Volume 34 — Georgia Reports

Indictment for Seduction. In Fulton Superior Court. Motion for neiv trial. Decided by Judge Big-ham. April Term, 1864. By consent of Counsel, this case, which was returned to the last Term at Atlanta, was transferred for argument and decision to the present Term at Milledgeville. Mann, the plaintiff in error, was tried in Fulton Superior Court, at the April Term, 1864, for the offence of seduction.

<p>A bequest to A. ai the death of the wife of testator, or when A. marries or becomes, of age is a contingent interest, dependent for its transmission to A.’s representatives, upon her being in life at the happening of some one of the named contingencies. If she dies before that tune, (as the legatee did in this case,) there is nothing in her to pass to her administrator.</p>

<p>[1.] Section 4574 of the Code of Georgia, gives to the presiding Judge of the Superior Court discretion to allow or disallow a motion to sever on trial by one of several persons jointly indicted. Where the severance is demanded as a matter of right, without cause shown, and refused, this Court will not disturb the ruling.</p> <p>[2.] Judgment below refusing new trial on the ground that the verdict was contrary to evidence, affirmed, this court believing that the evidence supports the verdict.</p>

<p>Habeas Corpus in Warren Superior Court. Decided by Judge Reese. October Term, 1861.</p> <p>The writ of habeas corpus in this case was issued by his honor, Judge Reese, on the application of the plaintiff in error, on the 16th of September, 1861, and was heard and decided at the next term of Warren Superior Court in October following.</p> <p>The question made, was as to the liability of the applicant to military service in the armies of the Confederate States. He claimed exemption by reason of physical disability, and for support of his claim, relied upon three several certificates, one of them dated Augusta, Ga., Dec. 1th, 1862, declaring him unfit for military duty, and signed “ Lewis D. Eoed, surgeon P. A. O. S.;” another dated “Warrenton, Ga., March 5th, 1863, which declared him incapable of performing the duties of a soldier,” and was signed “ G. B. Powell, surgeon ; ” and the third dated “Warrenton, Oct. 5th, 1863, declaring him exempt from military duty on account of chronic nephritis ; that the disability was permanent; and that he should not be liable to further examination unless specially ordered by the examining board.” This last certificate was signed by three surgeons, constituting the whole board of examination, and the approval of the enrolling officer of the 5th congressional district was indorsed upon it.</p> <p>The sub-enrolling officer, respondent in the writ and defendant in error here, admitted in his return the genuineness of these certificates, but set up the act of Congress, approved Feb. 17th, 1864, as terminating their effect. The return also set up a subsequent examination of the applicant by the medical board of the 5th congressional district, had at Augusta, on the 10th of September, 1864, the result of which was, as the return alleged, his acceptance for full field duty. It stated further, that at the time of this examination he had filed an application for exemption as an agriculturalist, and that the same was subsequently disapproved. .</p> <p>At the hearing, the applicant introduced the sub-enrolling officer, himself, as a witness, who testified that the applicant was examined last in Augusta by the board of surgeons, and found subject for field duty; that he did not appear before the last board in Warren county in July, 1864, because witness told him that it was not necessary, as he was applying for a detail as a farmer ; that he was examined in Augusta to see if he was fit for service, and the detail was refused on account of the decision of the board; that after the application reached Augusta it was sent back to Warren, with an order to report there for examination; that the applicant was then ordered by witness to Augusta, where he was examined and found fit for field duty, and refused. \ 7</p> <p>This, together with the certificates above described, was all the evidence in the case.</p> <p>The Court remanded the applicant to the custody of the sub-enrolling officerand this decision was excepted to as erroneous : 1st, in holding that the certificates did not exempt the applicant; and 2d, in holding the examination at Augusta valid.</p> <p>The argument in this Court was confined to the inquiry, whether the general military act of Congress of February 17th, 1864, revoked all prior exemptions for disability ; and whether, if it did, a subsequent examination by the board of surgeons, not had in the county of the conscript’s residence, was valid.</p>

Habeas Corpus. Decided by Judge Hook. At Chambers. September, 1864. Alford, the plaintiff in error, was under bond for his appearance at Washington Superior Court, to answer to an indictment for murder, then pending against him in that Court.

<p>Decisions on Habeas Corpus, by Judges Hook, Eichard H. Clark, and Lochrane. At Chambers. July, September, and October, 1864.</p> <p>These five cases involved the sapie legal principles, and were argued together in the Supreme Court. They arose upon writs of Habeas Corpus, sued out by peisons held for militia duty, against the officers having them in custody. The question was as to the liability of the relators to militia service. Their claim to exemption rested upon the ground that they were persons embraced within the act of Congress of February 17th, 1864, entitled, “ An Act to organize forces to serve during the war; ” and that, in terms of that act, they had been, some of them, exempted, and others detailed by the Government of the Confederate States, for agricultural purposes, which exemptions and details were for the term of twelve months, and not yet expired.</p> <p>In every case, the evidence adduced at the hearing established fully the matters of foot alleged ; and the matter of Ioad was decided by Judges Hook and Lochrane against the relators, and by Judge Clark in their favor. The cases determined by the first two were brought here by the relators; those decided by the last were brought up by the militia officers.</p> <p>A particular statement of the facts of each case is now presented severally :</p> <p>The case of Barber vs. Irwin was as follows: The relator, Barber, was within 18 and 45 years of age, and on the 6th of August, 1864, was exempted from Confederate service by the Confederate States District Court for the Southern District of Georgia, upon filing his bond according to the act of Congress above mentioned. Being arrested by Colonel Irwin, under and by virtue of a proclamation of Iiis Excellency, the Governor, requiring all exempts and detailed men from the Confederate service to be sent forward to the front at Atlanta, he sued out a writ of Habeas Corpus on the 1st of September, 1864, for his discharge. At the hearing, Judge Hook refused to discharge him.</p> <p>The case of Jones vs. Mercer was as follows : The relator, ‘Mercer, was the overseer on the plantation in Dougherty county, of Col. M. Hill, of North Carolina, and had been for several years past. There being on the plantation over fifteen able bodied male hands, his employer applied to the proper authority, and procured his exemption as an overseer for twelve months, (not yet expired) under the act of Congress above referred to. He was thus exempted as a bonded overseer, and had delivered, during the year, a considerable quantity of produce to the Commissary. He was still the overseer on the plantation, and ivas in all respects complying with the bond. It appeared that he was a member of Company 1,10th Regiment Georgia militia; that the regiment was in the military service of the State; that he had n ot been in servicein Atlanta, but had reported at Macon; that he was absent from his command on a furlough, which had expired, and that for this reason Lieut. Colonel Jones, acting under special orders from His Excellency, the Governor, had him under arrest. To free himself from that arrest, he applied for and obtained a writ of Habeas Corpus, which Judge Clark, at the hearing, adjudicated in his favor, and discharged him.</p> <p>The case of Jones vs. Brinson was as follows : Brinson, the relator, being between 18 and 45 years of age, and an enrolled conscript, was, in March, 1864, at the instance of Matthew Brinson’s executors, and under the same act of Congress, exempted for twelve months, as an overseer upon the plantation of their testator’s minor children. The five hundred dollars had been paid, and the relator, during the year, except when absent in the summer with the militia at Atlanta, had been superintending the jilantation, and was still so engaged. Like the relator in the preceding case, he was a member of Company I, ,10th Eegiment Georgia militia, and was absent on an expired furlough'. Upon his arrest for that cause, by Lieut. Colonel Jones, acting under special orders from the Governor, he sued out a writ of Habeas Corpus before Judge Clark, who, on the return of the writ, ordered his discharge.</p> <p>The ease of Jones vs. Warren was as follows: The relator, Warren, was a conscript between 18 and 45 years of age, and had been exempted for twelve months, (not yet expired) under the act of Congress, as the overseer of Mrs. A. Jones, a feme sole, and of Wm. M Jones, a soldier in service. The five hundred dollars had been paid, agreeably to the act. His Honor, Judge Clark, upon these facts, held him exempt "from militia duty, and ordered his discharge.</p> <p>Finally, the ease of Dennis and others vs. Scott was as follows : Dennis and his co-relators had all been enrolled in the military service of the Confederate States: eight of them had been exempted for twelvemonths, “for agricultural purposes,” and two of them detailed. The period of their exemptions and details had not expired. Captain Scott, in aiding, under orders, to organize the militia of Crawford county according to the proclamation of His Excellency, the Governor, assumed control over these parties as persons liable to militia service. They, alleging that they were not liable, applied to Judge Loclirane for writs of Habeas Corpus, which were issued on the 25th of July, 1864, and at the return of the same, His Honor held the relators subject to the service demanded, and .restored them to the custody of the officer.</p>

<p>In Equity in Baldwin Superior Court. Decision at Chain- ' hers by Judge Harris. October, 18,64.</p> <p>The plaintiffs in error are the children of Benjamin Brookin, by a former man’iage, and the defendant is his widow.</p> <p>The children filed their bill, in Baldwin Superior Court, against the widow, asserting their title, in remainder, as heirs at law of their father, to three negroes, in which, as they alleged, the widow, under a certain deed from their father to her, had but a life estate, and praying for the writs of We exeat and Injunction, to the end that she might be compelled to give security for the forthcoming of the negroes at the termination of such life estate. The bill charged divers facts touching the conduct and purposes of the defendant, in relation to selling, concealing, and running off the propety, to the prejudice of complainants’ rights, but which need not be here repeated, as no point was made upon their sufficiency. It also set forth a copy of the deed by which the alleged life estate in the defendant was created, which is as follows:</p> <p>“ State of Georgia, j This indenture and marriage settle-Baldwin County. [ ment, made and entered into this 5th day of May, in the year of our Lord, 1864, between Benjamin Brookin, of said State and county, of the one part, and my wife, Josephine Brookin, of the other part, witnesseth : That for and in consideration of the love and affection I have' to my said wife, to whom I have been recently married, and in view of the care and devotion now shown me, and which I need at my advanced age, as well as for divers good causes and reasons me thereunto moving, and especially that my said wife, Josephine, may have a home and property for her support, free from molestation and any future'contingencies; and, whereas, I am comparatively out of debt, and therefore free to act: now, for and in consideration of the premises, I do hereby give and convey unto, and settle upon my said wife, Josephine, one negro girl, named Mary, about ten years old ; also, one negro boy, named Sam, in his eleventh year of age; also, a boy, named Augustus, in the eighth year of his age. I do further settle and convey, in manner and form aforesaid, upon my said wife, the house and lot in which I now live, together with 200 acres of land adjoining thereto, to be selected by herself according to the greatest convenience of supporting herself; also, all the household and kitchen furniture on said place, two choice cows and calves, two choice sows and pigs, to be chosen by herself, one horse and buggy I now own, with this sole reservation, that I am to remain on said land during my life time, and enjoy, jointly with my said wife, the furniture and stock. And all and singular the aforesaid property to be and remain the sole and separate property of my said wife during her natural life, free from any debts, contracts, or liabilities of myself or any future husband she may have, and the same to be disposed of by will as she may see fit, or to change and re-invest as she may .see proper — the property so acquired to be subject to the conditions of this deed; and if a trustee be necessary to carry out the purposes of this deed, my said wife to select the same, and said trustee may be considered a party to this deed, and to exercise all powers necessary to effect my purposes.</p> <p>In witness whereof I hereto set my hand and seal, this 5th day of May, 1864.</p> <p>Benj. Bbookin. [L. S.]</p> <p>Signed, sealed and delivered before</p> <p>L. II. Beiscqe.</p> <p>Geo. D. Case, J. I. O.</p> <p>Benjamin Brookin, the donor, the bill alleges, died shortly after the execution of this instrument, and his widow, the donee, possessed herself of all the property therein mentioned. '</p> <p>The bill was verified by the .oath of two of the complainants, on the 4th of October, 1864, and the same day was sanctioned by Judge Harris, who ordered an Injunction prohibiting the removal of the negroes from this State, and requiring the defendant to enter into bond, with security, for the forthcoming of the same at her death, to be delivered up to the complainants as remaindermen.</p> <p>Two clays subsequently, upon general demurrer to the bill, and by motion to dissolve the Injunction, the cause came to a hearing, by consent of parties, at Chambers, before the same Judge, and the Injunction was dissolved, the Court holding, that upon a proper construction of the deed above set forth, the complainants were without any such interest in the property as a Court of Equity could protect, in the life time of the defendant. This decision was.brought before the Supreme Court for review; and the two. questions discussed here were, first, whether the defendant took, under the deed, an absolute fee in the negroes; and, secondly, whether, if she did not, a Court of Equity could interfere, during her life, with any use, management, or disposition of them which she might see fit to adopt. The arguments of counsel treated the complainants as coming forward in the character of reversioners, which seems a more correct designation of the character in which they claim than that of remaindermen, as they are called in the record.</p>

In Equity, in Dougherty Superior Court. Bill for Discovery and Relief. Tried before Judge Richard H. Clark, June Term, 1864. The subject matter of this litigation was a lot of land situate in Dougherty county. The lot was drawn by John Baugh, in 1820, and granted to him by the State in March 1836. Under him, both parties to this record claimed title as purchasers for value. Each had, upon paper, a complete chain of conveyances running hack to Baugh.

In Equity, in Lee Superior Court. Motion to dissolve Injunction and dismiss Bill. Decided by Judge Richard H. Clark. At Chambers, October, 1864. Smith filed his bill against Bryan in Lee Superior Court, returnable to September Term, 1864. Bryan did not reside in Lee, but in Macon county, and this fact appeared on the face of the bill; and upon it, the defendant denied the jurisdiction of the Court. ’ He presented that defence at the first term, both by demurrer and by plea.

Habeas Corpus, in Warren Superior Court. Decided by Judge Reese, October Term, 1864. This Habeas Corpus was sued out by the plaintiff in error, against the enrolling officer of his County, in October 1863. The writ was granted by Judge Thomas, but did not come to a hearing until tlie last term of Warren Superior Court, when it was disposed of by his successor, Judge Reese.

Habeas Corpus. Decided by Judge Fleming. At Chambers. February 1864.

Decisions on habeas corpus, by Judge John T. Clause, at Chambers, September, 1864. Id the Supreme Court these two cases were argued together. They concerned the liability to militia service of the Assessors and Collectors of taxes for the Government of the Confederate States.

Indictment for Murder. In Chatham Superior Court. Motion in Arrest of Judgment and for Flew Trial. Decided by Judge Fleming. May Term, 1864. At May Term, 1863, of Chatham Superior Court, Francis Roach was tried for the murder of Patrick Tye, and found guilty of voluntary manslaughter. The indictment charged, both that the mortal blow was given in Chatham county, and that the deceased died in that county.

<p>[1.] Since the passage ol’ the Act of Congress to put an end to the exemption of those from the military service who had furnished substitutes, approved Bth January 18Gb one is not entitled to a discharge from the custody of the enrolling officer, by reason of having furnished a substitute.</p> <p>[3.] A, within the conscript age, and while exempt by reason of his having a substitute in, became a member of the “ "Wheeler Dragoons ” a company for the defence of Augusta under the act of Congress of Augnst^lst, 1861. Ilcld: That this did not protect him from enrollment under the conscript Act, after Ms exemption, by reason of having put in a substitute, had been put an end to by Congress.</p> <p>[3.] A contractor to supply the Confederate Government with arms, is not exempt, hy reason thereof, from enrollment as a conscript.</p>

<p>[1.] Section 3958, of the code relates only to certiorari sued out to correct errors in the Inferior Courts, proper, sitting twice in each year as Courts of law', and in Courts of Ordinary, of the several counties.</p> <p>[2.] Writs of certiorari sued out to correct errors by the Justices of the 'Inferior Court of any county, trying habeas corpus cases, are regulated hy § 3900 of the code.</p>

<p>Habeas Corpus. Decided by Judge Hook.- At Chambers, June, 1864.</p> <p>The decision below was upon a writ of habeas corpus sued out by the defendant in error against the plaintiff in error, returnable before Judge Hook at Chambers.</p> <p>The question made was as to the exemption of Barton, the defendant in error, from military service in the army of the Confederate States, on the ground that he was a physician, over thirty years of,age, and engaged in the actual and regular practice of his profession for seven years prior to the Uth day of February 1864, the date of the act of Congress entitled, “ An act to raise forces to serve during the war.”</p> <p>At the hearing, the parties being at issue upon the matters of fact involved in this ground, they both introduced evidence. Barton proved by his father (who also was a physician,) that he was born in 1832, received his diploma from the Medical College of Georgia, in March 1856 ; entered immediately on the practice, and from that time forth, had been, and still was, in the regular practice of his profession, all the while dependant solely upon it for the support of himself and family, and not once engaging in any other business or occupation ; that in 1856 and 1862-3-1, he practiced with his father in Bichmond county, and during the intermediate years, in the counties of Jefferson, Columbia, and Burke, a part of the time in each, respectively. By [two other witnesses, he proved that he practiced in Bichmond county in 1856-7; and by three others, that he practiced in the same county ;in 1862-3-1; by two others, that he practiced in Jefferson county in 1857-8 ; by two others, that he practiced in Columbia county in 1859; and by three others, that he practiced in Burke county in 1861. He.also introduced his account books containing charges for medical services from 1856 to 1861.</p> <p>The enrolling officer proved bj^ the Assessor and the Collector of taxes for the Confederate States, that Barton had neither registered as.a physician, nor paid the special tax as such, required by the acts of Congress; also, by one of these witnesses, that Barton, after setting up his claim to exemption, upon being told by the Assessor that he would now have to register, replied that he would willingly pay a thousand dollars to obtain his exemption.</p> <p>By the Collector of State taxes for the county of Bichmond, (who in 1862-3 was both Collector and Beceiver, and for the eight preceding years, the Beceiver alone,) he proved that Barton never did give in a professional tax in that county, and that in making his returns in 1862 and 1863, though he returned his poll and his road hands, he positively refused to return a professional tax, on the ground that he was not practicing. This witness further testified ‘that the father of Barton had frequently told him his son was not practicing.</p> <p>Judge Hook held, that the facts necessary to constitute the exemption, were established; and he thereupon passed an order of discharge, to which the enrolling officer excepted,' and brought the same to this Court for review.</p>

Habeas Corpus. Decided by Judge Hook. At Chambers. October 1861. His Excellency, the Governor, ordered into the field all persons subject to militia duty. Col. Irwin, an officer of the militia, arrested Jackson, in execution of that order. Jackson, to obtain bis discharge, sued out a writ of habeas corpus before Judge Hook, on the ground, that he was not liable to serve in the militia.

Habeas Corpus decided at chambers, by Judge Hook, August 1864. The Sheriff, Mayo, by virtue of a proclamation of His Excellency, the.Governor, ordering all men liable to perform militia duty, to be sent forward to the front, held Jackson, the plaintiff in error, in custody, claiming the right to send him forward accordingly.

Indictment in Fulton Superior Court. Motion in Arrest of Judgment. Decided by Judge Bigi-iam. January Adjourned Term 1864. This writ of error was made returnable to the last term of the Supreme Court at Atlanta, but, by consent of counsel, it was heard at Milledgeville.

Habeas Corpus. Decided by Judge Lochrane. At Chambers. November 1864.- The plaintiff in error was but sixteen years of age on the 6th oí April 1864. His father was dead — had been dead five years; his mother was living. Without the consent of his surviving parent — indeed against her express protest — he enlisted as a substitute in the ai my of the Confederate States.

Indictment in Chatham Superior Court, for larceny from the house. ' Motion for new trial. Decided by Judge Fleming. January Term, 186J. Wright, the plaintiff in error, was indicted for the offence of larceny from the. house. The property alleged to have been stolen was a trunk containing money and other valuables. The offence was charged in the indictment to have been committed on the 17th day of March 1863. ( The trial took place in the May following.

Habeas corpus was sued out by Wing against Starr, who, as enrolling officer, held him in custody upon a charge of desertion from camp Randolph, one of the camps of instruction. The arrest was made in pursuance of orders from the commandant of the camp. Wing had been detailed as an overseer, and his detail, as it. would seem, had expired or been revoked.

<p>If the plaintiff in certiorari fail to give “ to the opposite party in interest” the notice required hy 3967th section of the Code, and fail to show that he was prevented from doing so hy unavoidable cause, a motion to dismiss the certiorari in default of such notice, at any time anterior to final judgment, must prevail.</p>

In Equity. Application for Injunction. Decided by Judge Richard II. Clark. At chambers, January 1865. The plaintiff in error had an estate for the life of his wife in eleven negroes, and in one-half of a certain plantation. He hired the negroes, and leased the plantation to the defendant for the whole period of the wife’s life, at the price of $2,000 per annum, commencing with the year 1864, for which year the stipulated price was paid in advance.

Decisions on Habeas Corpus. By Judge Looiirane. At Chambers. December 1864, and January 1865. These two cases were consolidated in the Supreme Court.

Demurrer, decided by Judge Riohakd H. Olakk. In equity, in Decatur Superior Court. April term, Í864. Held: and enjoyed, until her death, which took place in January 1859, without molestation or interference from the children or either of them. In the mean time, however, to wit: on the 10th of March 1847, she intermarried with William Chester.

<p>[1.] A Judge of the Superior Court having, in vacation, appointed a receiver to take possession of any fund, or property, in litigation, may, in vacation, enforce the delivery of such fund orproperty to the receiver, hy attaching ami imprisoning any party refusing obedience to his order.</p> <p>[2.] The fifth specification, under section 242, of the Code, is applicable only to the punishment for contempt by acts done; it is inapplicable to attachment and imprisonment for contempt in refusing to do an act required by order or decree of a Court, in furtherance of justice, and as part of the remedy in a suit pending.</p>

<p>Ejectment in Twiggs Superior Court, tried before Judge Looheane, March Term, 1864.</p> <p>This was an action .of ejectment by Doe, upon the several demises of Henry Williams and Drewry William^, against Roe, casual ejector, and Cowart, tenant in possession, for the recovery of a fractional lot of land, lying on the Ocmulgee river, in the twenty-eighth district of originally Wilkinson, now Twiggs county, and described in the declaration as number 194, containing 196 acres, and known as the “Dawson or Lewis” fraction.</p> <p>The ease was first tried on the appeal, in 1858, and a verdict was rendered for the defendant. A new' trial' was ordered by the Supreme Court.—27 Ga. R. 187.</p> <p>At March Term, 1864, the case was tried again, when the plaintiff amended the declaration by striking out 194 as the number of the fraction, and inserting 216; and to the declaration, as thus amended, the defendant pleaded the statute of limitations.</p> <p>Both parties set up title under Drewry Williams; the plaintiff claiming to hold by a deed of gift made from Drewry to Henry Williams, in 1826; and the defendant, under a devise in the last will of Drewry Williams, to the children of Redding Rutland and the testator’s daughter, Polly Rut-land, which Will was executed in 1835, and admitted to probate in 1837. A deed was read in evidence from these devises to Cowart, the defendant, dated July 10th, 1854.</p> <p>Much testimony, on both sides, was submitted to the jury, upon which no point was made; but to the admission of the evidence of two of the plaintiff’s witnesses, Durden and William Williams, the defendant objected on the ground of irrelevancy. The objection was overruled by the Court, and this is the first error assigned.</p> <p>Durden’s evidence was in answer to interrogatories describing the land as follows: “A fractional lot of land, in Twiggs county, containing about one hundred and ninety acres of swamp land, and known as the Dawson or Lewis fraction and number 191-, on the Ocmulgee river, and in the three hundred and twenty-second district, Georgia Militia.”</p> <p>The witness answered in substance, thus: “I know a fractional lot of land in Twiggs county, lying in the river swamp, on the Ocmulgee, formerly belonging to Drewry Williams. Drewry Williams told me that if I wanted to buy it, I must go to his son Henry; that he had given it to him. I know it as the Williams fraction, but do not recollect the number or district — have heard James H. Cowart say that he was in possession of it — do not know how long he has been in possession, but think about three years. I proposed to buy the lower lot, or fraction, from Drewry Williams, and lie told me that he had given the two fractions to his sons Henry and William. This conversation took place after Drewry moved to Florida, and while he was back on business. Cowart told me he bought said land from Rutland’s heirs, and that it was willed to them by Drewry Williams. He acknowledged that the fraction he was in possession of, was the land Henry Williams claimed. I know nothing about the number or district.”</p> <p>The evidence of the witness William Williams, was also in answer to Interrogatories, and was substantially- as follows : “ In 1821, our father, Drewry Williams, made a division of his property among his children. He gave to my brother Henry certain negroes and two lots of land, one known as the Rutland land, and the other as the Lewis and Dawson fraction; the numbers I do not know, but the lands are in Twiggs county, and known as the lands formerly belonging to Drewry Williams. The Rutland .lot is an upland lot. * * *' * The other is a fraction on the Ocmulgee river. It formerly belonged to Daniel Lewis; was sold by Lewis to Dawson, and, as well as I recollet, was sold at Sheriff’s sale, as the property of Dawson, and purchased by Drewry Williams. I was not present at the division, nor did I ever see any title passed from our father to ITenry; but father informed me that he gave these lands to Henry, and the latter, with father’s knowledge, went into possession of them and cultivated them in 1828. In 1829 I rented the land, as the property of Henry, to Reason D. Bealle, of Macon. This was known to our father, and he claimed no right to the rent, nor pretended to exercise any ownership over the premises. I know Henry was in possession of these lands in 1828, and I heard our father say he had given them to him.” The witness also described the boundaries of the lands, and annexed to his answers a diagram showing their situation.</p> <p>The plaintiff introduced in evidence an established copy of a deed of gift from Drewry to Henry Williams, dated December 1st 1826, and conveying, as it was contended, the premises in dispute. This copy was established by a judgment of the Superior Court of Twiggs county, rendered at April term 1848, upon a rule nisi, granted by the Court at the previous October term, calling upon “ the heirs at law ” of Drewry Williams to show cause why such copy should not be established in lieu of the original, alleged to be lost. Both this rule nisi and the judgment thereon, were introduced with the copy deed. The judgment recited that the rule nisi had been served upon all the heirs; but among the indorsements of service upon the rule itself, there was, as to Mary Howell, one of the heirs, no entry except the following: “October 15th 1847, service of within rule is hereby acknowledged by Samuel and Mary Howell.” There was no evidence aliunde that Mary Howell had, in fact, been served, and it was proven that she could not write, but uniformly made her mark.</p> <p>This Mary Howell was the person described in the will as Polly Rutland, the testator’s daughter.</p> <p>There was no evidence whatever of any service of the rule nisi upon the children of Redding and Polly Rutland, or of any notice to them of the proceeding.</p> <p>The Court charged the j ury that Mary Howell, the children of Redding and Polly Rutland, and Cowart, the defendant, were all concluded by the judgment establishing the copy deed, and that in the present action, the copy was to be regarded by the jury as the deed of Drewry Williams. This charge is the second error assigned in the bill of exceptions'.</p>

Case on Sheriffs bond. Decision by Judge Lochrane. In Twiggs Superior Court. March Term, 1863. Held: not only that there was no privity, but that Butherford, in paying the amount of the fi.fa., acted from a nice sense of professional honor, and that admitting his liability, the measure of damages which the plaintiff in fi.fa. could have recovered against him for negligence, was not necessarily the amount of the judgment; also, that…

Oertiorari in Houston Superior Court. Decided by Judge Loohrane at October Term, 1862. On the first of January 1858, on the affidavit of Smith, a distress warrant for rent was issued in his favor against Green, by a Justice of the Peace of Houston county. The warrant, on its face, was made returnable to the Inferior Court. It was for one hundred and seventy-five dollars besides interest; and was levied, the same day, upon a piano.

<p>Under the act of the Confederate Congress, approved lttli February 1864, entitled, “ An act to organize forces to serve during the war,55 a person enrolled for military service Whilst under fifty years of age, is entitled to his discharge from the army upon attaining that age.</p>

In Equity in Dougherty Superior Court. Injunctions granted by Judge Richaed IT. Claek, at Chambers, October 1864. These two cases were argued together in the Supreme Court.

<p>[1.] A soldier in the army of the Confederate States, being elected to the office of Constable in the State of Georgia, is not thereby discharged from the army.</p>

<p>Indictment for Gambling. In Talbot Superior Court. Tried before Judge Wobbill. March Term 1865.</p> <p>These two eases were heard together in the Supreme Court. As they both involved precisely the same points, it will be sufficient to state the facts in one of them only.</p> <p>McBryde was indicted for playing and betting at cards. The indictment was found at March Term 1863, of Talbot Superior Court; and it laid the offence as committed on the 3d day of March 1863. At the trial, the State proved the charge fully, except that the time of the offence, as fixed by the evidence, was in September 1862. There was no evidence, whatever, of any playing or betting in 1863.</p> <p>Counsel for the accused requested the Court to charge the jury that they were bound to acquit him because of this discrepancy in time. The Court refused so to charge, and on the return of a verdict of guilty, imposed a fine upon the defendant of one hundred dollars. This is complained of as error.</p>

Decisions on Habeas Corpus, by Judge Richard H. Clark. At Chambers. October 1864. By consent of counsel, these two cases, returned to the last term at Milledgeville, were transferred for hearing to the present term at Macon. They were here consolidated and decided together. The defendants in error were members of a military company then in service, and were absent from their command on furloughs which had expired.

Habeas Corpus. Decided by Judge Richard H. Clark, at Chambers, February 1865. The defendants in error were enlisted soldiers serving in the Georgia Reserves, and while so serving, were arrested upon charges of felony, and recognized to appear at the Superior Court of Sumter county, to answer these charges.

Indictment for Simple Larceny, and Motion for New Trial. Decided by Judge Richard II. Clark. In Decatur Superior Court. April Term 1864. IIall, the plaintiff in error, was tried for stealing a steer, the property of James Kent.

<p>D. sued P. & It. A. F., factors and commission merchants, for loss of cotton, occasioned by them in violation of instructions. P. had withdrawn from the firm before the loss occurred — his name, however, still continuing in the business. Upon E. A.’s giving a bond of indemnity, and executing to Mm a release, and tendering the clerk’s certificate of a deposit of money by E. A., which the plaintiff admitted was sufficient to satisfy any recovery which D. might make : JTeld^ that P. was a competent witness to testify for the defendants.</p>

<p>K. & H. bought of M, four bales of cotton and left it under shelter on the plantation of SI., to be kept by him until called for, and then to deliver the same to them or order, the cotton to be at the risk of K. & H. until taken away. K. & H, called for the cotton and M. refused to deliver it or to let them have it. They sued out a possessory warrant : Held, there being no question or controversy as to title, that this was a proper remedy.</p>

<p>In Equity. In Éulton Superior Court. Motion to dissolve inj unction. Decided by Judge "Wabneb. April Term, 1866.</p> <p>In Eebruary, 1866, Dermott, the defendant in error, filed his bill in equity against Abbott, the plaintiff in error, making, as subsequently amended, the following case:</p> <p>On the 18th or 19th of April, 1865, General Johnston surrendered to the Federal authorities the Confederate forces under his command, and all territory east of the Chattahoochee river. The city of Atlanta was thus, on the first of May, within the military lines of the United States, and so remained; hut the news of the surrender was suppressed as much as possible by the military authorities. General Sherman had cut; the railroads between Georgia and North Carolina, and communication between Atlanta and the scene of General Johnston’s operations was very much disturbed, if not broken up. Information of the surrender had, consequently, not reached Dermott, in Atlanta, on the first of May. Knowing nothing of it, he, on that day, conveyed to Abbott, by deed, a house and lot in the city, worth now $5,000 in United States currency, but for which he received no consideration of any value whatever, as he took in payment for it $30,000 in treasury notes of the Confederate States, which, although he did not know it, were then, by reason of Johnston’s surrender, and the breaking up of the Confederate Government, uncurrent and absolutely worthless.</p> <p>Being a dealer in groceries, he left Atlanta on the next day for Albany, Ga., to invest these notes in groceries, traveling by railway. When he reached Macon he heard, for the first time, of the surrender, and that Confederate notes were certainly uncurrent and worthless. Nevertheless, he went on to Albany, but could buy nothing with them. He then hurried westward with all possible expedition as far as Enterprise, Miss., where he learned they could not be used east of the Mississippi river. Returning to Mobile, he sent $25,000 of them by an agent up Red river to be invested in something, if possible; but it turned out that the proceeds of $8,900 were only $Í6.10 in United States currency, while the expenses of the agent were $46.65. The agent returned to Dermott the remaining $21,000, all of which, except a few bills given away, he has still on hand.</p> <p>Soon after making the deed, he rented from Abbott the house and lot at $25.00 per month, giving therefor his obligation in writing. Afterwards, under a mistake of law, believing that this obligation bound him, he paid the rent for July and August. He was delayed in obtaining legal advice and the needful information as to his rights, by the fact that Atlanta had been burned down, her people banished, and her business suspended: so great were the confusion and uncertainty, that he was unable to look into his affairs and get the advice requisite to guide him. When he did obtain it, hé tendered back to Abbott $30,000 in Confederate States Treasury notes, (which tender he repeats and continues in his bill) and gave him notice that he no longer considered himself his tenant.</p> <p>Abbott, thereupon, instituted legal proceedings to expel him as a tenant holding over, and caused a distress warrant to issue for double rent. Dermott was-- compelled to give bond and security for 'the eventual condemnation money. Another distress warrant for double rent was issued, and the same is now in the hands of the Sheriff to be levied. On account of his poverty, Dermott is unable to give the large bonds required, and which he apprehends will be required if distress warrants continue to issue.</p> <p>Averring that the Confederate notes received were of no value, yet he offers, should it be found otherwise, to account for them.</p> <p>The bill prays for an injunction against the distress warrant in the Sheriff’s hands, and against all other proceedings at law touching the matters in question, and for a decree that the deed, as well as the obligation to pay rent, be delivered up to be canceled, and that defendant refund the money paid him for rent; or, that he be decreed to pay for the house and lot a fair and just price in good current fnnds.</p> <p>The injunction was granted; and the defendant answered ' the bill, and moved to dissolve it, upon the ground that the equity of the bill was sworn off.</p> <p>The Court overruled the motion; and that is the error alleged.</p>

Complaint. In Sumter Superior Court. Tried before Judge Speer. April Term, 1866.

Complaint. In Floyd Superior Court. Tried before Judge Hammond. January Term, 1862. This action was brought by Wyly against Coulter, upon a promissory note made by the latter for $1,750.00, payable to George P. Burnett, or bearer, dated April 1st, 1854, and due December 25th, 1855, bearing interest from date. The declaration was filed in office February 11th, 1857, the defendant having acknowledged service thereon on the 10th of January preceding.

<p>In 1857, the making of a partial payment upon a note, and entering it as a credit, did not establish a new point from which to compute the time for bringing suit under the statute of limitations.</p>

<p>[1.] The Probate Court of Chambers county, Alabama, appointed a guardian of the persons of two infants, residing at the time in the State of Georgia: Meld, That such appointment is void, because the court had no jurisdiction of the infants’ persons.</p> <p>[2.] An executo? of a will, as such, is not entitled to the custody of the minor children of his testator.</p> <p>[3.] When infants are brought before a habeas corpus court, the court will exerciso its discretion as to their custody; and unless such discretion has been flagrantly abused, a reviewing court will not interfere.</p>

Trespass. In Wilkinson Superior Court. Tried before Judge Augustus Reese. April Term, 1866. ' In January 1860, the defendant kept a retail liquor shop in the town of Irwinton. The plaintiff had been drinking there one day, and late in the afternoon,.being drunk, got into a quarrel in the shop, with a Dr. Hudson. He cursed, was noisy, and had a small knife open in his hand.

Indictment for Simple. Larceny. Tried before Judge Warner. In DeKalb Superior Court. April Term, 1866.

<p>Illegality. In Lumpkin Superior Court. Decided by Judge Rice. February Term, 1866.</p> <p>A fi. fa. in favor of Besser against M. H. Van Dyke, B. Hamilton, and The Yahoola Eiver and Cane Creek Hydraulic Hose Mining Company, was, on the 2d of February, 1866, levied by the sheriff on five hundred bushels of corn, in the possession of Daniel Davis, as the property of said Mining Company.</p> <p>On the same day, Van Dyke made an affidavit that the fi. fa. was proceeding “ against him and said company and parties ” illegally, on several grounds, all of them relating to said Company and this levy, and filed it with the sheriff, giving bond and security in terms of the law.</p> <p>At court, the plaintiff moved to dismiss the affidavit on the ground that it was made by a defendant against whom the fi. fa. was not proceeding, and not by the one against whom it was proceeding. The court sustained the motion, and Van Dyke then moved for leavp to amend the affidavit by adding the word “ agent ” after his own name. The court refused to permit this, and passed an order dismissing the illegality. And counsel for Van Dyke excepted to all that the court did, as well as to what it refused to do.</p>

<p>[1.] The presumption is in favor of the regularity and legality of all proceedings in the Superior Court. Consequently, the Grand Jury finding a bill of indictment, will be presumed to have been duly constituted, unless the contrary appears from the bill of exceptions or the transcript of the record.</p> <p>[2.] Upon the enactment of a new penalty for an offence, the former penalty is not superceded until the statute prescribing the new one takes effect; and this, under the Code, cannot happen until the statute has been duly published. Consequently, horse-stealing committed in the county of Ooweta on the 19th of March, 1866, was unaffected by the Act of the 17th of the same month, authorizing the infliction of capital punishment.</p> <p>[8.] The Act of February 6th, 1860, empowering the Judges of the Superior Courts to hold special terms at discretion, is Constitutional. The provision in the Constitution for holding the Courts at stated -times appointed by the General Assembly, relates to the regular terms only.</p> <p>[4.] Remarles on the delegation of legislative power.</p>

Bigamy. In Eulton Superior Court. Tried before Judge BiGHAMy April Term, 1864. One Thomas T. Davis was indicted for bigamy, committed by intermarrying with Margaret Windham, a single woman, he being already a married man. In the same indictment, Boggus, the plaintiff in error, was charged with being present, aiding and abetting Davis in the offence; and, also, as accessory before the fact.

In Wilkinson Superior Court. Decided by Judge Augustus Eeese. April Term, 1866. In a proceeding to foreclose the following instrument as a mortgage upon the land, the court decided that it was a mortgage; and the jury, by their verdict, found five hundred dollars, besides interest, due on it to Carswell alone, as his share of the fee: '' “ Geobgia : Eollin Stanley, Admr., vs. Thomas Jackson, Claimant.

<p>The disolution of an injunction upon the coming in of the answer, though the equity of the bill be sworn off, is not matter of right, but of discretion. In the present case, the discretion was properly exercised by retaining the injunction. The equity of the bill was not fully sworn off.</p>

<p>Abtion for Eeal Estate. In Effingham Superior Court. Tried before Judge Fleming. April Term, 1861.</p> <p>The error assigned in this case is on the charge of the court, which was as follows: — “ That, while it was true, as contended by the‘plaintiff, that in a contest between the owners of adjoining lands, in relation to a question of boundary, nothing but actual possession of the part of the premises in dispute would bar the right of the plaintiff to recover all the premises covered by his grant, still, if the jury found that, on the east of the bay, there was a plain line marked out, which had been known and recognized as the true boundary, by both parties, or those under whom they claimed, for twenty or thirty years, that line would become the true boundary, and both parties would be bound by it, and entitled to hold and claim to it.” “ That this was the law; and it made no difference whether there had been any actual possession in this case or not', and that the claim on the one side, and acquiescence on the other, to the line so marked and recognized, was based upon a mistake, in supposing that said line was the true original line, and coincident with the prolongation of the line recognized on the. other side of the bay, and the ignorance of both parties that the two lines were not identical and would not meet.” “ That this was not such a mistake or misapprehension as the Supreme Court had contemplated in the decision in 16 OaP</p> <p>Thus is the charge stated in the bill of exceptions; but the Judge, in certifying to it, appended a note as follows:— “In signing this certificate, it is proper to state that the lines marked on both sides of the bay were, according to the testimony, old lines, and were both recognized as the true lines of the Melnfuss tract, by the proprietors of the adjoining tracts, for twenty or thirty years; that there was no conclusive evidence that the line was ever actually run through the bay. Under this state of facts, I charged the. jury, further, that if these lines were made by the original surveyor, they would be the true lines, although the surveyor may have made a mistake in supposing that these lines, prolonged, would meet; that if the surveyor crossed the bay at some moie convenient point, and in measuring back his offset, either fell short of, or went beyond the line, still, the line he made would be the true line.</p> <p>“ In regard to mistake by the proprietors, I charged the jury, that whilst possession by mistake could not give title, yet, that the mistake must be where the line, not being known, is crossed by accident; that it.is a different case where the true line is crossed for the purpose of reaching a plainly marked line, known to and recognized by both parties for thirty years as the true line between them.”</p> <p>For a better understanding of the charge, the evidence, as brought up in the record, is set out as follows:</p> <p>The plaintiff introduced a chain of title, beginning with a grant to Mclnfuss from King George III, accompanied with a plat and certificate of survey. It was conceded that he had title to the land covered by the Mclnfuss grant.</p> <p>He then introduced James E. Wilson, deputy county surveyor, who testified that the Mclnfuss grant covered the premises in dispute. He had surveyed the land since the last term of the Court, and made the plat exhibited to him, which, to the best of his skill and judgment, was correct. Mr. Marlow, the defendant’s agent, was present when he made the survey, and exhibited to him the plats and grants to the McCormick tract and the Edwards’ tract, owned and claimed by defendant.</p> <p>Witness found all the corners of the Mclnfuss tract but one. There was no dispute about the lines on three sides; they were plain enough. On the western boundary, witness found a plain line; he found the cypress station called for by the original plat, accompanying the grant, and the pine corner on the south-west. He cut into the tree If inches and found the plain marks — cross and three chops. Had no doubt that it was the original corner of the Mclnfuss tract. From this corner, running the disputed line according to the course and bearing of the original plat, found a plain line into the bay; was shown the spot on this line where the original maple station stood. Following the line through the bay, the witness found several trees which he believed to be the original line 'trees; they are marked on witnesses plat. At the intersection of this line with the eastern boundary line, where there ought to be a pine corner, witness found a pine stump answering the description of the corner in the plat, but the tree had been burned down by fire below the place where the marks would be. To the best 'of witness’ judgment, the line marked and delineated on his plat, is the true original line of the Mclnfuss survey.</p> <p>Thomas R. Himes testified as follows: “ I am familiar with the lines of the Mclnfuss plat. ' In 1834 I carried the chain around the western, and part of the southern or disputed, boundary. I once owned the land myself. I knew the cypress station on the western boundary, and the pine corner, marked on Mr. Wilson’s plat. I cut timber off of this land twenty-sis years ago. They have always been known and recognized as the original land-marks of this tract of land. In 1841 I sold the land to Israel Euil. Tie claimed the land on the west of the bay, down to the line marked by Mr. Wilson. The old maple station stood on this line. It was inside of defendant’s fence. I know the line claimed by defendant on the west of the bay. It is old, and was, for twenty years, recognized by both parties as the line. I always supposed it to be the true line. There was no dispute about it, because no one knew that it was not coincident with the line on the west of the bay. I always supposed it to be the same line, and so did Mr. Shearhouse, who owned the land on the other side of the line; and the mistake was never discovered until defendant commenced clearing up the bay. As soon as the bay was cut down, the mistake appeared, and .it was discovered that the lines were not the same, and would not meet. From that time plaintiff claimed the lower line and the defendant the upper one, and this suit was commenced. I have no doubt the error occurred in re-surveying the land. Instead of running through the hay, the surveyor ran down to the bay on both sides, and called for a straight line through, and having made a mistake in measurement, on the east of the bay, stopped before he was opposite the corner on the other side. Mr. Shear-house was the owner of the McCormick and Edwards tracts at the time I owned Mclnfuss’. The claim by him to the upper line on the east of the bay, as delineated by Mr. Hughs, and the.acquiescence by the owners of Mclnfuss’ were based upon the supposition that the two lines were coincident. It would not have been recognized if it had been known that they were different lines and would not meet. There never was any actual occupation of the disputed territory east of the bay until defendant cleared the land, about four or five years ago. The mistake was then discovered, and this suit commenced. The recognition of the line, on the east of the bay, was based solely on the idea entertained by both parties that it was the prolongation of the line, from the other side of the bay. The defendant is now in possession of the disputed part, and was when this suit commenced. I have no doubt that the lower line delineated on Wilson’s survey is the true one.” <</p> <p>Defendant offered in evidence a plat and grant to McCormick, bounding the Mclnfuss land on the south, and a plat and grant for a tract to Edwards, also bounding Mclnfuss’ on the south, and dated in 1821. Both these plats called for the southern boundary of the Mclnfuss land. She also exhibited a chain of title to herself for three tracts of land, and a survey made by John Moore, in 1801, and one by Z. Powers, in 1832.</p> <p>W. Hughs testified as follows: “I am, by profession, a surveyor. I have surveyed the premises in dispute, and the plat exhibited is a true delineation of the same, to the best of my skill and judgment. Plaintiff was present with his titles when the survey was made, as was also Mr. Keefer, the county surveyor. I commenced running the McCormick tract at the south-eastern corner. I found the east line and the north-east corner, — a stake, as described on Keefer’s plat, which was made by me with his approval, and certified by him. It was an old corner. ' I can’t say it was the original corner. It is on the upper line, and on the little island in the bay. From this corner we found no line running west. There were some blazed trees west of the corner, which I believe were line trees, but cannot swear to them. I measured off the distance on Mclnfuss’ plat, between the cypress station and corner, and made a corner at the proper distance on the westboundary line of Mclnfuss, and then ran my line through the two points, so found. From the stake corner in the island to the end of the line west, on the main line, I found no marks or traces of a line, except the two blazed trees already referred to. There is a plain line east of the bay, which is described on my plat, and coincides with the upper line claimed by defendant. It is an old line from the-stake corner, to the stake corner on the island in the bay. I found one station tree: I think it an old station — as old, probably, as the corner on the west side, referred to by Mr. "Wilson. The pine corner exists on the west side, as stated by the witnesses for plaintiff, and there is a plain line from that corner into the bay, and west of it to a stake, said to be the corner of McOormick tract. I do not believe the pine corner, west of the bay, to be the original corner of Mclnfuss’; because it is too far from the cypress station, and I think the tree is not large enough to have been made a corner in 1771. From the point where the lower line enters the bay to the eastern boundary, I could find nothing which, to me, indicated a line. I have examined the premises since Mr. Wilson surveyed .them. I do not think the marks he refers to are land-marks. I will not swear that they are not: when marks become so old it is almost impossible to identify them.”</p> <p>WilUam Shecorhouse testified as follows : “ I owned the lands covered by McCormick and Edwards’ grants ; sold them to defendant; lived on McCormick tract. I know the pine corner and maple station, on west of the bay, on "Wilson’s line; always considered that the line, and claimed to it. The upper line, on east bay, I always supposed to be tbe line. It was considered, both by me and the owners of the Mclnfuss., as the true line, for twenty years. I claimed to -it and exercised acts of ownership, — such as cutting, wood and getting timber, as I had occasion. There never was any actual occupation, however, between the disputed lines, until defendant cleared up the land and built the fence. I had no fields ’ there, no fence, no house, dug no mine. I only claimed it, and got wood and timber, as I had occasion. My claim was based on the idea, that it was the same line prolonged through tbp bay from the pine corner on the west of the bay, through the maple station. I never had any other idea than that the two lines were one and the same. The 'owners of Mclnfuss acquiesced, I have no doubt, on the same hypothesis. There was no line south of that, on the east of the bay, to my knowledge. I never intended to claim any land except what my plats covered. I thought that line was the boundary of Mclnfuss, and claimed to it.”</p> <p>The case was heard in the Supreme Court on the brief of counsel.</p>

In equity. In Hancock Superior Court. Tried before Judge ¥m. M. Reese. April Term, 1865. Burchet Jenkins, wife of Charles Jenkins, by her next friend, Stephen Jenkins, filed her bill against Isaac S. Whit-ten, returnable to Hancock Superior Court, April Term, 1854. It sought the recovery of a negro girl named Margianna, as the separate property of Mrs. Jenkins, together 'with hire from January 11th, 1853.

In equity. Petition at Chambers. Decided by Judge Warner. May 1866.

<p>[1.] The doctrine in 29 Ga,, page 110 — in Levy vs. Shoekley — re-affirmed.</p> <p>[2.] This was a rule against the sheriff for failing to make the money when ordered to do so by the plaintiff. The facts are as follows: The executions were placed in the hands of the sheriff on the 12lh day of October, 3868, and he waB directed to levy them on certain cotton belonging to the defendant. Part of said cotton was at the depot in Oglethorpe city, ready for shipment; and the defendant has since sent off various lots of said cotton. The sheriff refused to make, the levy, upon the ground that the plaintiff had failed to make the preliminary affidavit prescribed by the original stay-law of I860, and continued, by tbe Act of March 1865, “ during the eonimumiee of the war Held, That the war had ceased before October 12tb, 1865, when the executions were placed in the sheriff’s hands by the plaintiff, with instructions to levy the same; and that failing or refusing to do so, he made himself liable to the plaintiff by rule or action on the case, at his option.</p> <p>[3.] That a court will'always abstain from calling in question the Constitutionality of an Act of the Legislature: Provided There be any other ground in the case upon which to rest their judgment.</p>

<p>Complaint. In Bichmond. Superior Court. Tried before Judge Hook. October Term, 1865.</p> <p>This was an action by Purcell against the Express Company, as a common carrier between Augusta, Ga., -and Wilmington, N. C., for damages for failure to carry safely, and deliver at the latter point, thirty-three bales of cotton.</p> <p>The plaintiff’s evidence was, in substance, as follows:</p> <p>Doughty — Proved the weight and quality of the cotton, and its value at Augusta.</p> <p>Kiddell — Proved the price of cotton at Wilmington.</p> <p>J. B. Wilson — Proved his agency for the defendant and the signing of a receipt by him as such. He testified, on cross-examination, that he did not receive the cotton himself, but made out the receipt from data furnished by the tally-book kept at the railroad by the clerk of defendant; that he knew nothing of the contract or the cotton, or whether the .defendant charged the usual rates or not.</p> <p>The receipt mentioned by the witness was read in evidence. Here is a copy of it:</p> <p>“SoUTHEBN EXPBESS COMPANY,</p> <p>Augusta, May 9th, 1864.</p> <p>Received of E. B. Purcell thirty-three bales of cotton, valued at dollars, and for which amount the charges</p> <p>are made by said company, marked R. R., for James Mullen, Wilmington, FT. C.</p> <p>Which, it is mutually agreed, is to be forward to our agency nearest, or most convenient, to destination only, and then delivered to other parties to complete transportation.</p> <p>It is further agreed, and is part of the consideration of this contract, that the Southern Express Company is not to be held liable, or responsible, for the property herein mentioned, for any loss or damage arising from damages of railroad, ocean, steam, or river navigation, leakage, fire, or from any cause whatever, except the same be proved to have occurred through the fraud or gross negligence of its agents or servants, unless specially insured by it, and so specified in this receipt; which insurance shall constitute the limit of the liability of the Southern Express Company in any event; and if the value of the property above described is not stated by the shipper at time of shipment, and specified in,this receipt, the holder hereof will not demand of the Southern Express Company a sum' exceeding fifty dollars for the loss or detention of, or damage to, each package herein receipted for. FTor shall said company be held responsible for the safety of said property after its arrival at its place of destination. * * (All articles of glass or liquids will be taken at shipper’s risk only, and the shipper agrees that the company shall not be held responsible for any injury or loss by breakage, leakage, or otherwise.)</p> <p>For the Company,</p> <p>Freight $1158.50. Paid. J.'B. Wilson.”</p> <p>Damiste — Was, on the 9th of May, 1864, the conductor in charge of a freight train on the South Carolina Railroad. The cotton carried that day was on a flat car, which had no protection against fire. No Special messenger with it, or other person to protect it, except the hands on the train— no buckets only those belonging to the train. Witness left the car at Branchville on a side track. It was in danger of being burned by sparks from passing engines : the tracks were about ten feet apart. Witness don’t know the fate of the cotton; but a car of cotton was burned “ upon that side” about that time. There was a railroad watchman at Branch-ville. The railroad received cotton, at times, on platform cars.</p> <p>Cole — Superintendent of the Georgia Railroad — testified that he had been superintendent of Railroads for seven years, and that the rule of railroads requires very great care in loading cotton; that it is usually placed in box cars; that when on open platform cars, buckets of water should be carried along to extinguish fire; that when left at stations, it should be under guard; and that when left on side lines it is in danger of fire from passing trains.</p> <p>The defendant’s evidence was, substantially, as follows :</p> <p>Sylvester — Was an employee of defendant, and had been for seven or eight 'years. Defendant had no ■ box cars in May 1864, and leased none — had two open platform ears. About 9th of May 1864, plaintiff had a load of cotton brought on one of these ears to the South Carolina Railroad, from direction of the Georgia Railroad. Witness was sent to Marly, Superintendent of the South Carolina Railroad, to see if he would take it. He refused, unless defendant would send it on' one of these cars, covered with a tarpaulin, and with it a man with buckets to extinguish fire. Witness told this to defendant’s superintendant, in presence of plaintiff and James Mullin. Plaintiff and Mullin agreed that the latter should go along, and comply with Marly’s terms. He did not go, however, until the next morning after the train left with the cotton.</p> <p>Defendant was to receive only half the usual freight; took the cotton as an act of accommodation to plaintiff, he being a railroad man. He gave his due bill for the freight, and has never paid it. Witness thinks war existed at the time — does not know the fact — was not there. Cotton was received at that time only on condition of being at shipper’s risk. Defendant hadt^ never published to that effect that witness knows of. He don’t know that defendant refused to carry cotton except under certain restrictions, or received goods from some and not from others. Preference was never given. Witness was told by an employee of the defendant that the cotton was burned. , The remains of the car came back: witness saw them.</p> <p>Defendant sometimes refused to receive particular sorts of goods, considered especially hazardous, without writing on the receipt “At shipper’s risk.” This indorsement was required only as to goods extra hazardous.</p> <p>The jury returned a verdict for the defendant; and the plaintiff moved for a new trial on the following grounds:</p> <p>1. Because the Court permitted the witness, J. B. Wilson, to testify “ that the written rceipt given by him, for the plaintiff’s cotton, was made from entries on the tally-book, used by defendant in shipping cotton, and that he did not receive the cotton described therein.” Counsel for the plaintiff objecting.</p> <p>2. Because the Court permitted the witness,-Sylvester, to testify that he was present at a conversation between the plaintiff and the managers of the defenfendant, wherein the plaintiff agreed to take the risk of shipment of the cotton on an open car, and to cover the same with a tarpaulin, and send a man along with buckets of water to put out fire;” counsel for plaintiff objecting, and insisting that the same varied and contradicted the written receipt given to the plaintiff at the time.</p> <p>3. Because the Court refused to charge the jury, as requested by plaintiff’s counsel, that “ to prove an express contract, it must appear that the same was fully complied with by both parties, and if the shipper fails — neglects his portion— the carrier has no right to remove the goods, without first giving him noticebut qualified the same, stating that this would be to make the carrier responsible for the neglect of another not under his control.</p> <p>4. Because the Court refused to charge the jury, as requested by the plaintiff’s counsel, that, “ if it appears that any unusual restriction was imposed upon the plaintiff, and that he could not get his goods shipped, except under those restrictions, that the same, under the law ot this State, is utterly void, and the carrier is still liablebut qualified the same, by stating that the carrier was liable, provided these restrictions were imposed after notice, as required by the Act of the General Assembly of 1863.</p> <p>6. Because the Court charged the jury, as requested by defendant’s counsel, “that the receipt of the clerk in this case does not alter the right of the parties under the special agreement, if a special agreement be shown.</p> <p>6. Because the Court charged the jury, upon their return into Court for instructions, that the Act of the General Assembly, of April 18th, 1863, required public notice to be given by the carrier.”</p> <p>Y. Because the Court, on the return of the jury for instructions, charged, “ that the neglect of one party to a special contract with a common carrier to perform his portion of his contract, does not discharge the carrier, who must, nevertheless, proceed to transport the goods to the place of destination.”</p> <p>8. Because the verdict of the jury was contrary to the law and evidence.</p> <p>The Court refused a new. trial; and this- is complained of as error.</p>

Indictment for Assault with intent to Rape. In Butts Superior Court. Motions decided by Judge Speer. September Term, 1865. The plaintiff in error being indicted for the offence of assault with intent to commit a rape, a jury was impanneled and sworn to try him. The Solicitor General opened the case for the State, read the indictment to the jury, and offered to swear the prosecutrix.

Case, etc. In Richmond Superior Court. Tried before Judge Holt. June Term. 1860.

<p>Motion for New Trial. Decided by Judge Clarke. In Terrell Superior Court. November Term,1865.</p> <p>The plaintiffs in error, as a copartnership in the practice of law, sued the defendant, on account, for two hundred dollars, as a fee for their professional services in an action for divorce, brought against the defendant by his wife.</p> <p>At the trial, Mr. Douglass, who had been counsel on the opposite side of the divorce case, testified that the answer of defendant to a rule for temporary alimony, pending the action for divorce, was in the handwriting of Mr. Robinson, one of the plaintiffs, and that defendant’s affidavit to the truth of the answer was also in his handwriting. These papers were produced in evidence, and showed that the answer was signed by Jhe plaintiffs, together with Perkins & Nisbet, as defendant’s attorneys ; and that the affidavit was sworn to and subscribed by the defendant before the clerk of the Court in which the action for divorce was pending.</p> <p>Mr. Douglass testified, further, that the services rendered were worth one hundred and fifty or two hundred dollars, and that the case had terminated in a settlement, at which neither of the plaintiffs was present.</p> <p>The jury found a verdict in favor of the plaintiffs for twenty-five ■ dollars; and they moved the Court for a new trial, on the ground, that the finding was contrary to law and evidence, and strongly and decidedly against the weight of evidence.</p> <p>The Court refused a new trial; and that is alleged as error.</p>

<p>Case. In Richmond Superior Court. Tried before Judge Hook. April Term, 1865.</p> <p>The plaintiff^ husband, William H. Wright, while traveling as a passenger from Augusta to Camak, upon an express freight train of the Georgia Rail Road, was killed in consequence of the car in which he was — the rear car of the train, called the conductor’s car — running off the track and breaking to pieces. The occurrence took place on the 10th of August, 1863, at a curve, near Bel Air, where the rail was slightly worn, and while the train was running at only ordinary speed. After the accident, the track was measured where the run-off commenced, and was found to be about one-fourth of an inch too wide. Only the one car, however, left the track, — the rest of the train passing over safely.</p> <p>Two of the passengers testifiedlhat they themselves could discover no cause for the accident, but that the breakman said on the eveuing of the same day, “ that he had told them that such an accident would take place some day or other, because the axle was two inches too short.” The conductor testified that no such statement was made by him, and that he examined the car before leaving Augusta, and occasionally during stoppages, and found nothing wrong with it,— that it had been running for several years.' The breakman testified that he also examined the car during stoppages, and found nothing the matter with it, and knew of nothing wrong; that he never said an accident would take place, and that the axle was two inches too short; that if anything had been wrong he never would have left Augusta on it. The superintendent of the road testified that the condition, generally, of the road was bad, owing to the difficulty of getting iron, growing out of the exigencies of the war, such as the blockade by sea, the impressment of ships, steamboats, and railroads by government, the presence of large armies in our midst, and the occupation and use of the iron mills by the government. He stated that the road had, in Atlanta, in 1863, for the.purpose of being rolled there for repairing the road, a good deal of iron, and that the rolling mill was seized by the government to make iron for gunboats. Also, that some iron purchased for the Milledgeville Ralilroad, was seized by the government. He stated that every thing that could be done was done by the company to keep the road in the best possible state of repair that surrounding circumstances would admit of; that in 1863, prior to August 10th, about 500,000 tons of iron was obtained, and used wherever thought to be most needed; that the iron on the part of the road where the accident occurred, was the “ U ” rail, upon which, when worn, a run-off is always more probable than upon the “ T ” rail, and that, in a curve, with 'this rail worn, there is great danger of the hindermost car jumping the track.</p> <p>In his argument to the jury, the counsel for plaintiff made the point, that it was the duty of a railroad company to have their passenger cars inspected, previous to each journey, to ascertain their fitness for travel, and if there was a failure in this case,fit was not such diligence as the law requires. As to this point, the presiding Judge certifies that, before he began his charge, he called upon counsel to present their requests in writing, and this was not presented; and that he does not remember to have charged distinctly, or passed directly upon it.</p> <p>Besides others which the Court gave, the plaintiff’s counsel presented in writing the two following requests to charge:</p> <p>1. If the jury believe there was a curve in the road where the injury happened, and that the rail was worn'at that place, it was the duty of the conductor to slacken his speed; and if he ran his train over that portion of the road on the usual running speed, it was not such extraordinary diligence as the law requires, and the plaintiff must recover.</p> <p>2. If the jury believe that the axle of the car was two inches too short, and that the attention of the company was called to it, the jury may presume that this was the cause of the injury.</p> <p>These requests the Court declined to give in charge, but stated to the jury, that if the facts relied upon in the same had been proven, they, as well as all other facts in the case, were to be received and weighed by the jury in determining the question of diligence; that the effect of the testimony was for them to pass upon, and not for the Court to decide.</p> <p>At the request of defendant’s counsel the Court charged:</p> <p>1. That unless an absence of reasonable care and diligence, under all the circumstances of the case, on the part of the defendant, or agents, or employees of defendant, from which the death of the plaintiff’s husband resulted, has been proven, then there can be no recovery against the defendant; that reasonable care and diligence is exercised, if the company has done all that human care and foresight can do.</p> <p>2. That a railroad company is never liable for the death or injury of a passenger, unless there has been an absence of such reasonable care and diligence as has been above defined.</p> <p>3. That, applying these principles to this case, if the jury believe the defendant has exercised all reasonable care and diligence, done what human skill and foresight could do, for the purpose of keeping this road in repair, and yet, by the interference of the Government or its officers, its monopoly and occupation of iron mills, and its seizure of iron which had been provided by the defendant for repairs, it has been prevented from making the repairs which would have precluded this accident, then is not the defendant liable, though the death of the plaintiff’s husband may have resulted from the want of such repairs.</p> <p>é. That if it has been shown to the satisfaction of the jury, that the company and its officers exercised reasonable care and diligence, did what human skill and foresight could do, in the effort to procure iron for the road, and, notwithstanding this, by reason of circumstances in which the country was placed, at the time of this accident, — the blockade by sea, the presence in its midst of large armies, the engrossment, more or less, of ships and steamboats, and railroads, in transporting for the Government, the occupation and use of the iron mills upon which the defendant was compelled to depend for iron, the seizure of iron belonging to the company, intended for repairs, by officers of the Government,— the company has not been able to place this road in a state of efficient repairs, then, though the death of the plaintiff’s husband resulted from the want of such repairs, yet is the defendant not liable in this case.</p> <p>5. That the diligence which is required of a railroad carrying passengers, is not that extraordinary diligence which applies to common carries of merchandise, and holds them bound for every loss or damage which did not result from the act of God or the State’s enemies, but such diligence as is made reasonable by the exercise of due and proper human skill and foresight; and, that if the defendant in this case, has, by its agents, exercised such diligence as this, in the • effort to- keep its road in repair, it is not liable for this accident.</p> <p>The Court’s general charge to the jury, on the question of diligence, was as follows: “ This suit is brought by the plaintiff for the recovery of damages from the defendant for the accidental killing of her husband, by the running off of the cars in 1863, — she alleging that the accident was occasioned by a want of proper diligence on the part of the defendant. The law presumes the want of due diligence; and it is incumbent on the defendant, therefore, to rebut this presumption by proof. The plaintiff is entitled to recover the damages proven, unless the jury are satisfied, from the evidence, that the defendant used all reasonable diligence to prevent accidents, — by which I mean that diligence which a rational, prudent forecast, and a zealous and energetic watchfulness and care would suggest and demand. Taking the definition of eosbi-aordinary diligence which we find in the Code, I charge you, that extraordinary diligence is required at the hands of railroads, to-wit, — ‘ That extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property but they are not bound to that extraordinary diligence which common carriers of goods, wares, and merchandise are bound to, who secure against every thing except the act of God and of the enemies of the country. In determining the question of diligence, you may loot to the condition of the tract and cars, the speed employed at the time and place, and to every other fact or circumstance disclosed by the evidence, shedding any light on the subject.”</p> <p>The jury found for the defendant; and the foregoing charges and refusals to charge are complained of by the plaintiff, as error.</p> <p>There was no motion made below for a new trial.</p>

Statutory Proceeding against Tenant Holding Over. Tried in Eicbmond Superior Court. Before Judge Hook. April Term, 1866. Van Winkle proceeded against Eish, under § 3983, etc., of the Code, to expel him from certain premises as a tenant holding over.

Simple Larceny. In Hall Superior Court. Tried before Judge Bjjtchins. Mkrch Term, 1865. Orr was indicted jointly with one James E. Welch for stealing a horse, the property of James Spencer, on the eleventh of March 1861. At the trial the evidence was as follows: James Spencer — In March 1861, lost one large sorrel horse in Hall county, his property, worth $150 to $200 — before March court 1861. Got up in the morning — his horse was gone.

Rule Nisi against the Sheriff. In Forsyth Superior Oourt. Decided by Judge Irwin. February Term, 1866. The rule Nisi described the fi. fa., and then ricited that the sheriff had collected the^money due thereon, and now had the same in his hands, and refused to pay it over.

<p>Murder. In Butts, Superior Court. Tried before Judge Speer. April, 1865.</p> <p>The regular time for the sitting of Butts Superior Court, in the spring of 1865, was the second Monday in March. On the Saturday previous to that day, an order to adjourn the Court over to the second Monday in April, together with instructions to have summoned a large number of tales jurors, was sent by the Judge to the clerk. The order was received by the clerk on Sunday or Monday, and remained in his office some two or three days before it was entered on the minutes. The clerk did not formally adjourn the Court, deeming it sufficient that the order of the Judge declaring the adjournment was in his office. Pie failed, also, to advertise the adjournment either at the court-house or in a gazette. Nearly all the men in the county were summoned to attend as tales jurors.</p> <p>The Court met at the time appointed, and a bill of indictment was returned by the grand j ury against Wise, the plaintiff in error, for the murder of Joseph Pittman.</p> <p>The case was called for trial; and Wise moved for a continuance, (1.) because Col. Bailey, his leading counsel, was absent; (2.) because he had a material witness absent in the army; (3.) because the Court had not been legally adjourned over, by reason that the clerk had not adjourned it, nor, for several days, recorded the Judge’s order, nor advertised at the court-house and in a public gazette; and (4.) because, in consequence of the absence of leading counsel and the recent, employment of other counsel, defendant had not been able* to prepare for his defence. As to the first ground, it did not; appear that Col. Bail'ey was absent by Providential cause but defendant insisted that he had had no legal notice of the adjournment of the Court. The Court, on account of his absence, postponed the trial for twenty-four hours, giving opportunity to procúre another attorney, Col. Doyal, to assist the counsel in the defence. As to the second ground, it did not appear that any effort had been made to subpoena the absent witness; and, besides, the testimony expected of him related exclusively to the violent conduct of the deceased, on one occasion, towards the witness, the whole of which the State’s counsel proposed to admit if counsel for defendant would reduce it to wilting. At no time, during the trial, did the defendant attempt to avail himself of the proposed admission.</p> <p>The Court refused to continue the case.</p> <p>The defendant urged the alleged illegality of the adjournment as vitiating the indictment; and when the traverse jurors were put upon him, as ground of challenge to the array; and, when evidence was offered, as a bar to the introduction of any evidence: in all which he was overruled by the Court.</p> <p>The material facts shown by the evidence were as follows: On the 9th of August, 1864, the deceased was at the defendant’s house, in Butts county, quite drunk, and the defendant was about equally drunk. They were seen by a Mr. Henderson, who was with them, to take about three drinks each. They seemed friendly. The deceased, after sleeping about an hour, rode off, to go, as he said, to a Mr. Barnes’, and Henderson also left shortly afterwards. This was about twelve or one o’clock in the day. In about two hours after-wards Henderson returned to defendant’s house, found him seated in a chair, and the deceased lying on the floor of the dining room, insensible, and with wounds on his head. These wounds proved fatal on the fourth day afterwards., Two of them were fractures of the skull, each some two inches long and one wide. One of them was inflicted, apparently, with a rough pointed, or three-cornered instrument, and the other with something flat and smooth.</p> <p>A Mr. Gordon went to defendant’s house at about three o’clock in the afternoon of the same day, in response to a request purporting to come from defendant’s wife. He found defendant sitting in the piazza, and sat, down by him. Presently, defendant said to him, “ There is a dead man in the house.” Gordon asked him who it was, and defendant told him to go in and see, saying that he wanted him to do for the man all he could. Gordon then went in and found the deceased lying on the floor of the dining room in his blood. Returning to where defendant was, Gordon asked him what gave rise to the difficulty? He answered that deceased came to his house, and, at his table, abused and insulted him about going to the war, and it was more than he could bear, — that deceased said he would have to go to the war the next day. lie stated that he struck deceased with an axe, (but only one lick) and seemed to be of opinion that deceased had come to carry him to the war. He said that he had killed one man, and would kill another, for there were not enough men in Butts county to take him to the war. Gordon told him if he would refleijt a little he would be sorry for what he had done; to which he replied, after reflection, that he was sorry, and if it were to do over, he would not do it for ten thousand dollars in gold. Defendant ordered a negro to go aftei* two doctors, naming them. Gordon thought him as sensible as he ever saw him, although under the influence of liquor.</p> <p>At the committing trial, the defendant made a statement, in which he said that deceased, in about half an hour after he left the house, returned, and dinner was prepared for him; that they went to the table together, and while deceased was eating, he abused defendant about not going to the war, saying that all men of his age had to go; at which he, defendant, became very angry, and going out and getting an axe, he, without any intention of killing deceased, struck him on the head one lick with the flat part of the axe. He said he went out to get something to strike with, and the first thing he saw was an axe, and he gathered that; that he was intoxicated at the time, and that his memory was not clear as to alL the circumstances. He also said that prior to this occurrence, he and deceased had always been friendly; and that before the blow was given, the deceased cursed and abused him, and ho finally told deceased he must stop it— that he could not stand the like in his own house.</p> <p>The Court, after charging the jury on homicide, its various grades and degrees, on persons capable of committing crimes, and reading to them from the Code on the subject of drunkenness, added on this subject as follows:</p> <p>“Much importance has been attached to the decision of the Supreme Court, in the ease of the State vs. Jones, by the counsel for the defendant, as going to show that drunkenness may be given in evidence for the purpose of grading the offence. I have carefully examined the principles as ruled in that case, and I can find no conflict between that case and the general principles already enunciated, to-wit: ‘ Drunkenness shall not be an excuse for crime.’ In crimes or offences committed by persons under the influence of voluntary intoxication, they stand upon the same platform as sober men. The law does not intend this intoxication, voluntary induced, shall be a shield to cover, nor a sword to pierce them. It will require the same mental ingredients in a drunken man, to make up his guilt, that it does in one sober • no more, no less. Drunkenness shall not, then, excuse, but it may be proved, as any other independent fact, to show him guiltless under the view thus presented. I give you in charge, as requested by the State’s counsel, the following principles of law, as correct and applicable:</p> <p>“ ‘ All men are presumed to intend the natural and proximate consequences of their action; and when a man kills another by the use of means appropriate to that end, he is presumed, drunk or sober, to have intended that end. If a party be deprived of reason by the act of God, such as occurs in the case of lunacy or idiocy or permanent insanity, he is not responsible; but this exception does not apply when he voluntarily, and of his own accord, induces temporary mental alienation by intoxicating drink.’ ”</p> <p>The jury found the defendant guilty of murder, recommending that he be imprisoned for life. '</p> <p>Thereupon, the defendant moved for .a new trial, because the Court erred in refusing a continuance; in holding the adjournment of the Court valid; and in the charge to the j ury,— especially in charging, as requested by the State’s counsel, that “ all men are presumed to intend the natural and proximate consequences of their action, and when a man Mils another by the use of means appropriate to that end, he is presumed, drunk or sober, to have intended that end ; if a party be deprived of reason by the act of God, such as occurs in the case of lunacy or idiocy or permanent insanity, he is not responsible; but this exception does not apply when he voluntarily, and of his own accord, induces temporary mental alienation by intoxicating drink.’ ”</p> <p>The Court overruled the motion; and this is complained of as error.</p>

Complaint. In Bibb Superior Court. Tried before Judge Cole. May Term, 1866. ’ This was a double bill of exceptions, each party complaining of some of the rulings of the Court. The action below was by Freeman against Bass, on a promissory note for $28,200, dated Arkansas, Chicot county, 5th of November, 1858, and due January 1st, 1862, with interest from January 1st, 1859, at the rate of eight per cent.

In Equity. Injunction. June 1861. In Lee Superior Court. Motion to dissolve Decided by Judge Allen. At Chambers.

<p>The judgment of the Circuit Court granting a new trial will not be disturbed, unless his discretion has been flagrantly abused. Much less will this Court interfere when their opinion coincides with that of the Judge below, as regards the merits of the case.</p>

<p>An attorney cannot collect hie fee by ruling bis client, though the latter may have possessed himself of the entire fund recovered by the litigation, in respect to which the services were rendered.</p>

In Spalding Superior Court. Decided by Judge Speer. Kovember Term, 1865.

Possessory Warrant. Decided by Judge Clark. At Chambers. September 1865. This was a possessory warrant for fifty-two bales of cotton. The judge decided that the defendant’s possession was legal, and that the plaintiff was not entitled to recover. That decision is the error here complained of. The plaintiff’s evidence was as follows.

<p>In Equity. In Bibb Superior Court. Motion to dissolve Injunction and dismiss Bill. Decided bjr Judge Cole. January, 1866.</p> <p>This was a bill filed, in December, 1865, by Ware against Bass, to enforce the vendor’s equitable lien for the purchase money of land, and in the meantime to restrain the vendee by injunction from selling the land.</p> <p>The facts presented by the bill and answer, which need not be stated in detail, gave rise to two general questions: 1. Whether section 1988 of the Code, abolishing the vendor’s lien, is operative upon the present case, the sale and conveyance here having been made on the 20th of January, 1857, long prior to the adoption of the Code', and, 2. Whether the covenant of warranty in a certain bill of sale was broken by the abolition of slavery, so as to discharge the purchaser of the slaves from his undertaking to pay for them, or, so as to entitlehimtohave payments already made, applied, now, exclusively upon the land purchased at the same time and by the same contract.</p> <p>The bill of sale was as follows :</p> <p>Georgia, Macon Countt.</p> <p>Received of Nathan Bass, forty-four thousand dollars, in payment for Jhe following negroes, (deseribmg th&m) all of which negroes I do hereby warrant sound and healthy, and to be slaves for life. And I do, by these presents, for myself, heirs, assigns, administrators, and executors, warrant and forever defend the right and title of said named slaves unto him the said Nathan Bass, his heirs, assigns, administrators, and executors, for their own proper use, benefit, and behoof, against the claim or claims of myself and all other persons whatever. , ^</p> <p>Given under my hand and seal, this 20th day of January, 1857.</p> <p>Shadraoh Ware. [l. s.]</p>

<p>Motion to Reinstate. Decided by Judge Clarke. In Miller Superior Court. April Term, 1866.</p> <p>Before the late war an action was brought by the plaintiff in error against the defendants in error, Yason & Davis being the attorneys of record for the plaintiff. At April term, 1865, the case was called in its order, and on motion of defendants’ counsel, dismissed, there being no appearance for the plaintiff. At April term, 1866, Davis, one of the firm of Yason & Davis, moved the Court to vacate the order of dismissal and re-instate the case, showing to the Court by his statement, (which was heard, by consent, in lieu of an affidavit) that both himself and his partner, Yason, were officers in the then Government of the Confederate States, and were unavoidably absent from the term of the Court at which the order was granted ; that they were both residents of Albany, Ga.; that the country was then in a state of great excitement, owing to the military situation ; that the presiding Judge of the Circuit in which they lived did not, in consequence of this excitement and the absence of almost the whole male population of the State from sixteen to sixty years of age, in the military service, pretend to hold Court, and it was the general understanding that no litigated cases would be tried in the Courts; and that he and his partner were unapprised that any such order had been taken until the day of making this motion.</p> <p>The Court overruled the motion and refused to re-instate the case. This is the error complained of.</p> <p>The presiding Judge appended to the bill of exceptions, the following statement, in substance:</p> <p>“It was stated by Mr. Davis that his partner, Yason, was, at the time of holding Court in April, 1865, attending, in a professional character, some Court in the South-western circuit, and but for his engagements there, would have appeared in this case. It was not represented that his holding the office of depository was compulsory, nor that it did, in fact, occupy his time during the Court. I never authorized in this circuit any understanding that litigated cases would not be disposed of during the war. On the contrary, my practice throughout the war, as Col. Vason is aware, was to call all cases, and at the instance of either party, to require a showing before allowing a continuance. At some Courts, the regular calling of the dockets, was, by unanimous request of the bar présent, dispensed with; but in no case was it done, except upon express and unanimous consent and request. More or less litigation was disposed of at every term when Courts did not wholly fail, as, for Providential cause, they did once or twice in the circuit. Whenever, on the call of a case, it appeared that the only counsel on either side was in the military service, the case was continued; but when competent counsel were known to be out of the military service and not attending the Court, and no good reason was given for their absence, I permitted the party represented to proceed if he demanded the right. While 1 did not encourage any illiberality in practice, I did not arbitrarily assume to enforce liberality against the legal rights of parties.</p> <p>“ At the regular term, on the second Monday in April, 1865, this case was called; defendant’s counsel announced ready, and demanded to proceed. Plaintiff did not appear, either in person or by counsel. Defendant’s counsel moved to dismiss for want of prosecution. The motion was sustained; and a formal judgment to that effect rendered. When asked to set aside that judgment, I did not believe myself authorized to do so without some showing that it was illegal when rendered, not knowing of any ground for setting aside a judgment but illegality therein.,</p> <p>“ The statement of counsel for the movant as presented in the bill of exceptions must be taken with his additional statements as above set out. These latter formed a part of his showing,” etc.</p>

Possessory Warrant. Decided by Judge Woreill. At Chambers. November, 1863. This was a possessory warrant for some wheat, sued out by the defendant in error.

Petition and Rule Nisi. In Richmond Superior Court, on appeal from the Court of Ordinary. Decision by Judge ¥m. M. Reese. April Term, 1866. George Schley died in February 1866, being at the time testamentary guardian of several of the children of Charles Cunningham, deceased, among them the plaintiff in error ; and leaving the defendants in error executors of his last will and testament.

<p>In Equity. In Bichmond Superior Court. Demurrer decided by Judge Hook. October Term, 1864.</p> <p>Edward Bowdre, by his last will and testament made on 23d April, 1850, gave his grandson, the complainant, six negros, describing them by name, and $5,000 in cash, to be delivered over to him when he had arrived at the age of twenty-one years; also, directed that he should be educated out of testator’s general estate. A similar bequest of negroes and money was made to another grandson of the testator ; and then the will declared that if either of the grandsons died before arriving at twenty-one years of age, the bequest to him should go to the survivor ; and if both died before that age, the whole should revert to tbe general estate.</p> <p>By a codicil made the next day, the testator directed that all the property disposed of by his will should be kept together and not be divided unless his wife should consent to the division of the same.</p> <p>Testator died in 1853. The complainant received education and support, or maintenance, out of the testator’s estate until he was of age; and then the negroes and the $5,000 in cash were turned over to him, but nothing for hire or interest.</p> <p>He brought his bill to recover these, claiming that both ran in his favor from the death of the testator; that is, hire for the negroes, and interest on the money-legacy.</p> <p>The defendant demurred to the bill; and the Court sustained the demurrer as to the interest, but overruled it as to the hire.</p> <p>Both parties excepted, the complainant to the decision touching interest, and 'the defendant to that touching hire.</p>

Bu'le against Sheriff. Decided by Judge Clark. In Baker Superior Court. November Term, 1865.

Misdemeanor. In Newton Superior Court. Tried before Judge Floyd. March Term, 1864. The plaintiff in error was tried on an indictment for causing whisky, etc., to be made by distillation, illegally, from corn and other grain. The evidence was as follows: James M. McDonald — About November last, (1864) defendant sent about four bushels of corn meal to witness’s distillery, in this county.

<p>[1.] While the lea loci, as a general rule, governs the construction of contracts, questions of marriage, of legitimacy, and the rights of succession to property, it is subject, in practice, to the great controlling idea, that it will not be enforced,,by comity, if it involves anything immoral, contrary to general policy, or violative of the conscience of the State called on to glve*it effect.</p> <p>[2.] In the absence of a direct judicial decision by the Courts of North Carolina, as a precedent, a statute of that State will not be construed here as allowihg of no mouse for a second marriage if the first husband be alive, (though reported and believed to be dead) and as bastardizing the issue of such marriage by necessary consoquence.</p> <p>[3.] A marriage took place in North. Carolina in 1818. The following year the husband deserted the wife, and went to Tennessee, a distance of eight hundred miles, where he remained, unheard of, lor nineteen years and a half. During his absence, to wit, in 1828, the wife, still in North Carolina, married another man. This second marriage was never dissolved nor declared null by the judgment of any Court; but cohabitation under it continued until one of the parties to it died: Held, That, upon common law principles, which are presunaed to prevail in North Carolina as in Georgia, the second marriage was not absolutely void, nor the issue of the same illegitimate; but that the issue were legitimate, and capable, under the laws of Georgia, of inheriting from their half brother, a son of their father by a former marriage.</p>

<p>A widow who has drawn her snpportSfrom her husband’s estate during the year succeeding his death, though it was not formally set apart to her, and though she rendered valuable services to the estate throughout the same period, is entitled to no further allowance by way of a year’s support. This she has received, and must obtain compensation, if she be entitled to it, in some other way.</p>

<p>In July, 1862, an engineer, while employed on the W. & A. R. R., was hilled by the colliding of two trains; jn March, 1863, his widow brought an action against the road to recover damages for the same: Mid, That under the provisions of the Act of 18th April, 1863, the action is maintainable.</p>

Complaint. In Lincoln Superior Court. Tried before Judge W. M. Reese. November Adjourned Term, 1865. This was an action by the plaintiff in error against the defendant on the following receipt: “ Received of S. Stewart, for J. W. Ellington, one box of tobacco, 101 lbs., a 35 cents per pound ; and 2 do., 202 lbs., a 28 cts. per pound; and 3 boxes, 303 lbs., a 18 cets per pound — to be paid for, or returned when called for if not sold. Deer. 11, 1859.

<p>Motion to Dismiss Levy. Decided by Judge OLA~E. In stewart Superior Oourt. April Term, 186g.</p> <p>A ±1. fa. bearing date July 2~th, 18~1, in favor of De-Launay against Hill, was, on the 2d of ~ovember, 18G5, levied by the sheriff upon certain property, real and personal, a part of which was the plantation upon which Hill then resided. The plantation was so described in the levy, as entered by the sheriff on the fi. fa.</p> <p>At April Term, 1866, of Stewart Superior Court, TIill, the defendant in, fi. fa., moved to dismiss the levy on the ground that the same was made on the 2d of November, 1865, it not appearing to the Court, on the face of the proceedings, that defendant resided out of the State, or was absconding or had absconded, or was removing or about to remove his property without the limits of the State or any county thei’eof.</p> <p>The Court refused to entertain the motion ; but dismissed the same on the ground that an affidavit of illegality was the only remedy.</p>

<p>In Equity. In Richmond Superior Court. Motion for New Trial. Decided by Judge Hook. April Term, 1866.</p> <p>Edmond Bowdrie, by his will dated in the year 1850, after giving off certain legacies to his grandsons, gave the residue of his estate, real and personal, in equal shares, to his wife and daughter. His daughter was the wife of John H. Trippe; and the title of her share was vested in him, in trust, for her sole and separate use. The testator directed that his property should all be kept together, unless his wife should consent to a division.</p> <p>Of this will John H. Trippe was the qualified executor.</p> <p>Martha Bowdrie, widow of Edmond Bowdrie, by her will, dated in the year 1853, gave off certain specific legacies, and then bequeathed the whole residue of her estate to trustees, in trust for the sole and separate use of her daughter, Mrs. Trippe, during her life, with remainder to her children.</p> <p>Letters of administration on this estate, with the will annexed, were granted to John H. Trippe; so that he was the legal representative of both Edmond Bowdrie and Martha Bowdrie, and so continued until September, 1858, when, having been removed by the Court of Ordinary, he was succeeded in both trusts by Dr. Jones, the plaintiff in error, as administrator de bonis non. 0</p> <p>Against Jones as such administrator, Reese & Linton filed their bill in equity, to collect a book account for advances and supplies furnished to Trippe, as was alleged, for the use of these estates, from the year 1855, to September, 1858. The complainants were factors and commission merchants in Augusta.</p> <p>The essential allegations in the bill were, that the account, although charged on the books of complainants to Trippe individually, was, as to the larger part of it, really made with him as executor and administrator of these estates; that the estates got the benefit; and that of the portion of the account chargable to them, the sum of $5,758.90 remained unpaid.</p> <p>The answer disclaimed all knowledge of the true amount or purposes of the account, but averred the defendant’s belief that much of it now claimed to have been made for the estates, was for money expended by Trippe upon his saw mill. It set up a payment 'by Dr. Jones of $1,280.93, for advances to Mrs. Trippe and family and on purchases made for the use of the plantation in the year 1858, and averred that this amount was all that the complainants claimed as due them for such advances in that year, and it insisted that defendant ought to pay nothing more.</p> <p>The account itself, as annexed to the complaint’s bill, contained a credit of $671.75 for cash received from Dr. Jones.</p> <p>The substance of the material evidence adduced at the trial, besides the two wills above mentioned, was as follows: The books of complainants, and in connection with these, the testimony of their clerk, who stated that for convenience, supplies for the plantations of Edward and Martha Bowdrie, which Trippe represented, were charged in his name, and that the money and supplies were furnished on the understanding with Trippe that cotton from these plantations was to be sent to complainants. Witness was not certain that none of the money and supplies went to Trippe individually. Many of the supplies were sent to Saw Dust, near which were these plantations and Trippe’s steam saw mill.</p> <p>Robert P. Trippe testified that, at an interview between John H. Trippe, Dr. Jones, and several others, complainants not being present in person or by counsel, the account of complainants, as well as the vouchors of John II. Trippe, was examined, and it was agreed that Dr. Jones would pay as much as $3,500 on this account. Witness thinks Dr. Jones had no information as to the correctness of the account, except what was given him by John EL Trippe.</p> <p>John K. Jackson testified that, the agreement at this interview was, that Dr. Jones, on condition that John II. Trippe would convey certain property in trust for Mrs. Trippe, would make no further resistance to a decree in this case, as to any part of the account chargeable to the estates, after legal proof of the same; and that John II. Trippe failed to comply with the condition.</p> <p>At the request of counsel for defendant in the bill, the Court charged the jury that the complainants could not recover unless they had shown that the balance of account claimed by them was furnished for the benefit of the estates, and not on John EL Trippe’s individual account; that the money and supplies were furnished to Trippe whilst he was acting as executor and administrator, was not, by itself, sufficient evidence that they were furnished for the use of the estates, if, at the same time, under the same head of account, the complainants were furnishing money and supplies to Trippe individually; but the complainants must satisfy the jury by other evidence that the supplies now in question were furnished for the benefit of these estates.</p> <p>Counsel for defendant requested the Court to charge further, that the accounts with the two estates must be kept separate, and that, to recover against Dr. Jones as representing both estates, proof must have been submitted, showing what proportion of money and supplies was furnished to one and what to the other, and the decree must go accordingly ; which charge the Court gave after adding to it the words, “ unless it is your opinion that the property was identical under both wills, and there was no separation or division of it.”</p> <p>The jury decreed for the complainants $3,568 90, with interest; and the defendant moved for a new trial on these grounds:</p> <p>1. The verdict was contray to evidence and the principles of justice and equity.</p> <p>2. The verdict was contrary to the charge of the Court.</p> <p>3. The Court erred in adding to the charge as above set forth.</p> <p>The Court refused a new trial, and this decision is complained of as erroneous.</p>

<p>Case for Words. In Oglethorpe Superior Court. Demurrer decided by Judge Thomas. April Term, 1861.</p> <p>The declaration alleged no special damage, and the words charged were, “ Old Jimmy Higgins (meaning the plaintiff) has sworn to a damned lie.” They were spoken on the 16th of December, 1859, before which time the processioners of the 230th District G. M, of Oglethorpe county, had, by virtue of their authority to procession every person’s land in said district, come forward (with the county surveyor to assist) for the purpose of ascertaining and determining the true line between James Y. Drake and Randal J. Arnold, touching which line a dispute had arisen between said parties, and the plaintiff had been examined on oath and given his evidence as a witness before said processioners.</p> <p>The defendant demurred to the declaration on the ground that the words were not actionable per se, and there being no special damage alleged, that there was no cause of action set forth.</p> <p>The Court overruled the demurrer, and the defendant complains of this as error.</p>

Debt. In Newton Superior Court. Tried before Judge Speer. March Term, 1866. In Newton luferior Court,- to June Term, 1860, the plaintiff brought an action against the defendant, on a note for over six hundred dollars, purporting to be made by her testator in the year 1857. At the next term, defendant confessed judgment and appealed to the Superior Court.

In Equity. In Harris Superior Court. Demurrer decided by Judge Worrill. October Term, 1861. . This was a bill against McGehee to compel him to turn over the corpus of the trust property, and to account for hire. It was filed February 7th, 1861. Wise was made a co-defendant, only because Mrs. Wise desired her share settled upon herself and children, free from his marital rights. Such was one of the prayers of the bill.

<p>Garnishment. In Stewart Superior Court. Decided by-Judge Clarke. April Term, 1866.</p> <p>At the instance of DeLaunay, as plaintiff in judgment, a summons of garnishment issued to, and was served upon ' Gresham, returnable to Stewart Superior Court. The affidavit which was the basis of the garnishment, was sworn to and subscribed on the 24th of March, 1866, before a justice of the Inferior Court.</p> <p>The garnishee answered; and upon his answer, the Court passed an order requiring him to deliver up to the sheriff certain cotton described in the answer. The passage of this order is the error assigned in the bill of exceptions.</p>

In Equity. In Bibb Superior Court. Bill for Discovery and Relief. Tried before Judge Loohkane. May Term, 1863.

<p>Misdemeanor. Tried before Judge Walker. In Murray Superior Court. October Term, 1863.</p> <p>The plaintiff in error was put upon trial in the Court below, for illegal distillation.</p> <p>Wm. McDaniel testified that he knew nothing in relation to the facts of this case ; that whisky could, in his opinion, be made of millet, or sugar cane seed, without any mixture of corn or other grain; that it could, he believed, be made of irish potatoes and other substances; and that the beer from millet, or sugar cane seed, was of a reddish color.</p> <p>John Hutson testified, that about the time laid in the indictment he was at a still-house in Murray Co., when.he saw the prisoner, who told him that the establishment was his, and that he was running it; that he saw reddish beer there; that he saw and drank some whisky, but did not know who made it; that he did not see the prisoner engaged in stilling; that he saw no grain or malt; that he saw one John Childers there, who was, he thought, engaged in stilling whisky, but witness did not know of what material he was making it, nor was he certain that he was making whisky. Upon cross examination, the witness testified that he could not tell what the whisky which he drank was made of; that he did not see prisoner engaged in any manner in stilling, and did not see any grain or malt of any kind at the still-house.</p> <p>The Court charged the jury as 'follows:</p> <p>“ Did the defendant distil or cause to be distilled spirituous liquors ? That is the first question ; and you will determine it from the evidence. If he did distil or cause to be distilled liquor at all, did he distil it or cause it to be distilled from any grain ? If it has been shown by the proof that he distilled or caused to be distilled spirituous liquors from millet, or sugar cane seed, as we usually call it, he would be guilty ; for sugar cane seed is grain under the law, and'no one is authorized to distil without a license from the Governor as provided for by law.” To this charge, the prisoner excepted; and after a verdict of guilty, he moved for a new trial on the ground of error in the charge, and because the verdict was contrary to law and evidence, and strongly and decidedly against the weight of evidence.</p> <p>The Court refused a new trial; and that refusal, as well as the charge of the Court, is assigned as error.</p>

Caveat to Will. Motion by Oaveators for New Trial. Decided by Judge A. Reese. April Adjourned Term, Warren Superior Court, 1866. Pierce Bailey made his will in September, 1861, and died in September, 1868. The will was proved in common form in October 1863, and being afterwards offered for probate in solemn form was caveated by plaintiffs in error, on tbe ground that it was in conflict with tbe anti-manumission laws of Georgia, and therefore void.

<p>Assumpsit. In the City .'Court of Augusta. Tried before Judge Snead. May Term, 1866.</p> <p>This was an action by Gerard H. McLaughlin and Joseph O. Matthewson, as copartners, using the name and style of G. H. McLaughlin & Co., against Michael O’Dowd, on a promissory note.</p> <p>The defendant pleaded:</p> <p>1. Non-assumpsit.</p> <p>2. That the note was made in reference to, and intended to be paid in Treasury notes of the Confederate States.</p> <p>3. That it was payable in that currency only, and that plaintiffs concealed the note, and neglected and refused to receive payment in such currency, whereby defendant lost the amount thereof in Treasury notes of the Confederate States, by reason of the same becoming valueless on his hands.</p> <p>4. That the term “ dollars,” as used in the note, did not mean specie or “Greenbacks,” but treasury notes of the Confederate States.</p> <p>5. That the note was given for tobacco of very inferior quality, not worth the price agreed to be given for it in treasury notes of the Confederate States at the time of purchase, but only worth such price after the currency had become greatly depreciated, and that to obtain such price the defendant was obliged to hold the tobacco until the depreciation had taken place.</p> <p>6. Set off, as follows:</p> <p>1862. July 21. To 10 lbs. spice......@ 50.............. 5.00</p> <p>“ “ “ 20 “ pepper @ 1.50.............. 30.00</p> <p>“ “ “ 4J“ cinnamon.. “ 90.............. 405</p> <p>“ “ “ Bag................................... SO</p> <p>Aug. 2. “ 1 Box tobacco, 100 @ 1.00............. 100.00</p> <p>“ “ “ 1 Half box “ 50“ 90.............. 45.00</p> <p>Oct. 1. “ 11 Sacks rye, 1072 lbs. 19 1-7 bus. ©5.50. 105.29</p> <p>Hot. 7. “ 1 Horse.............................. 150.00</p> <p>Deer. 9. “ 17 Boxes tallow candles, 510 lbs. ©1.15. 586.50</p> <p>“ “ “ 2 “ “ “ 40 each, 80 lbs.</p> <p>[@ 1.15........ 92.00</p> <p>“ “ “ 2 “ “ “ 40 each, 80 lbs.</p> <p>[@ 1.15........ 92.00</p> <p>“ 12' “ 60 “ “ “ 1252 lbs. © 1.15 1,439.80</p> <p>1863. Jany. 6. “ 24 Sacks com, 51 35-100 bus. @ 1.75 .... 90.34</p> <p>“ , “ ‘‘ Drayage............................... 1.20</p> <p>“ 13. “ 10 Sacks com, 18 22-100 bus. @1.75...... 32.19</p> <p>“ “ “ Drayage............................... 60</p> <p>March. 2. “ 10 Sacks corn, 19 19-100 bus. “ 2.00..... 38.66</p> <p>“ 10. “ 10 Boxes Diamond Tobacco, 963 lbs.</p> <p>@1.25................................ 1,203.75</p> <p>“ “ “ 19 Boxes Swan Tobacco, 1969 lbs. ©1.10 2,165.90</p> <p>“ “ “ 9 Boxes B Tobacco,,902 lbs. @ 1.40..... 1,262.80</p> <p>1864. Deer. 23. “ 2 Bbls. sugar......431 “ “ 8.00...... 3,448.00</p> <p>$10,893.38</p> <p>At the trial, the evidence introduced was as follows:</p> <p>, 1</p> <p> Evidence for PlaimMff. </p> <p>1. The note sued on, of which the following is a copy:</p> <p>$10,000. Augusta, August 22,1862.</p> <p>Forty days after date I promise to pay to the order of G. H. McLaughlin & Go., ten thousand dollars, at either bank in this city. Yalue received.</p> <p>M. O’DOWD.</p> <p>2. Barber’s tables, admitted by consent to show the value of Confederate money during the war, of which the following is a copy:</p> <p>CONFEDERATE MONEY.</p> <p>As a matter of curiosity, we give the following table, showing the prices of Confederate currency in Augusta, Georgia, at various times from, the beginning to the close of the war. The record was kept by a broker doing business in that city.</p> <p>1861. Gold Premium. For $1 in Gold.</p> <p>January 1. .. 5 December 15.............$21 00</p> <p>July 1...... 10 1864.</p> <p>October 1____ 12 January 1................. 21 00</p> <p>October 15... 15 January 15..............'... 20 00</p> <p>December 1.. 20 February 1... .•........... 20 00</p> <p>December 15. 80 February 15............... 21 00</p> <p>1862. March 1 .......... 26 00</p> <p>January 1..... .......... 20 March 15.................. 20 09</p> <p>January 15... .......... 20 April 1.................... 19 00</p> <p>February 1... ........... 25 April 15................... 21 00</p> <p>February 15.. .......... 40 May 1................... 20 00</p> <p>March 1...... .......... 50 May 15................... 18 00</p> <p>March .15..... .......... 60 June 1 to July 15.......... 18 00</p> <p>April 1....... .......... 75 July 15 to August 15....... 20 00</p> <p>April 15..... .......... 85 August 15......i.......... 22 00</p> <p>May 1........ .......... 90 September 1.............. 20 50</p> <p>May 15....... .......... 95 September 15.............. 22 50</p> <p>June 1....... ......... 95 October 1................. 27 00</p> <p>For $1 in Gold. October 15................ 25 00</p> <p>June 15................... $2 00 November 1............... 26 00</p> <p>August 1................. 2 20 November 15.............. 28 00</p> <p>September 1............... 2 50 December 1.............. 32 00</p> <p>November 1.............. 3 00 December 15.............. 35 00</p> <p>1863. December 31.............. 50 00</p> <p>February 1................ 3 10 1865.</p> <p>March 1.................. 3 25 January 1................. 60 00</p> <p>March 15................. 5 00 January 15................ 65 00</p> <p>May 15 ................... 6 00 February 1................ 50 00</p> <p>June 1.................... 6 50 February 15............... 46 00</p> <p>June 15................... 7 50 March 1................... 55 00</p> <p>July 1.................... 8 00 March 15................. 57 00</p> <p>July 15................... 10 00 April 1.................... 70 00</p> <p>August 1.................. 14 00 April 15................... 80 00</p> <p>August 15................. 15 00 April 20................... 100 00</p> <p>September 1............... 14 00 April 26................... 200 00</p> <p>September 15.............. 14 00 April 27................... 300 00</p> <p>October 1................. 13 00 April 28................... 500 00</p> <p>October 15 ............... 12 50 April 29................... 800 00</p> <p>November 1............... 13 00 April 30.................1,000 00</p> <p>November 15............. 15 50 Mayl....................1,200 00</p> <p>December 1............... 20 00 Correct — J. C. Barber.</p> <p> Evidence for Defendant. </p> <p>1st. The admission that the goods set forth in the plea of set off, were sold to plaintiffs by defendant at the. time, and for the price stated in Confederate currency then prevailing.</p> <p>2. Jerry Deed testified as follows: In July, 1862, was in defendant’s employ. Continued with him three years. Defendant bought lot of tobacco from plaintiffs, and recognize the bill shown. Tobacco was of inferior quality, and funky within ten days after received in store. It remained on hand-a long time. Defendant shipped large quantity to Charleston. It was offered for sale at seventy-five and sixty-five cents for long time in Augusta; never could get cost for it. In the meantime, money depreciated : if tobacco had been good it would have advanced in price. Was not present at purchase or settlement. Defendant was a large.dealer in tobacco about that time. Made large sums of money. FTo complaint was ever made of the quality of the tobacco purchased from plaintiffs, nor reclamation made, to witness’s knowledge. In witness’s opinion, tobacco was worth only seventy cents per pound at the time of purchase.</p> <p>3. The original bill of the purchase of tobacco from G. H. McLaughlin & Co., with the note paid by O’Dowd, copies of which are annexed.</p> <p>4. Sydney Simmons, a juror, testified as follows: Was paying-teller of Georgia Railroad Bank in 1862, 1863, 1864, and 1865. Confederate money was in general use during these years. Don’t recognize note offered by defendant’s counsel. The stamp of payment was made by Mr. Jones, receiving-teller of the bank.</p> <p>The note sued on and offered by plaintiff’s attorney was put in the said bank for collection, and not paid.</p> <p>5. O. G-. Butler — Was present at conversation between Mathewson and O’Dowd after surrender of the Confederate forces. It was at O’Dowd’s door, about one year ago. Mathewson came in with a statement. O’Dowd said he did not-owe him; said his account was more than Mathewson’s. Mathewson’s statement was reduced to specie basis, and he claimed that O’Dowd owed him. O’Dowd said he had gone to pay note, and Mathewson said the note was mislaid or lost. Mathewson did not deny this statement of O’Dowd.</p> <p>Mathewson went to O’Dowd, claiming that O’Dowd owed him. Don’t know that Mathewson expressed himself satisfied. Don’t know that he heard O’Dowd’s remark about going to pay the note. Supposed Mathewson heard the remark, as witness heard it distinctly.</p> <p>Augusta, August 2d, 1862.</p> <p> Mr. M. O'Dowd, </p> <p>Bought of G. H. McLaughlin & Oo.</p> <p>68f Boxes “ Emma Hughes,” [email protected]</p> <p>132 Boxes “ W. M. Russell,” 6823</p> <p>35f Boxes “ “ 3692</p> <p>214 Boxes “ Tea Brand,” [email protected]</p> <p>$37,700.50</p> <p>Or. By cash, 10,000.00</p> <p>27,700.50</p> <p>By account sales tobacco,....................... 3,309.52</p> <p>24,390.98</p> <p>Interest from July 22d to date, 53 days,.......... 107.39</p> <p>“ “ “ “ 73 days,.......... 145.75</p> <p>24,644.12</p> <p>By two notes at 20 and 40 days, August 22d,..... 20,000.00</p> <p>4,044.12</p> <p>Received payment Aug. 22,1862.</p> <p>G. H. McLaughlin & Co., per J. Wadan.</p> <p>$10,000. Augusta, August 22d, 1862.</p> <p>Twenty days after date, I promise to pay to the order of G. H. McLaughlin & Oo., ten thousand dollars, at either' Bank in this city. Yalue received. M. O’Dowd.</p> <p>Marked on the face — “ G. R. R. & B. Co : Paid, R. T. Augusta.”</p> <p>The jury, composed, as the record states, mostly of merchants familiar with such transactions, found for the defendant three dollars and fifty-two cents. And the plaintiffs moved for a new trial on the following grounds:</p> <p>1. Because the verdict was contrary to the charge of the Court, “ that the mutual demands of the plaintiffs and the defendant must be reduced to some well-known standard of value which would be equally fair to both parties ; and that if the value of specie in Confederate money be such a standard, and the jury adopt it, then a verdict must be for that party to whom a balance may be due.”</p> <p>2. Because the verdict was contrary to the charge, “ that if in mercantile dealings between merchants in the city of Augusta during the years 1862, 1863, 1864, and 1865, the customary standard of determining the relative value of articles of merchandize, was the price of specie, the jury should adopt the same as the standard in this cáse.”</p> <p>3. Because the verdict was contrary to the charge, “ that no reclamation as to the character of goods sold can be allowed, unless made within a reasonable time; and that if nearly four years elapsed before such is made, and in the interim frequent transactions and payments are had between the parties, the law presumes that the same did not exist.”</p> <p>4. Because the verdict was contrary to the charge, “ that a good standard of value was the price of specie, and that the demands of both parties should be reduced' to that standard, or some other equally fair for arriving at the principles of justice and equity between thn parties, and a balance struck in favor of the party entitled thereto.”</p> <p>5. Because the verdict was contrary to the weight of evidence and the principles of justice and equity.</p> <p>6. Because the verdict was contrary to the principles of equity between the parties.</p> <p>The Court refused a new trial; and that, js complained of as error.</p> <p>Millek, for plaintiffs in error.</p> <p>Waltou, for defendant.</p>

Ejectment. In Glynn Superior Court. Tried before Judge Sessions, June, 1860, and Motion for New Trial decided at October Term, 1860. This action was by tbe defendants in error against tbe plaintiffs in error. The plaintiffs below claimed title through James Dunwoody, of McIntosh county, as one of the heirs at law of James Dunwoody, of Liberty county, the alleged grantee from the State.

In Equity. In solve Injunction. 1866. Webster Superior Court. Motion to dis-Decided by Judge Claeke. January, Upon a bill filed by tbe plaintiff against tbe defendants, Judge Clarke, on the 3d of January, 1866, granted an injunction against the latter, to restrain them from taking possession of a certain mill, situate in Webster county, or interfering with the plaintiff in the use and enj oyment of the same.

Complaint. In Lincoln Superior Court. Motion to strike Plea. Decided by Judge W. M. Reese. April Term, 1865. The action was brought by the defendant in error against the plaintiff in error, to recover the principal and interest of a promissory note,' and “ the further sum of twenty-five dollars for clothing, not furnished according to said note.” The note bore date January 28th, 1862, and was payable on or before the 25th of December thereafter, to Jane Stovall or bearer.

<p>[1.] A decision of this Court, when in point, is a/u&oriby.</p> <p>[2.] A decision upon the merits, upon a demurrer, may he pleaded in har of another suit.</p>

<p>Simple Larceny. In Bibb Superior Court. Tried before Judge ,Cole. January Adjourned Term, 1866.</p> <p>The indictment charged Phillips with stealing wine, piclded pork, egg-nog, abscinthe,. brandy, powder, and tobacco, the property of the South-western Eailroad Company.</p> <p>It was proven that many articles of merchandize, amounting to $20,000 or $30,000, in value, among them powder, boxes, barrels and kegs of liquor, bacon, coffee, sugar, wines, cordials, boots, and shoes, dry, goods, sardines, pickles, lobsters, and oysters, herrings, segars, and tabacco, and especially a case of smoking tobacco, had been lost by the Southwestern Eailroad Company during the year 1865, — most of them in September, October, and November. That near the last of November, search warrants were sued out against the defendant, who had been a watchman of the road, on duty in the yard at Macon, but who had left his situation about a week before that time, John Herrington, Sr., another watchman, John Hancock and Charles Hancock, train hands, and some others. In Herrington’s possession were found part of a sack of coffee, two or three pairs of shoes, a pair of boots, a car lock, with staple attached as drawn, marked S. W. E. E., part of a box of tobacco, and a box of tools. The tools and one pair of shoes were identified by the Auditor of the company as Eailroad property. With John Hancock were found part of a box of tobacco, a keg of pecan nuts, and four boxes of herrings; and with Charles Hancock, a box of catawba wine. It was the duty of the train hands to load and unload cars at all points on the road; and of the watchmen, to have a general oversight over the cars and yard, to protect the company from loss by stealing, fire, or otherwise.</p> <p>It was proven that defendant carried to the shop of one Irby, near the South-western Eailroad depot, two one pound packages of smoking tobacco ; that John Hancock took some herrings and pecan nuts, and Charles Hancock a box of wine, to the same shop; and that occasionally the defendant went to that shop in company wilh the two Hancocks.</p> <p>A witness who lived in twenty or thirty feet of Herring-ton’s residence, saw him carrying home things a great many times;' saw defendant with him one night carrying a box, which he seemed to be changing into Herrington’s hand, though the witness did not know that defendant “had' the thing.” It was about ten or eleven o’clock at night, and in the last of summer or first of the fall. He had seen a great many things carried to Herrington’s house, and goods of. various kinds exhibited there, particularly large quantities of sardines. He saw things carried in very frequently at night, but did not notice it in the day time. The 'witness observed particularly, because he knew .Herrington was a watchman at the Railroad, and did not think he had a right to leave at night.</p> <p>William Scott testified, “ I was employed last year as day switchman for the South-western Railroad, in the city of Macon ; also, as night switchman for a short time. I saw .John Herrington, Sr., George Phillips, (defendant) John Hancock, and Lener Smith tear some boards off a car, enter, and fill a five-gallon keg and two jugs with liquor. I did not see which ones of them entered the car. After they came out Hancock took away one jug, Smith the other, and Herrington the keg, the last telling Phillips he would give him his next day. It was about eleven o’clock at night. They all seemed to be acting together. It was in the latter part of October, 1865. I saw Smith and Herrington enter cars, several times at night. They unlocked cars to which they had keys. The liquor was worth about $21 to $25. I was considered a watchman, as well as a switchman, at the time the liquor was taken. I was talking with Phillips and Herrington. I did not get any of the liquor. I was arrested before Phillips was. I was under arrest when I had some conversation with Mr. Brantley. I told him about their going into the car and getting some liquor.”</p> <p>The jury returned a verdict of guilty; and the defendant moved for a new trial on the following grounds:</p> <p>1. Because- the Court refused to charge, as requested in writing, that one present at the commission of a crime, who offers'no opposition, and makes no exposition of the act until himself arrested, is presumed to have aided and abetted.</p> <p>2. Because the Court refused to charge, as requested in writing, that a person in charge of property, who is present at the commission of a larceny upon it, and who makes no opposition, and fails to expose the fact until himself under arrest, is presumed to have been a po/rticeps crimmis.</p> <p>3. Because the jury found contrary to evidence and ágainst the weight of evidence.</p> <p>The Court refused a new tril, and the defendant excepted.</p>

Complaint. In Harris Superior Court. Tried before Judge Wokbill. April Term, 1866. The note sued on was given for the hire of a negro mán,' George. It was dated January 7th, 1861, and due Dec. 25th, thereafter. Middlebrook, the defendant below, introduced the following evidence: Reubm W. Robmson — He knew the negro boy George, for whose hire the note was given.

Trespass. In Wayne Superior Court. Motion to dismiss declaration. Decided by Judge Sessions. April Term, I860. This was an' action of trespass quare elausum fregit¡ brought by the defendant in error against the plaintiffs in error, in Wayne Superior Court. The trespass alleged was the entry with force and arms upon certain premises in Wayne county, treading down the grass, and felling, carrying away, and converting, pine trees and other timber of great value.

<p>An administrator appointed in Alabama, residing there, solvent himself, and under bond for the due performance of his trust, cannot, upon coming into this State on a visit or for purposes of business, be called to account here, in a Court of Equity, at the instance of distributees residing here, for waste or maladministration.</p>

<p>In Equity. In Bibb Superior Court. Bill for Discovery, Relief, &c. Tried before Judge Lamar. May Term, 1860.</p> <p>James Cunningham, the intestate of the defendant in error, died in Jones county, in 1811. Robert Cunningham, his nephew, "and the father of Robert Cunningham, the defendant in error, administered upon Kis estate, and in his character of administrator, brought an action of trover, in 1830, against one John Martin to recover certain negro slaves. In the next year, 1831, the action was dismissed at the defendant’s cost.</p> <p>In 1851 or 1852 Robert Cunningham the elder, the same who was the original administrator of James Cunningham, deceased, died in Bibb county. In February, 1856, Robert Cunningham, the younger, the present defendant in error, obtained letters of administration do bonis non upon the es-, tate of James Cunningham, deceased. In August, 1856, letters of administration upon the estate of Robert Cunningham, the elder, were granted in Bibb county, to one Elias H. Tillinghast, who married a daughter of his intestate, and the sister of Robert Cunnigham, the younger. Tillinghast resided in Bibb county. .</p> <p>In September, 1856, Robert Cunningham, the younger, defendant in error, in his character of administrator do bonis non of James Cunningham, deceased, filed his bill, in Bibb Superior Court, against John F. Lawson, of Burke county, the plaintiff in error, as administrator do bonis non o'f John Martin, deceased, and Elias LI. Tillinghast, of Bibb county, as administrator of Robert Cunningham, deceased, charging that the action of trover above referred to was dismissed and settled by fraud and collusion between the parties thereto, and that John Martin, after the settlement, removed the negroes beyond this State; and praying an account for the value of the negroes, their increase and their hire.</p> <p>Lawson, by his answer, urged the want of jurisdiction in Bibb Superior Court, as follows: “ This defendant admits that Elias H. Tillinghast is the administrator of Robert Cunningham, as is charged in said bill, but insists that said Elias H. and said complainant are endeavoring to defraud said estate of John Martin out of a large amount of money by bringing said bill against this respondent, and making said Elias EL a party defendant, for the purpose of proceeding against this respondent in said county of Bibb, whilst said respondent is a citizen of the county of Burke, in said State.” “ And this defendant, further answering, says that said Tillinghast, so far as this defendant is informed and believes, took out letters of administration on the estate of said Robert Cunningham for no other purpose than to be, as such administrator, a party defendant to said bill, and thereby give jurisdiction of said cause to the Superior Court of Bibb county; whereas, this defendant against whom alone, as administrator d& bonis non, ete., of John Martin, is any decree really sought, is, and was at the time of filing said bill, a resident of Burke county. That said Robert Cunningham had no estate upon which to administer, and that said Tillinghast has made no returns as administrator; that the bond given by him is only in the sum of one hundred dollars, the complainant being the security thereon and insolvent, * * and this defendant says the whole thing was done in fraud of the law, and with no other purpose than to institute a suit against this defendant in Bibb county. That said Tillinghast has made no answer to said bill, but the same has been taken as confessed against him.”</p> <p>At the trial, which took place at May term, 1860, William M. Riley testified, that he was now the Ordinary of Bibb county. There are no returns of E. H. Tillinghast, as administrator of Robert Cunningham, deceased, on record in the Ordinary’s office. Knew Robert Cunningham, deceased. He had no property — was insolvent, so far as witness knows. He was for many years the keeper of the Macon Bridge.</p> <p>William T. Massey testified, that he was Ordinary of Bibb county when letters of administration were issued to defendant Tillinghast, on the the estate of Robert Cunningham, deceased. That citation was issued at the instance of com-, plainant for said Tillinghast. That Tillinghast did not come forward to get letters at the proper time, and the matter was continued once or twice, as well as he recollects. Finally, Tillinghast came with complainant and Thomas P. Stubbs, and took out letters, complainant signing Tillinghast’s bonds. Witness asked the parties what estate Robert Cunningham, deceased, left, and what necessity there was for an administration. Stubbs, or one of the parties, responded, the others being present, that it was necessary to have administration on the estate of said deceased, in order for complainant to bring this .suit in Bibb county, and Tillinghast had been induced to administer for that purpose. ' Witness understood, from the conversation, that Stubbs, as attorney for complainant, had so advised, and that Robert Cunningham, deceased, left no property or estate.</p> <p>The -bond given by Tillinghast, on obtaining his letters of administration, was introduced. It was given in the penalty of one hundred dollars, with the complainant in the bill as security.</p> <p>There was a great mass of evidence on other points; but the foregoing is all that bore directly on the question of jurisdiction.</p> <p>The evidence being all in, on both sides, defendant’s counsel moved the Court to dismiss the bill, on the ground, among others, that Lawson, being a resident of Burke county, could not be coupled with Tillinghast, as a party defendant to a suit, such as the pleadings and proof showed this to be, located in Bibb county. The Court overruled the motion, and Lawson excepted.</p> <p>The Court then charged the jury, “ that it made no difference at whose instance or for what purpose Tillinghast became administrator of Robert Cunningham, deceased; but if they believed, from the evidence, that John Martin and Robert Cunningham, deceased, colluded together in the transaction about the negroes, to defraud the heirs of James Cunningham, deceased, then, Lawson was properly joined with Tillinghast in this suit, and the suit was properly located in this county. If the jury believed there was no such collusion, then, they would find the question of jurisdiction in favor of Lawson.</p> <p>“ That two questions were involved in the case; one as to the jurisdiction of this Court, so far as Lawson, the administrator de bonis non of John Martin, was concerned, he being a non-resident of Bibb county and denying the right to be sued in the same as a co-defendant with Elias H. Tillinghast, the administrator of Eobert Cunningham, deceased; the other, conceding the right of jurisdiction, whether or not the defendants, or either of them, are or is liable, at all, to the complainant.</p> <p>“ You may abridge your labors by deciding the question of jurisdiction first; and if you believe, from the evidence in the ease, that the transactions between Eobert Cunningham and John Martin were fair, or. that they did not fraudulently confederate with each other, and perpetrate a fraud against the heirs at law of James Cunningham, deceased, in the settlement of the trover cause formerly pending in Jones Court, or in any other manner alleged in the complainant’s bill, in relation to the property or claim for which this proceeding was instituted, you should find for the defendant Lawson, the administrator de bonis non of John Martin, which will supersede the necessity of any further investigation of the case, so far as he is concerned; but if you should believe, from the testimony submitted to you, that they did combine and confederate together, to practice a fraud on the heirs at law of James Cunningham, deceased, in the manner as charged by the complainant, and consummated the same, then, this Court has jurisdiction of the cause, and you should so determine, and proceed to the consideration of the merits of the case.</p> <p>“ I am requested by the defendant’s counsel to charge you, that if Tillinghast, the administrator of Eobert Cunningham, deceased, being neither a creditor or heir at law of James Cunningham, and that should Eobert Cunningham, the administrator de bonis non of James Cunningham, deceased, have procured him to become the administrator of Eobert Cunningham, being his security in the small sum, as proven, that said administration is fraudulent, and that this Court cannot, for that reason, exercise or entertain jurisdiction of this cause; and that you should find for the defendant Lawson. The Court declines giving you this request in charge; but, on the contrary, charges that Robert Cunningham, the administrator of James Cunningham, if as such administrator de bonis non, representing the heirs at law of his intestate, had any lawful claim against Robert Cunningham, deceased, ho had a right to proceed to procure administration on said estate, and that the same was not void or fraudulent, and that the plea to the jurisdiction of the Court could not be sustained on that ground.”</p> <p>The jury found a verdict against both defendants ; and as soon as the same was returned, the Court inquired of the jury what finding they had made on the question of jurisdiction. The foreman, at first, responded that very little was said about that in the jury room ; but, he and several of the jury stated, after a little hesitation, that they had found in favor of the jurisdiction. A. M. Lockett, however, one of the jury, stated that he lost sight of the question of jurisdiction, and did not hear anything about it in the jury room. The jury thus differing, as to whether this point had been determined by them, the Court propounded the inquiry relative to their finding several times, putting the question, the last time, in substance, as follows : “ Did you find that Martin and Robert Cunningham, deceased, colluded together in perpetrating a fraud on the heirs of James Cunningham, deceased ?” Mr. Lockett concurred with the rest of the jury in saying they had so found. The Court then said that if they had thus found, the finding was in favor of the jurisdiction. To all this counsel for Lawson excepted.</p> <p>The Court then permitted counsel for complainant to write out a verdict, commencing with, “ We, the jury, find for the complainant the jurisdiction of this Court;” which verdict was signed by the foreman; and the counsel for Lawson excepted.</p> <p>Counsel for Lawson then moved, for a new trial on twenty-four grounds, among them the following :</p> <p>9. Because the Court erred in ruling that the question of jurisdiction of this Court over Lawson, was a question to he submitted to the jury, under the evidence; in submitting said question to the jury ; and as to his charge to the jury on the same.</p> <p>22. Because the jury found against the charge of the Court respecting the question of jurisdiction.</p> <p>The Court overruled the motion, and counsel for Lawson excepted.</p>

Indictment for Eurnishing a Slave with Spirituous Liquors. In Talbot Superior Court. Tried before Judge Wobbill. March Term, 1866. The error alleged in this case, is the refusal of the Court to grant a new trial on the ground that the verdict was contrary to law and to evidence, and ¿that the Court erred in charging the jury. The indictment was found at March Term, 1864, and laid' the offence, on the first of the preceding 'January.

Misdemeanor. Tried in Whitfield Superior Court before Judge Walker. April Term, 1863. The plaintiff in error was indicted for selling whisky by retail without a license. Thos.

<p>In Equity. In Talbot Superior Court. Bill for Discovery and Relief. Tried before Geobge A. Hall, an Attorney at Law, selected by the parties. March Term, 1861.</p> <p>The bill alleged that in November, 1852, the defendants in error contracted with the plaintiffs in error, that the latter should do the work of grading, etc., on the Talbotton Branch Railroad at the prices fixed by certain sealed proposals sent in by the plaintiffs in response to an advertisement published by the defendants, inviting such proposals. That the plaintiffs expended money in the hire of hands, the purchase of animals and impliments and other supplies, for the execution of the work, and entered upon, and did actually commence its execution, when the defendants gave them notice that the Company had declined for the present to carry on the work, on account of pecuniary embarrassment, and requested them to abandon the contract and stop work uhder it for a short time, until the Company could better see their way. That the plaintiffs, thereupon, stopped work, but refused to abandon the contract on account of the great expense they had incurred. That after this, the defendants declined further to prosecute the work, and prohibited the plaintiffs from proceeding therein. That if they had been permitted to proceed, their profits would have amounted to ten thousand dollars, or other large sum; and that their expenditures in outfit and for labor, the items of which were minutely set forth, amounted to the sum of two, thousand four hundred and seventy-five dollars.</p> <p>The bill stated that the facts alleged in the same could not be established by the rules of the common law, and that the plaintiffs could have no adequate relief but in a Court of Equity. It prayed for compensation in damages, and for general relief.</p> <p>By an amendment, the bill was made to allege further, that after the plaintiffs had prosecuted the work with thirty-five or forty hands over forty days, notwithstanding, by the contract, the work was to be paid for in cash, the Company did not and would not pay anything whatever; but pretended they would do so, and made a pretended effort to do so by assessing the stockholders twenty-five per cent on their subscriptions, a sufficient portion of which being collected to pay the officers of the Company and some other debts the Company had a meeting at which they agreed to pay off the debts due their members, and the stockholders refused to pay any more of their subscriptions. That the officers resigned until the Company could not do any kind of business for want of a quorum; and the plaintiffs being thus treated, and having no means to carry on the work without compliance with the contract by the Company, they were thus fraudulently and wrongfully compelled to abandon the contract.</p> <p>The amendment then went on to enumerate the exact quantity of the several kinds of work embraced in the contract; and charged that the profits on the same would-have been $7,516.99, which amount, added to the money expended by the plaintiffs and their losses on the hire of negroes engaged for the work, made the entire loss which the plaintiffs sustained by reason of the premises, $10,286.99.</p> <p>By another amendment, the bill was made to allege that the plaintiffs would have been entitled to fifty thousand dollars for completing the work under the contract, which it averred was entire. That the defendants fraudulenly compelled them to abandon the work, or to suspend it, by false and fraudulent pretences, by resigning and refusing to make any preparation for payment. It averred that the plaintiffs always had been and were still willing, and now offered, to perform, and prayed a decree for the entire value -of the contract.</p> <p>The bill and amendments were answered on oath in behalf of the defendants, by Z. B. Trice, the last President of the Company; and the answer denied positively that any contract was ever concluded, or that any work had ever been executed by the plaintiffs in pursuance of a contract. On the contrary, it affirmed that the plaintiffs expressly refused to contract on the terms proposed by the Company.</p> <p>At the trial,- a great deal of evidence was introduced,, and some offered by the plaintiffs was rejected. The jury found a general verdict in favor of defendants ; and the plaintiffs moved for a hew trial, which the Court refused.</p> <p>The further facts of the case, so far as they are reqisite to ' an understanding of the points of law decided by the Supreme Court, are sufficiently stated in the opinion delivered by:—</p>

Case. In Whitfield Superior Court. Motion to Dismiss. Decided by Judge Milner. April Term, 1866. This was an action on the case.

<p>A recognizance given by the master for the appearance of his slave to answer a criminal charge, is no longer operative since the abolition of slavery.</p>

Complaint. In Lee Superior Court. Tried before Judge Allen. March Term, 1861. This action, was on a promissory note given by Heisler, the defendants intestate, and another.

Debt. In Fulton Superior Court. Tried before Judge Wabnee. April Term, 1866. This action was by the plaintiffs in error against the defendant, as securities on a guardian’s bond. The bond was given ;by one Thomas Griffin, on the third of November, 1851, as guardian of Susan M. Griffin, (now Mrs. Suttles) a daughter of Leroy Griffin, Sr., with the defendants as securities.

<p>[1.] Complainant in equity must allege all tlie facts, substantially, which are necessary in pleading a tender at law, When he relies on a tender for relief.</p> <p>[2.] Complainant offered to pay defendant what the amount of principle and interest on the note, in Confederate money, would have been worth in specie at the maturity of the note, upon condition that defendant would make titles, etc.: Held, not a sufficient allegation of tender.</p> <p>[8.] Specie value of Confederate notes, when payable, not sole criterion under the Ordinance of the Covention. — Walker, J.</p>

Assumpsit. In Calhoun Superior Court. Tried before Judge Allen. May Term, 1860.

<p>Issue upon an award. Tried before Judge Wabneb. ,In Fulton Superior Court. April Term, 1866.</p> <p>The parties to this case, on the 19th of October, 1865, entered into a submission, the terms of which were substantially as follows: “ There exists between these parties a certain matter of controversy, in reference to thirty cots (with mattresses and pillows) which Weakly & Warren allege were shipped to Sasseen, Whitaker & Co., in compliance with their order, at the agreed price of $14 each, and for which the latter refused to pay, because, as they say, they are not of the kind and quality ordered in accordance with the sample exhibited. How, therefore, it is agreed to refer the said matter of controversy to the arbitrament and award (as provided in the Code of Georgia) of A, chosen by one party, B by the other, and 0 by A and B.”</p> <p>The award rendered was, that Sasseen, Whitaker & Go. receive and pay for the articles, deducting two dollars from the price of each cot, the arbitrators being of opinion (as the award stated) that, for utility, the cot sent was substantially as good as the one claimed to have been ordered, but that the cot with the “ bow head piece ” would sell for two dollars more, if exhibited in .the market, as a matter of taste.</p> <p>In the Superior Court, to which the award was returned, it was attacked by Sasseen, Whitaker & Co., on the affidavit of Whitaker, as illegal, upon the ground (1) that, although the arbitrators found that the cots were not those purchased but inferior thereto, and that the purchase was by a sample superior by two dollars to the cots sent, yet acceptance of the latter was compelled by the award; and, as an appendage to this ground, (2) that whether the opposite party had a right to send cots of a higher or lower grade was not submitted.</p> <p>The issue, thus formed, was tried by a jury, and the following evidence, agreed upon by counsel as the testimony taken before the arbitrators, was introduced by Sasseen, Whitaker & Co.</p> <p>A. E. Morgan. — Presented to Whitaker the account for the cots. He did not object .to the account, but agreed to pay it. His firm paid the freight on the cots. He said he wanted them hurried on, regardless of expense.</p> <p>John Henderson. — Ordered the cots as agent for Sasseen, Whitaker & Go. Gave the order to W arren who had previously exhibited to witness a sample cot, and with this sample before him, he said to Warren, “ order thirty of these cots.” They were not j et made, but were to be ordered from a house in Cincinnati. The price was $14 each, including mattress and pillow case. The cots sent are not like the sample showed by Warren. (Witness here produced a cot which he said was of the same style with the sample, and placed it by one of those sent. The two were of the same height, length, and breadth.) The difference consists in the frames. The style of the head boards is different. The cot ordered is stronger and better than those sent; difference in value $6 or $7, the sample worth $8 or $9, the others $4 or $5. Is not a furniture dealer, nor a j udge of cots. . Had not, until sworn, examined the way the slats are put in the cots sent. Told Sasseen, Whitaker & Co. that these cots were not the same as ordered, and they refused to take them.</p> <p>Thomas E. Whitalcer, one of the parties. — Did not, when he paid the freight and offered to pay the bill, know the difference between the cots sent and those ordered. The hotel for which the cots were ordered, was sold out before they arrived, but the cots would have been received, nevertheless, if Henderson had not said they were not such as were ordered.</p> <p>Mr. Warren, one of the parties — Received the order through Henderson, and by his consent, transmitted it to C. B. Prayther, bf Cincinnati. The cots were yet to be made, and the sample was not to be sent to Prayther. Witness forwarded the order as Henderson gave it. The cots sent are the wood cot, and of the same kind and class as the sample shown Henderson — no substantial difference. The style of 'the head-board is different. That of the sample (witness thinks) was not as high as that of the sample Henderson now exhibits. The cots are of the same dimensions and materials. The fastenings of those sent are of wrought iron, while those of the one brought in by Henderson are of cast iron. Those sent are stronger, more durable and better; the slats being shorter, they will bear more weight, and the fastenings are not so easily broken. The cost is the same — $7 for cot, $6 for mattress, and $1 for pillow. If any difference in value, it is in favor of those sent. Did not understand Henderson to insist on small matters of style ; they were not discussed, nor included in the order which Henderson gave. Witness is an old furniture dealer, and a judge of such things. The two cots are substantially the same.</p> <p>Mr. McAlister — Is an old maker of, and dealer .in furniture, and a judge of such things. Has examined the cots sent, and that brought in by Henderson. They are of the same name and class, called the wood cot — generally and substantially the same. The fashion of the head-boards is different, but one is as good as the other. The cots sent are fully as good, if not better, than the other. The fastenings are much more secure, and more durable — wrought iron fastenings are not so easily broken.</p> <p>The same party introduced the following agreement signed by counsel:</p> <p>“We agree that there was'the following difference in the two cots exhibited:</p> <p>1. The cot exhibited as the sample shown Henderson in Nashville, had a bow head-piece fourteen inches high with two turned cross pieces, and secured by patent iron fastenings, and folded down. The cot sent had a board headpiece ^bout eight or ten inches high, and fastened by a wrought iron twisted bar that shut up and down at pleasure.</p> <p>2. The braces of the legs were crossed, extending from near the top of one leg to near the bottom of the. other. In the cot sent, the braces were put in horizontally near the top and bottom of the legs.</p> <p>3. The iron fastenings were one inch broad, with a hook on one end, which fastened to a projecting piece of iron, to secure the cot in an upright position. In the cot sent, the fastenings were small iron rods driven into the side of the cot at one end, and at the other turned into a hook and passed through a hole.</p> <p>4. The slats were fastened to their places by being slipped over the head of a small iron bolt, which could be removed at pleasure. In the cot sent, the slats were fastened permanently by means of iron staples so put in as to allow the slat to spring at pleasure, and were several inches shorter than in the sample cot, the length being supplied by two cross slats at the head.</p> <p>The Court charged the jury that in order to authorize a recovery by Weakly & Warren, they must show a'substantial compliance on their part, by having sent cots substantially the same as the sample exhibited when the purchase was made.</p> <p>The jury returned a verdict confirming the award; and Sasseen, Whitaker & Co. moved for a new trial because the verdict was contrary to the charge of the Court, and contrary to evidence and the principles of justice and equity.</p> <p>The Court overruled the motion, and this is complained of as error.</p>

<p>This was an action of ej ectment by Henderson, the intestate of the plaintiff in error, against Ulm, the defendant in error.</p> <p>It was tried before Judge Thomas, at October term, 1859, when the locus in quo and the posssession^ of defendant at the commencement of the suit being made out, the plaintiff showed a chain of title down to himself, beginning with a grant from the State to one John Jordan, dated in 1818.</p> <p>The defendant read in evidence a grant from the State to one William Graves, covering the same premises, and dated in 1789. He then sought to show, that by a judicial sale title passed out of Graves, in the year 1800, into one Sea-born Jones. For this purpose, he offered in evidence a judgment against Graves, rendered by the Circuit Court of the United States for the District of Georgia, in 1799, and with it a deed, in the usual form of a sheriff’s deed, made by the Deputy Marshal of Georgia to Jones, and bearing date in 1800. The Court rejected both these documents.</p> <p>By the exemplification of the judgment tendered, no entry of service upon Graves, or acknowledgment of service, appeared ; but it did appear'that the judgment was confessed by him in open Court.</p> <p>After the rejection of the exemplification for the purpose above mentioned, the defendant again offered it, to prove that Graves was in life in 1799 ; but the Court ruled it out for this purpose, also.</p> <p>The jury found for the plaintiff; and the defendant moved for a new trial, because of the rejection of his evidence, and because the verdict was without evidence to support it, and contrary to the weight of the evidence.</p> <p>At October term, 1862, the motion being still pending in Court, the defendant amended it by adding, as another ground, the discovery of new and material evidence. The affidavits to support this ground were those of Lewis Crook, Elisha Weathers, the defendant himself, and his counsel, Wm. M. Beese.</p> <p>Crooh's affidavit, sworn to December 23d, 1859, stated that he was then about seventy-six years of age; that from the time he was about thirteen till he was about sixteen years old he knew William Graves, then in life, and sometimes called Mountain Graves; and that the little mountain was named for him'.</p> <p>Reese's affidavit, sworn to Hovember 16th, 1859, stated that about the 9th of that month he accidentally met a man who directed him to Crook; that he did not know, before the trial, of Crook’s testimony, or of a single person by whom the same facts could be proven; that he inquired «before the trial, in all places where he thought the facts might be proven, for testimony to prove them, but failed.</p> <p>Weathers’s affidavit, sworn to October 22d, 1860, stated that he was then seventy-six years old, and removed with his father from South Carolina to Lincoln county, in 1797 ; that for a year’or two after that period he frequently saw and heard of William Graves, called Mountain Graves, who had a store, was a speculator in lands, and frequently took up lands; and that he, Graves, went away from Lincoln county, and deponent knew not what became of him.</p> <p>Defendant, himself, made two affidavits. The first, sworn to November 16th, 1859, stated that Crook’s testimony came to his knowledge after the trial, and was first heard of from his counsel on the 14th of that month; lhat he did not know before or during the trial that the same facts could be proven by any one; that he often iuquired, but could find no person that could inform him at all about Graves, or what became of him; and that all his inquiries resulted only in the information that Graves once lived about the mountain, but not at any particular time. The second, sworn to October 22d, 1860, made similar statements as to diligence, and declared the non-discovery of Weathers’s testimony until that day.</p> <p>The plaintiff metthis showing with the affidavits of several citizens of Lincoln county, which proved that both Weathers and Crook had, during the last seven years preceding October, 1862, been known in the county as aged men, and had often been at Lincolnton, and other public places,on public days; that Weathers, during that period, lived in the county, about two and a half miles from defendant’s residence ; that Crook lived in Wilkes, near the Lincoln line, and near Graves’s mountain, five or six miles from Lincolnton, and ten or twelve miles from defendant, and was well known at Lincolnton as a vender of sleys.</p> <p>B.y consent of parties, the motion for a new trial was referred to Judge Harris for decision, at Chambers; who sustained it, granting a new trial on the ground of the newly discovered evidence.</p> <p>This is the judgment now complained of.</p>

<p>Motion for Continuance. In Monroe Superior Court. Decided by Judge Speeb. February Term 1866.</p> <p>An issue formed upon a rule to foreclose a mortgage was tried between tbe plaintiff in error, as mortgagee, and defendant, as mortgagor.</p> <p>It being near sunset when tbe Court’s charge to the jury was concluded, the Judge, saying to the jury that he would not adjourn, but suspend the Court, directed them to inform him when they agreed upon a verdict, and said he would come in and receive it. Counsel for defendant replied, that the jury might disperse after finding their verdict, and return into Court the next morning. Counsel for plaintiff then proposed that they might hand in their verdict and all the papers to the clerk, and disperse. The Court inquired if there was any objection to this course; and no one objecting, the jury were instructed so to do. The jury retired, and the Court was adjourned, regularly, to the usual hour next morning. The Judge left the court house, and shortly afterwards, was notified by a bailiff that the jury had made a verdict and were ready to return it. He repaired to the court house, and, without opening the Court or having the verdict read, directed the jury to hand it to the clerk, which they did, and then dispersed — one of them applying for leave of absence until ten o’clock next day, which was granted.</p> <p>"When the Court met next morning, counsel for the defendant stated in his place that he did not hear the proposition of the opposite counsel upon which the Court acted, and that if he had heard it, he should ,^ave refused to consent to it; that all he did consent to was, that on finding a verdict, the jury might disperse for the night and return the verdict into Court next morning, his object being to avail himself of every right and privilege his client might have.</p> <p>At the suggestion of plaintiff’s counsel, to which no objection was made, the Court señt to their room for the jury, and had the papers handed back to them, that the verdict might be formally delivered.' It was then discovered that the juror who had obtained leave of absence, had not returned. The jury being in their box awaiting his return, the defendant’s counsel asked that they be sent to their room, as he had just received certain information touching the case, upon which he proposed to found a motion that he deemed it improper to make in their presence. They were sent out accordingly, taking the papers with them; and the counsel then submitted his motion for a continuance, on the ground of certain evidence discovered that morning, supporting the motion with affidavits. The evidence and affidavits are both in the record, but need not be set out here.</p> <p>In the course of his argument upon the motion, the counsel stated that his object in requiring the verdict to be returned into Court that morning, was to exercise the right of polling the jury, but that, being informed, while they were waiting for the absent juror, of the newly discovered evidence, he had changed his purpose and moved for a continuance.</p> <p>The Court, as the case was in the last resort and the new evidence was cumulative, and might, therefore, not be sufficient to uphold a motion for a new trial, deemed that the ends of justice would be promoted by a continuance, and granted it accordingly; and after recalling the jury, caused them to erase from the papers the verdict they had signed finding for the plaintiff.</p> <p>To all which the plaintiff excepted, and now complains of the same as error. ‡</p>

In Equity. In Marion Superior Court. Demurrer decided by Judge Wobbill. March Term, 1861. The plaintiffs in error, as executors of Mary C. Perryman, deceased, filed their bill against tbe defendant. It made the following case: Mrs. Perryman, before her intermarriage with the defendant, was Mary C. Wilkinson.

Motion to dismiss Certiorari. Decided by Judge Clark. In Bibb Superior Court. November Term, 1863. On the petition of McLaren, one of the Justices of the Inferior Court of Bibb county issued a writ of habeas corpus, bearing date February 27th, 1863, and returnable before said Justice and his associates on the 16th of March thereafter.