Volume 36 — Georgia Reports

Divorce. Demurrer. Decided by Judge Cole. From Crawford Superior Court. Chambers, May, 1866. This case was argued December Term, 1866, and held up.

<p>Trespass vi et armis does not lie against a Surgeon of a military post, ■who makes a requisition of the commanding officer for a particular house, as in his opinion suitable for a hospital, it not appearing that the Surgeon participated personally, or rendered aid, or incited the forcible dispossession of the plaintiff.</p> <p>Judge Walker dubitante.</p>

<p>Qui tam. Motion for nonsuit decided by Judge Hutchins, Clark Superior Court, February Term, 1867.</p> <p>James F. O’Kelly, in his own name, for the use of the County of Clark and of himself, brought qui tam actions against The Athens Manufacturing Company, The Georgia Manufacturing Company, and The Prineton Factory. The cases being similar, it was agreed that the judgment in one of them should be the judgment in all.</p> <p>The substance of the petition is that, The Athens Manufacturing Company, a chartered company under the laws of this State, for the manufacture of cotton goods and cotton yarns, and required by statute to publish twice during each year, in a public gazette nearest their place of business, a list containing the names of each and every stock?holder, with the amount of stock owned by himor' her, had failed so to do five times; to wit, once in 1863, and twice in each of the years 1864 and 1865, whereby it became liable to pay to said plaintiff $5,000 for each of said failures, one-half of which forfeiture belongs to said county and the other half to the plaintiff. The failures being admitted, the defendants moved a nonsuit on the grounds : 1st. Because the action was in the plaintiff’s private name, and not in the name of the State, or of the Governor, or Solicitor General; and, 2d. Because the penal statute on which the action was bottomed had been repealed since this action was brought, and the penalties incurred thereby remitted by the State.</p> <p>The Court sustained the motion, and ordered said case dismissed. Upon this the plaintiff assigns error.</p>

Equity. Continuance. Absence of counsel. Decided by Judge Underwood, Coweta Superior Court, March Term, 1867. So much of this heavy record as is material to an understanding of the decision of the case, is as follows: Complainant moved the Court for a continuance, on account of the absence of his leading counsel, Benjamin H. Hill. The Court refused the continuance, because Mr. Hill had no leave of absence, and no sufficient cause for his absence was shown.

Equity. Charge of the Court. Trial before Judge Worrill, Marion Superior Court, April Term, 1867. The case made by the bill is as follows : Shadrack Wall, on the third day of Decemher, 1861, sold and conveyed to Bartley McCrary lots Nos. 186, 199, and 200, and the half of Nos. 185 and 218 each, all in the fourth district of originally Muscogee, then Marion County, containing eight hundred acres, at and for the price of $10,000, upon a credit.

Assumpsit. Motion for new trial. Decided by -Judge Speer, Spalding Superior Court, February Term, 1867. ■ In August, 1863, Joshua Elder, in said county, made and executed his last will and testament.

<p>Whilst the recognition, by the State of Georgia, of the abolition of slavery in its borders, may have been destructive of legacies of that species of property, as also of the general testamentary scheme of a testator, such facts furnish no sufficient grounds of caveat to the probate of a will.</p>

Motion to dissolve injunction. Decided by Judge Worrell. Superior Court of Muscogee County. November Term, 1866.

Trover. Tried before Judge Vason. From the Superior Court of Sumter County, April Term, 1867. This case being upon trial, plaintiff introduced John V. Price, who swore that he had in his possession the negro Amanda; that plaintiff had left with him on sale a negro man who belonged to the plaintiff, plaintiff’s mother and brother jointly, and said negro man had been swapped for Amanda.

<p>Larceny. Jurisdiction, etc. Tried before Judge Vasoh. Calhoun Superior Court, March Term, 1867.</p> <p>The indictment charged plaintiff in error with the larceny of a bushel of corn, wbrth one dollar, the property of Dr. F. W. Cheney, on the 8th September, 1865, in said county. The plea was not guilty.</p> <p>The State introduced and examined as a witness Jacob S. Baker, who swore: Hearing the corn being broken, he looked and saw defendant breaking and pulling the corn off the stalk and putting it into his wallet — he pulled some fifteen or twenty ears. It was in Dr. Cheney’s field, in said county, in the fall of 1865. Witness was then overseeing there. It was about thirty steps from the fence, and from that point defendant walked across to the opposite side of the field and got over thence to the right. Witness had frequently seen defendant going this route to feed his hogs; he was going rather away from home. Witness did not speak to defendant then, but followed him to the fence where he expected him. It occurred about two hours of the sun in the evening. Witness thinks from the signs of mud, etc., as much as two wagon loads of corn was taken from the field before it was gathered. Witness is neighbor to defendant and friendly with him. Defendant got out of the field at a road and took it; the road was an open road; the field is very near Morgan.</p> <p>The State closed. Defendant introduced no testimony. Pie offered himself as a witness in his own favor, but the Court refused to allow him to testify. The jury found the defendant guilty, and he was sentenced to jail for forty days.</p> <p>The record does not contain the charge of the Court, but the Bill of Exceptions states that the grounds taken in the motion for new trial are true.</p> <p>The defendant moved, during the term, for a new trial, upon the grounds: 1st. Because the Court refused to allow defendant examined as a witness in his own favor.</p> <p>2d. Because the Court erred in charging the jury that if the defendant took and carried away the corn, not to account to the owner in future, the same was larceny.</p> <p>3d. Because the verdict is contrary to law and to the evidence. In this Court, plaintiff in error contended that tüe proceedings were void, because the Superior Court had not jurisdiction of misdemeanors.</p>

<p>Motion to dismiss Attachment. Decided by Judge Clarke. Clay Superior Court, February Term, 1867.</p> <p>The affidavit upon which this attachment was issued was in this language : “ Personally appeared before me Thomas K. Appling, attorney at law, for Evans, Gardner & Co., represented by T. "VY. Evans, E. C. Gardner, "VY. B. Buckner, W. H. Evans, T. D. Feto, "W". Porter, and E. "VY. Jennings, * * * who, on oath, says that the firm of Kennon & Klink, represented by E. E. Kennon and John Klink, is justly indebted to said firm of Evans, Gardner & Co. in the sum of fifty-two hundred and fifty-nine dollars and ninety-one cents : two thousand five hundred and thirty-three dollars and seventy-six cents is due, and two thousand seven hundred and twenty-six dollars and fifteen cents soon to fall due, and that the said Kennon & Klink are removing their property to be removed beyond the limits of this State, and that said John F. Klink is absconding.”</p> <p>The attachment was levied 30th November, “on the goods claimed by C. A. Klink,” and 1st December following “ on the goods in the store of Kennon & Klink.”</p> <p>The Bill of Exceptions recites that a motion was made to dismiss the attachment “ on grounds appearing on the face of said attachment affidavit.”</p> <p>The Judge, in his certificate, says the motion was on two grounds only : 1st, “ That the allegation in the affidavit that the defendants are removing their property to be removed beyond the State, is not a good cause of attachment; and 2d, That the affidavit contains an additional ground, to-wit: that John F. Klink is absconding,” and that with this qualification the Bill of Exceptions is true, etc.</p> <p>The Court refused to dismiss the attachment, and this decision is assigned as erroneous.</p>

Indictment for Stabbing. Motion for new trial. Decided by Judge Holt. Burke Superior Court, November Term, 1860. Floyd stood conversing witb the two Messrs. Brinson. He bad open in his hand such a knife as farmers carry, and was perhaps whittling or cleaning his finger nails. Whilden approached and asked Floyd if he had been accusing him of collecting money for his (Floyd’s) slave and stealing it. Floyd said he did.

Possessory. Warrant against Sheriff. Decided by Judge Yason, Chambers, March, 1867. Eaiford, as Sheriff of Sumter County, levied an attachment in favor of Chas. T. Goodo vs. Thomas Y. Hyde, upon certain carpenters’ tools. While he had possession of the tools under that levy, James Hyde sent out a possessory warrant against Eaiford, claiming that he was entitled to the possession of said tools. The warrant was issued and the case tried by Judge Yasokt.

Attachment. Motion to dismiss levy. Decided by Judge Clarke, Early Superior Court, April Term, 1867. These attachments were returnable to the Superior Court of Early County. The levies were made by the Special Bailiff of the County Court of said county. Defendants replevied the goods. Upon motion of defendant’s attorney, said levies were dismissed by the Court, upon the ground that the Special Bailiff was not authorized by law to levy the attachments.

Rule nisi for injunction. Decided by Judge Vason, Chambers, April, 1867. Dougherty County, Georgia. John T. Dickinson, for himself, and in right of his wife, Julia, and his children, Henry G. Eogers and John T. Dickinson, Jr.; and ’William Q,.

Complaint. Evidence. Tried before Judge Cole. Macon Superior Court. March Term, 1867. Plaintiff in error was sued by defendant in error on a promissory note for $67.50, made 1st March, 1861, by said Archer, with D. A. Smith as security, payable to said deceased. The plea was failure of consideration.

Motion to set aside Confession of Judgment. Decided by Judge Speer. Spalding Superior Court, February Term, 1867. Charles L. Dupree as security, and Leonard T. Doyal as maker, were sued by plaintiff in error in said Court on notes amounting to $3,180.00. Service was acknowledged 30th April, 1861, by “Doyal & Cook, defendants’ attorneys,” and at November Term, 1861, judgment was confessed against said defendants by Doyal & Cook.

Debt. Eecovery on original consideration of altered notes. Tried before Judge Hutchins. Gwinnett Superior Court. September Term, 1866. By consent of counsel these two cases were consolidated and argued together. They are reported as if they had been tried together in the Court below.

Foreclosure of Mortgage. Scaling ordinance. Motion to dismiss Bill of exceptions. Tried before Judge Vason. Sumter Superior Court. December adjourned Term, 1866.

Foreclosure of Mortgage. In Chatham Superior Court. Tried before Judge Fleming-, January Term, 1867. The points involved in this case arose upon the following state of facts: On the first day of December, 1857, in South Carolina, John F. Tucker and Henry J. Dickinson, of Savannah, Georgia, executed and delivered their joint and several bond, in the usual form, in the sum of $107,300.00 to Henry Laurens Toomer, of Charleston, South Carolina.

Equity. Duress. Tried before Judge Cole, Bibb Superior Court, January Adjourned Term, 1867.

<p>1. A Justice, before issuing an order for bail in an action for slander, need not hear evidence pro and eon, but should so far examine the pleadings and other matters connected with the suit, as to enable him to fix the amount of bail.</p> <p>2. The Court, on the trial of scire facias against the bail, cannot enquire whether the amount of the bond was onerous.</p> <p>3. The Court,.during the progress of the suit for slander, could reduce the amount of bail upon defendant’s application.</p> <p>4. Though the bond be not technically formal, if the recitals in it sufficiently show that it was taken as the bail bond in that case, the security can take nothing by this informality.</p> <p>5. To fix bail, the casa may be returned before the next term after it was issued.</p>

<p>Bill for specific performance. Demurrer. Decided by Judge "Wm. M. Reese, presiding for Judge Augustus Reese, Jasper Superior Court, April-Term, 1867.</p> <p>William G. Smith died in 1864, leaving as his heirs at law Henry T. Smith, Martha Penn, Thomas Penn, Russel Penn, Henry F. Penn, and Salina Penn, minors; Charles H. Thompson, Alice Clark and Emma Clark, minors; Kesiah Smith, widow of Henry G. Smith, deceased, Georgia Nixon, wife of Jesse F. Nixon, and Boykin R. Smith. His estate of realty and personalty was worth one hundred thousand dollars, or other large sum, at his death.'</p> <p>For some weeks after his death the heirs were in doubt whether he died testate or intestate. Boykin R. Smith knew that a paper called a will had been executed by deceased about a year before his death. Boykin R. Smith was officious in getting it up, and drew the instructions from which said Jesse F. Nixon drafted the same. By it said Boykin R. was to be almost the sole legatee. What had become of that paper none of the parties knew. The estate was without a legal representative. In some way the parties learned that said paper had existed, and the provisions of it, and frequently discussed them.</p> <p>In these discussions Henry T. Smith, in presence of said Boykin R. Smith, denounced said paper as a' fraud upon the deceased and his heirs, declaring that it was made under the dictation of said Boykin R., who had taken advantage of the weakness of deceased to impose upon him when he was in his seventy-ninth year, paralyzed and imbecile in body and mind, and perfectly pliant, and had fraudulently induced said deceased to give to him nearly his entire estate. Henry T. Smith further declared that he was unalterably determined to oppose the probate of said paper as the will of deceased, should it ever be found and offered for probate.</p> <p>After some weeks, said paper still being lost, and it appearing that the said estate would pass under the acts of distribution, said Boykin E. became anxious to hold certain specific property, which he pretended had been given to him by proper deeds, conveyances, and abills of sale, made by deceased.</p> <p>If such deeds, conveyances, and bills of sale were ever made, they were not out of the possession of deceased, nor was the possession of the property covered by them ever changed from deceased to Boykin E. Deceased had kept both the writings and the property, and Boykin E. had not claimed the property during the life of deceased, nor since his death. Boykin E. knew these facts, and that his said claim was at least very doubtful. Still it seemed probable that he would be compelled to take a smaller part of said estate than he would get under said pretended will, and he preferred these specific things to his share upon a distribution of 'the estate. Knowing that if the pretended will were found and offered for probate it would cause a law suit and a family difficulty, and that his imposition and undue influence'in obtaining it were true, and the paper an outrage upon the others of the family and unjust in its discrimination, in order to secure said specific property said Boykin E. proposed that the estate should' be distributed by agreement of the parties at interest, thereby saving expeuse, avoiding litigation, and preserving peace and harmony.</p> <p>There were no debts to be paid, and the parties all consented so to divide the estate, by agreement, as follows:</p> <p>Georgia, Jasper County.</p> <p>We, the legatees and representatives of legatees of the estate of William G. Smith, Sr., deceased, met on the 16th day of November, 1864, for consultation in regard to the settlement and distribution of said estate, do severally consent and agree that B. E. Smith have certain negroes, deeded to him by his father when said B. E. was quite young, and their increase' up to the time when B. E. became twenty-one years of age; that he is to have a certain tract or parcel of land in the County of Newton, known as the Evans place; then said B. E. is not to draw any more from said estate until the other legatees are made equal with him, except the ferry tract of land, jack, goats, buggy and harness, which said B. E. claims as his own property, purchased by himself; also, two negroes hired from Thomas Smith’s estate, and half of all the provisions raised' the present year, as compensation for his own and his wife’s hands.</p> <p>We further agree that the taxes are to be paid out of the estate; that the physician’s bills for the estate negroes are to be paid out of the estate, (the said B. E. Smith paying his own physician’s bill, and also that of the negroes held in right of his wife.)</p> <p>We further agree that the bond made by the said B. E. Smith and Wm. G. Smith, to be paid by the estate, to wit: bond to the Confederate Government ■ and that the one-half of the receipts for the same to be paid by the said B. E. Smith, and that the other half, together with all other property, not herein before specially conceded to said B. E. Smith, be divided between the widow and the other legatees, agreeably to the law or laws in such cases made and provided.</p> <p>We further agree that this.be a’final basis of settlement between all the parties as aforesaid, as witness our hands and seals.</p> <p>W. G. SMITH, ’</p> <p>J. F. NIXON, for ALICE and EMMA CLAEK,</p> <p>H. T. SMITH,</p> <p>KESIAH SMITH, WILLIAM C. PENN,</p> <p>WM. H. THOMPSON, for C. H. THOMPSON,</p> <p>J. F. NIXON,</p> <p>B. E. SMITH.</p> <p>All the heirs, personally or by attorney, signed said agreement. -Before and after it was signed, Boykin R. repeatedly said that the pretended will was inequitable; that this agreement was equitable and just; and that by it he intended to prevent forever any chance of dispute about said pretended will.</p> <p>In pursuance of said agreement, said heirs at law appointed Charles E. Campbell, Robert Barnes, Benjamin T. Digby, Henry Walker, and Elbert Gay to appraise and then distribute the property of said estate according to said agreement.</p> <p>On the-day of-, -1864, said commissioners met for the purpose of performing said trusts, &c., and proceeded till so embarrassed in adjusting the shares on an equitable basis, (on account of the great difference then in nominal value between prices then and before the war,) they determined that the best mode of equalizing the shares according to said agreement, was to sell the entire property, except what had been by the agreement specifically allotted to Boykin R. Smith.</p> <p>Accordingly, cattle, corn, fodder, oats, and other perishable property, was, after due advertisement, sold for $70,000.00, or other large sum, which was paid by the purchasers to the commissioners.</p> <p>A few days after said sale, when complainants and other purchasers went to take the property which they had bought at said sale, they were told by said Boykin R. that he had found said pretended will, and that he claimed all the property which said paper conferred upon him under the aforesaid family settlement and compromise, but would set up the said paper as a will and claim under it.</p> <p>The commissioners refused to go further, and at once turned over to said Boykin R. the proceeds of said sale, and all the other property of the estate, which consisted of one hundred and fifty head of hogs, twenty cows and calves, fifty head of sheep, ten horses and mules, forty negroes, twenty bales of cotton, three hundred barrels of corn, one hundred bushels of peas, one hundred bushels of wheat, thirty thousand pounds of fodder, farming tools and implements, household and kitchen furniture, worth $300.00, and proceeds of a sale of a lot of whiskey. All of said' property and the lands of deceased are held by Boykin R. and Kesiah Smith, in disregard of said agreement.</p> <p>Upon these allegations in their bill, the other heirs claim that Boykin R. Smith is trustee for them, and pray that by him, said Kesiah, and said Jesse F. Nixon, said agreement be specifically performed, and for discovery and account, and such further and other relief as is equitable.</p> <p>Said defendants demurred. The grounds of demurrer were: Because complainants had not made such a case as entitled them to discovery and relief; and because Kesiah Smith and Jesse F. Nixon and his wife, Georgia- Nixon, are improperly made parties defendant, as no discovery or relief is sought from them ; and because the remedies of complainants are complete at law ;, and further, because no one has the right to receive the projrerty except a legal representative. No consideration is alleged for said contract or agreement, and all the parties in interest have not signed the same; because, the proceeds of the sale went into the hands of complainants’ agents, and as by the agreement the propertjr is to be distributed according to the law, it- must be distributed under the will, which is the law in this case controlling the distribution.</p> <p>Upon the hearing, the Court sustained the demurrer and ordered the bill dismissed.</p> <p>The plaintiffs in error assign this order as error.</p>

Twelve months’ allowance to widow and children. Tried before Judge Speer. Pike Superior Court, April Term, 1867. This case stood for trial in said Court, on appeal from the Court of Ordinary. It was an application for “ the twelve months’ allowance for the support of widows and children.” It was caveated by plaintiff in error. The testimony was as follows : Mary C. Wilder (the widow applying,) said: James Wilder left six children, four of them minors, three living with me.

Ejectment. Tried before Judge Augustus’ Reese. Jones Superior Court. October Term, 1866. This was ejectment on the single demise of Elisha M. King, for one-fifth interest in the plantation in Jones County, owned by George Broach at his death, containing about four hundred acres, the boundary of which is therein given. There was a count for mesne profits. The plaintiff introduced the will of George Broach, dated 18th November, 1841.

Motion to establish lost bonds. Decided by Judge Fleming, at Chambers, during Chatham Superior Court, May Term, 1866.

<p>Motion to establish lost bonds. Decided by Judge Fleming, Chambers, during May Term, 1866, of Chatham Superior Court.</p> <p>This was a proceeding by defendant in error, before said Judge to establish certain lost bonds, (to wit: sixteen bonds for five hundred dollars each, numbered, and due as follows: Eos. 633 and 634, payable in 1888, with interest at seven per cent, per annum, payable in June and December in each year; Eos. 36 and 38, payable in 1874, with interest as aforesaid, payable in May and Eovember in -each year; bonds Eos. 109 and 110, payable in 1877, with interest as aforesaid, payable in February and August each year; Eos. 376, 377, 378, 379, payable in 1878, with interest as aforesaid, payable in February and August each year; Eo. 8, payable in 1872, with interest as aforesaid, payable in July and January in each year; Eos. 3, 4, 5, 6, 7, payable in July, 1872, with interest as aforesaid, payable in January and July each year, (said last five having been issued 7th July, 1852; all of said bonds and coupons thereto attached being payable to bearer,) by affidavit averring that on the 4th March, 1865, the said bonds were burnt in Cheraw, South Carolina, by soldiers of the United States army ; that none of the coupons had been detached therefrom or paid since 1st January, 1864; and that the same were destroyed with said bonds; that her said husband, Isaac S. Cohen, is dead; that she is his duly qualified administratrix, and as such claims said bonds and coupons.</p> <p>Eotice was served according to the statute, 7th March, 1866, that application would be made to the Judge of said Court, during said term, to establish the original bonds and coupons so alleged to have been destroyed; and on the foregoing facts, and without further evidence or proof, said application came on to be heard before said Court on the third day of July, 1866.</p> <p>Said corporation appeared by its attorney, who, before filing any written defence, objected and insisted that there was no authority in the Court for trying said cause at that term, on application filed and notice given during the term, and that there was no precedent or authority for establishing negotiable papers, transferable from hand to hand, alleged to be lost or destroyed, until such time as such papers should be due, and the risk of their transfer to a holder in good faith passed. Said attorney further argued and insisted that the act of the seventh day of March, eighteen hundred and sixty-six, entitled “An Act amendatory of the Law relating to the establishment of Lost Papers,” was violative of common right and unconstitutional, if its effect was either to deny to said corporation'the right to cross-examine the witness on whose affidavit the papers were sought to be established, or to take away the right of trial by jury, or to disable the Court to require indemnity from the applicant, or to subject said corporation to the risk of having to pay said bonds and coupons twice. Subject to said objections and points, and not waiving them, said attorney then filed a plea or answer, to the effect that there was not sufficient evidence that said bonds with coupons attached were either lost or destroyed; and that if there was such proof in the cause as would authorize the establishment of said alleged bonds as either lost or destroyed, yet that their establishment, if granted by the Court, should be upon such just and equitable terms, as to indemnity, as would secure said corporation from the possibility of loss in case such bonds should afterwards prove to be in existence.</p> <p>After argument had in support of and against the foregoing grounds of defence, the Court ordered said bonds, with coupons attached, to be established in lieu of the originals, without indemnity to said corporation, and putting said decision on the alleged validity of said act of seventh March, eighteen hundred and sixty-six; overruling all .the points made on behalf of said corporation, and ruling that it was not necessary to decide whether, under the law as it existed before that statute, the defendant would be entitled to a bond of indemnity; and that the law as it existed before that statute had nothing to do with the case until the defendant should have taken the oath prescribed in that statute.</p> <p>To which decision and rulings of said Court and Judge in the premises, the Mayor and Aldermen of the City of Savannah, by their attorney, excepted and say that said Judge erred—</p> <p>1st. In deciding that such application could be heard without having been made returnable to a term.</p> <p>2d. In deciding that the Court has authority to establish lost negotiable papers, transferable from hand to hand, until such time as said papers should be due.</p> <p>3d. In deciding that there was before the Court sufficient legal proof óf the destruction of said bonds sought to be established.</p> <p>4th. In refusing to require said applicant, Virginia J. Cohen, administratrix as aforesaid, to give indemnity to said corporation upon the establishment of said bonds as lost or destroyed.</p> <p>5th. In deciding that said act of '7th March, 1866, did or could constitutionally authorize the Court to establish said bonds without the right on the part of said corporation to cross examine the said applicant, and to establish said bonds without indemnity; and that said act did or could constitutionally take away the right of trial by jury, unless the defendant should make oath that said bonds never existed, or that the same had been paid off or discharged.</p> <p>6th. In deciding that there was any law repealing or interfering with that part of the sixth section of the act of the sixteenth day of February, in the year seventeen hundred and ninety-nine, entitled “ An Act to amend an Act entitled ‘An Act to revise and amend the Judiciary System of this State,’ ” which declares that “ the said Courts, respectively, shall have power and authority' to establish copies of lost papers, deeds, or other writings, under such rules and precautions as are or may have been customary and according to law and equity.”</p>

Murder. Motion for New Trial. Tried before and decided by Judge Vason. Dougherty Superior Court. May (Special) Term, 1867. The bill of indictment, in proper form, charged the defendant, alone and as the actual perpetrator, with the murder of Henry Holmes, with a knife, on the 13th April, 1867. The evidence produced at the trial, pro and non., was as follows: EVIDENCE EOR THE STATE.

<p>Habeas corpus from Dougherty County. Decided by Judge Vason, Chambers, February, 1867.</p> <p>The petition of Samuel Adams alleged that he was the father of Tucker, Francis, and Zachariah Adams, minors, and that they wore held in custody by William H. Adams, of Baker County, without any lawful authority, &c.</p> <p>The answer admitted the custody of the minors as charged, except the unlawfulness of it. It set up that he held them by indenture from the County-Court of Baker County.</p> <p>At the hearing, the petitioner in his own behalf swore that he was the father of said minors; that the oldest was about thirteen, and the youngest about eleven years old; that they were residing in Dougherty County until they were taken away by some one without his knowledge or consent, and taken possession of by defendant in Baker County; that witness lived with defendant in Baker County last year, where the children all lived; that he, they, and their mother belonged to said defendant while in slavery; that their mother and witness lived together as man and wife until she died, some time last summer; that after her death witness married another woman, who lived at Mr. Dykes’, in Dougherty County, and witness having three other small children (by his first wife) who were unable to work, took them to his present wife for safe keeping; that the three in controversy had been engaged to defendant for that year, and were left with him until shortly before Christmas, when witness hired them to Dykes for '$150.00 for the year ensuing, and delivered them to Dykes, who kept them till the latter part of January, when they were taken away ; that said defendant and Dykes were close neighbors; that when the children in controversy were born, witness had a wife at Thomas Pearson’s, some two or three miles from defendant’s residence, and witness went to see that wife Saturday nights; that when the two oldest children were born their mother had no husband, but habitually slept with witness all the time for two years before the birth of the oldest; that witness and said mother both lived with and belonged to defendant; that after the birth of the two oldest their mother married another man, named Taylor, who lived with Richard Griffin, but during this marriage witness continued to sleep with said mother as before, and before the youngest of the three in controversy was born, said Taylor died; that witness knows the children are his; he always claimed them, and said mother always called them his; that while witness and said mother were cohabiting, witness’ wife was sold and carried away, and witness married another woman, Frances, and lived as her husband till she bore a mulatto child; then witness quit her and married the said mother of the children in controversy, and lived with her till her death, and as her husband and the father of the said children, always controlled and claimed them; that defendant owned said children (before they were free), and raised them, and had frequently since tried to get them from witness, but witness refused to let him have them; that the children in controversy are all able to support themselves.</p> <p>Petitioner then introduced and examined Isaac Adams, who testified that he was acquainted with petitioner, defendant, and the three children in controversy; that witness once belonged to defendant, and so did petitioner and the children and their mother, until they became free; that petitioner always claimed the two oldest children- as his; witness heard that, to some persons, petitioner had disowned the children, but he never disclaimed them to witness ; that when the two oldest were born, and for a year or two before the birth of the oldest, petitioner and their mother usually slept together; that witness had seen them go to bed together; that during that time petitioner had a wife some distance from home, and went to see her on Saturday nights, but usually slept with said children’s mother ■ the remainder of the week; that the-mother always said the three children were petitioner’s; that after the birth of the two oldest, their mother married a man who did not live on the plantation with her, but some turn or three miles away; but this man died before the birth of the youngest of said three in controversy; *,that during all this time petitioner continued to sleep with said mother as before; that petitioner’s wife was sold and carried away, and petitioner married another woman in the neighborhood, and kept her until she bore a mulatto child, and then quit her and married the mother of said children, and lived with her as her husband till her death; that petitioner and said mother commenced some twelve years ago to live as man and wife ; and that defendant owned and raised the children.</p> <p>On cross-examination, he testified that when negroes became free he heard the petitioner say said children in controversy were not his, and that he intended to take the three youngest, that were his, and would not take these three ; that petitioner did take said three youngest ones, and left the others as defendant’s; and that petitioner never had the mother of the children for a wife till about one year after the youngest of the three in dispute was born.</p> <p>Plaintiff then examined Eobert A. Dykes, who testified that he had been neighbor to defendant and knew the mother of said children and the children and petitioner for about six years; and that said mother (till her death) and petitioner lived together as man and wife; that they all lived with defendant till a short time before Christmas last; that petitioner, having a wife at witness’ house, hired Said three children to witness for one hundred and twenty dollars and their board and clothing; that thejchildren came to his house shortly before Christmas, and remained there under that contract till about the last of January or the first of February, when, in his absence, they were carried away from his house without his knowledge, approbation, or consent; that the next he heard of them defendant had them.</p> <p>Plaintiff closed hero.</p> <p>Defendant examined Silas Adams as a witness, who testified that he was defendant’s brother; that he did not remember to have heard petitioner claim said three children as his, but heard him say last summer that they were not his; that petitioner and said mother were married about a year after the birth of the youngest of these children, and after said marriage had three other children, which petitioner took away some time last summer; that about a week before Christmas petitioner took the three in controversy from defendant’s residence; that petitioner had a wife before these children were born, and went to see her; that she was sold and carried away, and petitioner married another woman and then quit her because she had a mulatto child; that petitioner then married the mother (of these children), and they lived as man and wife till her death, last summer; that petitioner was a great run-about after the women; that petitioner carried the children in controversy away from defendant’s, in Baker County, and out of the county, without defendant’s knowledge or consent, and against his will.</p> <p>Defendant then swore in his own behalf that he owned all of said negroes while they were slaves, and they all lived with him last year, and the mother died last summer; that about a month before Christmas petitioner was of no service to witness, was running about in violation of his contract with witness; that before the children were born petitioner had a wife at a neighbor’s, whom he visited as negroes do, and witness thought was there most of his time at night, as he was frequently missing at night; that about a year after the birth of these children petitioner, with witness’ consent, married said mother, and lived with her as his wife till her death; that he had never conversed with petitioner on the subject, and knows not whether he had claimed or disclaimed these three children; that at the death of the mother, she, petitioner, and the children, all lived with defendant.</p> <p>Defendant then read in evidence an indenture, made in Baker County (though'the venue stated is Dougherty County), 2d February, 1867, between Benjamin F. Hudsputh, as Judge of the County-Court of said County of Baker, and defendant, whereby said children in controversy were bound as apprentices to defendant till their several majorities. The indenture recited that it had been made to appear to said Judge that said children were orphans, and left without any provision for their support, and were likely to become a charge to said county, and ended with recitals of his duty and obligation to clothe and educate them, and his power as guardian over them according to law. It was tested by “ J. Quarterman.”</p> <p>The evidence here closed.</p> <p>The Court restored the children to the custody of defendant.</p> <p>To1 this decision and judgment petitioner excepted, and now says the Court erred—</p> <p>1st. In holding said indenture binding; because it was not witnessed as a deed, and because it did not therein appear that said minors were residents of or domiciled in Baker County.</p> <p>2d. In holding that said instrument was only voidable, and could not be collaterally attacked, but must be attacked in the County-Court of Baker County.</p> <p>3d. Because the subsequent marriage of the petitioner and said mother legitimatized the children, and gave petitioner a right to their custody.</p> <p>4th. Because petitioner, as father of these illegitimates, was bound for their support and maintenance.</p> <p>5th. Because the children were domiciled in Dougherty County, and if taken to Baker County the County-Court thereof had no jurisdiction over them, and said indenture might be therefore attacked in any form, when sought to be used.</p> <p>6th. Because the mother has control of all her children while with her, and after her death the father of them has such control.</p>

Certiorari from County-Court. Decided by Judge Wason. Dougherty Superior Court, January Adjourned Term, 1867. The indictment charged George Washington with carrying on his person a pistol, in said county, on the 3d June, Í866, not in an open manner and fully exposed to view.

<p>1. When a defendant is indicted for having or carrying concealed weapons at a particular time and place, it is not competent for him to introduce evidence upon the trial to prove that it was his general habit to carry his weapon about his person openly exposed to view.</p> <p>2. When the Court charged the jury on the trial of a defendant for having and carrying about his person a concealed pistol, “that if the prisoner had a pistol, and it was in Dr. Paris’ during the morning he was guilty, and they must so find him ” : Held, that this charge of the Court was error.</p>

<p>Complaint Motion for new trial. Decided by Judge Clark, Quitman Superior Court, November Term, 1866.</p> <p>On the fourteenth day of June, 1854, James Eutherford bought from James Newsom, as agent for E. E. Graddy, a negro man named Joe, for nine hundred dollars, gave therefor his promissory note for that sum, payable to E. E. Graddy or bearer, on the first day of January thereafter, and took from said Newsom, as such agent, a bill of sale in the usual form, warranting said Joe sound in body and mind.</p> <p>Newsom brought suit upon said note, and Eutherford defended on the ground that said slave was at said time unsound in body, and worthless'.</p> <p>At the trial, plaintiff read in evidence the note, and closed.</p> <p>The defendant read in evidence the bill of sale, and then the answers of plaintiff obtained by discovery at common law.</p> <p>In those answers, plaintiff testified that, as trustee for E. E. Tinsley, then wife of Haywood Graddy, he ratified an agreement for the sale of said slave, made by Dr. L. Newsom with the defendant, by receiving said note and giving said bill of sale; that the note still belonged to his sister, said cestui que trust; that at that date Graddy and his wife had parted; Graddy had delivered to plaintiff, as trustee for his said sister, certain property, including said slave, and she was then sueing Graddy for a divorce.</p> <p>Defendant then read in evidence the answers of Mary Ann Howard to interrogatories. She testified that she knew the parties, and a slave named Joe, who once belonged to Elizabeth and Haywood Graddy, and that she thought she knew him three or four years while he belonged to them. She could not state positively when the slave went out of their possession, but, to the best of her recollection, it was in 1853 or 1854, and she thought he then went into defendant's possession; that the slave was in defendant’s possession, she thought, about two years. She had heard the negro was dead.</p> <p>As to his health, she said she had frequently heard him complain of being sick, and he complained of a pain in the breast, head and. back. Witness was then living with her brother-in-law, William Graddy, where said negro had a wife; and he would occasionally lay up for a short time while there, saying he was sick, and complaining as aforesaid ; he would sometimes come to witness and her sister and ask for camphor, something to take for colic. Witness had never heard Haywood say anything about Joe’s health, but had heard Elizabeth Graddy say Joe was frequently sick— this was while Joe was in possession of Haywood and Elizabeth Graddy.</p> <p>Upon cross-examination, she stated that she had heard Joe make similar complaints while in defendant’s possession; that she was not related to defendant or his wife, and did not know what became of Joe except by hearsay.</p> <p>Maria L. Graddy, in answer to interrogatories for defendant, testified that she knew Joe three or four years, while in possession of Elizabeth and Haywood Graddy; that he went out of their possession into that of defendant, she thought, in 1854, and remained in his possession from about the first of that year to about the end of 1855. Witness said she should think Joe’s health was rather bad, for he often complained of severe misery in his back and breast ; he had for several years a wife at witness’ house, and when there, he would often lay up for several days at a time, and complained of a misery in the back and breast. Witness is sister-in-law of Elizabeth R. and Haywood Graddy.</p> <p>Said negro was often sick while in possession of said Elizabeth and Haywood; witness never heard Haywood Graddy say anything about Joe’s health, but heard Elizabeth Graddy say that Joe frequently lay up and complained as above stated; never heard her say what she thought the disease was; she only said the negro was sick and complained of pains in the back and breast. The negro died shortly, before Christmas, 1855, in defendant’s possession, and about two years after defendant got possession of him.</p> <p>Cross-examined, she said she had often heard Elizabeth Graddy speak of Joe’s health, both at her own and witness’ house, and remembers particularly one time she came to witness’ house to see Joe while sick, and said he had such attacks frequently; Joe at that time was sick, and complained of misery in the back and breast. Ho one else that witness remembers was present at that conversation' except her sister Mary. Witness knows not of what disease the negro died, nor whether any one attended him in his last illness; defendant was at witness’ house when a runner came for him and said Joe was dying, and defendant left at once for home; defendant was at that time a practicing physician, though he never attended Joe as a physician before he bought him, so far as witness knew, and if he knew anything as to Joe’s health before buying him, witness does not know it.</p> <p>The defendant then introduced Eden Jackson, who testified that he knew Joe when he saw him, while he belonged to Haywood and Elizabeth R. Graddy, perhaps three or four years, but did not become well acquainted with him till 1853. Witness overseed for William Graddy in 1853, and he hired Joe for that year, and Joe was under witness’ supervision that year. Joe was sick frequently, and was attacked suddenly, and when attacked complained of pains in the back and breast, and during that year lost a good' deal of time on account of sickness; that when he was chopping cotton, he got into the grass because Joe was sick, and when pulling fodder Joe was taken with the same kind of sickness, and gave him no aid therein till the last day of fodder-pulling. Witness also overseed for William Graddy in 1854, and Joe went into defendant’s possession latter part of 1853 or former part of 1854. Witness overseed for defendant in 1855, and again had Joe under him and worked with him; in that year Joe had frequent and sudden attacks of sickness, and complained of pains or misery in the back and breast, as he had done in 1853, with this difference, however, that his attacks were more frequent, and that Joe lost a good deal of time from his old complaint in 1853. Joe was not better than half a hand in the farm ; a good hand was worth one hundred and fifty dollars per annum, and Joe only half that, because of his sickness. Joe died in December, 1855; on the morning of his death he and witness were killing hogs, and had killed two, when Joe was taken suddenly sick of his old complaint, clapped his hand to his breast, complaining of pain in his breast, and squatted down.</p> <p>Soon after, witness and Joe took up the hogs and carried them down to a place where they were to scald the hogs, and witness went up to his house to change his pants or put on another pair over those he had on, and a negro woman ran and told witness Joe was dying. Witness went to him immediately, and Joe drew his last breath immediately upon witness’ arrival. Erom what witness saw and heard on that occasion, he says Joe died of his old disease.</p> <p>He further testified that Wm. Graddy worked six or seven hands in 1853, and cultivated two hundred acres of land; that defendant resided about a mile or a mile and a half from Wm. Graddy, to go round, but perhaps nearer through; that defendant was a physician, and in 1855 worked ten hands, (including witness,) three of them small, ranging from ten years old up, the other seven were older, and defendant had in cultivation between two and three hundred acres of land.</p> <p>William Graddy was then introduced by the defendant. He testified that he was Haywood Graddy’s brother, and knew Joe when in possession of Haywood and his wife Elizabeth E., and that Joe then had a wife at witness’ house. Joe usually came to see his wife about twice a week, and was frequently taken down sick while there, and complained of pains in the back and breast; that he hired Joe in 1853 from his brother Haywood, hired him as a diseased or unsound negro, was to pay for hire ten dollars per month, deducting for all lost time on account of Joe’s sickness or from Joe’s running away — Joe ran away for one week, and that and his sickness reduced his hire to sixty-five or seventy-five dollars. Witness gave up Joe in September or October of the year. Haywood and his wife had separated; she was about going to Texas, and Joe fell to her in the division. Witness gave up Joe to Haywood (after he had kept him nine or ten-months,) to be delivered up to Elizabeth R. Graddy. Defendant was witness’ family physician, and as such visited any of his family when sick, but neither defendant nor any other physician was sent for to see Joe when he was sick. Witness does not know that defendant knew Joe was un-' sound; he called when sent for to see sick persons at witness’ house, but they nor their families visited each other.</p> <p>Before James Newsom started with his sister Elizabeth R. Graddy to Texas, he proposed to sell said Joe to witness; witness told him he had not the money to buy Joe, and if he had he would not buy him, because he considered Joe unsound — that knowing Joe as well as he did, and knowing he was unsound, he would not give three hundred dollars for him and take the risk, and that he did not wish to own any such diseased negro.</p> <p>Plere defendant rested his case.</p> <p>Plaintiff introduced Dr. James W. Mercer, who swore that in the early part of 1854 Dr. Newsom sent Joe to defendant to see if he would buy Joe, and hearing that he probably would, Dr. Newsom sold him and delivered him to defendant (subject to ratification of plaintiff when he returned from Texas,) at $800,00 cash, or $900.00 credit till 1st January ensuing. Plaintiff returned in June, 1854, and completed the trade by delivering Joe under said bill of sale and taking said note.</p> <p>Plaintiff left said note with witness for .collection, and defendant learned that he had the note, and when it was due (in January, 1855,) the defendant called on witness and said he had promised to pay it punctually, that his cotton was m Eufaula, that cotton was down and he did not wish to sell then, but would pay it by the first of March, 1855. Defendant failed to pay at the appointed time; about the first of May witness called defendant’s attention to it, and defendant, after some hesitation, said he had consulted bis attorney, and he had advised him it would be better not to pay the note until the suit then pending between Elizabeth E. Graddy and her husband for divorce was ended, for fear of some difficulty about the title. Defendant seemed concerned about the title, but said nothing about Joe’s being unsound or diseased.</p> <p>Plaintiff next examined Thomas W. Sanders, who testified that he knew Joe while he belonged to Haywood and Elizabeth E. Graddy, and in 1853 when 'William Graddy had him, and thought he was a good hand, but knew nothing about his soundness or unsoundness.</p> <p>Charles L. Matthews then testified for plaintiff: that he knew Joe while in defendant’s possession slightly; occasionally saw him at work in defendant’s farm — witness and defendant farmed on adjoining farms, and witness lived about a quarter or half mile from him ; he thought Joe was a good hand; occasionally saw him with defendant’s six or seven other hands working near witness’ farm, but witness knew nothing about Joe’s health. Defendant cultivated about two hundred and fifty acres of land.</p> <p>The evidence closed here, and the Court charged the jury as follows. After stating the issue between the parties, he said, that they were to inquire, “ 1st. Was Joe unsound at the time of the sale ?” 2d. To what extent, if unsound, did said unsoundness affect his value? If he was so unsound as to destroy his value, plaintiff should recover nothing; if, though unsound, he was not wholly worthless, plaintiff’s demand should be reduced in proportion to the diminution of value by such unsoundness.</p> <p>2d. In determining whether the negro was sound or not at the time of the sale, the jury were to be governed by the evidence only.</p> <p>3d. If you believe from the evidence that Joe was diseased before he went into defendant’s possession, and afterwards, and died of the same disease, you may find that he was diseased at the time of the sale.</p> <p>4th. Any complaints made by such slave, as to physical disorder, would be evidence on the point. If such complaints were made concerning the same kind of disorders, through a long period before the sale and until the sale, and eventually spme months thereafter the negro suddenly died, making the same kind of complaints, that would tend to show long standing disease.</p> <p>5th. On the other hand, if defendant, being a physician, and having had the negro in his possession long enough to be well acquainted with his condition, did, after the note fell due, repeatedly recognize his liability therein and provide to pay the whole of it, making no complaints of the negro’s unsoundness at the time, this is evidence tending to show that the negro was sound.</p> <p>6th. These are a part at least of the considerations which you are to weigh concerning the question of fact involved. I am not at liberty to give you an opinion; you are the sole judges thereof. Consider candidly all the evidence, and decide, was the slave sound at the sale? If so, find for the plaintiff the amount of the note and its interest. If the negro was unsound at that time, and to such an extent as to be wholly worthless, find for defendant. If he was unsound, but still of some value, find for plaintiff what is due, after deducting what the proof shows should be taken off for such unsoundness.”</p> <p>Counsel for defendant requested the Court, in writing, to charge, that if the negro was diseased at the time of the sale, the jury cannot find more than said negro was proved to be worth in his diseased condition.</p> <p>The Judge declined so charging, on the ground that the jury were sufficiently instructed on this point in the last sentence of paragraph 1st, and in the last sentence of paragraph 6th of said charge, and he did not refuse it in presence of the jury, but simply declined to give it, and afterwards told counsel why he declined.</p> <p>The jury found a verdict in favor of the plaintiff for six hundred dollars, with interest.</p> <p>A new trial was moved for, on the ground that the Court erred in charging paragraph 5th aforesaid, and in refusing to charge as requested as aforesaid, and because the verdict was strongly and decidedly against the weight of evidence, contrary to law and contrary to the law and evidence.</p> <p>It is stated in the bill of exceptions that a motion for new trial was made and a new trial was refused.</p> <p>The plaintiff in error assigns for error that the Court erred—</p> <p>1st. In its charge to the jury as aforesaid.</p> <p>2d. In declining or refusing to charge as requested as aforesaid.</p>

Motion to reinstate case. Decided by Judge Clark, Superior Court of Teirell County, November Term, 1866. At May term, 1866, of said Court, the case of Charles W. Eawson against James W. Powell was on the appeal; it had been continued twice on the appeal by the defendant, but never by the plaintiff, since the appeal, and defendant had been put on terms to try the case at said term!

Petition for re-hearing in Supreme Court. George W. Garmany, as agent of the Mechanics and Loan Association, was plaintiff in error against this petitioner, seeking to set aside a decision of Judge Vason, made in November, 1866, in a possessory warrant for fifty-four bales of cotton. The case was returnable to December Term, 1866, of this Court, and at that term the judgment below was reversed.

<p>A mandamus nisi to a Judge of the Superior Court, will be refused when the parties to the suit by their written agreement, for their mutual convenience, did not present a bill of exceptions for his certificate and signature, until six months after the adjournment of the Court at which the trial was had.</p>

Sci. fa. Certiorari from the County-Court of Sumter County. Decided (as is alleged) by Judge ’Vason, at Chambers.

Demurrer to bill for account and injunction. Decided by Judge Clark. Terrell Superior Court. November Term, 1867. The bill makes this case: William Henderson, of Terrell County, Georgia, died in 1852, intestate, leaving a large estate in lands, negroes, horses, mules, stock of every kind, farming implements, produce of all kinds, money, notes and accounts, amounting to sixty-five or seventy thousand dollars. Complainant is entitled to one-third of said estate.

Motion to dismiss appeal. Decided by Judge Vason. Sumter Superior Court, April Term, 1867. Plaintiff in error sued said Hand & Bagley as makers, and one Lewis as endorser, of a promissory note. At April Term, 1866, there was a verdict against the makers, and judgment thereon, from which, within four days from the adjournment of the Court, to-wit, on the 17th April, 1866, they entered an appeal according to law.

<p>Certiorari from, a decision of a County-Judge, must be sued out within ten days from the decision, and not afterwards, that being the time prescribed therefor in the act organizing the County-Courts.</p> <p>The decisions of possessory-warrants form no exception to this rule.</p>

<p>Bill for direction. Decided by Judge William M. Reese. Elbert Superior Court. March Term, 1867.</p> <p>Joseph Rucker executed his last will and testament on the 12th of March, 1861.</p> <p>The 8th and 9th items of it were as follows:</p> <p>“ Eighthly. — I give, bequeath and devise to the children of my daughters, Martha Durrett and Catharine White, twenty-five hundred dollars in money, and twenty-five negroes of an average value of those remaining or not otherwise disposed of, to be equally divided among them all, — that is, all of the children of my daughters, Martha Durrett and Catharine White, in fee simple.</p> <p>“ Ninthly. — I give, bequeath and devise to the children of my daughters, Martha Durrett and Catharine White, one-seventh part of the remainder of my negroes not otherwise disposed of, at an average value, to be divided among them share and share alike; — that is, the children of .my daughters, Martha Durrett and Catharine White, in fee simple forever.”</p> <p>In 1864, Joseph Rucker died. Said will was proven in common form in September, 1864, and in solemn form in March, 1865. Elbert M. Rucker and William M.-Haslett were qualified as his executors in September, 1864.</p> <p>Martha Durrett and Catharine White died before the will was made. At that time, there were living two children of Martha Durrett, to-wit: Thomas J. R. Durrett of Hart County, (who died in Hart County, Georgia, in August, 1864, a few weeks before the death of said testator,) and Frances M. Harper, wife of William J. Harper, of said Elbert County. Thomas J. R. Durrett, deceased, left three children, to-wit: Richard D. Durrett, Agnes Durrett and Thomas Durrett, all minors, still residing with their mother in Mississippi.</p> <p>When the will was made, there were living two children of Catharine White, to-wit: Margaret Ruffin, wife of Thomas Ruffin of Mississippi, and Sarah F. Ruffin, who died in 1864, before the death of said testator, — she leaving three children, to-wit: David W. Ruffin, Rosa M. Ruffin and Kate Ruffin, all minors, residing, (when the bill was filed,) in Mississippi.</p> <p>For William J. Harper and Frances, his wife, and Thomas Ruffin and his wife Margaret, it is claimed that said legacy to the children of Martha Durrett and Catharine White, belongs exclusively to them, as the only persons living at the death of the testator, who answered the description of “ the children of Martha Durrett and Catharine White.”</p> <p>For the said minor children of Thomas J. R. Durrett, and the said minor children of Sarah S. Ruffin, it is claimed that they are entitled to the shares of said legacy which their said parents, if living at testator’s death, would have respectively taken.</p> <p>Emancipation having disposed of the negroes as property, the fight is over the money legacy only.</p> <p>The prayer of the bill filed by said executors, is that they be directed how to pay out said fund.</p> <p>Guardians ad litem for the minors were appointed. All the claimants answered the bill, admitting the statements aforesaid, and setting up their respective claims as aforesaid.</p> <p>By consent all the questions of law and fact were submitted to the Judge for decision, and it was understood that he would file his written decision, and either party might except within thirty days thereafter.</p> <p>The decision of Judge Reese, after stating the facts, is as follows:</p> <p>The controversy between grandchildren and great-grandchildren, has given rise to the bill filed by the executors for direction.</p> <p>The grandchildren, called in the will the children of his daughters, (M. D. and C. W.,) insist that the legacy of $2,500 is given to a class, and under the law, passes to the survivors of that class. The great-grandchildren insist that the legacy is given to individuals, sufficiently described to be ascertained, and under the law of lapsed legacies, descends to them.</p> <p>According to Mr. Jar min, v. 2, p. 69 b, the legal construction of the word “ children,” accords with the popular meaning, and refers to immediate offspring; and the same author, in page 74 of 2 vol., says, an immediate gift to- children, that is, a gift to take effect or possession immediately on the decease of testator, whether the gift be to children of living or deceased persons, whether “ to children ” simply, or “ to all the children,” and whether there be a gift over, in case of the decease of any of the children under age, or not comprehending children living at testator’s death only. This author says the words “ the children ” and “ all the children,” mean the same — one is no clearer than the other. To sustain his position, the author cites 1 Brown C. C. Rep., p. 542 ; 5 Madd.? 332, which sustain him fully.</p> <p>In 25 Ga., pi 559, Judge McDonald says, “ the negroes are all passed by the second item of the will absolutely, except seven — -they passed to the children of testator. Grandchildren cannot take by the descriptive word ‘ children/ unless there is something in the will to manifest that intention. Nothing could pass to Philip Walker, for he is not named, and at the death of testator, he was dead, tie was not a child.” On p. 356, the Judge (McDonald) says, “According to the interpretation we put on the will, Walker could take no interest under the 2d item of the will. The children who are beneficiaries under that class, are not named. The negroes are given to the children as a class, at the death of testator.”</p> <p>In v. 1, p. 295, Jarmin says, “when the devise embraces a fluctuating class of persons, who by the rules of construction, are to be ascertained at the testator’s death, the decease of any such person during the testator’s lifetime, will occasion no lapse, even though the legatees are made tenants-in-common, since members of the> class antecedently dying, are not actual objects of the gift. Then if the property be given simply to the children, equally to be divided between them, the entire subject of gift will vest in any one child or a larger number of them surviving the testator, without regard to previous deaths.” The author cites 13 East, p. 526, to sustain this proposition.</p> <p>In this case from East, a contest arose over the following words of a will: “ I give unto the children of Mary S., ¿£50 to be equally divided amongst them, share and share alike, and to the children of E. M. ¿£20, to be equally divided amongst them, share and share alike.” Lord Ellen-borough, Chief Justice, says in relation to this will, then, “Looking at the will before us, I have little doubt in saying that the testator intended to devise his estate to the several objects of his bounty in classes, taking the chances of there being a greater or less number of persons in each class, and meaning if there was more than one individual of the same description, they should all take equal shares, — if only one, that one should take the whole given to that class.” Lord Ellenborough refers in this case to 2 Vernon, Crook vs. Brooking, as an authority.</p> <p>Jarinin on the subject of Lapse further says, v. 1, p. 295, “ And the rule is the same when the gift is to the children of a person actually dead at the date of the will, in which case it is to be observed, that the class is susceptible of fluctuation only by diminution.” He cites as authority, 2 Brown, C. C., 658, (v.) a. The case referred to in 2 Brown is as follows: “ Master of the Rolls, — there is no doubt in this case as to the bequest to the children of S. W., for all 8. W.’s children were alive at testator’s death.” It was once thought that a bequest to the children of A., might extend to all the children born at any future time; but it is now settled in favor of such children as are born at the time the distribution of the fund was to take place, — the doubt in this case arising on the clause which gives “ to the children of my late sister M. C., ¿62,000 to be equally divided between them.”</p> <p>As I said before, the general rule is, that the children living at the time of the distribution of the fund, shall take. It is to be distributed at testator’s death; such children as are then alive, shall take. If it is to be distributed at the death of some other person, then the testator should be supposed to mean such children as are then living. Then thejquestion is, whether a gift to the children of his late sister C., is or is not indicative of an intention different from what would be imputed to him under this general rule; namely, that he meant the particular children living at the time he made his will, to take the fund equally between them, and that it was the same thing as if he had given “ the ¿62,000 to the three children of my late sister,” for in that case it would have been a legacy to these designated persons. How when a testator gives a fund to be divided amongst his own children, he shall be supposed to mean such children as shall be living at the time of his death; if so, why should I suppose that the sister being dead, he meant to do anything else than what would be imputed to him in the other case ? This is not like the case of Bender vs. Suffolk, 1 P. "Wms. 96, for there the gift is to the five children, “which shows that he had particular objects in view. The general rule, I take it, is to exclude all children who, though living at the time of execution of the will, yet die before the testator, and to include those who are living at the time of distribution, though born after the will or the death of the testator.” Such is the case from 2d Brown, and one similar to the case now before me.</p> <p>It is true that the case of Martin vs. Wilson, 3 Brown, C. 0., 325, is opposed to the one just cited; but Jarmin and Roper both condemn it, say it would not be followed, and was made in ignorance of the case in 2 Brown, C. C. The only other case remaining to be noticed, is that in 30 Ga., 977, where the question was, whether certain words made a gift to a class or to individuals — the words being, “ The estate to be divided between my two sisters’ children, E. J. and M. L., viz, (naming the children); and the facts in addition were, that one of the named children died before the testator and unknown to him. Judge Stephens delivered the opinion of the Court thus: “Did the testator intend to give the estate to certain persons named, and who were children of his two sisters, or did he intend to give it to a class described as children of his two sisters, including all who fell within this class and none who did not — the names only being mentioned as a supposed correct enumeration of the individuals who composed the class?” To this question the Judge says: “ Though children were named, class was the ■ leading idea. Blood was the probable motive of the gift, and we think the gift should go to all who were children of the two sisters and none others — to all who, at the death of testator, answered the description, — that being the time when the will was to speak.”</p> <p>Counsel for the great-grandchildren of Mr. Rucker, urge in reply to this case, that while this is a true rule of construction when the contest is between surviving children or grandchildren and residuary legatees or heirs at law, it should be varied when the contest is between surviving children and grandchildren or the issue of children; — that it, should be held in such cases the word “ children ” means not a class,' but particular persons. I think it is impossible, consistently with reason, to maintain that the words of a testator may mean differently according to the particular form of the controversy before the Court; — that the will should be construed to meet all the accidents of life; — that if certain events happen, it shall be construed to mean a class, and if certain other events happen, particular persons.</p> <p>To show further that the words of this testator must be construed according to the usual rule, I will notice some very important omissions. The testator, Rucker, names no child or children — a remarkable omission of a grandfather familiar with his descendants, desiring to give to particular persons and not a class. Then there are no words of reference to existing children, no allusion to their number, no words of identification. The money given is not divided into two equal parts between the children of Mrs. I). and Mrs. "W., thus showing an intention not to give one grandchild more than another, no matter from what stock he may issue. The legacy given is not divided into parts corresponding with the actual number of children when the will was made. I am therefore of the opinion, that the claim of the grandchildren, the surviving children of Mrs. D. and Mrs. W., is the best, and do order the $2,500 to be equally divided amongst the children of Mrs. Durrett and Mrs. White alive at the testator’s death, and no others; and I further order and direct the costs of this proceeding and fee of complainant’s counsel, be paid from the residuary legacy of testator, as this is the proper fund to charge these items of expense upon, according to the decision in 14 Ga., 416.</p> <p>Edmund B. Tate, Jr., proohien ami for Richard D. Durrett, Agnes Durrett and Thomas Durrett, and for David M. Ruffin, Rosa M. Ruffin and Kate Ruffin, excepts to the decision, claiming that the Durretts and Ruffins respectively are entitled to one-fourth of said legacy.</p> <p>The executors except to that part of the decision which charges the residuary legacies with costs, etc., they contending that the $2,500 should be charged therewith.</p>

Certiorari from County-Court. Decided by Judge Yasoet, Dougherty Superior Court, January Adjourned Term, 1867. In the County-Court of said county, in July, 1866, Palfus was tried on an indictment for keeping and maintaining a common ill-governed and disorderly house. The testimony introduced was as follows : James II.

Divorce. Alimony. Sayings of wife. Tried before Judge Cole. Macon Superior Court, March Term, 1867. Harriet Caldwell, widow, married James S. Odom, widower, 26th January, 1860.

Ejectment. Motion for new trial. Decided by Judge Irwin. Dougherty Superior Court. December Adjourned Term, 1866.

<p>On the trial of an action on a promissory note given in consideration of Confederate notes, the Court charged the jury, “That in determining the equities in this ease, you may consider the law read from the Code, (sec. 2723,) authorizing the holder of a note payable in specifics, on failure of payment, to recover the value of such articles at the time the note is due and payable, but you are not bound to do so.” Held, that this charge is erroneous, being calculated to make the jury believe that the value of Confederate notes, at the time the note falls due, is the amount for which they should find.</p>

<p>Amendment. Demurrer. Decided by Judge Worrill, Schley Superior Court, October Term, 1866.</p> <p>John Joyce owned an interest in the estate of Jesse Cherry and of Naomi Lilly, deceased. John Springer was the executor of Cherry, and Samuel H. Crawford was the administrator of Lilly.</p> <p>Joyce, for a valuable consideration, sold his said interest to Burton A. Congleton, and delivered to him an irrevocable power of attorney to sue said Springer, executor, and Crawford, administrator, for said interests. For a like consideration, Congleton sold two-thirds of his said purchased interests to William A. Black and Wyatt R. Singleton, and agreed to prosecute suit for the same, at the common expense, and for the common benefit of said three purchasers.</p> <p>Congleton filed his bill in the name of Joyce for discovery, ne exeat, &c., against Springer and Crawford. Congleton died, and Austin Congleton became his administrator. Crawford died, and his wife administered on his estate; and Springer died, and his estate was administered upon by Henry S. Davis.</p> <p>Before Springer died, he left with Seaborn Montgomery a sum of money and other assets to meet the decree of the Court, and save harmless his securities on the ne exeat bond. Austin Congleton refused to prosecute said cause.</p> <p>Said Black and Singleton set forth these facts in a supplemental bill, and prayed that Joyce’s name be stricken, because he was an unnecessary party complainant; that they be made the sole complainants in said bill; and that the said administrators of Springer and Crawford, and said Montgomery, be made parties defendant to said bill, without prejudice to said ne exeat, and the cause proceed; and that they account with complainant as assignees of said interest of Joyce.</p> <p>This supplemenal bill was demurred to, for a misjoinder of defendants, and causes of action, and multifariousness, and because the object of complainants could be obtained by amendment to the original bill; and lastly, because complainants’ claim is champertous.</p> <p>The Court overruled the demurrer, on terms as follows: that the administrators of Springer and Crawford be served with seire faeias to show cause why they shall not be made parties defendant to said original and supplemental bills; and that in the meanwhile they shall not be held to be parties thereto.</p> <p>Plaintiff in error excepted to this order and judgment, and assigns the same as error.</p>

In Equity in Fayette Superior Court. Motion for new trial. Decided by Judge Warner, March Term, 1867.

<p>Motion to attach for violating injunction, in Fulton Superior Court. Decided by Judge Warner. April Term, 1867.</p> <p>This bill was filed by Thomas C. Howard against Frederick A. Williams and John C. McLean, for account and settlement, and against Samuel A. Durand for account, settlement and injunction.</p> <p>The facts as set forth in the bill are substantially as follows:</p> <p>In March, 1857, or 1858, complainant, John S. Williams, John H. Lovejoy and H. L. Currier, composed “ The Atlanta Spoke Company,” manufacturing spokes and hubs for carriages. They were to furnish equally the necessary capital, and equally share the profits and losses of the business. John S. Williams and Frederick A. Williams were at the same time, partners under the style of F. A. & J. S. Williams, manufacturing furniture, and owned valuable water power near Atlanta.</p> <p>Before any work was done by “ The Atlanta Spoke Company,” Lovejoy sold his interest therein to F. A. Williams, and said Currier sold his to F. A. & J. S. Williams.</p> <p>Complainant consented to these changes, and he and said Frederick A. and John S. agreed to continue under said first name, they owning one half and complainant the other half, with the privilege to said Spoke Company of using said water power as long, as said Spoke Company desired it, paying F. A. & J. S. Williams for such use, one dollar per day.</p> <p>The Atlanta Spoke Company thus constituted, bought much machinery, consisting of mortising machines, lathes, pulleys, belts, etc., suitable for said work, and a patent spoke lathe, known as the Burn lathe, with the right to sell said lathe in Alabama, Mississippi, Texas, Louisiana, Georgia and other States.</p> <p>Said articles cost $12,000, and buildings, etc. to operate the same cost over $2,000, one-half of which sums complainant paid.</p> <p>Complainant having confidence in said Frederick A. and John S. allowed them the exclusive management of the business, and-they so managed it till John S. died. This was some time in 1858. Frederick A. took the interests and rights of John S., as survivor of F. A. & J. S. Williams, and he and John C. McLean, (who had bought one-half of F. A. Williams’s interest,) and complainant continued the business upon same terms and under same name, till about 1st January, 1861. Said Williams and McLean exclusively managed the business. They sold $5,000 worth of spokes and hubs, the cost of manufacturing them not exceeding two thirds of that amount. They sold several of the Burn lathes, with the rights and privileges átiached thereto, at a profit of $4,000. Complainant is entitled to one-half of said profits.</p> <p>Their employees went into the army and the work stopped. There was then on the premises finished and unfinished hubs and spokes, worth $6,000 or other large sum, a rim binder invented by E. L. MortoD, worth $500. By contract, Morton was to patent this, and the Company had a right to use it as long as it wished. That use is worth $1,000 per year. The said water power was worth to the Company $1,000 per year. All the- machinery and work of the Company was on the premises.</p> <p>In April, 1861, F. A. Williams became, from disease, unable to attend to business. On the 21st August, 1862, Williams and McLean sold one-third interest in all the lands and improvements, with the water power, mills, machinery, engines, lathes, tools, patterns, stock of all kinds on the premises or at the mills, finished and unfinished work in the shops, to Samuel A. Durand, and then and there formed a partnership with him, in the business of manufacturing furniture.</p> <p>In September, 1862, Durand bought out McLean’s interest in this firm, and afterwards bought out Williams’s interest therein. Complainant had no notice of the sales.</p> <p>Although no intention of defrauding complainant in this trade, is charged to Williams and McLean, yet they put Durand into possession of all the property of said Spoke Company, which was in said mills, shops and other houses on said land.</p> <p>Durand bought with notice of complainant’s rights. Complainant has offered to furnish one-half of the necessary capital, but Durand denies him any rights in the premises, and is making spokes and hubs on his own account, and getting large profits by contracts for the same.</p> <p>Complainant has offered to sell out to Durand or buy him out. He has offered to sell the whole and divide with Du-rand. Durand will do neither, nor .will he submit their claims to arbitration.</p> <p>Machinery being very scarce, this is now worth double the original cost; it is encumbered by no debt, and with sufficient hands, fifty thousand dollars per annwn profits could be realized by making spokes and hubs, so great is the demand for them by the Confederate States and others.</p> <p>Durand is realizing these profits, and refuses to allow complainant to participate therein, and is wearing out said machinery and consuming said material.</p> <p>After the other prayers usual to such a bill, is a prayer for injunction against Durand, enjoining him from selling any of the finished or unfinished material and work on hand belonging to said Spoke Company, from running, using, selling or disposing of any of the machinery, mortising machines, pulleys, belts, patterns, rims, lathes, etc., belonging to the said Company, until further order.</p> <p>The injunction was granted by Judge O. A. Bull, 9th January, 1863. Injunction issued, and Durand was served 16th January, 1863. There was a return of non est inventus as to the other defendants. Durand has not answered the bill.</p> <p>At April Term, 1866, it was represented to the Court, that Durand had violated said injunction by selling and otherwise disposing of all the finished and unfinished work and materials of said Company, with its machinery, heretofore enumerated.</p> <p>Thereupon he was ordered to show cause why he should not be committed for contempt.</p> <p>At that term, Durand, for cause, denied that he had violated said injunction, that he had sold or disposed of any of said property; that he had used, sold or disposed of the machinery, and stated that a short time after the service of said injunction on him, his shops, machinery, water-power, etc., including the machinery mentioned in said rule nisi, was seized and impressed by Major Norman ~W. Smith, Chief Inspector of Field Transportation, of the Confederate States Government, and was used by him up to a period within a few days of the fall of Atlanta, when said machinery was carried or sent by the agents of the Government, to the city of Augusta for safety and to prevent it from falling into the hands of the enemy; and afterwards when Augusta was threatened, it was removed to Greenville, South Carolina, where it still is, so far as he knows, subject to the decision and decree of the Court.</p> <p>In September, 1866, Durand, “by way of amendment to his said answer,” further answered, that shortly after service of the injunction, and after he had stopped his operations in obedience thereto, complainant and he commenced negotiations for a settlement of their said controversy; that he, as he believed, had purchased all of said machinery, etc., from F. A. Williams and McLean, in a trade for their land, waterpower and manufacturing establishment, to which the machinery of the Atlanta Spoke Company was attached, without any reservation having been made.</p> <p>Defendant, in reply to a proposition made by complainant to purchase said machinery, sto.ck, etc., on the 11th February, 1863, wrote as follows :</p> <p>“ Colonel T. C. Howard : — Your proposition to purchase the machinery and stock heretofore belonging to the Atlanta Wheel and Spoke Company and now in my possession, (one-half of which is claimed by you,) is hereby accepted; the price is understood to be six thousand dollars, to be paid by you to me and (upon) delivery of the property, said property to be delivered whenever a certain contract for six hundred wheels, which are now being completed, shall be ready for delivery.</p> <p>“ I understand that you are to have the benefit of all the net profits arising from said wheels, which profits are to be deducted from the six thousand dollars you are to pay me for the property.</p> <p>“I further understand that Captain E. L. Morton is to select out the property sold, and to assist in preparing it for removal from my premises; also that I yield my claim to any hand or hands now in my employ, whom you may wish to employ for any purpose, and work for you myself at just compensation.</p> <p>“ I further understand and hereby agree, that in case of failure on my part to carry out the sale and delivery of the property above-mentioned, I forfeit and pay over to you the sum of ten thousand dollars as fixed and liquidated damages. On the other hand, should you fail or decline' taking the machinery, etc., and tender me the money as above, within ten days after I shall have announced ready to receive it a,nd deliver the property sold, you are to renounce all claim or claims whatever to said property, and yield the same to my benefit. Samuel A. Durand.</p> <p>Test. J. T. Lewis.</p> <p>“If the foregoing recital of our trade is in accordance with your understanding from what Captain Morton verbally communicated to you, then endorse below, the words ‘ Ratified and agreed to, this 11th February, 1863, in presence of/ Let Captain Morton be the custodian of this paper till the trade is either consummated or abandoned.</p> <p>S. A. DURAND.” ■</p> <p>Complainant, in presence of said Lewis, wrote on said letter, “ Ratified and agreed to, this 11th February, 1863,” and signed the same.</p> <p>Durand says this agreement settled the injunction to all intents and purposes, and remitted the parties to their respective rights. He urges that this view is proven by the fact that in March, 1866, Howard brought suit against him on said paper, in the Inferior Court of said county, for ten thousand dollars liquidated damages, as appears by exhibited copy of the declaration.</p> <p>He therefore insists that he cannot be liable for any violation of the injunction after 11th February, 1863. He says he has not violated said injunction, the,same having been virtually dissolved, and said case settled by said contraot; and he feels confident that complainant so thought and understood; which confidence, he says, is strengthened by no step being taken from that time till April, 1866, to move in this case.</p> <p>At April Term, 1867, said motion being in order and the parties ready for trial, the following evidence was submitted:</p> <p>Affidavit of complainant, (sworn to in open Court, April 18th, 1866,) stating that Durand had violated the injunction by renting out the machinery and privileges of the Atlanta Spoke Company, to one Major Hawes, in 1863, who used it for the Confederate States Government; that Durand also sold and otherwise disposed of a great deal of the material and work, finished and unfinished, on hand when the injnnction was granted; that he sold spokes and hubs to Edward Gardner of said county, and offered to let him have as many as he wished; that he sold spokes and hubs to Mack, a negro ; that he sold or gave to one Winton, of said county, spokes and hubs, and a rim or wood binder which was very valuable; that he has sold, given away or otherwise disposed of, or allowed to be wasted or destroyed, the whole of the balance of the machinery, tools, material and work on hand when the injunction was granted; that these sales were to persons and for sums unknown to complainant, and without his consent, and against his wish :</p> <p>Affidavit of Edward Gardner filed in office, April Term, 1866, which stated that on or about 15th April, 1863, he purchased from Durand, spokes, hubs and rims, which were known akthe time of the purchase as a part of the stock of the Atlanta Spoke Company; that he is certain as to the spokes and hubs, and is almost certain he bought rims also, that he knows of his own knowledge that said articles belonged to the Atlanta Spoke Company, and that Durand told him they were of the old stock, and had been seasoning three years, and that he could get as many as he might need thereafter, as he Durand, had thousands of dollars worth of well seasoned stock on hand, that he paid Durand therefor a stirrup machine worth $200^ that he is a carriage-maker and knows what he says, and that Durand broke several spokes to show him that they were seasoned :</p> <p>Affidavit of G. B. Tedder stated, that he was in Durand’s employment in the latter months of 1863, that he heard Durand say that he had been trying some time to rent his property known as Peachtree Mills, to the Confederate Government; that he did rent said property, including the hub and spoke and rim machinery, as deponent thinks and believes, to Captain Green and Major Hawes, and from what he heard Durand and said Green and Hawes say in repeated conversations, he has not the least belief that said property was seized; that a large and valuable lot of manufactured'stuff was on hand, worth, in his opinion, several thousand dollars; that Durand sold, and he sold, by Durand’s request, hubs and spokes made a considerable time before the sales :</p> <p>The answers of ¥m. F. Hawes to interrogatories, substantially to this effect. He had in his possession the contract with Major Norman W. Smith, Chief Inspector of Field Transportation for District, No. 2, C. S. A., as all contracts had to be made in his name. Captain John W. Green, Inspector of Transportation on the field, received a letter from Durand about the first of February, 1864, proposing to rent a manufacturing establishment on Peachtree Creek, and I was ordered to inspect the property as I had the locating of repair shops of the army. I immediately went with Captain Green to inspect it, and agreed to the use of all the machine shops and machinery, all of take it on Durand’s proposition, which was : I was to have the surrounding houses, (except Durand’s dwelling) the arable land on same side of creek as was his dwelling, for $2500 per annum. The price of timber, lumber, &c., was mentioned in the contract.</p> <p>The contract was sent to Augusta for Major N. W. Smith to sign. After I had possession and had been working the shops some two weeks, Durand refused to sign the contract as made and sent to Smith on his proposition. I telegraphed Smith and he came to Atlanta that night, about the first of March, 1864. During that month I received an order from Captain Green to impress the property, but Durand had signed the contract before I notified him that I had the order.</p> <p>■ The contract, or a true copy which I had, is lost. I bought at the shops, under that contract, 44 gallons lard oil, 108 pounds paint, 10,000 feet seasoned oak lumber, 8,000 large wagon spokes, 12,000 small spokes, 1200 wagon felloes, 395 large and 200 small wagon hubs, and. 300 pounds band iron, 100 pounds Swede iron, 500 ditto, 12 wheelbarrows, 15,000 brick, 15 pounds babbit metal, 300 pine trees at the works. I rented the property about the 1st of February, 1864, and left in July, 1864.</p> <p>I do not know the value of the material on hand. All the lumber, such as hubs, spokes, bedstead and chair furniture, was destroyed by the enemy and citizens. Durand took away nothing except the finished chairs. Durand let Porter have the machinery out of the old flour-mill between the saw-mill and machine shops, for a distillery, in which he and Porter were partners.</p> <p>By orders from my superiors, in July, 1864, I moved the machinery first to Greensboro, then to Augusta, and part after-wards to Washington, and part to Greenville, South Carolina. I did not consult Durand about moving it. I paid him $1,250 I think, as rent. Durand told me after he had signed the contract that he knew I had an order to impress, and he thought it best to settle it in a friendly way. He and Porter wished to erect a distillery in one of the shops which I had rented, and I refused; this was Durand’s reason for refusing to sign the contract.</p> <p>George H. Sullivan, in answer to interrogatories, said substantially, that about the 1st of November, 1865, Durand showed him a list of machinery (which he said had been at Williams’ Mills) for manufacturing hubs, spokes and rims, and they entered into a contract of partnership to make hubs, spokes, &c., in connection with the cabinet business, by which I was to control the machinery for five years from 1st of January, 1866, &c. He sold me half of the material on hand which consisted of about 8,000 spokes, some artillery wheels and chair stuff, and he sold me a quantity of wagon, buggy and artillery timber. He sold to me, for a term of five years, a complete set of spoke and hub machinery, representing that it ha,d successfully operated at Williams’ Mills till the Federal troops threatened the place, when it was refugeed away. Shortly after this, he told me he had paid a man $200 to go for it and deliver it to me.</p> <p>In answer to cross-interrogátories, he stated that he had no interest in the suit; that he had had no difficulty with Durand only what had grown out of suits by Durand against him, and that he had no personal enmity whatever against Durand.</p> <p>Wm. G. Harris’ interrogatories were to this effect:</p> <p>I went to Williams’ Mills 1st September, 1865. There was no machinery of the Atlanta Spoke Company there then, but there were about 6,000 spokes, some of them slightly damaged, and some artillery wheels, no rims nor hubs. By arrangement with Durand, I sold all the material, and gave him one-third of the proceeds. I sold one hundred spokes for $7, 5,000 spokes to A. T. Fenney at 3 J- cents each. Durand got $40 for four wheels sold by himself. Durand sold me two-thirds of the machinery of the establishment and wished me to go for it.</p> <p>Durand afterward sold this same machinery to George H. Sullivan without my knowledge or consent. Durand said the machinery was ample for making buggy spokes,’ rims and hubs, and wished me to get workmen and to do a carriage-making business. This all occurred about September, 1865.</p> <p>Lewis J. Pare testified by interrogatories, that he knew the property of the Atlanta Spoke Co., at Williams’ Mills, on Peachtree Creek. It consisted of two spoke machines, two polishing belts, augurs, chisels and other tools, one lathe and mortising machine, and one machine for building rims for buggies, wagons, &c., with shafting, pullies, belting, &c., to drive the machinery, one steamer for steaming rims, some 12.000 or 15,000 unfinished spokes of different sizes, about 30.000 finished spokes of different sizes, for buggies, wagons, omnibuses, &c., considerable spoke and hub timber, with lease for about two years from 1st January, 1863, of water power, and room in the houses to run the machinery.</p> <p>It was worth $8000.00 on gold basis, and cost much more than that. Complainant had one-half interest in it, and had invested therein prior to April, 1861, about $7000.00.</p> <p>Before Durand made his purchase he asked Parr about said property, and what he thought it was worth. Parr told him that it was a good enterprise, worth from $12,000 to $15,000 at that time. Durand asked him if Howard wanted to sell his interest, and what it had cost. Parr informed him that he knew well what Howard had paid for his half interest; that it was from $6,000 to $7,000, but that he did not know whether Howard would sell.</p> <p>Parr was Ploward’s agent and paid all or nearly all of said money for him.</p> <p>Edward L. Morton was examined by interrogatories. He testified as to the organization and changes in the Atlanta Spoke Company in substance as stated in the bill; the purchase of Williams’ and McLean’s interests by Durand. He stated that from the organization he had been the confidential adviser and foreman in the business, and knew the workings of the same; and that Howard, at time of Du-rand’s purchase, owned one-half of the Atlanta Spoke Company, and this fact was recognized by everybody connected with the works. It was costly machinery, and from what Williams and McLean had said to him, he supposes it was worth, when Durand came in, $10,000.00 or $15,000.00. He was Durand’s foreman, and knew several propositions from him to Howard were sent, looking to a settlement of their controversy.</p> <p>He was the bearer of the written proposition set out in Durand’s amended answer, and after Howard accepted it, he was the custodian of it as their common friend. After the acceptance, Howard deposited $6,000.00 in the Georgia Railroad Bank, in Atlanta, and took a certificate of deposit therefor. A memorandum of the substance of the agreement was entered on the certificate by Howard, and he delivered witness the same with authority to draw the money; at Howard’s request, he took two wagons and went for the machinery, after he was perfectly assured that all was right for Durand’s interests; he thought Howard had fully complied with the contract, and he was acting as much for Durand as for Howard; he says, “As will be seen by the ten days’ limit in agreement between Howard and Durand, witness was bound to feel and act as instructed by both parties; the certificate of deposit endorsed as above stated, was taken by me and shown to Durand when I went for the machinery, and witness never dreamed that any objection would be urged to the delivery of the property or acceptance of the money; there was no objection to receiving the money, but Durand declared that not one cent’s worth of the property should be taken away till he had received every dollar of the money. I considered this bad faith to How.ard, so said, stating to Durand at the time that Howard’s complaint now was that he (Durand) had all the advantage, and that now, as a mutual friend, to give him the cash value of the property as agreed on, and let him at the same time have legal and actual possession of the same, was not the justice I had agreed to see done, and thus and for this reason the whole thing fell through. I offered to receipt him for each load as I took it away, and as soon as there was a fair and substantial compliance by him, to pay him the whole amount in cash.”</p> <p>He cannot state the value particularly, but the machinery was the best in use, ample enough for a business of $50,000 per annum, and the manufactured stock very large and perfect, perhaps more so than any similar one south of Newark, New Jersey. Parties employed with Durand told witness that Major Hawes rented it and it had been scattered about. He is a mechanic, long acquainted with such machinery, and inventor of valuable machinery. With the facilities of the Atlanta Spoke Company, &c., “it is a moderate estimate to say that $30,000.00 per annum might easily have been realized in good value for the last of year 1863 and first of 1864, so great was the demand for such things.” He answers that he never had the slightest interest in the case.</p> <p>Durand’s solicitors read the affidavit of A. D. H. P. Shumate, who swore that when the injunction was served he was , in Durand’s employment, and so continued till Major Hawes came and took possession as Government officer; and that during that time neither Durand nor any of his employes used said machinery or any of the material belonging to the wheel business. He lived at said mill many years before the war, and since; worked for Durand and for the Government there; and Government agents took away said machinery and material to Augusta.</p> <p>They also read the answers of A. R. Sallenberger to interrogatories. He said he had read the written contract alluded to; that he is a mechanic, and considered said machinery and material fully worth $6,000.00 in the then currency, when the contract was made. He was working for Durand making artillery wheels when he heard of the injunction, and stopped the work on that account. Durand said he was ready to deliver the property to Howard. It was not delivered to him, or Morton, his agent, who called for it. Durand proposed to deliver it to Morton when paid for. Morton said he would not pay for it till he had it in the depot or cars at Decatur. Durand proposed to deliver it at the mills when paid for. Morton stated that he had a certificate of deposit to pay for the same. Witness don’t remember seeing the certificate. Morton said he would carry the property to Decatur himself. He states that he has no interest in the case.</p> <p>By a second set of interrogatories, this same witness stated that he stopped the work on the wheels about one month, and that Howard told him that he had bought out Durand’s interest in said machinery and materials.</p> <p>The Court decided that in view of all the facts of this case, it would not punish the defendant for contempt for a breach of the injunction, and discharged the rule, and complainant’s attorney excepted.</p>

<p>New trial granted because the verdict is decidedly and strongly against the weight of evidence.</p>

Case. In Fulton Superior Court. Tried before Judge Wanner, April Term, 1867. On or about the 17th July 1857, the slave of Mrs. Whidbee was billed at Marietta, by the cars of the Western and Atlantic Railroad, and she brought her action to recover damages therefor.

Case. Tried before Judge Vason. Sumter Superior Court. April Term, 1867. This was an action of trespass on tbe case for carrying away on the cars of said Company, Brown’s slave without Brown’s consent. The plaintiff claimed hire, and expenses incurred iu restoring said slave to his possession. The two bills of exceptions state the facts differently in some particulars, but agree in all that is material to an understanding of the opinion of the Court.

<p>Rule to establish note. Polling jury. Tried before Judge Speer. Monroe Superior Court, February Term, 1867.</p> <p>Roderick Rutland alleged that he had had a promissory note made by Thomas Hathorn, payable to him, or bearer, for Sixty Dollars, dated 22d June, 1862, and due one day after date, and that said note was lost, and obtained a rule nisi, calling on Hathorn to show cause why a copy should not be established. For cause, Hathorn plead that he never executed such note.</p> <p>At the trial, a special jury was empanelled to try said issue, neither party objecting, and both parties assenting thereto, as the Court understood.</p> <p>The plaintiff swore that about the date of the note aforesaid, he was at Russel ville; the tax receiver and collector and others were there. Witness was at the table attending to some business, when Hathorn asked a loan of $60, to send to his son, Asbery, in the army. Witness loaned him the money and took his note therefor; afterwards, being very sick, and thinking he would die, he sent for Ben Zellner to write his will; gave Zellner his pocket-book containing most of his notes; Zellner and Rufus Cheney looked through his papers; Zellner took them off and kept them two or three months and brought them back. Witness did not know whether Hathorn’s note was in the book or not, as he was very sick. The federal army destroyed his papers except some, small notes and certificates. The Hathorn note is lost or destroyed ; witness has not seen it since. • •'</p> <p>Upon cross-examination, he'stated that he was certain that he loaned the money at Russel ville; James Harrell was present, and he thinks Mr. Blount, the collector and receiver, and others were. Thomas Hathorn always had money, and his asking to borrow, surprised witness'; had loaned him $5 once before; had a note on him about 1840 or 1841, for $300, which was paid, $10 or $15 at a time, during two or three years. Witness had a note on Thomas J. Hathorn (usually called Jack) for $50, loaned to buy corn, before the war, and does not think it was paid; he told Cheeves and John Maynard, some year or two ago, that he thought it was paid, or asked them if it was not paid. Maynard was Jack’s administrator. He told Monroe Hathorn about it; he (Monroe) tried to make witness believe that it was Jack’s note he had had, and not Thomas’, but witness told Monroe that he had had a note on Thomas too. He told Monroe he thought Jack’s note was paid; things were so torn up he could not recollect well. Zellner took the large pocket-book ; Jack’s note was in the small one, in which witness usually carried his due notesj and such as he could collect.</p> <p>Plaintiff closed.</p> <p>Defendant was sworn. He roundly denied borrowing the money or giving the note, or being at' Russelville that year on any public day. He said he had, at that time, plenty of money at home, and in the bank at Forsyth; has never since 1855, had less than $1,000 on hand; was careful to have no notes out; could not rest when he had a note out till it was paid. The note held in 1840 or 1841 was given to Mixon for a negro; he paid it in small, but frequent payments.</p> <p>Upon cross-examination he stated that he did not recollect being at Russelville in 1862; that he did not see Blount or Harrell there. He. knows he did not borrow the money; has had no money dealings with plaintiff since he paid the Mixon note; don’t recollect when his son died; it was 1861 or 1862.</p> <p>Ben Pye swore: that defendant always had money; kept deposited with him in bank at Forsyth since 1855-6, sometimes as much as $1,500; he had money on deposit in 1862; he thinks as much as $1,000, but could not tell as the books were gone. Defendant is prompt and punctual- and witness considers him straight in his dealings, and so is the plaintiff.</p> <p>Cheeves sworn, said: that a year or two after Jack Ha-thorn’s death, plaintiff asked him if Jack Hathorn’s note had not been paid,, and witness told him Jack’s wife said it had not. It was the $50 note aforesaid. "Witness wrote the note; it was for borrowed money.</p> <p>Monroe Hathorn swore: that hearing of the difficulty between plaintiff and his father, he tried to convince plaintiff that he had mistaken Jack’s note for his father’s, but plaintiff said he had a note on father too.</p> <p>It was admitted that Maynard, the administrator of Jack Hathorn, never paid the $50 note.</p> <p>Defendant closed, and plaintiff in rebuttal examined Ben Zbllner, who substantially states what plaintiff did as to his and Cheney’s visit to plaintiff in 1864, when plaintiff was sick. There were many valuable notes in the pocket-book, among them one on defendant; recollects it from the fact that the name signed to it was very hard to make out; could not tell whose it was for some time; had to examine it closely to make out the name; the note was for some amount under $100; can’t recollect whether it was on Thomas or Thomas J. Hathorn; kept the notes two or three months and returned them to plaintiff, who was quite sick then, and off and on feeble since.</p> <p>James Harvell testified that he was at Russelville in the summer of 1862, when the tax collector and receiver was there, and other persons also; it was on a public day; saw plaintiff and defendant there; went to the table where they were, and saw plaintiff hand defendant some bills; don’t know how much; there were four or five of them ; they were new and attracted witness’ attention; very soon after — perhaps a minute after — he walked away and left them ; don’t recollect seeing a note given; recollects seeing Henry Gregory there.</p> <p>Henry Gregory sworn, said: he was at Russelville in 1862 on a public day; saw Blount, plaintiff and Harvell there; does not recollect to have seen defendant there.</p> <p>Plaintiff proposed to prove by Gregory that on the day plaintiff loaned the money at Russelville as aforesaid, as he was starting home, he met the witness and said to him : “There goes Thomas Hathorn, to whom I have just loaned $60, and I am surprised that he should be borrowing money.” Defendant objected, and the objection was sustained by the Court. In the agreed brief of evidence is the following: “ The affidavit of defendant to his plea was before the jury,'and his signature very badly written and hard to be made but. The plaintiff and defendant both are men of advanced age.”</p> <p>The evidence being closed, the Court charged the jury that when the testimony of witnesses is conflicting, they should reconcile it if possible, but if it cannot be done, then they should find according to the preponderance of evidence.</p> <p>By consent, it was agreed that the jury, after finding a verdict, might disperse, and render it in Court next morning. When the verdict was about to be delivered, plaintiff’s attorney requested leave to poll the jury, which was refused. The verdict was for defendant. A new trial was moved for: because the verdict was contrary to the law and evidence, and the principles of justice and equity, etc., and against the charge of the Court: because the Court erred in rejecting the testimony of Henry Gregory as aforesaid : because the Court erred in not allowing the jury to be polled: because the verdict was not unanimous, and because it was eiTor to try said case before a special jury.</p> <p>In support of this motion, plaintiff read the affidavit of Jesse Aycock to the effect, that he did not believe the verdict was right, that he and three others of the jury disagreed to it, but rather than make a mistrial, submitted to the majority, and further, that on account of his health and advanced age, he was unable to stay in the jury room and contest the verdict, and therefore consented, though then and yet he thought it wrong.</p> <p>The Court refused a new trial, and for that plaintiff in error seeks a reversal.</p>

<p>1. At common-law, a judgment twenty years old is presumed to be paid.</p> <p>2. Plaintiff declared on a judgment rendered in favor of the State, in the State of Tennessee in 1838, to which the defendant pleaded the statute of limitations. The Court sustained the plea, and decided that the plaintiff could not recover. Held that the Court decided right.</p>

Certiorari from Inferior Court of Bartow County. Decided by Judge Milner, Chambers. Certain citizens of Bartow County petitioned the Justices of its Inferior Court that they order “ the road leading from near Dr. Thomas Milam’s so as to intersect the Cartersville road near Mrs. Burges’, (it being an old established road, and used by many citizens as a mill and church road, and recently closed up by Mrs. Rebecca Sproull,)” to be opened.

Mandamus. Decided by Judge Cole, Twiggs Superior Court, March Term, 1867. The General Assembly, in December, 1866, enacted that the question of removing the Court House and jail of said county should be submitted to the voters of the county.

<p>1. A judgment, rendered by a Court of competent jurisdiction cannot be collaterally attacked; it is valid until set aside according to the rules of law.</p> <p>2. One judgment may, upon motion, be set off against another when such set-off is equitable.</p>

Guaranty. Tried before Judge Hutchins. Gwinnett Superior Court. November Term, 1866. The Lawrenceville Manufacturing Company, on the 1st August, 1854, made and delivered to John Etchison their note for $380.88, due one hundred and sixty days after its date.

Assumpsit, &c. Tried before Judge Cole. Bibb Superior Court. November Term, 1867. Calhoun & Beddingfield drew their bill of exchange or special draft as follows : “Macon, Ga., November 3d, 1860. Marks : h Fifteen days after date, pay to the order of S. J. E. — 28 the Manufacturers’ Bank of Macon, eight C. C. 63 thousand five hundred and thirty-three dolW. O. L. 25 lars and forty cents, for value received.

Assumpsit. Motion for new trial. Decided by Judge Underwood. Carroll Superior Court. April Term, 1867. This was an action on a promissory note for $533.00, made the 5th February, 1860, by W. S. Bonner, payable to Hiram Sharp, Sr., or bearer, in specie, with ten per cent, interest per annum, and due one day after its date. The defendant plead the general issue, plene administravit, and that the estate had become insolvent by emancipation of the slaves of deceased.

<p>Complaint under the Small Pox Act of 17th April, 1863. Tried before Judge Worrill, Muscogee Superior Court, November Term, 1866.</p> <p>Bradford and Snow sued the State for goods furnished to patients in a small pox hospital upon the order of the Inferior Court of Muscogee County, between the 22d October and 22d December, 1862, worth $107.89.</p> <p>They proved said order and' the correctness of their account, and closed.</p> <p>The Solicitor General, representing the State, requested the Court to charge the jury that under the Act of 13th December, 1862, the State was not liable for any expenses attending small pox cases which had been incurred prior to the passage of said Act.</p> <p>The Court refused so to charge, and held that the said Act would cover as well goods purchased before as after its passage.</p> <p>Plaintiff in error assigns said refusal to charge as requested and the holding of the Court aforesaid as error.</p>

<p>Judgment reversed, because the verdict is strongly and decidedly against the evidence.</p>

Attachment. Demurrer. Decided by Judge Snead, City Court of Augusta, November Term, 1865. The Southern Mutual Life Insurance Company, a corporation, for a certain annual premium, issued a policy insuring the life of William E. Sikes for $10,000.00.

Ejectment. Nonsuit. Decided by Judge Clark, Superior Court of Early County, April Term, 1867. This was ejectment on the demises of William Durham, James D. Shanks, et al., for lot of land number two hundred and thirty-nine, in the twenty-eighth district of said county. Plaintiff read in evidence the grant for said lot from the State to William Durham. The locus in quo was admitted. The plaintiff closed.

<p>1. The doctrine in the cases of Hand vs. Armstrong, 34 Ga., 232 ; Freeman vs. Bass, lb., 355, and Bass vs. Ware, lb., 386, re-aifirmed.</p>

Habeas corpus. Decided by Judge Yasoe, Dougherty Superior Court, December, Adjourned Term, 1867. This case was decided upon the petition and answer alone.

<p>1. This Court has no original jurisdiction.</p> <p>2. It is organized to correct the errors in law and equity from the Courts, it has no power to correct the errors committed by juries. Therefore, in a ease where a verdict was rendered and no motion for a new trial made, but the case is brought to this Court on the grounds alone that the verdict was against the law, the evidence and the charge of the Court, a new trial will not be granted by this Court.</p> <p>3. The law presumes that every officer will perform all his official duties.</p> <p>4. If a party be dissatisfied with a verdict in the Court below, he should mov.e for a new trial, and the ruling of the Court upon that motion is subject to review by this Court.</p> <p>6. This Court will confine itself to the duly of correcting the errors of the Courts below, and will not usurp the powers which, according to law, belong to .those Courts.</p>

Possessory Warrant. Certiorari. Decided by Judge Vason. Sumter Superior Court. April Term, 186.7. The facts of this case were agreed to by attorneys for plaintiff and'defendant. The warrant was in favor of E. W. Jackson vs. M. E. Sparks, for a mule worth one hundred and fifty dollars, and was sued out and tried before James A. Ansley, Judge of the County-Court of Sumter County.

<p>Attempt to commit Larceny. Autre fois aaqidt. Decided by Judge Vason. Sumter Superior Court. April Term, 1867.</p> <p>Wiley Black was charged with a misdemeanor, as follows : “for that the said freedman, Wiley Black, on the ninth day of April, in the year eighteen hundred and sixty-seven, in the county aforesaid, did then and there unlawfully and with force and arms, for that the said Wiley Black, freedman, did,, in the said county, on the day aforesaid, make’’ an attempt to commit the offence of simple larceny, but did fail in the perpetration of such offence, for that the said Wiley did attempt wrongfully and fraudulently, to take and carry away one thousand dollars, the property of Michael H. Stephens, the said one thousand dollars being the lawful currency of the United States, with the intent to steal the same, contrary to the laws of said State, the good order, peace and dignity thereof.”</p> <p>The parties announced ready for trial, the jury was empanelled and sworn, and the Solicitor General read to the jury the said bill of indictment, and was about to introduce the eviidence for the State.</p> <p>Defendant’s attorney objected to tbe introduction of the evidence “on the ground that the charge as laid in the bill of indictment, was too defective to admit of proof sufficient to convict.”</p> <p>This objection was sustained by the Court, and the jury then and there returned, on said bill of indictment, a verdict of not guilty.</p> <p>By order of the Court said Black was held in custody, a new bill of indictment was found against him for the same offence, and upon this new bill he was put on trial.</p> <p>Defendant plead autre fois acquit and relied upon the first bill of indictment and the verdict thereon to sustain the plea. The Solicitor General demurred to the plea. The demurrer was sustained by the Court.</p> <p>The defendant was convicted on this second bill of indictment and fined fifty dollars and costs.</p> <p>The error assigned for review is, sustaining the said demurrer, and ordering the defendant to be tried on this second bill of indictment.</p>

Certiorari from the County-Court. Deckled by Judge Vasost. Dougherty Superior Court. May (adjourned) Term, 1867. James L. Waters and certain freedmen farmed during eighteen hundred and sixty-six, in Dougherty County. Plaintiff in error and his wife were two of those freedmen. Differing about their contract, Williams, in behalf of himself and wife, sued Waters in the County-Court, to compel compliance with the contract.

Licensing power of Mayor and Aldermen of Savannah. Certiorari from Chatham Superior Court. Decided by Judge Fleming., January Term, 1867. Dr. Thomas J. Charlton, a physician in Savannah, Georgia, was fined by the Mayor $100.00 for practicing without a license.

Ejectment. Motion for new trial. Decided by Judge Vason, Baker Superior Court, November Term, 1866. Tliis was ejectment for land, lot No. 399, in the 11th District of originally Early, now Baker County. The evidence on the trial was as follows: Plaintiff, having first accounted for the original grant, read in evidence a copy.

<p>According to the decision of this Court in the case of William Gibson, a free person of color, vs. The State, decided at the December Term, 1866, the Superior Courts of this State, prior to the Act of 17th March, 1866, did not have jurisdiction for the trial of a free person of color, charged with the offence of “larceny after a trust delegated,” committed on the 4th December, 1865.</p>

<p>In a proceeding to eject an intruder from the possession of land, under the 4,000th section of the Bevised Code, if the defendant fails at once to tender to the sheriff such an affidavit as is required thereby, he will be turned out; he will not be allowed to tender a defective affidavit, retain possession under that, and when it is decided against him, tender another affidavit in terms of the law, to protect his possession.</p>

Assumpsit. Motion new trial. Decided by Judge Underwood. Campbell Superior Court. February Term, 1867. Arnold sued Wheat on the following promissory note: “$1,147.79. Atlanta, Georgia, March 8th, 1858. Twelve months after date, I promise to pay to Thomas Bullard’s order, at the Bank of Fulton, the sum of Eleven Hundred and Forty-seven Dollars and Seventy-nine Cents, for value received.

Equity. Motion for new trial. Decided by Judge Speer. Newton Superior Court. March Term, 1867.

Scire facias on Bail-bond. Tried before Judge Underwood, Polk Superior Court. ' July Term, 18.67. Scott brought complaint and bail against Russell to April Term, 1858 of said Court; he obtained a verdict and judgment in 1862; sued out a 'casa against Russell on the 20th of February, 1866, (which was returned non est inventus on the 20th June, 1866,) and then sued out Sci. fa. against Allen, who had become Russell’s bail.

<p>Foreclosure of mortgage. Demurrer. Decided by Judge Clark, Eandolpli Superior Court. November Term, 1867.</p> <p>John Jones was proceeding to foreclose a mortgage made by Boisclair, individually. Boisclair showed for cause why the rule should not be made absolute, that the mortgaged premises belonged to him as trustee and not individually.</p> <p>Plaintiff moved to strike the plea. The defendant’s attorney said they represented Boisclair as trustee, and his cestui que trusts, and appeared to protect the trust estate.</p> <p>The Court held that as neither Boisclair as trustee nor his cestui que trusts, were parties to the record, they could not be heard to object to the foreclosure, and ordered the rule made absolute.</p> <p>This was accordingly done, and defendant excepted and assigns the same as error.</p>

Caveat to Will. Tried before Judge Worrill, Muscogee Superior Court. May Term, 1867. Jacob JSfaigley was a tailor by trade, but seldom if ever worked thereat. He was a quiet, sober man, and spent his time in waiting upon and carrying about his wife while she was practising midwifery, at which she was generally and actively engaged. She made a will and died. Ainchbacker offered it for proof in solemn form in the Court of Ordinary of Muscogee county.

Certioraris from the Justices’ Court. Decided by Judge Cole. Bibb Superior Court. November Term, 1867. F. H. Stone owed Wise $53.35, and afterwards formed a partnership with W. S. Copley and W. L. LeConte, as merchants, under the style of Copley, Stone & Co. Wise presented his account against Stone to him, at the store of the firm, and Stone asked him to trade out the amount in the store.

<p>Rule against sheriff and motion to distribute money. Decided by Judge Clarke. Randolph Superior Court. November Term, 1867.</p> <p>This case came up upon an agreed statement of facts, and without the record.</p> <p>William F. Davis, sheriff, had certain money arising from the sale of the property of Seaborn A. Smith, and William A. Rawson wished to have it applied to a fi. fa. which he held by transfer from Bemis & Prescott, plaintiffs in fi. fa., vs. said Smith, to the exclusion of the fi.fa. which had brought the money into court, and certain other fi. fas. These were all younger than Rawson’s fi,. fa., but it was contended that Rawson’s fi. fa. was in law paid off, or that plaintiffs in that fi.fa. had abandoned their lien. Upon this issue was joined.</p> <p>It was agreed that the Judge should hear the evidence and decide the matter without a jury.</p> <p>The Bemis & Prescott fi. fa. issued from Randolph Superior Court, and was returnable to its May Term, 1856. It called for $2,300, with $-interest and $-costs. In 1858 it had been levied on a house and lot in Cuthbert, and also on slaves (admitted by counsel to have been at the time sufficient in value to have paid the same.) On the 5th November, 1858, the defendant had paid Bemis & Prescott $765, and they receipted for it on the fi. fa. On the same day the sheriff wrote on the fi. fa. a dismissal of the levies, reciting that he had dismissed them without a sale of the property, by order of the plaintiffs. And on the same day plaintiffs transferred the fi.fa. to Rawson.</p> <p>The plaintiffs in the junior judgments examined Smith, the defendant in the fi. fas., who testified: that he paid Raw-son $200, for which he took no receipt, and which had not been credited on the fi.fa.; that the levies were dismissed by Bemis & Prescott and not by Rawson, to whom the fi. fa. was afterwards transferred; he did not pay Bemis & Prescott anything for dismissing the levies, the $200 paid Rawson was for holding up the fi. fa. for twelve months after he had arranged for taking the transfer, and knew what he paid. The money was paid and transfer made and the levies dismissed at the same time, plaintiffs, defendant and Rawson all being present and understanding the arrangement.</p> <p>Rawson testified: that he paid in full to Bemis & Prescott what the fi. fa. called for at the date of the transfer; that the levies had been dismissed before the transfer; nothing was paid for said dismissal, but Smith paid Rawson some money (he did not remember how much) in consideration of his holding up the fi. fa. for twelve months.</p> <p>The Court held that the junior judgments should take the money in preference to the older judgment, and of this Raw-son complains.</p>

<p>Where a bill was filed by a complainant who alleged that he was the sole heir-at-law of a deceased intestate, praying for an injunction to restrain a temporary administrator from wasting the estate pending the litigation for permanent letters on the estate of the decedent, alleging that he had been informed and believed that the security on the temporary administrator’s bond was insufficient, and that the defendant was insolvent ; which prayer for injunction the chancellor refused to sanction upon the ground that the complainant had an adequate common-law remedy, by requiring the temporary administrator to give additional security upon his bond: Held, that this Court will not control the discretion of the chancellor in refusing the injunction upon the statement of facts contained in complainant’s bill; the more especially as the charges made of waste and fraud on the part of the defendant, are general, without stating any particular acts of loaste by the defendant, or any particular acts of fraud done by him.</p>

<p>Motion to dismiss writ of error and for damages. Sumter Superior Court. April, 1867.</p> <p>Wiseman procured judgment against the Liverpool Cotton Company for $4,300, at April Adjourned Term, 1867, of Sumter Superior Court. On the 4th June, 1867, the Company sued out writ of error to the Supreme Court and gave a bond superceding the judgment.</p> <p>It was shown by a certificate of the Clerk of the Superior Court of Sumter county, that the attorney for the plaintiff in error, when he filed the bond, instructed the Clerk not to make out a copy of the original bill and record, saying he did not think he would carry up the case as it would likely be settled, and that if it was not settled he should have notice in time to prepare the papers for the Supremo Court.</p> <p>The attorney gave the Clerk no notice till about the middle of the last morning for making up the papers. The Clerk then replied to him, that he then had not sufficient time, because it would require two days work to prepare the record. The attorney said that the case would have to go by. So the case was not sent up.</p> <p>Wiseman’s attorneys came with the record and said certificate and asked that the judgment below be affirmed, and for a certificate for damages, as in cases brought up for delay.</p>

Complaint and motion for new trial. Decided by Judge Milner. Murray Superior Court. April Term, 1867. Walker brought complaint on promissory notes, against J. T. Field, James M. Field and S. E. Field as makers, and Robert McClure as security. James M. and S. E. Field plead non est factvm. The verdict was for $1300.00, with interest and costs.

<p>When a certiorari is applied for under the provisions of the Code which does not require the sanction of a Judge, a notice to the adverse party that a petition for a writ of certiorari hasbeenJtMin the Clerk’s office of the Superior Court, for the removal of a case from a Justices Court to the Superior Court, will be sufficient.</p>

Traverse of attachment affidavit. Tried before Judge 'WoiírilIj. Muscogee Superior Court. May Term, 1867. On the 14th of December, 1866, Louis Stix & Co., in said county, sued out attachment against Simon Pump, David Marks, Tsaac Marks and Jacob Marks, partners under -the firm name of S. Pump & Co., on the ground that said defendants were indebted to them $5,027.96, and that they were about to remove beyond the limits of said county.

<p>A common carrier, according to the law of this State, cannot limit his legal liability as such, imposed upon Mm by that law, by any notice given either by publication, or by entry on receipts given for the goods or tickets sold; but he may make an express contract with the shipper of the goods, which may be proved outside of the receipt given therefor, and will then be governed thereby.</p>

Bill for Injunction. Demurrer. Decided by Judge Warner. Fulton Superior Court. April Term, 1867. Marburg’s bill made the following case: Mary A. Sands owed him $3,753.36 for goods, wares and merchandise sold to her, (of which he gave a bill of particulars).

<p>By the Act of 1854, a credit entered on a promissory note in part payment thereof, after the statute of limitations has commenced running, in order to form a new starting point from which the statute will commence to run, must be subscribed by the party making it, or by some other person by him lawfully authorized to do so.</p> <p>As the law stood at the time of the passage of the Act of 1854, it took effect from the date of its passage, and not from the time of its publication.</p>

<p>1. Where Williams borrowed of Solomons five hundred dollars, and promised to pay six per cent, per month for the use thereof for a part of the time, and five per cent, per month for the balance of the time, which was paid bnt not credited on the note, and afterwards sold out his entire property to a third party who obligated himself to pay Solomons the five hundred dollars, — on a bill filed by a creditor of Williams against Solomons and the third party who purchased Williams’ entire property, alleging that Williams had left the State and was entirely insolvent, praying that the usurious interest paid by his insolvent debtor Williams to Solomons, might be credited on the five hundred dollar note, and that the purchaser of Williams’ property might be restrained from paying the amount of the usurious interest over to Solomons, and be decreed to pay the same to the creditor’s demand: Held, that the creditor was entitled to have an account taken of the amount of usury paid by Williams, the insolvent debtor, to Solomons, and to have that amount applied in payment of his debt.</p> <p>2. Although a party may have a common-law remedy, yet, if it is not as complete and effectual as it would be in a court of equity, the latter Court having first taken jurisdiction of the cause, will retain it.</p>

Bill for direction, &c. Decided by Judge Cole. Bibb County. Chambers. September, 1867. Thornton filed a bill for direction, &c., against Nathan Bozeman and his wife, and James A. Ralston, containing the following averments: On the 12th of December, 1864, James A. Ralston, of Bibb County, Georgia, died, leaving a very large estate of realty, personalty and choses in action. He left, surviving him, his widow Aurelia L. and three miuor sons, Henry G., David and James A. Ralston.

<p>Under the Ordinance of the Convention, juries should be allowed a liberal discretion in adjusting the equities of the parties by their verdict; but it is the duty of the Courts to see to it -that such discretion is not abused and made the instrument of injustice, by granting a new trial when the verdict is strongly and decidedly against the evidence, and the principles of equity as manifested thereby.</p>

<p>Motion - to set aside a judgment. Decided by Judge Clarice. Clay Superior Court. August Term, 1867.</p> <p>Penfold, Clay & Co., by their attorney, S. S. Stafford, sued F. P. Singleton & Co., on a promissory note for $538.33, dated 29th March, 1860, and due six months thereafter. The case was returned to June Term, 1861, of Clay Superior Court.</p> <p>During the war, on motion of Stafford, who represented the case of Penfold, Clay & Co., as attorney in the Court, an order was taken reciting that plaintiffs were “ alien enemies under the Act of Sequestration of the Confederate States of 1861,” and “ William C. Daniel, receiver under said act, having been appointed under said act, to prosecute such claims,” it is ordered that Daniel be made a party plaintiff, and “ that said claim proceed to judgment for the use of the Confederate States.” Under this, verdict was taken and judgment entered in June, 1863.</p> <p>The war having ended, Stafford, as the attorney for Pen-fold, Clay & Co., procured a rule nisi, reciting the foregoing facts, and calling on F. P. Singleton & Co. to show cause why said order and judgment should not be vacated and annulled, and said case proceed in the name of Penfold, Clay & Go. They showed for cause:</p> <p>1st. There is no sufficient reason shown in said rule nisi why the case should be reopened. It appears by the records of the Court that a judgment has been rendered upon a verdict and duly entered and signed up by counsel for the same plaintiffs, and there is no evidence to show any default of defendants in any error committed, if error there was, in substituting a receiver of the Confederate States in lieu of the original plaintiffs. Said judgment was not the result of any accident or mistake or misapprehension of facts, there was no appeal or writ of error taken, and therefore the Court has no power to vacate this judgment.</p> <p>2d. Fi.fa. was issued on said judgment and they had paid the same to the Sheriff, and were thereby discharged; that the Sheriff was the agent of the plaintiff in fi.fa. and authorized by law to receive payment, and if the fund was misapplied, they were not blameable.</p> <p>3d. Because the order and judgment were valid.</p> <p>There seems to have been no dispute about this payment, but it was conceded it was in Confederate States currency, and was never paid to the plaintiff.</p> <p>The Court refused to set aside the judgment and discharged the motion, and this is brought up for review.</p>

<p>Certiorari from the County-Court. Decided by Judge Underwood. Floyd Superior Court. April Term, 1867.</p> <p>Strickland sued plaintiffs in error in the County-Court of Floyd county in two separate actions, on two promissory notes signed by their said firm name, the one for $40.30, made on the 24th May, 1862, with interest from January 1st, 1862, and the other for $71.00, dated 1st of January, 1864, each due one day after its date, and payable to B. M. Strickland, or bearer.</p> <p>The defence was thát the consideration of said notes was medical services rendered by Strickland, that he had no diploma, and was not authorized to collect pay for such services. Defendants examined said plantiff as a witness.</p> <p>He testified that the consideration of said notes was service rendered by him as a physician, and that he never had a diploma. He stated also that he had obtained temporary license from Dr. Moore, one of the Medical Board of Georgia, for the years 1859, ’60, ’61, ’62, ’63, which licenses had been lost; that the service was rendered to defendant’s families, and that the patients recovered.</p> <p>The defendants then read the answers of said Moore to Interrogatories. This is the substance of them : He is a member of the Medical Board of Georgia, and was appointed when the Board was reorganized; as such he '.licensed said Strickland for said years. The license for 1859, was as follows :</p> <p>“ Georgia, Clarke County : Be it known to all whom this may be presented, that I, by virtue of the law creating the Medical Board of the State of Georgia, this day license B. M. Strickland to practice medicine in its various branches, in said State, until the first Monday in December next, being the day for the next regular Board Meeting of the Board. January 1st, 1859. R. D. Moore, M. D.,</p> <p> Member of the Medieal Board, Btaie of Qa. </p> <p>The licenses for the other years were in the same form. All temporary licenses are reported to the regular meeting of the Board, when the person presents himself for examination by the Board, but no record is kept by the member granting the temporary license.</p> <p>Strickland never presented himself before the Board for examination, nor ever exhibited a diploma. He applied in person to Moore for said license in 1859, paid for it $5.00, and the same sum for each of the others. Moore stated that he knew no reason why Strickland could not practice medicine and collect his charges for the same.</p> <p>■When the copies of said several temporary licenses, attached to Moore’s answers, were offered in evidence, upon motion of defendant’s attorneys, the Court rejected all of them except that for 1859.</p> <p>Defendants then re-examined Strickland, and showed by him that his account for 1862, about $25.00 or $30.00, was included in the first note, and the balance of it was for his account of 1861.</p> <p>In the argument, the attorneys for the defendants insisted that, in the absence of proof of proper authority to practice medicine, plaintiff could not recover on these notes, or either of thorn; and that notwithstanding plaintiff had authority to practice in 1859, yet if the first note was given for that service and also embraced the account of 1861, when he had no license, the ydiole note was void, that the jury could not separate the good from the bad, and the consideration being illegal in part, the whole promise failed, and they requested the Court so to charge the jury.</p> <p>The Court did so charge, with the addition that, if they believed, from the evidence, that the notes were given in good faith, and that the first note embraced $25.00 or $30.00 for services rendered in 1859, when plaintiff was authorized to practice under a license, they would be justified in finding that amount for plaintiff.</p> <p>The jury found for the plaintiff for the principal, interest and costs on each note. By consent of counsel the two cases were consolidated, and a certiorari sued out to set aside said verdicts.</p> <p>Judge Underwood refused to set aside either verdict, and for this, his action is brought here for review.</p>

Debt. Nonsuit. Awarded by Judge Worrill. Talbot Superior. Court. September Term, 1867. This was debt by Harvey against Daniel, upon the following bond : “ State op Georgia, Talbot County.

Covenant. Tried before Judge Collier. DeKalb Superior Court. October, Term, 1867. Turner sold to Win. A. Chisholm, for Chisholm & Adair, certain negro slaves in December, 1859, and warranted them sound. Chisholm, for the use of himself and Adair, brought his action of covenant against Turner, claiming damages upon the ground that the negroes were at the time of the warranty, unsound and worthless.

<p>A legatee propounding for probate a nuncupative will, which is caveated by the heirs at law, is a competent witness in favor of the validity of the will.</p>

Ne exeat. Motion to discharge bail. Decided by Judge Collier. Eulton Superior Court. October Term*, 1867.

Trover. Motion for new trial. Decided by Judge Worriel. Chattabooch.ee Superior Court. March Term, 1867.

Complaint on note. Non-suit awarded by Judge Morrill. Marion Superior Court. April Term, 1867.

<p>Bill to enjoin J udginent, &c. Decided by J udge Wobbill. Taylor County. Chambers, May, 1867.</p> <p>Mullins averred that "Win. H. Christopher, as proohien ami of his daughter, Pauline, brought an action against him for breach of a promise to marry Pauline; that the case was tried on appeal at April term, 1865, of said Court, and the verdict was against Mullins for $5000 and costs; that fi.fa. had been issued for that sum and was in the hands of the Sheriff for collection.</p> <p>It was averred also, that this verdict was found upon the testimony of ¥m. H. Christopher, plaintiff, solely, who testified that in 1862, when the action was brought, defendant 'was worth $75,000, counting the value of his slaves, which were from fifty to seventy-five in number. Whereas, in fact, ■defendant in that year paid taxes on 3086 acres of land, valued at $15,000, twenty-eight slaves, valued $11,200, making a total of but $31,200; that this, too, was given in on the basis of Confederate currency, which was the only currency of this State then, and when said verdict was rendered; that at the date of the verdict one dollar in specie was worth fifty dollars of such currency.</p> <p>Because, as he averred, the jury expected said judgment would be paid in such currency, because defendant had lost heavily by the results of the war, and because Pauline’s injury was only imaginary, (she having since married a man more suitable for her) Mullins thought that said judgment should be razeed to its specie value, and prayed injunction against its enforcement.</p> <p>At Chambers the following facts appeared by ex parte affidavits.</p> <p>Three of the jury affirmed that they intended their verdict should be paid in Confederate currency, and believed the balance of the jury so intended. One of the complainant’s solicitors affirmed that he had heard six of the jury say that they so intended.</p> <p>Christopher affirmed that at the time of the breach of promise, Mullins was sixty years old, and Pauline but sixteen, that after her parents had reluctantly consented to the nuptials, and had prepared her wedding apparel, <&c., Mullins, about the appointed time, and with no notice to them or Pauline, and without excuse, married another.</p> <p>Christopher’s solicitor affirmed that he was plaintiff’s attorney in said action, (related the testimony in said cause substantially as aforesaid) that the case was defended by Col. S. T. Bailey and Edwards & Holsey, able lawyers, who urged the jury to find nominal damages only, because the same would have to be paid on a specie basis.</p> <p>Two of the jurors who swore as to their intention, <fcc., affirmed that, as they recollected, nothing was said by the jury as to the kind of currency in which their verdict was'to be paid. Defendant read also an affidavit made by Mullins, showing that he, in January, 1866, was worth $15,000 at least.</p> <p>The Chancellor refused the injunction, and this is assigned as error.</p>

<p>Although it is a general rule that on the coming in of the answer plainly and distinctly denying all the facts and circumstances upon which the equity of the bill is based, the Court will dissolve the injunction, yet in some particular cases, the Court will continue the injunction, though the defendant has fully answered the equity set up. The granting and continuing of the process must always rest in the sound discretion of the Court, to be governed by the nature of the case ; and this Court will not control the exercise of that discretion, except in a case where the discretion has been abused.</p>

<p>Motion for new trial or appeal. Decided by Judge Clarke. Eandolph Superior Court. May Term, 1867.</p> <p>Moses Hollis, as bearer, sued Singleton A. Thornton as maker, and Leroy C. Sale as security, for $500.00 and interest, due on a note made by them 1st January, 1862, and due 1st January, 1863, payable to E. B. Lbyless or bearer, with interest from date, alleging that the note was transferred to B. L. Kimbrough, and by Kimbrough to himself, for valuable considerations, and before the same was due. At May term, 1864, he obtained judgment against both defendants for $500.00, with interest and costs.</p> <p>At November term, 1866, of said Court, Thornton moved for a new trial or appeal upon the following grounds :</p> <p>1st.- Because the judgment was rendered since the 19th January, 1861, and before the 6th November, 1866.</p> <p>2d. Because Thornton was unavoidably absent from the Court at date of said judgment, he being in the military service of the Confederate States; and</p> <p>3d. Because Thornton had a good and meritorious defence in said case — said note having been given between the 1st June, 1861, and 1st June, 1865, for land, at the rate of ten dollars per acre, to be paid in Confederate money, when in fact said land is and was then worth in good currency not more than three dollars per acre.</p> <p>These grounds were verified by Thornton’s affidavit.</p> <p>Answering the motion, Hollis admitted the date of the judgment as alleged, but denied that Thornton was unavoidably absent at its rendition as alleged by him, and averred that at said time Thornton (as he was informed and believed), was in said county and in the county site while the Court was in session, and that if he was then in such military service, it was only in the capacity of an agent for Captain Michael Gormsby, quartermaster, for the purchase of corn, said Gormsby having at the °time his headquarters in said county site, and denied that Thornton had a good and meritorious defence to said claim, averring that .the note was given in part payment for a settlement of land, which land (as he is informed and believes) was worth ten dollars per acre in good currency, that he did not believe anything was said, at the time of the delivery of the note, about paying it in Confederate money, but that the party took it to be paid in good currency) and that Thornton was personally served, and could not deny notice. This was also verified by affidavit of Hollis.</p> <p>At Hollis’ instance, the case was continued, and. by order of the Court the fi. fa. was stayed pending this motion.</p> <p>The Court refused to grant a new trial or appeal, and this refusal is assigned as error.</p>

Attachment. Motion to dismiss. Decided by Judge Clarke. Webster Superior Court. September Term, 1867.

<p>Certiorari from .County-Court. Decided by Judge Milneb. Floyd Superior Court. July Term, 1867.</p> <p>Wilhelms prayed process, returnable to a monthly session of the County-Court of said county, against Noble Brothers & Co., to recover one hundred dollars only, claimed by him from them, averring that “ this is a suit between master and servant.”</p> <p>The real foundation of the suit was the following paper:</p> <p>“Due E. Wilhems, one hundred and thirty-five dollars.</p> <p>NOBLE BROTHERS & CO.”</p> <p>(Endorsed.) “Received, June 4th, 1864, in salt, twenty-two dollars on this note. E. WILHELMS.</p> <p>March 18, ’66, $14 in United States currency.”</p> <p>• At the trial, plaintiff’s attorney offered the paper in evidence. It was objected to because it was not dated. The Court overruled the objection; the paper was read in evidence and plaintiff closed.</p> <p>Defendants’ attorneys moved a non-suit for the cause afore- ■ said. The motion was overruled.</p> <p>The defendants’ attorneys examined plaintiff, who testified that the note was given in 1864, a short time before the first credit, for his labor as a blacksmith; that he worked for Confederate money, at $1.75 part of the time, and $2.25 part of the time; that he was now getting $2 per day for his work.</p> <p>It was then shown that about 4th June, 1864, Confederate money was fourteen to eighteen for one in gold, and that United States currency was about two for one in gold. And by a blacksmith it was shown that a blacksmith’s wages were now from $2 to $2.50 per day.</p> <p>Upon these facts, the County Judge held that defendants were entitled to no reduction, and that plaintiff could recover on said paper as a promissory note, dated 4th June, 1864.</p> <p>Defendants’ attorneys moved to dismiss the ease because, under the ruling of the Court, there was due on said paper, $112.22, besides interest from 18th March, 1866, and the jurisdiction of his Court, at the monthly sessions, was limited to one hundred dollars.</p> <p>The Judge overruled the motion because there was no plea to his jurisdiction, and allowed plaintiff’s attorney to enter up judgment for $98. There was a motion in arrest of judgment on the same grounds, and it was overruled. Certiorari was sued out. To the answer of the County Judge, exceptions were filed, and an order respondeat ouster was passed at April term, 1867, of the Superior Court. His second answer brought out no fact not stated above.</p> <p>At July term, 1867, of the said Superior Court, the case came on to be heard. Wilhelm’s attorneys again excepted to the answer for not being full, and moved that the County Judge should again be required to answer, the attorney alleging that such full auswer would show clearly that the note sued on was subject to reduction under the ordinance of the Convention of 1865 as to Confederate contracts, and that Wilhelms had claimed but one hundred dollars as due him thereon, and that it was for his wages as a day laborer and servant of the defendants, and this was a suit between master and servant.</p> <p>Judge Milner held that, because by the face of the note, over one hundred dollars was due thereon, the County-Court, at its monthly session, had not jurisdiction of the case, and that the facts sought by a new answer, could not give the jurisdiction. He therefore sustained the nertiorari. During the term, Wilhelm’s attorneys moved to set aside said judgment, because it was erroneous. In September, 1867, being an adjourned term, this question came before Judge Underwood. He held that Judge Milner was right, and refused to set aside his order.</p> <p>This is brought up for error.</p>

<p>1. If the petition and process substantially conform to the requisites of the Code, and the defendant have notice of the pendency of the cause, all other objections shall be disregarded, provided there is a legal cause of action set forth as required by the code.</p> <p>2. All misnomers in judicial proceedings on the civil side of the Court, are amendable without working unnecessary delay.</p> <p>3. An amendment of the pleadings is no cause for a continuance, unless the opposite party is surprised thereby, and less prepared for trial in consequence thereof.</p> <p>4. A mistake of the clerk in copying a declaration, shall work no injury to a party, where, by amendment, justice may be promoted. Therefore, where the clerk, in copying a declaration, inadvertently changed the order of the initials of the name of a party to a copy note sued on, such mistake is no ground for dismissing or continuing the case.</p>

<p>1. Where the Court below grants a new trial,- and no principle of law is violated, this Court will not disturb the ruling.</p> <p>2-, This Court will more reluctantly control the action of the Court below where a new trial has been granted, than where one has been refused.</p>

Certiorari from the County-Court. Decided by Judge Irwin. Pickens Superior Court. April Term, 1867. In the County-Court a suit by Elizabeth Padgett against Brown, founded upon a promissory note for $50, dated the 2d of December, 1865, and due 1st' of January, 1866, was defended on the grounds that it was taken by duress, was without consideration, and was illegal and void because it was given to settle a criminal prosecution for simple larceny, or horse stealing.

Ejectment. Motion for new trial. Decided by Judge Irwin. Gilmer Superior Court. May Term, 1867. This case came up on an agreed statement of facts certified by the Judge. It was ejectment in favor of Doe, ex. dem., of Francis Dover, et al., vs. Roe, casual ejector, and Robert Ralston, tenant, for land, lot No. 27, 6th district, and 2d section of said county, containing 160 acres, and for mesne profits. It was commenced 31st January, 1860.

<p>Where a case is fairly submitted to the jury, no principle of law violated, and it appears from the whole case that substantial justice has been done, a new trial should not be granted.</p>

<p>X. Where the Solicitor General is appointed to see that the grounds of a divorce are legal, and sustained by proof, (under Section 1730, Rev. Code) he may introduce evidence, and enter fully into the defence of the case.</p> <p>2. The Court has no authority to order the husband to pay the Solicitor General for this service. Counsel fees are allowed as “ expenses of litigation,” and can be granted only on the application of the wife.</p>

Petition for Money in lieu of Dower. Tried before Judge' Milnek. Floyd Superior Court. July Term, 1867.

Motion to dismiss appeal. Decided by Judge Cole. Bibb Superior Court. May Term, 1867. Plant & Cubbedge sued out attachment against said Company as a foreign corporation, and served Mr. Grannies, the Company’s agent, with garnishment. The Company dissolved the garnishment by giving bond for the eventual condemnation money, with George E. Barker as security.

<p>To entitle a party to recover the possession of personal property by possessory warrant, he must show that the property had previously been in his possession.</p>

<p>1. In an action for a tort, the parties cannot, by a settlement between themselves, defeat any lien or claim which the attorney may have under a contract with his client, of which the opposite party had notice prior to the consummation of such a settlement. The mere fact that an attorney appears in the cause is not such notice. The party must have notice of the claim under a special contract to affect him.</p> <p>2. If the attorney have a lien or claim by special contract, the Court, in a case of tort, should not direct a verdict to be taken for the value of the attorney’s services ; but should send the case .to the jury upon the merits, as between plaintiff and defendant; and if a verdict be found sufficiently large, the attorney can be paid thereby, otherwise not. Whether the defendant in such a case shall pay the fees of the attorney for the plaintiff, must depend upon the recovery by the plaintiff in a trial upon the merits of the cause sued on.</p>

<p>A party on the first day of April, .1863, received a bill of sale conveying to him with warranty of title, a negro slave then residing in Georgia, and who had been for three months previous thereto, and in consideration thereof, gave a promissory note for $1,200, suit was brought on the note and a recovery had. Held, that the recovery was right. Gobb vs. Battle, 34 Ga. Rep., 483, in principle, covers this case.</p>

<p>1. An express company which pursues continuously, for any period of time, the business of transporting goods, packages, &c.,is a common carrier ; and in case of loss of the goods, &c., the presumption of law is against it; and no excuse will avail it unless the loss was occasioned by the act of God, or the public enemies of the State.</p> <p>2. The responsibility of the carrier commences with the delivery of the goods to himself or agent at the place where he is accustomed or agrees to receive them. And if the agent agrees to receive them at the depot where they are at the time, the liability as a common carrier begins.</p> <p>8. Where the Southern Express Company gave a receipt acknowledging the delivery of certain goods ‘ ‘to be forwarded,” and expressing in the receipt that the company would not be liable for any loss from any cause whatever, except for fraud or gross negligence, and that where the value of the property was not specified in the receipt, the company would not be liable for a sum exceeding fifty dollars for each package: Held, that the receipt is evidence only of the reception of the goods by the company for the purposes therein specified, and is not evidence of an express contract: Held, also, that such an express contract as is contemplated by the Rev. Code, Sec. 2042, cannot be proved in this way; and the giving of the receipt and the acceptance of it by the shipper, do not relieve the company from the liability imposed by the law upon common carriers.</p> <p>4. The liability of the carrier commences when he receives the goods; and if they be lost he must show such facts as will relieve him from liability, or he will be held responsible.</p> <p>5. The Court is not bound to give in charge a general proposition, though it be the law, unless it be applicable to the facts of the ease ; and if such general charge be requested, he may modify or add to it so as to make it pertinent to the facts and the issue to be tried.</p>

Complaint on Note. Tried before Judge Underwood. Polk Superior Court. July Term, 1867. Dever was sued by John Terhune upon a promissory note for $150.00, made by him on the 19th of November, 1856, payable to Anna L. Terhune or bearer. The defence was that the consideration of the note was a brood mare, bought as such by Dever from Dr. A. A. Terhune, as agent for the payee, and warranted to be sound, when, in fact, she was unsound and worthless.

Bill for Direction, etc. Demurrer, etc. Decided by Judge Vason. Dougherty Superior Court. June Term, 1867. Jeremiah Hillsman, as Executor of Sarah Ely, filed his bill containing the following averments : Sarah Ely died testate, on the-day of-, 1864. When she executed her will she was supposed to be in extremis. The will had been probated and Hillsman had qualified as Executor.

Dissolution of Injunction. Decided by Judge Collier. Chambers. Fulton County. July, 1867. On the 16th October, 1866, in Eulton Superior Court, R. M. McPherson & Co. obtained a judgment against Hoge, Mills & Co., for 1,009.65 principal, $64.68 interest, and $— costs.

<p>Set-off in Equity. Demurrer. Decided by Judge Clarke. Chambers. ' Randolph County, October, 1867.</p> <p>Moody bought of Stephen Royal land lot No. 337, 4th district of Calhoun county, giving him therefor his promissory notes for $375.00 and $700.00 respectively, dated 2d August, 1858, and due 1st January, 1859, and 1st January, 1860, respectively, and at the same time gave Royal a mortgage on the land to secure the payment of the notes.</p> <p>Stephen Royal died; his son Daniel administered on his estate. He died, and then Ellerbie became the administrator. The notes were not paid, and Ellerbie, as administrator, foreclosed the mortgage, procuring, without opposition, a judgment for about $1,664.00, principal and Interest.</p> <p>George Morgan married one of Stephen Royal’s daughters, and was thereby entitled to one-third of Stephen Royal’s estate. He transferred his interest in said judgment, in writing, to Hood, on 7th January, 1861; and afterwards, on 9th April, 1863, Hood, in writing, transferred said interest to Moody.</p> <p>There are no debts against the estate, or if there he any there is sufficient other property to pay them, and therefore there is no necessity for the administrator to sell this land under the mortgage ft. fa. for the whole debt. It would work injury to Moody to sell his land for the whole debt, and in equity he is entitled to have the ft. fa. credited by the one-third due to him by this transfer.</p> <p>Upon this state of facts, Moody, by his bill, prayed to set off this third against the said judgment.</p> <p>Upon demurrer, the Court dismissed the bill. This is assigned as error.</p>

<p>Equity. Charge of the Court, etc. Tried before Judge Warner. Troup Superior Court. May Term, 1867.</p> <p>Lovick P. Hodnett filed a bill in Equity against said Company, in Troup county, the substance of which is as follows:</p> <p>He owned certain lands in said county, (hereinafter described,) which he had for many years used as a farm and residence; said company, a body corporate organized to run and keep a railroad from Atlanta to West Point, through its many agents, appointed for that purpose, begged and importuned him to grant them the right of way for said road on and along said plantation, and represented to him that by the erection of said road great good would come to the public, and especially to' the farmers of said county, and that such grant could never injure or damage his plantation or lands, but would greatly benefit them; by said agents, it declared to him and the public, in joublic meetings called for the purpose, that it would never extend the road through said county unless the right of way was given to it.</p> <p>These representations were often repeated in public meetings, and private conversations, and letters purporting to be written by John P. King, the President of said company, were read, in which were such like representations roundly asserted to be true.</p> <p>The company, knowing that he was but little acquainted with such works, and that he had never lived near a railroad, intending and seeking thereby to deceive and defraud him, also, by its agents, distinctly stated to him, among many other false things, that if he would give them said right of way on and along his said lands, the road should be so run as not to injure his plantation nor destroy any»of the conveniences of locomotion and cultivation which he then enjoyed.</p> <p>He then had good private roads from his houses and barns to his fields, which he had long enjoyed, and which were very valuable to him in traversing his plantation; by their agents, they promised not to destroy or injure these ways, but make good crossings for them over their railroad, that his conveniences and advantages in this regard should in no wise be impaired.</p> <p>They said they would not divert the streams from their channels nor pond the water on his plantation; they promised to build and grant to him a turn-out on said lands, by which he would have an extra car or private' depot, where he could, at will, carry his cotton and other marketable produce, and load the car and send his produce to market, and be thereby relieved of the necessity of keeping a market wagon, and have other valuable conveniences, and that they would give him a free ticket over said road. They also represented that such grant would be a public-spirited act, etc.</p> <p>Believing these representations, and trusting to these promises, he was induced to grant the right of way without any compensation in money, when the same was worth two thousand dollars. He made the deed, but all its recitals as to consideration paid him, are false.</p> <p>In 1853, the company ran its road over and through his plantation for about two miles in length, and in such a way as to completely divide his fields and cut off from his barns, etc., one hundred acres of his land which was in cultivation, and ran it directly across the road by which he had access to his fields, etc.; they threw up an embankment from nine to twelve feet high across said road, and made no crossing, and thus compelled him to travel around, a distance of five miles, with his wagons and hands in cultivating his lands and hauling in his produce, increasing his time and labor five-fold, (the distance by his old road being less than half a mile). By this a large part of his crop of 1853 rotted in his fields. By this the water was ponded, rendering portions of his land useless, and endangering the health of his negroes.</p> <p>They have broken all their promises, though often having recognized them, though he has often applied to the company for redress, etc., and now pretend they are under no obligations to repair said mischief. He therefore charges that the deed was obtained by gross fraud.</p> <p>He prayed that King should answer his 'bill, for damages for the injury already sustained and for the cancellation of the deed, or that the company be required to repair the injury done in damages, and specifically perform their contract.</p> <p>The deed attached to his bill as an exhibit was in the usual form, dated the 4th of July, 1850, and so much of it as is necessary to understand this case, was in these words: Witnesseth, that said Lovick P. Hodnett, for and in consideration of their running their contemplated railroad on and along his land, as well as in consideration of five dollars, etc., * * hath given, granted, bargained and sold, and doth by these presents give, grant, bargain and sell lid to the said Atlanta and LaGrange Railroad Company, and their successors and assigns, the right of way over which to-pass at all times, by themselyes, directors, officers, agents, servants and hirelings, in any manner they may think proper,, and particularly for the purpose of running, erecting and establishing a railroad with double track and turn-outs, or single track or turn-outs, as may at all times be at the discretion of said company, pursuant to a charter of incorporation granted said company 27th December, 18.47, and to this end the limits of said right of way shall extend in width one hundred feet on each side from the centre of the roadway of said railroad when completed, and to extend in length through the whole tract of land owned and claimed by said Hodnett, lying and being in said county,, adjoining the lands of Poythress, Henry Long and Shepherd G. Lane, whereon Hodnett now resides, running in such direction through said lands as said Atlanta and LaGrange Railroad Company by their agents, managers or workmen shall think best suited for the purpose of locating and establishing their said work, and connected with said right of way said company shall have the right to cut down and remove all such timbers or other-growth on each side of said road as would by falling on or shading the same injure the rails or other parts of said road.”</p> <p>It also, in the habendum and tenendum clause, contained a provision that the deed should be void in case the road was not built on and over said lands. It was witnessed by Jesse McLendon and another.</p> <p>To this bill, John P. King, President of the company, filed an answer, substantially as follows i He was ignorant of the truth of most of the charges in the bill. The road runs through the lands of complainant, and he gave the right of way, as did many others from similar inducement, without being begged for it, but as he was informed and believed, voluntarily, and for no other consideration than- that expi'essed in the deed; that he supposes complainant to be as competent to judge of the effects of railroads running through the country or his lands as were his neighbors, with whom com- ■ plainant co-operated in furnishing aid and inducements for building the road.</p> <p>He did use arguments, and perhaps wrote letters, to impress the people of Troup county with the importance of railroad facilities to their section of country, but gave no opinion which he did not honestly believe, and made no promise which had not been honestly performed.</p> <p>Complainant never made any complaint to him as President, or to the Board of Directors, as such, of any injury, nor requested any compliance with a violated contract, until the commencement of this suit; had he done so, he (King) would have, without regard to legal obligation, made every effort to render the exercise of their rights as little as possible inconvenient to him.</p> <p>The extraordinary privileges and benefits claimed by complainant were too unreasonable to have been made or accepted without putting them in writing, and he did not believe they were promised by any authorized agent of the company; there is no fact known to him, nor does he believe any fact exists, putting this deed on different ground from other voluntary gifts of public-spirited citizens of Troup county. He has always been willing to give complainant the customary free ticket for a limited number of years, and to make convenient and necessary crossings when not claimed at unreasonable places. He denied all fraud or deception and unauthorized injury to complainant by the company or its agents. He prays to be discharged, and that complainant pay the costs.</p> <p>Thus stood the pleadings in 1854. In 1857 it was agreed by the parties that Jesse McLendon should answer the bill, he being one of the directors of the company.</p> <p>He filed an answer, admitting that great efforts- by speeches, arguments and conversations were made, to get the right of way gratis, that no money was paid to Hodnett for his grant, that the deed was as set forth, and was taken on the day of the public meeting and after it, that the road was built through Hodnett’s land in 1853, and extended across his farm perhaps over a mile but less than two miles in length, and that by all it was represented that the price of lands would be increased and other benefits would flow to the farmers of Troup county by building the road.</p> <p>He answered that the two engineers of the company, Wm. E. Eannin, himself and Orville A. Bull, were the only persons authorized to act for the company; that Hodnett may have been approached by these, and was by himself asked for the right of way, and persuaded to give it, and not only freely gave the same, but was an active advocate, trying to induce others to do so. But he did not believe any one told Holdnett that the road would not damage his plantation or lands or destroy his conveniences of locomotion and cultivation. It would be impossible to build a road without some injury to lands over which it passed, but that damage is usually counterbalanced by the increased value of the lands, which was in this instance twenty-five per cent.</p> <p>He believed no authorized person ever stated that the road would not be built unless they got the right of way gratis: volunteer talkers may have said so. King’s letters only amounted to an undertaking to get up the stock to complete the road, if the citizens of Troup would give the right of way. He knew nothing of any representation by defendant or its agents that Hodnett’s roads should not be injured or destroyed, or that they would make crossings over the railroad. Such promises, except as to necessary crossings and stock-gaps, would have been foolish, and he did not believe they were made. The engineers and himself may have promised these necessary crossings and stock-gaps while they .were building the road.</p> <p>He did not believe any promise was made not to pond the water; at the date of the deed, though experimental lines 3iad been run, no one knew where the road would be made.</p> <p>He believed that the sole consideration for the deed from Hodnett, was to aid in the public and private good to flow from the road. He, as defendant’s agent, took the deed, and had no recollection of any promise or assurance to Hodnett, at that time or before, that in consideration of his gift the company would grant him any privilege whatever; nothing was said about crossings, nor about disturbing the conveniences and privileges which Hodnett had before enjoyed, nor about building him a turn-out or granting him an extra car or private depot, nor about a market wagon and team, nor about a free ticket. The facts were, that some time previous to the excution of the deed, at a public meeting of the citizens in LaGrange, Hodnett (and other land owners) had subscribed to a paper giving the right of way over their lands, and shortly afterwards he called on Hodnett for the deed, and he executed it without a word of objection or asking or receiving any promise or assurance at that time by any officer or agent of the company.</p> <p>It is admitted that one field and part of two others of said farm are separated from the houses, etc., by the railroad; that the road crosses the old ways, and compelled Hodnett to go around to haul his crops home, but he could ford the creek and go to cultivate his crop without thus going round. About this want of a crossing, to save this circuitous route, Hodnett had complained, but demanded nothing but the crossing, (until this bill was filed,) so far as McLendon knew, and the company had promised nothing but this crossing, and that they would have made, but Hodnett would not have it at a proper place, but wished it where it would be very expensive, etc.</p> <p>And these promises were made after the deed, and mostly after the road was built, and as a matter of favor. The crossing which they proposed to make would have saved this hauling around, and would have been almost as convenient as at the place Hodnett wished it, but he would not have it unless at the place designated by himself. It is admitted that they have not given him any of the things he says they promised, but all such promises are denied. All fraud and misrepresentation is denied. He insists for the company that the deed expresses the true contract, (except as to the pecuniary consideration,) and prays judgment for costs..</p> <p>This case had been tried once, and a new trial ordered by the Supreme Court. (See 29th Ga. Eep., 466.)</p> <p>• On this new trial, after the bill and answers had been read, complainant introduced Hiram Dennis, who testified as follows: I was in a public meeting of the citizens of this county in 1850, and Hodnett was there. I have forgotten some things, but I recollect that Judge Hill spoke, and that McLendon was there. Hill spoke of the great advantages of railroads, and urged upon th'é citizens to give the right of way from LaGrange to West Point.</p> <p>At this point complainant proposed to prove what Judge Hill said the company would do. Defendant objected. The Court ruled that the declarations of the public speakers would not be binding on the railroad company unless made by its authorized agents, or adopted.or ratified by them, and heard the testimony, and defendant excepted.</p> <p>Dennis then stated that McLendon and Fannin were the agents of the company for obtaining the right of way, and were both in the meeting when the speeches and declarations were made in regard to the right of way, and expressed no dissent, but proceeded to obtain signatures for the right of way for the road. McLendon was then acting for the road to get the right of way. Fannin spoke, and he and McLendon each had a list for subscriptions. McLendon and Fannin made no objections as to what had been said by Hill. They asked for subscriptions.</p> <p>The speakers said the railroad would enhance the value of lands and save hauling, said the company would leave crossings and build bridges, so that we could get through fields as before.</p> <p>He did not hear them say anything about private depots. They said they spoke in behalf of the company. Hill said he had some letters, or a letter, from Judge King. Hill said that the railroad would be of great advantage to the people of the country; he said nothing as to depots or turn-outs, but that the company would make crossings and bridges.</p> <p>The witness then proceeded to show that the railroad divided Hodnett’s farm and caused extra hauling; that after the road was built Douglass had put up á bridge which was worthless, etc., and gave his estimate of damages done to Hodnett by the road.</p> <p>During this examination, the Court was requested to make complainant elect whether he would proceed for a recision of the contract or its enforcement. The Judge did so, saying that, in his opinion, this was a bill for a recision of the contract on the ground of the alleged fraud in procuring the deed, and must be tried on that issue, and it was in that view alone the parol evidence was admissible.</p> <p>The complainant was then introduced, and testified that he made the deed on the day of the meeting, and got no money for it; the citizens were called together for a railroad meeting, and speeches were made. McLendon and Eannin said the railroad would not be built unless the right of way was given; he did not recollect being there but once at a public railroad meeting before he made the deed; he was on the committee appointed by the meeting to get the right of way; from his understanding of the speakers, he was to have a turn-out or platform, as he pleased, and a free ticket for himself and family, without limit as to time.</p> <p>He was asked the value of such ticket and turn-out. Defendant objected. The objection was overruled, and defendant excepted. He then stated that the ticket would be worth $15.00 or $20.00 per annum; that he was to'have the privilege of a car at the turn-out at which to load, (he was to ship wood, etc.,) and the turn-out was worth fifty dollars per year.</p> <p>While Douglass was laying the track, he said, “ Let me get through to West Point, and I will come back and fix your crossing all right.”</p> <p>This was objected to, but the Court allowed it because Douglass was proved to have been defendants’ engineer and agent.</p> <p>He testified that he would not have signed the deed without said promises made by the speakers, and the deed was made soon after the meeting, and McLendon as agent of the company took the deed.</p> <p>On cross-examination, he stated that all the sayings testified to as inducements to make the deed, were said by the speakers before the deed was executed, that nothing was said by the speakers as to him individually having a turn-out, the remarks were general; the speakers said those who gave the right of way would get privileges and get their property enhanced in value, and he thought they said such would get free tickets; lie understood Judge Hill to say that such would have a turnout and car, that the citizens would have to load the car. Nothing was said about these things when he signed the deed. He also stated his damages, etc.; that he was on the committee to get right of way, and promised to each one who gave it a turn-out and car, and most of the land owners to "West Point gave it.</p> <p>Ur. R. A. T. Ridley testified how bad was the way and what was the distance around after the road was built, etc., and that he told Douglass of it, and he said something about a difficulty with Hodnett, and as soon as that was settled he would put up a bridge. This was allowed over the objection, of defendant, and defendant excepted. He also stated that Judge Hill, in his speech, said something about free tickets, he thought; that Douglass built a poor bridge, and gave his opinion and reasons therefor as to the damage.</p> <p>Complainant examined also Mr. Greenwood and John Dennis as to the value of the right of way, and the inconveniences and damages, and closed.</p> <p>The defendant offered no testimony.</p> <p>The Court charged the jury that if they should believe, from the evidence, that the deed from the plaintiff to the right of way through his land to defendant was procured by the false or fraudulent representations of defendant or its authorized agents before and at the time of its execution, and that the same would not have been executed by plaintiff to defendant but for such false and fraudulent representations made by defendant or its authorized agents, then they might find and decree that the deed be set aside and cancelled; but if they should believe from the evidence plaintiff voluntarily executed the deed to the right of way through his land, without any false or fraudulent representations made by the defendant or its authorized agents to induce him to do so, then they might find for the defendant; for in absence of fraud in the procurement of the deed, the deed itself was the highest evidence of the contract between the parties, and however hard it might operate upon the rights of plaintiff, he is bound by it, as Courts do not make contracts for parties.</p> <p>Fraud must be proved and not presumed, without facts are proved from which fraud may be presumed. What facts (if any) have been established by the evidetíce from which fraud may be presumed in the procurement of the deed ? Defendant’s answer, responsive to the bill, is evidence for it, and when the answer denies the fraud, no decree can be made against such denial, unless controverted by two witnesses, or one witness and other corroborating circumstances. The complainant is made a competent witness by statute, and it is for the jury to say what credit they will give to his evidence.</p> <p>In considering this branch of the case, such parts of defendants’ answer as are not directly responsive to the allegations in the bill or explanatory thereof, are not evidence for defendant. If the jury should believe from the evidence that the deed should be set aside for fraud, then they may assess the damages proved to have been sustained by plaintiff for the use and occupation of his land by defendant, and may also find the former value of the right of way through plaintiff’s land for defendants’ road, and by their verdict confirm the defendants’ right of way over the plaintiff’s land, for it is the object of a Court of Equity, when it gets jurisdiction of a case, to do full and complete justice between the parties.</p> <p>The jury set aside the deed, and found for damages $2,116.00, and found $1,000.00 for the right of way, and confirmed defendants’ right to the same.</p> <p>The defendant complains that the Court erred—</p> <p>1st. In admitting the sayings of Judge Hill and the other speakers at the meeting in LaGrauge.</p> <p>2d. In admitting the sayings or promises of Douglass.</p> <p>3d. In admitting evidence of the value of the free ticket and turn-out.</p> <p>4th. In charging that complainant could be counted as a full witness to overturn the answer.</p> <p>5th. In his charge as to proving fraud, in adding, “without facts are proved from which fraud may be presumed.”</p> <p>6th. In charging that complainant could have a decree for the value of the right of way if they set the deed aside.</p>