Volume 37 — Georgia Reports

Equity. Partition of lands. Demurrer. Decided by Judge Clarke. Terrell Superior Court, June Term, 1867. William Henderson died in 1852, leaving real and personal property worth about fifty thousand dollars. Since that, the realty has been cut off into Terrell county by a change of the county lines. Before this change, John T. Howard, then of Lee county, now of Early county, was appointed Administrator of Howard, qualified, and took upon himself the duties of his office.

Ejectment. Tried before Judge Claeke. Quitman Superior Court. November Term, 1866. This action was for lot number seventy-nine in the eighth district of originally Lee, now of said county, upon the several demises of Boswell Cook, William P. Dearmond and William P. Dearmond for the use of John R. M. Neal.

Claim. Decided by Judge Clarke. Stewart County, April Term, 1867. John T. Warren and Charles IT. Warren, on the 1st September, 1840, mortgaged to John W. Baker land lot forty-eight in 'the twenty-second district of Stewart county, and the South-west corner of lot number sixty, in the same district, to secure two promissory notes for $1632,40 and $268.98 respectively. John T. Warren died and Shepherd became his administrator.

<p>Motion for new trial. Decided by Judge Clarke. Eandolph Superior Court. May Term, 1867.</p> <p>William S. Gaston sued Jehu Phillips, upon a promissory note for $1,283.70, made and delivered to him by Phillips, on the 13th March, 1861, and due 25th December, 1862, with interest from date. The defendant plead that he had, on the 1st May, 1863, tendered the amount due on said note, in Confederate States treasury notes, to plaintiff, who refused to receive them, not because of the character of the currency tendered, nor did he then demand specie in payment.</p> <p>On the trial plaintiff read in evidence his note and closed. This note was credited with $700.00, October 20th, 1866, $317.53, October 31st, 1866, and $460.85, November 16th, 1866.</p> <p>The defendant read the interrogatories of Uriah Phil-LIPS, who testified that the note was given for negroes, which defendant re-sold in 1862, or early in 1863, that he tendered in May, 1863, and again between May and September, 1863, as agent for defendant to plaintiff the amount due on said note in Confederate States treasury notes, plaintiff refused to take the money, he made no demand of specie, but said he could not use the Confederate money, and that he could not receive Confederate money as he had become paymaster for some heirs.</p> <p>The Court charged the jury as follows:</p> <p>The defendant having tendered the plaintiff the amount of the debt, and the plaintiff having declined to take it, you must decide, from the evidence, what reason plaintiff gave for declining the money. If he declined it expressly because it was Confederate money, or because he could not use Confederate money, that objection defeated the . tender, and you should find for the plaintiff the amount claimed.</p> <p>The verdict was for the defendant.</p> <p>Plaintiff moved for a new trial because the Court erred in his said charge as to tender in Confederate money, and because the verdict was contrary to the charge of the Court, the law, etc.</p> <p>The Court granted a new trial, and this is assigned as error.</p>

Attachment. Motion to dismiss, etc. Before Judge Clarke. Terrell Superior Court. May Term, 1867. Johnson sued John T. Howard, William H. Turner and James Henderson, as joint contractors upon their joint note for $7,650.00, (with a credit thereon of $4,493.61, dated 5th March, 1858.) The note was dated 15th June, 1857, and due 1st January, 1858.

<p>1. A non-suit should not be awarded where the plaintiff makes out a prima fads case.</p> <p>2. Where the evidence tends to prove a part performance of a parol contract, the Court should permit the ease to go to the jury, and instruct them as to the legal principles applicable to the facts proved.</p>

Motion to dismiss Attachment. Decided by Judge Vason. Lee Superior Court. September Adjourned Term, 1867. On the 20th August, 1867, Strozier brought an action in Lee Superior Court, against Graves, for the seduction of plaintiff’s daughter, laying his damages at $25,000, and praying for bail process. On the day after the filing of this writ, the sheriff returned that Graves was not to be found in said county.

<p>Illegality. Decided by Judge Vason. Sumter Superior Court. April Term, 1867.</p> <p>This case came up on the bill of exceptions without more. It appeared that said parties had submitted to certain persons, as arbitrators, to determine what amount (if anything) was due on a promissory note given by Green to Shields; an award had been made up, and at the October adjourned term at the said Court, 1866, said award had been made the judgment of said Court without any copy or notice whatever to Green, the defendant, before the regular term in October, but with notice to him between the regular term and the adjourned term.</p> <p>The fi. fa. was for $3,400.80, and (we suppose) was levied, or about to be levied on Green’s property. Green filed an oath of illegality, (so far as is shown) taking no other ground than that the award was made by mistake.</p> <p>The assignment of error is that the Court erred in making the award the judgment of the Court. The certificate of the Judge, signed 27th May, 1867, says he only decided “that illegality was not the remedy.”</p>

<p>Equity. Injunction and Appointment of Receiver. Decided by Judge Vason. Chambers, Lee County. November Term, 1867.</p> <p>This cáse is bottomed on the following contract:</p> <p>“Georgia, Lee County: It is hereby bargained and agreed upon the part of James S. Green, of said county, that Stephen II. Williams, of said county, is to have the right to select four hundred acres of open land on the plantation of said Green, not including the dwelling of said Green ; said Williams to have as many of the negro cabins on said plantation as he may have use for, and to have the house wherein Elisha Smith, on said plantation, now lives, for the year 1867, and also for the same term, to have the use and full control of six of said Green’s mules, two of his, said Green’s wagons, and all harness and plantation tools and agricultural implements, all to be returned by said Williams to said Green, at the end of the year (1867) eighteen hundred and sixty-seven, in like order and repair as they were placed in the possession of said Williams.</p> <p>Said Williams is also to have all of the cotton seed (a few wagon loads excepted) which may be raised on said plantation of said Green the present year, 1866, and to return to said Green all of the cotton seed which he, said Williams, may raise on said four hundred acres of land the next year, 1867. Said Williams to plant as he may choose, said Green agreeing to leave said Williams as much corn as said Williams may need for the purpose of supporting himself, stock and hirelings, in the cultivation of said four hundred acres of land for the year 1867, said Williams agreeing to return to said Green at the end of the year 1867, the same amount and quantity of corn.</p> <p>And in consideration of all this, it is agreed on the part of said Williams co deliver to said Green, of the first cotton he may make, (48) forty-eight bales of cotton, weighing five hundred pounds each, at Albany or Americus, Georgia, or at any intermediate depot on the South-Western Railroad between said Albany and Americus, as said Green may direct or require; said Williams also agreeing to return to said Green, his, said Green’s entire plantation (it being the same on which said Green now lives in said county, and out of which said Williams is to select said four hundred acres) in good repair as to fencing.</p> <p>If any of the said six mules die, said Williams is to pay to said Green the value thereof.</p> <p>James S. Green,</p> <p>Stephen H. Williams.</p> <p>Test: K. J. Warren. November 15th, 1866.”</p> <p>Green averred in his bill that, under this contract, Williams took possession of said premises, and Green complied with all that was required of him under the contract, and Williams has made about, or quite sufficient by farming under said contract, to enable him to comply therewith.</p> <p>Williams paid Green one bale of cotton weighing 450 pounds, but fraudulently intending to keep Green from having the forty-eight bales first raised on the farm, Williams has taken two of such bales to Wooten’s Station on said railroad with intent to send them to market, and Green is apprehensive that he will be defeated of his rights under the contract, unless Williams is restrained from removing the same.</p> <p>Four of said mules are dead, and Williams, therefore, owes Green their value. No quality of cotton is specified and no price agreed on, and this uncertainty gives equity jurisdiction. If Williams has any property other than the produce of said farm, Green is not aware of it, and charges that it will require all of said produce to pay him. By reason of Williams’ disposition towards him, etc., Green fears that Williams will cease to attend to the farm and let the produce waste, etc.</p> <p>The prayer was, that Williams be restrained from removing said cotton, or any of said produce from the farm, except by delivering it in discharge of his contract, until the same is discharged, and for a receiver to take possession of the farm and gather the produce, and pay the same to complainant in payment of his said claim and for general relief.</p> <p>On the 8th October, 1867, Judge Yason granted an injunction to last till the hearing, and a rule requiring Williams to show cause on the 18th October, 1867, why the bill should not be sanctioned, etc.</p> <p>The defendant answered that he found it so difficult to procure hands, that up to the end of January, 1867, he had but six, and with them was unable to attend more than half of the rented land. He went to tell Green of this and abandon the contract. Necessary farming tools had not been furnished him, but recollecting that they had spoken of the embarrassment, etc., before the contract was signed, and that Green had said to him to go on and do the best he could, he did not tell Green, nor make the proposition to abandon the contract. Green had furnished him but one wagon (and that a two-horse wagon) for a part of the year, and Green borrowed it in May find broke it so as to render it useless; he had furnished him with no harness, tools or agricultural- implements of any value to him, except the cotton gin and screw. Complainant used his large wagon at his steam mill, and let out his harness, tools and implements to other persons. This put upon defendant unnecessary expense, exhausted his means and caused some of his hands to quit. Complainant took the cotton seed of 1866, and left not enough to plant and for manuring corn lands, and defendant was thereby compelled to haul cotton seed. Complainant only furnished corn for defendant’s plough stock, and some corn for bread and meal, and this supply gave out by the first of June, 1867, complainant would buy no more, and thus forced defendant to buy western corn at $2.50 per bushel, (and secure the payment by mortgaging his crop) and then haul it sixteen or eighteen miles. Thus he hauled in a two-horse wagon, about one hundred and fifty bushels at a time, when all hands ought to have been in the farm, and this supply lasted only till the middle of August. He charges that complainant’s hands and his had wrangled and quarrelled, and part had quit him, and the complainant had opportunity so to do, and he believed he had, tampered with defendant’s hands to induce them to quit him for the purpose of getting a receiver appointed. Defendant had made eight hundred bushels of corn, "and had one hundred and fifty other bushels which had rotted in the fields for want of means of transportation ; the cotton crop was not yet gathered; complainant had estimated it at seventy-five or eighty bales, but defendant did not believe there would be so much.</p> <p>He sent the two bales, packed, to market, not to defraud Green, but to purchase bacon for the hands. Besides, Green was not entitled to the first forty-eight bales made, but to forty-eight bales “of the first cotton,” i. e., of the crop of 1867. Complainant had at night, and without authority, put his name on these two bales, but defendant erased it and turned over the cotton in payment for supplies, and the cotton remained at Wooten’s station a week or more with complainant’s knowledge, before it was shipped, and that too, because complaint objected to its being shipped.</p> <p>He admitted that if he were compelled to j>ay forty-eight bales, etc., he could not pay his debts, but insisted that by reason of the facts aforesaid, complainant’s claim should be greatly reduced, and then he could pay. Besides, complainant knew defendant’s pecuniary condition when the contract was made, and cannot now make his insolvency the basis for this case. He averred that he had not had at any time any other intention than honestly to pay what in equity he owed complainant.</p> <p>Before this answer was made, to-wit: on the 18th'October, 1867, the Judge passed the'following order (upon what kind of showing, whether ex parte or with notice, does not appear):</p> <p>“ It being represented to the Court that the cotton crop, the subject matter of this dispute, is wasting, and being seriously injured from want of attention: It is ordered by the Court that Philip S. Hale be appointed temporary receiver to take charge of, manage and gather the cotton crop on the plantation rented by Stephen H. Williams from James S. Green, in Lee county, with full power to hire labor, use such corn of said Williams as may be necessary to keep up the stock, to take charge of the stock, mules, and all other plantation implements or appliances necessary to said object, until the hearing of the application of said complainant for the appointment of a receiver in said case. And it is further ordered, that the hearing of the motion for injunction and the appointment of a receiver in said case be postponed until Saturday, the 26th day of the month, at Albany, Georgia.”</p> <p>On the 21st October, 1867, Hale declined to act as such receiver.</p> <p>Complainant amended his bill, by charging that said first forty-eight bales of cotton were worth at least $2,400.00, and perhaps more, that owing to the waste, mismanagement and neglect of Williams, he had reason to believe, and did believe and charge, he would not get anything like said number of bales, and feared he would get none, unless further mismanagement was restrained. He thought that if it were put into careful hands, a large part, if not all, of his debt might be saved.</p> <p>It was further charged therein, that he had furnished Williams with twelve hundred bushels of corn worth $1,800.00, or some such sum, and that by proper management, two thousand bushels of cotton seed, worth $400.00, ought to have been made on said place.</p> <p>This amendment and the answer each were verified on the 26th October, 1867, but no hearing was had until the 6th November, 1867.</p> <p>At the hearing, the Judge had before him the bill and amendment, the answer and certain ex parte affidavits of the substance, and by the affiants following :</p> <p>Abraham G. W. Williams, of said county: He cultivated a portion of said James S. Green’s plantation, moved there in November, 1866. Out of the cotton seed made in 1866, Green furnished him about one hundred bushels to plant, and about two hundred and fifty bushels for manure, also with corn for two plough animals, up to corn harvesting. From the time Stephen H. Williams moved on said plantation, Green had but one crib with corn in it on the plantation. Green also furnished affiant with two sets of plough gear, about the last of October, 1866, to use on that part of the plantation rented to him, and cotton seed for manure for the place rented for 1867, and when affiant went for the cotton seed, he hauled them off without asking defendant anything, not supposing that defendant had anything to do with it. •</p> <p>E. B. Smith : He rented a part of Green’s farm in 1866, all the corn raised on said plantation in 1866 belonging to Green, was put into one crib, out of which Green fed four oxen and about six other animals of his own, and the stock of two freedmen who lived on the place before Christmas, 1866; one-half of the cotton seed raised on that plantation in 1866, was his, and half Green’s ; out of his, affiant’s share, Hardy Morgan bought and paid for two hundred and fifty-one bushels, and hauled them off. This sale was about the middle of January, 1867.</p> <p>Jesse Lee and Pleasant Paul, freedmen: that “ the talk of Green and his way of treating” defendant’s hands, caused them both to quit, and all the hands would have quit had not defendant made arrangements to get affiants back and keep the others.</p> <p>John W. Bryan : heard Green say he had eight hundred bushels of corn in his crib last Christmas, and feared he would not have that much Christmas, 1867 : had seen Green’s oxen fed out of the crib after defendant took control of the crib and corn, and saw Washington Williams haul corn from said lot and crib, and had heard complainant say defendant would make eighty bales of cotton on said plantation.</p> <p>Griffin H. Culpepper: cultivated in 1867, a part of Green’s plantation, and defendant another part, each having moved to it about Christmas, 1866. Defendant bought of E. B, Smith four plough stocks and two ploughs; defendant also bought six pairs of new traces and four pairs of new harness about the last of January, 1867; he said he bought them in Americus. It was difficult in January, 1867, to find there gearing for a two-horse wagon. Harry, a freedman, cultivating part ■of that farm, hauled from Green’s gin house two two-horse wagon loads of cotton seed to plant for himself; on Thursday, (before heswore) in presence of W. K. Stansel,John E. Grimes, S. E. Green, complainant’s son, S. H. Williams, affiant and some little boys, S. E. Green read over an affidavit of John F. Green, to be used in this case, and said he did not know how much corn was turned over by James S. Green to defendant, or whether any was, he was not on the place at the time and did not know that corn was wasted by defendant; after affiant .went to work for defendant, he fed the stock, and his orders were if any corn was left after the mules ate, to gather it up and put it back in the crib, and he did so.</p> <p>William B. Paul : in May, 1867, defendant told him he had corn, and could not keep it, though every night his crib was locked and the key taken into the house and kept there till next morning.</p> <p>Per Contra. Alexander G. W. Williams swore: that when defendant took possession of the place, there were there seven or eight hundred bushels of corn; defendant had not attended to business as affiant would have done, were he in his place, and was not making any effort to gather the crop he had made, and had damaged complainant “ to a very great extent by his neglect,” and that he tried to buy cotton seed from the place from Green, but Green told him he must apply to defendant.</p> <p>W. E. Stansel: defendant' “proposes” to E. B. Williams to let him have one hundred and twenty-seven bushels of corn, and E. B. Williams wished Stansel to have them, and defendant said he would deliver them at any time, and they would have been delivered but for complainant being opposed to the corn being sold off from the place. (No date is given to this transaction.)</p> <p>G. H. Culpepper : on the 1st of January, 1867, he went to complainant for two mules and a two-horse wagon, and complainant said he considered them defendant’s and Culpepper’s for that year; he said he had corn enough in the crib to run his farm. Affiant was on the place 19th October, 1867, and did not consider it properly cultivated ; there appeared' to be a waste for want of gathering the corn and cotton, and no effort was being made to gather it; from what he had seen he did not believe complainant could get his rent. He heard defendant tell complainant that he was not willing to be taxed with repairing the wagons when others borrowed and broke them, and complainant said they were his, and he could take them and take care of them. This was in the last of January, 1867.</p> <p>Asbury M. Kilby : knew that defendant was in possession of the rented premises and the dwelling house occupied in 1866 by Elijah Smith, sufficient negro houses, to-wit: all of the negro cabins except those in Green’s yard, and two outside of it, and controlled all the stock and everthing except one horse. Defendant took into his possession about one thousand bushels of corn and six mules. Defendant was careless and indifferent about gathering the crop, is frequently absent, and though he has a white man on the premises, this man is but a laborer, and not a superintendent. Under present management, not more than twenty bales of cotton can be made, but under proper nlanagement, there would be thirty-five bales. Affiant would not give the corn defendant received for the present crop.</p> <p>Stephen E. Green : was familiar with the rented premises and defendant’s management of them. Defendant had “ extravagantly mismanaged ” affairs, was frequently absent, sometimes as long as about ten continuous days, leaving the hands, etc., without superintendence, and that, too, in the critical times of the crop ; skillful management would have produced seventy bales of cotton. Forty bales might yet be saved by good management, but defendant shows no disposition to gather the crop, and affiant believed that he would not not gather ten bales. He heard defendant say he had whipped two of the female negro hands, and at another time he pulled a board off the crib and wore it out over a female negro hand named Preen, and she left the place.</p> <p>Defendant also read two ex parte affidavits in substance, as follows:</p> <p>Sidhey L. Matthews: worked for defendant on said premises, and while there he heard complainant tell defendant that he, complainant, knew that defendant could not get sufficient hands to cultivate the premises as they ought to be cultivated, but he should go on and do the best he could, and he, complainant, would do all he could .for defendant, and do what was right about the rent of the place. Green’s oxen and his son’s stock hogs (or a part of them) were fed out of the only crib of corn as long as any corn was there.</p> <p>Zachariai-i Parker: worked as a laborer for defendant on the rented premises, from the 1st March, till in July, 1867 ; the corn crib was within seventy-five yards of complainant’s home, and a half mile from defendant’s home. When affiant went there, there was not more than two hundred and fifty bushels of corn, defendant fed out of it five or six mules, at no time more than six, and about ten hands; out of it, also, six oxen used by Green at his steam-mill, (four of them all the time) and two horses were fed three times a day, and. his cows eat from it till the first of April. The corn gave out in May, and defendant bought and hauled more from Amc-ricus, taking a day and a half, and sometimes two days for a load. Before this, defendant got some meal from said steam-mill. The negro cabins were near Green’s residence, and affiant heard Pleasant Paul and Jesse Lee, two of defendant’s laborers, and good ones, say they would quit the place if Green did not quit bothering and interfering with defendant’s hands.</p> <p>Defendant got no cotton seed from Green except to plant, and not sufficient for that, he hauled planting seed from his own place, a distance of several miles. Wash. Williams, who cultivated part of Green’s land, hauled cotton seed from the gin house for manure, and Tom Walker and Harry Walker, freedmen, cultivating other parts of it, the one with six hands, and the other with three hands, hauled cotton seed for planting.</p> <p>A part of the time, complainant had used the two-horse wagon for a fishing excursion and broke it down, and defendant had to use his own in lieu of it, and complainant used his own large wagon to haul lightwood to the steam-mill.</p> <p>While affiant was at work on the premisos, no corn was wasted, but defendant himself was careful, and charged the hands to be so with the corn.</p> <p>The Judge granted the injunction'and appointed William D. Green as receiver as prayed for in the bill.</p> <p>On the 8th of October, defendant excepted to that action of the Judge, and superceded the judgment by affidavit in forma pauperis.</p> <p>These facts having been brought to the knowledge of the Judge, he ordered that “ said receiver take charge of said property, and use all necessary means to gather and secure the crop under the supervision of the Court, until the decision of the Supreme Court be had, and if said decision is adverse to the opinion of this Court, then said property shall be turned over to said defendant, and if not, (the receiver) to hold the same subject to the further order of this Court.”</p> <p>To this order defendant's solicitors excepted, but the Judge said he would not certify it, as it was not a “ final decision,” such as would sustain a bill of exceptions.</p> <p>The granting of the injunction, and appointment of the receiver, and the putting the receiver into possession after the supersedeas, are each assigned as error.</p>

<p>Bill for New Trial and Injunction. Demurrer. By Judge Vason. From Sumter county. Chambers. September, 1867.</p> <p>James S. Jones, on the 20th day of September, 1859, brought an action of ejectment in the short form, in Sumter county, in which Daniel H. Baldwin, as the executor of the last will and testament of Loami Baldwin, was the plaintiff, and Archibald McCrea was the defendant, to recover the north half of land lot Ho. 219,in the 17th district of originally Lee, then Sumter county.</p> <p>He used the name of D. H. Baldwin, executor, etc., because the deed from D. H. Baldwin, executor, etc., to himself, recited that said land was sold in the county of Chatham, Georgia, under an order of the Court of Ordinary of said county, which sale he held was contrary to the statutes.</p> <p>The cause was tried on the appeal at October term, 1866. Plaintiff proved McCrea in possession of the premises in dispute, at the commence of the action ; introduced a plat and grant of said lot from the State of Georgia to Loami Baldwin, and the order of probate of his will and the letters of executorship to D. H. Baldwin, and closed..</p> <p>The defendant drew from plaintiff, by notice, said deed from Baldwin, executor, etc., to plaintiff, and read it in evidence. The defendant also read in evidence a deed for said land from Loami Baldwin to John Sanders, and it was admitted that the defendant had a regular chain of titles thereto from said Sanders to himself. Defendant then proved by Rufus S. Godwin that, to the best of his knowledge and belief, defendant went into possession of said land in April, 1852, and had been in peaceable possession up to the commencement of this suit.</p> <p>Plaintiff established, beyond question, that the deed from Loami Baldwin to Sanders was a forgery, and defendant’s attorneys at the trial admitted it was a forgery.</p> <p>The Court charged the jury that, if defendant had been in peaceable possession of the land, under color of title for seven years prior to the commencement of the action, they should find in his favor. The jury found accordingly.</p> <p>The witness, Godwin, having since refreshed his mind, became fully satisfied that he had made a mistake in his testimony, and that, in fact, McCrea took possession, not in April, 1852, but in April, 1853, and gave Jones an affidavit to that effect.</p> <p>McCrea did, in fact, not take possession till April, 1853,' and since the trial, has admitted that Godwin was mistaken as to his having been in possession seven'years before the suit was brought.</p> <p>Upon these facts set out* in his bill, Jones prayed that McCrea be enjoined from selling and disposing of the land, and that he should have a new trial of the ejectment cause. The Judge granted a rule calling on McCrea to show cause why the injunction should not issue as prayed for, and granting the injunction ad interim.</p> <p>Thesolicitors of complainant and defendant submitted to the Judge a motion to dismiss the bill and dissolve the injunction (on demurrer) upon written arguments.</p> <p>Complainant’s solicitor moved to amend his bill by making D. H. Baldwin, as executor of Loami Baldwin, deceased, a party complainant, and charging that Jones had, at the date of his deed from said executor, bona fide bought said land and paid for it, that said executor and the legatees under the will, did not claim the land, but were all willing that he should use the executor’s name to recover the land, and praying that they make a proper conveyance of the land to him, Jones, and further, by averring that he did not discover Godwin’s, said mistake till May or June of 1867 (since the verdict, etc.) They asked for time, till the regular term of the Court, to have' these amendments sworn to, because Jones resided in Spalding county, and Baldwin in Chatham county, Georgia, and were both absent.</p> <p>The Court, thinking that these .amendments “would not give equity to the bill,” dissolved the injunction, and dismissed the bill. This judgment of the Court is assigned as error.</p>

Assault with intent to murder. Motion for a new trial and in arrest. Decided by Judge Vason. 'In Lee Superior Court. Held: did shoot off and discharge the same at and upon said-Jasper and Chloe, with the intent to kill and murder said Jasper and Chloe, contrary to the laws of said State, the good order, peace and dignity thereof, and the said Jim Scott being absent at the time of the commission of the crime aforesaid, did procure, counsel and command…

Bill for. Inj unction. Decided by Judge Vason. Chambers. Lee County. November, 1867.

<p>The counter affidavit to a distress warrant for rent having been filed, the plaintiff must prove his claim ; the distress warrant is not prima facie evidence.</p>

<p>Equity. Motion to dissolve injunction. Decided by Judge Cole. From Dougherty County. Chambers. July, 1867.</p> <p>On the 31st of October, 1865, George F. Robenson married Lucy Bartlett, a ward of David A. Vason. She was at that date a minor, and resided in Dougherty county. The marriage license was issued by the Ordinary of Baker county, and without the consent of the mother or guardian of the ward.</p> <p>When Robenson and Yason proposed settling the accounts between Yason and said ward, various preliminary investigations were had, which resulted in submitting the matter to the arbitrament of G. J. Wright and W. E. Smith, attorneys at law, with full powers to investigate fully “ all the matters involved, and make an award covering the same, so that the same shall be a termination of all matters of dispute between said parties.” The matters mentioned in the submission as-being for determination, were, a settlement “ for all the property, assets and credits due said minor,” and whether Robenson, in right of his wife, could discharge Yason from his trust — Yason “ having some doubt” whether Robenson could discharge him, because “ the marriage was irregular and informal,” for the reason that said license was taken out not in Dougherty county but in Baker, and under the circumstances aforesaid.</p> <p>The arbitrators found, from the facts agreed on by the parties and submitted to them, that the ward owed Yason $9,500.00, adding “ but as large receipts, expenditures and advancements had been made by Yason in Confederate treasury notes, said sum should be abated to $6,000.00 due Yason January 1st, 1865, this settlement being agreed to and confirmed by the parties themselves, said Yason, Robenson and his wife Lucy. Therefore we award the above as a full, final and complete settlement between the parties.” They said nothing as to the validity of the marriage. Afterwards, to-wit: on the 25th of November, 1865, Robenson gave to Yason his two promissory notes, each for $3,639.00, drawing interest from 1st January, 1865, due on the 25th days of December, 1866 and 1867, respectively, in settlement of said six thousand dollars award, and of twelve hundred and seventy-eight dollars for a house and lot known as numbers 65 and 67, on Flint street, in Albany, Georgia, sold to Robenson by Vason. And to secure the payment of the notes, Robenson gave to Vason a mortgage.</p> <p>The mortgage recited said two items of indebtedness, and . described said two notes, stated that Vason, as such guardian,' had fully settled with Robenson in right of his wife, and had turned over to him “ the plantation in the 14th district of Lee County, known as the Chehaw Place, formerly the property of John H. Pope, known as numjbers 17, 18,19, 46, 47, 61 and 52 in said district, making in the aggregate fourteen hundred acres more or less, also between seventy-five and one hundred head of cattle, eight or ten head of mules and horses, two wagons, one yoke of oxen and cart, forty head, of sheep, one hundred and twenty-five head of hogs, all the plantation tools and utensils, the crop of cotton not yet packed, corn, fodder, and all otner .perishable property on said plantation.” '</p> <p>It then conveyed to Vason, his heirs and assigns, all of said property, real and personal, “ under the following terms and stipulations, to-wit: That if said Robenson shall pay the amount of money specified in each of said promissory notes, and interest thereon, as they respectively fall due, then this mortgage shall be considered as discharged thereby. And in case of default of payment in either of said promissory notes, the said Vason, his heirs and assigns, may either proceed to foreclose this mortgage on any of said property or the crops which may be grown on said plantation, under the statutes of this State, or the said Vason, his heirs or assigns, may proceed to sell any portion of said property for the purpose of discharging said notes, upon giving thirty days’ notice thereof to said Robenson, his heirs or assigns, which said sale, if it shall become necessary, said Robenson hereby binds himself, his heirs and assigns, fully to satisfy and execute, and hereby ■ acknowledges himself as tenant-at will of said Vason, his heirs and assigns, as to the whole of the property hereinbefore mentioned, for the purposes aforesaid.”</p> <p>On the sixth of June, 1866, this award was made the judgment of the Superior Court of Dougherty county, and thereupon judgment was entered in favor of David A. Va-son against Eobenson for six thousand dollars principal, with interest from the first day of January, 1865, and costs. (This fact was not noticed in the argument.) In October, 1866, Eobenson filed a bill in equity, averring among other things that Yason, as the guardian of his wife, had taken into possession a large amount of cash and personalty, say $30,000.00, and managed it all for her from 1852 to 1858, that he in 1858, as such guardian, bought for her the “ Chehaw Place,” under an order of Court for that purpose, cultivated the farm for her, making large profits all the time-, except for 1863 and 1864. It showed the status of affairs as they appeared by Yason’s returns.</p> <p>It was averred that while a balance seemed to be against the estate, it arose because Yason had counted large expenditures in Confederate money at par, that he wished to scale this money to a sound currency and Yason -was unwilling to do so, giving as a reason that when he bought the “ Chehaw Place,” on 1st January, 1858, the assets of the estate being mostly in notes, though perfectly solvent, they were not available, and he (Yason) had advanced of his own money $15,000.00 to make said purchase, and being in no haste to collect these good interest-bearing notes, he had held them — the interest on the notes balancing the interest on his advances— until during the war the makers of said notes paid them to him in Confederate money, and it required the whole of the same, so paid in, to defray the expenses of the estate, and left nothing to repay his advance, which he still claimed against the estate.</p> <p>In explanation why the expenditures of 1863 and 1864 had exceeded the income, Yason stated that he had bought stock and implements and made improvements to put the place in good order, (a list of what he claimed to have bought, etc., is in the bill). Yason further represented that there was on the place then, cotton housed, enough for twenty or twenty-five bales. Yason had made no return for 1865, but said that there would be but little balance either way for that year.</p> <p>Believing these representations to be true, and not for any other reason, Robenson made the settlement aforesaid, and to secure Vason made the said mortgage.</p> <p>The returns are set out by exhibits to the bill and are charged to be erroneous, and all of said representations are said to have been false, and a long list of facts and circumstances is given to prove the charges.</p> <p>It is further averred that Vason pretended to have transferred the said notes and mortgage to his son William J .Va-son and his son-in-law William Gilbert, and they pretended to have transferred them to Ross, of Macon, Georgia, and Robenson believed all of the parties had notice of his having good reasons for not paying the notes. He prayed that all of the notes, except the part for $1,278.00, be cancelled, that Vason should account and settle with him, and that all the parties be enjoined from proceeding to collect the amount, to-wit: of $6,000.00 which he denied owing. Disclaiming discovery, he prayed for general relief, etc.</p> <p>Judge Richard H. Clarke, on the 23d October, 1866, ordered injunction to issue, upon Robenson’s giving bond for damages, etc.</p> <p>W. J. Vason and William Gilbert’s answer of the bill is a disclaimer of any knowledge of the state of David A. Va-son’s account as such guardian, or of the facts and circumstances of the settlement, except what they learned in and from the mortgage. As to the transfer of the notes and mortgage, they answered that in September, 1866, they wished to enter upon the business of merchants in Albany, Georgia, and wished the aid of David A. Vason, who, upon their application, transferred the notes and mortgage to them, giving to them each one-half of the first note, and letting them take the second note upon their agreeing to pay him the amount called for by it, at its maturity.</p> <p>They bought of J. B. Ross & Son about $5,300.00 worth of goods, and on the 13th of September, 1866, they transferred to J. B. Ross & Son said notes and mortgage as collateral security for said debt and such credit as they might give Vason & Gilbert thereafter. They positively deny knowing any defence to the notes at the time they took and transferred them, and state that they did both in good faith, believing the notes would be paid at maturity.</p> <p>J. B. Ross & Son adopted the answer of Vason & Gilbert as to the transfer to themselves, and stated that when they took the notes and mortgage, they relied upon the recitals in the mortgage as true, saw that it was duly recorded and, bona fide, took them as such security before they were due, and without any knowledge that Robenson had any reason for not paying them.</p> <p>By way of cross-bill, they averred that they were informed and believed that Robenson had clandestinely brought cotton to Macon and sold about three thousand dollars’ worth of the same, and had other cotton in Macon secreted to keep from paying these debts, that the cotton was the most available and proper source for funds to pay them, that Robenson was a spendthrift, etc., and had no other property but that which was mortgaged, and that if they had to sell the property to pay the first note it would endanger the security for the second. They prayed for the dissolution of this injunction, and for an injunction to restrain Robenson from disposing of the mortgaged property, and that a receiver be appointed to take possession of it all till further order.</p> <p>On the 17th November, 1866, John T.'Clarke, Judge of the Pataula Circuit, ordered that upon Vason & Gilbert and J. B. Ross & Son giving bond to pay Robenson all damages, etc., injunction as prayed for should issue against Robenson, and that Robenson should show cause why a receiver should not be appointed. Bond was given and injunction issued.</p> <p>The questions involved in the pleadings were argued before David Irwin, Judge of the Blue Ridge Circuit, at December Term, 1866. He ordered that the first injunction be dissolved, and that the injunction against Robenson be dissolved upon his giving bond for $5,000.00 for the forthcoming of the property to answer any judgment on the notes or mortgage, and that upon his failure to give this bond, one Stokes should take possession of the property, as receiver. Robenson gave the bond.</p> <p>On the first day of March, 1867, Robenson was notified in writing by the attorneys claiming to represent J. B. Ross & Son, that in pursuance of the contract, under said mortgage, they would, on the 2d day of April then next, proceed to sell all of said propertjr, (not stating how they would sell, or where,) and demanding that as their tenant-at-will, Robenson should deliver possession of all the property to them on said day in April, not waiving any right to demand it sooner.</p> <p>Thereupon Robenson filed an amendment to his bill. Reciting all the foregoing facts by averments and exhibits, he further stated that Judge Irwin’s decision was put upon the ground that he could defend .at common-law; that the defendants were evading the spirit of that judgment by undertaking to sell the property under said notice and not by foreclosure or suit; that the consideration of the notes was indebtedness incurred prior to June, 1865, and was therefore within the provisions of the “ stay law;” that much of the property mortgaged was not in existence and was therefore too uncertain a basis for a lien; that the notes and mortgage were obtained from him by fraud, and therefore were void in all hands; that Ross & Son only held them as collateral security for a debt which he believed had been paid or arranged, and that Ross & Son had then no real interest in the notes and mortgage and did not authorize this notice, but that it was in fact the other defendants who were moving in the matter; and of all. these matters he prayed discovery from J. B. Ross & Son.</p> <p>He further averred therein , that when David A. Vason asked him for the mortgage, he went into Vason’s office and signed it, without knowing that it contained any such power of sale, and that he never knew it did, till recently he heard that Fred H. West, Esq., attorney for the Vasons & Gilbert, said the mortgage was a “ thirty day paper.” He averred that such sale was irregular and would be ruinous to him, that his defence was not complete at law, and prayed that all the parties be enjoined from selling the property under said notice, or otherwise interfering with the same.</p> <p>Judge Cole, of the Macon Circuit, granted the injunction last prayed for on the 12th of March, 1867.</p> <p>J. B. Ross & Son answered. They admitted the recitals as to the former proceedings in the premises, but denied that Judge Irwin’s order was upon the ground stated, or that they were violating its spirit; they denied all knowledge of the consideration of the note being indebtedness prior to June, 1865, and stated that the power of sale was unrestricted by the stay-law, even if that law were constitutional: that so far from their debt being paid or arranged, Vason & Gilbert then owed them $8,422.22, and they held the notes and mortgage as collateral security for the same, and though Va-son & Gilbert had the possession of them, it was only to enforce payment, and though they did not authorize the said notice given, they then fully ratified the same. They reiterated that they were. bona fide holders, etc., and prayed for dissolution of the injunction.</p> <p>The answers of William J. Vason and -Gilbert are substantially the same as the last answer of J. B. Eoss & Son. They say that the collecting agent of Eoss & Son was urging them to collect the money, and they gave “ to the attorneys in the case” the notes and mortgage, with instructions to make the money as soon as possible.</p> <p>David A. Vason, still insisting on his demurrer filed in the case, now answered the original bill and the amendment, giving a history of his guardianship, explaining the various charges as to the management of the property, and denying all fraud in procuring the notes and mortgage, and denying that he made the representations charged. He said the mortgage was read by Eobenson and closely scrutinized by his attorney, Gen. Wright, before it was executed; ■ that he transferred the notes and mortgage to Vason & Gilbert as stated by them, etc. He stated that he had told Mr. Warren, one of Eobenson’s solicitors, that he was willing to open the settlement, no application was made for the purpose, and he thought the controversy was ended till this bill was filed.</p> <p>He insisted that by the award having been made the judgment of the Court, the whole matter was res adjudícala as to him, that Judge Irwin had settled the rights as between the other parties, and that the “ stay-law,” if applicable to said notes, was no hindrance to a sale under the power of sale granted in the mortgage.</p> <p>This answer was excepted to at the hearing for uncertainty and evasiveness, and for uncertainty for want of an exhibit of his returns, for not stating to whom his ward’s funds were loaned out and when collected, what were collected before and what since the war, etc.</p> <p>On April 2d, 1867, John A. Vason and Fred H. West, solicitors for the defendants, gave notice of a motion to dissolve this last injunction, on the grounds that there was no equity in the bill and amendment, that the questions in the amendment had been adjudicated, and that if there was any equity in the bill and amendment, it was sworn off by the answers.</p> <p>At the hearing, the defendants read an affidavit of C. M. Pope, to the effect that Robenson and his wife had staid some time at the “ Chehaw Place ” before it was turned over, and must have known the condition of it; an affidavit from John H. Pope, to the effect that an affidavit which he had sworn to at Robenson’s instance, was sworn to without his having read it or knowing what it contained, that the place was in tolerably bad condition when Robenson took possession of it, and some of it had to be repaired; the screw was in bad condition, as it had been shortly before broken in packing the crop of that year; that the balance of the crop (say twelve bales) was packed at deponent’s screw; he did not know the condition of the tools nor the quantity of provisions on the place, but did know Robenson had sixty or seventy hogs penned to fatten, and almost all the plantation cultivated in 1865 was in corn, and the corn crop ought to have been very large j Robenson had more persons and more stock to feed in 1866 than there were in 1865, he knew not how much cotton was gathered in 1865, but the overseers at the time estimated the crop at twenty-five bales; that the property specified in the mortgage was on the place except that as to the mules and horses and cattle, the number he did not know, but the stock of cattle was fine, twelve mules and horses, though two of them were of little value and none of them as fat as they might have been had they been better cared for; and an affidavit of J. E. Higginbotham, to the effect that he drew the mortgage and read it over to Robenson, who also examined it, and it was examined by G. J. Wright and pronounced all right, Robenson said he was well satisfied with the settlement, and Yason voluntarily divided the payment so that Robenson could pay with his growing crops, which Robenson said he could do without embarrassment.</p> <p>Complainant submitted the following ex parte evidence. An affidavit of H. T. Mast, stating that he bought two bales of cotton and forty or fifty bushels of corn from the place about two months before Robenson took possession; an affidavit of G. M. Stokes, that two or three months before Robenson got possession, he had bought from the place one hundred bushels of corn and one hundred and twenty-five bushels of cotton seed; an affidavit of C. M. Pope, to the effect that he turned over to Robenson the plantation and what was on it, to-wit: nine mules, four of them being very good but not in first-rate order, two' so-so, and the other three perfectly worthless, twelve medium-sized bales of cotton, 1,000 bushels of corn, (400 bushels of which belonged to the freed laborers as wages of 1865, and 250 or 300 bushels of it belonged to the South-Western Railroad Company to whom it had been sold but not delivered,) about forty-five head of meat stock, forty-five or fifty head of cattle, twenty-six sheep, with what tools there were, there was not a plough stock and none of the tools were of any value, the cribs, mule-shed and screw were worthless and the fencing in “ miserable order,” no crop could be made there without great expense and labor; affidavit of John H. Pope, to the effect that when Robenson took possession of the place, it was not in condition to make a crop upon, until great labor and expense were put on it, that there were- not sufficient farming tools to prepare and plant a ten acre wheat-field, that there was not sufficient corn and meat to last longer than in the. Spring, there were but twelve bales of cotton of medium size, which had to be packed at his screw because the screw on the place was worn out, nine or ten mules, all in bad order and three of them worthless, the fencing was dilapidated, the mule-shed, cribs and screw were unfit for use.</p> <p>Complainant also read the affidavit of William A. Maxwell, explaining that from him, as assignee of John H. Pope, in 1858 Yason, as such guardian, bought the “Chehaw Place” and some stock, etc., and paid for it thus : $8,225.32 by a debt due from John H. Pope to him as such guardian, and about $5,350.00 in a claim of Stephen Thomas against John H. Pope, (the payment to Thomas being assumed by Yason,) and the balance in other claims against John II. Pope, but paid nothing in cash, and further that the place if well managed would have paid a profit, but it had been badly managed; and an affidavit of John H. Pope, giving the same statement as to how the place was paid for.</p> <p>It was admitted that Yason had,^before 1st January, 1858, collected, as such guardian, W. H. Bartlett’s note $1,000.00, J. T. & T. C. Spicer’s note $1,788.86, R. Lindsey & W. B. Roberts’ note $1,098.56, J. H. Pope & A. Pope’s note $3,210.00, T. D. Mathews & I). A. Yáson’s note $300.00, Dudley Sneed’s note $1,111.31, W. M. Roberts’ note $1,200, James J. Mayo & Stegall’s note $1,175.00, J. S. Dunham & B. Clark’s note $200.00, and P. nightingale’s note $5,890.00, with interest on each, swelling the amount to $18,157.35.</p> <p>Complainant also read the affidavit of L. P. D. Warren, one of his solicitors, to the effect that he told Yason that Robenson was dissatisfied with the settlement, that Yason said he was sorry he did not know it before because he had transferred the notes, but that while he would not open the settlement, he would correct any error; that he told Yason that he had represented that there were twenty-five bales of cotton on the place -when there were but twelve, that Yason said he had not charged that cotton in the settlement and therefore it had nothing to do with it, and that he replied that with that cotton Robenson would have been greatly aided in farming:</p> <p>An affidavit of W. E. Smith, Esq., Yason’s arbitrator, that he and Gen. G. J. Wright, for Robenson, were trying to settle the accounts and differing, had agreed that from the returns Yason was entitled to $9,500.00, and in the meanwhile Robenson and Yason had agreed to settle at $6,000.00; that this settlement was made upon Yason’s statement that he had paid out $20,783.03 in purchasing the “Chehaw Place,” paying of the ward’s assets $5,000.00, and advancing out of his own funds about $15,000.00, because then the ward’s assets were unavailable, and that he afterwards during the war collected these assets in Confedex-ate money, and collected most of his private claims in the same currency; Ya-son wished the cotton applied to the payment of this $6,000.00, but Robenson needed it to make a crop, and Ya-son yielded and took security (mortgage); he understood Yason to say there were twenty or thirty bales of cotton on the place, three packed and the others in lint, but was not positive of the number nor that they were of the crop of 1865. Another affidavit of W. E. Smith, that they were not acting as arbitrators nor knew that any award was to be made till after the settlement was agreed on, that Yason presented the submission and at once they signed the award, not as fixed by the arbitrators but as agreed on by the parties :</p> <p>An affidavit of George Robenson, stating that John H. Pope’s affidavit was read over and corrected by Pope before Pope swore to it, and that though he had visited the “ Che-haw Place” before he got possession, he was there but twice, staid only a- few hours the first time and a day and night the second time, and did not inspect the condition of its affairs:</p> <p>An affidavit of Gen. G. J. Wright, in substance the same as Smith’s upon the matters alluded to by Smith, but more in detail: he further stated that Yason made to him the representations of the condition of place as charged in the bill, that he communicated them to Robenson, and that upon them and upon the faith of the cotton being sufficient to enable him to make a crop, Robenson, against his advice (as to the legal view of Vason’s position assumed in their interviews,) made the settlement, and then for the first time was anything said about an arbitration, and that he and Smith both stated that their judgments were not satisfied, but they would sign the paper as agreed on ; that they were not sworn, etc.; and that he saw the mortgage, but did not read it because Vason told him it was merely a mortgage.</p> <p>Judge Cole refused to dismiss the bill, but dissolved the1 injunction last aforesaid.</p> <p>The judgment of dissolution is assigned as error.</p>

<p>Indictment for murder. Tried before Judge Vason. Sumter Superior Court. September Special Term, 1867.</p> <p>The indictment charged Ben Horne, Scott Horne, Edmund Horne, Richard Horne and George Jackson, Jr., negroes, with the murder of Joab W. C. Horne, on the 12th. August, 1867, in said county.</p> <p>The defendants were arraigned.</p> <p>1st. A motion was made to change the venue. The Court refused to entertain the motion, until efforts to obtain a jury-in the county had failed.</p> <p>2d. The indictment was demurred to, because in one count all of the defendants were charged with the murder, and in the other count three of them were charged witb¡ murder as principals in the first degree, and the other two as principals in the second degree. The demurrer was overruled.</p> <p>The defendants plead not guilty.</p> <p>3d. When the Solicitor-General proceeded to organize the petit jury, the Court required him to ascertain from the jurors under oath, whether or not they had registered, according to General Pope’s order; four of the petit jurors were excused because they had not registered, and their places were supplied by registered persons. Each juror was examined as to the fact of registration, and if found not to be registered, he was set down for cause. The Court announced that it did not decide upon the legality of this proceeding, that he would leave that an open question, that parties who considered themselves aggrieved thereby, might redress themselves.</p> <p>When the different panels of jurors were put upon the prisoners, they challenged the array because they were organized under said military order. The Court overruled these challenges.</p> <p>4th. After the first juror had been sworn, defendants moved to sever on the trial, stating that they intended to sever, but inadvertently failed to make the motion earlier. The State objected, on the ground that the motion came too late. The Court overruled this objection, and required the defendants to assign special reasons for severing. Defendants assigned specifically that they wished to use each other as witnesses. The Solicitor General and associate counsel for the State, consented that defendants should testify as if severed, and thereupon the Court refused the motion to sever.</p> <p>5th. The Court ruled out the evidence of Laura Horne, (as specified in the brief of testimony between the two * *.) (The record leaves it somewhat uncertain whether the Court ruled out her testimony as evidence for any of the defendants, or only ruled that her testimony was not evidence for her husband, Ben Horne; counsel for the State differed as to this in the argument, but the latter seems to have been his ruling.)</p> <p>6th. In the progress of the case, the Solicitor General asked a witness the condition of deceased’s mind towards the prisoners after the mortal wound had been given, whether kind or malevolent. The Court refused to allow the witness to answer the question, remarking “ Horne had a right to be mad, he thought anybody shot had a right to be mad.”</p> <p>7th. When the nineteenth challenge allowed defendants was being considered, they asked the Court to decide how many challenges they were entitled to. The Court said he would not decide till the question was made. When their twenty challenges were exhausted by the defendants, the question was again made, and the Court held that they were entitled to one hundred challenges.</p> <p>The testimony was as follows:</p> <p>Culleh IIokne testified that deceased was wounded on Monday night, 12th August, 1867, in Sumter County, and died about 12 o’clock on Tuesday night, 13th August, 1867 ; he knew no difficulty between deceased and Ben, Scott and Edmund, previous to the killing; he saw deceased leave his house on the night of the shooting, to see a sick negro woman, when he met Ben (who had a double-barrelled shotgun) near Ben’s and Edmund’s house; he did not see deceased and Ben in any struggle whatever — as witness approached within ten feet, he saw Ben jump back and fire at deceased, saw deceased place his hands on his bowels as if wounded. Witness approached within four feet, when Ben fired again at deceased — this shot did not take effect, witness thought.</p> <p>Deceased then took some splinters of lightwood out to one house, threw down some and carried the balance to another, pretending he was going to fire some of the cabins.</p> <p>Witness had been in the field during the day. Four of the prisoners had lost two hours that day, and witness had given notice that they w’ould be charged with the lost time. They objected to this, left the field, and went to the house. Prisoners, before that day, had habitually hauled a load of green corn in the morning, to feed. Witness asked them to haul a load that noon, as they had three hours at noon to rest. Contrary to order, they hauled after the rest-hours were out. Witness changed the hour for hauling, because it was cooler to pull fodder in the morning and more convenient to haul the corn at noon. When deceased went out to bring the negroes back, he was armed with a pistol — Ben and Edmund and Richard each owned a gun and a pistol, and Scott and George each owned a gun.</p> <p>Re-examined: Deceased made no effort to burn the house ; difficulty occurred out of the house; deceased could not have burned the house if he had desired to; found the lightwood outside the houses about ten feet from each; deceased did not habitually carry weapons about the plantation, but he buckled on his pistol when he went out that night; the negroes Avere in the habit of using their fire-arms on Saturdays and Sundays; deceased, when he thought he Avas going to die, stated that Ben, Edmund and Scott shot him; witness found a gun unloaded lying on the ground near the place where Ben shot deceased.</p> <p>As Ben ran and witness pursued, there was other firing. Witness pursued about one hundred yards, and returned and found deceased on all-fours, and his little son over him. Deceased was bruised on the face, mouth, nose and shoulders, his eye was cut, there Avas one gun-shot wound in front on the right side, one in the rear and to the right of the spine.</p> <p>Witness was first attracted by deceased ordering Ben to put down his gun; he ^was fifty or seventy-five yards off, but it Avas still and he could hear all that was going on. ISTest day Captain Robinson found guns under George Jackson, Sr.’s house, and three guns were found in houses of different negroes. George Jackson, Jr. staid in the same house with George Jackson, Sr. Witness heard no shooting on the evening previous; saw prisoners nest in jail; was with deceased all the time. Deceased, when he was conscious of his approaching death, said Ben, Scott and Edmund shot him, and said he regretted very much that he had been murdered by his former slaves, whom he had raised from childhood.</p> <p>Cross-examined: Deceased, immediately after supper, went to see the sick negro woman, and immediately returned and reported that there were no negroes on the place. The prisoners were all employed on the place and had houses assigned to them. The prisoners all quit the field about four o’clock without the consent of witness, who was the overseer. When deceased returned from seeing the sick negro, after studying some time, he remarked to his family that he had hit upon a plan to bring back the absent negroes, who, deceased thought, were out consulting.</p> <p>Dr. W. A. Green testified that he visited deceased as a physician; he had two gun-shot wounds; the ball struck deceased behind, three inches and a half behind the hip bone, a musket-ball wound and the one which proved fatal. Another wound on deceased was by a pistol-ball in the lower part of the bowels, but it did not enter the abdominal wall. The head and face were contused and lacerated, deceased was dreadfully mutilated, particularly was there a severe wound above the eye. The musket-ball wound was shot from behind and was fatal, that ball did not emerge. When both witness and deceased thought deceased was dying, deceased said the attack was unprovoked, that he was shot from behind by Edmund, and that Edmund and Scott were standing in the jamb of the chimney outside, and that Ben shot at him with a double-barrelled gun and shot twice, that he was immediately shot from behind by Edmund, and they afterwards beat him with their pistols. He used the word “ they,” not calling any names, when he spoke of the beating. Deceased said he did not remember whether Scott shot, but Scott had a pistol.</p> <p>Dr. Westbrook testified that he was a physician and examined the wounds after deceased died. He deemed the wound over the right eye a mortal fracture; he was not certain as to the wound in the bowels. Called back he said the wound over the eye was either by a pistol ball or the cock of a hammer. Don’t recollect any case which_ did not produce coma or convulsions. The wound on the eye would not produce unconsciousness, perhaps, as it would from other points on the head, though it would produce death. He thought the ball extracted struck a button or something, but other balls went into the anus.</p> <p>Er. Robert Haines testified that he was a practicing physician, the wound in the bowels or the one in the back either, would produce death. He examined the wounds carefully but did not probe them, wounds on the head are very irregular in their effects.</p> <p>James Murray testified that he was at deceased’s house at the time of the difficulty; the first he knew of it was the firing of a shot-gun in the direction of Ben’s and Edmund’s house, the next gun ho heard was a shot-gun, and immediately after this six or eight pistol-shots were fired in rapid succession. Went in a few seconds to where deceased was lying, and found his little son trying to help deceased up.</p> <p>Hone of prisoners were to be seen. (Witness described the wounds substantially as the other witnesses.) Took deceased into the house and went for Hr. Green. When the doctor came, deceased thought he would die and would not believe otherwise, and said Ben and Edmund shot him, and that Ben shot him first, twice, before deceased fired, and that Scott and Edmund shot him from the rear, and that Edmund beat him.</p> <p>Laura Horne, freedwoman, testified: she saw Edmund shoot at deceased twice; Richard Horne and George Jackson, Jr., were before Richard’s house on the steps, at the time of the shooting, with their guns in their hands, about fifteen or twenty yards from the shooting.</p> <p>Oross-examined: She said no one had been talking to her, except counsel for the State in the court-house.</p> <p>She saw Judge Horne (deceased) come to witness’ house, he asked for an axe, a woman gave him one. He told Lucy to get out of the house, as he was going to burn it. He split a turn of lightwood, threw down a turn before'witness’ house door, came in, put a torch into the fire and then went out. She saw deceased shoot; * heard deceased curse somebody, heard deceased say that night “ Lay down your gun, G — d d-n you, lay down your gun, your life’s right in my hands, lies-right in the muzzle of my pistol; but a few more words do I speak unto you before I blow your d-n brains out.” (The gun was not laid down.) He put his pistol in Ben’s breast. It was Ben, my husband. * Edmund and Ben staid in the same house.</p> <p>Thomas Hoene, brother of deceased, testified that when deceased believed he was dying, but while he was perfectly rational, he said Ben, Edmund and Scott shot him, that Ben shot him twice first, and after that Edmund and Scott shot him and beat him.</p> <p>Captain J. W. Eobinson also testified to declarations of deceased; deceased said -(here occurs an unexplained blank in the brief,) found two guns, a musket and guns and pistols belonging to the murderers. "Witness examined the guns found, one was heavily charged, one ordinarily charged, and all with bright, new, fresh caps except one, i. e. the musket out of which he could not extract the ball.</p> <p>Cross-examined: Found the parties — three of them in jail. They came to see witness about one o’clock P. M., on the day after the night of the shooting.</p> <p>Here the State closed.</p> <p>The defendants’ evidence was as follows :</p> <p>Maechs Fuegtjson, freed man, was in Louisa’s door, twelve steps from Ben’s house, on the night of the killing : saw deceased cut an armfull of lightwood and say he was going to burn the houses, and he went to Ben’s house. Ben was lying on the bed sick. Deceased went to the fire-place. Ben picked up his gun and and walked out, and deceased followed him, saying to Ben after walking up to him, “ G — d d-n you, what are you doing with that gun ? Put it down, or I’ll blow your d-n brains out. Your life is in the muzzle of my pistol.” He made these same remarks ten or twelve' times. Deceased had a pistol in his hands and shot first; he shook the pistol in Ben’s breast three times before he shot after deceased shot; Ben returned the fire, threw down the gun and ran. Witness heard several shots immediately after that, but don’t know who fired them.</p> <p>Cross-examined: Was living on deceased’s place at the time; was sworn before at the inquest, but did'not then swear ignorance of the difficulty. Eichard and George were standing at Hagar’s house with their guns; did not see Scott or Edmund ; did not see deceased’s little son over him ; shot so much round witness that he ran; was facing the gun Ben shot; Ben shot once; after the shots were fired between Ben and deceased, he saw Cullen Horne run from the house towards Ben ; heard only two shots fired; went to Hannah’s house that night.</p> <p>Deceased and Ben were about twenty steps from Hannah’s house when the shooting commenced; was in ten steps of deceased when he was shot before Louisa’s door. Did not see prisoners with their guns the evening before the shooting ; he was in the yard till night. Prisoners had their guns that evening; did not see them load their guns. Witness did not say in presence of Dr. Haines and Darden and others, on the inquest, that he knew nothing about the case.</p> <p>Winny Wilson, freedwoman, was present in the house next to Ben’s house, and about-steps off. Heard deceased say “ How dare you come out of my house with your weapon, when I come in my house to burn it down ? Lay your weapon down, G — d d-n you, or I will blow your brains out. Tour life is in the muzzle of my pistol.” Heard the gun and pistol — the gun first; heard the other shooting, but don’t know who it was; did not go out of the house; only judged by the sound and voice; did not see the parties; am familiar with Ben’s and deceased’s voices.</p> <p>Cross-examined: Came to the door; could see their heads but could not distinguish the parties. Deceased said to Ben, “ How dare you come out of my house when I come in to burn it down ?” Did not see George or Eichard that night; saw nothing at all; was not sworn at the inquest, and did not tell Darden or any one else that she knew nothing about the case. Prisoners came to the house about an hour by sun, and staid in the yard. Did not hear anybody but deceased, nor hear his little son beg them to get off deceased, nor heard Cullen come out; heard nothing only what deceased said and the guns shooting, heard no gun shoot that evening.</p> <p>In rebuttal, the State proved substantially by Dr. Haines, A. R. Buford and C. S. Darley, that they heard Marcus at the inquest say, that when the difficulty began he ran off' and knew nothing about the difficulty, and by J. J. Murray, a son-in-law of deceased, that he saw Marcus load a gun on the evening of the shooting.</p> <p>Ti-ios. L. Murray testified; before deceased died, witness heard Richard say they all quit the field in the evening before the shooting, that they had their guns, that he (Richard) tried to shoot off his gun, but couldn’t, his gun wouldn’t fire at the shooting, and that he ran off and hid it in a brush-heap.</p> <p>George Horne testified; he was twelve years old; after the guns commenced firing he went out to his father; when he got to him, he saw Edmund on deceased, beating him. Witness told him to get off, which he did, and ran off over the potato patch.</p> <p>8th. The Court, on being asked by the prosecuting attorneys to charge that in case of conviction the jury could recommend defendants to mercy, stated that he doubted the right of the jury to do so, but as the request was also made by defendants, he would give it in charge as the law; after the jury had retired, the Court examined the statute and called the jury back and charged them that it was their undoubted right to recommend the defendants to mercy if they thought proper so to do.</p> <p>9th. When the verdict of the jury was brought into Court and handed to the Solicitor General, he objected to receiving it because it was not - in conformity with the pleadings. (What it was does not appear.) The Court asked to see the verdict, and after looking at it, ordered the Solicitor General to read it, which was done, and the solicitor then handed the verdict to the clerk to be recorded, when defendants’ attorneys asked to see the verdict, and before it was recorded it was handed to them. The Solicitor General asked them if they wished to poll the jury, they answered “yes.”</p> <p>Upon polling the jury, the first nine answered that it was their verdict; the tenth man, A. A. Adams, stated that that was his verdict in the jury room, but if it did not conform to the pleadings, he wished that the jury be recharged and returned to their room, because the jury did not wish that the county should be ¡out to additional expense from any informality in the verdict or want of conformity to the pleadings. While this juror was making this explanation, and before any decision by the Court, the defendants withdrew their demand to poll the jury.</p> <p>The verdict was then returned to the jury and the Court charged them as follows :</p> <p>“ Gentlemen, I charge you that if several persons agree and conspire together with a common intent to commit a crime, and in prosecution of this common intent the act is done by only some of them, and all are present, consenting and agreeing thereto, though not actually taking a part therein, then all such as are present and concurring, are guilty alike with those who do the acts. Apply this principle to this case, and such of the defendants as the evidence satisfies your minds, beyond a reasonable doubt, were thus engaged, you ought to find guilty generally, or as principals in the first degree.”</p> <p>The jury retired and returned the verdict in the following form :</p> <p>“We, the jury, find Ben Horne, Scott Horne, Edmund Horne, Richard Horne and George Jackson, Jr., guilty of murder, and recommend George Jackson to the mercy of the Court. Asbuey A. Adams, Foreman.</p> <p>The defendants moved to arrest the judgment: “Because the bill of indictment fails to state that the grand jurors charged and accused the defendants “in the name and in the behalf of the people of Georgia,” and failed to show any authority of said jury to charge and accuse the prisoners of any crime.” The indictment was as follows :</p> <p>“ State oe Geoegia, County oe Sumtee : The grand jurors, sworn, chosen and selected for the county of Sumter, to-wit:” (giving their names, etc.,) “on their oaths do charge and accuse Ben Horne,” etc.</p> <p>This motion was overruled.</p> <p>Defendants made a motion for a new trial on the grounds hereinbefore stated and numbered, and on the further ground that the ■ verdict was strongly against the law and the evidence.</p> <p>The Court overruled the motion for a new trial as to all of the other defendants except George Jackson, Jr. To him a new trial was granted.</p> <p>Ben Horne, Edmund Horne and Scott Horne, were sentenced to be hung on the 22d November, 1867, and Richard Horne was sentenced to the penitentiary for life.</p> <p>Those sentenced to be hung excepted to the several judgments, rulings and orders of the Court, and assign them as error.</p>

<p>Trover. Motion for new trial. Decided by Augustus Reese. Richmond Superior Court. January Adjourned Term, 1867.</p> <p>This was an action of trover, by Scott against said company, for the conversion of certain property described as “ sixty bales of cotton yarns, twenty-one bales of hickory stripes, and five bales of woolen yarns ” of the property of said petitioner, and of the value of twenty thousand dollars. The parties were at issue, on the appeal, upon a plea of not guilty.</p> <p>The evidence was as follows:</p> <p>L. O. Bridewell (by commission) testified, through his agents, he shipped very large quantities of such goods as hickory stripes, woolen jeans and cotton yarns over said railroad, the value of each being many thousands of dollars; can’t state quantity or value. The goods were marked to L. O. Bridewell and consigned to him. The agents of the different railroads took possession of them on their arrival in Augusta, Georgia.</p> <p>Certain quantities of those goods were, on the 25th of April, 1865, in possession of said road at that place. He authorized plaintiff to take possession of the goods mentioned in direct interrogatory. (The interrogatory is not set forth.) The order was addressed to Col. George Younge, the Superintendent of said road. He had received from the plaintiff a consideration for said goods. The consideration was Osnaburgs for making grain-sacks, lamp-black and tanning-oil, for use in the Government shoe-factory. He thought plaintiff still had the order; he could not give a copy of it, but it was a simple order to the agent to deliver the goods to plaintiff.</p> <p>The truth of the transaction was, he hacl gotten from plaintiff goods of different kinds and of considerable value, which he could not get elsewhere, and used these goods in different ways for the Confederate Government, and to satisfy plaintiff and repay him, an order on the railroad agent was given to him for a lot of goods which arrived at Augusta for Bride-well during the latter part of April, 1865. Plaintiff took the order in satisfaction of his demand against Bridewell as agent for said government.</p> <p>Cross-examined, he said: He shipped the goods as Major Jj. O. Bridewell, a Quartermaster of the Confederate Government, stationed at Augusta, Georgia. He was a Quartermaster. When he spoke of the goods being in possession of the railroad agents on the 25th April, 1865, he spoke from knowledge of the fact.</p> <p>He believed the order was signed by him officially, as he signed all orders with reference to Government goods shipped over said road. Pie had in his said official capacity frequent dealings of this sort with the officers of said company, and was known to them as an officer of said department, and was in that official character stationed at Augusta, Georgia. He did not remember to have ever shipped any goods of his own over said road.</p> <p>These goods were the property of the Confederate States or they had been ; he sold and transferred them to plaintiff, and had full power and authority to do so. He thought the order was given about 20th April, 1865, but knowing these goods would arrive, he had assured plaintiff that he should be paid out of them on arrival, some weeks before. Their arrival was much delayed, and this was impressed upon him by plaintiff’s frequent applications for payment. Pie had applied for and obtained from the Quartermaster-General an order to exchange and sell such goods as were on hand, for such as were needed about the works which he controlled. That order was left among his official papers in Augusta, Georgia, if not lost. This order was not given in view of a surrender of the Confederate States, but was a bona fide transaction. He had no interest in the suit.</p> <p>The order, as follows:</p> <p>“ C. S. Clothing Store Depot, Q. M. Office, Augusta, Ga., April 23, 1865.</p> <p>Col. Yotjnge,</p> <p> Sup’t of Georgia Railroad : </p> <p>You will please deliver to H. M. Scott thirty-five bales of yarns, etc., shipped to me from Madison, Ga., now in your depot. Respectfully, L. O. Bridewell,</p> <p> Maj. and Q. M. in charge.” </p> <p>Endorsed :</p> <p>“ Q. M. Office,</p> <p>Augusta, Ga., April 29, 1865.</p> <p>Colonel Younge, Agent Georgia Railroad, will deliver to PI. M. Scott what yarns and cloth are in your depot shipped to me.</p> <p>L. O. Bridewell, Major and Q. M.”</p> <p>¥m. Walker testified : Pie was employed by said railroad in April, 1865; saw some yarns and hickory stripes which had been consigned to Maj. Bridewell at ihe depot, on 29th of said month, but on Saturday one of the car loads was taken away by the Government, the other was taken to Bellair for safety. Discharged soldiers were passing through Augusta then and committing depredations, and it was thought best to have these goods out of the way. This car was brought back after a few days, not over a week. Major Bridewell was the Quartermaster representing the Confederate States in that department at Augusta, and these goods were consigned to him. He did not remember the number of bales in the car, nor the amount of yarns or cloth. The freight on these goods was not paid. The Confederate Government had owed the railroad a large amount for freight for many months. He knew the fact that the freight on these goods was not paid, because it was the custom not to collect freight till the car is unloaded and the contents checked and ready for delivery, and this car had not been unloaded. He had for many years been employed by the company, and had an intimate knowledge of their business.</p> <p>He was present when the railroad was pillaged by a mob, in May, 1865 ; this car had not returned from Bellair then. He only knew the contents of the car by seeing them a week or ten days after they came back to Augusta; it had then yarns and stripes, about half and half.</p> <p>Heyry M. Scott, the plaintiff, testified: He delivered to Maj. Bridewell, for the use of the Confederate Government, goods to a considerable amount, for which that Government was indebted to him ; Bridewell was to pay him by giving him yarns and stripes. He had furnished Bridewell with tanners’ oil, osnaburgs, etc. The negotiations between him and Bridewell, about settling by exchange, commenced as early as February, 1865. On the 23d of April, 1865, Bridewell gave him the order aforesaid, in pursuance of their contract; it was given in good faith and had no reference to the surrender of the armies.</p> <p>On Saturday, 29th April, 1865, the endorsement was made on the back of the order, and on that day he demanded of Mr. Younge, the agent of the defendant, the goods in his possession. Younge replied, “ There is (a) trick in this arrangement with Maj. Bridewell. I do not think it is all right.” Scott said, “ It is all right, and you can see Major Bridewell, if you choose, and he will tell you the same thing.” Younge refused to deliver the goods, saying “The authorities of the road have ordered me to hold the goods for freight.” . He said freight, generally, and not freight on these car loads. Scott replied he had plenty of money to pay the freight, that he had $100,000 or more, of Confederate money, and could pay the freight.</p> <p>On Tuesday, May 2d, 1865, he went to the depot and saw the effects of the mob and the evidences of what they had done, saw one bale of goods marked L. O. Bridewell and took it with him, but afterwards sent it back to the witness, Walker, who claimed it as his own. He found one hundred and twenty-one bunches of yarn in the depot (two bales and a third), which were given up to him. He went to the depot several times, for the same purpose, after that, and demanded the goods so often, that Col. Younge got so he would not look at his papers. Younge gave no other answer at any time inconsistent with that given on the 29th of April; his last visit to the depot was between 2d and 15th May; had spoken to Younge in the streets, previous to 29th April, on the subject, but made no demand till that day, when he took with him a shipping list and presented the order. The value of the goods- was fifteen thousand dollars; the goods demanded were forty bales of yarns, twenty-one bales- of stripes and-five bales of woolen jeans. One car would have held the number of pounds they weighed, but not their bulk.</p> <p>Mr. Myers testified: Each bunch, of this yarn was worth $2.50 to $2.75 on 29tb April,. 18:65q stripes were worth 30 cents, jeans 30 to 35 cents, in gold, at retail. The news of the surrender of Confederate States arms to United States army was received in Augusta about the 12th of April, 1865. Upon reflection, he would not fix the day. He remembered, feelingly, the pillaging of the depot by the mob, and knew-the news of the surrender reached Augusta several days before that.</p> <p>It was admitted that the premium on gold in currency was 38 per cent.</p> <p>The foregoing brief was prepared by the attorneys for plaintiff. There was another prepared by Scott’s attorney, and by consent, they both come up, under the Judge’s sanction. They were not materially different.</p> <p>After the argument the Court charged the Jury, that if they should believe, from the evidence, that Bridewell had no right to divest the title of the Confederate Government by sale to the plaintiff, or that said sale was fraudulent and not bona fide, there can be no recovery by the plaintiff. Also, if the jury believed, from the evidence, that Bridewell had a right to sell, and did bona fide transfer said'property to-plaintiff, then plaintiff is entitled to recover, provided the goods were not detained bona fide, and refused to be delivered on account of the non-payment of freight upon them, nor for the purpose of inquiring or ascertaining the character of the plaintiff’s title. Also, that if the jury believed, from the evidence, that the refusal to deliver the goods to plaintiff was based bona fide upon a claim of freight, and that the same was not tendered, and that the refusal to deliver was made for the purpose of bona fide inquiring into the plaintiff’s title, and that the goods were destroyed by a mob or taken by Confederate or United States Government before defendant had a reasonable opportunity and time ■ to satisfy himself upon the subject, then and in that event the company is not liable; otherwise, they are. Also, that in such case, proof of demand, and refusal, was necessary, and that where demand and refusal are resorted to as evidence of conversion, possession by the plaintiff at the time of demand of the property sued for must be proven by the plaintiff. The Court charged, also, that if the refusal of Younge be received by the jury as evidence of the conversion of only so much of the goods as the defendant had in possession at the time of the demand, that the burden of showing how much in value, and what goods were thus in possession of the defendant at the time of the demand, was on the plaintiff, and he could not recover until he had shown this, “also, that if the freight on the goods had not been paid, the defendant had the right to refuse to deliver them.”</p> <p>His Honor, at the time of giving such charge, was requested to give the jury the following instruction, viz r “ Whatever may be the rule of law applicable to other questions, it is incumbent on the plaintiff to identify the- goods contained in the car described by the witness, Walker, as the only goods in possession of the road at the time of the demand on the 29th of April, 1865, as goods sued for and referred to in the petition. They must be so distinctly identified as to enable the defendant to know what goods he must deliver in the event of a recovery against him, and to enablé him to plead this recovery as a bar to any future suit by the same parties for the same cause of action;” which said request to charge was presented in writing, and was refused by the Judge.</p> <p>After the said cause was thus submitted to the Jury, a verdict was. returned for the plaintiff in the sum of forty-two hundred and fifty dollars in gold, with interest from April 23d, 1865, with discount on United States paper currency added at date of payment.</p> <p>The defendant moved for a new trial upon the grounds, that the verdict was contrary to law, to the charge of the Court and the principles of justice and equity, and strongly and decidedly against the weight of the evidence; and because the court refused to charge as requested as aforesaid.</p> <p>By consent, this motion was heard in chambers, before Judge Reese. A new trial was refused, and for review of the ruling on the points taken in the motion, the case was brought up.</p>

Bill for discovery, etc. Motion for new trial. Decided by Judge Hook. Burke Superior Court. May Term, 1866. As all the assignments of error in this case, except one, are virtually that the verdict was wrong under the evidence, and as the other was based on an alleged refusal to charge what the Judge was willing to charge but omitted by oversight, it is unnecessary to know more of the ease than appears by the following opinion.

Action, against common-carrier. Tried before Judge Gibson. Eichmond Superior Court. January Term, 1867. This was an action by Purcell against the Southern Express Company, a corporation, for the loss of thirty-three hales of cotton, alleged to have been delivered to them as a common-carrier, at Augusta, Georgia, to be taken to Wilmington, North Carolina.

<p>“Just compensation” for private property taken for streets.</p> <p>Tried before Judge Flemming. Chatham Superior Court. May Term, 1867.</p> <p>Said municipal authorities were extending East Broad street through Hartridge’s land. The free-holders, appointed pursuant to Sec. 4758 of the New Code, to assess the damages sustained or the benefits or advantages derived by Hartridge, by taking his land, allowed him nothing. He appealed. Upon the trial a witness examined by Hartridge’s attorneys, was asked, on cross-examination: “Would there, or not, be a benefit or advantage, present or prospective, derived by said owner of land, by the opening of said street, and the erection of buildings on it ?”</p> <p>The Court would not allow that question, nor any question seeking to prove the advantage to Hartridge to be derived from the extension, answered. He also charged the jury that such advantage or gain could not be used to decrease or set-off Hartridge’s damages.</p> <p>The jury found $1000 and costs for Hartridge.</p> <p>The corporation complain that the Judge erred in rejecting said evidence, and in so charging the jury.</p>

Complaint. Partnership. Tried before Judge Milner. Whitfield Superior Court. October Term, 1867. This case was before the Supreme Court at March Term, 1862, and a new trial was granted. The only question brought up this time is, whether E. K. Ford and the Dalton City Company were partners.

Ejectment. Motion for new trial. Decided by Judge Irwin. Forsyth Superior Court. August Term, 1867. On the 18th day of September, 1855, plaintiff brought ejectment for the recovery of lot No. 1405, 14th district and 1st section of Forsyth county, against ¥m. Robinson, tenant, upon the several demises of Duke Crenshaw, ¥m. H. Barton, Daniel B. Rich, Robert S. Hooks, Martin M. Stamper and Zachariah Wingo.

<p>The obligation of a contract is a legal not a mere moral obligation ; it is the law which exists at the time the contract is made, which binds a party to perform his undertaking. The obligation does not inhere in the contract itself proprio vigore, but in the law applicable to the contract. The act of 13th December, 1866, commonly known as the stay-law, held to be unconstitutional and void, oh the ground that it impairs the obligation of contracts within the prohibition of the constitution of the United States, and the constitution of the State of Georgia. Warster, C. J.</p> <p>Harris, J., concurs in the above, and decides further :</p> <p>That the 4th section of said act is an interference with the execution of the judicial process of the Courts by the officers of the Courts, and is therefore violative of those clauses of the constitution of Georgia distributing the powers of the government among the three departments thereof, and prohibiting the exercise by the Legislature of any of the powers belonging to the J"udiciary. And further; that the Legislature has no power to alter or modify any judgment of the Superior Courts of this State, or by law to arrest or suspend the enforcement of such judgments. ' Harris, J.</p> <p>A stay-law is constitutional. Walker, J., dissenting.</p>

<p>When a case has been fairly submitted to the Jury upon the evidence, and no error in the charge of the Court is alleged, and the verdict is not manifestly, and decidedly, against the evidence, this Court will not control the 'discretion of the court below, in refusing to grant a new trial.</p>

<p>It is incumbent on the State, in criminal cases, to prove every accusation it makes ; the.testimony must convince the understanding beyond a reasonable doubt.</p>

Case. Tried before Judge Milner. Motion for new trial, decided by Judge Underwood. Floyd Superior Court. July Term, 1867. John T. Alexander and Vm. T. Trammell, Attorneys at Law, made and delivered to O’Barr tbeir receipt for the following note: “$546,98. By the twenty-fifth day of December next, I promise to pay Robert O’Barr or bearer, Five hundred and forty-six dollars ninety eight cents, for work done on hotel, with interest from date. May 17th, 1851.

Equity. ■ Motion for new trial. Decided by Judge Underwood. Floyd Superior Court. July Term, 1867. Mrs. King, by bill in Equity, made the following averments. She married Joshua King in 1849; two daughters, issue of the- marriage, are living, aged respectively sixteen and twelve years; King took into possession $8,000.00 worth of property descending to her from her father and sister.

Equity. Demurrer. Decided by Judge Underwood. Polk Superior Court. July Term, 1867.

Proceeding against tenant. Tried before Judge Underwood. Floyd Superior Court. September (adjourned) Term, 1867. L. W. Dean sold and conveyed to Yonell the land hereinafter mentioned.

Equity. Demurrer. Decided by Judge Milner. Floyd Superior Court. July Term, 1867. The bill of William C. Hendricks, Hiram Hammond, L. D. Wootten, Jesse H. Phelph and Abner Echols made the following case: John Hendricks, of Floyd county, died, leaving an and a will in which William C. Hendricks and John A* Hendricks were nominated as his executors. On the 14th of August, 1856, the will was proven and admitted to record in said county, and both of said executors were qualified.

<p>When the Judge below refuses a new trial because he was satisfied with the legality of the verdict, if not its correctness, this Court should not interfere, because it suspects strongly that the verdict was wrong.</p>

<p>The Superintendent of the Western & Atlantic Rail Road is not subject to garnishment process.</p>

<p>1. An inn-keeper is bound to extraordinary diligence in preserving the property of his guests entrusted to his care, and is liable for the same, if stolen, where the guest has complied with all the reasonable rules of the inn.</p> <p>2. In case of the loss of the goods entrusted to the inn-keeper by his guest, the presumption is want of proper diligence in the landlord.</p> <p>3. In any action to charge an inn-keeper for the loss of a trunk and its contents, the wife of the plaintiff is admissible to prove the contents of the trunk, independent of the act of 1866, where no other evidence is attainable, upon a policy infavorem justicies, springing out of the necessity of the case, and the nature of the subject.</p> <p>4. Baggage is such articles of necessity or personal convenience as are usually carried by passengers for their personal use ; and what are such articles must, in each case, be determined by the jury irom the facts and circumstances which belong to it.</p> <p>S'. Where a hotel keeper sends his porter "to the cars, to receive the baggage of persons traveling, and baggage is delivered to the porter, and the traveler becomes the guest of the hotel, the liability of the innkeeper as such for the baggage begins on the delivery to the porter, and continues until re-delivery to the actual custody of the guest. And if the porter of the inn-keeper take charge of the baggage at the hotel to deliver it at the cars for the guest, the liability of the inn-keeper continues until the baggage be delivered. It devolves on the inn-keeper to show such facts as will discharge him from liability on account of such baggage.</p>

<p>1. A demurrer to a bill in equity cannot be heard and determined in vacation, except by virtue of an order passed in term time.</p> <p>2. The law requiring the officer making a levy on real estate to give the tenant in possession written notice of the levy, is directory to the officer ; and a failure to give such notice does not affect the title acquired by a bona fide purchaser of the property under such levy. If any injury be sustained by reason of such failure to give notice, it is a matter between the party injured and the officer making the levy and failing to give the notice.</p> <p>3. The law presumes that every public officer performs his duty; and all the purchaser, at sheriff’s sale, has to look to, is the title of the defendant in execution, and the authority of the officer to sell.</p>

Bill for relief. Demurrer. Decided by Judge Warner. Fulton Superior Court. April Term, 1867. The case made by the bill was as follows : Plaintiffs in error, W. W. Walker, J. H. Walker and C. T. O’Keefe, composed the firm of Walker, O’Keefe &Co. The partnership was dissolved in 1860.

<p>Though it be impossible for this Court to trace the process by which the jury made their verdict, yet if, under the testimony such verdict could be found, and the trial was full and fair, and without misdirection by the Judge, and the testimony was conflicting, this Court will not overrule the Judge below for refusing a new trial.</p>

Injunction. Demurrer. Decided by Judge Warner. Fulton Superior Court. April Term, 1867. A sketch of this voluminous record is sufficient for an understanding of the case. Strieker & Co., and Lewis & Co., respectively sued out attachments against John F. Tinkham’s property, in Fulton county, Georgia, and had them levied. They were returnable to the Superior Court of that county.

<p>.Equity. Demurrer. Decided by Judge Collier. Fultoa Superior Court. October Term, 1867.</p> <p>In 1864 William Wallace was domiciled in Tennessee, and there died testate. By the will he bequeathed: 1st, To his wife such of the household and kitchen furniture as she might select, and certain lots of land, estimated at $1500.00, also “one thousand dollars out of the Southern money on hand ” and the balance, and all other effects, or money on hand she was authorized to use for her support till an executor could take charge of his estate, and for the support of herself and family; she was to manage the whole estate until relieved by an executor. 2d, To Mary B. Robinson, his grand-daughter, $1000.00, in Knox County bonds $1000.00 in Confederate States seven per cent, bonds, and a set of silver spoons. 3d, To his son, Jesse G. Wallace, a tract of fifteen hundred acres of land, described by metes and bounds, and estimated at as many dollars. 4th, To his son, Wm. C. Wallace, three town lots, valued at fifteen hundred dollars, and charged with the payment of any debts for which testator|Jwas his security. 5th, To Mary B. Bicknell, his daughter, one set of silver spoons, and to her son, a gold watch, etc.</p> <p>The remainder of his estate, real and personal, was to be divided between his wife, said Mrs. Bicknell, and the three' sons of testator, to-wit: Alexander M., Jesse G., and William C., first charging them with certain advances, rated as therein specified. His executor was authorized to sell at public or private sale, in his discretion, without order of Court, etc. His negroes to be disposed of according to the laws existing at the time of distribution.</p> <p>Item 9th, charged Jesse Gfs legacy with payment of any security debt for him for which testator was liable. Item 10th, provided for payment of his debts and funeral expenses Out of any money that may be on hand.</p> <p>The conclusion of the will is as follows: “ Lastly I do nominate and appoint my son, J. G. Wallace, my executor, to execute this will, and I hereby direct that no bonds or security be required of him for the faithful discharge of his duties as such, and that he be allowed five hundred dollars for his services as such; but if, from the vissitudes of the war or from any other cause, my said executor shall find it impracticable to become executor, and attend to the duties thereof in a reasonable time, I appoint and direct my son, "W. C. Wallace, to execute this, my will, under the same regulations as to bond and compensation as above; and should the said W. C. Wallace, from similar or any other cause, find it impracticable to execute this said will, in a reasonable time, in that event I nominate and appoint my wife, Mary S. T. Wallace, in conjunction with W. A. Walker, as executrix and executor of this, my last will and testament, and that they perform the duties thereof under the same rules and regulations as applied to my said sons as it regards executing bond and compensation, ¿nd that the said five hundred dollars be divided between them.”</p> <p>This will was executed 26th March, 1864. In July, 1864, it was duly probated, neither J. G. Wallace nor W. C. Wallace appeared for qualification as executor, the widow declined to qualify, and said W. A. Walker was duly qualified as executor.</p> <p>Letters of executorship were issued to said Walker, and he took possession of the estate. ■ The assets of the estate so far as the executor knows were certain notes on various persons for various amounts, set out in an exhibit, eight Knox eounty bonds, Knoxville & Chattanooga Railroad Company for $500.00 each, making $4000.00, four ditto for $100.00 each, and eight bonds Knoxville & Kentucky for $500.00 each, making a gross sum of $10,627.57.</p> <p>The liabilities of the estate, as exhibited, were as follows:</p> <p>J. M. Toole note to Henry Smith and Townsens.................... $4000.00</p> <p>“ “ to Gillespie, judgment...................................... 425.00</p> <p>“ “ to Lackey.................................................... 1150.00</p> <p>J. Gr. Wallace to Brabsen................................................... 325.00</p> <p>“ “ to Porter Academy ...................................... 150.00</p> <p>“ “ to J. G. Kerr, Sr......................................... 460.00</p> <p>W. C. Wallace to Parson’s, administrator............................ 576.00</p> <p>“ “ to A. M. Keith........................................... 1400.00</p> <p>“ “ to McGehee................................................ 350.00</p> <p>A. M. Wallace to Dr. G. Cameron....................................... 750.00</p> <p>Years support to widow, and individual liabilities.................. 1000.00</p> <p>$10,585.00</p> <p>These liabilities are mainly as security for his said sons and his son-in-law Toole, named in said schedule. All the creditors reside in Tennessee, or elsewhere out of Georgia, and the condition of said sons and son-in-law is such that the executor must pay said liabilities.</p> <p>The widow, as she had a right to do under the laws of Tennessee, dissented from said will, and was thereby entitled to dower and a distributive share, to-wit: one seventh of the personalty not required to pay debts. She had also $600.00 assigned to her for her year’s support. Her dissent made, by said laws, the will void as to her, but left it of force ' as to all other persons.</p> <p>By the laws of Tennessee real estate cannot be applied to the payment of debts till the personalty is exhausted, and the personalty of said estate is insufficient to discharge its liabilities, without using said Knox County bonds or their proceeds.</p> <p>The heirs at law are said widow, said Jesse G., "William C., and Alexander M., said Mary B. Bioknell, and the heirs of Martha J. Toole, deceased, and of Margaret A. Robinson, deceased, all of whom reside in Tennessee, except said Alexder M. Wallace. Before he died, testator left with John W. Duncan, in Atlanta, Georgia, for safe keeping, said Knox County bonds, Duncan then having a vault, and being a banker, and in the habit of receiving such things for aceom-' modation, with no view to compensation or profit. So he received these bonds.</p> <p>At the same time testator left with said Duncan, for safe keeping, some Confederate bonds and some other bonds belonging to the Female Institute at Marysville, Tennessee. These, like the others, Duncan was to keep, as a gratuity, for testator.</p> <p>Duncan so held these bonds till after testator’s death. Then said Alexander M. Wallace, residing in said Atlanta, though well knowing of said last will and testament, and that the testator died testate, in September, 1865, petitioned the Ordinary of Fulton County, Georgia, for temporary letters of administration on said testator’s estate, stating in his petition that said testator died intestate, and procured from the Ordinary of Fulton County permanent letters of administration on said estate, at November Term, 1865, of the Court of Ordinary.</p> <p>John W. Duncan became security on said Alexander M. Wallace’s bond, (which is in the usual form of administrator’s bonds.)</p> <p>Before becoming such security, Duncan had it understood with said Alexander M. Wallace, that Duncan should retain said Knox County bonds as indemnity against loss by reason of his suretiship aforesaid. In this way Duncan and Alexander M. Wallace have'since had a sort of joint ownership of, or claim on said bonds, Wallace claiming them as such administrator and Duncan holding them for indemnity. Meanwhile Duncan and Alexander M. Wallace severed from said bonds coupons for the payment of interest, to the amount or value, of $1,000.00, and converted or attempted to convert the. same to their own use; they still have said coupons or their proceeds. Besides those coupons, said bonds when they came to the hands of Duncan and said Alexander M. Wallace, had other coupons for interest attached to them. Those coupons then matured and those maturing up to the first of January, 1867, amounted to about $2,000.00, and these said Duncan and Alexander M. Wallace have converted to their own use, and no account of them has been rendered to the ordinary of Fulton County.</p> <p>In October, 1866, and again in February, 1867, said executor demanded said bonds and coupons from Duncan and Alexder M. Wallace, and though they knew said testator died testate, that his will had been proven, and that said executor had letters of executorship, yet they refused to deliver any of them to him, and proceeded to deliver the same to the heirs at law of said testator, as if he had died intestate, to-wit: in March, 1867, giving to each of, said heirs (including Alexder M. Wallace) $1,000.00, making in all $7000.00. This proceeding was undertaken and hurried through to prevent-said executor from getting said bonds, and applying them to the payment of said debts, and from administering them according to said will and the laws of Tennessee.</p> <p>On the 29th of March, 1867, Alexander M. Wallace as such administrator made and filed with the ordinary of Fulton County the following return :</p> <p>“Statement of receipts and disbursements of the estate ofWm. Wallace, deceased, by A. M. Wallace, administrator.</p> <p>RECEIPTS.</p> <p>Eight bonds Knoxville & Kentucky R. R. Co., $500.00 each...............$4000.00</p> <p>Eight bonds Knoxville & Charleston R. R. R. Co., $500.00 each,.............. 4000.00</p> <p>Four bonds Knoxville & Charleston R. R. Co., $100.00 each............... 400.00</p> <p>$8400.00</p> <p>DISBURSEMENTS.</p> <p>Acc’tof Ordinary, Voucher No. 1.........................$ 14.25</p> <p>J. W. Duncan, Voucher No. 2.......................... 150.00</p> <p>L. J. Gartrell, Voucher No. 3......................... 150.00</p> <p>Adm’s. Corn's., $7200 .at 5 per ct.,_ Voucher No. 4 360.00</p> <p>Ordinary dismissal, Voucher No. 5..................... 25.00</p> <p>Stationery and stamps...... 75</p> <p>$700.00</p> <p>A. M. Wallace, two bonds K. & Ky. R. R. Co., - $500.00 each............... 1000.00</p> <p>S. T. Bicknell and Mary A. Bicknell, two bonds K. 6 Ky. R. R. Co., $500.00 each, Voucher No. 6...... 1000.00</p> <p>Jesse G. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 7...................... 1000.00</p> <p>W. C. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 8......................... 1000.00</p> <p>Mary T. Wallace, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 9...................... 1000.00</p> <p>Heirs of Martha J. Toole, two bonds K. & Ky. R. R. Co., 500.00 each, Voucher No. 10............ 1000.00</p> <p>Margaret A. Robinson, two bonds K. & Ky. R. R., 500.0.0 each, Voucher No. 11........................ 1000.00</p> <p>Proceeds of sale of $1,400 Knoxville & Charleston R. R. bonds................. 700.00</p> <p>$8400,00</p> <p>ALEX. M. WALLACE,</p> <p>Administrator of William Wallace, deceased.</p> <p>Sworn to and subscribed before me, this March 29th, 1867,</p> <p>Daniel Pittman, Ordinary.”</p> <p>Walker, executor, filed his bill in equity, in Fulton Superior Court against said Alexander M. Wallace, and John W. Duncan, averring the foregoing as facts.</p> <p>That bill charged that said return was incorrect in every particular, except in so far as it chai’ges Alexander M. Wallace with the bonds: incorrect, because it does not charge him with the coupons or the interest; because he had no right so to distribute the bonds and take credit thereby; because he had no right to charge said commissions and expenses of administration, he not being the administrator rightfully; because the estate owed Duncan nothing, and because the last item in the return is obscure and unintelligible, or if intelligible should be a debit against him, rather than a credit in his favor. The bill further states that it is not known whether any of the bonds have been sold, and avers that if they have been, they should be accounted for at par; because said administration, taken out as aforesaid, is irregular and illegal, and nothing done under it binds the estate (except it be for the advantage of the estate, and be approved by the executor;) because they were sold without an order of Court, and not at public outcry, after advertisement according to law. Complainant avers that said bonds are worth $12,000.00, or other large sum; one thousand dollars, of which under the will, belong and should by the executor be paid to Mary A. Robinson.</p> <p>Discovery was waived. The prayer was that the said administration be sot aside; that said defendants be decreed to deliver to said executor said bonds and said coupons, that they may be taken to Tennessee to be administered according to the laws of that State, and according to said will; and that said defendants account and pay to said executor the full value of said bonds and coupons; for said purpose; and if necessary, said Wallace’s letters of administrator be set aside as fraudulent. It concluded with a prayer for general relief and for subpoena.</p> <p>To this bill said defendants demurred on the grounds:</p> <p>1st. For that said W. A. Walker, by his own showing, is not the executor of the said W. Wallace, deceased, never having been appointed such by the last will and testament of said deceased, nor legally appointed or qualified as such by any competent authority.</p> <p>2d. For that, if complainant is such executor by said will, and by appointment and qualification in the State of Tennessee, as is claimed in said bill, yet he has no legal right to institute and maintain this suit.</p> <p>3. For that there is no such authenticated exemplification of the will and the probate in Tennessee and appointment and qualification of complainant, as is required by law.</p> <p>4. For that the bill on its face shows that the defendant has completed his administration, at least, that he has accounted and paid over all assets, under the direction of proper authority, and this, they are advised, is a conclusive settlement thereof, as to complainant.</p> <p>5. For that said bill does not harmonize with the public policy which, sub modo and by comity only, allows foreign executors to sue in our courts, but is offensive in its charges against our courts.</p> <p>6. For that said bill seeks, at the instance of a foreign executor, to take assets out of our jurisdiction, with both creditor and legatees or distributees our own citizens here, where the funds are secured; indeed, after distribution and at the instance of a party under no bonds, subjecting them to additional costs, and whether there is a will or not, identically the same individuals are entitled to the funds.</p> <p>7. For that no foreign creditor has any right in our courts through the comity extended to foreign executors, etc., etc. These creditors rights are direct and absolute. Such bill being predicated solely on such basis, has no equity.</p> <p>8. For that our courts will not notice, nor in any way inquire of, debts or assets in Tennessee, or the management of estates of decedents there, or their creditors there, and thus predicate rights and suits, or either, here.</p> <p>9. For that many and various other reasons apparent on the face of the bill, deny to complainant the relief claimed, or any other relief.</p> <p>The court below overruled said demurrer, and that is complained of here.</p>

Trespass. Tried before Judge Collier. Fulton Superior Court. October Term, 1867.

<p>Caveat to will. Decided by Judge ¥m. M. Reese. Taliaferro Superior Court. August Term, 1867.</p> <p>On the 2d of March, 1867, Nancy Reynolds, of said County, widow, executed a will substantially as follows:</p> <p>1st. To her nephew, Jabez M. Lacy, in trust for the sole and separate use of his little son, Charles P. Lacy, until his majority, her plantation in said county, (describing its location) all the mules, horses, cattle, hogs, plantation tools of every kind, provisions, provender, and all other property on said plantation at her death, the growing crop of that year, one bedstead and bedding, to be delivered to him at his majority, less such as may, before that time, have been expended for his support and education, and also her gold watch and chain, to be delivered to him when of proper age to use them. Should Charles P. Lacy die before his majority this property will pass to his father aforesaid, and his grandmother, Nancy Lacy.</p> <p>2d. To her niece, Mary Frances Jourdan, a particular bedstead and bedding.</p> <p>3d. To her sister, Mrs. Emily Jourdan, her wearing apparel and gold spectacles of her husband.</p> <p>4th. To her sister, Mrs. Pheriba Pearce, her gold spectacles and mourning breast-pin.</p> <p>5th. To her friend, Mary Kent, wife of Dr. John Kent, her buggy, harness, buggy-umbrella and cushions.</p> <p>6th. She wished her brother-in-law, S. L. Jourdan, to remain at her house until the then coming Christmas, and to allow the hired freedtnen also to stay there, and gather the crop according to contract.</p> <p>Item 7th, was in these words: “After the payment of all my just debts and such just claims as may come against the estate of my said husband, and the expenses in settling up my estate, and for putting tombstones over the graves of myself and my said husband; I will and bequeath all the balance of my property, consisting of my house and lot, whereon I now live, about $600.00 in gold coin, and about $40.00 in silver coin, which I now have on hand, my two mules and three wagons now on my lot, all my notes, accounts, and other evidences of debts, all my household and kitchen furniture not herein otherwise disposed of, and every other kind and species of property not herein otherwise disposed of belonging to or coming to me from the estate of my said husband, to my trusty friend, . Eev. L. E. L. Jennings, in trust to turn over and deliver to the Baptist Convention of the State of Georgia, to be by said Convention used and expended in promoting and forwarding such benevolent objects and purposes, as in their judgment, it will do the most good.”</p> <p>By item 8th, George E. Bristow, said Jennings and said Dr. Kent, were nominated as her executors, with power to sell or dispose of any of the property covered by said 7th item, as they may think best either at private or public sale.</p> <p>It was duly executed. It was propounded for proof, in solemn form, by said Bristow and' Kent, and caveated by said Eeynolds upon the grounds: 1st, That it was made when she was in extremis and laboring under a mental aberration as to her heirs at law. 2d, That by opiates, etc., her testamentary capacity was taken away. 3d, 4th and 6th, That the will was procured by fraudulent practices, etc.; and, 5th, “ Because the seventh item in said paper propounded as to the last will and testament of said Nancy Eeynolds, deceased, as aforesaid, is illegal, and therefore void, because the said paper purporting to be the will of the said deceased was not executed ninety days previous to the death of said Nancy Eeynolds, in conformity to the requirements and provisions of the Code of the State of Georgia in such cases made and provided.”</p> <p>The ordinary admitted the will to record, and his judgment was appealed from. The witnesses to the ’will were Benj. B. Eeid, J. I. C., John W. Darricott, Z. W. Farmer and Elizabeth Moore, all of whom were examined on the appeal trial.</p> <p>Darricott testified that he went with Farmer, on the invitation of Dr. Kent, to witness said will; that about midnight they and Judge Eeid were invited into the room where testatrix was sick; Dr. Kent and his wife and Judge Bristow were then in the.room; when they entered testatrix said that was her will, and that she wished us to witness it; she said it had been read over to her; she then signed (with her mark) the will in the presence of the witnesses, and they witnessed it in presence of her and of each other; she seemed to be in her right mind, and to have executed the will freely and voluntarily; the will was executed about midnight on Saturday, and she died next day. Many witnesses (pro and con.) were examined as to the condition, physical and mental, of testatrix at the time she made the will, and to show that before that time she had said she intended to dispose of her property differently, etc., but their testimony is not material, as the case turned purely on a question of law.</p> <p>The paper was then read in evidence.</p> <p>The Court charged the jury, among other things, that no part of said will was obnoxious to or violated the provisions of section 2388 of the Code of Georgia, it being admitted that the testatrix was a widow, and left no child or descendant of child. Therefore, although she died within less than ninety days of the execution of her will, those clauses which contained devises to charitable uses were not void.</p> <p>The jury found that said paper was said testator’s will.</p> <p>The case was argued in the Supreme Court alone upon the ground that said charge of the Court is erroneous.</p>

Ejectment. Motion for new trial. Decided by Judge William M. Reese. Oglethorpe Superior Court. April Term, 1867. The declaration contained one demise in the name of John U. Stephens individually, and one in his name as administrator of Thomas Stephens, deceased.

<p>Complaint. Scaling ordinance. New trial granted by Judge William M. Eeese. Elbert Superior Court. September Term, 1866.</p> <p>This was complaint on the. following promissory note:</p> <p>One day after date we, or either of us, promise to pay Sarah A. Hill, guardian of her infant children, or hearer, Three Thousand Dollars for value received. Witness our hands and seals, this 28th day of Novem" her, 1863. MARIAH HALL.</p> <p>Mary A. Hall, Security.</p> <p>Endorsed, ¥l. T. Vanduzer.</p> <p>The effort was to scale it under the ordinance of 1865.</p> <p>After the note had been read in evidence, the defendants showed by the Deputy Sheriff, that on the 7th of April, 1863, he collected for plaintiff $3,684.90 on a ft. fa., in her favor, and in the latter part of November, 1863, he paid over to Vanduzer, defendant, for said plaintiff over $3,000.00 of said money upon plaintiff’s receipt for it. These payments were in Confederate money, which was then the only currency.</p> <p>The defendants also read in evidence the fi. fa., which was against one Wall for $2751.21 principal, $797.12 interest, and $7.25 costs, founded upon a judgment in favor of plaintiff against Wall obtained in the January Term, 1863 of the Inferior Court of said County. By it, it appeared that Wall had paid the said witness $3,684.90 in full of'said fi.fa., on the 7th of April, 1863, that he paid $3,513.19 to plaintiff on the 30th of November, 1863, and to Vanduzer as plaintiff’s attorney $171.71 on the 5th of December, 1863.</p> <p>By several witnesses it was shown that Confederate money was at those dates the only currency, and that in giving notes for borrowed currency it was usual to promise so many “ dollars.” All this evidence was admitted over plaintiff’s objections to its competency.</p> <p>It was not shown what was the consideration for said note. The defendants offered to show the value of Confederate currency at those dates, etc., but the Court refused to allow it shown. Upon these facts the plaintiff obtained a judgment for the full amount of the note, the Court having charged the jury that said facts constituted no defense without proof of the consideration of the note.</p> <p>The defendants moved for a new trial, on the grounds that the verdict was contrary to the evidence, etc., that the Court erred in rejecting said testimony, and in charging as aforesaid, and because since the trial they had discovered that they could show by themselves that the consideration of the. note was Confederate currency. This last ground was inserted at March Term, 1867, because, after the trial, by act of the legislature the parties were made competent witnesses for themselves.</p> <p>Vanduzer had filed no plea in the cause, nor participated in the defense, but had “ answered ” to the cause. Because he had not plead plaintiff’s attorneys objected to his being a party to said motion for new trial.</p> <p>The Court overruled this objection and granted a new trial to all three defendants, and this is assigned as error.</p>

<p>Where a feme sole, of full age and competent to contract, agreed with her intended husband in writing for the control of her property for her sole and separate use during the coverture ; and further, that should she survive him, his estate should be chargeable with furnishing her a house and lot worth $3000.00 for and duringherlife or widowhood, and she released all other claim upon his property, and all right to dower in any of the lands of which he might die seized and possessed, and afterwards married him, and he died, she is not dowable out of his lands.</p>

Equity. Tried before Judge William M. Reese. Elbert Superior Court. September Term, 1867. A skeleton report of the one hundred and seven pages of this record will furnish all the data necessary for an understanding of the opinion of the Court. Ira Christian and Moses E. Mills were partners in merchandise under the style of Ira Christian & Co. On the 30th of March, 1850, Christian sold to McMillan, one-half of his undivided half interest in the stock and assets of the firm.

Assumpsit. New trial. Granted by Judge Hutchins. Gwinnett Superior Court. July Adjourned Term, 1867. Evan Howell brought complaint against the Lawrence-ville Manufacturing Company, Jesse Lowe, James Garmany, and Merritt Camp, .upon a promissory note in these words: “$3,701.98. Lawrenceville, May 9th, 1856. Thirty days after date the Lawrenceville Manufacturing Company will pay to Evan Howell, or bearer, Three Thousand Seven Hundred and One 98-100 Dollars valuejreceived.

Exception to auditor’s report. Decided by Jas. S. Walker, Esq., Judge pro hae vice. Talbot Superior Court. September Term, 1867.

Complaint. Scaling Ordinance. Tried before Judge Worrill. Schley Superior Court. April Term, 1867. Sellars sued Crim upon the following paper : “ $2,931.00. — One day after daté I promise to pay S. A. Sellars or bearer, Twenty-nine Hundred and Thirty-one dollars, for value received, to be paid in currency that is at par. April 10th, 1863. J. T. CRIM.” The defendant sought to have the note scaled, under the Ordinance. Plaintiff closed after reading the note in evidence.

■Caveat to proof of codicil. Yew trial granted. By Judge Worrill. From Marion eounty.

Traverse of attachment affidavit. Motion for new trial. Decided by Judge Wobrill. Muscogee Superior Court. May Term, 1867. Louis Stix & Co., sued out attachment against various persons, partners under the firm name of S. Pump & Co., of Muscogee county, upon the grounds that “ said defendants are about to remove beyond the limits of said county.” Upon this issue was joined.

Trover. Motion for new trial. Decided by Judge Worrill. Muscogee Superior Court. May Term, 1867. This was trover and bail by Thompson, against Barnett & Co., for seventeen bales of ginned and packed cotton, averred to have been worth $5,000.00, and converted by the defendants, on or about the tenth day of October, 1865. It was brought in the Inferior Court, and by consent carried to the appeal, in the Superior Court.

<p>1. Nettles, in 1841, in Alabama, by deed of gift, conveyed to his daughter, Mrs. Harrington, certain slaves, “to have said negroes and their increase, unto her and her children, free from the control of her husband, and from all liability to the payment of any of the debts of her said husbandHeld, that Mrs. Harrington, at common-law, took only a life-estate in said slaves, remainder to her children.</p> <p>2. "Where all the evidence was fully considered and passed upon by the jury, and the Judge below refused to grant a new trial upon any ground connected with it, but granted a new trial solely upon an erroneous construction of a deed of gift, the granting of the new trial will be reversed.</p>

<p>A bill filed against a defendant to require him to execute a title to land upon the ground of fraudulent procurement of the title thereto, in his own name, is not such a suit respecting titles to land, as will give jurisdiction to the Court in the county where the land lies, where the defendant resides in a different county. In such a case the defendant must be sued in the county where he resides.</p>

Equity. Appointment of auditor, etc. By Judge Woreill. Muscogee Superior Court. November Term, 1866.

Equity. Motiou for new trial. Tried before Judge Worrill. Harris Superior Court. October Term, 1859. This case was returned to Macon .Term, 1860, but by the death of Hines was continued, till at this term his executor, was made a party.

Equity. Motion to dissolve injunction. Decided by Judge Vason. Sumter Superior Court. October Term, 1867. James 1ST. Taylor sold to James E. Tooke and William J. Tooke certain lands, and took from them their note for $7,445.42, as part of the purchase money. About the same time he bought from Harp several tracts of land, and gave Harp in payment some cash and his note for $5,780.30.

<p>Complaint. Charge of the Court. Tried before Judge Cole. Dooly Superior Court. October Term, 1867.</p> <p>John D. Wilkes, as guardian of the minors and orphans of Jefferson R. Westburry, sued Hughes, upon an open account for $301.00 for hire of a negro (Ben) from 28th December, 1864, to 25th December, 1865.</p> <p>The plea was, that it was intended that said hire should be paid in Confederate currency, and that the slave was manumitted on the 20th April, 1865.</p> <p>Plaintiff testified, in his own behalf, that defendant hired Ben on the 28th December, 1864, until the 25th December, 1865, at public outcry, at $301.00, to be paid in Confederate money — that the hire of the negro was worth eleven dollars per month in present currency.</p> <p>Upon the cross-examination, he was asked, when Ben ceased, by reason of his manumission, to serve defendant as a slave. This was objected to, upon the ground that manumission occurring during the term of hiring, the loss was the hirer’s. The Court overruled the objection.</p> <p>The witness then testified that the negroes ceased to be used as slaves about the first of June, 1865. Here the plaintiff closed.</p> <p>Defendants examined two witnesses, who agreed that the negroes ceased to be used as slaves about the first of June, 1865. One put the monthly hire at $8.00, and the other at $7.00 or $8.00 per month, in United States currency. They were asked the value of the hire in coin. To this, plaintiff objected, and the Court sustained the objection.</p> <p>After the argument, the Court charged the jury they should find for the plaintiff so much, with interest, as it was proven the negro’s services/were worth, while he served as a slave, and further, that this estimate should be made in the legal tender paper currency of the United States.</p> <p>The jury found for the plaintiff for $40.00 and interest.</p> <p>The plaintiff in error assigns as error:</p> <p>1st. The admission of evidence as to when Ben ceased tobe a slave.</p> <p>2d. In holding that plaintiff could recover only up to the time of his manumission.</p> <p>3d. In refusing to allow proof of the value of the hire in coin, and in charging that the estimate of the jury should be made in United States legal tender Treasurer notes.</p>

Injunction. Decided by Judge Vason. Sumter Superior Court. October Term, 1867. See Mordecai vs. Stewart, 36th Ga. R., 126. Upon the note there mentioned, Mordecai had sued Stewart, and was also proceeding to foreclose said mortgage. By this Court a new trial had been granted in the matter of foreclosure arid the remittitur had been entered on the minutes of said Superior Court, and the judgment of this Court was made-the judgment of that Court.

Complaint on note. Trial before Judge Wm. M. Reese. Morgan Superior Court. September adjourned Term, 1866. This case was argued at December Term, 1866, of the Supreme Court. It was held up on account of the death of Judge Lumpkin, and the incompetency of Judge Harris, from relationship to one of the parties, and argued by brief at December Term, 1867. It was based upon the following promissory note: “ $4,733.07 Madison, Ga., August 24, 1857.

Equity. Motion to dissolve injunction. Decided by Judge Vason. Morgan Superior Court. September Term, 1867.

<p>Case. Demurrer. Decided by Judge Worrill. Muscogee Superior Court. May Term, 1867.</p> <p>Oa the 23d of October, 1866, Conner brought case against the Southern Express Company, a corporation doing business and having an office in said county, for breach of its contract, as a common carrier, made in October, 1865. The defendant plead to the jurisdiction, Upon the ground that its chief officer did not reside in said county but in the county of Richmond in said State and averred that it had, in accordance with the statute in such case provided, posted in a public and conspicuous place, at each of its offices, the name of its president or chief officer on whom service could be perfected.</p> <p>This plea was demurred to. It was admitted in the argument below and here that the company was incorporated by the Superior Court of Bichmond county, Georgia.</p> <p>The Court overruled the demurrer, holding that the plea barred and defeated plaintiff’s action, and Conner assigns ' that judgment as error.</p>

<p>Assumpsit. Surrender of charter. Tried by Judge AuCDSTUS Reese. Richmond Superior Court. June Term, 1867.</p> <p>Heard, (on the 8th September, 1866,) sued said Bank for $11,677.00, besides interest due on certain of its bills, which he owned, and which the Bank had refused to, pay. The return of the sheriff was, “personally served a copy of the within, upon the defendant, this the 12th day of September, 1866. John D. Smith, Sheriff'R. Co.”</p> <p>At June Term, 1867, this return was amended so as to read thus: “ Personally served a copy of the within upon Thomas S. Metcalf, President of the Mechanics’ Bank, this 12th day of September, 1866.</p> <p>John D. Smith, Sheriff R. Co.”</p> <p>Thereupon, Metcalf tendered a traverse, averring that on said day of service, he was not, and for a long time before that day, had not been President of said Bank, nor held any office therein; that he was elected President of the Bank, on the 2d day of January, 1865, for that calendar year, and not since; that on the 20th day of February, 1866, at a meeting of the stockholders of the Bank, duly summoned in terms of the charter, by an unanimous vote of said Directors, the charter of the Bank was surrendered to the State, and notice of such surrender was, by order of said meeting, forwarded to the Governor of Georgia, and by him received, and ergo the Bank ceased to exist; he ceased to be its President, and ergo the said service was void.</p> <p>And Metcalf’s counsel moved that said traverse be tried by a special jury, as a collateral issue. ■</p> <p>The Court refused so to submit the traverse, stating that he would permit the questions involved in said traverse to be plead along with other pleas, and required the defendant to plead if the Bank had any other pleas.</p> <p>Then Wm. T. Gould, as assignee of the Bank, plead that plaintiff should not have his action, etc., because before this action was commenced, to-wit: on the 20th day of February, 1866, said Bank had ceased to exist as a corporation by the surrender of its charter, as aforesaid, and because, before that, to-wit: on the 20th day of January, 1866, the Bank had assigned to him, for the benefit of all its creditors, all its property, and notice of such assignment was given in the “Constitutionalist,” a public gazette, in Augusta, in said county, and after which surrender no corporate act was done by the Bank, nor any official act performed by any of its officers, and he prayed to go to the country.</p> <p>And Joseph E. Brown, a counsel for divers stockholders of the Bank, to-wit: Metcalf, Sibley, Baker and Bishop, plead the surrender of the charter and vacation of the officers of the Bank as aforesaid, with a conclusion that therefore the service was void.</p> <p>It was admitted that Metcalf was the last President of the Bank, and that under the by-laws of the Bank its officers held their offices until others were elected.</p> <p>Plaintiffs’ counsel demurred to Gould’s plea. The Court sustained the demurrer upon the ground that such surrender, till accepted by the General Assembly, worked no dissolution of the Bank.</p> <p>Brown then withdrew the plea filed by him, as last aforesaid, and offered to file for William H. Hi bier, one of the stockholders of the Bank, a plea averring “ that no judgment of this Court can be rendered, in this case, against him, as a stockholder of said Bank, by virtue of any publication which may have been made, and notice given, under section 3283 of the Code of Georgia, nor can any execution issue against him, or any other person, as a stockholder, by virtue of any judgment rendered under any notice given under the provisions of said section.”</p> <p>The Court refused to allow this plea, ruling that Hibler could not defend for himself, though any stockholder might defend for the Bank.</p> <p>Then Brown, as counsel for Hibler, filed another plea, averring that the charter of the Bank was a contract between -the State and the stockholders and bill-holders of the Bank, by which the State bound itself that the Bank should- exercise its corporate rights without interruption ; in consideration of which promise the Bank undertook to redeem its bills with specie, on demand, and the stockholders, upon that consideration and not otherwise, agreed to be personally liable for such redemption in proportion to their stock; that plaintiff accepted the bills of the Bank with full notice of these facts; that, while the Bank was performing all its duties, the General Assembly called a convention of the people of Georgia, which convention passed an ordinance of secession from the Union, and aided in bringing on a war, which caused a blockade of the ports of Georgia, destroyed commerce, etc., so as to force a suspension of specie payment by the Bank, and that the General Assembly had declared the charters of Banks subject to forfeiture for such suspensions. Further, that during the existence of said law, “ the stay-law” was passed, and was kept in force by re-enactments, and thereby kept the Bank from collecting its assets, which were greatly in excess of its liabilities, and thereby forced the Bank to suspend. Further, during such suspension, the State, by another act, compelled the Bank to receive, on deposit and in payment of its gold debts, Confederate States treasury notes and Georgia treasury notes; that they did receive such currency to the amount of $1,500,000 00 at par, in payment of such debts, when said currency was worth only five cents in the dollar in specie. And further, that plaintiff, at and before the war commenced, owed the Bank $15,000 00 in gold, which he refused to pay (taking advantage of said “stay law”) until the currency had depreciated as aforesaid, and then offered, with it, to pay his said debt; which, under said act, the Bank was compelled to receive in payment, and did receive it, under compulsion, which was only in law a payment of the gold value of the said currency. He further plead “set off in the sum of $13,000 00 on said debt due and unpaid,” and prayed judgment against plaintiff for the difference, etc.</p> <p>• For further plea, he averred that the State, on the 1st day of January, 1863, under penalty of forfeiture of its charter, compelled the Bank to lend the State $500,000 00 in its bills, and to take therefor $500,000 00 of the notes and bonds of the State, and afterwards, by convention, repudiated the notes and bonds. And further, that plaintiff received these, bills sued on from the Bank in July, 1863, and that this is therefore a contract falling within the scaling ordinance of the convention of 1865, and that when plaintiff took the bills they were worth only ten cents in the dollar, and it was inequitable he should recover the face of his notes.</p> <p>Plaintiff’s attorneys moved to strike all of this last plea except that relating to the set-off and scaling the demand. This motion was sustained by the Court.</p> <p>The case then went to the jury. Plaintiff submitted his bills to the jury as evidence and closed.</p> <p>The counsel for Hibler then introduced as witnesses the plaintiff and John A. North, late teller of the Bank.</p> <p>Heard testified that when the war began, he owed the Bank nothing; his firm, Heard & Simpson, did owe a considerable amount, (he did not know how much,) he could not say it was less than $20,000 or $25,000, or that it was so much. The firm kept an account with the Bank, checked on their deposits and discounts and had monthly settlements; they owed the Bank sometimes more and sometimes less, till the latter part of 1863 or first of 1864, when they were notified by the Bank to close their account, and they paid off all they owed in Confederate notes. He, at that time, held none of these notes sued on; he took some of them in payment of debts and bought some of them since the settlement. Said firm was dissolved after the settlement, and he continued business in his own name; and he did not recollect that he owed the Bank anything after the settlement. After Confederate money became current, all payments and discounts .were made in it. He got none of the bills from the Bank, but did not recollect from Avhom he got them. While his firm Avas dealing with the Bank, they had collaterals lodged there, Avhich Avere given up on the settlement.</p> <p>North testified that Heard & Simpson oAved the Bank $30,000 00 Avhen the Avar began, and were endorsers for $25,-000 00 more; they did not settle Avith the Bank till the latter part of 1863; but, Avithout reference to the books of the Bank, he could not say what Heard & Simpson owed the Bank at any particular time, after the Avar began. The account Avas closed and settled in full in the latter part of 1863.</p> <p>The Court charged the jury that no set-off .could be alloAved unless some definite sum Avas shoAvn to be due from plaintiff to defendant; but that in this case there had been monthly settlements, but did not shoAV Iioav much remained' due and that “ there Avas nothing proved in this case that entitles the defendant to either a legal or equitable set-off, and that the plaintiff AAras entitled to a verdict for the amount of the notes sued on, Avith interest from the commencement of the suit.” The jury found for plaintiff accordingly.</p> <p>There Avas no motion for a neAV trial.</p> <p>Gould, as assignee in person, and Hibler, by Brown as his counsel, assigned as error—</p> <p>1st. The refusal to allow Metcalf’s traverse of the return to be tried by a special jury.</p> <p>2d. The holding that the surrender of the charter was invalid till accepted by the General Assembly, and that the officers of the Bank Avere not discharged from their offices byi said assignment and surrender.</p> <p>3d. The ruling out Hibler’s pleas, except as to set-off and the scaling of the demand.</p> <p>4th. The charge to the jury that the evidence showed that there had been monthly settlements, but did not shoAV hoAV much remained due.</p> <p>5th. The charge to the jury that there was nothing proved in this case that entitles the defendant to either a legal or equitable set-off.</p>

Assumpsit. Charge- of the Court. By Judge Snead, City Court of Augusta. May Term, 1867. Both the parties and J. B. Wray, were brokers in Augusta. Barber & Son, through Wray, as their agent, on the 9th December, 1865, bought of McCay five coupons, frombon'ds issued by the City of Montgomery Alabama, of the nominal value of seventy dollars each, for which he paid eighty cents on the dollar.

Demurrer. - Decided by Judge Flemming. Chatham Superior Court. May Term, 1867. On the 25th day of June, A. D., 1866, in the County Court of said county, Henry L. Toomer commenced his statutory action against John F. Tucker and Henry J. Dickerson, on their bond for the penal sum of one hundred and seven thousand, three hundred dollars ($107,300,) which, at the trial term, was transferred by consent of parties to. the appeal docket of the Superior Court.

<p>An agreement for arbitration being made in Tennessee, its validity and construction in the Courts of Georgia, depend on the laws of Tennessee. By the laws of Tennessee an award in parol may be good. -</p> <p>Though the Judge ruled erroneously, upon extrinsic-matters which could not possibly affect the actual and really important points in issue, this ■ Court will not grant a new trial, when the verdict is right.</p>

<p>Ejectment. Motion for new trial. Decided by Judge Warner. Fulton Superior Court. April Term, 1867.</p> <p>This was ejectment for city lot, No. 32, in Atlanta, Georgia, upon the demises of Matthew King, Julius A. Hayden, and Lucinda Cone, as sole heirs-at-law of Eeuben Cone, deceased, James F. Alexander and Jacob H. Kalb, commenced in January, 1852. The plea was the general issue and the statute of limitations.</p> <p>The plaintiff read in evidence a regular chain of title from the State to Kalb, through said parties. It was also shown by the plaintiff, by oral testimony, that Grubb, the husband of the tenant in possession, and one Carmichael, had bought said lot from said Cone on a credit and took his bond for titles to themselves. Grubb died, and then his widow and Carmichael got Cone to take up that bond and give another to Carmichael alone, (to save G-rubb’s part from his creditors;) that after Cone died, Carmichael, with Mrs. Grubb’s consent, transferred the bond to James F. Alexander. He paid to Hayden and Lucinda Cone, (who were the sole heirs and representatives of Cone,) the balance of the purchase money and took a title to the same. Afterwards he sold it to Kalb with the knowledge and approval of Mrs. Grubb. She and Carmichael each gave to Kalb their notes for the rent of the premises, each taking one-half of them, till the end of the year, at the end of which time, Carmichael left, but the Avidow remained and kept possession of the whole premises, and Avas so holding when the suit Avas brought.</p> <p>On the contrary, the widoAV claimed, under a lost bond for titles made by Cone to her husband, and she testified to the existence and loss of the same. She denied the request by herself and Carmichael to change bonds, as aforesaid; denied the consenting to the transfer to Alexander, or the sale to Kalb, and denied the attornment to Kalb, setting up that she had been ever since the death of her husband in possession of said lot as her own, under said bond for title. She further testified that before her husband died, Cone said that there was sufficient Avork in his shop to pay the balance for the land, and that he had agreed to receive payment in Avork.</p> <p>Several other witnesses testified to the existence of the bond last mentioned, and to part payment of the purchase money, by Grubb; but it Avas not shown that all of the purchase money Avas paid. \</p> <p>After argument had, and the charge of the Court, the jury returned a verdict for the plaintiff for said premises.</p> <p>The defendant moved for a neAV trial upon the grounds that the verdict was contrary to the charge of the Court, and to the evidence, and to obtain certain other testimony, and for newly discovered testimony. Accompanying this motion were several affidavits of the following purport:</p> <p>Benjamin Keely, affiant, Avas in Atlanta a few days after Cone sold No. 32 to Jas. M. Grubb, and Cone told affiant that he sold lots for $300 each, in three equal payments, the last to be either twenty-one or tAventy-two months; that he always wished a man to be very prompt, and if they were not, he Avould force payment, becauselie needed money; he said he had sold lots to James M. Grubb and his brother, Thomas J. Grubb, on the same terms, and pointed out to affiant the lot on which defendant now lives as the one sold to Jas. M. Grubb; he always made bonds for titles, and would not make deeds till the last payment was made. Not knowing whether he could pay promptly, affiant did not purchase. Affiant asked Cone then, if he would take pay in carpenter’s work. He said he could not, as he had engaged Thos. M. Grubb to do all his carpenter’s work in payment for his lot, and that he was a poor man and’-he wished to help him as much as he could towards his payment. Affiant then left Cone.</p> <p>David H. Kelly, affiant, said that he moved to Atlanta, where he still resides, about fourteen years ago, heard about the property now in dispute, became acquainted with Mrs. Grubb and Dr. Alexander, Julius A. Hayden, and L. Immell, as agent for Kalb. Affiant went to the lot one day, in 1858, and saw Geo. Ralph building a pen around the house with plank, up and down,ten or twelve feet high, close up to the house, so as to keep any of the family which Mrs. Grubb had put in the house, from getting out or in; he hollowed to Mrs. Grubb “ to take and knock it downthe house was on the west side of the lot. In 1859, affiant moved into the same house, as Mr. Roberson was moving out, and found a Mr. Cain keeping a little grocery in front of the lot, on the street, on the western half of the lot. Affiant paid Mrs. Grubb $10 00, in advance, as rent for the lot, as well as he can recollect, and Cain got after him about paying her rent, and said Mr. Kalb and L. Immell had given him his house rent free, as long as he would live there. Affiant went to see Immell, and he said if affiant would accept them he would give him papers to live in the house which he had rented, free from rent, as long as he would stay there. Affiant told Immell that was not his way of doing, and asked him how they were trying “ to law ” Mrs. Grubb out of her rights. He said if they got half the lot they would be satisfied ; that they had paid their money for it to another party, and were going to “ devil ” her out of it, as she had no money to go on at law. Affiant talked with Mrs. Grubb about it. She said that at the time the land was sold, she knew nothing about it, as she was then down sick, and when she heard of it, she was not. in a condition to attend to it, as she was then in child-bed.</p> <p>They undertook to “devil” affiant out of the house he occupied, by throwing their filth into the yard, and he finally left. Mrs. Grubb is negligent of her business, has too much confidence in men’s honesty; is not calculated to attend to her affairs, and is easily imposed on. (This affidavit is signed with an X.)</p> <p>Samuel L. Atkiusou, affiant, said he was at Cone’s house in September, 1849, to get pay for digging a well in Cone’s horse lot. As he went in James M. Grubb and another person came out. Cone said he had just sold James M. Grubb a lot, (pointing it out,) and given him a bond for titles. Early in summer of 1850, he went to James M. Grubb’s shop (on the lot in dispute) to tell him he could not work for him, as he had gotten a job in the Georgia Railroad Shop. While he was there Cone came to see if work on his wagon and carriage was done, and found it was done. Cone’s servant took the wagon, and Cone started off; Grubb called him back to inquire how they stood, and they had a long conversation together. Cone asked whether he should pay him the money for the work or credit it on the notes, and Grubb preferred the latter. Grubb went out, and soon brought in the bond for titles and some notes, which he had paid. They appeared to have been settled by small payments, credited on the backs of the notes. Affiant asked Grubb to let him read the bond, out of curiosity to see its form. He read it and found it was to Jas. M. Grubb alone by Reuben Cone for the lot on which the shop stood. The bond said if the notes were not punctually paid, it was void. Affiant asked Cone why this was said, and whether, if Grubb failed in the last payment, he wrould lose the Jot and the money already paid. Cone said that was only formal; was intended to make men prompt, but could not bo legally enforced after some of the payments had been made, and that he would not and could not enforce such forfeiture, after such past payment. Affiant does not know how much the work came to, but it appeared to have been work done at various times, and its value was considerable in amount. The bond was signed by Reuben Cone, and had but one witness, (affiant does not remember the witness,) nor does he recollect more about its contents, because of the lapse of time. The facts already stated “are impressed on his mind,” because he then got a job in the Georgia Railroad Shop, and worked there for four or five years. He told these facts to no one till after the said verdict was rendered.</p> <p>Mrs. Grubb, defendant, made affidavit that she did not receive the information in those affidavits till after the verdict.</p> <p>And further, she swore that she could prove the payment of the purchase money for the lot by James Wellborn, and knew she could before the trial, and made efforts to get his testimony, but could not find his residence, but learned during the war that he lived'at Columbus, Mississippi, and was then in the Confederate States Army, but she has had no chance to satisfy herself of his residence since; that she thought all this evidence important; that she thought she could obtain it by the next term, and that she was not seeking a new trial for delay only, but to get justice done her in the premises.</p> <p>The Court refused a new trial, and this is complained of before the Supreme Court.</p>

Bill for direction and to marshal assets. Demurrer. Decided by Judge Collier. Meriwether Superior Court, August Term, 1867. The executors of Catlett Campbell, deceased, filed a bill containing the following averments : Catlett Campbell departed this life, leaving a will, and appointing his sons, Wm.

Attachment. Judgment for interest accruing during the war. Decided by Judge Warner. Fulton Superior Court, April Term, 1867. This was an attachment returnable to April Term, 1867.

<p>1. A widow is entitled to dower in all the lands of which her husband died seized and possessed, notwithstanding any judgment against her husband existing at the time of the marriage with the applicant for dower. Under our statutes, the right of dower postpones the liens of judgments.</p> <p>2. The assets of an intestate are to be applied according to the laws for the administration of estates; and the rights of claimants to such assets are very different from what they were during the life of the intestate. A man’s wife has no right to dower in his lands, and if the real estate of the husband be sold under execution during his life time, her rights do not attach ; but if the judgment creditor delay until the death of the husband, then the widow’s right to dower vests, and postpones the liens of judgments until she can enjoy her dower estate.</p>

<p>1. What the real contract between the parties was, is a question for the decision of the jury; and when there is sufficient evidence to sustain the verdict, the Court should not grant a new trial.</p> <p>2. AYhere a promissory note was given in consideration of “ Confederate notes” borrowed, anda portion of the evidence showed that the note was to be paid in the same currency and evidence was introduced to show the value of Confederate money at the date of the note and at its maturity, and at no oth'er time and the Court charged the jury “that they might ascertain the gold value of Confederate money at the time of the making of the contract and upon, or at the time of the maturity, and adopt either, according to their opinion of the equity of the case;"</p> <p>Held: that the charge, under the evidence, was correct, and that if the Court had charged as to the value of Confederate currency at any other time, he would have erred, as there was no testimony to justify any such charge.</p>

Complaint. United States legal tender notes a Constitutional currency. Judge Sneed. City Court of Augusta. August term, 1866. .

Equity. Decided by Judge Flemming. Chatham Superior Court. February term, 1868.

<p>Complaint. Nonsuit. Decided by Judge Cole. Monroe Superior Court. August term, 1867.</p> <p>This was complaint on the following writing :</p> <p>.“$2,500 00.”</p> <p>One day after date I promise to pay William Chancely, or bearer, Twenty-five Hundred Dollars, for "services as a substitute for me, provided he serves and releases me from service for the period of three years, or during the war now going on between the Confederate States and the United States of America. And if I am not released from service for the above stated time, he is to receive only for the time he serves for me, at the rates of twenty-five hundred dollars for three years or the war.</p> <p>Rob’t H. Bailey,</p> <p>January 31st,-1863. - VV. C. Cleveland, Security.</p> <p>The pleas were that the undertaking was only conditional, and .payable in the currency of that time, which had been tendered and refused, and that the undertaking was illegal and void.</p> <p>Plaintiff introduced the obligation in evidence and closed. Defendant moved for a nonsuit, upon the ground that the contract was illegal and void. The Court so held, and granted the nonsuit.</p> <p>It is said this was error. The cause was argued at December term, 1867, and held up for consideration.</p>

Ejectment. Motion for new trial. Before Judge Clarke. Terrell Superior Court, May Term, 1867. This was ejectment for L. L. 163, in the 4th .District of said county, upon the demise of Nathan G. Christie, against John A. McGregor, tenant in possession.

Certiorari. Decided by Judge Clarke, at Chambers, Randolph County, November, 1867. Miller, executor of Wiley Miller, brought suits against said Ferguson and Isaac R. Ferguson, respectively, upon open accounts, in the Justice Court. The defence, in each case, was that the account was raised by said defendants, respectively, having bought cotton seed to plant, from plaintiff, as executor, which he warranted to be sound and fit for planting, and which were unsound and worthless.

<p>If a grant for land issued from, tlie State to one who was not the fortunate drawer in said lottery, that fact cannot be shown collaterally on the trial of an action of ejectment, bnt the original grant should be corrected by a proceeding instituted for that purpose, in accordance with the laws of the State.</p>

<p>Equity. Notice to produce books, etc. Decided by Judge Vason. Dougherty Superior Court. June term, 1867.</p> <p>Nelson and Davis were partners in the practice of medicine. Nelson died, and his administrator filed a bill for account and settlement of the partnership affairs, etc., against Davis, and prayed for the appointment of a receiver. At the first' hearing of the motion for a receiver, after Davis’ answer was read, complainant asked for time to produce affidavits to contradict the answer. Time was given. Afterwards, Davis was served with a notice to produce the partnership books. He put into the hands of complainant’s solicitor, all the books which Davis would admit were books of the firm. Davis was then notified to produce, in Court, on the trial of said cause, and, upon the hearing of said motion to appoint a receiver, all the books of account used in his business for the years 1860-1-2-3 and 4 to July, 1864, whether claimed to be private or individual books, or otherwise. Davis failed or refused to produce his private books or papers. Nelson, and Davis were partners. Nelson was, for a long time, absent in the army) and his administrator claimed that he should receive half of the income of the firm, as well while he was away, as while. he was at home. This, Davis denied, he averring that the partnership was' dissolved in April, 1861, when Nelson.went into the army.</p> <p>Thereupon, in term time, complainant’s solicitor moved the Court to compel Davis to produce the books called for by said last notice, and have them deposited with the clerk'of said Court, to be used as evidence on the trial of said motion, etc. The Court granted the motion, and this is assigned as error. (While the case was pending here, Davis died; the case was continued till this term, when his administrator was made a party.)</p>

<p>Pending an action of trover, the plaintiff filed a bill concerning the same subject matter, reciting said action, and praying that it be made part and parcel of the bill, etc.; the dismissal of said bill did not dismiss said action.</p> <p>Testator having uniformly disclaimed title in property, the executor can not recover it in trover. Harris, J.</p> <p>Statements made, and acts done, in ignorance of the facts, even if they bind him who made and did them, should not be permitted to deprive his wife and children of their rights. Harris, J.</p>

Equity. Appointment of Eeceiver, by Judge Vason, Chambers, Baker county, January, 1868. Holliday sold to Wilcher Jones and Gustavus Jones, his plantation in Baker county, and all the stock of horses, cattle, etc., the corn and fodder, and the crop then growing thereon, all of the value of $32,000 00, and made to them a deed for the land, which was to be absolute, if the payments agreed on were made promptly, but to be void if they were not promptly made.

<p>Equity. Demurrer. Decided by Judge Vason, Dougherty Superior Court, December, 1867.</p> <p>In December, 1862, and January, 1863, Sims & Rust, as warehousemen, received from John G. Tyus fifty-three bales of cotton, and advanced to him upon it $1,354 18. Tyus verbally instructed them to sell the cotton when they could realize eighteen cents per pound in the then Confederate currency. On the 21st of March, 1863, they sold the cotton to Jeremiah Beall, for $........., and placed the same, after deducting charges, to the credit. of Tyus, and by mail, on the 30th of March, 1863, notified him of the same. Several months afterward, and after the price of cotton was greatly advanced, Tyus refused to ratify said sale, pretending that they had no authority to sell the cotton. The cotton was sold for nineteen and a-half cents per pound. They made the advance because they had authority to sell, and after making this advance, Tyus had no right to withdraw the authority to sell without repaying the advance. Sims died; the war ended, and Tyus demanded the cotton from Rust, as survivor. He refused to deliver it. Tyus sued out a possessory warrant against Rust, survivor. Judge Clark decided the same in favor of Rust. Tyus took the case to the Supreme Court, and that Court affirmed Judge Clark’s decision. After this, Tyus brought trover and bail against Rust, survivor, for said cotton, which action is still pending.</p> <p>Beall also demanded the cotton from Rust, survivor, (he having left it on storage when he bought it,] and Ryst proposed to deliver the same to him, if he would give him bond and security for the delivery of the cotton, or to pay the judgment which Tyus might recover against him, Rust, as survivor, or make himself a party to the said trover action, so that the rights of all parties might be settled by that suit. Beall refused to do either, and Rust refused to deliver him the cotton. Thereupon Beall also brought trover and bail against Rust, survivor, for said cotton, which suit is also pending.</p> <p>Rust is willing to deliver the cotton into the custody of the Court, after receiving his advance and charges. This, he claims, is a charge upon the cotton, whether it shall be adjudged to be the property of the one or the other. As the contract was within the ordinance of 1865, and therefore, the values are uncertain, etc., and as these conflicting claims should all be settled in equity, Rust, survivor, filed his bill with the above averments and claims, and prayed that said actions be enjoined, and that Tyus and Beall interplead and settle their conflicting claims, and account and settle with him. The Judge granted the injunction.</p> <p>The defendant demurred, upon the grounds that his bill did not make a case for relief and account; that he showed no such an interest in the cotton as gave him the right to compel defendant to interplead; and, because Rust was bailee, the remedy in law is complete, and there is no equity in the bill. The Chancellor overruled the demurrer, and this is assigned as error.</p>

<p>The judgment of a county-judge, upon tie trial of a possessory warrant, being against the weight of the evidence, the Judge of the Superior Court, upon certiorari, properly reversed his judgment, and ordered the goods restored to him, who was entitled to the possession of them.</p>

Mandamus. Decided by Judge Yascot. Sumter county. Chambers. April, 1868. Mitchell, as Marshal of Americus, levied two tax fi. fas. against George M. Hay, on the household and kitchen furniture of said George M., and on his bar-room and cooking-saloon fixtures.

Equity. Motion for injunction. Decided by Judge Gibson. Richmond-County. Chambers. October, 1867. The case made by Cleckley’s bill was this: In October, 1865, Albert A Beall, of the firm of Beall & Eulton, warehouse and commission merchants, induced Cleckley to furnish them $1,000 00 to buy cotton; soon after, Cleckley let them have another $1,000 00/or the same purpose.

Trover. New trial granted, by. Judge Gibson. Washington Superior Court. March term, 1867. Geo. W. Robertson, as survivor of G. W. and B. F. Robertson, brought trover against Leaptrotj for twenty-one bales of cotton. Leaptrot plead general issue, etc. During the trial, Leaptrot was offered, as a witness in his own behalf; but, because said B. E. Robertson was dead, the Court would not allow Leaptrot to testify. The 'evidence is not material here.

Motion to reinstate case. Decided by Judge Gibson. Emanuel. Superior Court, October term, 1867. Phillips and Wilkes each claimed the tract of land in Emanuel’ county, which was the subject matter of this cause. Phillips had obtained a verdict, finding that Wilkes was his tenant of the same, holding beyond his term, and was about to turn him out of possession.

Statutory action. New trial. By Judge Gibson. Burke Superior Court. - May Term, 1867. The Central Railroad and Banking Company, as lessees of the Augusta and Waynesboro’ Railroad, were sued by Jane B. Holmes for killing a slave (in July, 1854,) belonging to said deceased.

Equity. Injunction. Decided by Judge Gibson, Chambers, Richmond county, November, 1867.

<p>Distress Warrant. Tried before Judge Snead. City Court of Augusta. January Term, 1868.</p> <p>Illegality. Decided by K. G. Foster, Military appointee. Wilkinson Superior Court. October Term, 1867.</p> <p>Case number one above stated, is as follows:</p> <p>Myers & Marcus, rented to Kauffman, a store-house for one year, from the 1st of October, 1866, in consideration of his promise to pay them $1400 “ in American gold coin,” to be paid in sums of $350 00 “ in American gold coin,” in quarterly payments. Kauffman paid all the rent for the two first quarters, and on the third paid $350 00 in United States currency or greenbacks, worth at the time of payment, only $254 00 in American gold coin, leaving a balance of $96 00 in American gold coin on that quarter; on the fourth quarter, he had paid nothing. They sued out their distress warrant for this rent, claiming $446 00 “ in American gold coin.”</p> <p>Kauffman replied by counter affidavit, that he owed them only $350 00. He claimed that the $350 00 greenbacks paid, discharged the third quarter’s rent, and was not a part payment as claimed by them. He admitted that the $350 00 paid, was worth only $254 00 “in American gold coin,” at the' time of its payment, and that $96 00 in American gold coin was, at the trial, worth $132.48 in United States currency, and that $350 00 in American gold coin was then worth $504 00 in such currency. It does not appear whether at the time this $350 00 was paid, anything was said as to whether it was' in full, or only a partial payment for the third, quarter. "When the last quarter was due, Kauffman tendered them $350 00 in United States legal tender notes in full payment' for the last quarter, but they refused so to receive it, and he did not pay it. The date of the contract, does not appear, but it was treated as made in 1866. Upon this state of facts, it was agreed that the Court should decide whether or not said contract could be discharged by payment of the sum promised in gold coin, with United States legal tender notes at par, and that if he held in the affirmative, the plaintiffs should have a verdict for $350 00 without costs, and if he should decide in the negative, then for $636.-48 with interest on $132 48 from July 1st, 1867, and interest on $504 00 from October 1st, 1867, with costs, (the same in either event to be paid in United States currency.)</p> <p>The Judge decided in the affirmative, and the verdict was for only $350 00. This decision is assigned as error.</p>

<p>Rule against the Sheriff. Decided by Judge Gibson. Richmond Superior Court. .January Term, 1868.</p> <p>A rule was granted agaihst the sheriff, requiring him to show cause why he should not pay the principal, interest, and costs, -due on a ji. fa., in favor of said Robertson, against Hilary Coffin. The sheriff-answered that he had collected, on said ji. fa., $119 00, in gold, and had not paid the same because said Robertson owed him, the sheriff, $93 00, in currency, for costs and expenses incurred in levyingaji. fa. of said Robertson, against Allen Mendlesom, on a stock of groceries, removing the same, and. paying storage on them, till Robertson had a settlement with Mendlesom, and ordered the levy dismissed, and the goods returned; that he had tendered Robertson the balance, and was ready to pay this balance.</p> <p>It was admitted that the sheriff’s claim against Robertson, on account of said levy, was correct; but it was contended that he could not thus retain it. The Court ordered the sheriff to pay the $119 OO'in gold when he had recovered his bill of $93 00 in currency, and if Robertson would not pay the $93 00 in currency, the sheriff should take enough of said gold to pay himself the $93 00 in currency, allowing the premium, and then pay the balance to Robertson or his attorney.</p> <p>To this order Robertson’s attorney excepted.</p>

Equity. New trial granted. By Judge Gibson. Eichmond Superior Court, January Term, 1868. Cleckley averred that Beall & and Fulton were commission merchants in Augusta, and that.

<p>Equity. Assignment. Tried before Judge Gibson. Eichmond Superior Court. June Term, 1867.</p> <p>On the 29th of December, 1865, The Augusta Insurance and. Banking Company made an assignment of its entire assets to said assignees, “ in trust always, that the said Eobert Walton, senior, and William A. Walton shall proceed, with reasonable and convenient dispatch, to convert all and singular the real estate and personal assets, hereinbefore conveyed and assigned, into money; and for that purpose, to sell and dispose of any or all of it, in such manner and on such terms as they may deem most for the interest of said trust, and to collect, settle, and, in their discretion, compromise, all debts and claims hereby assigned. And in further trust, that, after converting said assets into money, said Eobert Walton, senior, and William A. Walton, shall dispose of the entire proceeds thereof, in the manner following, that is to say:</p> <p>“ First. By paying all reasonable and necessary expenses incurred in the administering of said trust, including a fair and proper commission to be reserved to themselves.</p> <p>“Second. By dividing the entire net fund, aforesaid, among the creditors of said company, of every sort and description, with no other preference than is, or may be, authorized by law. And, should provision be made by law for winding up' insolvent banks, and appointing receivers for that purpose, the said' Robert Walton, senior, and William A. Walton, or their successors in trust, are hereby authorized to act as such receivers, for the compapy aforesaid, and to conform to the provisions of any such law, in behalf of said company.”</p> <p>The trust was accepted, and the assets being less than the debts, the assignees filed a bill praying that all creditors should come in and settle according to said assignment. Among these creditors were McCallie & Jones. Said company had insured their stock of goods against loss by fire. It was burnt on the 1st of July, 1861, and on the 7th of April, 1862, they sued the company on the policy, and on the 28th of May, 1866, obtained a verdict'and entered judgment against the company for $3,291 74, principal, with interest from July 1st, 1861, and costs.</p> <p>McCallie & Jones answered the bill, and admitting that the assignment was made, attacked it as void as against them, and contended that if it was not void, then, under it, their judgment should be paid prior to any claim not in judgment and older, or of even date with their judgment.</p> <p>There was no question- of fact between them, and the assignees, and the Court instructed the jury that the assignment was'valid, and that McCallie & Jones took no priority over other liquidated demands, and the decree was made according to said instructions.</p> <p>These instructions McCallie & Jones assign as error.</p>

Equity. Assignment. Lien. Decided by Judge Gibson. Richmond Superior Court. January Term, 1868. Held: say $>18,-000 00 of the bank bills issued by the assignor before its suspension and assignment, had obtained judgment on said bills, since the assignment was made, but now accepted the assignment as valid, and wished it carried out, but set up that as a bona fide bill-holder of said assignor, he stood on a par in the distribution of…

<p>The City Council of Augusta, on the 2nd day of June, 1865, passed an Ordinance, assessing a specific tax of one thousand dollars upon the Insurance and Banking Company of that city:</p> <p>Held, that inasmuch as the general tax laws of the State, had not heretofore recognized an incorporated company, as taxable property, the City Council of Augusta, did no,t have the power, and authority, under their charter, to assess, and collect said tax.</p>

Attachment. Tried before Judge Gibson. Eichmoud Superior Court, June Term, 1867. Moore made a contract, in writing, with Harlan & Hollingsworth, to build for him a steamboat. Conceiving that in the pretended fulfilment of this contract he had been damaged, Moore sued out attachment against the firm, the members being non-residents of this State, in which attachment only $5,000 00 was claimed; It was levied on certain propr erty which was replevied by bond and security.

Equity. Decided by Judge Underwood. Heard Superior Court. November Term, 1867.

<p>When sundry judgments have been obtained against a defendant for the principal debt due, with interest aqd cost, and the clerk of the Court issued separate executions for the costs due in each case “ for the use of the officers of Court,” against the defendant, (the original judgments existing in full force and effect,) and said executions for the costs were levied upon the lands of the defendant therein, who had previously sold the same to the complainants, who-were in the possession of the same, having a growing crop thereon, which lands, so levied ■ on, were sold at sheriff’s sale, under said cost ji. fas., and purchased by the defendant, who is alleged to be insolvent :</p> <p>Held, that said ji. fas. for costs were erroneously issued by the clerk of the Court, but being apparently regular upon the face thereof, the sheriff was not a trespasser in levying the same, and that a court of equity has jurisdiction according to the allegations in complainants’ bill, to restrain, by injunction, the insolvent purchaser of said land and growing crop thereon, from turning the complainants out of possession under the sale made by the sheriff under said cost executions.</p>

<p>1. The landlord’s lien on the crop for advances made to the tenant, for the purpose of making the crop, must be evidenced by a special contract in writing,; a mere promissory note, without any words expressive of a contract for a lien, is not such a special contract.</p> <p>2. Whether this lien on the crop is superior to a judgment lien of older " date, quere ?</p>

<p>Equity. Demurrer. Motion to dissolve injunction. Decided by Judge Speer. Upson Superior Court; November Term, 1867. '</p> <p>The Thomaston & Barnesvilie Bailroad Company, was incorporated on the 23rd day of December, 1839, and authorized to build a railroad from Barnesvilie, Pike county to Thomaston, in Upson county. They built the road, tapping the Macon & Western Bailroad at Barnesvilie. The corporation was sued, and its road-beds, right-of-way, depot-grounds and buildings, were levied upon by fi. fas., and sold by the sheriff at Thomaston, on the 1st Tuesday in May, and bid off by Thomas S. Sharman, Andrew J. White, and others, and the sheriff by deed, conveyed the same to them.</p> <p>Sharman and his associates, organized binder the name of the Upson County Bailroad Company, and under a charter passed in December, 1860, under that name, took the place of the original corporation. The new corporation continued to run and operate the road till April, 1865, when their depot-buildings, etc., were destroyed by Federal soldiers. Then ex necessitate, it ceased running the road. An effort to raise money from its stockholders to re-equip the. road, proved abortive.</p> <p>On the 2nd of July, 1867, at a regular meeting of stockholders, they passed the following resolution:</p> <p>“That, Whereas, the Upson County Railroad Company, has proved a failure thus far, and the fact is demonstrated that the road can not command business sufficient to operate the road, therefore Resolved : That the President and Directors, are hereby authorized and instructed,” to take such measures as will enable the Company to wind up the affairs of said road, to the best interest of the stockholders.”</p> <p>Pursuant to this resolution, the President of the Company published the proposal set out in the opinion.</p> <p>Upon the appearance of this proposal, Sharman, White and others, who owned stock in said corporation, but far less stock than that owned by Mustain and his associates, filed their bill in equity, setting forth the foregoing (and other-' matters not material here) and that Mustian and his confederates had bought out the stock of other parties, with the understanding, that they would equip the road and operate the same, but were now combining and confederating to sell the same by piece-meal and thus destroy it as a r.oad, to the injury of the public and of complainants, and that, by reason-of their holding so much stock, the complainants could not by a vote of the stockholders prevent it.</p> <p>They further charged that while by their charter they got the powers, privileges, rights and immunities of the old corporation, the Legislature also gave the new corporation power and authority “ to lease, rent or sell its said railroad, its appurtences and franchises, to any other incorporated Railroad Company of this State, and the incorporated Company leasing, renting or buying the same, shall succeed to all the rights, privileges and immunities, to which the said Upson County Railroad are entitled under this Act, and no more,” and contended that, having accepted this charter, they could not legally sell the railroad otherwise than as a railroad in its entirety, and to another incorporated Railroad Company in this State. They prayed that the corporation, Mustian and his confederates should be enjoined from selling said railroad, except to such purchaser as will equip and run the same, and to enjoin them absolutely from selling the iron, etc., apart from the road.</p> <p>The bill was sanctioned and injunction as prayed for, was issued and served. The corporation and other defendants demurred to the bill on the grounds: “That the complainants misjoin their claim for relief with the claims of the public, which respective claims in this ground mentioned, are separate and distinct in interest and in their nature from each other; that said bill shows that complainants seek thereby, a decree to enforce the obligatidn which the Upson County Railroad Company is therein stated to owe to the public, and the public in whose behalf said decree is sought, is not a party to said bill; and lastly, that there is no equity in said bill, the complainants not therein and thereby, making a case entitling them in law to the relief prayed for.</p> <p>Upon argument had, the Court overruled the demurrer, and the corporation, etc., excepted and assigned that ruling as error. That made said case, No. 1. Said bill with what follows, made said case No. 2.</p> <p>The defendants answered the bill, not denying any of said allegations, except that the damage done by the Federal officers, was the cause of said road stopping. They said it was ■stopped because it was impossible to run it profitably, and gave a history of their abortive efforts to make it profitable, and they denied that they bought stock with any understanding that they would run the road. They admitted the passage of the resolution, but averred that their motives were fair, and that they intended to close up the business of the corporation and surrender the franchise to the State, and that said offer to receive proposals for purchase was not intended to bind the company to make any sale, but only to ascertain what could be procured on various propositions from purchasers of the property as a whole and in distinct parts, so that the company would be enabled to decide intelligently, when it came to pass finally upon the subject of winding up the affairs of the Company. In short, they contended that the public granted this franchise for the benefit of the corporators and their successors alone, and that a majority of such stockholders might at any time, and in any way, sell said property, except the franchise, and that the quoted portion of the charter was only intended to give certain rights to any incorporated railroad company which should purchase this property, and was not a limitation on the owners in their disposition of all the property except the franchise. The fraud charged was denied, and combination, etc., was charged back' on complainants. The balance of the answer being to parts of the bill not reported, are not material.</p> <p>Upon the coming in of this answer, a motion was made to dissolve the injunction. At the hearing, complainant’s solicitors introduced and read the report of A. J. White, the former President of the Upson County Railroad Company, made to tire stockholders, on the 1st July, 1861., It contained nothing relevant to the law points herein decided. The Chancellor dissolved the injunction, and this is assigned, by Sharman and his associates as error.</p>

<p>Proceeding against tenant holding over. Tried before Judge Speer. Newton Superior Court, March Term, 1868.</p> <p>On the 9th of January, 1867, William Gleaton sued out a warrant against Mary A. Gleaton, as his tenant in possession, averring that her term had expired, and she refused to give him possession of the premises.</p> <p>She made a counter affidavit, denying that she held said premises under him, (or under any one holding under him,) by rent or lease, and setting up in her affidavit that she held the same as administratrix of ¥m. H. Gleaton, deceased. The- sheriff returned the papers to Court, and this issue, thus made, was tried. The plaintiff read in evidence a deed made on-the 11th of October, 1854, from Simeon Thompson, conveying said premises to the plaintiff. ' Plaintiff had been examined by commission, to which was attached the originals of three rent notes made by Mary A. Gleaton, and payable to plaintiff for $50 00, $107 00 and $200 000, respectively, dated the 26th of December, 1862, the 4th of March, 1864, and the 4th of March, 1865, respectively, in the order stated, each due on the 25th of December next after its date, and each expressing that its consideration was the rent of the said premises, whereon Mary A. Gleaton then resided. His answers were offered to show that defendant made and delivered to him said notes, that she was his tenant, occupying said premises during 1863, 1864 and 1865, that her term had ■expired, and that upon demand made by him, she had refused to give to him the possession of said premises. The defendant, contending that the real defendant in the cause was Mrs. Gleaton, in her capacity as administratrix of her deceased husband, ¥m. H. Gleaton, and not as an individual, objected to the reading of said answers to the jury, and the objection was sustained.</p> <p>Defendant’s father was examined to prove the signature of said notes. He did not know her handwriting. While on the stand, he testified that plaintiff gave the premises in dispute to said deceased, that deceased lived there two years before he married, and that defendant had lived there ever since the marriage. Plaintiff then examined the defendant, who said she signed said notes. She also testified that she married deoeased eight years ago, that he had lived on the premises in dispute two years before their marriage, and that she had lived there ever since the marriage; that she had heard plaintiff’s wife say that plaintiff had given said premises to her husband, and plaintiff, hearing the remark, said “yes,” etc.; that her husband had a negro woman on the place, who left the day they were married; and that he also had a negro woman there whom he hired from plaintiff, and that deceased died in 1862. Plaintiff then read said notes to the jury, and again .offered his interrogatories for the purpose of proving the demand and refusal, etc., and that he had never parted with the title of the land. The objection was renewed and again sustained.</p> <p>Mrs. Gleaton was re-examined, and testified that after 1865, and before this suit was commenced, the demand was made both by plaintiff and by his son, James, (each claiming title in himself,) and that she refused to give possession to either of them. Plaintiff closed.</p> <p>Several witnesses were examined, who detailed conversations with' plaintiff, and acts going to show the gift to said ¥m. H., and one said, plaintiff said he had given said premises to his son- ¥m. H., and gave as a reason for buying another tract of land that he wished it for another son, in order to give him as much as he had given said William EL This was objected to because William II. was nota party, because the contract for rent was made with defendant after the death of William II., and- she could not deny plaintiff’s title, because title to lands could be conveyed only by writing, and because what plaintiff had given his other' children was irrelevant. These objections were overruled.</p> <p>Defendant then offered to read in evidence the note given by William H. to plaintiff for the hire of said negro woman. It was objected to, as irrelevant; the objection was overruled, and the note was read to the jury. It was dated 24th March, 1862, and was a promise to pay plaintiff, or bearer, $100 00 “for hire of Jim,” on the 25th of December, 1862.</p> <p>Defendant then read in evidence letters of administration to Mary A. Gleaton, defendant, on the estate of William H. Gleaton, deceased. They were dated 7th January, 1867. They were objected to as irrelevant, but the objection was overruled. After argument had, the Court charged the jury, amongst other things, as follows: “ It is not universally true, as contended for by plaintiff’s counsel, that title to real estate in Georgia can only be evidenced by writing. There may be other evidence of title as conclusive as that which is signed, sealed and delivered. For instance, the exclusive possession by a child of lands belonging originally to a father, without payment of rent for the space of seven years, shall create conclusive presumption of a gift, and convey title to the child, unless there is evidence of- a loan, or of a claim of dominion by the father, acknowledged by .the child, or a disclaimer of title on the part of the child. '</p> <p>But the question before you is not one of title. The plaintiff claims that he is the landlord or proprietor of the premises in dispute, that the clefendant is his tenant, that the term of rent has expired, and that he has demanded the premises, and slie refuses to surrender. If you believe, from the evidence, that defendant is the tenant of plaintiff, then she can not deny his title as landlord, no matter how imperfect it may be, while she remains in possession. If she is his tenant under a contract for rent, and the term has expired, and possession has been demanded, then plaintiff is entitled to recover. But if the respondent, While claiming title to the premises, has been induced to attorn to the plaintiff by his misrepresentations, and gave her notes for rent in ignorance of her rights, a tenancy thus created is not binding upon her, and she may defend her possession by showing she holds otherwise than as a tenant.’’</p> <p>The verdict was for the defendant.</p> <p>A new trial was moved for, upon the grounds that the Court erred, 1st. In rejecting plaintiff’s answers to the interrogatories. 2d. In allowing the evidence of plaintiff’s declarations that he had given the premises to his son, William H. Gleaton.' 3d. In allowing the evidence of plaintiff’s gifts to his other children. 4th. In allowing the note for negro hire read. 5th. In permitting the tenant to deny plaintiff’s title, and set up adverse title, without giving up possession to him. 6th. In his charge as to defendant being induced by misrepresentations to attorn to him, the same being hypothetical. 7th and 8th. Because the verdict is contrary to law and the evidence, etc., etc.</p> <p>The motion was overruled, and a new trial refused.</p> <p>The assignment of errors is the same as set forth in the motion for new trial.</p>

Equity. Appointment of Receiver. By Judge Speer. Monroe County. Chambers. November, 1867. Sarah Winslet, in her own behalf, and as prochein ami of her mother, Martha Ward, a lunatic, filed her bill in Equity, in substance as follows: Thomas M. Harrup, the grand-father of said Sarah and said Martha, on the 5th day of January, 1855, made and executed his last will, in the words following: “State of Georgia, Monroe County: “ In the fear of God, Amen !

<p>Equity. Lien of judgments. By Judge Worrill. Harris ■ County. Chambers. January; 1868.</p> <p>. On the 1.7th of October, 1861, William A. Barden obtained a judgment in Harris Superior Court against Wm. M. Griggs and Richard E. Kennon, for $1,100 00 for principal, .ánd $61 39 .interest, etc. Afterwards, in- April, 1864, he transferred the judgment and fi.fa. issued under it to plaintiff in error, and on the 17th of May, 1867, he had it levied on a lot of land in the possession of Sarah C. Grady.</p> <p>Thereupon, she filed her bill in equity in behalf of herself, and as trustee for her children, by which she made the following case: Her father, by his last will and testament, gave large property in trust for herself and her children; after divers changes of trustees,. Marshal B. Grady became their trustee, and took into his possession, as such, the realty and personalty, say $25,000 00 in value, and invested a part of said fund in the premises levied on, purchasing the same from one Waterhouse, and taking from him his bond .for titles; Mrs. Grady and her children went into possession of said premises and still occupy them as such trust property. Waterhouse bought these premises from the defendant Kennon, on the 26th of June, 1862. Kennon then had sufficient real and personal estate to pay his debts, and with the proceeds of said sale to Waterhouse, purchased fourteen hundred and fifty-eight acres of land, in said county, known as the White place, and part of lot Ho. 265, known as White’s Mill Place, which he sold to Wm. T. Goodwin, on the 18th October, 1864, and also a house and lot twenty-seven and a half -acres, bought by Kennon 18th December, 1858, ^nd sold to J. W. Biggers, April 27th, 1863.- The White place was bought with proceeds of the sale of the 26th of October, 1863, and that of the 27th of April, 1863, and since the sale of each of said tracts, it was sold to Thomas Leslie. With the proceeds of this last sale, Kennon bought fourteen hundred acres of land three miles from Fort Gaines, in Clay county, Georgia, known as Spencer Poer’s place.</p> <p>Barden now resides out of this State. Yet, notwithstanding plaintiff in error knew that Kennon had owned' said described lands after he sold the premises whereon she levied, he had said levy made before he had made any effort to collect his money out of the lands described herein. Being advised that in equity, he should first exhaust the lands last sold by Kennon before coming on those 'first sold, she prayed that a sale under said levy should be enjoined.</p> <p>Waterhouse amended the bill .by making himself a party and stating that the facts stated were true, and that the prayer should be granted. - '</p> <p>The defendant showing canse why said injunction should not be granted, contended that there was no equity in the bill; that if there was any way to enforce payment out of the lands in the'order wished for b}1, complainant, it could be done only by paying him his money and then calling on the subsequent purchasers for contribution, and answered the bill as to what lands, etc., Kennon had had when he bought and when he sold the same, not differing with the bill in any material point, except a statement that Kennon had no title to the lot near Fort Gaines, and that he levied on this place because there were older judgments against Kennon, anti he wished to sell property which would pay them.’and leave a balance for him. After argument the Chancellor granted the injunction. 'This was assigned as error.</p>

<p>Motion to dismiss attachments. Practice. Decided by Judge Wobrill. Muscogee Superior Court. November, 1867.</p> <p>Todd & 'Rafferty, White Sheffield & Company, Petty & Sawer, and Goulding Bagley and Sewell, for the use of Bagley & Sewell, sued out four several attachments, in their favor respectively, against Rock Island Paper Mills Company, all returnable to May term, 1867 of said Court. At that term, no declaration was filed-in either of said cases. On the last day of said term, just before it adjourned, the Court passed the following order: “ It is, on motion, and by consent of parties and counsel, ordered that the call of the appearace Common ' Law Docket, for the present term be dispensed with, and that defendants have leave to plead and answer to cases on said docket, at and until the 1st day of the next term of the Court, as of the present term thereof, and all exceptions and dilatory pleas of cases on said docket stand continued for hearing for the said next term.”</p> <p>After said adjournment, plaintiff’s attorneys filed their declarations in each of said cases. At the next term, the case of Todd and Rafferty being called, the defendant’s attorneys moved to dismiss said attachments, because no declaration was filed at the first term, and it was agreed that this motion and the decision of it, etc., should control all of said cases.</p> <p>R-. J. Moses, Sr., státed, in his place, that he was present when said order was passed, that before said order was passed, and upon an intimation, given by the Judge, that the Court was about to adjourn till the term next in course, he asked R. J. Moses, Jr., (who, with himself and Mr. Garrard, composed the firm of Moses & Garrard, plaintiff’s attorneys,) if the firm had anything' to do before such adjournment, that the junior replied he would see,-and turned to his papers for that purpose; that before the search was completed, said order was read and passed by the Court. Whereupon he remarked to the junior, that he could attend to any matter just as well at the next term. He further stated that had the appearance docket been called by the Court, and said cause had been sounded, he would have inquired whether declarations had been-filed in said causes, and had they not been filed, he would have then filed them; that after the adjournment of the Court, he learned from the Clerk, that no declarations were filed in said causes, asked the junior why this was so and was told by him,'that before the Court adjourned, an order was passed, which would allow them to be filed at the next term; that he sent for a copy of the said order, and, by inspecting it, satisfied himself that the declarations could be filed at the next term. It was conceded that no declarations had been prepared before said adjournment. -</p> <p>R. J. Moses, Jr., Mr. Garrard, in their places, stated that the facts stated by R. J. Moses, Sr., were true as stated.</p> <p>The Court refused to dismiss the cases, and this refusal is assigned as error. . .</p>

<p>A new trial may be granted after trial before the petit jury, and before appeal.</p> <p>When one is tendered, as security oh the apeal bond, who is not a proper security under the law, the clerk, who takes the bond, should refuse to accept him. And if the omission of the clerk to reject such security, misleads the appellant, and prevents him from giving proper security, when, in good faith, he intends appealing, and the appellant makes these things appear to the Court, even after the adjournment of the Court, a new trial will be granted.</p>

Assumpsit for rent. Motion for new trial. Decided by Judge Cole. Bibb Superior Court. November adjourned Term, 1867. Hamilton, in right of his wife, (who was formerly M. J. Ross,) sued Holdridge and his wife on their promissory note for store-rent. It was agreed that the verdict in this case should apply to and cover the three rent notes which fell due on the 1st of February, March and April, 1867, as well as the note sued on.

<p>1. All applications for continuances, are addressed to the sound legal discretion of the Court, and if not expressly provided for, shall be granted or refused, as the ends of justice may require.</p> <p>2. A Notary Public, who is an attorney at law, cannot qualify a party to an affidavit for an attachment, and take the bond, and issue the attachment, in a case where he is employed.</p>

<p>Equity. Motion to dissolve injunction. Decided by Judge Cole. Chambers. February, 1868.</p> <p>The Bill made the following case: David Rumph drew a draft for $1200 on Woolfolk & Anderson, dated 26th September, 1867, payable ten days after its date, to the order of E. C. Granniss. They accepted it in consideration of David Rumph’s promise to send them cotton from his crop of that year, to reimburse them. They paid the draft. In November they received from him, five bales of cotton, and they sold it. They gave him a credit of $270 00. Instead of sending the other cotton, Rumph turned over to his son twenty-five other bales, being all he had. The son shipped these bales to Hardeman & Sparks, and they stored them with Woolfolk & Anderson, in the name of the son, D. M. Rumph. Hardeman & Sparks withdrew twenty-two of these bales and sent them to N. Reed & Co., of Savannah, Georgia. Until this had happened, Woolfolk & Anderson did not know that said David and said D. M. were related, or that David had any interest in said twenty-five bales. But now they state upon information that said David and D. M. are so related, and when said draft was drawn, were jointly interested in the plantation on which the said twenty-five bales were grown, and that the proceeds of the draft was used for their joint benefit. David Rumph is insolvent or embarrassed. The prayer was, that Hardeman & Sparks and N. Reed & Co, should not dispose of the cotton held by them, (except sufficient to pay their charges,) and that said David and D. M., and their other agents be enjoined from disposing of any of it, etc.</p> <p>The injunction was granted as prayed for. By amendment, the bill was altered as follows: The consideration of said acceptance was the promise of said Rumph, that he would not only send them the cotton which he raised in 1867, but such as he bought also, and would try to get his neighbors to send their cotton to the acceptors. The money realized on the draft was used for the benefit of Rumph & Boyd, (composed of said David and John Boyd,) merchants, and the twenty-five bales, or most of it, was received by said firm in payment for goods sold, and the balance raised by David Rumph and one Morris, who farmed jointly; and that this balance was turned over by said David to said D. M., without Boyd’s consent. The amendment made Boyd a defendant to the bill.</p> <p>The answers of the defendants were waived. D. M. Rumph alone, answered the bill. In his answer he stated that but eight of said bales came from said farm of Rumph and Morris, and that they were paid to said Boyd & Rumph for bacon, etc., advanced to the laborers of Rumph and Morris. The others, Boyd & Rumph took from other parties in payment of debts, etc.; he shipped twenty-eight bales to Hardeman & Sparks; but David Rumph had no interest in them or any of them; Boyd & Rumph owed him, D. M. Rumph, $1,150 00 in gold, which he got by his marriage, and loaned to the firm on the 15th of July, 1867, and took the firm note therefor, due one day after date. His partner, Boyd, turned over to him said twenty-eight bales in part payment of said note. He denied having been interested with David Rumph in any farming operation, or in getting and using this money for himself and David, stating that he got and used it for the firm of Boyd & Rumph. Of the other allegations he knew nothing.</p> <p>A motion was made to dissolve said injunction upon the coming in of this answer. At the hearing various affidavits were read. John Boyd affirmed that the twenty-eight bales were turned over by Boyd & Rumph in part payment of said note. John C. Floyd affirmed that by Boyd’s request he formally turned over said twenty-eight bales to D. M, Rumph for said purpose, though at the time he did not see the cotton nor the receipts. W. J. Colson affirmed that they were so turned over by the firm for said purpose. Jas. A Felligan affirmed that the said acceptance was not obtained for farming purposes, but by said David, when en route to New York to buy goods; when said David was in New York, he gave one Wagstaff a list of names to whom he wished the proceeds of this draft paid, to-wit: certain creditors of Boyd & Rumph. The draft not being paid at maturity, Wagstaff ordered it paid to E. C. Grannis as his agent, and further that D. M. and David were not farming together in 1867.</p> <p>To the bill was attached, as an exhibit, a certificate of one E. McDonald, that the money drawn from Woolfolk & Anderson was for the benefit of Boyd & Rumphj and that David promised to ship Woolfolk & Anderson the cotton he raised and what he might buy, and use his influence for them. P. G. Tretwell and John Boyd made affidavits that said David & D. M. did not farm on joint account in 1867. John Boyd further affirmed, that David Rumph told him he had turned over twenty-eight bales of cotton to D. M. Rumph, of which twenty were taken in for debts due the store, and eight bales made by Rumph & Morris, and David turned over to D. M. the cotton in Macon and Savannah without affiant’s consent. Besides these affidavits, a .letter from David Rumph to his partner, Boyd, was read. It is simply a statement of why he drew' the draft; that it was for the benefit of Rumph & Boyd; that he had gotten Wagstaff to pay off the debts when this draft was paid, but that W. & A. had never paid it, etc.</p> <p>Judge Cole dissolved the injunction, and of this complaint is now made. It was insisted that the Court ought not to have dissolved the injunction till all the defendants answered.</p>

Case. Common Carrier. Tried before Judge Cole. Bibb Superior Court. November Term, 1867. ' This was an action against the Southern Express Company for the loss of a diamond breast-pin. A package, containing a diamond breast-pin, worth $500 00, addressed to Miss Theodosia Everett, at the Female College, Macon, Georgia, was delivered to the agent of the Company, at Fort Valley, .Georgia, for transportation to Macon. The Company received only twenty-five cents for the freight.

<p>This Court will not interfere with the grant of a new trial, when the design of granting it, was that the parties might be heard to better advantage, and the principles involved, be more carefully considered.</p>