence, unless the existence of the fi. fa., recited in it, was proved, which objection the Court overruled, and the deed was admitted, the Court holding that it was not necessary to prove the existence of the fi. fa., and that its non-production was sufficiently accounted for to let in the deed.</p> <p>5th. Because the Court erred in admitting the evidence of Strozier and Sutton, as to the general bad character of John Hickman, one of the parties under whom the defendants claimed title.</p> <p>6th. Because the Court erred in requiring counsel for defendants to deliver up to the plaintiffs’ counsel, a deed from James Anderson to John Hickman for the land in dispute, and also a deed from John Hickman to Wells Thompson, and one from Wells Thompson, by his attorney in fact, Alexander Dennard, and in allowing .the plaintiffs to introduce them as evidence against defendants, and over their objection, when no notice to produce the deeds had ever been served upon defendant or their counsel.</p> <p>7th. Because the Court erred in refusing to charge the jury, “ that whatever title was in Benedict White, at the time he made the deed to Fields, became vested in his next of kin by said deed,” and also, “ that as the law stood in 1820, any one could take out a plat and grant by paying the grant fees, and it was not necessary for Huff to have obtained the original plat and grant to White, in order to make his title good.” •</p> <p>This motion was overruled, and the new trial refused, and the plaintiffs in error ask a reversal of the judgment, because of alleged error in that decision.</p>

<p>One of two executors filed a bill in Equity, against his co-executor, alleging a sale of testator’s property, receipt of money by defendant, that he was in an embarrassed condition, and had spent the money, etc.; with a prayer that the defendant might bring the money into Court, to be secured for the trusts of the will, to protect complainant from loss on account thereof, etc.:</p> <p>1. Held, That there was equity in the bill.</p> <p>2. That an injunction prayed for by the bill, requiring the defendant to give bond to have the money forthcoming to answer the decree previously granted and ordered, was proper and necessary , and ought not to have been dissolved.</p>

Ejectment, in Lee Superior Court. Tried before Judge Allen, at the September Term, 1860. This was an action brought by John Doe, on a demise, from the orphans of Obediah Osteen; one from James Mims and his wife, and Turner Hall and his wife; and one from Alfred Kei’sey, and Griffin Smith, against Richard Roe, casual ejectoi’, and Jesse C. Hill and Charles Coney, tenants in possession, to recover lot of land, number eighty-five, in the first district of Lee county.

Issue of devisavat vel non, in Chattahoochee Superior Court. Tried before Judge Perkins, at the May Term, 1860. The facts and questions in this case, as gathered from a somewhat meagre record, are as follows: On the 31st day of March, 1854, James Hickey executed a will, disposing an estate, consisting of lands, negro slaves, and choses in action, worth, in the aggregate, $50,000 00, or more.

<p>1. The Act of 30th December, 1847, (Cobb’s Digest, 180), requires mar: riage settlements, or agreements, executed previously to the passage of that Act, to be recorded, .after its passage and publication, whether recorded or not.</p> <p>2. The registration of such conveyances, only, as are -required by law tobe recorded, operates as constructive notice to subsequent purchasers of the.same property so conveyed.</p>

<p>1. The plaintiffs were the co-heirs, or distributees, and their representatives -of the grantor, who had died leaving no children. Held : That, the paper was a gift by the grantor to those persons, who, like himself,, were heirs to his father, reserving a life-estate in the property himself; the estate created, subject to be defeated by the^death of grantor leaving, at his death, child or children surviving him.</p> <p>2. When a deed of gift contains grantees so designated or plainly referred to as to be easily ascertained, a subject-matter, and a time when the gift is to take effect, there is sufficient certainty to require the Court to give it effect.</p> <p>3. A gift, although voluntary, is good, and may be enforced, if it is an executed and not a mere executory one.</p> <p>4. No particular form of words is necessary to make a conveyance ; so that the words used indicate an intention to convey it, is sufficient.</p>

Certiorari from Bibb Superior Court. Decided by Judge Lamar, at the November Term, 1860. The facts of this case are substantially as follows: James S. Morris bargained with Raney Montgomery and Mary Duncan for a plantation in the county of Baldwin, and five negroes, for which Morris agreed to pay $8,000 00.

Complaint, in Yfebster Superior Court.. Tried before Judge Perkins, at the September Term, 1860.

<p>In Equity, in Lee Superior Court. Decided by Judge Allen, at the September Term, 1860.</p> <p>George W. C. Munroe filed his bill in equity in Lee Superior Court, against Willis A. Jones, James M. Morris, and James Bond, alleging, in substance, the following facts : On the second of October, 1838, Abraham Dyson, then sheriff of Lee county, executed a deed of conveyance, as such, to William Howard and William S. Whitehead, for lot of land No. 14, in the second district of said county, pursuant to a sale of the same, by virtue of a fi. fa. from a Justice’s Court of Habersham county, in favor of Tyre Swift, against Ransom Cain, as the property of the latter. This deed was registered on the 2d of November, 1838. On the 25th of June, 1840, Elijah Cutts, then sheriff of said county, executed a deed', as such, to William J. Parker, for the undivided half of said land, pursuant to a sale of the same, as the property of William S. Whitehead, under a fi. fa., from a Justice’s Court of Stewart county, in favor of William J. Parker against said William S. Whitehead. This deed was recorded on the 30th of March, 1842. On the 25th of November, 1850, David A. Vason conveyed, by deed, to Munroe, one undivided half of the land, and, on the 25th of the same month, the said William J. Parker conveyed, by deed, to Munroe, one undivided half of the land. Both of these deeds were recorded on the 7th of January, 1851. Munroe entered into possession of the land under these deeds, cleared about fifty acres of the lot and placed them under cultivation, and also made other valuable improvements thereon, making the land worth twenty-five hundred dollars. Whilst Munroe was thus in the bona fide possession of the land, believing that it was his, and holding the same adversely to all the world, James Bond, who was then speculating in lands, came to the house of complainant, and sought information as to various lots of land then vacant in the neighborhood of complainant, which information complainant gave. Bond seemed grateful, and assured complainant that, in return, he would aid complainant in the purchase of any lands that he might want. Complainant then told Bond that he had bought the said lot, Ho. 14, and had cleared and improved it as aforesaid, and believed he had a good title, but that some of the back deeds were rhissing, and that, owing to the imperfect index to the records, he was unable to trace the title back to Ransom Cain, the drawer. Some time thereafter, one James M. Morris came to complainant’s house, pretending to be the agent of Bond, and that, a similar interview occurred between him and complainant, to the one between complainant and Bond.</p> <p>Morris and Bond searched out the whereabouts of Ransom Cain, and, in fraudulent disregard of their promise to complainant, they bought the land from Cain, taking a deed to Morris. This purchase was for a nominal sum, and Morris made a deed to Bond, in which a larger sum is mentioned, when the land was, in fact, purchased by Morris for Bond, and with his money, .and for his sole benefit. Bond employed counsel- to bring an action of ejectment, on demises from Cain, and Morris against complainant, to recover said lot of land. Ho demise from Bond was laid in the writ, because he desired to conceal his ownership of the land, and dodge and evade his obligation to complainant, as before stated. The action of ejectment is now pending on the appeal in Lee Superior Court. Complainant’s counsel advised him, that although he had a regular claim of title from Ransom Cain, the drawer, all of which, as was ascertained, had been regularly and properly recorded, yet, as the land was sold by the sheriff, as the property of Cain, before the grant had issued, the title was doubtful; but that, as Morris bought from Cain whilst complainant held possession of the land adversely, it would be well for -complainant to buy the land from Cain, which advice complainant followed, and, on the 25th of January, 1854, obtained a deed from Cain to the land, paying therefor the sum of $250 00. On the trial of the ejectment, the main ground of defence relied on was, that Cain’s deed to Morris was void, under the provisions of the statute of the 32d of Henry "VTII, which was fully sustained by the presiding Judge in his charge to the jury, and a verdict was rendered in favor of the complainant. The case was carried to the Supremo Court, and the judgment of the Court below reversed by the judgment of a majority of the Judges of the Supreme Court, who decided that the said statute of the 32d of Henry VIII was not of force in Georgia. His Honor Joseph Henry Lumpkin dissented from the judgment of his colleagues, and held that said statute was of force, and if it was not, that the principles of the common law rendered a deed void, executed whilst the land was in the adverse possession of another. The General Assembly, at its session of 1858, passed an Act declaring that the decisions of the Supreme Court, made, or to be made, in which all three of the Judges concurred, or might concur, should not be reversed, overruled, or changed, except by the General Assembly, and that such decisions should be carried out by the Courts, until thus reversed, overruled or changed. Afterwards, complainant sold his settlement of land, includ- ■ ing this lot, to Willis A. Jones, for $7,593 50, being $12 50 per acre, and that Jones paid all the purchase money, except for the lot in controversy, for which he -gave his note, payable one day after date, with a condition inserted therein, that if the action of ejectment should be decided against complainant, the note was to be void, and, if otherwise, the note to be paid, with interest from its date. The land is more valuable as a part of the plantation sold to Jones, as aforesaid, than by itself, and will be of comparatively little value to complainant by itself, unless Jones would cancel the trade entirely, and re-convey to complainant the whole settlement. Jones refused to pay the note, and contends that, as the Supreme Court decision was adverse to complainant, the note is void. On the 14th of December, 1858, Messrs. Lanier and Anderson, attorneys for Bond, with a full knowledge of. the fact that the Legislature had passed the Act aforesaid, and carefully concealing the same from the complainant, who was ignorant of the fact, represented Bond’s title as the only true legal title to the land, and pronounced complainant’s title as worthless in law, and told complainant that the case could be then, and then only, compromised, and would give complainant no time to inform himself as to the passage of such an Act. Confiding in the statements and representations of the said Lanier & Anderson, and desiring to save all he could of his hard earnings, expended for and upon said land, the complainant was induced by them to make a most unjust and illiberal compromise of said action of ejectment. The agreement to compromise was reduced to writing by said attorneys of Bond, in which it was stipulated and agreed, that complainant should give Bond his promissory note for $2,000 00, due one' day after date, with interest from the first of January, 1858, and also deliver up to said attorneys, as collateral security, the note of Jones aforesaid, which was for $2,500 00, and that Bond should execute to complainant a quit claim deed for the land. It was further stipulated, in said agreement, that the note given by complainant should be paid out of the proceeds of the note on Jones, and the balance paid over to complainant, and that if said attorneys should have to sue the note on Jones, they were to retain five per cent, on the surplus, after paying of the note given by complainant to Bond. Under the agreement, complainant was to take a verdict in the action of ejectment, and Bond was to deliver up to him the deeds from Cain to Morris, and from Morris to Bond. So soon as com- . plainant found out that he had been entrapped and duped into said compromise, and had ascertained that the Legislature of Georgia had passed the Act aforesaid, he foi’thwith repudiated the compromise, and demanded that the agreement should be cancelled and delivered up, which was refused by the said Bond and his attorneys. Complainant has reason to fear that Bond will collude with Jones, and induce him to pay- said note, or that he will transfer the notes on Jones and complainant, and thus involve complainant in a complex law-' suit, or law-suits, and increase the difficulties in the way of his obtainment of his just rights in the premises. Complainant has learned that Jones is desirous of getting clear of his obligations to take and pay for said lot of land, and that Bond is anxious to own the same, and he fears that Bond may agree with Jones to cancel said note, and for Jones to convey the land to Bond, and thus jeopard complainant’s right. Complainant tenders back the agreement to compromise, and decline's taking Bond’s quit claim deed, and also declines any other benefit under said agreement, and insists that the agreement be canceled, and the parties remitted to all their rights, as if it had never been made.</p> <p>The bill prays a discovery; and that the ejectment be enjoined, and that Bond be enjoined from transferring the notes on Jones and complainant; and that Jones be enjoined from paying his note to Bond, or any one else, until the bill is heard; and for general relief.</p> <p>The bill was filed 31st December, 1858, and the injunction issued as prayed for in the bill.</p> <p>Bond and Morris both answered the bill, denying any agreement to aid complainant in perfecting his title to the land, and insists that their title is good.</p> <p>Messrs. Lanier & Anderson, and Ebenezer C. Grier, each file affidavits, detailing the circumstances attending the agreement to compromise, and negativing the averments in the bill of unfairness in bringing about the compromise, and denying any knowledge that the Legislature had passed the Act referred to in the bill. At the March Term, 1859, counsel for defendants made a motion to dissolve the injunction, and to dismiss the bill, for want of equity. The presiding Judge overruled the motion, and ordered the cause to proceed.</p> <p>This decision was excepted to by the defendants, and carried to the Supreme Court, and, at the July Term., 1859, of said Supreme Court, the decision of the Court below was reversed, on the ground that this case, having arisen before the passage of the Act of 1858, referred to in the bill, was a case to which said Act did not apply.</p> <p>Before this judgment of the Supreme Court was made the judgment of the Court below, counsel for complainant, by leave of the Court, amended bis original bill, by alleging:</p> <p>That he was induced to make the agreement to compromise, mentioned in the original bill, by the assurances given him by Messrs. Lanier & Anderson, and Ebeuezer C. Grier, a skillful lawyer, that the deed from Cain to Morris was not (void because of complainant’s adverse possession of the land at the time it was made, but that said deed was valid, and constituted a title.paramount to that of complainantthat, since the filing of this bill, he has heard, and believes it true, that the Supreme Court of Georgia, at its recent sitting in Atlanta, in a case of Edward Grisham against William C. Webb, has decided that, according to the principles of the common law, adopted by statute, and of force in Georgia, a deed made to land, whilst the same is held adversely by a third person, is void, and confers no title; that, having been deceived, misled, and mistaken as to his legal rights, and the law governing this case, he insists that said agreement should be set aside, and the parties restored to their former position and. rights.</p> <p>At the September Term, 1859, this amendment was allowed, and an order-passed retaining the injunction.</p> <p>This decision was likewise excepted to, carried to the Supreme Court, and reversed.</p> <p>At the September Term, 1860, when it was proposed, by defendants’ counsel, to enter the judgment of the Supreme Court as the judgment of said Superior Court, and to dismiss said bill, the complainant, before the motion was made and decided, again amended his bill, by alleging:</p> <p>That he has heard, and believes it true, that the judgment of this Court was reversed the last time by the Supreme Court, on the ground that it was not alleged, either in the original bill of complainant, or in the amendment thereto, that complainant believed, at the time he made and entered into the agreement with Messrs. Lanier & Anderson to compromise said action of ejectment, that the decision of the Supreme Court, in the case of Cain and Morris, was the law of Georgia; that it was his intention so to .allege, and that he did believe that such was the law; that Messrs. Lanier & Anderson not only gave him that assurance, but, out of abundant caution, he consulted Mr. Grier, of the law firm of Poe & Grier, of the city of Macon, a lawyer of learning and ability, and was assured by him, after laying all the facts before him, that the decision in the case of Cain and Morris was the law, and the deed from Cain to Morris for the land in dispute was not void, although the complainant was in the adverse occupation of the land at the time it was executed, but that said deed was valid and paramount to complainant’s title; that complainant believed and confided in these assurances as true, and as indicating the law governing his case, and, under this belief and assurance, he made said agreement;, that the agreement was thus made under a mistake, and an honest misapprehension of his legal rights, and by which he was induced to compromise the case, because he honestly believed that, according to the laws of Georgia, his title was inferior to that of the defendants in this bill, on account of the adjudication of the Supreme Court in said ease of Cain and Morris.</p> <p>This amendment was allowed by the presiding Judge, and an order passed retaining the injunction until a further hearing. This decision is the error now complained of.</p>

Trover, in Talbot Superior Court. Decided by Judge Worrill, at the September Term, 1859. ■ This was an action of Trover, brought by Firman Hartell, as the trustee of Mrs. Louisa E. Cuthbert, against William Searcy, to recover damages for the alleged conversion of certain negro slaves. The action was dismissed in the Court below, and the decision was excepted to, and brought before this Court by writ of error, returnable to the January Term, 1860.

Levy and Claim, in Dougherty Superior Court. Tried before Judge Allen, at the June Term, 1860. David A. Mayo obtained a judgment at common law, on a mason’s lien on the Isabella Hotel, in the city of Albany, against George W. Crummey. From this judgment, a fi.fa.issued, and was levied on said hotel, and Lindsey H. Durham interposed a claim to the property.

Trover, in Stewart Superior Court. Tried before Judge . Pericins, at the October Term, 1860. This was an action brought by Harman H. Howard and his wife, Mary Howard, Elizabeth Speer, Harman H. Howard, as administrator of Wm.

Equity, in Randolph Superior Court. Decision made by Judge Perkins, at the May Term, 1860. The facts and questions exhibited by the record in this ease, are as follows, to-wit: By an Act of the General Assembly of Georgia, approved the 17th of December, 1859, the power and authority to grant license to retail spirituous liquors within the corporate limits of the city of Cuthbert, in the county of Randolph, were Vested in the mayor and councilmen of said city.

Complaint, in Baker Superior Court. Tried before Judge Allen, at the November Term, 1860.

In Equity, in Houston Superior Court. Decision made by Judge Lamak, at Chambers, on the 12th of June, 1860.

Misdemeanor, in Marion Superior Court. Tried before Judge Worrill, at the ..September Term, 1860. On the 8th day of September, 1858, a bill of indictment was found, and filed, in Marion Superior Court, against John J. Stockdale, for having and carrying about his person, on the 21st day of August, 1858, a concealed pistol, in violation of law. The defendant having pleaded not guilty, was put to trial', at the September Term, 1860.

<p>It is error in the Court to assume in its charge to the jury, that an important fact in the case has or has not been proven, especially where the evidence is doubtful.</p> <p>When one holds two notes, secured by mortgage, and transfers the one, ■ retaining the other, the mortgage lien accompanies the transfer of the note as an incident, and it would seem that in case the security falls short of paying both notes, the holder of the transferred note has a preference over the mortgagee, who retains the other.</p>

In Equity, in Taylor Superior Court. Tried before Judge ’W’orrill, at the October Term, 1860.

<p>1. The act of entering'upon a tract of land, splitting a few hundred rails, and enclosing and ploughing an acre or two, without planting or cultivating anything on the land, and then abandoning it entirely for three years, is in law a simple trespass. Such act, after a lapse of three years, can not be connected with four years of actual, adverse possession, so as to constitute seven years’ adverse possession.</p> <p>2. To perfect a statutory title, under color of title, there must be adverse and continuous possession for seven years.</p>

In Equity, in Bibb Superior Court. Decision on motion to dissolve an injunction, made by Judge Lamar, at the November Term, 1860.

Debt, in- Terrell Superior Court. Tried before Judge Perkins, at the May Term, 1860. Held: and firmly bound unto William Janes, -sheriff of said county, in the sum of three thousand dollars, for the true payment of which, we bind ourselves, our heirs, and legal representatives, jointly and severally, firmly by these presents.

Seire facias, on a forfeited recognizance, in Taylor Superior Court. Decision made by Judge Worrill, at the October Term, 1860.

1. A proceeding by, a creditor to collect his debt by attachment, does not make the debt a statutory liability. 2. ..The defendant, who was one of several makers to a promissory note, and who .resided out of the State at the time the note was made, and has continued to reside out of the State since that time, is not within the exception of the statute of limitation of 8th December, 1806, the exception being, “ when the defendant shall remove out of the jurisdictional limits…

In Equity, in Webster Superior Court. Motion to dismiss a bill, decided by Judge Perkins, at the September Term, 1860.

<p>Under the Act of 23d February, 1857, giving to foreign executors, administrators and guardians, therightto sue in the Courts of Georgia, if a plaintiff suing in such character goes to trial, and closes his case without 'having shown that he had complied with the proviso to the act, requiring that he file, on or before the judgment term of the Court, an exemplification of his letters, he should, on motion, be non-suited. It is not necessary for the defendant to plead his failure to do so in bar of the action.</p>

Ejectment, from Baker Superior Court. Decision made by Judge Alleít, at the November Term, 1860. The question in this case arises out of the following state of facts, to-wit: An action of ejectment was pending in Baker Superior Court, for the recovery of lot of land No. 160, in the 8th district of said county, in favor of John Doe, ex dem., Tabitha Watson; George Stone, in right of his wife, Martha V. Stone; Joseph Ashurst, in right of his wife, Eliza P. Ashurst; Thos.

Trover, in Mitchell Superior Court. Tried before Judge Hansell, at the November Term, 1860. The question presented for adjudication in this case arises out of the following state of facts, to-wit : On the 11th day of May, 1858, Jacob Watson executed a deed, which was duly attested and recorded, of which the following is a copy : “ Georgia, Baker Coilstty.

Action on a Guardian’s Bond, in Webster Superior Court. Tried before Judge Perkins, at the September Term, 1860. This Ayas an action brought by David G. Rogers, Ordinary of Webster county, for the use of Obed. 0. McGrady, guardian of Edward McGrady, against William Skelton as principal, and John V.. Bigham, and Sampson Bell, as executor of Eason B. Sweeny, deceased, as securities.

<p>1. The book of minutes or original entries kept and made by Commissioners appointed by the Legislature for the organization of a corporation, is admissible- as evidence in a suit against a subscriber for stock in such company.</p> <p>2. The charter of the Coosa and Chattooga River Railroad Company provides that “ no subscription (for stock in such company) shall be received and allowed, unless there shall be paid in to the Commissioners, at the time of such subscription, the sum of five dollars on each share subscribed.” In a suit by the corporation against one of the' subscribers for stock, for installments on his subscription, who had not paid in the five dollars a share at the time of subscribing: Held, That such subscription was void, and could not be enforced, although the subscriber had promised to pay the installments as called for—had attended and voted as a stockholder in meetings of the stockholders in said company.</p> <p>3. A subscriber for stock in a corporation with an unconditional charter, will not be permitted, in a suit against him by the corporation for the recovery of installments on his stock subscription, to inquire into, and contest, the validity of the charter, or the right of the corporation to its use, although he may, to the legality and validity of his individual sub-subscription.</p>

<p>1. On the trial of an indictment for carrying weapons in violation of law, the Judge charged the jury, “that if the defendant carried the pistol, with only the butt exposed to view, and the barrel concealed, this was not carrying it in an open manner and fully exposed to view, and they would be authorized to find him guilty:” Held, That this charge was erroneous. The charge should have been, “ that if the defendant carried the pistol, so exposed to view, that it could readily be seen and recognized as a pistol, by one having his person in view, he carried it, in legal contemplation, in an open manner, and fully exposed to view ; but if it were so far concealed, though partially exposed, that it could not be readily seen and recognized as a pistol, it was carried in a manner forbidden by the statute, and the defendant was guilty.”</p>

Decision on demurrer to a bill in equity, made by Judge Dawson A. Walker, at the October Term, 1860, of Gordon Superior Court.

Levy and claim, in Catoosa Superior Court. Decided by Hon. Dawsoe' A. Walker, at the November Term, 1860.

Buie nisi, on appeal from the Court of Ordinary, in Walker Superior Court. Tried before Judge Walker, at the August. Term, 1860. A. B. Culberson, administrator of John Holder, deceased, was called upon by a rule nisi, to shew cause at the May Term, 1858, of the Court of Ordinary of Walker county, why his letters of administration should not be revoked upon the grounds therein mentioned.

Bill for specific performance, injunction, and relief, in Gordon Superior Court, decided by the Hon. Dawson A. Walker, at the October Term, 1860.

Ejectment, in Walker Superior Court. Tried before Judge Walker, at the February Term, 1861. This action was brought to the November Term, 1858, upon the several demises of Thomas • W. McGee, Dorcas McGee, Henry H. McGee and Emory Hancock, against William Powell and William C. Guthry, to recover lot of land No. 130, in 11th district of the'4th section of Walker county.

In equity, in Monroe Superior Court. Tried before Judge Cabaniss, at August Term, 1860. Amos Hugly and his wife Caroline had born to them during their coverture, a male child, Franklin Hugly. When Franklin was born they lived in Upson county. They afterwards moved to Chattooga county, where Amos Hugly died ; his widow next died, and then Franklin also died.

<p>1. It is not error in the presiding Judge to refuse to rule out answers to cross interrogatories, when objected to, on the ground that the answers are not full, especially when the cross interrogatories relate to an immaterial matter.</p> <p>2. The sayings of an executrix, who is also a legatee under a will, uttered before and at the time of making the will, and forming part of the res gestee, are admissible in evidence against the will.</p> <p>3. Pending the trial of a case, the parties agreed that the jury might separate for dinner, and at the dinner table a witness for one of the parties, expressed an opinion of the ease favorable to the party calling him, and the opinion thus expressed was heard by one of the jurors trying the case, who swears that it had no sort of influence on his mind in making the verdict: Held, That the verdict should not be set aside on that ground.</p> <p>4. A testator may have a mind of sufficient sanity for general purposes, and of sufficient soundness and discretion, to regulate his affairs in general; yet, if it be shown that another person has acquired such dominion and influence over his mind as to prevent the exercise of his discretion in-disposing of his property by will, a will made by the testator, under the influence of such dominion, will be set aside.</p>

Bill for discovery, relief and injunction, in Upson Superior Court, and decision by Judge Cabaniss, at the November Term, 1860.

Case, in Monroe Superior Court. Tried before' JudgeCabaniss, at the September Term, 1860.

Ejectment, in the Superior Court of Henry county, tried before Judge Cabaniss, at the October Term, 1860. This was an action brought by John Doe, on the several demises of John McRory, administrator of Rachael McRory, deceased, and Clem. Powers, against Richard Roe, casual ejector, and Matthew Sykes, tenant in possession, for the recovery of lot land No. 188, in the 12th district of Henry county.

Attachment ft. fa. and claim, in Carroll Superior Court, decided by Judge L. F. Hammond, at the October Term, ■1860. The facts and questions presented by the record in this case, are set out in the opinion of the Court.

Attachment, in Campbell Superior Court, decided by Hon. Dennis F. Hammond, at August Term, 1860. Moses M. Smith sued out ¡irocess of attachment, predicated upon an affidavit, “that S. G. Riley, trustee for Lucinda Riley, and her children,” was justly indebted to him in the sum of $860 00, and that said S. G. Riley then resided out of the State of Georgia, so that the ordinary process of law could not be served on him.

Bill in equity, in Newton Superior Court, and decision on demurrer, by Judge E. G. Cabanxss, at Chambers, -on the 18th of October, 1860. Held: that theirs is an interest in remainder, that the said Frances Wood-ruff may be decreed to give bond, with sureties resident in Newton county, for the forthcoming of said negroes, to be delivered to the remainder-men at the death of the said Frances.

Bill in equity, and application for an injunction, in Polk Superior Court, decided by Judge Dennis E. Hammond, at Chambers, on the 22d of November, 1860.

<p>Ejectment, in Harralson Superior Court, tried before Judge Dennis E. Hammond, at the October Term, 1860.</p> <p>This was' an action brought by John Doe, on the demises of Harrison Crow and Edward Grisham, against Richard Roe, casual ejector, and James B. Hudgins, tenant-in-possession, for the recovery of lot of land No. 195, in the 7th district of said county of Harralson. The suit was commenced on-26th September, 1859.</p> <p>The defendant met the action with pleas of the general issue, and the statute of limitations.</p> <p>Pending the action, Elihu M. Williams was made co-defendant.</p> <p>On the trial, the plaintiff proved the locus, and that James B. Hudgins went into possession of the land in dispute in the month of May, 1859, and was occupying the same when the suit was brought as the tenant of Elihu M. Williams ; that Williams bought the land from Albert G. Story, and took his bond for titles, and by virtue thereof, entered upon the land the first of the year 1851 or 1852, built some houses, cleared twenty acres of the land, and lived thereon, claiming it as his own until 1855, when he sold it to a man by the name of Webb, who went upon the land before Williams moved off, and lived on it until the last of the year 1857; that Williams took the land back from Webb, and rented it to a man by the name of Nicks, who lived on and cultivated the land in 1858, and left it in the month of November of that year; that there might have been as much as two or three months between the time that Webb moved off, and Nicks moved on the land, but that Williams, and those claiming under him, had made crops on the land every year from the tirne he first entered upon it.</p> <p>• The plaintiff then introduced a grant from the State of Georgia, to John H. Goolsby, of Brown’s district, Dekalb county—a deed from Goolsby to ITarrison Crow, dated 1st of January, 1830, and recorded 1st December, 1831, for the land in dispute.</p> <p>The plaintiff offered in evidence a deed from Crow to Edward Grisham, dated 20th December, 1854, which being objected to, on the ground that it was made pending an acjverse possession of the land, and therefore void, was excluded by the Court.</p> <p>Plaintiff then offered in evidence the record of an action of complaint for the land in dispute, brought by Edward Grisham, against W. C. Webb and Elihu M. Williams, and which was commenced in Harralson Superior Court on the 22d May, 1855, and judgment of non-suit awarded at April Term, 1859, the case carried to the Supreme Court, and judgment affirmed at August Term, 1859, and remitter returned, and made the judgment of Harralson Superior Court, at October Term, 1860. Counsel for defendant objected to the introduction of the record on the ground, that as the deed to Grisham had been ruled out, and no recovery could be had on the demise from him, he was not a party to this action of ejectment, and that the action of complaint, and the action of ejectment, were not, therefore, between the same parties, but the Court overruled the objection, and admitted the record in evidence. Plaintiff then rested his case.</p> <p>The defendant then proved the existence of an original jft,, fa., issued from a Justice’s Court of DeKalb county, in favor of James Simpson, against John H. Goolsby, and that extensive and diligent search had been made to find the said fi. fa., and the judgment from which it issued, in all the places and offices where the same would likely be found, but</p> <p>that the search was unavailing, and resulted in a failure to find the fi. fa. or the.judgment; that John ¡H, Goolsby resided in the county of DeKalb in the years 1826, 1827,1828, and 1829, and that the Justice’s Court dockets for said years, in the districts wherein he resided,, were lost, and. could not be found; that in the. latter .part of 1829, Goolsby moved from DeKalb to Merriwether county, and from thence to Cherokee county, Alabama. The defendant then read. in evidence a deed for the land from Giles' S. Boggus, sheriff of Carrol county, .to James Simpson, dated 20th of January, 1834, and recorded 30th of January, 1834, reciting a seizure of the land on the 5th of May, 1832, by virtue of a writ of fieri fados, issued from a Justice’s Court of DeKalb county, in favor of James Simpson, against John H. Goolsby, and a due advertisement and sale of the same, according to law,, to the said. Simpson, who was the best and highest biddei;. This' deed was accompanied by the testimony of Boggus himself, verifying the facts recited in the deed, and giving it as his best recollection that thefi. fa.- was returned to Simpson after the sale of the land. _ ,</p> <p>■ The defendant next read in evidence a deed from W. W. and A. N. Simpson,. administrators of James Simpson, deceased, to Josiah Goggans,'for thé land in dispute, dated the 5th August, 1854, a deed from Goggans to Elijah Cook, dated 4th December, 1850, a deed from Cook to Albert G. Story, dated 8th October, 1853, and a deed from Story to Elihu M. "Wil- ' liams, dated 9th April, 1854. The defendant rested his case, after adducing additional proof that Goolsby resided in DeKalb up to the last of the year 1829, and did not reside there after that, and as to the continuous ¡and adverse possession of -the land by 'Williams.</p> <p>. After the testimony and argument had closed, and the Court had, charged the jury, as hereinafter stated, the jury returned a verdict in favor of the plaintiff for the premises in dispute.</p> <p>Counsel then moved in due ■ form for a new, trial, on the grounds:</p> <p>1. Becausé the Court erred in admitting in evidence the record of the action of complaint in favor of Grisham against Webb and Williams, as hereinbefore stated.</p> <p>2. Because the Court erred in refusing to charge, when requested to do so, that if the jury believed that Goolsby lived in DeKalb county, and left there, and moved to another county before he made the deed to Crow, and never lived in DeKalb county' after that time, the presumption of law, in such case, would be that the ji. fa. was older than plaintiff’s deed, and that the existence and loss of the fi. fa. being proved, the law presumes that there was a judgment, and that the Court rendering it had jurisdiction ; that if the defendant, and those claiming under him, held possession of the land, and made a crop on it every year for seven years, that an interval of two or three months between one tenant going out and another coming in, does not amount to such an interruption of the possession as to defeat the statute of limitations.</p> <p>3. Because the Court erred in charging the jury, that if the defendant moved off the land for one single day, whether he intended to return or not, the statute of limitations stopped at that point, and only commenced to run from his return to the land, and he must have held it seven years from that time, to entitle him to protection under the statute; that there is no legal-way of proving the contents of ajH.fa. or other paper, but by producing the evidence of a person who has seen the fi. fa. or other paper, and that no evidence of an inferior degree will be sufficient to establish the contents thereof.</p> <p>4. .Because the jury found contrary to law, contrary to evidence, and contrary to the weight of the evidence.</p> <p>The presiding Judge overruled the motion for a new trial, and defendant complains that the judgment is erroneous, and asks that it be reversed.</p>

Action on the case for words, in Carroll Superior Court. Tried before Judge D. F. Hammond, at the October Term, 1860.' This was an action brought by Jesse Tolleson against Pinckney C. Posey, to recover damages for slanderous words spoken by defendant, of and concerning the plaintiff, charging him with having stolen the shucks, fodder, and hogs of the defendant. ' The. words are alleged .to have been published on the 15th of October, 1857, and at other times before the suit…

Assumpsit, in Campbell Superior Court. Tried before his Honor Dennis F. Hammond, at August Term, 1860. The questions made in this case arise out of the following state of facts, to-wit: On the 2d day of June, 1857, Charity A. Ramsey, as the administratrix of James W. Ramsey, deceased, sold at public outcry, and at administrator’s sale, a negro girl by the name of Martha, belonging to the estate of said deceased.

Assumpsit, iu Polk Superior' Court. Tried before Judge D. F. Hammond, at November Term, 1860. This action was brought by John IC. Moncas, for the xxse-.of Garret Copeland/against John Stocks and another, indorsers, to recover the sum due on certain notes against one Reeves, indorsed by defendants, “to be liable in the second instance.” ■ The facts necessary for an understanding of the questions adjudicated,'.are stated in the opinion of the Court.

<p>1. A party who sells a negro, representing her to be sound, will not be charged with damages, unless it appear that the representations were false, within the knowledge of the party making them; or that the representations were made recklessly, with an intention to deceive the purchaser.</p> <p>2. Representations that a negro is sound, if honestly made, and believed to be true by the party making them, though not true in fact, do not furnish a ground of action.</p> <p>3. To sustain an action for deceit, it is indispensable that a scienter be both alleged and proved.</p>

Motion to enter judgment for costs, in Floyd Superior Court. Decided by Judge Dennis F. Hammond, at the January Term, 1861. Messrs. Harvey & Scott, as attorneys for the plaintiff, brought an action in Floyd Superior Court, in favor of the Dalton and Gadsden Eailroad Company, against A. Moore and P. E. Bobo, subscribers to its capital stock, to recover the amount of their subscription.

Ejectment, in Carroll Superior Court. Tried before Judge D. F. Hammond, at the October Term, 1860. This suit was brought by John Doe, on the demises of John Bohanan, Nathaniel' F. Harris, William F. Bond & Co., and James Bond, against Richard Roe, casual ejector, and George Bonn, tenant in possession, to recover lot of land No. 264, in the 6th district of Carroll county.

Assumpsit, in Floyd Superior Court. Tried before Judge Hammond, at the July Term, 1860. On the 14th of June, 1855, Messrs. Black & Cobb sold to Riley J. Johnson fifty-three bales of cotton, being a crop lot of cotton, and designated as the Walker lot, at the price oí ten and a half cents per pound, and at the time of the trade, Johnson paid in part for the cotton $1,000 00.

- Case in Floyd Superior Court. Tried before Judge D. E. Hammond, at July Term, 1860. The action in this case was brought by Sullivan & Cabot, alleging that they delivered to the Rome Railroad Company, a common carrier, forty bales of cotton, to be transported from Rome, Georgia, to Charleston, South Carolina, and that by reason of unnecessary and unreasonable delay in transporting the cotton, according to contract, the plaintiffs sustained damage amounting to $500 00.

<p>1. Where a motion is made for a continuance, which is denied by the Court, and afterwards the witness comes into Court, and testifies in the case, the refusal to continue is no ground for a new .trial.</p> <p>2. The damages, in this case, are not excessive.</p> <p>3. Where a verdict is for. a less sum than the plaintiff was entitled to under the facts of the case, the defendant has no legal ground to complain of it.</p>

Assumpsit, in Carroll Superior Court. Tried before Judge Hammond, at October Term, 1860.

<p>Certiorari, in Heard Superior Court. Decided by Judge D. F. Hammond, at the September Term, 1860.</p> <p>Mr. Justice Lyon embodies the facts of this case in the opinion of the Court delivered by him.</p>

<p>1. 0. sold to S. a lot of land, and tools a negotiable promissory note for the purchase money, giving to S. his bond for titles. 0. sold the note for a valuable consideration, and without recourse on himself, to F. and L. After the transfer of the note, a judgment was rendered against C., which was levied on the land : Held, That the land was not subject to the lien of the judgment.</p>

Bill in Equity, in the Superior Court of Carroll county. Tried before Judge Hammond, at the October Term, 1860. The record in'this case presents the facts and questions following, viz.: In the year1 1828 or 1829, John Catlett, the drawer, sold lot of land No. 3, in the 6fh district of Carroll county, to Martin Berry, and received the purchase money, and gave Berry his bond to execute a title when the grant should be taken out.

Indictment for simple larceny, in Lumpkin Superior Court. Tried before Judge Rice, at the July Term, 1860. Thomas C. Robertson, Adeline Beck, and Sarah G. Beck, were jointly indicted in Lumpkin Superior Court, for simple larceny, consisting, as the indictment alleged, in wrongfully and fraudulently taking and carrying away a certain hog, belonging to Rice Arnold, with intent to steal the same.

In equity, in Fannin Superior Court. Tried before Judge Rice, at the October Term, 1860.

<p>A petition for writ of certiorari is a suit in the sense of ’the 23d section of the Statute of Limitations of 6th March, 1856, and in case the¡same be dismissed, discontinued, or non-suited, the plaintiff may renew his application within six months from such dismissal, discontinuance, or non-suit.</p>

Debt on foreign judgment, in Lumpkin Superior Court, and decision by Judge George D. Rice, at July Term, 1860. This case came before the Court upon the following state of facts: On the 8th of March, 1852, A. Shands & Co. filed a complaint against A. Howell & Co., before S. L. Crane, a justice of the peace, in Greenwood township, Eldorado county, and State of California, for the recovery of a mining claim, and damages.

Gertiorari, in Carroll Superior Court, decided by Judge Hammond, at the October Term, 1860. Hiram Sharpe brought twenty-two suits in the Justice’s Court of the 714th district, G. M., of Carroll county, against George T. Connell, principal, and Benjamin M. Long, security, on twenty-two due bills, twenty-one of them for $50 00 each, and one for $41 11. The defendant pleaded the general issue and usury.

Ejectment, in Cherokee Superior Court. Tried before Judge George D. Rice, at the March Term, 1860. This was an action brought in the name of John Hoe, on the demise of Joseph Smith, against Richard Roe, casual ejector, and Elbert Keeter, tenant in possession, to recover lot of land No. 141, in the 14th district of the 2d section of Cherokee county.

Ejectment in Heard Superior Court. Tried before Hon. Dennis F. Hammond, at the September Term, 1860. This was an action brought in the name of John Doe, on the several demises of Zachariah Hesters, Bennett Beil, and James Bell, against Richard Roe, casual ejector, and Calvin Coats, tenant in possession, for the recovery of lot of land No. 274, in the 9th district of Heard county. The action was commenced on the 20th day of September, 1852.

Fi. fa. and claim, in Lumpkin Superior Court. Tried before Judge Rice, at the July Term, 1860.

Action on a due bill, in Cobb Superior Court. Tried before Judge Rice, at September Term, 1860. This action was brought by John Low against Williamina C. Cleland to recover the amount’of a due bill given by defendant to plaintiff, and dated the 4th of May, 1852, for $1,250 00. On the trial of the case, the plaintiff introduced the due bill sued on, and rested his case.

Assumpsit, in Meriwether Superior Court. Tried before the Hon. O. A. Bull, at the August Term, 1860. This was an action brought by the firm of Kelly & Sallee against Freeman McClendon to recover $103 00, the value of certain pork which plaintiffs alleged they had sold to defendant, and for which he was indebted to them. The defendant simply pleaded the general issue.

Case, in Fulton Superior Court. Tried before Judge Bull, at the October Term, 1860. John M. McAfee hired a negro man, by the name of Peter, to the Western and Atlantic Railroad, for the year 1857. The only witness who speaks as to the terms and purposes of the contract of hiring, states that his recollection is, that the negro was hired to do shop work. The negro was put to service on a passenger train, as a train hand, to attend the break and wait upon the passengers.

<p>Bill in equity, in Fulton Superior Court. Decision by Judge O. A. Bull, at October Term, 1860.</p> <p>On the 30th day of August, I860,' Twiggs Y. W. Rhodes exhibited his bill in equity against George W. Lee, alleging, that some time in the month of June, 1859, he and George ~W. Lee formed a partnership for the purpose of carrying on the business of sawing and selling lumber; that they purchased a steam engine, saws and fixtures for a saw mill; that they also purchased a horse and wagon, and put up and set the mill to running on land belonging to the parties jointly; that the partnership property was worth about $4,000 00; that the mill began operations about the 1st November,' 1859, sawing lumber and laths, and so continued up to the filing of the bill, and in that time made, as complainant charges, $1,000 00 net profits; that the proceeds of the mill, the books, accounts for lumber, assets and property of the firm, are all in the hands of Lee, who is insolvent, and is collecting the accounts and converting them to his own use, and is wasting the assets and property of the partnership; that Lee refuses to settle with complainant, or give him access to the books of the firm, or allow him in any manner» to control the assets and property; that the firm owes about $1,000 00, for which complainant is liable, and will have to pay on account of Lee’s insolvency; that complainant has paid into the ooncern $4,195 12, and exhibits with his bill an account of such payments.</p> <p>The prayer of the bill is for a discovery of the facts; for an accounting; for an injunction restraining Lee from running or disposing of the mill, or any of its fixtures, collecting the debts due the firm, or wasting any of the assets whatever; the appointment of a Receiver ; and for general relief.</p> <p>On the 10th of September, 1860, the bill was sanctioned, and the injunction granted as prayed for, and an order nisi was also granted, calling upon the defendant to show cause why a Receiver should not be appointed according to the prayer of the bill.</p> <p>At the time and place of hearing, the defendant appeared and filed his answer to the bill, and also produced numerous affidavits of other persons as a showing against the appointment of a Receiver, and in favor of a dissolution of the injunction that was granted.</p> <p>The Reporter does not deem it necessary .to set out in this statement the contents of the answer, and the affidavits in detail, as they are voluminous. Suffice it to say, that the answer plainly, fully, and distinctly denies every material fact and circumstance upon which the equity of the bill is based, and that the affidavits accompanying the answer sustain and support it very fully and strongly. The complainant filed two affidavits, which but feebly corroborated his bill in some of its unimportant allegations, and one of them was afterwai’ds modified by the affiant until it rather contradicted than sustained the complainant.</p> <p>Upon the showing made, the presiding Judge not only refused to appoint a Receiver, as prayed for in the bill, but dissolved the injunction which he had previously granted, and that decision is the error complained of in the bill of exceptions'.</p>

Trespass on the case, in Fulton Superior Court. Tried before Judge Bull, at the October Term, 1860. This action was instituted by Susan Whidby against John W. Lewis, Superintendent of the Western and Atlantic Railroad, to recover damages for the killing of a negro man slave by the name of Cicero, belonging to the plaintiff, and which she alleged was run over and destroyed by the cars of the defendant, through the carelessness and negligence of his agents and employees.

Assumpsit, in Meriwether Superior Court. Tried before Judge Bull, at the August Term, 1860. This action was brought by John W. Shackleford against Freeman McLendon, to recover the amount due on the following receipt to-wit: “Received, Griffin, August 31st, 1857, from John W. Shackleford, three new Concord no-top buggies, which we promise to sell or return, on or by the 25th of December next.

<p>The repeated admissions of B. R., who is sought to be charged as a partner of his brother, S. R., that he was interested with his brother in the grocery, before and after the giving of-the note in suit; that he complained of S. R.’s extravagance; proof that goods came to the place of business marked Rentfroe & Bro., within the knowledge of B. R., who claimed an interest in the goods so marked, is sufficient evidence of partnership to require a recovery against him, notwithstanding his plea of non est factum, not a partner, etc.</p>

<p>Bill in equity and demurrer, in Coweta Superior Court. Decided by the Hon. O. A. Bull, at September Term, 1860.</p> <p>The questions presented by the record in this case, arise out of the following state of facts, to-wit:</p> <p>On the 25th day of April, 1831, William Saulsbury executed a deed, conveying to Samuel D. Echols and four other persons named, trustees of the Hewnan Church, and their successors in office, ten acres of land, in or near the town of Newnan, Coweta county, Georgia, for the use of the Baptist denomination of Georgia, to be used and occupied for the public worship of Almighty God. The deed set out seven articles of religious faith, as being held by said denomination, and then stipulated that the deed was executed upon, and subject to, the following condition, to-wit: “ That if it should happen that the said trustees of the Newnan Church, or their successors in office, for the use of the Baptist Church, of the State of Georgia, shall change the above written articles' of faith, or shall convert or dispose of the aforesaid premises for any other purpose than those herein mentioned, then and from thenceforth, in either of those cases, it shall and may be legal, to and for the said William Saulsbury, his heirs, executors and administrators, into and upon the said granted premises, in the name of the whole, to re-enter, and the same to have again, to repossess and enjoy, as in his and their first and former estate and right, this indenture, or anything hereinbefore contained, to the contrary thereof in anywise, notwithstanding. Provided also, that the said trustees and their successors in office, for the use of the Baptist denomination of Georgia, shall or may remove at their discretion, all and any building or improvements which they or any of them shall or may hereafter erect and place upon the aforesaid premises, at any time that said property may be converted from the use for which the same is granted as aforesaid.” Afterwards, William Saulsbury, the grantor, died, and Christopher Bowen became his administrator, and after partially administering the estate of the saidWm. Saulsbury, the heirs at law, and distributees and the administrator, came to asettlement, and the administrator paid over to the heirs and distributees of said estate, property and assets amounting in value to the sum of $5,500 00, which sum, by agreement and contract in writing, and under seal, dated the 3d of February, 1834, the said heirs and distributees received “in full satisfaction, payment and discharge for the whole of the estate both real and personal, and the said Christopher Bowen is hereby authorized to retain in his hands any and all money that, may henceforth, and from this date, come into his hands, arising from the collection of notes, judgments, and accounts due said estate, or from the sale of the entire of the real and personal estate ; hereby acknowledging that we have received the sum of $5,500 00 in full satisfaction of all claims that we have, or those whose rights we represent, to the whole of the estate both real and personal, as distributees as aforesaid.”</p> <p>On the 28th day of January, 1835, Christopher Bow'en sold, conveyed, and confirmed, by a quit claim deed, the said ten acres of land, to John C. Robinson, Thomas W. Bolton, Davis Owen, "William B. Pinson and Joel W. Terrel], trustees of the said Baptist Church at Newnan, Georgia.</p> <p>■ About the time, or shortly after the execution of the deed by Saulsbury, as aforesaid, the trustees toolc possession of the said ten acres of land, and erected thereon a suitable house of worship, and used and occupied the same for that purpose until some time in January, 1845, when the then acting trustees sold the land to one Robert Fleming, who entered upon the premises and built and erected improvements thereon of the value of $1500 00. Subsequently Fleming intermarried with Mrs. Rebecca Ann Harris, who had a considerable estate, which, by deed of marriage settlement, entered into prior to the marriage, was settled upon and vested in her as her own separate estate, free from any claim or control of the said Robert whatever, of which separate estate William H. Baldy was, by the deed of marriage settlement, made the trustee.</p> <p>Fleming not having paid for the property, it was agreed that Baldy, as her trustee, should pay for the satiie, and take a deed to himself as trustee for the benefit of Mrs. Fleming. This agreement was performed by Baldy paying the mone}’' and the trustees of the church executing a deed to him as trustee of Mrs. Fleming, as aforesaid. The old church building was converted into a comfortable dwelling, and other necessary buildings placed on the land by the trustee of Mrs. Fleming, with perfect confidence in the title to the premises. The trustees' of the Baptist church, after selling the ten acres of land as aforesaid, reinvested the proceeds of the sale in another lot more convenient and better adapted to the purpose, upon which they erected a large, commodious and convenient church, which said denomination have been using as a place of public worship ever since.</p> <p>William H. Baldy died, and Hillsberry R. Harrison was duly appointed trustee of Mrs. Fleming’s separate estate.</p> <p>Christopher Bowen also died, and some time in the year 1854 the heirs and distributees of William Saulsbury, deceased, procured John B., Wilcoxon to seek and obtain letters of administration de bonis non on the estate of William Saulsbury, deceased, and as such, on the 8th of August, 1854, the said 'Wilcoxon instituted an action in Coweta Superior Court for said ten acres of land, against the said Robert Fleming, who, with his said wife, was residing thereon, and had so resided by themselves or tenants, from the time of the purchase by Baldy, as aforesaid, to the time of bringing said action of ejectment.</p> <p>On the 24th July, 1857, and whilst the suit in ejectment was still pending on the appeal, Hillsberry R. Harrison exhibited his bill in equity against the said John B. Wilcoxon as administrator de bonis non, as aforesaid, and the heirs at law of the said William Saulsbury, deceased, charging the facts hereinbefore stated, and also alleging that the sa of the ten acres of land, and the investment of the proi s in another lot 'was intended to, and had the effect to promote the convenience of the members and congregation of said church, and carried out more effectually the charitable purpose of the said William Saulsbury, in granting said ten acres of land to said church, as the land so granted was too far off for the convenience of the members and people who wished to and did attend public worship at said meeting house.</p> <p>The bill prayed a discovery of the fácts charged—a perpetual injunction of the action of ejectment and process against the parties defendant to the bill.</p> <p>The bill also prayed that the complainant might be permitted to remove all the buildings and improvements from the premises, or that the defendants should be decreed to pay complainant the cost or value of the same, in the event that the Court should be of opinion, from the facts of the case, that the defendants were entitled to recover the ten acres of laud.</p> <p>To this bill the defendants set up a demurrer, on the ground that the bill contained no equity, and that under the charges and allegations of complainant he was not entitled to the relief prayed'for, or any other relief.</p> <p>Upon hearing argument on the demurrer, the presiding Judge overruled the same, and sustained complainant's bill, and error is assigned upon that decision.</p>

Attachment, in Heard Superior Court, and decision thereon by Judge Dennis F. Hammond, at the September Term, 1860. On the 25th of September, 1858, John C. Brewer, as administrator, with the will annexed, of George W. Garrett, deceased, sued out an attachment pendente lite, against the property of William Ainsworth, returnable to the February Term, 1859, of Heard Superior Court.

Action on the case, in Fulton Superior Court. Tried before Judge Bull, at the November Term, 1860. This was an action brought by John R. Wallace and Cyrus H. Wallace against James M. Spullock, as Superintendent of the Western and Atlantic Railroad, to recover damages for the loss of a negro boy slave by the name of Sam, which the plaintiffs alleged was their property, and worth $1600 00.

<p>Action on a note, in Carroll Superior Court. Tried before Judge Hammond, at October Term, 1860.</p> <p>This was an action brought by William Keaton against H. T. Read, Hiram Harper and J. D. Harper, to recover the amount of a joint and several promissory note, signed by the defendants, payable to said Keaton, or bearer, dated 16th December, 1854, and due the 1st day of March, 1855, for $500 00. The note had a credit on it of $80 00, dated 5th January, 1857.</p> <p>The defendants pleaded that the note sued on was given for an interest in a copper mine on lot No. 78, in the 2d district of Carroll county, which the plaintiff was.to thoroughly test for copper, and to which he was to make a deed to defendants, and that the plaintiff had wholly failed to make the test, or execute the deed according to the contract, and that therefore the consideration of the note sued on had wholly failed.</p> <p>The defendants, Harpers, also pleaded a release from all obligation to pay the note.</p> <p>On the trial the plaintiff read the note in evidence, and closed his case.</p> <p>The defendants read in evidence a bond executed by the plaintiff, to which the following conditions were annexed, to-wit:</p> <p>“ The condition of the above bond is such, that whereas the above bound William Keaton is now operating and testing for copper, and other valuable minerals, on part of lot No. 78, in the 2d district of said county, (Carroll,) being fifty acres in the Northwest corner of said described lot, the conditions of which bond are, that the said William Keaton, upon a discovery, within six months from the third day of October last, (1854,) of copper, or other valuable minerals, is bound to make titles to the aforesaid Henry T. Read, Hiram T. Harper, and J. D. Harper, for the one-eighth mineral interest contained in said fifty acres of land hereinbefore described. And whereas the above bound Henry T. Read, Hiram T. Harper, and J. D. Harper, have this day become the purchasers of the one-eighth part as aforesaid, for and at the price of one thousand dollars, to-wit: five hundred dollars the 25th day of December, 1854, and the other note for five hundred dollars, due the 1st day of March, 1855.. How if upon the expiration of the three months allowed for testing and operating on said lot, the aforesaid William Keaton shall make, or cause to be made, warranty titles to the said lot or parcel of land, as before described, unto the said Henry T. Read, Hiram T. Harper and J. D. Harper, for the one-eighth part of the mineral interest, and the said Read, Harper, and Harper shall well and truly pay off and discharge the aforesaid note, then the above bond is to be void, else to remain in full force.”</p> <p>The defendants proved by one witness, that there was no copper discovered as witness knew of; that Keaton sunk a pit on the place, but did not get to the ore; that operations ceased when they reached water; that the Harpers discovered something that was called copper ore, but it was done under a lease before the trade with Keaton.</p> <p>The defendants also proved by five or six witnesses, some of whom witnessed the contract, and others of whom heard Keaton say, that the two Harpers had'let Keaton have a lot of land and an interest in a distillery and mills, for which Keaton agreed to give up one of the five hundred dollar notes, and release the Harpers from the other note, and look alone to Read for payment of it, and that after this arrangement Keaton bought a wagon from the Harpers at the price of eighty dollars, and was to give them an order on Read for the money; the note shows a credit for that sum.</p> <p>In behalf of the plaintiff it was proved in rebuttal, that Read had the ore taken from the land tested, and according to his report, it yielded thirty per cent., and that in February, 1855, the Harpers employed a man to haul some ore to Atlanta, and paid for the hauling.</p> <p>Upon this testimony the jury returned a verdict for the defendants, and counsel for plaintiff made a motion .for a new trial, on the ground :</p> <p>“ That the jury found contrary to law and evidence, and the weight of evidence.”</p> <p>The presiding Judge refused the new trial moved for, and the plaintiff now prosecutes for writ of error to reverse that decision.</p>

Indictment for murder, in Fnlton Superior Court. Tried before Judge Bull, at the October Term, 1861. This was an indictment against George Yf. Irby, for the murder of Henry Norton, in the county of Fulton, on the 25th of December, 1856. The principal facts and circumstances attending the homicide are as follows: On the 25th of December, 1856, quite a crowd of persons were assembled at a place called Buckhead,'in the county of Fulton.

Motion, in Fulton Superior Court. Decided by Judge Bull, at the October Term, 1860. The questions presented by the record in this case, arises out of the following facts, to-wit: George W. Hicks recovered a judgment in Fulton Superior Court against Loyd, Perryman & Mills, and the case was carried by bill of exceptions and writ of error to the Supreme Court.

Debt, in DeKalb Superior Court. Tried before Judge Bull, at the October Term, 1860.

Complaint, iu Fulton Superior Court. Tried before Judge Bull, at the November adjourned Term, 1860. The facts presented by the record are substantially as follows : Luring the years 1855 and 1856 the son of Thomas U. Wilkes was going to school in the village of Cave Springs, away from home. Pie was about seventeen years of age, and during the year 1855 he purchased goods from Messrs.

Rule against the sheriff, in Fulton Superior Court. Decided .by Judge Bull, at the October Term, 1860.

Indictment for murder, in Polk Superior Court. Tried before Judge Hammond, at October Term, I860. At the April Term, 1858, of Polk Superior Court, a bill of indictment was filed and found against Thomas W. Cox, charging him with the murder of a negro man slave by the name of Humphrey, the property of Abraham Jones, on the 11th of January, 1858. The defendant was brought to trial at October Term, 1860.

Scire facias against bail, in Fayette Superior Court. Decision made by Judge Hammond, at September Term, 1860. John Phillips brought an action in Fajmtte Superior Court against James D. Parnell, for the seduction of the plaintiff's daughter, in which action an order for bail was regularly taken, and William Jennings became bail for Parnell.

<p>Ejectment, in Coweta Superior Court. Tried before bis Honor Judge Bull, at September Term, 1860.</p> <p>This was an action, brought in the short form of complaint, in favor of William T. Williamson against George Matthews, to recover the north half of lot of land No. 120, in the second district of Coweta county.</p> <p>On the trial the plaintiff proved that the premises in dispute were situated in said county, and that the defendant was in possession of the same at the time the suit was instituted, and had been for many years before that time.</p> <p>The plaintiff also read in evidence a grant from the State of Georgia to the plaintiff for the land in controversy, dated in 1854, and reciting on its face that it was issued to the said plaintiff by virtue of an act entitled “ An Act to authorize a grant to issue to William T. Williamson, of the county of Baldwin, to lot of land No. 120, in the second district of the fourth section of the lottery of 1827.” Approved February 18th, 1854.</p> <p>The plaintiff rested bis case at this point.</p> <p>The plaintiff introduced in evidence the Act of which the title is given as aforesaid, the preamble to which recites: that Robert Attaway fraudulently drew lot of land No. 120, in the second district of the fourth section, Coweta county, and that said lot was condemned, on information of Joel Kinsey, as fraudulently drawn, at September Term, 1828, of the Superior Court of Coweta county, and that the State’s interest not having been sold, and the informant, Joel Kinsey, failing to comply with the terms and requisitions of the law, the said lot of land reverted to the State, under an Act of the General Assembly, passed at the last session, headed, “ An Act to limit the time for talcing out grants to the State’s half, and to the informer’s half, of any 'lot of land fraudulently drawn, in any of the land and gold lotteries of this State, and to provide for the granting of the same after the expiration of said time; ” and that the said William T. Williamson, in compliance with the requirements of this Act, having paid into the State Treasury, on the 2d of August, 1852, the sum of $25 00, the price of the informant’s and State’s half of said lot of land, and that in consequence of the judgment having been mutilated on the record, and the original being lost or stolen, he has failed to get a grant for remedy whereof, Section 1 enacts that it shall be the duty of the proper officers, upon the Governor being satisfied that the facts stated in the foregoing preamble be true, to issue a grant to the said fraudulently drawn lot, to the said William T. Williamson, it being lot of land No. 120, in the second district and fourth section of Coweta county. Provided, that this Act, or the grant, shall not affect the rights of any other persons claiming title.</p> <p>Eor the purpose of attacking the plaintiff’s grant, and of showing that it was procured by fraud on the part of the grantee, the defendant offered in'evidence the record of a scire facias, issued on the 8th day of June, 1827, in favor of George M. Troup, Governor, etc., on the information of Joel Kinsey, against Robert Attaway, drawer of lot of land No. 120, in the second district of Coweta county.</p> <p>The scire facias alleged that Attaway caused his name to be entered for two draws in the land lottery authorized and directed by the Acts of the 9th of June and the 24th of December, 1825, and the 14th December 1826, and the 27th December in the year aforesaid, when he was not entitled to the same, because before he caused his name to be entered, and at the time he drew the lot aforesaid, he had absconded for debt and to avoid the laws of the State, and had not paid his taxes according to law, and the writ called upon him to show cause why the return should not be adjudged fraudulent and the grant annulled, and the land revert to the State.</p> <p>On the 27th March, 1828, there was a return on the scire facias that the defendant was not to be found in Coweta county, and at September Term, 1828, an order was taken reciting defendant’s default, and directing the informer to proceed ex -parte in said case. The following verdict was rendered:</p> <p>“We the jury find the return fraudulent.</p> <p>“ R. M. HACKNEY, Foreman.”</p> <p>The following judgment was taken in the case, to-wit:</p> <p>“ Whereupon it is considered and ordered by the Court that said return be adjudged and pronounced fraudulent and void; that the grant issued for the said lot or tract of land drawn in pursuance of said return, to-wit: for No. 43, in the 5th district of Coweta county, be cancelled and annulled, and made void and of no effect, and as completely set aside as if no grant had ever issued, and the informer recover costs, etc. October 12th, 1829.</p> <p>“WILLIAM Y. HANSELL, ^</p> <p>“ Informer’s Attorney.”</p> <p>To the introduction of this record the plaintiff’s counsel objected, but the Court overruled the objection and plaintiff excepted.</p> <p>Here the testimony closed, and the presiding Judge charged the jury, “that the presumption of law was in favor of the grant, and that it was fair and valid, and the burden of proving it to have been procured fraudulently, was on the</p> <p>defendant; that if the plaintiff had procured the grant to issue, by false and fraudulent representations to the General Assembly and the Governor, he was not entitled to recover of a party who had no notice of the proceedings; that a record was not mutilated while it remained in the condition in which it was made up by the Court, but that there must be some erasure, interlineation, or other alteration of the record, unauthorized by the Court, in order to constitute what in legal parlance amounts to a mutilation; that if there had never been any judgment of forfeiture of this land, and no mutilation of the records of the Court, and if this grant was procured to be issued by false and fraudulent representations that there had been such a judgment, and a mutilation of that judgment, then the grant was void as to third parties, who had no notice of the proceedings before the Legislature and the Governor.</p> <p>The jury found for defendant, and plaintiff excepted and prosecutes a writ of error, and asks a reversal of the judgment, on the grounds:</p> <p>1. Because the Court erred in admitting the record aforesaid.</p> <p>2. Because the Court erred in charging the jury as aforesaid.</p>

Bill in equity, in Meriwether Superior Court, and decision thereon by Judge Bull, at February Term, 1861.

Debt on a foreign judgment, in Troup Superior Court. Tried before Judge Bull, at the November Term, 1860. The record in this case presents the following facts and questions, to-wit: On the 30th of March, 1840, Enoch Eagan recovered a judgment in the Circuit Court, held in and for the county of Tallapoosa, in the State of Alabama, against Moses Bently and John B. Crawford, for the principal sum of $757 54, and $16 25 for costs.

Assumpsit, in Fayette Superior Court. Tried before Judge Hammond, at the September Term, 1860.

Complaint for rent, in Troup Superior Court. Tried Judge Bull, at the November Term, 1860. This was an action, in the simplified form of pleading, brought by Lewis F. Harris against Roberts & Hughey, to recover the sum of $300 00, alleged to be due the plaintiff for the rent of an office in the city of Savannah for the year 1857. The bill of particulars annexed to the petition was as follows: Messrs Roberts & Hughey, To Lewis F. Harris, Dr. 1857. Dec. 1.

Debt, in DeKalb Superior Court. Tried before Judge Bull, at October Term, 1860.

Buie against a Justice of the Peace, in Fulton Superior Court.' Decided by Judge Bull, at October Term, 1860. John F. Albert, in his official character as Justice of the Peace of.the 530th district, Georgia Militia, of Fulton county, collected and received for the, plaintiff the sum of $70 00 principal and $3 61 interest up to 28th of April, 1860, on a fi. fa. in favor of Humphrey P. Howell, against Joseph Reeves, and Claiborne Hawes security.

Rill iii equity, iu Troup Superior Court, and decision on demurrer, made by Judge D. F. Hammond, at Chambers, on the 6th of March, 1861.

Action on a note, in Meriwether Superior Court, and decision therein by Judge Bull, at August Term, 1860. This was an action brought by Andrew Park to recover the amount of a promissory note, dated 24th December, 1856, due the 25th December, 1857, payable to the plaintiff, or bearer, and signed by Elijah Beauchamp and Solomon Harrell, as principals, and Jesse Partridge, as security, for $1,500, with interest from the date of the Dote.

<p>1. E. and others filed a bill in equity against C., alleging that certain property belonged to them, and prayed that C. might be compelled to account for its proceeds. C. set up a demurrer to the bill on several grounds. The record showed that the demurrer was sustained and the bill dismissed without the grounds on which it was done: Held, that in another contest about the proceeds of the property, the record of that case was inadmissible to show that the parties were concluded by a judgment as to the title: Held also, that parol evidence was inadmissible to supply the omission of the record as to the grounds on which the demurrer was sustained.</p> <p>2. A party to a bill in equity is estopped by a decree thereon, as to mat-, ters put in issue by the pleadings, and settled by the decree.</p> <p>3. Where a cestui que trust consents that a part of the trust property may be exchanged for other property by the trustee, and upon a bill filed to remove the trustee, the exchange is passed upon and sanctioned by a special jury and the Chancellor, and ratified by a decree, the cestui que trust is estopped.</p>

Complaint, in Laurens Superior Court. Tried before Judge Hansell, at April Term, 1860. This was an action brought by Benjamin E. Chamberlain against Edward T. Sheftall, to recover the amount of four promissory notes for $5.0 00 each, dated 6th of February, 1857, due the 25th of December, 1857, with interest from date, and payable to the plaintiff. To this action the defendant pleaded that the consideration of the notes sued on had failed.

Complaint, in Wilkinson Superior Court. Tried before Judge Harris, at the October.Term, 1860. .. This was an action brought by Samuel Griswold against .William Taylor, to recover the sum due on the following agreement, to-wit: “Received of Samuel Griswold, Griswoldville, Georgia, one forty-saw cotton gin, for which I promise to pay $80 00 by the 1st day of January, 1858.

<p>1. In 1847 a claimant entered upon a lot of land, cleared four or five acres, and planted it in peas, and built a corn crib—the next year he planted it in corn—he neither lived on or cultivated the land until in the fall of 1852, although he had some plows in the crib: Held, that this was not such a continuous possession as to constitute a statutory title.</p> <p>2. Intention to continue possession of land, can only be demonstrated by acts which are open and notorious—they are not proven by secret or avowed purposes of the claimant.</p>

Tried before the Hon. Iverson L. Harris, at the March Term-, 1861, of Putnam Superior Court. In this case Susan Lively, the widow and sole heir of her deceased husband, applied to the Ordinary of Putnam county for letters of administration on his estate. She joined an • attorney at law, of ability and good character, (who represented a portion of the creditors of the deceased,) with her in the application.

<p>1. The prevalence of public excitement against the accused, in the county where the act was committed, added to other causes which might be deemed insufficient in themselves, may well turn the scale in favor of a motion for a continuance.</p> <p>2. It is the duty of this Court to see that the trial of a criminal case shall not be precipitated, whilst the principles of justice require a postponement. The continuance asked for in this case should have been granted.</p> <p>3. A juror who has a fixed opinion as to the guilt of the accused, though formed from hearsay, is incompetent to try a criminal case.</p> <p>4. The facts of this case discussed, with reference to their bearing on the questions decided.</p> <p>Indictment for murder, in Jones Superior Court. Tried before bis Honor Judge Harris, October Term, 1860.</p> <p>The plaintiff in error was indicted for the crime of murder, and being put upon his trial, was convicted.</p> <p>When his case was called, he moved to continue the same on two grounds, which the presiding Judge overruled and his counsel excepted.</p> <p>Pending the selection of a jury to pass upon the case, the presiding Judge decided a juror competent who avowed on his voir dire, a fixed opinion as to the guilt of the accused from hearsay, and the prisoner excepted.</p> <p>After the verdict of conviction was rendered, counsel for the prisoner moved for a new trial, which was refused, and prisoner excepted, and asks a reversal of the judgment on the ground of alleged error in the rulings and decisions aforesaid.</p> <p>This is one of the cases that were burned, and the Eeporter is unable to find the record, to give a fuller statement of the case, and therefore refers to the opinion of the Court, as so ably expounded by Mr. Justice Jenkins, in which a very clear statement of the questions in the case may be found.</p>

Claim, in Madison Superior Court. Tried before Judge Thomas W. Thomas, at the March Term, 1861. The questions presented for adjudication by the record in this case, grow out of the state of facts following, to-wit: Some time prior- to the year 1854, James Daniel was in possession of a negro girl by the name of Jin, which negro girl, then very young, afterwards went into the possession of Sarah H. Veal.

<p>Indictment for a misdemeanor, in the Superior Court of White county, and decision thereon by Judge Nathan L. Hutchins, at March Term, 1861.</p> <p>This was an indictment against Peter Woody for a misdemeanor, charging “that the said Peter Woody, in the county aforesaid, on the twenty-fourth day of December, in the year eighteen hundred and sixty, with force and arms, did then and there sell and vend less than one gallon of distilled spirituous liquors, without first taking and subscribing the oath prescribed by law, to be taken by all applicants for license to retail distilled spirituous and intoxicating liquors, in quantifies less than one quart, contrary to the laws of said State, the good order, peace and dignity thereof. March Term, 1861.”</p> <p>When the case came on for trial the defendant’s counsel demurred to the indictment as being insufficient and defective because it did not allege that the defendant was the keeper of a shop, or that he was a regular habitual vendor of liquors, insisting that a single act of vending did not constitute the offence attempted to be charged.</p> <p>The Court overruled the demurrer, and a verdict of guilty</p> <p>was rendered against the defendant. Error is assigned on the decision overruling the demurrer.</p>

Bill in equity, in Walton Superior Court, and decision by the Hon. Nathan L. Hutchins, at the February Term, 1861.

Certiorari, in Jackson Superior Court. Decided by Judge Hutchins, at the February Term, 1861. The adjudication of the question in this case depends upon the facts following: David M. Burns had an account against James W. Harvell, amounting in the aggregate to the sum of $22 27, consisting of various items dated at different times, commencing the 2d of January, 1852, and ending 21st March, 1857.

In equity, in Wilkes Superior Court. Decided by Judge Thomas, at March Term, 1861. The record in this case presents the following facts and questions, to-wit: Mrs. Lucinda Lane, the wife of Micajah Lane, held and possessed certain property, a portion of which was, by a decree in equity, rendered in Troup Superior Court, vested in William Q,.

<p>. 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.</p>

Action of ejectment, in Habersham Superior Court. Tried before Judge Hutchins, at the April Term, 1861.

Levy and claim, in Gwinnett Superior Court. Tried before Judge Nathan L. Hutchins, at the March Term, 1861. In the month of August, 1854, Mary E. Roberts, then a minor, intermarried with one Pinckney G. Head. The marriage occurred without the consent, and against the wishes, of the mother or guardian of the minor.

In equity, in Gwinnett Superior Court. Decision by Judge Iverson L. Harris, on the 29th of April, 1861. This was a bill in equity, filed by George W. Cleland against Thomas J. Waters, containing substantially the following allegations, to-wit: On the 5th day of April, 1852, complainant, then a young man of very small means, was engaged in the study of medicine.

Attachment, in Jackson Superior Court, and decision by Judge Hutchins, at February term, 1861. On the 14th of December, 1860, an attachment issued in favor of Green M. Duke, as executor of Hardy Howard, deceased, against John Horton, in which the sum of $1,500 00 was claimed to be due to the plaintiff. The officer issuing the attachment, made it returnable to the February Term, 1861, of the Superior Court of said county of Jackson.

<p>In equity, from Richmond county. Tried before Judge Holt, at the December, Term, 1860.</p> <p>The facts are stated in the opinion of the Court.</p>

Caveat to will, from Emanuel county. Tried before Jadge Holt, at the March Term, 1861. The facts are fully stated in the opinion of the Court.

Ejectment, from Tatnall county. Tried before Judge Fleming, at the October Term, 1860. For the facts of this case, see the opinion of the Court.

<p>Indictment for robbery, in Chatham Superior Court. Tried before Judge Fleming, at the February Term, 1861.</p> <p>•The facts are stated in the opinion of the Court.</p>

Scire facias on forfeited recognizance, in Olay Superior Court, and decision thereon by Judge Perkins, at September Term, 1860. The question presented by the recoi’d in this case arises out of the state of-facts following, to-wit: At the March Term, 1857, of Clay Superior Court, a bill of indictment, for the crime of perjury, was found and filed against Benjamin Cone.

Trover, in Randolph Superior Court. Tried before Judge Perkins, at November Term, 1860. This was an action brought by Thomas D. Frith, against Eldridge Siler, to recover damages for the alleged conversion by the latter, of a certain gray horse belonging to the former.

In equity, in Miller Superior Court. Decided by Judge Perkins, at the October Term, 1860.

<p>1. The only questions to be propounded to a juror on trial for competency, are those prescribed by the Act of 1851.</p> <p>2. A juror having conscientious scruples as to capital punishment is incompetent to try a case involving capital punishment.</p> <p>3. Declarations of the prosecutor, the person on whom the assault was made, at or immediately after the assault, are admissible as parts of the res gesta3.</p> <p>4. It is the right of any white man to arrest a slave on the public highway upon a reasonable suspicion that the slave has in possession stolen property, and the negro has no right to resist such arrest.</p> <p>5. An assault with intent to murder may be committed without the use of weapons likely to produce death.</p> <p>6. It is proper for the Court, in charging the jury, to direct them to disregard all outside considerations, and to determine the case by the proof alone.</p> <p>1. When a party, during the trial, discovers material testimony, and the Court will neither, on motion, continue or suspend the cause to enable the party to obtain the benefit of such testimony, a new trial must be allowed for that purpose</p>

Bill in equity, in Talbot Superior Court, and decision by Judge Worrill, at September Term, 1860. Donaldson Huff, the elder, died intestate, leaving considerable property, and James Huff obtained letters of administration on his estate.

Bills in equity, and libel for divorce, in Sumter Superior Court, and pleas to the jurisdiction. Decided by Judge Alexandeb A. Allen, at the April Term, 1861. On the 28th of December, 1860, Rosannah Gilmer instituted a libel for divorce, in Sumter Superior Court, against her husband, John G. Gilmer.

Trover, in Lee Superior Court. Tried before Judge Allen, at September Term, 1860. This was an action brought by Jacob P. Strozier, as the administrator of George H. Price, deceased, against William C. Gill, to recover damages for the alleged conversion by him of two negro slaves and their children, belonging to the plaintiff’s intestate.

Bill in equity, in Talbot Superior Court, and decision on demurrer, by Judge Worrill, at the March Term, 1861. On the 9th of January, 1859, John H. Weeks made a will in due form of law, which, after his death, was regularly proved and admitted to record, and letters testamentary issued to William J. Weeks, the executor named in the will.

Assumpsit, in Harris Superior Court. Tried before Judge Woeeill, at October Term, 1860. This was an action brought by John W. Hays, administrator of Martha Ann McKee, deceased, against Isaac B. McFarlan, to recover the amount of two promissory notes, dated the 30th of August, 1857, due the 25th of December thereafter, signed by the defendant, and payable to the plaintiff’s intestate, for $500 00 each.

Action on the case, in Muscogee Superior Court. Tried before Judge Worrill, at November Term, 1861. This action was brought by Mrs. Parmelia L. Mullins, against Richard Harris, to recover the sum of $120 00, besides interest, paid by the plaintiff to the defendant, for a mule, which the defendant falsely and fraudulently represented to be perfectly sound and all right, but which was unsound, and died in a few hours after the sale.