Volume 35 — Georgia Reports

<p>Murder. In Fayette Superior Court. Tried before Judge Warner. September Term, 1866.</p> <p>The plaintiff in error was tried for the offence of Murder.</p> <p>At the request of the Solicitor General, the Court instructed the Jury, that if they found the prisoner guilty, they might, if they thought proper to do so, recommend him to the mercy of the Court.</p> <p>After a verdict of guilty, counsel for the prisoner made this charge one ground, among divers others, of a motion for a new trial. The Court refused to grant a new trial', and that refusal is alleged as error.</p> <p>The jury having, by their verdict, recommended the prisoner to mercy, the Court sentenced him to confinement in the Penitentiary for life.</p>

Trover. In Richmond Superior Court. Tried before Judge W. M. Reese. April Term, 1866. This action was brought in August 1863, by Anderson, Adair & Co., against J. A. Ansley & Co., to recover for the conversion of twenty hogsheads of sugar.

In Dougherty Superior Court. Decided by Judge Hastsell. At Chambers, July, 1866. Upon a rule nisi to foreclose a mortgage on land, granted at the instance of Culpepper’s executors, against Slaughter’s administratrix, a trial by jury was had in Dougherty Superior Court.

Assumpsit. In Eulton Superior Court. Tried before Judge Warner. October Term, 1866. In 1857, Dr. Boring, the defendant in error, was one oí seven Professors constituting tbe Faculty of the Atlanta Medical College. The College was a corporation, chartered by the State of Georgia, and the land upon which the College building' stood was vested in Trustees.

<p>In Equity, in DeKalb Superior Court. Bill, &c. Tried before Judge Warner. October Term, 18C6.</p> <p>Peter Eito, of North Carolina, died there in 1811, leaving a will, the sixth item of which was as follows: “ I -will and bequeath to my daughter, Catherine Hoyle, and to the children of her body, a negro woman named Polly, with said Polly’s offspring.”</p> <p>Catherine Hoyle was the wife of Adam Hoyle, who was one of the executors to this will. Catherine died a few days after her father, the testator, leaving several children, all of whom were in life at the making of the will, as well as at the death of the testator. Among them was Margaiet II., subsequently the wife oí Jones, the defendant in error. She was born in 1810, married Jones in 1828, and died in 1831. Her marriage took place in Gwinnett county, Georgia, whither her father, Adam Hoyle, had removed from North Carolina, shortly before; and where she continued to reside until her death. Neither she nor her husband, so far as appears, ever knew, during her life time, of the provisions of Peter Eite’s will, or anything touching her rights under it; nor did Jones subsequently acquire this knowledge until shortly before the present litigation commenced. It was admitted by Adam Hoyle, in his answer, that he never com* municated such knowledge to either of them.</p> <p>Soon after the death of Peter Pite, in 1811, Adam IIoyle, with the consent of his co-executor, took possession of the woman Polly, claiming her, under the will, as his own property, in right of his wife, Catharine, being advised by counsel that she was his absolutely, and that his children had no interest in her. When he removed to Georgia, he brought Polly with him, and continued to hold her as his own in the county where Jones and wife lived. She bore many children, and these he disposed of in various ways. He sold some of them to strangers, and some, together with Polly herself, to his son, Peter F., one of the plaintiff’s in error. He gave off others to the other plaintiff’s in error, who are his sons, his son-in-law, and his daughter. These transfers took place at various periods, extending from 1841 to 1853, inclusive; and those to whom he sold, or gave the negroes, held them thenceforth as their own property. They increased, from time to time, until the descendants of Polly became about forty in number.</p> <p>In December 1860, Jones applied for, and obtained, temporary letters of administration upon the estate of his deceased wife, Margaret H. In February following, he obtained permanent letters. Between these two periods he filed his bill, as administrator, against the plaintiffs in error, and Adam Hoyle, praying for a partition of the negroes in their possession, (claiming ^one-sixth thereof,) and for a full and fair accounting for hire, with interest thereon, and also for general relief.</p> <p>The cause came on for trial at October Term, 1866, when Adam Hoyle being dead, and his estate unrepresented, it was agreed by counsel, that the trial proceed as though he were in life, his answer to be read in evidence but no decree to be taken against him.</p> <p>The answers and some other evidence being before the jury, the Court charged them as follows:</p> <p>On the Will. — That it did not create an estate tail, but a joint estate in Catharine Hoyle and her children.</p> <p>On the Statute of Imnitations. — That if Mrs. Jones, the complainants intestate, was an infant, under twenty-one years of age, at the death of Peter Fite, and became a feme covert before arriving at twenty-one years of age, and before the cause of action accrued, and before the statute commenced to run against her, and died during her coverture, the statute of limitations did not bar the complainant’s right to recover — that after her death the statute did not run until there was a legal representative of her estate capable of instituting suit; that the act of 1856, requiring administration on decendant’s estates to be taken out within five years, did not have any retroactive effect, but operated prospectively, to-wit, from the 1st of June, 1856, and that the complainant had five years from that day to take out administration, before his right to do so would bo barred by the provisions of that act. Also, that if the defendants and those under whom they claimed, had been guilty of a fraudulent concealment of the complainant’s intestates right to the property in controversy, by which the complainant, or his intestate, had been debarred or deterred from commencing suit for the property, the statute of limitations would not commence to run only from the time of the discovery of such fraud.</p> <p>On interest upon hire. — That if the jury found any hire to be due, they might allow interest upon it at seven per cent, per annum, from the time it became due; that it was due from the expiration of each year; and that the interest allowed should not be designated in the verdict as interest, but be included in the general amount found against each defendant.</p> <p>On the effect of emancipation. — That this, if the defendants were Iona fide claimants, and not wrong doers, was the same as if the property had died or been destroyed, and might be considered by the jury in fixing the amount of their verdict; that the bringing of the action was a demand by complainant for his interest in the negroes, and if the defendant’s refused to account for his interest, and held the same not in good faith, then the subsequent, emancipation of the negroes was no valid reason why they should not be required to account for the value.</p> <p>These charges are each assigned as error, the first three generally, and the last as being inapplicable to a bill praying that the negroes be divided, and not praying for any account of their value.</p>

Motion to reinstate case. Decision by Judge Yason. In Decatur Superior Oourt. October Term, 1866. At the April Term, 1863, the case (in Equity) of Caleb H. Blood against James E. Martin, E. Johnson, et al., was dismissed, on the ground that the plaintiff was an alien enemy.

Motion to dissolve injunction. Decided by Judge Hook. At Chambers. October, 1866.

Murder. In Macon Superior Court. Tried before Judge Cole. September Term, 1866. The plaintiff in error was tried for the murder of Dianer Holcombe, a woman of color. Evidence for the State. Made Felton, colored — Knows the prisoner, and points him out. Was waked by his wife about twelve o’clock at night on the 29th of July last (1866.) Judge came round to his house, calling him.

<p>[1] Letters of administration upon the estate of a man who died in. Alabama, a resident of that State, and who left no effects in Georgia, cannot be granted by the Ordinary here. lie lias no jurisdiction.</p> <p>[2] Bond for titles, with all the purchase money paid, is a complete title to land; and the vendor has no property in that land, remaining in him, whereon to grant administration after his death.</p> <p>[3] The ruling in Pitts vs. Bullard, (3 Kelly, 5,) having been made by an able Bench, after full argument by able counsel, having since been followed and applied in divers cases, and having been left unmolested by the General Assembly, should not now be changed by the Court. The rule stare decisis should be maintained.</p>

Debt on foreign judgment. In Lumpkin Superior Court. Tried before Judge Irwin. February Term, 1866. This action is described in 28 Ga.

Murder. In Spalding Superior Court. Tried before Judge Speer. July Special Term, 1866. The plaintiff in error was tried for the murder of Daniel ICerhow. When the colored witnesses were introduced by the State, the prisoner objected to their competency. The Court overruled the objection. Evidence for the State. Kitty Ann Weal, a person of color — The difficulty commenced about a bread tray.

Certiorari. Decided by Judge Cole. At Chambers. December, 1866. This was an agreed case, brought before Judge Cole that he might review a decision made by the County Court of Bibb. Goolsby brought against the Manufacturers’ Bank of Macon, upon its bills or notes, forty-four suits, each for one hundred dollars, all of them commenced and served at the same time, and all returnable to the Aiigust monthly Term of the County Court.

<p>[1] It is error to refuse an application for a writ of partition to divide mills which were partnership property, upon the ground that the time had not elapsed fixed for the dissolution by the articles. There being many causes for which a dissolution will he decreed before the expiration of said time.</p> <p>[2] Under the Code, and particularly Sections 8015 and 8906 thereof, it is not proper to force a party to go into Equity, to obtain a decree for the dissolution of co-partnership in milling property, before applying for a writ of partion to divide such property.</p> <p>[8] In all extraordinary cases the common law Court may so frame its proceedings and order as to meet the exigency of the case, and the verdict and judgment maybe so moulded as to mete out justice to all parties as by decrees rendered in equitable proceedings.</p>

Complaint. In Jones Superior Court. Tried before Judge A. Reese. October Term, 1866. This action was by the defendant in error against the plaintiff in error, for the rent of MO acres of land, known as the “ Mills place,” for the years 1856, 1857 and 1858, at $200.00 per annum.

In Equity. In Thomas Superior Court. Decree by Judge IIansell. At Chambers. October, 1866. This was a bill filed in 1859, hy the defendants in error against the plaintiff in error.

Certiorari. In Whitfield Superior Court. Decided by Judge Milner. October Term, 1866. The plaintiff in error was tried in the County Court on an indictment charging him with the offence of forcible entry and detainer. Evidence wasjintroduced; and the Oourt charged the jury as follows: “You have heard the evidence in the case; you have heard the law extensively commented upon by counsel both for the State and the defendant.

<p>■ Caveat. In Whitfield Superior Court. Decision by Tudge Milner. October Term, 1866.</p> <p>Michael J. Kenan, Uriah T. Kenan, and several others, heirs at law of Owen H. Kenan, deceased, entered their caveat to the paper propounded as his last will and testa-1' ment'.' The Ordinary decided against the will, and the executor appealed to the Superior Court. Michael J. Kenan, one of the caveators, died, and his death was suggested upon the record. Twelve months afterwards the cause came on for trial, when the surviving caveators, by their counsel, objected to proceeding with the trial, because the legal representatives of Michael J. Kenan had not been made a party. The Court sustained the objection, and this is alleged as error.</p>

Complaint. In Bibb Superior Court. Tried before Judge Cole. May Term, 1866. The error alleged in this case was the refusal of the Court below to dismiss the action, because tlie process was made returnable to the November Term, 1865, and no service upon the defendants, according to the Sheriff’s return, took place until May 5th, 1866.

<p>Case. In Fulton Superior Court. Tried before Judge Warner. October Term, 1866.</p> <p>In July, 1862, Sylvester Cannon was in the employment of the Western & Atlantic Eailroad as a locomotive engineer, and, on the Sabbath day, was running an engine attached to the regular passenger train from Atlanta to Chattanooga. It was unusual to run freight trains on the Eoad on Sunday, and on this occasion there was no reason to ex pect that any train would be in Cannon’s way, neither he nor the conductor of his train having been notified that any had been or would be sent out. In point of fact, however, a freight train was started out by the agent of the Road at Chattanooga to go to Atlanta, and near Johnson’s Station it came in collision with Cannon’s train, and he was killed. His widow brought suit against the Road for damages. At the trial, it appeared in evidence that by printed rules which were in the hands of all engineers, it was not allowable to run on that part of the Road at a higher speed than eighteen miles per hour, and that Cannon, at the time of the collision, was running at the rate of twenty miles per hour ; also, that if he had been running at but eighteen miles per hour, the collision would not - have occurred at that place, (which was on a sharp curve) and might not have occurred at all; that a quarter of a mile further towards Atlanta, the trains might have been seen by those upon them in time to prevent the accident, though still further on in that direction the result of a collision might have been much worse. It was in evidence that the rule restricting the speed to eighteen miles per hour, had been made on account of the condition of the track on that part of the Road, the iron being, when the rule was adopted, scrap iron, but that prior to this collision, it had been relaid with good iron, so as to become the best part of the Road. The rule,. however, had not been revoked. On some other parts of the Road, a speed as high as twenty-eight miles per hour was allowed by the rules.</p> <p>The Court, after charging the jury that if the injury was caused exclusively by the fault or negligence of the plaintiff’s husband, she would not be entitled to recover, and if caused exclusively by other employees of the Road, she would be entitled to recover, added that if both parties were in fault, the plaintiff might still recover, but the jury should find such damages as they thought the plaintiff entitled to under the circumstances in proof.</p> <p>The jury found for the plaintiff four thousand dollars (predicating their verdict, as to the amount, in part on evidence which is not embodied in the foregoing statement). Whereupon the defendant moved for a new trial, on the ground of error in that part of the charge which recognized the plaintiff’s right to recover if both parties were in fault.</p> <p>The Court refused a new trial, and that refusal is the error now alleged.</p>

Possessory warrant. Tried before Judge Yason. At Chambers. November, 1866. This was. a possessory warrant, sued out by the plaintiff in error, against the defendant, on the 2d of November, 1866, to recover possession of the cotton specified in the following receipt: “Received from E. J. Champion, for G. W. Garmany, fifty-four four bales of cotton, marked and numbered as per margin, in the warehouse of Sims & Rust, at Albany, Georgia.

<p>[1.] 3n this cas» the award required the partner taking charge of the assets to indemnify his copartner against the firm liabilities. Even if such had not been the terms of the award, a Court of Equity should have required such indemnity; and in either case, therefore, it was 'proper not to dissolve the injunction without imposing such indemnity as a condition. Under the general prayer for relief, appropriate relief, on the case made should be granted</p> <p>[2.] Though discovery be expressly waived, an answer is still necessary as pleading. Whether, in such case, the answer can. be excepted to by complainant, because not full, &c.> not decided.</p>

<p>Under the Ordinance of the Convention, the Judge has no right to toll the jury not to consider evidence of the value of Confederate currency at the time the contract was made, and restrict them to the value at the time the debt became due. The Ordinance being valid, it follows Indisputably that the charge and refusal to charge were erroneous.</p>

In Equity. In Catoosa Superior Court. Demurrer.. Decided by Judge Milner. November Term, 1866.

Award by Judge Clark. At Chambers. August, 1866. Mrs. Taylor and Mrs. Davis, together with the three minors of which Taylor is guardian, are the children of Thomas Mougiion by his first marriage. Held: on the first question, that the appraisers were not authorized by law to allow the sum given as a set-off to the furniture set apart to the widow and her child, and he, therefore, disallowed that item altogether.

<p>In Equity. In Bibb Superior Court. Motion for New Trial. Decided by Judge Cole. November Term, 1866.</p> <p>Prior to September 3, 1853, Dinkins, the defendant in error, being the holder-of an execution against one Yan-Yalkenburgh, entered into a contract with one Marcus A. Franklin, who held a mortgage upon some and had conditionally bought other property of the said YanYalkenburgh’s, not to press said execution against said property; and Franklin, on his part, agreed to cause the execution to be provided for or paid out of said property.</p> <p>Subsequently to the making of this contract, Franklin and the plaintiffs in error entered into the following:</p> <p>“ Georgia, }</p> <p>Bibb County, J</p> <p>We, the undersigned, being desirous of purchasing of Marcus A. Franklin, the property known as the YanYalkenhurgh property (describing it): Now, this is to make known that we occupy the above described property simply as tenants at will of said Franklin, until we shall pay or cause to be paid to him the following sums, namely: Six thousand five hundred and fifty-six dollars, together with lawful interest upon the same from date : {also, certain notes described) also the executions against said YanYalkenburgh in the hands of John Rutherford — said executions being in favor of Paiil Dinkins. * * The acknowledgment of M. A. Franklin as to the notes and executions referred to, shall be a sufficient identification. Now, the conditions of the contract are such, that so long as we shall pay to said Franklin the sum of $300.00, every two months until the above amounts, namely, $6.556.00, the notes * * and the executions * above mentioned, are fully paid, we are to, remain in undisturbed possession and use of said property ; and when said sums are fully liquidated, the said Franklin shall make full and sufficient titles to the property. * * *</p> <p>Provided, nevertheless, if we or either of us should fail to make the payments upon the day and month as above agreed upon, namely, $300.00 on the first day of every second month, the first payment falling due on the 1st September, 1853, and the succceeding payments on the first day of every second month thereafter, until the full liquidation of the sums hereinbefore mentioned, then this tenantcy contract is void, and of no effect, and we admit the right of said Franklin to the above described property to be in full force, together with the power to dispossess us at discretion: Also, such sums as may have been paid to said Franklin, ■ shall not be reclaimed by us, nor shall they bear interest from date of payment, but shall accrue to said Franklin as payment for rent of said property.</p> <p>In witness whereof, we have hereunto set our hands and seals, September 3, 1853.</p> <p>J. A. YIRGIN, [L.S.]</p> <p>SAM’L S. YIRGIN, [L.S.] Witnesses — A. A. MENARD.</p> <p>GEORGE PAYNE.”</p> <p>“ I agree to be bound by the above contract in all particulars.</p> <p>MARCUS A. FRAFIKLIFT, [L.S.”]</p> <p>In April, 1866, Dinkins filed his bill in Equity against the two Yirgins, praying that they might be compelled to perform, specifically the foregoing covenant in his behalf, by paying to him the amount due upon his said execution agafnst YanYalkenbnrgh.</p> <p>At the trial the facts were agreed upon by counsel as follows : “ That the contract set out in the bill was mutually executed by M. A. Franklin and defendants; that the fi. fa. spoken of therein, as being in favor of Paul Dinkins, was then, and now is, the property of said Dinkins, and so known to defendants; that in the settlement between the defendants and Franklin’s Administratrix, evidenced by the receipt, the substance of which is copied on this paper, said Dinkins’ fi. fa. was not spoken of, nor any money specifically paid by defendants for the extinguishment of said fi. fa., nor has it been paid to plaintiff, or to Franklin or his representatives, unless the said receipt proves it; that defendants’ answer sets up and relies upon said receipt; that the bill correctly sets out the agreement between Franklin and Dinkins as to providing for said fi. fa.; that the Yirgins made a full settlement with Franklin’s Administratrix, and got title to the property specified therein; and that said receipt certifies the settlement to be in full of the stipulations of the Yirgins’ agreement with Franklin’s egt^ite.</p> <p> Copy Receipt. </p> <p>“The stipulations and payments under the within contract have been fully complied with by a settlement and compromise this day made with Messrs. J. A. & S. S. Yirgin, this April 13, 1859.</p> <p>L. FT. WHITTLE,</p> <p> Attorney for Mrs. M. A. tranJclin, </p> <p> Executrix of M. A. Franklin. </p> <p>The jury found and decreed in favor of the complainant, after which the defendants moved for a new trial:</p> <p>1. Because the jury found contrary to the evidence.</p> <p>2. Because the Court erred in charging the jury there was privity between Dinkins and defendants, arising on the contract between defendants and Eranklin ; and that he could recover on such contract, notwithstanding the receipt of Eranklin’s representatives extinguishing the said contract, and in full of the stipulations of the Virgins’ agreement with Eranklin contained therein.</p> <p>3. Because the Court erred in charging the jury that, after a full settlement with Eranklin, Dinkins had a right to open the settlement and explain such receipt; and if the j ury believed the Dinkins fi. fa., agreed to be paid by the defendants,-had not been paid, they ought to find for the complainant.</p> <p>The Court refused a new trial, and that is complained of as error.</p>

<p>Complaint. In Calhoun Superior Court. Tried before Judge Clarke. September Term, 1866.</p> <p>This was a suit upon an open account for $374.38, the main item of which is for work and labor on lot of landEo. 265, 4th district, Calhoun county, $350.00.</p> <p>On the trial, interrogatories tendered by the plaintiff were objected to, on the ground that the jurat was not certified to by the commissioners.</p> <p>The names of the commissioners were signed on the left, immediately under the interrogatories, followed by the jurat, arranged thus:</p> <p>“A. B. Com.</p> <p>“ O. D. Com.</p> <p>Sworn to and subscribed,” &c., &c.</p> <p>The Court sustained the objection — ruled out the interrogatories, and plaintiff excepted.</p> <p>The defendant objected to the statement in the depositions of Benjamin H. Jones, hereinafter set forth, and to the same statement made by several of the witnesses, “ That the land on which plaintiff lived and put the improvements belonged to Solomon Gr. Beckam,” and to all parol evidence, as being incompetent to show title or interest of Beckam in the land. The Court sustained the objection, but allowed the witnesses to make the statement, saying that he would regulate or qualify the matter in his charge.</p> <p>The plaintiff introduced the following evidence :</p> <p>Thomas M. Maund says plaintiff went upon the lot of land belonging to Beckam, in the life time of Beckam, and put improvements thereon, consisting of a dwelling house, kitchen, smoke house, horse lot, stable and shelter, a well, a garden, and cleared up five or six acres of land, worth, altogether, $350.00. After the improvements were made, Beckam sold his settlement of land, and with it his lot (Eo. 265.) After this sale witness heard Beckam say to plaintiff that he would pay him (plaintiff) out; that three hundred or five hundred dollars was no money to him (plaintiff.) "Witness- understood this conversation, to relate to paying plaintiff for the improvements on the lot.</p> <p>Kinion Strickland says that plaintiff put improvements worth $300 on lot of land No. 265, belonging to Beckam. In a conversation between plaintiff and Beckam, soon after plaintiff commenced the improvements, Beckam said he (Beckam) had promised to clear him (plaintiff) twenty acres of land; but, finding he could not do so, offered instead to let plaintiff cultivate a part of Murchison place. "When Beckam sold out he sold lot No. 265 also.</p> <p>David E. Lewis says that the improvements were worth $300. Beckam sold this lot with the improvements when he sold his other land. Plaintiff was on the lot two, or a part of two years, using the improvements as he placed them there; but they were worth nothing for rent, as he was carrying on the improvements all the time. Witness had a conversation with Beckam and plaintiff shortly after Beckam sold out. Beckam, in speaking of plaintiff’s removal from .the lot, said that he (Beckam) would pay him (plaintiff) out; that three hundred dollars, or five hundred dollars was no money to him (Beckam.)</p> <p>B&ñgamvn, II. Jones — deposition—Plaintiff lived on and improved a lot of land belonging to Solomon Beckam, during his life time. He put up a dwelling, kitchen, smoke house, corn crib, stable and well, garden and yard pailed in, and made a small clearing — all worth five hundred dollars. Witness did not hear Beckam say anything about it. Plaintiff went on the land in the woods. Witness lived about four miles distant. ‘</p> <p>The plaintiff here closed, and defendant moved for a non-suit, which was ordered, and plaintiff excepted.</p>

Trover. In Bibb Superior Court. Tried before Judge Cole. May Term, 1866. This action was brought by Martin, the defendant in error, against Riley, the plaintiff in error, for the conversion of a negro slave named Jack. At the trial, the plaintiff declared his option to take a verdict for the value of the negro, not for the negro himself.

In Early Superior Court. Decided by Judge Clarke. April Term, 1866. An action of complaint, brought by the defendant in error against the plaintiff in error, to recover a lot of land, was tried before Judge Perkins, at April .Term, 1861, of Early Superior Court. Gay, the defendant in the Court below, had a paper title from the State down to himself.

<p>The maker of a note, and one endorsing it, “to be liable in the second instance,” cannot be sued together in the same action.</p>

Trespass. Demurrer to Declaration. Decided by J udge Warner. In DeKalb Superior Court. October Term, 1866. The suit was brought by the defendant in error against the plaintiff in error in October, 1866. The declaration alleged a trespass upon the land of the plaintiff below, situate in DeKalb county,Jwhere the action was brought, by the Railroad Company, committed in the year 1865, by entering upon said land, and cutting down and destroying the trees and underwood thereon.

Certiorari. In Thomas Superior Court. Decided by Judge nANSELL. July, 1866. On the 23d of January, 1866, the plaintiff in error was tried in fourteen eases, by the Mayor, in the Municipal Court of Thomasville, upon charges of having, on the 11th of the same month, furnished to colored men spirituous liquors, in violation of an ordinance of said town.

Statutory proceeding against tenant holding over. In Clay Superior Court. Tried before Judge Clarke, June Term, 1866. Love, by his agent, made the requisite affidavit, and procured a summary process to remove Dudley from certain premises as a tenant bolding over. Dudley, on tbe 21st of May, 1866, made bis counter-affidavit, denying tbe tenancy, and gave bond for double rent, &c., in compliance with the statute, with onePeterspn as security.

In Equity. In Burke Superior Court. Bill, etc. Tried before Judge Hook. May Term, 1866.. This cause involved, besides other things, certain lands in the county of Emanuel, of which Henry P. Jones died seized, and which were acquired by him between the time of executing his will and the time of executing the codicil thereto.

Certiorari. In Floyd Superior Court. Decided by Judge Featheeston. July Term, 1866. On the third of April, 1866, an attachment for a debt of twelve hundred dollars, was issued by a Justice of the Peace, at the instance of the defendants in error, against the plaintiff in error, and made returnable to the Inferior Court, May Term, 1866.

Murder. In Pulton Superior Court. Tried before Judge Warner. July Special Term, 1866. After a verdict against him for murder, the plaintiff in error, by his counsel, moved the Court for a new trial, on the ground that the jury found contrary to evidence and to the weight of the evidence. The Court refused a new trial, and that is alleged as error.

In Equity. In Meriwether Superior Court. Motion to dismiss Bill. Decided by Judge Warner. August Term, 1866. Upon certain bills issued by the Chattahoochee Railroad & Banking Company, (a corporation which enjoyed and exercised banking privileges,) the defendant in error recovered a judgment against said corporation on the 20th of April, 1812. On the 2d of July, 1812, the fi fa issued upon said judgment was returned nulla bona, the corporation having become totally insolvent.

<p>ft.] A judgment may be set aside on account of the uncertainty of the pleadings.</p> <p>[2.] It may also he vacated when founded on an award, where the submission is illegal, the defendant in the judgment not having been a party to the arbitration.</p>

In Equity. In Eulton Superior Court. Demurrer. Decided by Judge Warner. October Term, 1866. On the 23d of January, 1866, Tinkham, a citizen of Tennessee, being indebted in the sum of $11,500, and having assets worth from eight to ten thousand dollars, executed an assignment, in that State, to one Horle, in trust for the benefit of his creditors.

Injunction and Receiver. Decision at Chambers, by Judge Clark. ' September 1866. The defendants in error filed their cross hill of injunction, praying for a Receiver, against the plaintiff in error, alleging that they purchased, at the price of one hundred and fifty dollars, from one Jordan Williford, the growing crop of one Tillman J. Simpson, on 30 acres of land, more or less, consisting of corn, peas and potatoes. The crop was growing on land rented by Simpson from Irwin.

<p>[1,] The absence of a party in the military service, did not, under the act of 1861, oblige the Court to grant a continuance. It was subject to discretion.</p> <p>[2.] Parol evidence is admissible to explain material alterations and ambiguities in a written instrument.</p> <p>[3.] The bond in this case, created a right in the husband as trustee of his wife, and a Court of Equity will carry out the trust.</p> <p>[4.] Tills not being a settlement made by the husband upon the wife, is not void against his creditors because not recorded.</p> <p>[5.] To defeat the wife’s title by survivorship, the husband must reduce her property to possession as husband.</p> <p>[6.] The facts of this case do not show such a reduction to possession by the husband in his lifetime as will defeat his wife’s title by survivorship.</p>

<p>Case. In Richmond Superior Court. Tried before Judge Holt. November Term, 1860.</p> <p>This was an action of deceit in the sale of a note to the plaintiffs by the defendant.</p> <p>The note was as follows:</p> <p>“Augusta, Ga., Oct. 8th, 1856.</p> <p>Ninety days after date I promise to pay to the order of D. T. Smith eight hundred dollars, at either bank in this city. Value received.</p> <p>(Signed) JOHN O. CARMICHAEL.”</p> <p>Endorsed thus: “ D. T. Smith.”</p> <p> Evidence for the Plaintiffs. </p> <p>A. W. Walton — Lived with plaintiffs as book-keeper, on the 4th of December, 1856. Defendant came into the store of plaintiffs on that day, between 12 o’clock m. and 2 o’clock r. m. and offered to sell them a note on John C. Carmichael, payable to the order of D. T. Smith, and indorsed by Smith in blank, for $800. Said note was dated October 8th, 1856, and was payable ninety days after date. After some conversation, John J. Clayton, one of the plaintiffs, told witness to draw a check on the Mechanics Bank for $762 50. Clayton told defendant to indorse the note. Defendant answered, in a jocular manner, and just as he was going out> that his name would make the note no better; that Car' michael was as good as any man in the city of Augusta, and would pay the note at maturity. Defendant took the check and left the store. Plaintiffs learned, a little while after, on the same day, that Carmichael had failed. Defendant lives in South Carolina. Plaintiffs sent to the bridge and elsewdiere to intercept the defendant before he got over the river, but did not find him. The check was paid by the Mechanics Bank. Two or three days after, plaintiffs sent witness over to see defendant, who lives seven or eight miles from Augusta, to return him the note, get his endorsement upon it, or the money. Witness offered to return the note to defendant and take back the money, or keep the note with defendant’s endorsement. Defendant would not assent to either of these arrangements. Witness told defendant that Carmichael had failed at the time the note was passed, and it was worthless. Defendant replied that lie did not make child’s bargains.</p> <p>Cross-Examined — The note was turned over to L. D. Lallerstedt, Esq., by the plaintiffs, to be put in suit, and was in his hands at maturity. Witness did not call on Carmichael for payment; does not know that Carmichael was ever called upon. Carmichael, failed two or three days before the sale of the note, but his failure was not generally known. Plaintiffs did not know of it until an hour or two after the trade. Witness considers the note worthless; neither Carmichael nor Smith, the indorser, is solvent. Carmichael was in good credit, and did a large business, up to the time of his failure. Plaintiffs had dea't in paper with his indorsement at a discount before. They had some on hand at that time, but it was subsequently arranged by the makers. Witness heard Kennady, one of the plaintiffs, say he had met defendant in the street. When defendant said Carmichael was as good as any man in the city, the agreement was already made and the check drawn. Witness is not certain whether the check had been delivered to defendant or not. Kennady, one of the plaintiffs, was approaching defendant when the remark was made.</p> <p>L. D. Zallerstedt — Thought that Carmichael was insolvent at the time of the trade. His opinion was formed on the fact that he was a Bank director, and had heard it said at the Bank and in the street that Carmichael was insolvent. [Counsel for defendant moved to rule out this testimony, on the ground that the opinion of the witness was not competent evidence on the direct examination, and especially so when founded on facts themselves inadmissible in evidence. The Court overruled the objection, and the witness proceeded.] Defendant came into the store of witness the morning of the 4th of December, 1856, and offered to sell him the note in evidence. Witness told defendant that Carmichael had failed, and the note was worthless. Defendant left and went down town.</p> <p>Gross-examined — The note was put into the hands of witness for collection by Kennedy & Clayton some time subsequent to the day just mentioned. Witness heard of the failure of Carmichael two or three days previous to the 4th of December, 1856. Elis failure was not generally known. Witness knows of no payments made by Carmichael since his failure. He was in good credit previous to his failure. Witness did not present the note to him for payment. The note was due about the 9th of January, 1857. D. T. Smith was held to bail, and attachments issued, and garnishments were served on several persons, under the statute in such case made and provided. Garnishments were served, witness thinks, on the firm of auctioneers who sold the stock in trade of D. T. Smith. The garnishees answered that they had nothing in their hands belonging to D. T. Smith. Smith kept a drug-store. Witness thinks his stock was worth $3,000 or $1,000. Witness called upon Smith in the latter part of December, 1856, to make arrangements to have the note paid. Smith refused to make any arrangements. The note was not due at that time. Smith was held to bail, but absconded before the maturity of the note. Witness looked about for defendant at the maturity of the note, but heard he had gone away ten days previously.</p> <p>Charles J. Goodwin — Was a clerk in the store of Lallerstedt & Deming on the 1th of December, 1856. The morning of that day defendant came into the store and walked to the back part of it, where Lallerstedt was sitting, and offered to sell him a note on Jno. C. Carmichael. Lallerstedt told him (defendant) that Carmichael had failed, and the note was worthless. After some conversation, defendant left and went away.</p> <p>James P. Allen — Lived with D. T. Smith on the 1th of December, 1856, as book-keeper and salesman. Does not believe that Smith was solvent, among other reasons, because he went away, leaving several debts unpaid. Witness has not much opinion of him.</p> <p>Cross-examined — Smith bought about $1,200 of his stock at Sheriff’s sale two or three months before the 1th of December, 1856, and paid cash for it. Then he went North and bought more stock, which, witness thinks, he did not pay for. He sold his stock on the 27th of December, 1856, and received about $1,000 for it. Up to that time he had sold to the amount of $1,800 or $2,000. He claimed some negroes — a boy and a woman — that belonged to his wife. Witness thinks the boy was worth $3,000 and the woman $800. Smith gave security for his board when he first came; got married shortly afterwards, which gave him some credit. He ran away and left his wife behind. He owed money to hundreds of persons. Witness can specify only two of these, and can specify no amount.</p> <p>E. Starnes, Esq. — Believes at this time that Carmichae was insolvent on the 3d of December, 1856. Witness had occasion professionally to become acquainted with Carmichael’s affairs, and found them very much embarrassed. Witness was not prepared to say that it was his opinion, on the 3d of December, 1856, that Carmichael was insolvent. Carmichael made an assignment of his property on that day.</p> <p>Cross-examined — Witness held large claims against Carmichael at that time. In connection with professional brethren who held other claims, he attacked the assignment as fraudulent; all the claims were paid in full, principal, interest and cost, by the assignees. The opinion of witness is that, in order to have made indorser of the note in evidence responsible, the note should have been put in bauk and protested for non-payment, and demand should have been made of the indorser.</p> <p>John G. Sneed; Esq. — Received from Philadelphia an account and note against D. T. Smith. At the time of their receipt they were not due. The aggregate of both was between $800 and $1,000. Witness did not succeed in collecting either. Both were sent back.</p> <p> Evidence for Defendant. </p> <p>Thomas Whyte — Was a member of the firm of Girardy, Whyte & Co., on the 27th of December, 1856. Said firm sold the stock of D. T. Smith, and turned over to Smith $4,000. Ho garnishment was served on the firm. They may have been served upon some individual of the firm.</p> <p>Cross-examined — Smith had some small accounts with the firm of Girardy, Whyte & Co., all of which he paid. Witness has seen Smith several times with large rolls of bank bills.</p> <p>James II. Gray — Collected $1,200 from D. T. Smith on a nóte for that amount, bearing the same date and payable at the same time as the one in evidence. Witness was the agent of defendant, and loaned two thousand dollars, this present claim and $1,200. Witness took a mortgage on Smith’s stock for the $1,200, and assigned it to the auctioneers who sold said stock. The $1,200 was paid by the check of' Girardy, Whyte & Co., on account of Smith. Witness believed, on the 4th of December, 1856, that Smith was solvent, and witness was in the habit of lending him money, in amount from $100 to $300. Sometimes took his due bill— sometimes did not.</p> <p>Cross-examined — Defendant is a money lender.</p> <p>John K. JacJcson, Msg. — Was counsel for creditors of John O. Carmichael. From information of facts acquired by witness in that transaction, witness is of the opinion that Carmichael was not fairly insolvent on the 4th of December, 1856. Witness did not think so then, and does not now. When D. T. Smith was held to bail by plaintiffs the firm of Millers & Jackson were retained by Smith. Witness was a member of that firm, and as such, proceeded to the defence of that case. Before the trial Term, Smith disappeared before arranging for fees, and said firm notified David L. Adams, who was the security upon Smith’s bail bond, that they should no longer appear in said case, unless he wished them and employed them for that purpose. Mr. Adams was entirely good for the debt. Upon the trial the plaintiffs’ suit was — solely on the ground of the want of demand of payment of the note, and of notice of non-payment to Smith. The note sued on in that case was the note offered in evidence in this. The record shown to witness is the original record and bail bond in that case. It was the Sheriff’s duty to take good security. Uo exception was taken by the plaintiffs to the sufficiency of the security. Mr. Adams’ credit was good and is now. Witness had some business transactions with Smith about the 24th of September, 1856, and was of the opinion then that he was solvent; had no reason to'doubt it until his arrest under bail process.</p> <p>The presiding Judge, by consent of parties, stated that his recollection of the bail case, so far as the causes of plaintiffs’ defeat are concerned, agreed with Mr. Jackson’s.</p> <p>The defendant then introduced the record of the bail case against Smith, which showed that the process issued December 27th, 1856, upon an affidavit made by Kennady, one of the plaintiffs, and that a bail bond, with D. L. Adams as security, was given two days thereafter.</p> <p>Here the evidence closed, and the jury returned a verdict in favor of the plaintiffs for $762 50 principal, with $209 60 interest.</p> <p>The defendant moved for a new trial, on three grounds :</p> <p>1. Because L. D. Lallerstedt was allowed to testity that, in his opinion, Carmichael was insolvent on the 1th of December, 1856, he stating that his opinion was formed on what he had heard on the street and in the Bank of Augusta.</p> <p>2. Because A. W. Walton was allowed to testify that his opinion, on the day of the trade, was, that Carmichael was insolvent, he stating that his opinion was formed on the fact that he had heard the night before that Carmichael was in embarrassed circumstances.</p> <p>3. Because the verdict was contrary to law and evidence.</p> <p>The Court granted a new trial on the 3d ground ; and this is alleged as error.</p>

<p>Complaint for Negroes. In Twiggs Superior Court. Tried before Judge Cole. September Term, 1866.</p> <p>This action was by the plaintiff in error against the defendant in error. Witnesses for the plaintiff proved, among other things, that the negroes sued for were in possession of the plaintiff’s intestate, Butler, in the year 1860, he controling them, and exercising acts of ownership over them, as Ms own property; that the defendant, Hughes, married the daughter of said Butler, in October, 1860 ; and after his marriage, he took these negroes home with him, with Butler’s consent, and retained possession of them ; was in possession ot them at the death of his wife; that Mrs. Hughes died before this suit was instituted: Also, that Butler made demand for the negroes, of'Hughes, before the suit was brought: Also, the value of the hire of the negroes. He, Butler, said he had given the negroes to his daughter, Mrs. Hughes. It was further proven that after the negroes went into possession of Hughes, he, Butler, exchanged another slave for one of those which had gone into Hughes’ possession.</p> <p>Counsel for the plaintiff requested the Court to instruct the jury, that under, and by virtue of, the Act of the Legislature passed in 1856, if the jury believe, from the evidence, that the gift of the negroes in question was a gift by parol, then, Hughes acquired no title, and the plaintiff' was entitled to recover. This charge the Court declined to give; but instructed the jury that the Act of 1856, prohibited the bringing of any action to charge any person, upon any contract of sale or gift of slaves, unless the agreement, or contract, or gift, etc., be in writing; but that a defendant claiming title to a slave, by parol gitt or contract which was executed by delivery into possession, could defend upon such parol gift or contract; and if the jury believed, from the evidence, that the negroes in question were thus given by parol, then, the plaintiff was not entitled to recover.</p> <p>The Court further charged the jury, that if, from the evidence, they believed that Butler, upon the marriage of Hughes, sent the negroes home with his daughter, Mrs. Hughes, then, that fact is presumptive evidence of a perfected gift.</p> <p>The refusal to charge, and the charges, as given, are assigned as error.</p>

In Equity. In Wilkes Superior Court. Demurrer to Bill, and Demurrer to Plea. Decided by Judge William M. Eeese. September Term, 1866.

A Court has power to amend its judgments and executions so as to make them conform to the verdicts upon which they are predicated. Motion. In Cherokee Superior Court. Decided by Judge Milner. November, 1866. At September Term, 1863, of Cherokee Superior Court, a verdict was rendered in favor of Perkinson, against Mahone, on an attachment sued out by the former against the latter and levied upon certain lands.

In Equity. In Oglethorpe Superior Court. Demurrer. Decided by Judge Hook. April Term, 1866.

<p>Motion to Dissolve Injunction. Decided by Judge Irwin. At Chambers. October, 1866.</p> <p>This was a bill filed by the plaintiff in error against the defendants in error, to set aside as fraudulent, a conveyance of certain lands lying in Cobb county, made by tbe former to Banksmith, one of the latter, who purchased for and on account of Mulford, his co-defendant. The fraud alleged was, that the defendants knew the land contained a valuable goldmine, and the complainant had no such knowledge, and that Banksmith, on being asked by complainant, during the negotiations, what the lands were wanted for, and whether they did not have gold upon them, replied that they were wanted for farming purposes, etc., and that if they contained gold he did not know it. The hill charged that Banksmith resided beyond the limits of this State, and that both defendants, (so far as complainant knew) were insolvent and unable to respond in damages. It prayed for an injunction to restrain the defendants rrom selling the lands and from working them as a mine; and the injunction was granted.</p> <p>The answers denied that any gold had, so far as the defendants knew, been found on the lands either before or after the jonrekase. Mulford admitted, however, that the lands lay in or near what was considered the gold range or formation, between Lumpkin county, Ga., and Randolph county, Ala., and that on that account he caused the purchase to be made, acting altogether on a calculation of chances.</p> <p>On the coming in of the answers, a motion was made to dissolve the injunction, when the complainant, in order to show the existence of a mine on the premises, submitted the affidavits of one Grantham and one Asbury :</p> <p>Grantham deposed that, from the direction of a gold vein which he had opened on adjoining land, and his knowledge as a miner, he believed said vein ran through the lands in question, and was a valuable vein. Also that he had panned for gold on these lands and found from twenty-five to thirty particles of gold, to the panfull (not over one gallon) of earth.</p> <p>Asbury deposed that he had been a practical miner for twenty years; that in company with Grantham, and after the latter had made an examination alone, he made a surface examination of these lands for gold ; and from the gold he thus found, and the location of the lands, he considered them as valuable as any mining property in that country.</p> <p>The presiding Judge dissolved the injunction, and that is complained of as erroneous.</p>

Motion to Dissolve Injunction. Decided by Judge Workill. At Chambers. July, 1866. Thomas II. Wynn died in June, 1861, indebted to Webb, the plaintiff in error, on two prommissory notes for one thousand dollars each, given in the year 1859, for the purchase money of land. One of said notes matured in January, 1861, and the other in January, 1862.

<p>In Equity. In Putnam Superior Court. Bill praying the assignment of dower. Tried before Judge A. Reese-September Term, 1866.</p> <p>This bill was filed in August, 1862, by the plaintiff in error, against the intestate of defendant in error, to obtain dower out of the lands of which Lewis P. Harwell, a former husband of Mrs. Lively, the plaintiff in error, died seized; which lands Paschal, the defendant in the Jull, claimed as a purchaser after Harwell’s death from one acting as, and supposed to be, his executor. The fact that induced the demandant to proceed in Equity, rather than in a Court of law, was, that she, herself, was administratrix upon her said deceased husband’s estate.</p> <p>Harwell died in August, 1858, and the demandant claimed dower in these lands within one year thereafter, though the present bill was not filed until 1862.</p> <p>The bill was defended on a single ground, namely, that the demandant’s right to dower was barred by the accept- * anee of a provision in lieu thereof. The material facts bearing on this defence are the following :</p> <p>Mrs. Lively, before her marriage with Harwell, was a Miss Fielder, daughter of Richard and Elizabeth Fielder.</p> <p>' In 1835, after the death of Richard Fielder, Harwell executed the following :</p> <p>“ Received, Eatonton, February 18th, 1835, of E. Fielder, twelve bags of cotton, now in Augusta, which I have an order on, and made in full payment of all my interest in the property of my wife, which is coming to her after her mother’s death from the estate of Richard Fielder; and, also, that part that will fall to her from the will of her grandmother, Amelia Berford. In witness whereof I have hereunto set my hand and seal.” (Signed by Harwell, and attested by two witnesses.)</p> <p>In 1841, the said Elizabeth Fielder, by deed of gift, conveyed to Joseph Johnson the legal estate in the property conveyed to her by the foregoing instrument, declaring in said deed of gift that “ the proceeds and uses of which ” (said property) “ are for tlie sole benefit of the said Susan W. Harwell, for and during her natural life,” and said property, “ upon the death of said Susan W. Harwell, to be divided among her brothers and sisters, if said Susan W. shall die without child or children.”</p> <p>In 1851, commissioners appointed by the Ordinary to make distribution of the estates of Richard and Elizabeth Fielder, (the latter having died in 1850,) set apart to Harwell, as his share, in right of his wife, fourteen negroes, valued at $7,725, with a charge thereon of $31 25, in favor of another distributee.</p> <p>In 1852, Harwell and wife executed the following :</p> <p>“ Georgia, [</p> <p>Putnam county, j</p> <p>Whereas, by a recent division of the negro property of Richard Fielder and Elizabeth Fielder, of said county, deceased, the negroes hereinafter mentioned were assigned to Lewis P. Harwell, in right of his wife, Susan W. Harwell, as heir and distributee of the said decedents ; and whereas, 'it has long been the intention and desire of the said Lewis P. Harwell, and still is his desire and intention, to vest the absolute ownership of all the negro property which has come or may come to his said wife by inheritance, in her, for her sole and separate use, without restriction by reason of the rights of said Lewis P. Harwell: How, this indenture, made and entered into this-January, 1852, between Lewis P. Harwell, of said county and State, of the one part, and Susan W. Harwell, of the same place, of the other part; Witnesseth, that the said Lewis P. Harwell, for and in consideration of his natural love and affection for his said wife, Susan W. Harwell, as well as in consideration that the said /Susan W. Harwell has hereby relinquished., and does hereby relinquish, all her right, title and interest to dower m the lands of which said Lewis P. Harwell may die seized, hath given, granted, bargained, sold, &c., and doth, by these presents, grant, bargain, sell, &c., unto his said wife, for her sole and separate use, the following negroes, to-wit, (describing them,) together with the increase of said negroes, and whatever other negroes may come to said Susan W. Harwell by inheritance, with power on the part of said Susan W. to dispose of the same absolutely, and according to her will and pleasure, by her last will and testament, or writing in the nature of the same, at her death. Provided, however, that if said Lewis P. Harwell should survive his said wife, then said property shall remain to him, for his own use, during his natural life, and in such an event, all bequests, limitations and appointments of the same, by virtue of the powers herein granted, &c., to the said Susan W., sfyall take effect in possession in the said legatees, appointed, &c., who may be interested in the same, only after the death of the said Lewis P. Harwell.” (Signed and sealed by Harwell and his wife, and attested by two witnesses. Recorded May 19th, 1852.)</p> <p>To execute this instrument Harwell was extremely reluctant, and did so only after urgent importunity from the counsel of his wife, who, at her instan qq, followed him uj), to get him to do it.</p> <p>At the time it was executed a bill was pending (returned to March Term, 1851,) in Putnam Superior Court, filed by Harwell and wife against one Armstrong, as administrator of Fielder, and Joseph W. Johnson, trustee, praying for general relief, and for a decree against Johnson that the aforesaid receipt given by Harwell to Mrs. Fielder, be delivered up to be cancelled.</p> <p>In 1856, certain arbitrators, to whom this bill was referred, made their award, directing that the negroes mentioned in the foregoing papers “ continue in the possession of the said Lewis P. Harwell and his wife for and during their joint lives, for their joint use, and in the event of the said Lewis P. surviving- his said wife, then to be the property of said Lewis P. for his life, and after his death, to go to such persons as said Susan lY. may, by deed or will, appoint, she being hereby vested with a full and absolute property in said negroes after the death of Lewis P. Harwell,” &c. This award was made the judgment of the Court. t</p> <p>After the death of Harwell, his wife remained in the possession and use of said negroes until they were emancipated.</p> <p>The Court charged the jury as follows :</p> <p>“The hill filed on the 17th of February to March Term, 1851, by Harwell and wife against Armstrong, administrator, and Johnson, Trustee, in my judgment, is not a bill to settle wife’s equity. The object of the bill seems to have been to cancel the receipt of 1835, and the conveyance of 1841, and the decree, or award, therein, virtually cancels them, as the award settles the property with different limitations and conditions. And you may look to the language used in the contract of 1852, and compare it with the language used in the award, and if you find the settlement to be substantially the same in language and in conditions, you may infer it was the object of the award to confirm the settlement of 1852.</p> <p>“A provision made by deed, expressly in lieu of dower, or where the intention of the husband is plain and manifest that it shall be in lieu of dower, and the wife so accepts the property so provided, after the death of the husband, she is barred of dower.</p> <p>“ Whilst the law protects the wife during coverture from all contracts made with her husband, it does not allow her, after the death of her husband, to avail herself of the benefits of a contract made during coverture, without being bound by the terms of the whole contract.</p> <p>“ If you believe, from the evidence, that complainant, after the death of her husband, accepted the property conveyed by the contract of 1852, under that contract she is barred of dower, for the reason that the contract contains an express relinquishment of her dower in all the lands of which he might die seized or possessed. * * It would be a fraud upon an innocent purchaser without notice of a repudiation of the contract, to allow her to recover dower.”</p> <p>After a verdict against the demandant, she moved for a new trial on the grounds:</p> <p>1-2. Because the verdict was against law and evidence, and strongly against the weight of evidence.</p> <p>3-1-5-6-7. Because the charge of the Court was erroneous.</p> <p>The Court overruled the motion, and refused a new trial, and that is assigned as error.</p>

<p>[1] Crimes are punishable by the laws in existence at the time of their commission.</p> <p>[2] A person of color is not indictable in the Superior Court for larceny from the house committed prior to the Act of 17th March, 1866. Pamph. Actsp. 289.</p>

Award. In Dougherty Superior Court. Decision by Judge Cole. June, 1866.

Certiorari. In Fulton Superior Court. Decided by Judge Waenee. October Term, 1866. • v Alston sued out an attachment against the Adams Express Company, returnable to the March Term of a^ Justices Court. It was levied upon two wagons, and a claim was interposed by the Southern Express Company. It was further executed by serving Dunning and two others, each with summons of garnishment, returnable to the same Term.

<p>Motion to Dismiss Appeal. In Bartow Superior Court. Decided by Judge Milner. October Adjourned Term, 1866.</p> <p>This was an appeal in a case of debt, tried by jury in the County Court, at a monthly session. In the Superior Court, counsel for the appellee moved to dismiss the appeal, on the ground that the appellant had no legal right to enter an appeal to the Superior Court in such a case, and the latter Court had, consequently, no jurisdiction.</p> <p>The Court dismissed the appeal, and this is complained of as error.</p>

<p>L. & G. entered into the following articles: It is agreed between the parties Cornelius Lummus have the right to use the name of each other as a firm name ; and I, the said Jesse T. Gunn, do grant that C. Lummus have the right to go to any of the wholesale markets and purchase goods, and seJl the same at the house and place known as Worth-ville; and I, Jesse T. Gunn, do this for the benefit of C. Lummus, not claiming any of the profits arising from the sale of any goods or articles sold at the above named place. And all money furnished to enable the said firm. Lummus <fc Gunn, to each other, shall be held at the rate of seven per cent.”</p> <p>Bold, that this agreement constitutes L. & G. partners.</p>

Habeas Carpus. Tried before Judge Sessions. September, 1866. The plaintiff in error, while a slave, took for his wife another slave, his owner and hers both consenting, and recognized her as such for many years; during which time she bore five children, one of whom was a boy, Henry, now thirteen or fourteen years old. He then abandoned this woman, and took up with another; after which, the mother of Henry died.

Action. In Webster Superior Court. Tried before Judge Clarke. September Term, 1866. The plaintiff is the Executor of the will of James Lang-ford, deceased. At an Executor’s sale, early in the year eighteen hundred and fifty-five, Henry Weaver purchased two negroes, at the price of thirteen hundred dollars. The terms of sale were credit till Christmas thereafter, with two securities.

<p>Assault, with intent to Murder. In Marion Superior Court. Tried before Judge Wokrill. September Term, 1866.</p> <p>The plaintiff in error was found guilty and sentenced to the penitentiary for ten years. He made no motion in the Court below for a new trial.</p> <p>His counsel argued to the jury that they were judges of the law as well as of the facts, but did not request the Court so to chaf-ge, and the Court gave no charge on that subject.</p> <p>The errors assigned in the Supreme Court are, that the verdict was contrary to evidence and 'the weight of evidence ; that the Court did not give in charge the several grades of homicide; that the Court gave a portion of section 4230 of the Oode in charge, and omitted to charge that part reading as follows: “And it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given;” and that the sentence of the Court was for a longer term of imprisonment than the facts of the case demanded.</p>

Caveat. In Clay Superior Court, on appeal from the Ordinary. Tried before Judge Clarke. June Term, 1866. On the first day of September, 1865, G. S. Mandeville, applied to the Ordinary of Olay county, to issue a citation of his intention to administer on the estate of Charles G. Mandeville, formerly of said county, deceased.

<p>Simple Larceny. In Dougherty Superior Court. Motion for new trial. Decided by Judge Cole. June Term, 1866.</p> <p> Evidence submitted by the State. </p> <p>Turner A. Cleaves, says: Me knows the prisoner — first saw him the forepart of the day the horses were stolen. About two months since they passed witness’ house; on returning, stopped at witness’ house, as his hands were going towor-k; appeared to watch the mules particularly; proposed to sell witness a mule; witness did not want the mule, as he knew it; saw them talking with the boy Lewis; soon they left, and Lewis went to his work.</p> <p>Witness had a sorrel horse, and a dark colored horse mule taken from him. The mirle worth $225, and the horse $125. After witness saw the man in consultation with Lewis, witness sent over to Albany after the Sheriff, who carne about dark, and went down to the bridge and saw the horse and mule in possession of the prisoner and another. They had taken the harness off of their own mule, and were putting it on witness’ mule, and were about hitching witness’ mule to the buggy. When we went up, Mr. Kemp caught prisoner by the collar ; took him and carried him to jail. The mule belonged to witness. This transaction occurred on the 6th day of April, 1866, in the county of Dougherty.</p> <p>Gross-examined. — The mule and horse were taken from witness’ lot. Did not oppose or give his consent to the mule going out of his lot. Told the negro that he should have nothing to do with the matter, one way or the other. Saw the mule after he was taken out of the lot, in possession of the prisoner ; followed the walk of the horse and mule going down the road. Told the negro, he, witness, should have nothing to do with his taking the mule. Witness said to the negro that he would not alter their bargain. Did not see the horse and mule taken out of the lot, but believed when he followed, that they were his. Raised no objection to their going out of the lot. After the prisoner had left the negro, witness told him that he, witness, should have nothing to do with it. Witness sent for Mr. Kemp to see whether they should be carried or not. They were to be carried that night. Witness could have prevented the negro taking any the mules if he had taken his gun. Told the negro to carry out the bargain he had made with the prisoner j told Kemp what the negro had said to him, witness, and asked Kemp to go with him and see whether he did or not. The boy Lewis carried the horse and mule to the prisoner. Lewis was at the time in witness’ employment.</p> <p>James W. Kemp, says: On Friday evening Mr. Helms came to him, and he went over to Mr. Cleaves’ — got there . about dark. After tea witness and Mr. Cleaves came down to Lemack’s, who went with them. Saw the prisoner about harnessing Mr. Cleaves’ mules; prisoner had all the harness on, except the breeching, and he was putting that down when witness grabbed him. He started to run as witness caught him. Took prisoner and brought him to jail. Found a buggy and mule and sorrel horse in their possession. The horse was the property of Mr. Cleaves.</p> <p>Gross-examined. — He and Mr. Cleaves started off; witness with his shot gun. Mr. Cleaves told him of the arrangement.</p> <p>Upon this evidence the j ury found the defendant guilty, but recommended him to mercy, and the Court sentenced him to imprisonment in the Penitentiary for the term of ten years.</p> <p>Prisoner’s'counsel moved for a new trial, on the following grounds, which were overruled by the Court:</p> <p>1. Because the Court erred in its charge to the jury in this: that if they believed, from the evidence, that the defendant procured another to steal the mules, or entered into a conspiracy with another to do the act, then he was equally guilty, as though he had done it himself. The foregoing charge being upon an assumed state of facts, and not warranted by the evidence.</p> <p>2-3. Because the jury found contrary to the evidence, in this : That there was no evidence of a wrongful or fraudulent taking, or any evidence showing that there was any intention to steal. That there was no evidence that the prosecutor was deprived of the possession of his property.</p> <p>4. Because the jury found contrary to the charge of the Court, in this : That the Court charged that if there was only an attempt to steal, and the crime was incomplete, then they could not find the prisoner guilty.</p> <p>5-6. — Because the j ury found contrary to law and evidence, without evidence, and against the charge of the Court.</p> <p>The refusal of a^new trial is alleged as error.</p>

Assignment of dower. In Webster Superior Court. Decision by Judge Clarke. September Term, 1866. William B. Stewart and M. A. Stewart, his wife, applied for dower in the lands of Chappell Cox, deceased, her former husband. The commissioners made their return, and defendants in * error moved to make it the judgment of the Court. The plaintiffs in error traversed the return. The defendants in error moved to strike the names of the heirs at law out of the traverse.

<p>The judgment of the Court in continuing or dissolving an injunction, on the coining in of an answer, will not be controlled, except in a case of manifest abuse of discretion.</p>

Illegality. In Terrell Superior Court. Decided by Judge Claeke. September, 1866.

In Equity. In Fulton Superior Court. Demurrer. Decided by Judge Warner. October Term, 1866.

Motion to Dissolve Injunction. Decided by Judge Hansjbll. At Chambers. August, 1866. The bill alleged, a partnership between the complainant and the defendants in two kilns of brick, and an injunction was granted to secure the complainant’s alleged interest in the proceeds of both.

<p>A negro man being found in the b#d of a girl at an unseasonable hour of lbs night, and ■when she awakes he has his hand on her arm, holding her by the wrist, and escapes when she calls out to the family for help, may be convicted by the Jury of an 'mtmit l o commit a Tape.</p>

Certiorari. Decision by Judge Hansell. At Chambers. September, 1866. The County Judge of Thomas county tried a possessory warrant, sued out by Commander against Carter to recover possession of a horse. The trial was had in vacation, and not at any regular or special Term of the County Court. The Judge awarded the possession to Commander, the plaintiff in the warrant.

<p>Complaint. In Terrell Superior Court. Tried before Judge Clarke. November Term, 1866.</p> <p>Upon a draft for six thousand dollars, drawn by Robert Morrow upon William Morrow, the plaintiff in error, payable to John Y. Price, dated April 2d, 1860, due at six months, and endorsed, in blank, by Price, the payee, the Merchants’ and Planters’ Bank brought an action against the said William Morrow, returnable to the May Term, 1861, of Terrell Superior Court.</p> <p>Morrow, the defendant below, filed several pleas, to-wit: (1) The general issue; (2) That the draft was never negotiated to, or owned by the Bank, but was the property of Philip J. Giles & Co., who advanced upon it to the drawer three thousand dollars, and took the draft to hold as collateral security therefor; (3) That the consideration of said draft was not six thousand dollars, but three thousand dollars, which latter sum the defendant admitted, by his plea, to be due and offered to pay.</p> <p>At November Term, 1866, the case came on for trial, when the Court, against the objection of defendants counsel, permitted the plaintiff to amend the declaration by adding after the name of the Bank, the words “ who sues for the use of William R. Phillips,” counsel for plaintiff stating that Phillips was the real party at interest.</p> <p>The defendant having filed an additional plea, to-wit: That he has deposited in the Clerk’s office of the Court the amount which he owes or can owe on said draft, in the bills of said Bank, and that said money, to-wit, four thousand four hundred dollars, there on deposit, he tenders in payment, and offers to set off against the demand of said plaintiff,” counsel for plaintiff moved to strike out said plea. The Court granted the motion, and ordered the plea stricken.</p> <p>The errors assigned are, first, the allowance of the amendment to the declaration; secondly, the striking of defendant’s plea.</p>

Motion. In Chattooga Superior Court. Decided by Judge Milktek. September Term, 1866. Upon a promissory note signed by Hart and Davis, (the latter as security) reading on its face “ I promise to pay,” etc., White filed his declaration, returnable to March Term, 1866, of Chattooga Superior Court. The declaration alleged that both defendants were of Chattooga County. The Sheriff served Davis, and returned, as to Hart, non est inventus.

<p>[1.] This Court is less disposed to control the decision of the Court below where a new trial has been granted, than where it has been refused.</p> <p>[2.] On a rule to foreclose a mortgage, the mortgagee, when introduced as a witness by the mortgagor, must answer as to his "belie/ — especially when his memory is not good, and he can not be positive as to the facts of the case.</p>

Iu Bibb Superioi* Court. Decision by Judge Cole. November Term, 1866. A lot of corn belonging to the plaintiffs was transported from Atlanta to Macon by the defendant, and not being applied for at the depot, was, after the lapse of,several days,' stored by the defendant in a warehouse in the city. On applying for the corn, thereafter, the plaintiffs were required to pay the freight on the same from Atlanta to Macon, together with dr ay age, storage, etc., after its arrival.

<p>Garnishment, In Newton Superior Court. Decided hy Judge Speer. September Term, 1866.</p> <p>Carroll was administrator of James Ilodge, deceased. One Skelton was entitled to some of the estate. He made a power of attorney to one Bailey to settle for him with the administrator. Bailey did settle, taking the note of Carroll, payable to himself, and gave a receipt in full.</p> <p>Cn the same day, (April 12th, 1861,) four attachments ■were issued against Skelton, one of them in favor of McCoy, returnable to the June Term, 1861, of the Inferior Court; another in favor of Yfilliam D. Buckie, returnable to the April Term, 1861, of a Justices’ Court; another in favor of James II. Rakestraw, returnable to the same Term; and another in favor of Richard King, returnable to the same Term of the same Justices’ Court. McCoy’s attachment, returnable to the Inferior Court, was levied by serving a summons of garnishment on Bailey, April 16th, ] 861; and by serving a summons of garnishment on Carroll, April 21th, 1861. Buckie’s attachment, returnable to the Justices’ Court, was levied upon one box, and by serving summons of garnishment on Bailey and Carroll, April 12th, 1861.</p> <p>When the attachments of Rakestraw and King were levied does not appear, but they were returned to the April Term, 1861, of the Justices Court, as levied hy serving summons of garnishment upon Bailey. To these two last mentioned attachments, Bailey, the garnishee, answered that he had in his possession the aforsesaid note, and delivered up the same to the Jnstices’ Court. The Justices’ Court, on the 30th of July, 1861, ordered it sold; and it was accordingly sold by the Constable on the fourth Saturday in October, 1861. Before this sale, to-wit, on the 28th of September, 1861, the attorneys of McCoy and Luckie gave notice to the Constable not to deliver the note or its proceeds, if sold, as these clients of theirs had superior liens upon it. The Constable, however, sold the note and delivered it to the purchaser; and several months afterwards Carroll paid it off to the purchaser.</p> <p>Before this, to-wit, on the 24th of June, 1861, Carroll appeared at the Inferior Court and answered to the summons of garnishment served on him by McCoy, admitting the facts as to the note given to Bailey, and setting up that he had been garnisheed by Luckie, but admitting that McCoy’s garnishment was first served.</p> <p>The Inferior Court, upon this answer, gave judgment against Carroll; and he appealed to the Superior Court, which latter Court, at September Term, 1866, on an agreed state of facts, corresponding substantially with the foregoing, rendered a similar judgment; to which the counsel for Carroll excepted.</p>

Equity. Elbert County Superior Court. Decided by Judge Wm. M. Reese. September Term, 1866. The controversy in this case was about a strip of land claimed by the proprietors of two contiguous tracts, known as the Burton and the Ragland tracts. Eor many years prior to 18J7, the former was owned by the defendant Burton, and the latter by John D. Watkins. In that year, Burton conveyed the former tract to Cade, the plaintiff, by deed, with the usual warranty.

<p>An Attorney and Counsellor, duly admitted to practice in a Court of the United States, and practicing therein, prior to the late civil war, and who has received and accepted a full pardon from the President, and taken the oath of amnesty, may resume his practice in said Court without taking the oath prescrihedby the Act of Congress, of January 24th, 1865. Said Act, in its application to such a person, is unconstitutionalandvoid.</p>

<p>la Equity. In the District Court for the Northern pistrict.</p> <p>Application for injunction. Decided by Judge Erskine, 1866.</p>

<p>Demurrer to Pleas. In the District Court of the Northern District. Decided by Judge Ekskine. September Term, 1867.</p>

<p>[1.] Bills of credit, as defined by the Supreme Court, are paper issued by the sovereign power, containing a pledge of its faith, and designed to circulate as money.</p> <p>“ Confederate Treasury Notes ” were not issued by the sovereign power of any State or combination of States; nor did they pledge the faith of any such State or States ; consequently, they were not hills of credit, within the prohibitory terms of the Constitution.</p> <p>In the seceded States (so-called) the sovereign authority was, for the time, displaced; the constitutional governments were overthrown, and their functions usurped by spurious and revolutionary governments. These usurping governments could not, by legislation or otherwise, bind the public faith for the redemption of the notes in question.</p> <p>[2 ] But though said notes were not bills of credit, they were, nevertheless, illegal; and a prommissory note given for them, by the borrower to the lender, is void, and does not constitute a debt provable in Bankruptcy against the estate of the borrower.</p> <p>[3.] In respect to illegal contracts, the following is the rule generally observed by Courts of Justice: With au executed contract, they will not interfere, hut leave the execution to stand; if the contract be executory, they will lend no aid to either party to enforce it.</p>

<p>Indictment before tbe Grand Jury.</p> <p>In tbe District Court for tbe Southern District. November Term, 1867.</p> <p>Special Charge of tbe Court to the Grand Jury.</p>

<p>[1.] Capture, in technical language, is a taking by military power; seizure, a taking by civil authority.</p> <p>[2.] Statutes which work forfeitures or confiscations of property, require a close construction ; but full effect is, nevertheless, to be allowed to the legislative will.</p> <p>[8.] In the trial of Informations founded on seizures of land or upon land, under the Act of August 6th, 1861, issues of fact are decided by a jury according to the course of the common law, not by the Judge as in Admiralty.</p> <p>[4.] .Remarks and authorities upon the penal or remedial nature of the Confiscation Acts of August, 1861, and July, 1862.</p> <p>[5.] A mortgage in Georgia is only security for a debt — the title to the property remains in the mortgagor. This is fully settled as a rule of property by a series of State adjudications ; and where such is the case, the Federal Courts adopt the decisions of the State Courts.</p> <p>[6.] Pardon defined and its effects considered. A full pardon, granted and accepted prior to the seizure of property, or the institution of any proceeding to condemn It, is a bar to a judgment of condemnation under the Con 'scation Acts,</p>

In the Circuit Court at Savannah. April Term, 1868. Assumpsit for the recovery of four thousand five hundred dollars, on a due bill, of which the following is a copy : “Burke County, March 3, 1866. — Due John Scudder the sum of four thousand five hundred dollars, for value received, with interest from January 11th, 1866.