Volume 33 — Georgia Reports

Motion in arrest of judgment, decided by Judge WlL- ’ liam C. Perkins, at the April Term, 1861, of Miller Superior Court. At the April Term, 1860, of the Superior Court of Miller county, the grand jury found and returned a special presentment, charging Redding Evans, a free person of color, with the offense of murder, committed by him in taking the life of one James Smith, on the 27th of December, 1859, in said county of Miller.

<p>Indictment for murder, in Miller Superior Court, tried before Judge William C. Perkins, at April Term, 1861.</p> <p>The facts and circumstances attending the homicide in this case, as shown by the testimony, are substantially as follows:</p> <p>Redding Evans, the accused, was the reputed son of one Dolly Evans, who was generally known and regarded as a free person of color — a mulatto, half black and half white; the defendant lived with, and called Dolly IjCvans mother, when he was a boy, but had been known to deny that she was his mother; James Smith, the deceased, wras a married man, but at the time of the homicide was living separate from his wife; some time before the difficulty, Evans and Smith had been unfriendly, on account of Evans’ criminal intimacy with Smith’s wife; they had also had a misunderstanding about some chickens of Evans’ eating -up some growing corn belonging to Smith, and Evans told Smith he had better not bother his chickens, for he, Evans, might kill him if he did. On one occasion, Smith, his wife, and Evans, were all on the bed together, and Evans and Mrs. Smith were under the cover; Smith ordered Evans out of the house, but he did not go; Smith then went out, and ' Evans followed him and knocked him down, and made him come back in the house and sit down, aud Evans then went back to bed with Smith’s wife, in the presence of Smith and his children; Evans was in the habit of going to bed with Mrs. Smith. On an occasion previous to the homicide, Evans said, that Smith was no benefit to the country, and if he bothered him, he, Evans, would cut his throat; on another occasion, Evans, in speaking of Smith, said, that the latter had bothered him a good deal, and if he did not mind he would put him where the dogs would not bite him; that they had him on a scout from a warrant, but that he did not intend to leave; and that if they did not let him alone, he would kill some of them; he further said, that if they would let him kill Smith and Cook, and beat Ranew, they might do what they pleased with him. Evans had threatened to kill Smith on other occasions. On the morning of the homicide, Smith went to the house where his wife and children lived, because, he said, that he had heard Evans was going to run away with his wife, and was going down after his children. Smith had been at the house where his wife lived but a few minutes before Evans also came, and as Evans approached the house, Smith fired upon him with a singlebarrelled shot gun, aud wounded him in the side. Evans then fired upon Smith five times, with a revolver, wounding him in the side, on the arm, and twice in the abdomen, of which he died in a few hours. The homicide occurred in Miller County, on the 25th day of December, 1859. Smith was walking around and off from Evans, when the latter killed him. The record does not show that any exceptions were taken to the competency or admissibility of any part of the testimony offered on the trial.</p> <p>The presiding Judge, amongst other things, instructed the jury “that it was not necessary for them to be satisfied beyond a reasonable doubt that the prisoner was a free person of color; the cpiestion of his status in society had nothing to do with his guilt or innocence, but that it was merely descriptive, and if they were satisfied from the evidence that he was a free person of color, that was sufficient on that point.” The jury rendered a verdict against the defendant, of guilty of voluntary manslaughter, and his counsel moved for a new trial on the following grounds, to-wit:</p> <p>1st. Because the verdict was contrary to the evidence, and strongly and decidedly against the weight of the evidence, and contrary to law and the charge of the Court.</p> <p>2d. Because the Court erred in charging the jury as hereinbefore set forth, as to the proof necessary to sustain the allegation in the indictment, that the accused was a free person of color.</p> <p>3d. Because the Court erred in permitting the State to prove that it was the general reputation in the neighborhood that Dolly Evans. was a free • person of color, and that she was reputed to be the defendant’s mother.</p> <p>4th. Because, under the testimony, the defendant should not have been convicted, as the homicide was justifiable.</p> <p>The Court overruled the motion and refused the new trial. That decision is the error alleged in the bill of exceptions.</p>

<p>Motion in Stewart Superior Court, decided by Judge'John T. Clarke, at April Term, 1863.</p> <p>Joseph W. Sessions, as guardian for Benjamin Yasser, exhibited a bill in equity, returnable to April term, 1858, of Stewart Superior Court, against William L. Mansfield, as administrator of Joseph Sessions, deceased, to recover a distributive sbare of the estate of said deceased, to which it was claimed that the said Benjamin Vasser was entitled. Previous to the filing of this bill, John H. Páte and William F. Sneed caused Mansfield to be notified that they had purchased the distributive share of Vasser in the estate of Joseph Sessions, deceased, and had an assignment and transfer thereof, and insisting thatsaid distributive share be paid to them. Pate and Sneed afterwards filed their bill, returnable to the April term, 1859, of said Court, against the said William L. Mansfield and the said Joseph W. Sessions, enjoining the further prosecution of the first bill, setting up their claim to the said distributive share of Vasser, and praying a decree that it be paid to them. Pending these bills, and counter-claims to the money in his hands, Mansfield came into Court, at April term, 1863, and disclaiming all interest in the fund, and avowing his readiness and anxiety to pay the said distributive share, amounting to $6,992 04, to the party entitled to it, and not knowing who that party was, asked the Court to grant an order allowing him to pay said fund into Court. The parties all being in Court, and having an opportunity to be heard on the motion, the presiding Judge passed the following order, to-wit:</p> <p>“Ordered, That the said William L. Mansfield, administrator as aforesaid, do deposit with E. F. Kirksey, clerk of this Court, within thirty days from the day of adjournment of this Court, the said sum of $6,992 04, to abide the final order and decree of the Court in the premises, and that the said William L. Mansfield, administrator as aforesaid, be discharged from all liability in reference to said fund.”</p> <p>The passage of this order is the error complained of. In certifying the bill of exceptions, the presiding Judge states, that no objection was made to the order on account of the character • of the money, or the allowance of thirty days within which it .•should be paid into Court. He further states, that he aninounced to the parties that he was ready to and would pass any -order that they might agree upon as to the investment of the fund, or that he would entertain any motion from any of the parties on that subject, but no such agreement or motion was made.</p>

In Equity, in Bibb Superior Court, tried before Judge Harris, at December Term, 1860. The facts of this case are fully stated in the opinion of the Court as pronounced by Mr. Justice Lyon.

Bill for new trial in Houston Superior Court, and tried before Judge O. A. Loohjrane, at August Term, 1863.

<p>On the 12th day of February, K. borrowed of S. $6,000, agreeing to pay him therefor usurious interest at the rate of 121 per centum per annum, and gave his notes to S. for principal and usurious interest, due 25th December, 1856. As the law then stood the whole of the interest, legal and usurious, was void. On the 3d March, 1856, a new statute was passed, by which the principal and legal interest on contracts made after that date was recoverable, aDd only the usurious interest was void-After this Act, and after the notes became due, S. foreclosed his mortgage that K. had given to secure the payment of the money, and was about to force a collection, when, and on the 27th day of February, 1857, S. agreed, with K., to wait with him for the payment of the money another year, and K. agreed to pay him at the rate of 121- per cent, from this day of payment, and gave to S. his note for the amount of interest thus agreed on — the old debt remaining as first executed. When the time thus agreed on had elapsed, K., attempting to force a collection, S. paid up what he admitted to be due and filed his affidavit under Section 399 of Judiciary Act — that there was no more due. Held:</p> <p>1. That legal interest was recoverable on the principal from the date of the last agreement.</p> <p>2. That in a proceeding of this kind the defendant can avail himself of all the defences that he could make in any other form of proceeding.</p>

Indictment for murder, in Calhoun Superior Court, tried before His Honor Alexander A. Allen, at March Term, 1861. At the March Term, 1861, of Calhoun Superior Court, a bill of indictment was found and filed, charging Logan Matthis and Hillary Matthis, with the crime of murder, in taking the life of Everett Matthis, in said county, on the first day of March, 1861.

Bill for direction, in Sumter Superior Court, and decision by Judge Richard H. Clark, at April .Term, 1863. The questions decided in this case arose out of the following state of facts : On the 18th of March, 1851, James K. Daniel made and published his will, and afterwards died, leaving the will in full force, and the same was proved and recorded in due form of law. The following is a copy of the will, to-wit: “ 1.

<p>Bill in equity, for account and distribution, in the Superior Court of Schley county, tried before Judge Wokrill, at October Term, 1860.</p> <p>This was a bill filed by William H. Binion and others, heirs-at-law, and distributees of William Binion, deceased, against Emson Miller, administrator de bonis non of said deceased, praying an account and distribution of said estate.</p> <p>The record is extraordinarily voluminous, but as the Court passed upon but one question, and as Mr. Justice Jenkins, in the opinion of the Court as delivered by him, gives a statement' of all the facts necessary to a clear understanding of the question decided, the Reporter deems any other statement unnecessary. •</p>

Seirefaeias on the bail bond, in Whitfield Superior Court. Decision made by Judge Walker, at April Term, 1861. The facts and circumstances of this case are as follows': Loyd, Perryman & Mills, instituted suit against William McLeer, to recover the amount of an open account.

Complaint in Trover, in Carroll Superior Court, tried before Judge Dennis F. Hammond, at the April Term, 1861. The facts of this case, were agreed on by the counsel for the parties, and are as follows : On the 26th day of February, 1856, Ivey Hill instituted his action in Carroll Inferior Court, against Sheppard K. Williams, for the recovery of a yoke of oxen, worth $60 00.

Suit on a bill of exchange, in Catoosa Superior Court, tried before Judge Dawson A. Walker, at May Term 1861.

<p>1. One who holds notes sued on, as collateral security for the payment of a debt due to him from the plaintiff in the action, is an incompetent witness for the plaintiff in such action.</p> <p>2. A judgement in a claim case, finding a lot of land subject to the payment of a fi. fa. against a vendor and warrantor, is sufficient evidence of an eviction of the vendee, though the land may not have been brought to sale under the judgment, and though the vendee and claimant may not have been aetually'turned out of possession.</p> <p>3. A verdict and judgment, in accordance with the law and facts of a case, will not be disturbed.</p>

<p>1. A'party, plaintiff or defendant, may begin at either end of his testimony, upon the assurance of counsel, that he expects to supply all . the links in the testimony necessary to make out his case.</p> <p>&. When a case is in the last resort, testimony taken by interrogatories and commissions, can only be objected to on the ground of irrelevancy.</p> <p>3. In a suit brought to recover notes given for a negro slave, a receipt given by the vendor to the vendee, for the purchase price of the slave, is admissable in evidence, although the receipt contains no covenant of warranty.</p> <p>4. The refusal of the Court to suspend the trial and continue a case, to enable a party who is surprised by the testimony of a witness, to obtain evidence to impeach him, is not a sufficient ground for a new trial.</p> <p>5. A witness who is interested in the event of the suit, is incompetent to testify in behalf of the party with whom his interest lies.</p> <p>6. An attorney at law, without special authority, is not competent to release a witness for his client.</p> <p>7. It is not error for the Court to refuse to suspend the trial, and continue a case, in order to enable an attorney to obtain from his absent client, a release to a witness. This is especially so, where the client was apprised of the necessity of the release.</p> <p>8. The refusal to charge what is not law, is no ground for a new trial.</p> <p>O. Newly discovered evidence which is merely cumulative, and which ought not to change the verdict if admitted, is no ground for a new trial.</p>

Indictment for adultery and fornication and motion in arrest of judgment, in Sumter Superior Court, decided by Judge Richard H. Clark, at April Term, 1863.

JDevisavit vel non, in Whitfield Superior Court, tried before Judge D. A. Walker, at the April Term, 1861.

Habeas corpus. Decided by Judge E. H. Worrill, at Chambers, in Talbotton, on the 15th of October, 1863.

Caveat to will, tried at the November term, 1863, of Burke Superior Court, before Honorable James S. Hook, presiding Judge.

Habeas corpus. Decided by Judge O. A. Loohrane, at. Chambers, in the city of Macon, on the first day of December, 1863. ' Lieutenant John A. McManus, one of the enrolling officers of the Confederate States, for the State of' Georgia, issued an order commanding James M. Gates to report to his Headquarters in the city of Macon for enrollment in the military service of said Confederate States, as a conscript.

Bill for direction, in Jefferson Superior Court, tried before Judge James S. Hooic, at November Term, 1863. In this case there is but one question, and that grows out of the following state of facts, to-wit: On the 9th of August, 1849, James Matthews made and published his will in due form, and died leaving it in full force. The will was duly proved and recorded, and on the 6th of December, 1855, Charles Matthews, the executor, received letters testamentary according to law.

Scire facias to make parties. In Whitfield Superior Court. Decided by Hon. Cicero D. MoCutohen, a Judge selected under the law. At May Term, 1861. William Faith brought an action on the case for slander, against Joshua Carpenter, and on the trial at common law, the plaintiff1 recovered a verdict for $350 00. From this verdict the defendant entered an appeal, and, pending the appeal, died.

Habeas corpus, decided by Judge O. A. Locheane, at Chambers, in the city of Macon, on the 19th December, 1863.

Ejectment. In Whitfield Superior Court. Tried at the April Term, 1861, before Jambs Milner, Esq., an attorney at law, who, by consent of the parties, exercised the functions of Judge in said case, his Honor Judge Walker, having been of counsel in the case, and therefore incompetent to preside therein.

Indictment for murder, in Thomas Superior Court, tried before Judge A. H. IIansell, at December Term, 1863, and motion for new trial. William, a slave, belonging to S. A. Smith, was indicted for murder in killing another slave, by the name of George, belonging to the said-S. A. Smith, in said county of Thomas, and was put upon his trial therefor at December term, 1863. On the trial, the following evidence was adduced before the Court and the jury impaneled to try said ease.

From Gordon county. Tried before James S. Milner, presiding as Judge by consent. At April Term, 1861. The facts of this case are incorporated in the opinion of the Court, to which the reader is referred.

An action on a promissory note. In Whitfield Superior Court. Decided by Judge Dawson A. Walker. At the May Term, 1861.

Assumpsit on a promissory note. In Murray Superior Court. Tried at April Term, 1861. Before Joseph T. McConnell, an attorney at law, selected by the parties to try the case, the presiding Judge of said Court being disqualified to hear and determine the same, as he had been of counsel therein.

Manda/nms, in Sumter Superior Court. Decided by Judge Richard H. Clark, at April Term, 1863.

<p>Fi. fa. and claim. In Fulton Superior Court. Decided by Judge O. A. Bull. At the April Term, 1861.</p> <p>Thé question made and presented for adjudication, in this case, grows out of the following state of facts :</p> <p>On the 21st day of June, 1858, Renneker & Glover recovered a judgment in the Inferior Court of Fulton county, against John B. McMichael, for the sum of $1,301 85, principal, besides interest and costs. From this judgment a-writ of fieri facias was issued, and on the 3d day of September, 1858, the fi.fa. was levied on a city lot on Whitehall street, in the city of Atlanta, upon which there was a large brick house, as the property of the said John B. McMichael.</p> <p>Shadrach J. McMichael interposed his claim in due form, asserting that the property levied on was- his, and the fi. fa. and claim were returned by the sheriff to the Superior Court of Fulton county, for a trial of the issue thus made.</p> <p>The issue came up for trial on the appeal, having been carried to the appeal docket by consent. On the trial, the plaintiffs read in evidence their fi. fa., with the levy on the same, and proved that the defendant, John. B. McMichael, was in possession of a part of the building at the time the levy was made; that in the year 1854 he bought the property for $6,000 00, one-half of which he paid in cash at the time, and took from the vendor a bond for titles; that he afterwards paid the remaining half, and had made additions to and improvements upon the place, for all of which he paid; that no deed had been executed to him for the property, because he would not produce the bond for titles, alleging that he had lost it.</p> <p>The testimony closed, and after argument had been made on both sides, and the presiding Judge had charged the juryj counsel for complainant proposed to withdraw his claim, which the Court allowed hina to do, despite the objections of counsel for the plaintiff, who insisted that it was their right to have the jury pass upon the question of delay and damages, and that claimant could not withdraw his claim, after an appeal, without the plaintiff’s consent.</p> <p>The decision allowing a withdrawal of the claim, is the error complained of.</p>

Trover and conversion. Tried before Judge O. A. Lociirane, at December Term, 1863, of Dougherty Superior Court. Simeon A. Smith brought an action of trover, in Dougherty Superior Court, against Sims & Rust, to recover damages for the alleged conversion of fourteen bales of wool.

Action of Assumpsit. In Fulton Superior Court. Decided by Judge Bull. At April Term, 1861. This was an action instituted by Pitts & Cook, proprietors of a planing mill, against Benjamin F. Bomar, as the administrator of Fannie Davis, deceased, to recover the sum of $230 17, the proven value of certain dressed and undressed lumber sold and delivered by them to defendant’s intestate, in her lifetime, and used in building a house on a lot where she then lived.

Indictment for larceny from the house. In the Superior Court of Lumpkin county. Tried before his Honor George D. Rice, the presiding Judge. At the April Term, 1861. At an adjourned term of Lumpkin Superior Court, held in April, 1861, a bill of indictment was found and filed against Henry Davis, charging him with larceny from the house.

H. Morrill presiding. The facts necessary and proper to be stated in this case are as follows: On the 18th of February, 1859, Lucy A. McLaren filed an application against her husband, Peter McLaren, in Muscogee Superior Court, praying for a total divorce.

Bill in equity. In the Superior Court of Newton county. Decided by Hon. John J. Floyd, Judge of said Court. At March Term, 1861. The following statement of facts will present the questions at issue between the parties to this case, and brought before the Supreme Court for review : During the years 1849, 1850 and 1851, Samuel Scott and Thomas F. Jones carried on the business of merchandizing in the county of Newton, as partners, under the firm name and style of Scott & Jones.

Motion to set aside judgment in Sumter Superior Court, decided by Judge Alexander A. Allen, at April Term, 1861.

Issue of devisavit vel non, decided by the Hon. Richard H. Clark, at Chambers, in the city of Albany, on the. 27th of January, 1864.

<p>1. Upon an application to the Superior Court for partition of land by joint tenant, or tenant in common, under the Act of March 26, 1767, it is proper for that Court, in case of a contest, to go into a consideration of the title, both legal and equitable, and award or refuse the writ, according to the proof made.</p> <p>2. When the proof shows that the defendant to such application has no real interest in the land, but that the title or interest is in a third person, the Court should not proceed to a hearing until such third person is notified and made a party.</p>

<p>Motion for new trial. From Newton county. Tried before Judge Floyd. At the March Term, 1861.</p> <p>The facts are incorporated in the opinion of the Court.</p>

Certiorari. From Spalding Superior Court. Decided by Judge Floyd. At May Term, 1861.

Bill in equity. In Troup Superior Court. Decided by Judge Dennis F. Hammond. At Chambers, on the 19th of March, 1861.

<p>1. An attorney at law, who is not of counsel in a case, and notinterested in its results, is a competent commissioner to take depositions therein.</p> <p>2. It is not error in the Court to refuse to reject depositions taken in a case, because the signatures of the witness and the commissioners seam to be in the handwriting of one and the same person. The question of identity, in such case, may well be submitted to the jury.</p> <p>8. In an action of ejectment, brought in the name of the grantee, the defendant offered to prove that the party from whom he derived title, bargained with the grantee for the land in dispute, and paid a part of the purchase-money, leaving the balance unpaid. Upon objection made, the Court rejected the testimony : Held, that the Court did right.</p> <p>4. Testimony offered for the purpose of impeaching a witness, because of statements made out of Court at variance with the testimony of the witness at the trial, should be rejected, unless a proper foundation is first laid for the introduction of the impeaching testimony.</p> <p>5. The decisions of this Court have been uniform, that the grantee may use the name of the grantor to recover land, when the deed to the grantee is rejected on account of adverse possession of the land at the time the deed was executed.</p> <p>6. R sued W in an action of ejectment for the recovery of a lot of land. Pending the action, which was subsequently dismissed, a sufficient length of time had elapsed to bar the plaintiff’s right of action, unless he recommenced his suit within six months from the date of the dismissal of the action. After the dismissal of the suit, W made a contract and an arrangement with L to hold secret possession of the land, so as to mislead the plaintiff, and prevent the bringing of a second suit until six months from the dismissal of the first suit should expire: Held, that, under these facts, it was not error in the Court to charge the jury, “that the possession of L was the possession of W.”</p> <p>7. Where the defendant can acquire a statutory title by the occupation of successive tenants, can the action of ejectment be brought against him? Qitere.</p> <p>8. It is too late to object to a record for want of proper authentication, after it has been admitted and read to the jury without objection.</p> <p>9. A party who himself loses or suppresses depositions taken in a case, will not be allowed to take advantage of the absence of the depositions by motion for a new trial.</p> <p>10. A plea of aliter Us pendens, and a motion to compel the plaintiff to elect which he will prosecute, is the proper remedy where two suits are pending for the same cause of action.</p>

Bill in equity in Lee Superior Court, and motion to dissolve injunction, decided by Judge Richard H. Clarke, at Chambers, on the 5th of November, 1863.

Soire facias, on bail bond and cause shown. In Gwinnett Superior Court. At March Term, 1861. Judgment by Judge Hutchins. ' Edwin Bates & Co. sued Job W. Harris and William H. Harvey, on a promissory note, and filed their affidavit, requiring bail.

Bill of interpleader in the Superior Court of Bibb county. Tried before Judge O. A. Lochrane, on the 22d of January, 1863, the November term, 1862, of said Court having been adjourned to that time. On the 21st of February, 1855, John Bowman made a will, consisting of many items, in which he recited advancements made to his children, and in which he gave them all certain specified property.

Indictment for assault and battery, in Burke Superior Court. Tried before the Honorable W. W. Holt, at November Term, 1860. These cases, involving the same facts and questions, were heard together. William Skinner, Uriah Skinner, and Alexander Lewis, were jointly indicted in Burke Superior Court for an alleged assault and battery on the person of John Peel, who was the prosecutor of the indictment. The defendants electing to sever were tried separately.

Hook, at Chambers, on the 2d of February, 1864. The single question presented for adjudication in this case springs out of the following state of facts, viz: Plenry Scott was enlisted as a soldier in the army of the Confederate States, on the 11th of May, 1861, in Captain William Johnson’s company (F,) Tenth regiment of Georgia Volunteers. His enlistment was for the war.

Motion to dissolve injunction in Sumter Superior Court, decided by Judge Eichard H. Clark, at Chambers, on the 29th December, 1863.

In equity. From Richmond Superior .Court. Tried before Judge Holt. At June Term, 1861. The record, in this case, is voluminous, and from it the' following statem'ent is extracted, which is deemed sufficient for a clear understanding of the questions made, and the decision of the Court thereon Mrs. Mary Ann Harper, a feme covert, owned and possessed a considerable estate in her own right, and to- her sole and separate use, with power to dispose of the same by will.

Motion to dissolve injunction, in Crawford Superior Court, decided by Judge O. A. Lochrane, at Chambers, on the 27th of February, 1863.

Motion to dismiss an action, in Burke Superior Court. Decided by Judge Holt, at November Term, 1861. Jabez B. Baxley instituted an action in Burke Superior Court against William Bennett, to recover the amount of an account. The writ was filed in the Clerk’s office on the lltli day of October, 1861, and process issued on the same day. A copy of the petition and process was served on the defendant by the deputy sheriff of Burke county, on the 28th day of October, 1861.

Motion to enforce a decree in Chancery. From McIntosh Superior Court. Decided by Judge Fleming. At Chambers,in December, 1860.

Attachment and claim. In Sumter Superior Court. Tried before Judge Alexander A. Allen, at the April Term, 1861. Eeturnable to April term, 1858, Way & Taylor instituted an action in Sumter Superior Court against Brown & Carmichael, to recover the sum of $11,827 70, which the plaintiffs alleged was due them from the defendants.

In equity, from Randolph Superior Court. Motion to dissolve an injunction. Decided by Judge Perkins, at Chambers, on the 1st day of October, 1860. Elizabeth F. Atkinson, by her next friend, Henry R. Thomas, exhibited her bill in equity, in Randolph Superior Court, against Otho P. Beall and Isaac E. Bower, in which the following facts are alleged, to-wit: ' In the year 1837 the complainant intermarried with Lazarus Atkinson.

Action for damages, in Muscogee Superior Court, tried before Judge Edmund H. Worrill, at November Term, 1860.

Complaint. In Decatur Superior Court. Tried before Judge Allen. At April Term, 1860. On the 8th day of July, 1855, William J. Lawrence, the defendant in error, sold to John P. Gaulden, the plaintiff in error, a negro girl, slave, by the name of Phooebe, for the sum of $95.0 00.

<p>Ejectment, in Calhoun Superior Court. Tried before Judge Allen, at March Term, 1861.</p> <p>This was an action of ejectment brought in the name of John Doe, ex dem. George Irving, Elizabeth Oneal and Elizur L. Newton, against Richard Roe, casual ejector, and Solomon G. Beckom, tenant in possession, for the recovery of lot of land No. 279, in the fourth district of Early county, after-wards Calhoun county.</p> <p>The action was commenced on the 17th August, 1853. On the trial of the case in the Court below, the evidence developed the following state of facts, to-wit:</p> <p>The land in dispute was granted to George Irving on the 21st of October, 1823. George Irving died before the grant issued, and in the month of January, 1821, Burwell Russell and Levin Irving were duly appointed administrators of his estate, which consisted of negroes, lands and perishable property. On the 1st day of November, 1824, the Court of Ordinary of Morgan county, after due notice given, passed an order granting the administrators leave to sell the land in dispute, pursuant to which order the land was sold at administrator’s sale, and Burwell Russell became the purchaser at the price of $56 25, which, at the time, was a fair price for the land. Levin Irving made a deed conveying the land to Burwell Russell, his co-administrator, dated 25th November, 1825, and recorded in the Clerk’s office of the Superior Court of ¡Early county, on the 3d July, 1826. The sale of the land was duly and specifically returned to the Court of Ordinary, giving the number of the lot, the purchaser, and the price at which it was sold. The administrators having wound up the estate, and fully distributed the same to the parties entitled thereto, (Bryant Oneal, the husband of Elizabeth Oneal, formerly Elizabeth Irving, being one of the distributees,) were regularly discharged and dismissed from their trust, after due notice, on the 16th of March, 1826. Bur-well Russell having died, the premises in dispute were conveyed by his heirs-at-law to Solomon G. Beckom, on the 5th of February, 1854, the conveyance being duly recorded. This is the title on which the defendant relied.</p> <p>Elizabeth Oneal having been divorced from her husband, Bryant Oneal, and being the sole surviving heir-at-law of George Irving, deceased, conveyed the land to Elizur L. Newton by a deed dated 12th of December, 1849, and recorded 9th December, 1850. This is the title on which the plaintiff relied.</p> <p>It also appeared, by the evidence on the trial, that Beckom had signed a paper dated the 7th of December, 1850, showing that he had rented the land from Elizur L. Newton, and that he agreed to clear not less than one, nor more than ten acres of the lot, and to protect the land, for which he was to receive the products of the land so long as lie held possession. Early in 1851 Beckom wrote to Newton, declining to act as his agent in holding and protecting the land under the lease or written agreement aforesaid, and Newton replied, urging him not to decline, promising him the refusal of the land, when it should be offered for sale, if he would act as his agent and friend.</p> <p>Newton also wrote to Colonel Stafford to look after the land, and to urge Beckom to continue to hold it, and if he still declined, to try to get some one else to do so. Stafford went to see Beckom on the subject, and Beckom still declined to hold the land as Newton’s agent, and Stafford failed to get any one else to do so, and so wrote to Newton.</p> <p>Beclcom was in possession of the land at the time suit was commenced, and pending the suit he died, and his wife, who was his executrix, was made party in his stead.</p> <p>Upon this state of facts the jury returned a verdict for the defendant, and the plaintiff prosecutes this writ of error to reverse that judgment, on the ground that it is erroneous.</p>

Habeas corpus, decided by Judge Benjamin H. Bigham, at Chambers, in 1864. There is but one question in this case, and it grows out of the following statement of facts: Strong, a citizen of Oglethorpe county, was enrolled as a conscript under the laws of the Confederate States and the rules and regulations prescribed by the Secretary of War.

<p>1. Q- executed a deed, conveying certain negroes to his children, and subsequently died, leaving a widow and nine children. The widow kept possession of the negroes for many years, using and employing them for the support of herself, and the support and education of such of the children as continued to live with her, until they respectively married, or arrived at age and left her. On a bill filed by one of the children and her husband, who had enjoyed these advantages until her marriage, against the other children, for an account of her part of the value of the hire of said negroes, upon the allegation that the widow had taken possession of the property, and by and with and under the advice and direction of one of her five sons, managed the same; that she took this possession with the consent of all the children, complainant not then being of age : Held, that on these allegations, complainants were not entitled to a decree for hire against the other children, or any one of them, and that the Court properly excluded that inquiry from the jury.</p>

Bill for account and relief, in Sumter Superior Court, and decision on demurrer, made by Judge Alexander A. Allen, at April Term, 1861. The interesting questions decided in this case spring out of the following state of facts, to-wit: On the 15th of August, 1846, Abner Bartlett, then a citizen of Jasper county, made and published his will in due form, and died, leaving- the same in full force, and the will was proved and recorded in said county of Jasper, according to law.

Motion to rescind an order granting temporary alimony and counsel fees, in Baker Superior Court. Decided by Judge Allen, in December, 1861. Virginia Weaver instituted a libel for divorce, in Baker Superior Court, against her husband, Anthony G. Weaver.

Trespass on the' case, in Decatur Superior Court. Tried before the Hon. Augustus H. Hansell, Judge presiding, at October Term, 1860. The record in this case presents the facts and questions following: At the August Term, 1842, of Decatur Superior Court, a judgment was recovered in favor of Robt.

Bill in equity and demurrer thereto, in Muscogee Superior Court, tried before Judge Edmund H. 'Worrild, at the November Term, 1860. The facts upon which the decision of the Court in this case rests, are as follows: On the 2d day of April, 1836, Alpha K. Ayer and John A. Urquhart entered into a written agreement of copartnership for the purpose of carrying on the business of buying and selling negroes, the business to continue so long as the parties should mutually agree.

<p>Motion to discharge bail, in Sumter Superior Court. Decided by Judge Allen, at October Term, 1861.</p> <p>This was an action brought by Way & Taylor against Brown & Carmichael to recover the sum of $11,827 70, alleged to be due by account.</p> <p>The action was commenced on the 21st January, 1858, in which bail was required by the plaintiffs.</p> <p>In the writ Brown was described as a resident of Sumter county, and Carmichael as a resident of Dougherty county.</p> <p>• Brown being absent, was not arrested under the bail process, but was served by leaving- a copy at his most notorious place of abode.</p> <p>Carmichael acknowledged service, and gave bail voluntarily.</p> <p>Carmichael subsequently took steps to avail himself of the benefit of the laws for the relief of insolvent debtors, and an issue of fraud was made up upon his schedule, and the issue continued by the plaintiffs. His securities then surrendered him in open court," and he was ordered into the custody of the sheriff until he' should give other bail, and in default thereof, he should be‘ committed to jail. Subsequently he was adjudged by the Court to. be in no legal custody, and was discharged, but upon what ground the record does not disclose.</p> <p>On the 22d oi April, 1861, the plaintiffs sued out bail process pendente lite, upon the affidavit of Taylor, one of the plaintiffs, in which he deposes that the defendants are justly due the plaintiffs “ in a suit now pending in Sumter Superior Court, on appeal, the sum of eleven thousand eight hundred and twenty-seven dollars and seventy- cents, principal, besides interest, which is due and unpaid, and further, that deponent has good reason to apprehend the loss of said sum of money, or some part thereof, if the said defendants are not held to bail.”</p> <p>This affidavit was filed in the Clerk’s office of Sumter Superior Court, and process issued thereon, but the Clerk failed to sign the process.</p> <p>A second original and copy, were sent to the county of Chatham, and Carmichael was arrested under it.</p> <p>At the October Term, 1861, a motion was made to discharge the bail thus taken pendente lite, on the grounds:</p> <p>1st. Because the affidavit was insufficient, in that it did not state that bail was not required at the commencement of the action, or being required, that it had been discharged.</p> <p>2d. Because the record showed that bail was required at the commencement of the suit, and had not been discharged.</p> <p>3d. Because the bail process pendente lite was not signed by the Clerk.</p> <p>,4th. Because the Act of 1856 repealed the law authorizing bail pendente lite, in cases where bail was required at the commencement of the suit.</p> <p>The presiding Judge refused to discharge the bail, and that refusal is the error alleged.</p>

<p>Motion for bail, in Dougherty Superior Court. Decided by Judge Allen, at December Term, 1861.</p> <p>John W. Lester stood indicted in Dougherty Superior Court for the murder of Albert G. Owen.</p> <p>He was arrested under the charge on the 27th of June, 1861, and had been confined in jail ever since that time.</p> <p>At the December Term, 1861, he was put upon his trial for the offence, and the jury failing to agree upon a verdict, after deliberating for about thirty-eight hours, were discharged, and a new trial declared by the presiding Judge.</p> <p>Counsel for the defendant then moved the Court to admit said defendant to bail, and predicated their motion upon the certificate of Drs. William P. Jennings, M. D., S. S. Crawford, M. D., and J. P. Hardwick, M. D., in which they state that they had examined the prisoner in the jail of said county, and found him suffering from a deranged state of his heart, and his general health impaired, which they regarded as the result of his confinement in said prison. The physicians recommended, for the benefit of the prisoner’s health, that he be allowed the privilege of taking exercise in the passage of the jail, under the supervision of the jailor, at least three hours every day, and also that he be changed into another cell that is better ventilated than the one he was then in. These recommendations were made by the physicians, believing as they did that it would tend, to a great degree, to the restoration of the prisoner’s health.</p> <p>The presiding Judge refused to admit the prisoner to bail, but passed an order, “that the sheriff and jailor should have leave to remove the prisoner to another cell not unsafe, and otherwise to better the condition of the prisoner’s health, if not inconsistent with the due custody and safe keeping of the said prisoner.”</p> <p>This ruling and decision of the Judge is complained of as error, and its reversal is asked by the plaintiff in error.</p>

<p>The minutes of the Supreme Court show that the judgment of the Court below in this ease was affirmed, but the opinion is not on record, and I am, therefore, unable to give it here. Geo. N. Lester.</p>

Habeas corpus. Decided by the Hon. E. H. 'W’orrill, at Chambers, on the 3d of July, 1861. The question in this case springs out of the following state of facts, to-wit: Samuel Jeter, a man between fifty and sixty years of age, intermarried with Sarah Taylor, a girl seventeen or eighteen years of age, in the spring of 1853.

<p>In this ease, the judgment of the Court below was reversed, on the ground that the Court erred in awarding a non-suit against the plaintiff, but the opinion of the Supreme Court seems not to have been recorded, and being unable to find it, I cannot give it here. Geo. N. Lester.</p>

Claim, in Fulton Superior Court, on appeal. Tried before Judge Bull, at April Term, 1861. The writ of error in this case was dismissed on motion of counsel for defendant in error, on the ground that it appeared from the record that plaintiff in error had no case in the Court below on which to found his bill of exceptions. The record discloses that Nolan brought an action in Fulton Inferior Court against Williams and Baker, and Holland as endorser, and obtained a judgment.

Murder. In Fulton Superior Court. Tried before Judge Bull, at October Term, 1861. At the October Term, 1861, of Fulton Superior Court, an indictment was found against James R. Wilson, the plaintiff in error, and his father, John L. Wilson, for the murder of Thomas Terry, and at the same term they were jointly put upon their trial.

Assumpsit, from Gordon Superior Court. Tried before Judge Walker, at October Term, 1861. This action was brought by W. P. Fain, to recover of Julia A. Cornett, administratrix of U. H. Cornett, $1,000, the proceeds of the s.ale of a negro woman, Thena and her two children, the property of said Fain, and sold by defendant’s intestate. Plaintiff was the son-in-law and defendant the widow of IT. L. Cornett.

Indictment, from Fulton county. Tried before Judge Bull, at April Term, 1861. Augustus D. Moore was put upon his trial under an indictment for the “ offence of passing an altered bank bill,” on the Farmers and Mechanics Bank, of Savannah, said bill having been “ raised ” from a one dollar bill to the denomination of a ten dollar bill, and falsely and fraudulently passed to one Riley H. Ferguson by the said Augustus D. Moore.

Certiorari, in Fulton Superior Court. Decided by Judge Bull, at April Term, 1861. White and Kreis, butchers, rented from the Mayor and Council of Atlanta, a stall in the market house of that city for the purpose of there exposing their meats for sale during the year 1861, went into possession and proceeded to carry on their business.

Ejectment, in Whitfield Superior Court. Tried before John W. H. Underwood, Esq., at October Term, 1861. Held: that under the state of facts agreed upon the plaintiff’s were not entitled to recover, to which decision plaintiffs excepted.

Decided by Judge Bull, at November Term, 1861. .This case was submitted to the decision of the Court by agreement of counsel, upon the following statement of facts: At the September Term, 1860, of the Court of Ordinary of Fulton county, on the joint application of Jared I. Whitaker and John C. Smith, co-administrators of the estate of C. W. Smith, said Court passed an order empowering them to sell the real estate and slaves belonging to said estate, and at November Term,…

Ejectment, in Lumpkin Superior Court. Tried before Judge Bice, at February Term, 1862. This was an action for the recovery of lot Number 1028, in the 12th district of Lumpkin county. Plaintiff showed title in his intestate by a grant from the State, dated 11th of August, 1854, produced his letters of administration and proved possession by defendant at the time of action brought, 29th June, 1860.

Debt, in Whitfield Superior Court. Tried before Judge Walker, at November Term, 1861. Suit was brought by the Daltou Manufacturing Company, machinists, against the Dalton City Company and Rufus K. Ford, as partners, on the following note: Dalton, Geo., Oct. 10, 1850. $658. One day after date I promise to pay to Dalton Manufacturing Company, or order, the sum of six hundred and fifty-eight dollars, for value received.

<p>1. Matters of fact are proved by moral evidence alone, and the most that can be affirmed of such things is, that there is no reasonable doubt concerning them.</p> <p>2. In all criminal trials, whether dependent upon positive or circumstantial evidence, the only question is, not whether it be possible that the conclusion to which the proof points may be false, but whether there is sufficient testimony to satisfy the mind and conscience beyond a reasonable doubt. '</p> <p>3. If the degree of conviction be such that one would not hesitate to act ' upon it in matters of the highest concern and importance to his own interest, it is sufficient.</p>

<p>Petition to make rule absolute. Decision by Judge Han-sell, at Chambers, May 5th, 1862.</p> <p>At December Term, 1861, of Thomas Superior Court, John C. Browning, the plaintiff in error, was appointed Receiver of the estate, both real and personal, of the minor heirs of Samuel H. Hadley, and an order passed requiring the defendant in error, Simon D. Hadley, guardian of said minors, to turn over to the Receiver, and deliver forthwith, all the estate of said minors, of whatever consisting, either, real or personal property, money, choses in action, etc.</p> <p>A short time thereafter Browning made his petition to the Hon. A. H. Hansell, Judge, etc., in Chambers, setting forth the above order, and alleging that Simon D. Hadley had delivered to the Receiver the land and negroes, and some five hundred dollars in notes, the property of the estate of the minors, but that he was indebted to the minors the sum of seven thousand one hundred and fifty-six dollars and sixteen cents, as appeared by a copy of his last annual return appended to the petition.</p> <p>The petition further alleges, that the plantation of the minors, turned over to the Receiver, was in a wretched condition ; that the negroes needed food, clothing, etc., and that a large amount was needed to supply these things, and to put and keep the plantation in working order, and that for want of the means belonging to the estate in the hands of the defendant, the Receiver was put to divers straits and unnecessary expense; that the defendant wholly refuses to obey the order of his Honor, and to turn over the money he acknowledges to be due to the estate of the minors. A rule nisi is prayed for, calling on the defendant to show cause why a rule absolute and attachment should not be had against him for contempt. At the hearing, which was on May 5th, 1862, defendant submitted his answer, in which .he denies having disobeyed the order of the Court, but asserts that he has complied therewith as far as was in his power; that the balance appearing to be due, by his last return, has been reduced by payment made by him in bacon and other things, and 'by his paying said Receiver twelve hundred and seventy-five dollars since the passage of the order; that the amount due on the balance since the payments is chiefly a debt made and due to Samuel H. Hadley, while in life, and a debt made to E. Seixas as administrator of said Samuel H., on the sale of a negro by said administrator, which debts were taken and received by respondent from the administrator as cash, and so charged by defendant against himself in his returns, when in fact he received but little, if any cash, from the administrator, and that the balance will not exceed the principal and interest of said debts. Defendant, in his answer, further proposes to give all the notes he has in possession, and if they are not enough, to give his own notes in settlement of the balance. Defendant avers that he has done all in his power to comply with the order'of the Court, and has failed only through the w’ant of means to do so.</p> <p>Defendant insists that said balance is but a debt, and not cash in his hands, and that it cannot be demanded as cash.. He has not the cash, and is unable to procure it in the present condition of the country. He denies that he had any money in his hands belonging to the estate of the minors at the time of the passage of the order.</p> <p>Upon hearing the motion and answer, Judge Hansell refused to make the rule absolute, and also refused an order that an attachment issue for contempt, and plaintiff excepts.</p>

Complaint, in Baldwin Superior Court. Tried' before Judge Harris, at August Term, 1861. Plaintiff in error, who was also plaintiff in the Court below, brought bis action at the May Term, 1860, of Baldwin Inferior Court, against the defendant to recover the amount due on the two following notes: One day after date we, or either of us, promise to pay John D. Denson, or order, one hundred dollars, value .received. Brunswick, April 1, 1858. E. M. Moore, A. J. Miller.

Larceny, in Chatham Superior Court. Tried before Judge Fleming, at January Term, 1861. Joseph W. Phillips, indicted for larceny, was put upon his trial, at January Term, 1861, of Chatham Superior Court.

Tried before Judge Holt, at October Term, 1860. A paper, purporting to be the last will of Andrew Girt-man, was propounded for probate by David J. Lamb, the executor therein named, before the Court of Ordinary of Jefferson county, at July Term, 1857, and a caveat entered thereto by Mary Girtman and others, on various grounds, two of which are only necessary to be here stated.

Caveat to land warrant, in Washington Superior Court, Tried before Judge Holt, at September Term, 1859. James H. Jackson, the plaintiff in error, made application to the Land Court of Washington county for a warrant of survey of certain alleged vacant land in said county, subject to head rights.

Indictment for murder, ip Washington Superior Court. March Term, 1862. Honorable William W. Holt, presiding. As the Court did not pass upon the evidence in this case a statement of it is deemed useless. A statement of the points will be found in the opinion of the Court as pronounced by Judge Lumpkin.

Plea to the jurisdiction, in Bibb Superior Court. Decided by Judge Lamar, at June Term, 1860. It was agreed that these cases should be heard together.

<p>1. A legatee filed a bill against-tke executor setting fortk sundry matters in controversy between them, arising under the will, and others dehors the will. A consent decree was taken adjusting them all, and in general terms instructing the executor to execute the will. Two years after, and when the decree had been partially performed, another legatee, having no interest in nor connection with the subject matter of the suit, caused herself to be made a party defendant with the execu- . tor, and then without having filed an answer, and in the absence of any pleadings, setting forth her claim, moved the Court for an order requiring the executor to pay her legacy. Held, inadmissible.</p>

<p>In Equity, in Dougherty Superior Court. Decision by Judge Allen, at June Term, 1862.</p> <p>Mary E. Carmichael, the plaintiff in error, filed her bill, stating that at the time of her marriage with her husband, Gilbert C. Carmichael, she was possessed in her own right of certain negro slaves, nine in number, mentioned in the bill, and that some time after the marriage, her husband, in pur-, suance of a verbal ante-nuptial contract, conveyed by deed to her, for her sole and separate use, the negroes and their increase. The deed was made on the 4th August, 1845, and recorded a few days after in Macon county, the then residence of her husband, he, at the time the bill was filed, being a resident of Savannah. The negroes, from the time of the execution of the deed, together with their increase, twenty-three in all, worth $15,000 00, have remained her property, and they have been so recognized and treated by her husband, he having managed them as her trustee and agent. These negroes constitute all the property of plaintiff, and are the only means of support for herself and children. Her husband is insolvent and without the means of supporting his family.</p> <p>The bill further states, that her husband being indebted to Jeremiah Walters, the defendant, in the sum of $8,137 00, gave to Walters, on the 19th January, '1861, Jus note or draft for said sum, payable at some bank in Savannah, on the 23d March, 1862, and that she was directed by her husband on the same day of the date of the note or draft, to sign a paper which she has since learned was a mortgage on the negroes to secure the payment of the note or draft, and granting to Walters the right to take possession of the negroes at the maturity of the note, and- sell them for its payment. The instrument was drawn by Walters’ direction, her husband consenting thereto. When the paper was brought to her residence her husband was quite sick in bed, and on going to his .room at his request, she found one Joseph Felt, a Justice of the Peace, present with her husband, the latter having the paper in his hands. A few minutes after she entered the room her husband said, “here, Mary, sign this paper,” and she at once complied, her husband also signing. She was wholly ignorant of the contents of the paper, which were not 'explained to her, nor was it read in her presence. She is unable to give a copy of this instrument, as it is in defendant’s possession, and has never been recorded, but prays that a copy be annexed to the answer of defendant.</p> <p>The bill further alleges, that by the terms of the deed from her husband to herself, the property is not subject to the debts and contracts of her husband, the same being to her sole and separate use, thereby creating a restraint upon the power of alienation of complainant as to the debts of her husband.</p> <p>The deed is appended as an exhibit to the bill, and the material part is as follows: Gilbert C. Carmichael conveys to complainant, his wife, “ for and in consideration of the natural love and affection he has and bears to her, as well as in consideration of the promises and obligations before marriage, for her sole and separate use,” the negroes mentioned in the bill, together with their increase, “ all of which belonged to his said wife before marriage. To have and to hold said property to and for her sole and separate and undivided use, benefit and behoof, forever.”</p> <p>Complainant further charges, that Walters is about to foreclose the mortgage for the purpose of levying upon the negroes, or that he will endeavor to take possession of the negroes under the pretended agreement contained in the mortgage, for the purpose of selling them to pay the note of her husband, and thus unlawfully deprive complainant of her property, and herself and children of their support.</p> <p>The bill states further, that complainant had well hoped that Walters would cease his love of filthy lucre, and not interfere with her rights in the premises, but so it is, he seeks to defraud complainant by pretending that said paper was .bona fide taken and given.</p> <p>The bill prays that Walters be enjoined from interfering with the possession of the negroes, or from levying any fi. fas. issued from the mortgage upon the negroes.</p> <p>In accordance with the prayer of the bill an injunction was issued restraining the defendant until the further order of the Court. >'</p> <p>The defendant replied to the bill by his answer in the nature of a cross-bill, and alleges that in the spring of 1860, some time before the making and execution of the note and mortgage alluded to in complainant’s bill, having full confidence in the business capacity and integrity of Gilbert C. Carmichael, the husband of complainant, then doing business as a commission merchant in the city of Savannah, in partnership with one McDuffie, under the firm of Carmichael & McDuffie, he sent to said Carmichael for sale about one hundred and ninety-six bales of cotton, and which was kept unsold in hope of an advancing market until the last of December, 1860, or the first of January, 1861, at which time, defendant wishing to obtain proceeds from the cotton to meet a debt due by him, he wrote to the firm to sell, as he wanted the money, and that on the 3d January the firm wrote defendant, informing him of án offer made for the cotton, but which had not come up to the price asked by them, and which they hoped yet to get. A short time after the receipt of this letter defendant went to Savannah in order to obtain the money, and was informed by Carmichael that the cotton was sold on the day the letter to defendant was written, and it was agreed that defendant should call the next day, when a settlement should be effected. When defendant went to Carmichael’s office, according to this agreement, he was told by Carmichael that the cotton had not all been delivered, and that a settlement could not then be> had. Defendant remained in Savannah several days waiting upon Carmichael, who, from day to day, deferred a settlement with respondent, assigning various excuses for the delay, at one time telling respondent, who had gone to his office, that liis clerk had been called unexpectedly, the night before, to Fort Pulaski, and had told him' that the key of the safe was left in a certain place, but that the clerk must be mistaken as he could not find it. During this time Carmichael was busy in a pretended search for the key, and not finding it, declared it impossible to make the settlement then as the papers were all locked up in the safe. At another time, he put off defendant by telling him that the wife of his partner was in a dying state and that he could not attend to business.</p> <p>These repeated delays excited the suspicion of respondent, which were strengthened by conversation with his friends, and fearing that Carmichael had applied the proceeds of the sales to his own use, and being desirous of obtaining as much of them as he could, defendant, without disclosing his suspicions to Carmichael, told him that he wished at that time only about $3,000 to meet his debt, and that if Carmichael would procure him that amount, a check could be sent to defendant for the balance whenever the papers could be obtained. This Carmichael promised to do,' and after some delay actually did do. It soon, however, occurred to defendant that this $3,000 might be the proceeds of the sale of seventy-two other bales of cotton, which he had also sent to Carmichael, and he then concluded not to leave for home as he had intended to do, and as he had informed Carmichael he would do. Carmichael having become apprised that defendant had not left, and doubtless surmising the suspicions of defendant, wrote to him, in pencil, “ I went to the depot to see you and learned that you had declined going up the road to-day. As I want to see you, and I am crippled, will you please call at my house this evening ? I want to see you on business before you leave, without fail.”</p> <p>Defendant, in compliance with this invitation, went to Carmichaels house, and was then, for the first time, informed by him that he had sold the cotton to Caldwell & Company, but .that they refused payment, having a claim against Carmichael for reclamation, but that he could arrange with a friend to get the money that week and would then pay the whole amount to defendant. The fact is, the cotton was not sold to Caldwell & Company but to T. W. Neely & Company, as appears by a copy bill of sales appended to defendant’s answer and bill, and defendant is informed by two members of the latter firm,-and so believes, that they paid to Carmichael the amount of said sales, arid that no part of it was retained on account of reclamation or any other liability. Moreover the cotton was sold on the 3d November, 1860, and not on the 3d January, 1861, as stated by Carmichael, and part of it had been sold some three or four months when the letter of Carmichael & McDuffie, dated 3d January, 1861, was written.</p> <p>Carmichael, having failed to procure the money, promised defendant to execute to him a mortgage on some four or five negroes of his own, saying, at the same time, that complainant would execute, with him, a mortgage to defendant on eighteen or twenty negroes, her own property. At a subsequent interview at Carmichael’s house, complainant being present, Carmichael repeated this statement, to which complainant assented, and said, “Yes, I will sign anything Mr. Carmichael wishes me to sign.” In the first of these two interviews when Carmichael proposed to have the mortgages executed to defendant, it was understood that respondent was to take possession of the negroes, and carry them with him to Dougherty county, the place of his residence, but that in the second, when complainant was present and gave her consent to executing the mortgage nothing was said about defendant’s right to carry off the negroes, but defendant denies that complainant did not know that such was the contract, and charges that she did have knowledge of it, and that in a subsequent interview with her, her husband not being present, she begged defendant not to carry off the negroes with him, when defendant replied that possession was half title, and that there could be no settlement unless he was permitted to take them', to which complainant answered, “ well, if you will, take them with you ; take good care of them and treat them well,” which defendant promised to do.</p> <p>Defendant had never told complainant that he intended to carry off the negroes, and as such was the contract, and as Carmichael had told defendant that he had informed his wife of the details of the mortgage and contract, complainant must have learned from him his intention in regard to the negroes. In pursuance of the agreement between defendant and Carmichael, the latter, at his own house, in presence of complainant, gave defendant the names and ages of the negroes, distinguishing which were his own and which the property of complainant, and directed his counsel to draw up the note and mortgage for the amount due by Carmichael & McDuffie on account of the cotton sales, and including the amount of the expense^ incurred by defendant while waiting for Carmichael to effect the settlement with him, which Carmichael readily admitted that he ought to pay. While the amount due defendant was being ascertained, Carmichael admitted that the $3,000, which he had paid to defendant were the proceeds of the sale of the seventy-two bales of cotton sent him by defendant as before described, and that they had been sold since defendant’s arrival in Savannah. In consequence of this admission, defendant, by the advice of his counsel, refunded the $3,000, and received back his cotton, which was afterwards sold for $3,700 or $3,800.</p> <p>Defendant left the matter of the execution and recording the mortgage with his attorneys, both of which were properly attended to, and he is at a loss to imagine why complainant could not obtain a copy of the mortgage. Defendant was not present at the execution of the mortgage, and cannot say whether it was read over to complainant or not. Joseph Felt, the Justice of the Peace who witnessed its execution is since dead, and defendant fears that his death was the inducement to complainant to file her bill.</p> <p>Defendant denies that complainant did not know the contents of the mortgage, and on the contrary charges that she knew all that was contained in it and consented to sign such an one. When complainant expressed her willingness to sign anything her husband would ask her to sign, she doubtles was perfectly aware of the real condition of affairs, and of her husband’s fearful liability, and prompted by her affection as a wife was willing to surrender her entire estate to save him fi’om the consequences of his perfidy.</p> <p>Defendant repels the insinuation that he was controlled by the love of filthy lucre in securing what had been filched from him by base perfidy, and avers, that if Carmichael had at first told him that he had made use of defendant’s money, and had promised to restore it, he would not have thought of a. criminal prosecution against Carmichael, but that after the repeated duplicity of Carmichael he had resolved to proceed criminally against him, and was deterred from so doing by the advice of his counsel.</p> <p>The reason why defendant did not carry off the negroes with him is, that they were subject to a prior mortgage held by Hiram Roberts, who would not permit the negroes to be removed, and it was then agreed that the negroes should be delivered to G. W. Wylie, to be held by him for Roberts and defendant, and defendant left Savannah thinking this would be done. A short time after, however, he received a letter from Roberts, stating that Carmichael had not delivered the negroes to Wylie.</p> <p>Defendant further charges, that complainant had, in law, the right to execute the mortgage, and that she did so in good faith with full knowledge of all the facts herein stated, and that she so acted to save her husband from the Penitentiary. It is further charged, that Carmichael is involved in other breaches of trust similar to the case of defendant, and that he is insolvent, and that defendant fears he will remove both complainant and the negroes beyond the limits of the State of Georgia.</p> <p>The prayer of the cross-bill is, that the defendant’s mortgage may be foreclosed, and the negroes mentioned therein be sold and the proceeds applied according to its terms, and that complainant be compelled to give bond with security for the forthcoming of the negroes to answer the judgment upon the mortgage, or in default thereof that the negroes be delivered to a Eeceiver to take charge of and hire them out, and to keep them subject to the order of the Court in. the .premises, and that, in the meantime, the complainant and her agents be enjoined from removing the negroes from without the limits of the State.</p> <p>This answer and bill was verified on the 9th May, 1861.</p> <p>The writings referred to in the bill are appended as exhibits, the mortgage being one in the usual form from Carmichael and complainant to defendant and containing an agreement of the mortgagors, that if there should be default in the payment of the note at its maturity,, defendant might sell the negroes, according to the act in such cases provided, returning the overplus, if any, to the mortgagees.</p> <p>There is an entry of service on defendant’s answer and cross-bill on complainant, made by the Sheriff of Chatham county with this addition, “ I have been unable to find the negroes in her possession, and she denies that they are, and she refuses to deliver the negroes mentioned within, or to give bond as required.”</p> <p>The cross-bill was sanctioned, and Judge Allen, at Chambers, on the 13th May, passed an order requiring complainant to give bond not to remove the negroes as her separate property from the State, and to have them forthcoming to answer the final decree of the Court, and, on failure of such bond being given, the negroes to be delivered to Hiram Eoberts, as Eeceiver, to be managed and kept by him subject to the order of the Court.</p> <p>At the June term, 1861, of Dougherty Superior Court, the foregoing order was set aside and reversed, on motion of complainant, on the grounds that no bond had been given by respondent, and that the facts stated in his answer cross-bill did not authorize the same, with leave to defendant to give bond and amend his answer.</p> <p>. Defendant in consequence gave the bond, and amended his answer, by charging that complainant had secreted the negroes, and refused to deliver them up, and that he fears the complainant will remove the negroes, if she has not already done so, beyond the limits of the State. That the Sheriff of Chatham county had made search for them, and could not find them in that county, where they recently were, and that defendant believes they have been carried off to defeat his recovery under his mortgage. The amendment prays an injunction restraining complainant or her agents from carrying the negroes out of the State, and the appointment of a Eeceiver, under the direction of the Court, so they may be forthcoming to answer the decree upon the mortgage.</p> <p>The above amendment having been made and bond given, the Chancellor at Chambers passed an order that the injunction prayed for issue, and that complainant should give bond in the sum of ten thousand dollars, to have the negroes forthcoming to answer the decree, and on default thereof, that the Sheriff' of Chatham, or any other county where the negroes may be found, shall seize and deliver them to Hiram Eoberts, who is appointed Eeceiver, to take charge of the negroes,, to hire them out and to account to the Court for the hire.</p> <p>At June term, 1862, complainant filed her demurrer, plea and answer to the amended*,cross-bill of respondent. The grounds of demurrer are: 1. That.the relief sought by defendant is not authorized by the statute, but makes of said answer, if the same is a bill at -all, an original and not a cross-bill.</p> <p>' 2. For the want of proper parties, Hiram Eoberts, a prior incumbrancer, and Gilbert C. Carmichael, the trustee of complainant, and a joint mortgagor with her, should have been made parties.</p> <p>3. Because said cross-bill prays no discovery and no process of subpoena, and there is none, or any process of injunction thereto attached, and which has ever been served on complainant.</p> <p>4. For want of equity, and because the bond required of complainant by the sanction of, and prayed for in, the bill is onerous and illegal.</p> <p>5. Because by the admissions of defendant in his answer, the mortgage was obtained by fraud, duress and undue influence, wherefore she prays that the injunction may be dissolved, and the order appointing a Eeceiver be rescinded. •</p> <p>The plea was to the jurisdiction, Complainant being at the filing of the cross-bill, a resident of Chatham, and now living in Macon county.</p> <p>Complainant for answer says, that before the mortgage was executed, defendant was informed of her claim to the negroes therein mentioned as hers, and that he might have known fully as to the nature of her claim, as the deed securing them to her was recorded, and the original in her possession, and would have been shown to defendant had he asked for it; and the acceptance by defendant of the mortgage was an acknowledgement of her right to the negroes. Admits she knew that the indebtedness of her husband to defendant was on account of the sale by him of defendant’s cotton, but knows not of the devices used to deceive defendant. Admits that after learning her husband’s embarrassments, and after defendant had threatened him with a criminal prosecution, and said to her; “ that he had Carmichael in his power, and would send him to the penitentiary if she did not sign the mortgage Carmichael had promised she would give him,” she consented to sign, saying as alleged, “ I will sign anything Mr. Carmichael wishes me to sign.” Denies any knowledge of a contract by which defendant was to get possession of the negroes to take them with him, but says she was informed that her husband and trustee had agreed to hire them to defendant at the first interview,' and that she was unwilling to assent to this, entered into as it was without her knowledge„and endeavored, when she was informed of it, to induce defendant to abandon it, because he had the reputation of being a hard master. Defendant grew angry at her resistance to this unauthorized contract, and began to threaten her husband with prosecution, and in her fright and alarm, no doubt said, “ well, if you will, take them with you, but use them well.” Complainant submits that if this was a part of the original contract it should be embodied in the mortgage, and she finds no stipulation in regard to the hire of the negroes to defendant therein contained. It was after a demand made by defendant for the possession of the negroes that she was informed by him that it was part of the agreement between her husband and defendant, that he was to have possession of them. It is true that her husband gave defendant the names of the negroes as charged, but this before she had any information of the agreement as to the possession of the negroes; knows nothing of the sale of defendant’s cotton, by which the $3,000 was paid to him. The mortgage may have been placed on record by defendant’s counsel, but she applied through her agent for a copy, and was informed by him that no such record could be found in his office by the Clerk of the Superior Court of Chatham county. Avers that she did not read over the mortgage at the time of its execution, and that she was induced to file her bill by the fraud and imposition used towards her by defendant, and not by the death of the subscribing witness Felt.</p> <p>Admits her willingness to sign arose from the responsibility incurred by her husband, as told her by defendant, but insists that defendant used the power he induced her to believe he had over her husband to extort her signature. ‘Defendant having thus obtained her signature, promised to abandon his threatened prosecution, which promise he subsequently violated to obtain further advantage over complainant and to get possession of her negroes, and she denies that he abandoned the prosecution by the advice of his counsel. Admits that Roberts had a prior incumbrance on the negroes, but knows nothing of any agreement that they should be delivered to Wylie. Knows nothing of, and does not believe, that her husband is involved in any similar difficulties, and admits his insolvency, but denies that defendant was apprehensive that her husband would take her and the negroes out of the State, because he was then confined in the jail of Chatham county for debt, and there remained until February last. Denies secreting the negroes, or causing them to be secreted, nor did she refuse to deliver them up on any proper demand being made for them. If, after their interviéw, defendant had demanded them, she would not have delivered them, because he had no right to their possession. Denies that she has removed, or contemplates removing them out of the State. A portion oí them were in Chatham county and another in Bibb, when the sheriff made his return. Some were removed because they could be more profitably employed, and'would be less liable to escape to or be captured by the public enemies. She has no recollection of ever saying that the negroes were not in her possession.</p> <p>After argument upon the demurrer it was overruled, and the injunction and order of the Court retained.</p> <p>The bill of exceptions states that upon the coming in of the answer, complainant moved the Court to dissolve the injunction, and rescind the order for the appointment of a Receiver, which motion the Court refused, and this refusal is assigned as error.</p>

Murder, and plea of former acquittal, in Dougherty Superior Court. Decided by Judge Allen, at June Term, 1862. An indictment was found at December Term, 1861, of Dougherty Superior Court against John W. Lester, for the murder of Albert G. Owen, and he was put upon his trial at the same term.

Mandamus, in Muscogee Superior Court. Decision by Judge Worrill.

<p>Murder and bail, in Bibb Superior Court. Decided by Judge Lochrane, at May Term, 1862.</p> <p>Counsel for Britton S. Ware, who was in confinement under a charge of murder, moved the Court to admit him to bail. The Court- ordered that he should be admitted to bail upon his giving bond, and after paying all costs. The costs included those incurred on the committing trial, on two hearings on habeas corpus, jail fees, recommitments, guards, etc. To this order plaintiff in error excepts.</p> <p>1st. That by the statutes of Georgia no costs can be collected by the Superior Court, or its officer, on any criminal proceeding until after conviction.</p> <p>2d. Because there is no legal authority to collect the costs in this case.</p> <p>Judge Lochrane makes the following- addition to the bill of exceptions:</p> <p>“It being agreed that Ware resides in Twiggs, not Bibb, county, and that the sheriff failed to seize his property or take security for the costs, the cost I ordered paid rather in conformity with the practice of the Courts than by authority of any statute; by reference to the Act of 1857, the costs of the magistrates in the county of Bibb are properly collectable, and this much of the bill of costs I thought it my duty to allow. The costs accruing on habeas corpus were incurred by the act of defendant, he was the movant. The officers of Court performed labor by reason of his request and on his petition. If they are not properly collected on his discharge on giving bail, I doubt their being taxed in the bill of costs on the final hearing. The jail fees I allowed, believing it right that the terms of the bail should be such as would save the county cost, and the officers of Court a doubtful collection of fees.”</p>

In Equity, in Carroll Superior Court. Decision by Judge Hammond, at Chambers, on 13th June, 1862.

Mandamus, in Spalding Superior Court. Decision by Judge Floyd, at May Term, 1862, Plaintiff in error being a school teacher in Spalding county, in 1861, had, amongst his scholars, a number of children whose parents were in indigent circumstances and unable to pay for their tuition. Plaintiff taught these children with the same care and ability as he bestowed on other scholars who were engaged in the like studies.

Habeas corpus, from Baldwin county, decided by Judge Iverson L. Harris, at Chambers. * A sufficient statement of this case will be found in the able opinion of the Court as pronounced by Mr. Justice Jenkins.

Bill in equity, in Wilkinson Superior Court, tried before Judge Iverson L. Harris; at April Term, 1862. A statement of the facts of this case will be found in the opinion of the Court, as pronounced by Mr. Justice Lyon.

<p>This was a bill in equity, tried in Hancock Superior Court, before Judge Thomas W. Thomas, at the April Term, 1861.</p> <p>The facts of this case are sufficiently stated in the opinion of the Court, as pronounced by Judge Lumpkin.</p>

At the January Term of the Supreme Court of Georgia, held at Savannah, the following report and resolutions were introduced by the Committee appointed by the Court, on the motion of the Honorable William Law, in behalf of the Bar: The Bar of Georgia have received with sincere emotions of grief and regret, the sad intelligence of the death of General Thomas R. R. Cobb, for many years one of its most eminent and distinguished members.

<p>1. Lapse of time, short of the period fixed by the Statute of Limitations, may be considered by the jury, in connection with other circum* stances, in determiking whether payment might be presumed.</p> <p>2. A period of nineteen years and nine months had elapsed from the accrual of the cause of action to the bringing of the suit, during that time the defendant and debtor was solvent, and the plaintiff and holder of the obligation insolvent; besides this, the defendant, as security for the plaintiff, had been compelled to pay off a debt, and the parties had had a settlement of this matter, and the plaintiff had given his and another’s note to a third person for the balance so paid out for him, which note had been sued to judgment by the defendant: Held, that these were proper circumstances to be submitted to the jury, and unexplained, were sufficient to raise the presumption of payment.</p>

<p>Murder, in Chatham Superior Court. Tried before Judge Fleming, at May Term,^ 1862.</p> <p>James P. Burroughs was put upon his trial for the murder of Thomas Carmody, and the jury returned a verdict of voluntary manslaughter. Whereupon his counsel moved the Judge for a new trial on the following grounds:</p> <p>1st. That the verdict rendered in said case is contrary to law.</p> <p>2d. That the verdict rendered in said case is contrary to the evidence.</p> <p>3d. That the verdict rendered in said case is contrary to the weight of evidence, and to the law applicable to the case upon such evidence.</p> <p>4th. Because the verdict was rendered by only eleven jurors, one of the twelve empanelled, John Pournel, being incompetent and disqualified by the laws of the State, he being over sixty years of age, which fact was unknown to the prisoner and his counsel until after the trial and rendition of the verdict.</p> <p>State of Georgia, Chatham County.</p> <p>Personally appeared William Law and Thomas E. Loyd, counsel for James P. Burroughs, in the case of The State vs. James P. Burroughs, tried upon an indictment at the present' May Term, 1862, of Chatham Superior Court, for the murdering of Thomas Carmody, who being duly sworn, deposeth and says, that they were ignorant of the fact that John Pournel, one of the jury in the above entitled case, was over sixty years of age, until after the trial and rendition of the verdict. Wm. Law,</p> <p>Thos. E. Lloyd.</p> <p>Sworn to before me, this 31st day of May, 1862.</p> <p>Wm. H. Bulloch, Clerk, S. C. C. C.</p> <p>.Personally appeared James P. Burroughs, the defendant in the- case mentioned in the foregoing affidavit, who being duly sworn, saith that he was ignorant of the fact that the said juror, John Pournel, was over sixty years of age, until after the trial and rendition of the verdict in the above case.</p> <p>J. P. Burroughs.</p> <p>Sworn to before me, this 31st day of May, 1862.</p> <p>William H. Bulloch, Clerk S. C. C. C.</p> <p>State of Georgia, Chatham County.</p> <p>Personally appeared John Pournel, who being duly sworn, deposeth and saith, that he was empanelled as one of the jurors in the case of the State vs. James P. Burroughs, charged with the offence of murder, which case was tried at the present term of Chatham Superior Court — that he was one of the twelve jurors by whom the verdict was rendered, and this deponent further saith, that he is sixty-six years of age.</p> <p>John Pournell.</p> <p>Sworn to before me, this 30th day of May, 1862.</p> <p>Philip M. Russell, J. P.</p> <p>5th. Because of the discovery of new and important testimony since the trial, being the testimony of William LHewlet, as to the character for violence of the deceased, Thomas Carmody.</p> <p>The State vs. James P. Burroughs. Chatham Superior Gowrt. Charge Murder. Ver diet Voluntary Manslaughter.</p> <p>Personally appeared James P. Burroughs, who being duly sworn, deposeth, that for,nearly fifteen months after his examination before the Justice upon the above charge, he was confined in the jail of Chatham county, and that since his release therefrom he has made every effort in his power.to discover witnesses who would prove the violent character of the deceased, Thomas C. Carmody, when he was intoxicated, and that he did not hear that William L. Hewlett, whose affidavit is herewith submitted, could give the testimony in his said affidavit disclosed, until after his trial was had, and a verdict rendered. That deponent heard during the progress of the trial that said Hewlett could give some testimony as to the character of Carmody, and issued a subpoena for him, but was unable to obtain his testimony in time.</p> <p>J. P. Burroughs.</p> <p>Sworn to before me, this 31st day of May, 1862.</p> <p>Wm. H. Bulloch, Clerk S.C.'C. C.</p> <p>State op Georgia, Chatham County.</p> <p>Personally appeared William L. Hewlett, who being duly sworn, deposeth and saith, that he knew Thomas Carmody in his lifetime well. That he once drew a pistol upon this deponent without any reason, that the pistol was taken away from him, and he taken away. That Carmody met deponent next morning, and apologized for his conduct the night-before, and stated to deponent that when he was intoxicated he would kill anybody, if it was his father. His reputation was that of a dangerous man when drunk.</p> <p>William L. fxj Hewlett. ■</p> <p>Sworn to before me, this 30th day of May, 1862.</p> <p>Thos. E. Lloyd, Not. Pub., C. C.</p> <p>The second and third grounds in the motion having been abandoned, it is not necessary to set out the evidence here. The presiding Judge refused the motion on all the grounds taken, and counsel for plaintiff in error excepted, and assigns the same as error.</p> <p>There was evidence offered to the jury to show the dangerous and violent character of deceased when intoxicated.</p>

In Equity, in Burke Superior Court. Decision by Judge Holt, at November Term, 1861. This bill was brought by Margaret Wiggins, widow of John S. Wiggins, against Thomas H. Blount, administrator cum testamento annexo of the estate of William Saxon, for an account, and for her distributive share in said estate.

Habeas Corpus. Decision by Judge Lochkane, at Cham- ' bers, 19th December, 1862. Joseph Farrel applied to the Hon. Osborne A. Lochrane, one of the Judges of the Superior Courts of this State, for the writ of habeas corpus to be discharged from the custody of Col. John B. Weems, enrolling officer for the district of Georgia, by whom he was unlawfully detained.

Assumpsit, in Terrell Superior Court. Tried before Judge John T. OLArvK, at May Term, 1863.

<p>1. Whether a bill in equity, by cestui que trust, feme covert, against trustee and a stranger, alleging that trustee has loaned trust funds to stranger, who has not paid, but alleging neither refusal of trustee to sue, nor stranger to pay; alleging, further, that trustee is insolvent, but not showing when insolvency commenced, and alleging no waste or misconduct; and praying for removal of trustee and appointment of another, and decree that stranger pay to new trustee, is demurrable for want of equity. Query ?</p> <p>2. Where the trustee of a feme covert, thereto authorized, loans money to a stranger, (the latter knowing that iftis a trust fund,) and takes a note payable to himself as trustee, in the absence of all fraud and conspiracy, the statute of limitations is a good defence to the stranger, as well in equity against the cestui que trust, as at law against the trustee.</p>

Indictment for murder, in Dougherty Superior Court. Tried before Judge Allen, December Term, 1862. Henry, a slave, the plaintiff in error, was put upon his trial for the murder of a fellow-slave, Gilbert, and a verdict of “guilty” found by the jury. The errors alleged are stated in the motion for a new trial made by his counsel, as follows: 1.

Habeas Corpus. Decision by Judge Lochrane, November 9th, 1862. Wiley A. Moncrief made application to Judge Lochrane for the writ of habeas corpus, alleging that he was illegally kept in custody by William L. Jones, captain of a company in the service of the Confederate States, stationed at Macon.

Decided by Judge Worrill, at May Term, 1862. Lloyd G. Bowers, as guardian of Harvey W. Nanee, a lunatic, by petition properly verified, obtained a rule nisi, in Muscogee Superior Court, against Richard G. Jefferson, calling on him to show cause why the following note should not be established in lieu of the original, which had been lost: $1,420 00. Columbus, Ga., Feb’y 1st, 1854.

<p>Bill in equity, in Twiggs Superior Court, and decision by Judge O. A. Lochrane, at Chambers, on the 16th June, 1862.</p> <p>James Vinson died testate, in the county of Twiggs, in the year 1848, and his will was duly proved and recorded, and letters testamentary issued to the executors nominated in the will, to-wit: Benjamin F. Vinson and Joseph Blackshear. By the will the testator gave to his wife fifty acres of land and certain household furniture, negro man and woman, a horse, and some hogs and cattle, during her lifetime or widowhood, and at her death to be divided equally, as the rest of his property, except the fifty acres of land, which he directed should be divided, at the death of his wife, between Joseph S. Vinson and the heirs-in-law of John P. Vinson. 1 “ Item 4. I further will and devise the balance of my land be equally divided-between Joseph S. Vinson and the heirs-in-law of John P. Vinson.” '</p> <p>“ Item 5. It is' my will and desire that the residue of my property, consisting of negroes, horses, hogs and cattle, and everything I may possess at the time of my death, not heretofore willed off, be equally divided between Mary Black-shear, Joseph S. Vinson, Benjamin E. Vinson, and the heirs-in-law of John P. Vinson. Provided, if Joseph S. Vinson should depart this life without coming in possession of his distributive shai’e, then it is my will and desire that his distributive share be equally divided between Mary Black-shear, Benjamin F. Vinson, and the heirs-in-law of John P. Vinson, except the land, then it is my will and desire that the land go to the heirs-in-law of John P. Vinson.”</p> <p>“ Item 6. It is also my will and desire that if Joseph S. Vinson should depart this life without being possessed of his portion, as above mentioned, that his wife, Jane Vinson, be allowed the sum of five dollars out of my estate, and be forever barred from anything more.”</p> <p>“ Item 7. I appoint John P. Vinson trustee for the property herein bequeathed to the heirs of John P. Vinson.” Upon a division of the estate of testator, John P. Vinson received six negroes, and some time thereafter sold two of the negroes to one Jesse B. Carroll, of the county of Wilkinson. John P. Vinson was wholly insolvent.</p> <p>Levin J. H. Vinson,- a minor son of John P. Vinson, by his next friend, Joel J. Denson, filed his bill in equity against John P. Vinson and Jesse B. Carroll, in which the foregoing facts are set forth and charged, and in which it is also alleged that complainant was the only heir-at-law of John P. Vinson at the time of testator’s death, the said John P. Vinson having no wife or other child living at that time.</p> <p>The bill prays, amongst other things, that John P. Vinson and Jesse B. Carroll may be decreed to account to complainant for the value and hire of the two negroes sold to Carroll, as hereinbefore stated.</p> <p>The defendants set up amongst other things a plea to the bill, alleging:</p> <p>1st, That complainant had, and has a living sister, named Laura Vinson, who is equally entitled, under said will, with the complainant, and should be a party to any litigation or decree touching the property which forms the subject matter of controversy.</p> <p>2d. That the legatees, whoever they may be, are not entitled, under said will, to the possession of said property until and after the death of their father, John P. Yinson, who is still in life.</p> <p>At the hearing Judge Lochrane overruled this plea, and the case is brought before this Court upon an assignment of error on that decision.</p>

Andrew J. Sturdevant brought his action of assumpsit against John Bird, returnable to the April Term, 1855, of DeKalb Superior Court, upon a promissory note given by defendant, dated 2d August, 1853, whereby he promised on or before the 25th day of December, 1854, to pay to William H. Craft, or bearer, the sum of $1,000 00, for value received. To this action defendant pleaded: 1st. The general issue. 2dly.

On the third day of February, 1852, the Legislature of the State of Alabama granted a charter for the construction of a railroad “ from some convenient point on the Alabama & Tennessee Railroad, at or near the farm of James Hampton, thence the most practicable route, through the county of DeKalb, to the Georgia line, in a direction to intersect the Georgia & Tennessee Railroad at some convenient point in Lookout valley.” The railroad was denominated “ The Wills Valley…

Possessory warrant, in Whitfield Superior Court, tried before Judge Walker, the 21st March, 1863. Mr. Justice Lyon gives a full statement of the facts of this case, in delivering the opinion of the Court.

<p>Award in Murray Superior Court, decision by Judge Walker, October Term, 1861.</p> <p>. The Repprter refers to the opinion oí the Court for a statement of the facts and questions in this case.</p>

<p>Ejectment, from Lumpkin Superior Court. Tried before Judge Rice, at the July Term, 1861.</p> <p>This was an action of ejectment, brought by John "Doe, on the several demises of William H. Sullivan, Milton Fuller, Samuel Heaton, Caswell Farmer, and John Farmer, against Richard Roe, casual ejector, and Joseph Brown, Martin L. Jones, and William E. Beard, tenants in possession, to recover lot of land No. 944 in the eleventh district of the first section, situate in said county of Lumpkin.</p> <p>The plaintiff proved the locus and possession of the defendants at the time the suit was brought, and then read in evidence the grant from the State of Georgia to William H. Sullivan, dated 8th June, 1836; a deed from Sullivan to Milton Fuller, dated 17th August, 1851; a deed from Fuller to Samuel Heaton, dated 5th April, 1853; a deed from Heaton to Caswell Farmer, dated 4th November, 1853; and a deed from said Farmer to John Farmer, dated 12th September, 1855, and rested his case.</p> <p>The defendants read in evidence a bond for titles, dated 25th March, 1836, by which Sullivan, the grantee, bound himself to execute to Francis W. King good and lawful titles to the land in dispute, whenever the grant should be presented. The purchase money was paid by King at the time the bond was executed.</p> <p>Defendants then offered in evidence two deeds made by Francis W. King to William M. Jones for the land in controversy; one dated the 15th January, 1853, executed in the State of Alabama, attested by two witnesses, one of whom purported to be a Justice of the Peace, and which was registered without further evidence of its execution; the other, dated 22d January, 1861, executed in Georgia, attested by two witnesses, one of whom was a Justice of the Peace, and which was also registered. The second deed referred to the first, and the difficulty in the way of its admission as evidence, and also ratified and confirmed the first deed. The second deed was admitted in evidence, but the first deed was objected to on the ground that there was no sufficient proof of its execution. The presiding Judge sustained the objection, and repelled the deed, and the defendants excepted.</p> <p>The defendants also introduced a deed from William M. Jones to Martin L. Jones for thirty acres of the land in dispute, and a deed from William M. Jones to William E. Beard for ten acres of the land, being the balance of the lot.</p> <p>In behalf of the defendants, it was also proved, that some time before the year 1842, one Carder entered upon the land and cleared a small portion of it — that in 1842 Carder, who did not claim the laud, agreed with King to hold possession, of the same for King, and as his tenant — that he did so hold possession until the year 1848 or 1849, when he sold his possession and improvements to William M. Jones, who immediately entered upon the land as King’s agent and tenant, and held it until he purchased the same from King — that Jones continued to occupy and claim the land as his own until he sold it to Martin L. Jones and Beard, and that Martin L. Jones and Beard, by themselves and by their ctenant Brown, occupied and claimed the land up to the time of the trial of the case.</p> <p>After the argument of the case had closed, counsel for defendants verbally requested the presiding Judge to charge the jury, “that if they believed from the evidence that Francis W. King, by himself or his tenants, took possession of the land in 1842, with claim of title or right, and held the same adversely, openly, continuously and notoriously, for the term of seven years prior to the year 1852, then King had a perfect statutory title, and if it appeared by evidence that defendants derived their title and possession from King, then the plaintiff cannot recover.</p> <p>“ That the bond from Sullivan to King, with the purchase money paid, constitutes a color of title, which, if connected with a possession of seven years, makes a perfect legal title in King; and if a legal title be shown in King alone, then the plaintiff cannot recover, because he must recover upon the strength of his own title, and not upon the weakness of his adversary’s.”</p> <p>This charge the Court declined to give; but on the subjects embraced in the requests, charged the jury as follows, to-wit: “ If Francis W. King, by himself or by any person as his tenant, took possession of the land in dispute, claiming the same under the bond for titles from Sullivan to him, (the purchase-money being paid,) his possession was an adverse possession under color of title, and the statute of limitations began to run in his favor from the time he took such possession. If the defendants have shown that they, and those under whom they claim, have had seven years’ adverse, uninterrupted, and continuous possession of the land in dispute, under color of title, previous to the commencement of this action, then the plaintiff cannot recover. Defendants in ejectment have the right to tack on a previous adverse possession so as to make up the period of seven years before action brought, provided they connect themselves with the title of the previous possessor. If Francis "W. King had possession of the land in dispute under the bond for titles from Sullivan, whether he (King) had that possession in his own proper person or by his tenant, then before the defendants can tack that possession to any other possession on which they may roly to make out the statutory period of seven years, they must connect themselves with the title of King, by showing that they claim under King. In other words, the defendants must connect themselves with King’s title, as well as show that the whole possession on which they rely was continuous and uninterrupted for at least seven years. If the defendants have failed to connect themselves in some way with King’s title, then they cannot rely in aid of their defence on any possession which King (by himself or tenant) may have had of the land in dispute.”</p> <p>The jury returned a verdict in favor of the plaintiff for the premises in dispute, and a reversal of the judgment is asked on the ground of alleged error, in the ruling of the presiding Judge, repelling the deed as before stated, and in the charge and refusal to charge hereinbefore set forth; and also on the ground that the verdict was contrary to law and evidence.</p>

Assumpsit, in Coweta Superior Court. Tried before Judge Eeatherston, at the March Term, 1863.

Action for breach of warranty, in Fulton Superior Court. Tried before Judge Bull, at the April Term, 1863.

Habeas Corpus, from Wilkes Superior Court. Decided by Judge Thomas, at the March Term, 1863, adjourned to May, 1863. The record does not fully present the facts of this case to the Supreme Court. It appears that the defendant, Thomas N. Hopkins, was enrolled as a conscript by William J. Callaway, an enrolling officer of the Confederate States, acting in the county of Wilkes. Hopkins was then sent to the Camp of Instruction at Decatur, Georgia.

<p>When this case was called in its order for a hearing, counsel for the defendant moved to dismiss the writ of error, on the ground that the bill of exceptions itself furnished evidence, that it did not contain all the evidence necessary to a clear understanding of the errors complained of.</p> <p>The motion was predicated upon the following statement of facts, viz :</p> <p>The decision excepted to was made upon an application for an injunction. The evidence before the Judge consisted of the bill, and the answer, together with various affidavits produced both by complainant and defendant, and also some letters offered by complainant. These affidavits are alluded to in the bill of exceptions, and the Judge in his certificate directs the Clei’k to certify and send up a transcript of the record, “ including the affidavits,” without identifying them in any manner whatever. The Clerk sent up with the transcript of the record copies of several affidavits, but there was no competent evidence identifying them as the affidavits which were before the Judge at the time he decided the application for an injunction.</p> <p>In Equity from Fulton Superior Court. Decision made by Judge Bull, at Chambers, on the 5th of May, 1863.</p> <p>This was an application for injunction, based upon the facts and circumstances following, viz :</p> <p>H. Marshall & Co. were engaged in the manufacture, in the city of Atlanta, Georgia, of swords and sabres, for the Governme nt of the Confederate States. In this work the proprietors needed a considerable quantity of brass castings, which it was somewhat difficult to procure. William W. J ohnson owned and possessed a quantity of a peculiar kind of clay suitable for making the pots and crucibles necessary to be used in carrying on the operations of a brass foundry, and was also skilled in the practical business of such a foundry. On the first day of June, 1862, the parties entered into a written contract, of which the following is a copy, that is to say:</p> <p>“ Memorandum of agreement made this the first day of June, 1862, between H. Marshall & Co., of Atlanta, and State of Georgia, of the one part, and William W. Johnson, of the same place, of the other part. Whereas, the said W. W. J ohnson agrees to take the superintendence of the brass foundry, (known and recognized under the style of Marshall and Johnson) on the following terms: The said JEL Marshall & Co. to provide the buildings for carrying on the said foundry, (with suitable furnaces and flasks,) free of rent. The said W. W. Johnson to provide free of costs all crucibles and pots tor the melting of the brass, and to give all necessary attention to the management of said foundry. All fuel, stock, and everything connected with the working expenses of the foundry, wages, etc., to be provided and paid at the joint expense of both the said parties. The nett amount of profits of said foundry, after deducting all expenses, shall, once in six months, be divided between said parties in equal shares ; and all losses shall be borne in like manner. All work required by said H. Marshall & Co. to take precedence of all other work. All business of every sort and kind connected with, said foundry to be properly reported to the office of H. Marshall & Co. This article of agreement to continue in full force for two years, unless dissolved by mutual consent. “ H. Marshall & Co. [seal.]</p> <p>“ W. W. Johnson. [seal].”</p> <p>Under this contract, Marshall & Co. furnished the necessary buildings with a furnace and flasks, and Johnson provided crucibles and pots, and a foundry was put in operation, the business of which yielded for a time a nett income of $2,000 per month. Johnson seemed then to become dissatisfied with the partnership, and began to neglect its affairs, concealed the clay out of which the pots and crucibles were made, and conceived the project of establishing another and a rival foundry in the city of Atlanta, on his own account and for his individual benefit. He alleged that the concern was too small to employ all his time, attention and capital. Marshall & Co. proposed to increase the number of furnaces, and enlarge the business of the partnership, the buildings being ample for that purpose ; but Johnson dissented, and proceeded to rent a building, and to take other steps to put his own foundry in operation. Marshall & Co. then exhibited their bill in equity against Johnson, in which they allege the facts before stated, and pray an injunction restraining him from erecting and putting in operation the foundry for- his individual benefit.</p> <p>The presiding Judge granted a rule nisi calling on Johnson to show cause why the injunction should not issue as prayed for in the bill.</p> <p>The defendant filed his answer to the bill, in which the material allegations of *the bill are admitted, and an effort made to excuse and justify his conduct.</p> <p>Upon hearing the rule, the Judge discharged it, and refused the injunction ; and that decision is complained of as error.</p>

In Equity, from Fulton Superior Court. Decision made by Judge Bull, at Chambers, May 1st, 1863.

Bill in Equity, in Wilkinson Superior Court, tried before Judge Iyerson L. Harris, at April Term, 1868. The facts of this case are so fully stated by Mr. Justice Lyon, in delivering the opinion of the Court, that a statement from the Reporter is wholly unnecessary.

Motion, in Dougherty Superior Court. Decided by Judge Richard H. Clark, at the June Term, 1863. This was a motion to enter up judgment against Messrs. Hines & Hobbs, attorneys-at-law, under the following circumstances, to wit: The defendants in error, as attorneys-at-law, instituted various suits in the Superior Court of Dougherty county, in favor of plaintiffs who resided out oí said county.

Demurrer to a bill in equity, decided by Judge O. A. Bull, at November Term, 1862, of Troup Superior Court. The facts of this case are fully set forth in the opinion of the Court.

In Equity, from Quitman Superior Court. Decision on demurrer, by Judge John T. Clark, at the May Term, 1863.

Decided by Judge Richard H. Clark, at the June' Term, 1863. 'This was an action brought by Thomas H. Dawson against Gabriel Mayer, to recover damages for an alleged breach of warranty of the soundness of a horse.

<p>1. Statutory meaning of the term “ costs,” as applied to proceedings in Courts.</p> <p>2. Under the Act of April 17, 1863, entitled “ an Act to provide for the payment of expenses incurred under ‘ an Act to prevent the spread of small-pox in this State,’ assented to December 11th, 1862,” the fees of the Solicitor General, representing the State, in an issue thereby directed, are not taxable in the bill of costs, to be paid by the claimant.</p>

<p>1. The intention of the parties is mainly to be considered in determining whether an agreement is a penalty or liquidated damages.</p> <p>2. Courts will not relieve against liquidated or ascertained damages, unless it would be unconscienable and oppressive to enforce them.</p>

Ejectment and motion for new trial, in Dougherty Superior Court, decided by Judge Clark, at June Term, 1863. For the facts of this case, see the opinion of the Court.

Possessory warrant and certiorari. Decided by Judge Bull, at Chambers, on the 25th of June, 1863.

<p>1. In habeas corpus, where the applicant alleges imprisonment by the defendant, under a specified claim of authority and an exemption in law, . by reason of certain stated facts; and the respondent asserts the authority, and admitting the facts stated, denies the legal exemption set up, there arises a simple issue of law, which must be tried upon the case made; and no facts dehors the record can be legally considered.</p> <p>2. Under the enrolling acts of the Congress of the Confederate States, an individual, whose liability to military service is once fixed, cannot evade it by voluntarily engaging in a new employment, which, by the Exemption Act, would exempt one bona fide pursuing it.</p>

<p>1. A deed more than thirty years old, found in proper custody, accompanying other deeds, constituting a chain of title, and free from all suspicious appearances, is admissible in evidence, without proof of execution.</p> <p>2. If in such a case it be proven that one of the subscribing witnesses is dead, and that his name subscribed is in his proper handwriting, this evidence, whether sufficient proof of execution or not, certainly aids the presumption of law upon which ancient documents are admissible.</p> <p>3. The fourth section of the Act of December 25th, 1837, (T. R. R. Cobb’s Digest, 175,) is inapplicable where an unrecorded deed comes in competition with a junior deed to same property, executed by the heir at law of the first feoffer, duly recorded. This case distinguished from Ellis vs. Lessee of Smith, 10th Ga., 253, and Tucker vs. Harris, 13th Ga., 1.</p>

Murder, in Washington Superior Court. Tried before Judge Iverson L. Harris, at March Term, 1863. This was an indictment charging the defendant, Bichard Baines, with the murder of his wife, Emily S. Baines, on the 27th of June, 1861, by mixing strychnine with whisky, and administering it to her, whereof she died in a short time thereafter. The indictment was found true by the grand jury at September Term, 1861, and the defendant was put on trial at March Term, 1863.

Suit on a promissory note, in Dougherty Superior Court. Tried before Judge Allen, at December Term 1860, and a motion for a new trial, decided by Judge R. H. Clark, at the June Term, 1863. This was an action brought by James Olive against Alexander Herrington, to recover the amount of a promissory note dated the 5th of September, 1853, due the 1st of January, 1854, given by defendant and payable to plaintiff, for $1,037.

Rule against the Sheriff, in Terrell Superior Court. Decided by Judge John T. Clark, at the May Term, 1863. The question presented by the record in this case, depends upon the facts following, viz : A writ of fieri facias issued from a judgment rendered in Terrell Superior Court, in favor of Joseph D. Reynolds against Pierce L. Wilborn, maker, and Myron G. Weston, for one thousand dollars, principal, with interest and cost. This fi. fa. was placed in the handsofW.

<p>Habeas Corpus, decided by Judge Hook.</p> <p>The statement of the case appears in the opinion of the Court.</p>

Habeas Corpus. Tried before Judge Hutchins, of the Western Circuit. Judgment against the petitioner, on the first September, 1863. The facts necessary for an understanding of the decision may be found in the opinion of the Court.

<p>Bill in equity, in Chatham Superior Court. Tried before Judge Flemming, at-Term, 1863.</p> <p>The statement of the case will appear in the opinion of the Court.</p>

<p>Bill in Equity, in Putnam Superior Court, and decision by Judge Iverson L. Harris, at September Term, 1863.</p> <p>Abel Farrar executed a will in due form of law, and appointed his wife, Martha Farrar, executrix, and W. Oneal executor, thereof. After the testator’s death, the will was set up, and letters testamentary issued to the executrix and executor .named. The will was very short, and simply directed that the estate of the testator should be kept together during the widowhood of his wife, and the minority of his children, to-wit: Rebecqa, Mary, Lucy Ann, William and Abel. The will also provided that in case the widow should marry, and the children as they should become of age, or marry, they should each draw one-sixth of the estate as appraised, except twenty-five per cent, of each share, which was to remain undistributed until the youngest child attained majority, at which time the whole estate should be equally divided. The will further directed that the children should be raised and well educated from the proceeds of thé estate, which consisted of a tract of land badly worn and unproductive, stock and necessary outfit for a farm, and a number of negroes, of which ■ eight were working hands.</p> <p>Some time after the testator died, the widow married and drew three-fourths of one-sixth of the estate, which reduced the means of supporting and educating the children to that extent. Afterwards, the widow and her Husband both died and left the family without a head, and the management of the estate was left to administrators with the will annexed, to-wit: James M. Bullard and William P. Farrar.</p> <p>In process of time, it became a demonstrated fact that the proceeds of the estate, in its then form, was insufficient to support and educate the children as the testator desired and designed; whereupon the administrators filed a bill invoking, a construction of the will, and direction as to its execution in the emergency stated, and under the circumstances detailed. The bill prayed, that the land might be sold, and the proceeds invested in more productive land, upon which the slaves could be profitably employed, or that the land be sold and its proceeds be invested in some other safe form, and that the slaves be hired out, to the end that the testator’s wishes as to his children might be effectuated, or that the Court should give such other direction to the case as the facts and circumstances would justify and demand.</p> <p>Upon the case presented, the presiding Judge charged the jury, that the prayer of the bill, if granted, would violate the intentions of the will, and would, in effect, be making a will for the testator.</p> <p>The jury decreed accordingly, and error is assigned upon the charge and the decree.</p>

Injunction, decided by Judge Featherstoné, at Campbell Superior Court, October Term, 1863. This was a bill filed by the New Manchester Manufacturing Company against David M. Yancey, Tax Collector, to enjoin the collection of what complainants alleged was an unjust and , , illegal assessment of taxes. The Supreme Court decide the case upon a legal question, and it is not therefore necessary to detail the charges of the bill.

<p>1. The Congress of the Confederate States have the power, under the Constitution, to authorize and direct, by statute, the accumulation of supplies for the future use of the army, by impressment, whenever they cannot be procured at fair prices by purchase; provided, that, by the same statute, provision be made for prompt and just compensation.</p> <p>2. The scheme provided for assessing compensation in the fifth section of “ an Act to regulate impressments,” passed26th March, 1863, is notin compliance with the limitation of the power in the last clause, sixteenth paragraph, ninth section, first article of the Constitution. And proof that compensation was tendered as assessed, in a schedule previously made by commissioners, according to said fifth section of the Act, is not sufficient evidence of a tender of just compensation.</p> <p>3. In such a case, in the absence of other evidence that the price tendered was “just compensation;” and especially (as in this case) with proof that it was not so, the impressment cannot be sustained.</p> <p>4. In case of disagreement between the impressing officer and the owner, just compensation should be ascertained by the appraisement of the property impressed, at the time and place of impressment by appraisers, fairly and impartially appointed.</p> <p>5. Where private property has been impressed, under a statute which does not make provision for just compensation, the officer will be held to have taken it by violence, without lawful warrant or authority, and a proceeding by possessory warrant under the 3932d section of the Code of Georgia, is an appropriate and adequate remedy.</p>