Volume 38 — Georgia Reports

<p>When the husband of a married woman died seized and possessed of a tract of land, having the legal title thereto, the widow is entitled, under the provisions of the Code, to her dower therein; and the vendor’s equitable lien for part of the unpaid purchase money, which was not enforced during the lifetime of the husband, will not override or defeat the widow’s legal right to her dower in the land.</p> <p>Harris, J. dissenting.</p>

Equity. Garnishment. By Judge Vason. Chambers. Lee county. November, 1867. • On the 24th of June, 1867, West brought complaint in Lee Superior Court, on an open account, against Wade H. Mims for $2,519 95, and sued out process of garnishment, which was served on Henry Green, James M. Sullivan et al. At the time of the service of such summons, all of the garnishees were indebted in some way to Mims.

<p>■ Equity. Bill for injunction and appointment of a Receiver. Decided by Judge "Vason. Chambers. Dougherty county. January, 1868.</p> <p>Crawford M. Mayo, as prochein ami for Florence Reid, filed a bill against Alexander R. Reid, containing the following charges: Florence was the infant daughter of Alexander R. Reid and his wife, Mollie S. V. Reid, daughter of Benj. O. Keaton.' On the first day of January, 1860, Keaton, in consideration of his love for Mrs. Reid and Florence, and in order to make suitable provision for the education and maintenance of the children of Mrs. Reid, and for the support and maintenance of herself for life, conveyed to said A. R. Reid certain land, mules, horses, cattle, hogs, etc., and plantation-tools and implements, to have and to hold the same for the sole and separate use of Mrs. Reid, and for the maintenance and education of her children, and at her death, to vest in said children, and A. R. Reid took the same, with the promise that he would carry out such trust, giving a written receipt therefor, a copy of which is exhibited.</p> <p>For like purposes, and subject to the same trusts, Keaton gave A. R. Reid other jmrsonal property. Mrs. Reid died, leaving no child but Florence, who is six years old. A. R. Reid has squandered all of the personalty last given but two mules, has rented out the farm to ¥m. J. Reid for fifteen bales of cotton, five of which had been paid to him and shipped away; is a man of dissolute habits, negligent of his business, wasteful in the use of money, and wholly unfit, by association and habits, to take care of said property, which belongs to said Florence, or of her person. Benjamin O. Keaton is in life, and is made a defendant to this bill. . The prayer is that he be restrained from conveying said land, that "Win. J. be enjoined from paying any more rent to A. R. Reid, and that A. R. Reid be enjoined from collecting any more rent, from disposing of, or changing, the status of any of said property, that he be dismissed from his trust, and another trustee be appointed, and that,- meanwhile, a Receiver be appointed to take charge of, and hold, said property subject to the order of the Court.</p> <p>The receipt exhibited is as follows :</p> <p>Georgia, Dougherty County.</p> <p>The following negroes, to-wit •. * * * * * * *, and also the plantation known as the Burrill Hill Place, in this county, containing six hundred and twenty-five acres, agreeable to survey, in the first district, valued at $7,800, which I receive in trust for my wife, Sfollie S. Y. Reid, and agree to hold the same for her as a portion given' to her by her father, B. O. Keaton, as a part of her portion of Lis estate under his will, and which I am to hold in trust for her, as his will directs, and which is to be considered as a portion of said estate to’ my wile. January 1st, 1860.</p> <p>ALEX’R R. REID.</p> <p>Witness — E. O. Welsh.</p> <p>A. J. Maccarthy, J. P.</p> <p>Judge "Vason granted the injunction, and ordered cause shown why a Receiver should not be appointed.</p> <p>A. R. Reid answered the bill. He denied that he received the said property upon any other or different terms than that stipulated in said receipt, and claimed that upon the death of his wife the property was his own. Of Keaton’s will he knew nothing when he took the property. He denied that he had mismanaged the property, and alleged that, on the contrary, he had added his own capital .to it, had devoted his entire attention to its management, and had managed it well, as he would show by the exhibited showing of the workings of the farm since 1860. He said that he is sober, economical and thrifty; that he is taking good care of his daughter, having her in a minister’s family, where her education and morals will be cared for, and that so far from squandering the property, out of only three bales of cotton received from Vm. J. Reid, as rent for said farm, and sold for $225 00, he had sent his daughter $123 00, to pay for schooling, board, etc., and expended the balance on the farm. He insisted that the bill was not at the instance of his daughter, but was brought by Mayo, who disliked him, etc. Before this answer was filed, a demurrer had been filed. The grounds of demurrer were, that the bill contained no equity, that it showed a parol trust with a life-estate and remainder, which estate could not be so made, that under the bill, defendant had been in possession of said property for more than seven years, exercising exclusive dominion over the same, and the same belonged to him as heir of his wife, and that the parol gift made an absolute estate in the heirs of Mrs. Reid (at her death) free from any trust.</p> <p>The consideration of this demurrer and of the appointment of a Receiver and dissolution of said injunction came before the Chancellor, and in addition to the foregoing, the Court had various ex parte affidavits, pro and eon, produced and read.</p> <p>The will of B. O. Keaton was read. In it there was not the slightest allusion to Mrs. Reid, nor any general clause which could affect her, but it contained gifts to other children of Keaton and a bequest to his daughter Rebecca, under certain trusts therein named. And it was accompanied by an affidavit by Keaton, stating substantially that he intended to give to Reid’s wife said property on the same trust as Rebecca held her property in the will, and that Reid agreed to accept it on those terms, and gave said receipt to carry out that intention.</p> <p>John F. Cargile, James W. Mayo, James J. Mayo and A. Faircloth made affidavit that Reid was careless in the management of property, reckless in the expenditure of money, wasteful and dissolute in his habits, and in their opinions unfit to manage property, and farther, that they knew his general character which was bad, and that from that character they would not believe him on oath. On the other hand, F. O. Welch, John Murphy, Wm. J. Reid, F. Lippitt, B. Smith and IT. M: Campbell made affidavit that Reid was a sober, industrious and economical man, not disposed to dissipation or extravagance, or loose or careless in the expenditure of money or property; that they had always and still did regard him as a man of sobriety and good moral character and habits, and they have reason to believe he is ordinarily prudent in his expenditures, and a very good manager of his property and means.</p> <p>After argument, the Chancellor overruled the demurrer, refused to appoint a Receiver, and dissolved the injunction. The plaintiff in error assigns the refusal of a Receiver and the dissolution of the injunction as error, and in the same bill of ' exceptions the defendant in error complains of overruling said demurrer.</p>

Warrant against intruder. Decided by Judge Vason. Calhoun Superior Court, March Term, 1868. On the 26th of October, 1887, Rutherford and Collins sued out a warrant against Geo. W. Collins, as an intruder. Their affidavit was made before a Justice of the Inferior Court of said county.

<p>When a common-carrier receives goods for transportation, and in case of the loss of the goods, seeks to protect himself from liability therefor, on the ground, that the goods were destroyed by the public enemies of the State:</p> <p>Held, that as the presumption of the law is against the carrier in case of loss, it is incumbent on him to prove, by clear and satisfactory evidence, that the goods were so destroyed whilst in his possession, in order to exonerate him from liability therefor.</p>

Case. Motion for new trial. Decided by Judge Snead. City Court of Augusta. February Term, 1867. Mosher & Co., through a son of Mosher, delivered to the Southern Express Company, at Augusta, Georgia, two bales of yarns, and took therefor a receipt, in these words: “Southern Express Company, Augusta, Sept. Hh, 1865.

Equity. Motion for new trial. Decided by Judge Milner. Murray Superior Court. October Term, 1867. Many questions were made by this record, but only one of them was- passed upon by the Court.

Murder. Motion for new trial. Tried before Judge Hutchins. Walton-Superior Court. 'February Term, 1868.

<p>The full statement of these cases, in the opinion of Judge Walker, renders a report of them unnecessary. It was held up for a time.</p> <p>Brief of points made, and authorities submitted by Cobb & Jackson and Samuel Hall, counsel for John J. Cor-bin and Alexander G. Lane and wife:</p> <p>I. Mrs. Parr having died in the lifetime of Mrs. Corbin, leaving no issue living at her death, there are, by the express terms of the 6th item of John J. Saylor’s will, cross-limitations between the issue of the said Mrs. Parr and Mrs. Cor-bin, and the children of Mrs. Corbin are entitled to the property that went into Mrs. Parr’s hands from the estate of John J. Saylor. The estate was to be kept together and managed until the death of the last of testator’s brothers and sisters, when one-sixt-h or one-twelfth part of it was to be conveyed to the children of his brother, by the trustees : and then it provides, “that they (the trustees) will convey the said residue of my estate, say five-sixths or eleven-twelfths, (as the case may be,) unto the children of my said two sisters, say to such children or child of my said two sisters as may be alive at the death oe the subvivob' oe them, the said Mary, Marcella Caroline and Samuel S. I mean that one moiety, or half of the five-sixths or eleven-twelfths of said balance or residue, shall be conveyed to the child or children of my sister, Mary Parr, then alive, share and share alike; and the other moiety, or half of said five-sixths or eleven-twelfths of said residue or balance of my estate, to the children or child of my sister, Marcella Caroline Corbin, share and share alike.”</p> <p>In order to arrive at the intention of a testator, and give effect to the same, as far as is consistent with the rules of law, the Court, in the construction of wills, may transpose sentences or clauses, change connecting conjunction, or even supply omitted words. Code, sec. 2424. These sentences, transposed, would read thus : “ One moiety of the five-sixths or eleven-twelfths of the residue of my estate shall be conveyed to the child or children of my sister, Mary Parr, alive at the death of the survivor of my said sisters and brother, and the other moiety thereof to the child or children of my sister, Marcella Caroline, then alive. The whole residue, say five-sixths or eleven-twelfths, (as the case may be,) of my estate, to be conveyed unto the children of my said two sisters, say to such- children or child of my said TWO sisters, as may be alive at the death of the survivor of them, the said Mary, Marcella Caroline, and Samuel S.”</p> <p>The offspring of these two sisters alive at the death of the survivor of the testator’s brother and sisters, were the preferable objects of his bounty, and it matters not whether they were the offspring of one sister or both. If only one had offspring living, that offspring was to take the whole five-sixths or eleven-twelfths; if offspring of both was then alive, this residue was to be divided among them per stirpes and not per capita, share and share alike. And this the testator has said in terms, or thought he had said in terms, else, why, when providing for the failure of his brother’s issue upon the happening of the contingency on which the the corpus of the property was to be conveyed, does he make this provision ? “ But if my brother die leaving no child alive, or if he leaves a child, and that child shall die leaving no issue, my will is, that the provision above made for my brother’s child or children shall revert and become a part of my residuary estate, and be disposed of to my sisters and their children, as is above provided,” etc.</p> <p>II. If cross-limitations do not exist, by express words, between the children of Mrs. Parr and Mrs. Corbin, then to effectuate the intention of the testator, they are to be raised by “necessary implication,” “plain intention,” or “ evident demonstration.”</p> <p>For the general doctrine of estates by implication and cross-remainders, the Court is referred to 2 Blackstone’s Com., 381, 382; Ken’s Ed., 388, 389.</p> <p>As to meaning, of “ necessary implication ” and equivalent terms, see per Lord Eldon, 1 Eoper on Leg., 84. Ib., 724; per Lord Mansfield, 1 Fearne on Eem. Appendix iii, 589, Jones vs. Morgan; per Lumpkin, C. J., 12 Ga. JR,., 155, Wright vs. Hides.</p> <p>Cross-remainders among tenants in tail take place “by necessary implication ” under the following circumstances:</p> <p>1st. Under a devise to several persons in tail, being tenants in common, with a limitation over for want, or in default of such issue, cross-remaind.ers are to be implied among the devisees.</p> <p>2d. This rule applies whether the devise be to two persons or a larger number, though it be made to them respectively, etc.</p> <p>3rd. The rule applies with regard to executory trusts, at least, though there be an express direction .to insert cross-remainders among another class of objects, or a limitation over among some of the same objects, and even in direct devises, an express limitation of cross-remainders among another class of objects, has been held not to repel the implication.</p> <p>4th. The word remainder following a devise to several in tail will raise cross-remainders among them. 2 Jarman on Wills, 379.</p> <p>5th. But the occurrence of this, or some tantamount expression, is not indespensable to the result. The intention of the testator may be implied from other circumstances. Hobart, 34, citing Year Book 7, E. 6; 6 Bacon Ab. Tit. Legacies and Devises, (J.), p. 107.</p> <p>6th. When an intention appears from the will that no other person shall inherit any portion of the estate, or take it by way of remainder, so long as any of the immediate devisees or any of their issue are living, cross-remainders will be implied. Bacon Ab. ut. Sap., p. 108; 3 Greenleaf s Cruise, 412, Note 2; 4 Day, 368-372, Hungerford vs. Anderson ; Dyer 303, b. pi. 49; 2 Bailey, 442, Baldrick vs. White; 4 8. & R., 368, Simpson vs. Coon; 2 Hal., 41, Den vs. Cook; 2 Bing., N. C., 422, Brook vs. Turner; 5 Mete., 134, Parker vs. Parker.</p> <p>7th. Cross-limitations take place among legatees or devisees in fee where even the title is to vest upon a contingency, and the contingency does not happen in time for the title to vest, and the intention of-the testator would be defeated if the implication was not made. 2 Pierre Will, 68, Scott vs. Bargeman ; 2 Jarman on Wills, 481, 483; Wes., 236, 536, Mackell vs. Winter; 3 Mer., 334, Skey vs. Barnes ; 4 Beav., 117, Currie vs. Gould; 2 Jarman on Wills, 487; 2 Eoper Leg., 1439, et seq.</p> <p>8th. The property did not vest in this case until the death of the last survivor of the sisters and brothers of the testator, and so literal a fulfillment of the conditions upon which it was to vest, is not required, as would be to divest it where it has once vested. Shepperd’s Touchstone, 133.</p> <p>■9th. The vesting of the property depended upon a contingency which rendered it uncertain who would be the legatees, and this makes the legacy contingent. 2 Bla. Com., 169; 1 Fearne Eem., 3, 381; Lewis on Perp., 72, 56. The trust is executory as well as contingent, and for that reason must receive an indulgent construction. 2 Blackstone’s Com., 381, 382, Jones vs. Morgan ; 1 Fearne Eem. App. iii, Edmonson and Wife vs. Dyson; 2 Kelly, 307, 312, 313, 314; Fearne Eem., 185, Earl of Stamford vs. Sir John Hobart cited and commented on; Fearne on Eem., 117-120, 338.</p> <p>III. S. P. Corbin held this property in trust, and was a naked trustee, and responsible as such. Lewin on Trusts, 243, Byrchall and Wife vs. Bradford et al.; 6 Madd. Ch. E., 241, Dix vs. Benford; 19 Beav., 401, cited by Lewin, 243; Hill on Trustees, 214, 215 ; Lewin, 242, citing Conyngham vs. Conyngham ; 1 Wes., 522, and Montgomery vs. Johnson, 11 Iredell’s Eq., 476.</p> <p>IW. But whether he held, as administrator or trustee, the debt of the eestui que trusts is a preferred one. Code, sec., 2496 par. 4.</p> <p>W. The defendants, John J. Corbin and Lane’s wife, not being in esse at the rendition of the decree by the Court of Chancery in Lexington District, South Carolina, in favor of Corbin and Wife vs. Mrs. Parr and the other legatees under John J. Saylor’s will, áre not bound thereby. Huson vs. Wallace; 1 Eichardson’s Eq., 1; 1 Daniell’s Ch. Pr., 90, 95, 207. And if they were, that decree interferes with none of the rights or'trusts under that will.</p> <p>VI. The change of property, ordered by that decree, left untouched the rights of the legatees under the will. Lewin on Trusts, 274. The cestui que trust could follow the property into which it is converted, and impose the trust upon all profits derived from the conversion, and that whether mixed with the property of the trustee or kept separate. Dockers vs. Somers, 2 M. & II., 655, (1 W. & T. Lea Cas., 347 ;) Fellows vs. Mitchell, 1 P. Williams, 83, Lewin, 337 ; Lupton vs. White, 15 Ves., 420; Code, secs, 2310, 2315, Lewin, 753; Taylor vs. Plumer, 3 M. & S., 562; Pennell vs. Deffell, 23 Eng., L. and Eq. R., 460; Conard vs. Atlantic Ins. & Trust Co., 1 Peters, 386; Nathan vs. Giles, 5 Taunt (1 E. C. L. R.)</p> <p>VII. The children of S. P. Corbin have to be advanced in proportion to the amounts received by Caruthers and wife from his executor; Dyose; vs. Dyose, 1 P. Williams, 305; Humphreys vs. Humphreys, 2 Cox C. C., 184, 185, 186.</p> <p>VIII. S. P. Corbin being trustee, was liable for all that came into his hands from Saylor’s estate, whether he received it as trustee or in any other capacity. Lewin on Trusts, 326 -330.</p> <p>IX. Under the laws of South Carolina, as they existed when Saylor’s will took effect, the clauses thereof, in relation to the manumission of the slaves, were valid. Lenoir vs. Sylvester, 1 Bailey, 632; Gordon vs. Blackman, 1 Rich. Eq., 65, S. C.; 2 lb. 43; Frazier vs. Frazier, 2 Hill’s Ch. R., 304.</p> <p>X. But whether these clauses are valid or not, no benefit can inure to testator’s heirs at law, for there is a valid disposition over to strangers. 1 Richardson’s Eq. R., 63, Gordon vs. Blackman, Sr C.; 2 Richardson’s Eq. R., 45; 2 MCord C. R., 269, Hall vs. Hall; 2 McMullen, 454, Carmille vs. Wightman ; 15 Ves., 417, Dawson vs. Clarke; 2 Ves., Jr., 284, Note 6 ; Pickering vs. Lord Stamford; 8 Xb., 12 Cambridge vs. Rous; 12 Ga. B., 163, Wright vs. Hides.</p> <p>XI. Corbin purchased the negroes at the sale of Saylor’s estate, with the trust funds, but made such purchase on his own responsibility — took the titles in himself — used said negroes, and disposed of them as his own property, which was a conversion ; and he thereby became responsible to the cestui que trusts for the amount of trust funds, with interest on the same from the death of Mrs. Corbin, and not simply for the hire of the negroes, as reported by the Master in Chancery, and affirmed by the Court below.</p> <p>XII. We are entitled to recover interest on the portion receive'd from Mrs. Parr, from her death, in 1848, and not from the death of Mrs. Corbin, as reported by the Master.</p> <p>They subsequently submitted another brief, as follow's:</p> <p>The question upon which a portion of the Court, as we are informed, hesitates in this case, and which we do not remember to have been suggested on the argument, and which was therefore not discussed, is this: The trusts being created in the State of South Carolina, and the trustee having removed to, and settled in, Georgia, (bringing with him the trust property) where he died indebted to the trust estate, and his effects being administered here, (the cestui que trust being prior to, and at the death of the trustee, also citizens of Georgia,) do they take under the law of this State regulating the order of the payment of deceased persons’ debts, as preferred, or merely as simple contract, creditors ?</p> <p>We think the following propositions are clearly deducible from the authorities:</p> <p>1st. That the law appointing the order in which distribution shall be made, is local in its operation and has no extra territorial force; and, therefore, if-the laws of South Carolina had secured priority in this respect to the cestui que trust, that provision would not have been observed if the administration was taken out in Georgia and the distribution made here.</p> <p>2d. It follows that the law of the place where the administration is taken is to be observed in the order of distribution prescribed by that law.</p> <p>3d. This is the result of two well settled principles : 1st. That the laws of distribution of the place where the contract was made, and where it was contemplated it should be executed, is no part of the contract, but is a part of the remedy. These laws belong to the proceedings in suit, {ad litis ordinationem,) not to the merits of the claim {ad litis deeisionem.) And 2d. Because comity does not require the observance of the laws of a foreign jurisdiction, where such laws interfere with the settled policy of the country, of the tribunal appealed to, for the enforcement of the demand or collection of debts.</p> <p>4th. Because the foreign creditor is entitled to all the benefits of the remedy to which any other creditor is entitled, unless he shall be expressly or impliedly excluded therefrom by the law affording the remedy.</p> <p>5th. These general principles are applicable to liens, hypothecations and priorities given to creditors by the laws of particular countries as well as to other claims.</p> <p>As to the fitst, second and third propositions, Harrison vs. Stoiy, 5 Cranch, 299. Smith, adm’r vs. Union Bank of Georgetown, 5 Peter’s R., 518. McElmoyle»s. Cohen, adm’r, 13 Peters, 328. Ten Eyck vs. Ten Eyck, -. Milne vs. Morton, C. Burney, 36. Potter vs. Brown, 5th East’s R., 131. Story on C. of L., secs. 524,525, 575 et seq., and 322 to 339, (edition of 1846,) and the Code of Georgia, sec. 2943, pr. 4.</p>

<p>1. A and B made and delivered to 0 their joint and several promissory note, due twelve months after date. C afterwards, for a valuable consideration, agreed with A, without the consent of B, to extend the time of payment twelve months longer. 0 endorsed and delivered the note to D after it was due, with notice of the extension of the time of payment. D, after said time expired, sued A and B, as makers, and C as endorser, and obtained judgment. B, who was then, absent in the military service, returned, after the rendition of judgment, and entered an appeal within the time allowed by the Ordinance of the Convention of 1865, and set up the defence that he was only a surety for A, and had no interest in the consideration of the note. A, who had entered no appeal, died before the trial, and was not a party to the “issue on trial:”</p> <p>Held, that on the trial of the issue between D as plaintiff, and B as defendant, B was a competent witness under our Statute, to prove that he was only a surety to the note. In a suit by A’s representative, after payment out of A’s estate, against B for contribution, A and B, who were parties on the same side of the original contract, would be opposing parties to the issue on trial, and B would be an incompetent witness.</p> <p>2. The evidence that B was only a surety, and that C knew that A was to pay the debt, was sufficient to sustain the finding of the jury, and the extension of time of payment given by C to A, without the consent ofB, the surety, released him.</p> <p>3. A motion was made, which the Court agreed to consider in connection with the record, to dismiss this case, on the ground that the new Constitution of the State, adopted since the trial in the Court below, denies to the Courts of this State jurisdiction to enforce any contract, the consideration of which was a slave, it appearing from the record that the note in suit was given for slaves:</p> <p>Held, that the judgment which this Court pronounces upon the points made by the bill of exceptions, renders it unnecessary to decide the question raised by the motion.</p>

<p>McCoy, J., having been of Counsel, did not preside in this ease. It stood over from Juno Term, 1868, by reason of the military order.</p> <p>When an order was made in an equity cause, setting the same down for trial, to ascertain whether the complainant’s claim had been finally adjudicated by a former decree of the Court:</p> <p>Held, that the granting such order, was not such a final disposition of the cause as will entitle the party complaining, to bring up that decision to this Court, upon a bill of exceptions thereto, under the 4191st section of the Code.</p>

Decided by James M. Clark. Chambers. Sumter County. September, 1868.

<p>Murder. Motion in arrest of judgment. Decided by James M. Clark. Sumter Superior Court. September Term, 1868.</p> <p>Zena Thomas, a negro, was indicted and tried for murder, and the verdict was “we, the jury, find the defendant guilty of involuntary manslaughter.”</p> <p>A motion was made to arrest the judgment “ upon the ground that said verdict was not according to law, and not justified by the pleadings in said case,” in that it did not define whether the killing “ was in the commission of an unlawful or a lawful act.”</p> <p>The Court refused to arrest the judgment, and this refusal is assigned as error.</p>

<p>Where A bargained to B certain slaves, which at the time were runaway, and B paid to A the price agreed upon, and it was agreed, at the time,, between the parties, that if B did not, by a certain fixed time, get possession of the slaves, A should repay the money.</p> <p>Held: That this was only a conditional sale, and if B failed to get the negroes, there was no sale, and A holds the money for B’s use, and B may recover it, and it is not a debt, the consideration of which is a slave or slaves.</p>

Equity. Injunction. Widow’s year’s support. Decided by Judge J. M. Clark. Sumter Superior Court. September Term, 1868. Mayo, on the 25th of November, 1867, rented' a storeroom to Nunn & Baily, for one year, at $570 00, payable quarterly, and accordingly, took their four rent notes, payable to himself or bearer. They were partners as booksellers, etc. Soon afterwards, Baily retired from the firm, leaving Nunn in possession of the store and stock.

<p>In cases which arise under the Sealing Ordinance of 1865, the general rule of this Court is not to disturb the verdicts of juries, unless the same are contrary to law, or manifestly against the weight of the evidence, or contrary to the principles of equity, as regulated by law.</p>

<p>Assumpsit. Motion for new trial. Decided by Judge Snead. City Court of Augusta, May Term, 1868.</p> <p>The Bank of Commerce sued Barrett, Carter & Co., as makers, and T. C. Barrett, as endorser 'on a promissory note, in these words :</p> <p>“$500: Attsttsta, Ga. Aug. 5, 1866.</p> <p>One hundred and twenty days after date, we promise to pay to the order of Thomas G. Barrett, five hundred dollars, in consolidation of National Express and Transportation Company, value received, with interest after thirty' days. Barrett, Carter & Co.</p> <p>(Endorsed) T. G. Barrett. J. V. H. Allbit, Treasurer.”</p> <p>At the same time, it sued said Barrett, as maker, and said firm as endorser, of another note, in the same words, for ‡250, drawn by him on the firm, and endorsed by the firm and said Cashier. By consent, these cases were consolidated and tried together.</p> <p>The defence was, that the notes were given to the National Express and Transportation Company, in payment of installments on stock of said Company, due from said Barrett, on an agreement to consolidate and reduce said stock, which was never done, and that plaintiff took them with notice of the consideration and its failure.</p> <p>Plaintiff’s attorney read in evidence said notes, and closed. The defendants’ attorneys then offered to show by one of said defendants, that the consideration of said notes had failed. The testimony was objected to as immaterial, until the plaintiff was shown not to be a bona fide purchaser before due, and without notice, etc.</p> <p>The Court overruled the objection. By the same witness they offered to show that the failure to consolidate the stock of the National Express and Transportation Company was a fraud upon its stockholders. This was objected to for the same reason, and the objection was overruled. The witness then testified that the notes sued on were given in payment of a subscription to the stock of the National Express and Transportation Company, and with the understanding, on the part of the company, to consolidate and reduce the amount of their stock from fifty to twenty shares, and that this undertaking, on the part of the company, was never carried out.</p> <p>The evidence being closed, the plaintiff’s attorneys requested the Court to charge the jury: 1st. “If the maker of negotiable paper relies on the failure of consideration for which the paper was given, as a defence against a bona fide holder befoi’e maturity, he must show, not only that the consideration had failed, but that the holder had knowledge of the failure at the -time when he received the paper.” 2d, “ that nothing was good as a defence against negotiable paper, in the hands of a bona fide purchaser before due, except immoral consideration, gambling, non est factum, or fraud in its procurement, which fraud must be practiced by the holder in proakring the note.” 3d, that “ value received ” in negotiable paper, imported that value has been received by the makers.</p> <p>The defendants’ attorneys requested him to charge the jury, that the form of the notes sued on was sufficient to put the plaintiff on its guard in taking them, and that he took them at his own risk.</p> <p>The Judge gave the first request by plaintiff’s attorneys, with this addition : “ But, in a case like this, when the consideration is set out in the note, it behooves the taker to inquire whether or not the consideration had failed, and if, in fact, the consideration had failed, the defence is good, even though the taker did not know of such failure.” He gave the second request, except the words in italics. He gave the third, with this qualification: “Such is the usual effect of the words ‘ value received,’ but in a case of this sort you will give the words the import which you think they ought to have.”</p> <p>He charged, as requested by defendants’ attorneys, and further, that if it was proven that the consideration of the notes had failed, or that they were procured by fraud, the plaintiff could not recover; and further, that it was for them to determine “ whether the words of the notes were notice to the plaintiff, and if they were, plaintiff could not recover.”</p> <p>After the jury had retired, they returned into Court for further instructions. The Judge then said, “the Court charges you that the words used in expressing the consideration were sufficient to put the holder on inquiry;” and when asked by a juryman, “ Then the jury are to inquire whether the words used were or not sufficient notice ?” he answered, “ I again charge you that, in my opinion, the words were sufficient notice to put them upon inquiry.”</p> <p>The verdict was for the defendant. A new trial was moved for by plaintiff, on the ground that the Court erred in overruling the objections to defendants’ testimony; in qualifying the first and third requests to charge, as he did; in refusing to give the second request; in charging, as requested by defendants’ attorney, and as he did in the balance of said charge; and in his remarks to the jury when they came in for further instructions.</p> <p>This motion was overruled. Error is assigned here upon each of said grounds.</p>

Assumpsit. New trial granted. By Judge Gibson.' Richmond Superior Oourt. June Term, 1868. Benj.

Distress-warrant. Legal tender notes. Decided by Judge Snead. City Court of Augusta. August Term, 1868.

Objections.to award. Demurrer. Decided by Judge Gibson. Richmond Superior Court. July Adjourned Term, 1867. Baker & Caswell was the name of two firms, for convenience, called here, the old and the new firm.

<p>Both plaintiff and defendants in error had issued attachments against Joseph A. Crew, and each had served J. Sibly. & Sons with summons of garnishment. The garnishment in favor of Bruce & Co. was first served. Bruce &«Co., after Murphy had obtained judgment on his attachment, dismissed their attachment in vacation. At the next term of the Court, they were permitted, with the consent of the defendant in attachment, to reinstate their case :</p> <p>Held, that they 'lost their priority over Murphy by dismissing the attachment, and that they could not regain it by reinstating their case.</p>

<p>Rule agaiust Sheriff. Stay-law decided by Jno. C. Snead. City Court of Augusta. November Term, 1867.</p> <p>■ Pinney & Johnson brought “complaint” against E. J. Bowie & Co., on the following open account':</p> <p>“R. J; Bowie & Co.</p> <p>To Pinkey & Johnson, 23 Pulton Street, New York.</p> <p>1861.</p> <p>May 16th, 12 tierces Butter,..........................................$189 25</p> <p>19th, 50 boxes Cheese.......................................... 87 95</p> <p>26th, 62 boxes Cheese............................................ 104 76</p> <p>Peb’y 8th, 42 boxes Cheese............................................ 71 88</p> <p>April 8th, To cash on hand, proceeds of sale of goods consigned to them........................................ 251 98</p> <p>705 82”</p> <p>Judgment was confessed for principal and interest from the first of January, 1862, in May, 1867, and fi. fa. issued, and was put into the sheriff’s hands.</p> <p>Levy, the sheriff, had not made the money at November Term, 1867, and was ruled by plaintiffs’ attorneys. In answer to the rule, he said that sa.idfi.fa. showed upon its face that it was issued upon a judgment founded upon a debt or contract made before the 1st of June, 1865, and that therefore he was prevented by the “stay-law” from making the money.</p> <p>On the trial it was admitted by Levy’s attorney that the following notice was handed to the sheriff, on the day of its date, by plaintiffs’ attorney.</p> <p>“Pixney & Jomrsoir, vs. 11. J. Bowie.</p> <p>j Fi. fa. City Court of Augusta. May Term, 11867. Principal $705 82. Interest from Jan-J nary 1st, 1862.</p> <p>“ To Isaac Levy, Sheriff City Court of Augusta:</p> <p>“Take notice that at the November Term, 1867, of the City Court of Augusta, the money due on the above stated fi. fa. will be required at your hands, as it was left with you about the 20th September, with positive instructions to make the money. Your attention is especially called to the fact that the suit was for the value of the goods consigned to, and sold by, the defendant, and that the second section of the stay-law of December 13th, 1866, excepts persons who hold money as bailees from the benefits thereof. October 30th, 1867.</p> <p>“ PRANK H. MILLER, Plaintiffs’ Attorney.”</p> <p>It was also admitted by him that suit had been brought in the statutory form, on an account for the proceeds of goods sold by defendant for plaintiffs. (Whether the original writ was read in evidence, does not appear.)</p> <p>Plaintiffs’ attorney thereupon moved to make said rule absolute, because the “stay-law” was unconstitutional and void, and because even that Act did not cover this ease. The Judge said that it rvas unnecessary to argue the first point, because, it being then pending in the Supreme Court, until that Court passed upon it, he would hold it as a valid law. After argument on the second point, he decided that the sheriff was not bound to enforce process founded on a debt created prior to June, 1865, unless he had proper notice (and that, too, shown by the pleadings in the case) that the case was excepted from the provisions of the “ stay-law,” and he discharged the rule.</p> <p>Plaintiffs’ attorney then moved to amend the judgment and execution nimopro tuno, so that they would conform to the decision of the Court. The Court refused to allow this done, saying he would have to hear evidence as to that fact, and could not do so under such a motion.</p> <p>Plaintiffs’ attorney then moved to take an order requiring the sheriff to enforce the fi. fa., as one not affected by the “stay-law,” but the Court would not pass the order.</p> <p>And now, plaintiffs’ attorney says that the Court erred in holding said act constitutional, in discharging said rule, in refusing said amendment, and in refusing said order.</p>

<p>Motion to dissolve injunction. Decided by Judge Flemming. Chatham county. Chambers. April, 1868.</p> <p>The Savannah and Ogeechee Canal Company,” a body corporate by the laws of Georgia, filed its bill for injunction and relief against John Ryan and John Feely, as follows : Said Company was incorporated, by an Act of the General Assembly of the State of Georgia, assented to 23d December, 1833, and amended by an Act approved on the 18th day of December, 1847. By said first mentioned Act, said Company, under the name of “ The Savannah, Ogeechee, and Altamaha Canal Company,” was authorized to own and construct a canal from the Savannah to the Ogeechee river, and from the Ogeechee to the Altamaha river, according to the terms and conditions of said Act. By the tenth section of said Act, said Company was empowered to hold any and all lands and real estate necessary for constructing, maintaining, and repairing said canals and the works connected therewith ; by the sixteenth section of said Act, said Company “ is obliged to keep said canals and locks in good and sufficient order, condition, and repair, and at all times, free and open, remarkable casualties and accidents excepted”; and'by the seventeenth section, it is enacted that “ it shall be unlawful for any person or persons to throw dirt, rubbish, trees, or logs into the said canals, or to injure the locks, basins, feeders, or banks, or any part of the work or works appertaining to said canals, or either of them, or in any manner to hinder or obstruct the navigation of said canals, or either of them; and any person or persons so offending shall be liable to an indictment as for a misdemeanor, and on conviction thereof shall be fined or imprisoned, or both, at the discretion of the Judge of the Court before whom is the conviction thereof; and the said offender or offenders shall also forfeit and pay to the said corporation four times the amount of the damages by them sustained, with costs, to be recovered by action of debt before a Justice of the Peace, or any court of competent jurisdiction.</p> <p>In compliance with the terms of said Acts of Incorporation, the Company is the lawful owner of a canal which connects the Savannah and Ogeechee rivers, and of--feet of, the land adjacent to either bank of said canal.</p> <p>John Ryan and John Eeely, and the persons employed by them, have, from time to time, cut and interfered with the banks of said canal in the said county, and the lands immediately adjacent to said canal, whereby dirt and rubbish have been thrown into said canal, and injury done to the locks, basins, feeders, banks, and works appertaining thereto, and the navigation of said canal has been hindered and obstructe; complainant, from time to time, repaired said cuts and damages, and has requested the said John Ryan and the said John Eeely, and all other persons to desist from the aforesaid illegal conduct, acts, and doings; but they refused to comply with this reasonable request, and threaten that they will continue to cut the banks of said canal, and otherwise to interfere with said canal, its works, and the lands adjacent thereto, property of complainant. The damages produced by a continued cutting of the banks of said canal, and by otherwise interfering with the works appertaining to it, and the hindering and obstructing the navigation thereof as aforesaid, would be irreparable; a resort to the ordinary course of the common law courts would be productive of a circuity and multiplicity of suits. Wherefore, it is prayed that said John Ryan and John Feely, and all persons acting or claiming under them, or either of them, may full and perfect answers make to the several matters and things aforesaid, and be restrained and perpetually enjoined from the cutting, injuring, or in anywise interfering with said canal, its banks and other works, etc.</p> <p>The injunction was granted.</p> <p>The defendants answered the bill substantially as follows : The incorporation and the ownership of the canal were admitted, but they said that the Company had no title to the lands joining the .canal, but only such right of way to the extent of--feet as is proper and necessary to carry into effect the objects of incorporation, and that the title for all other purposes remained in the person or persons who made such conveyance of the right of way to said company; that these defendants owned lands (and one of them was lessee of the lands) adjoining said canal, the natural drainage of which is through said canal, and must have been along the line of said canal, even if it had not been made; the cultivated parts of these lands have been drained into, and through, said canal, and cannot be successfully drained otherwise; and, at all points where said lands were cultivated, said drains have been actually kept open and used for more than twenty years; they have only exercised their rights as proprietors and lessees in clearing'out and keeping open said drains and ditches into said canal. They denied that they had in any other manner cut and interfered with the banks of said canal, or the lands immediately adjacent the property of said canal, or had thrown any dirt or rubbish into the same, whereby any injury has been done to the locks, basins, feeders, banks, and works appertaining to said canal, or had hindered or obstructed the navigation of the same, or had threatened to do or commit any of said acts, as set forth in complainant’s bill. They claimed their rights, as proprietors and lessees, to keep open and fit for use, the ditches and drains heretofore leading into said canal, and absolutely necessary to make their lands of any value whatever, for agricultural purposes.</p> <p>Further, they said that since they had been restrained by the injunction from keeping open said drains and ditches into said canal, and the said complainant has been thus permitted absolutely to obstruct and stop the drainage of said lands, the latter had been under water, and these defendants had been entirely prevented from making any preparation for the crop which they intended to cultivate on the same, and they had suffered great loss and damage thereby. And they denied that the injury was irreparable, and could not be redressed by resort to the courts of law, or that such resort would be productive of circuity and multiplicity of suits. Upon the coming in of this answer, they moved to dissolve the injunction, and on the argument, read in support of their answer, affidavits, the substance of which was as follows :</p> <p>Jambs S. Braxtly said, that he had been well acquainted with the condition of the Savannah and Ogeechee canal for more than twenty years past, and had resided nearly the whole of that time close to the banks of said canal, and been accustomed to come down the canal in boats; had also been familiar for many years past with the tracts of land now owned and cultivated by John Ryan and John Feely, and the tract adjoining the former, now leased by him from Mr. Hodgson; knew from his own observation and experience that it had been the custom and usage during all this time, for the lands adjacent to the canal to be drained into the same; and he had seen the ditches leading into the canal for this purpose, at various points, ever since familiarity with the canal commenced, and that he remembered with certainty, that such habit of drainage had prevailed as to the three tracts of land before referred to, at least as far back as the year 1856, and on one of them there was and is a conspicuous deep ditch into the canal, which had been constantly kept open as a drain, and cleard out from time to time for that purpose, and he had never known or heard of any other mode of drainage resorted to for the lands aforesaid.</p> <p>William: B. Hodgsox said, that he had been acquainted. with the condition of the Savannah and Ogechee canal for twenty-five years, and had been a proprietor of lands upon both sides of said canal, and adjacent thereto, during that time,- and actually leased a tract of land to the- defendant, John Ryan, which approached to within a few feet of the canal, and that both he and said John Ryan owned other tracts of land adjoining said tract above named, which lie upon .both sides of said canal; that during the whole of this time, as he knew from his own personal observation, these lands, as well as other lands adjacent to said canal, have been drained into said canal; nay, that he had that day examined ditches which had been used for the drainage of other lands further removed from the canal than the tracts already referred to, and which ditches he knew to have been used .for drainage during said twenty-five years, and verily believed them to have been opened and used for said purposes during a period of thirty years, and that, through these ditches, said last mentioned lands have been also drained into said canal; further, that the natural drainage of all the lands in that vicinage was originally in the general direction of the canal, and that unless said drainage had been through said canal, the construction of said canal would have stopped up and destroyed, or have greatly impaired the means of drainage for all of said lands. He knew that the land now occupied by the defendant, John Ryan, adjacent to said canal, had been under cultivation for twenty years, and longer, and the land occupied by the defendant, John Feely, for several years past, and that it would not be possible to cultivate or to keep in cultivation said lauds if said means of drainage into said canal should be denied, and that irreparable damage would thereby be occasioned to their owners.</p> <p>John Hogg, City Surveyor of Savannah, furnished a sketch of the land, and affirmed, in explanation of it, that . the swamp land had a distinct fall from the Louisville road, southwardly, across the Savannah and Ogechee Canal, and down to the low lands of the Springfield plantation. The construction of the canal intercepted the natural flow of water along this swamp, leaving no alternative but to drain into the canal itself. The lands on the south side of the canal, belonging to Mr. Feely, while they showed no well-defined swamp, had an inclination towards the canal. This is shown by the ponding of water along the south bank, leaving those portions a little removed comparatively dry. From observation, extending over a period of thirteen years, he knew that the drainage of land along the canal had been by ditches or covered drains leading into it, and he had for years seen such ditches and drains on portions of the land above described.</p> <p>And the said complainant read affidavits of the following substance:</p> <p>John Scudder and Ephraim Soudder deposed that they had known the Savannah and Ogeechee Canal, as now located between the rivers Savannah and Ogeechee, for over thirty years past; that they were, from 1847 to 1858, owners and part owners of said canal; that said canal had always flowed through the same lands through which it now flows for over the last thirty years, and rights of ownership over the lands for-feet on each side of it, and over the banks of the canal, had been exercised by the parties owning said canal for over thirty years; that, in all the time during which they had known said canal, no proprietor of adjoining lands had exercised or maintained any right to drain his lands by ditches, or otherwise, into said canal.</p> <p>Said Hogg deposed, that at the request of F. Blair, Esq., President of the Savannah and Ogeechee Canal Company, he had made a survey of the lands of John Ryan, on the Louisville road, in order to determine if there is any method of draining said lands other than into the Savannah and Ogechee Canal, and found it practicable to ditch northwardly, across the Louisville road, and into that portion of Central Railroad right-of-way lying on the south side of the track, excavated for the purpose of forming road-bed, theuce along said right-of-way, eastwardly, to the point where the Augusta and Louisville roads meet, -thence in a southwardly direction, crossing the Louisville road into Lot No. 7, Springfield plantation, owned by A. Holliday^ Esq., into a branch of the Springfield swamp. There is another and more direct route across Lots Nos. 1, 2, 3 and 4, into and through a brick culvert running eastwardly into the low lands of Spn'ngfield plantation. The lands of Mr. John Feely may be drained eastwardly, across the lots owned by Mr. Miller, (being a part of the Springfield plantation,) into a branch of the Springfield swamp. Mr. Miller’s lands are already ditched. It would be necessary to deepen these ditches, in order to obtain the necessary fall. This drainage may be effected without crossing the canal.</p> <p>Francis Blair, President and Treasurer of the Savannah and Ogeechee Canal Company, William REMSHARTand Edward Lovell deposed that since the year 1858, no proprietor or lessee of lands adjoining the said canal had ever asserted or maintained any right to drain his lands, by ditches or otherwise, into said canal; that in one instance, permission had been given temporarily, in which case the party availing himself of the permission always acknowledged the right of the company to stop him; that one of the ditches opened by John Ryan, which appears to be an old ditch, was originally opened by Daniel H. Stewart, who was a stockholder in said company, and applied to said company for permission to open said ditch, and acknowledged their right to close it whenever they pleased; that the said ditch ivas closed by the company after said Stewart had used it about a year, and had ever since been closed; that the lands through which the ditches opened by said Ryan and Feely arc cut, are lands originally conveyed to the said Savannah and Ogeechee Canal Company by Alexander Telfair, Ebenezer Jencks, and Joseph Stiles, and that said Company holds them in fee simple, and had so held them for over thirty years consecutively, and adversely to any one else, as will appear by the titles to said lands attached; said titles were bonds agreeing to‘make title in fee simple, when called'for. They were dated in June, 1826.</p> <p>In addition to tire above, E. Lovell swore that Daniel II. Stewart paid to the Savannah and Ogeechee Company one dollar a year for the privilege of keeping open the ditch above referred to, deponent being at the time President of the company.</p> <p>Besides this, they read from their charter, as follows:</p> <p>Sec. 16. And be it further enacted, That the said corporation shall be obliged to keep the said canals and locks in good and sufficient order, condition and repair, and at all times free apd open, remarkable casualties and accidents excepted, to the navigation of boats, rafts, and other water crafts, and for the transportation of goods, merchandise and produce. Provided, the boats, rafts, and other water crafts, are not so constructed as to injure said canals, or to obstruct the free navigation thereof.'</p> <p>Sec. 17. And be it further enacted, That it shall be unlawful for any person or persons to throw dirt, rubbish, trees or logs into the said canals, or to injure the locks, basins, feeders or banks, or any part of the work or works appertaining to the said canals, or either of them, or in any manner to hinder or obstruct the navigation of the said canals, or either of them; and any person or persons so offending shall be liable to an indictment as for a misdemeanor, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the Judge of the Court before whom the conviction thereof is had; and the said offender or offenders shall forfeit and pay to the said corporation four times the amount of the damages by them sustained, together with costs, to be recovered by action of debt, before a Justice of the Peace or any Court of competent jurisdiction.</p> <p>After hearing argument, the Judge ordered the injunction to be dissolved, and this is assigned as error.</p>

Equity. Teuants-in-common. Decided by Judge Flemming. Chatham county. Chambers. March, 1868. This case is as follows: Plarriet Bryan averred that in 1835, John Waters, her father, departed this life, leaving a will, with a codicil attached, and that George W. Anderson, William W. Gordon and William IT. Cuyler were appointed therein as his executors.

<p>Upon the trial of a defendant who was indicted for burglary under the Code, for breaking and entering a store-house, alleged to be the property. of certain parties therein named.</p> <p>Held: that parol evidence of the fact that the parties named in the indictment were in the possession of the store-house under a written contract of lease at the time of the alleged burglary, was sufficient to sustain the allegation of ownership of the premises, in the indictment, without the production of the written contract of lease.</p> <p>Houston vs. The State.</p>

<p>Equity. Demurrer. Decided by Judge Schley. Chambers. Chatham county, November, 1868.</p> <p>The Bank of the State of Georgia, a corporation of said county, had suspended. Public notice of their intention having been given, a meeting of the stock-holders was held on the 3d of May, 1866. A majority of the stock being there represented, it was resolved that the board of directors should make a deed of assignment, conveying to said Porter and said Gumming all of the assets of the bank, for equal distribution among the creditors and bill-holders, according to law. Accordingly, on the 25th of May, 1866, such deed was made, conveying all the property, real, personal and mixed, to said assignees, in special trust, to “ forthwith take control and possession of the estate, property and funds assigned and conveyed, and, within a convenient time, convert the same into money, either at public or private sale, as may seem best, and collect all the debts due to said bank/' etc. After the conversion of the said property into cash, and after the collection of the debts due to the bank, and after the payment of expenses, commissions, attorney’s fees, etc., they were to pay out and distribute the proceeds of such sales and collections, and all other funds in their hands, a^mong the creditors of the bank, in the order and according to the priority prescribed by law. Or they might make a partial distribution of the assets, or part payment to the creditors, before the whole of the property was converted into money, if the-assignees, or the survivors of them, thought this advisable.</p> <p>The assignees accepted the trust and took possession of said property. Part of this property was (as shown by the schedule attached to the deed) $7,071 23 in United States currency, $210,041 34 in gold coin, $17,135 31 in silver coin, $100 00 in copper coin, in sterling exchange about $8,000 00, in •bonds and promissory notes, payable in coin, $14,150 00, and the following stocks and bonds: eighty-five shares of the Augusta and Savannah Railroad Company, $8,500 00; twenty-one bonds of Pensacola and Georgia Railroad Company, $21,000 00; seventeen shares of Muscogee Railroad Company, $8,500 ‘ 00; two shares of the Alabama and Florida Railroad Company, $2,000 00.</p> <p>On the 10th of April, 1867, Miles G. Dobbins and Wm. and R. J. Lowry filed their bill against said assignees, as such, in behalf of themselves and such other creditors as would join in the litigation and pay their part of the expenses of the same. They averred that they held $5,000 00 in the bills of said bank, (which were described,) that th.e bank was insolvent and made the assignment aforesaid; that the assignees took possession of all its assets and property under said assignment, and had sold part of said property, but had made no distribution of the same, or of any part thereof. .</p> <p>When these complainants were informed of said assignment, their attorney called at the bank, to-wit: in November, 1866, and asked of Cummings, what the assignees were doing or would do for the bill-holders of said bank, to which he replied, that they were not paying them anything, as they had advertised, for six months, for all bill-holders to present their bills,, and as these complainants had not presented theirs within that time, they had lost their preference over other creditors. The counsel, without agreeing that that was so, and insisting that it was not, asked him to pay to complainants their pro rata share of the money in the hands of the assignees, counting all claims against the bank, and giving complainants no preference or priority. Cummings refused to do this, unless the attorney would release the bank from any other payment, except such as might be realized from the assets in the hands of the assignees. This the attorney refused to do.</p> <p>Again, on the 10th of April, 1867, the attorney made another demand upon said Porter, (who was absent Avhen the former demand was made,) offered to give him an exact descriptive list of the bills held by complainants, or to receipt on each bill for the amount paid on it, or give any other receipt which the assignee might wish for what he got,' and Porter refused to pay anything, unless such release was given.</p> <p>Because of all this, they prayed that said assignees should fully discover what they had done with said property and assets, how much was due to bill-holders, how much to all the creditors, etc., etc., and should account and settle with complainants, and that, if the Chancellor thought best, a Receiver should be appointed to fake charge of the same, etc., etc. To this bill, a general demurrer was filed. After argument had, the Chancellor sustained the demurrer, and this is assigned as error.</p>

Priority of lien. Decided by Judge Milner. Whitfield Superior Court. October Term, 1867. On the 22d of July, 1866, Robert IT. Caldwell owed said Dickson $747 46, and gave him a mortgage on four slaves to secure it. On the 4th of June, 1857, Caldwell owed Dickson other debts, amounting to $450, and to secure them, gave him another mortgage on said slaves. These mortgages were uly recorded.

Bill for new trial. Demurrer. Decided by Judge Parrott. Gordon Superior Court. October Term, 1868. Robuck & Orr had seventeen Justice’s Court fi. fas. against Thomas Harkins and James Harkins, each for $30 00, besides interest and costs, founded on judgments, dated the 4th of April, 1856. They had them levied on lot No. 190, in said county, on the 26th of October, 1857, as the property of Thomas Harkins.

<p>In this case the owners of a farm placed a farmer upon it, under contract, to set-,off the use of the farm against his skill and labor for five years, and the owners and tenant were to stock it on joint account, and divide the profits once a year,, the owners to have the right to terminate the partnership on six months notice, if the farm failed to pay ten per cent, profit on the capital invested: '</p> <p>Held, That the bill and answers show that the farm has not paid ten per cent. to the owners on the capital advanced'by them, and that the owners had a right, under the contract, to terminate the partnership by giving the six months notice, and that the Court did not err in granting an injunction, and appointing a Receiver to wind up the affairs of the partnership.</p>

Qertiorari. Jurisdiction. .Decided by Judge Parrott. Gordon Superior Court. October'Term, 1868. Jackson and Nathaniel Nicholson made complaint, before a Justice of the Inferior Court of said county, that a mill-dam, in said county, belonging to Bailey’s estate, was a nuisance. The trial took place before three Justices of the Inferior Court, on the 27th of December, 1867.

Riot. Charge of the Court. Trial before Judge Irwin. Union Superior Court. May Term, 1868. Davenport and another were jointly indicted for a riot, the unlawful act charged, being the beating of one Chastain. In the indictment the other defendant was called William Land; in one part of it, and William Lance in another. He plead guilty by the name of William Lance, taking no notice of the variance as to his name. Afterwards, Davenport was put upon trial.

Autre fois acquit. Demurrer. Decided by Judge Knight. Gilmer Superior Court. October Term, 1868. At October Term, 1865, of said Court, John Holt and six others were indicted for assault with intent to murder. The indictment charged that, on the 10th day of August, 1865, in said county, said defendants, with a loaded pistol, willfully, feloniously, and of their malice aforethought, assaulted Margaret Ralston, and shot at her, etc., with intent, then and there, to murder her.

<p>M. purchased of W. a tract of land on time, giving his note for the purchase money, and taking the vendor’s bond for titles, went into the possession of the same, made valuable improvements upon the land, and afterwards L., a married woman, purchased the property as her separate estate from M., and paid the original purchase money to W., the original vendor, who executed a deed to M., and M., the first purchaser of the land, executed a deed to L., the married woman, receiving the sum of $31,000 00, in Confederate money. Subsequently the land was levied on to satisfy a judgment obtained against M., the first purchaser of the land from W., in favor of H., and was advertised for sale as the property of M. L. filed her billon the equity side of the Court, enjoining the sale, and praying a perpetual injunction against the sale thereof, on the ground that, in view of the facts of the case, the land was not subject to be sold in satisfaction of the creditor’s judgment. The Court below decreed a perpetual injunction :</p> <p>Held: that the judgment of the Court below, perpetually enjoining the judgment creditor, was error; that the Court below, upon the state of facts presented, should have ordered and decreed that the land be sold, and out of the proceeds of such sale, Mrs. L. bz first paid the amount of the original purchase money, to which W. would have been entitled under his contract, with interest thereon up to the time 'of sale, and that the balance of the proceeds of the sale of the land be paid to the judgment creditors of M., according to their legal priority, in existence prior to Mrs. L.’s purchase of the land.</p>

Equity. Demurrer. Decided by Judge Collier. Fayette Superior Court, March Term, 1868. Russel filed a bill, making the following averments : On the 6th of October, 1835, John T. Davis bought land-lot No. 120, 7th District, Fayette county, at sheriff’s sale, as the property of James McCarcell, the drawer, before the grant for the same had issued from the State, and under said sale took immediate possession.

Charge of the Court. By Judge Collier. Fulton Superior Court. October Term, 1867.. Those curious about the history of this case, are referred to Cannon v$. Rowland, 8up. W. & A. R. R., 34th Ga. R. 422 8. C. 35th Ga. R:, 105. ■ The new superintendent was made a party, Rowland having died.

<p>Equity. Waste. Tried before Judge Collier. Meriwether Superior Court. August Term, 1867.</p> <p>A. Gates and Catharine Gates, minor children of Samuel M. Gates, deceased, and Samuel M. Gates, James B. Gates, Mary E. Gates, Nancy C. Gates and Matilda H. Gates, minor children of Benjamin K. Gates, deceased, by their guardian and next friend, filed a bill against Irwin H. Woodward, by which they made the following averments: In 1854, their grand-father, Benjamin Gates, died, leaving a will, of which the third item was as follows:</p> <p>“Igive and bequeath to my beloved wife, Emeline Gates, for and during her natural life only, (here follows a description of certain lands in Meriwether county, Georgia,) containing, in all, two thousand and twenty-two and one quarter aeres, more or less, with all the rights and members thereunto belonging. And also, forty-one negroes, to-wit: (naming them, etc.,) and their increase, and also all my household and kitchen furniture, the blacksmith tools at my house place, my cotton gins and all the out-houses, furniture at my home-place, salamanda safe, double barrelled shot-gun and revolvers; and at the death of my wife, all the aforesaid property to go to my grand-children Benjamin K. Gates and Samuel M. Gates, during their natural lives, and at the death of each one of them, his portion to his children, the salamanda safe to Benjamin K. Gates, and the balance equally between said Benjamin K. Gates and Samuel M. Gates.”</p> <p>The will was proven, and the executor at once put said Emeline into possession of said lands. Soon afterwards, the widow married said Woodward, who owned a number of slaves and was largely in debt.</p> <p>At the date of the marriage, a reasonable proportion of said lands still had the original forest growth thereon, but there was cleared land sufficient to employ the slaves bequeathed to said Emeline. Said lands, if properly preserved, would be of great value to the remainder-m en. But Wood ward soon determined to use said lands, without reference to the preservation of the reversionary interest, but so as to make the most of it for himself during his wife’s life. Accordingly, Woodward moved his family, by a former wife, and his own slaves, on to said premises, and, from time to time, hired other slaves and employed the accumulated .force of said slaves in cutting down the forest growth and clearing said land. Once complainants’ neighbors and relatives remonstrated with Woodward about this waste, and Woodward promised to desist, and did so for a short time; but the complainants’ fathers both having died, leaving these minor children, Woodward renewed his acts of waste, and is continuing them, and will render the reversion almost, if not entirely, worthless, unless he be restrained. Since the emancipation of slaves, he is more wanton in said acts, and avows a purpose to hire freedmen for the express purpose of clearing more of the land. The waste already done by him has damaged the reversion $10,000 00.</p> <p>(They further averred that Woodward had received, as the proceeds of said waste, large sums of money, which he had invested in lands and other property elsewhere, and had taken the titles in his own name in fee, and was thus seeking to transfer the real value of the lands so held for the life of said Emeline, to other lands and other property, to which he may acquire the title in fee. And they prayed that Woodward should “set forth in his answer to this bill his annual income from said estate, and the manner of investing the same, and what property he has accumulated, its kind and character, and the titles taken since he has intermarried with said Emeline, and that he be required to convey to them any lands and other property secured to himself by reason of said waste, “ And in the prayer for subposna, at the close of the whole bill, they prayed that Woodward should appear and “apswer the premises under his corporal oath.”)</p> <p>They stated that they “ were able to prove, without the answer of said defendant,” the other allegations. They contended that the life-estate was forfeited by said waste, and prayed that it should be so decreed, and that he should be enjoined from future waste, and be made to pay for the pas^ waste, etc.</p> <p>The defendant demurred generally upon the grounds that the complainants had an adequate common law remedy, and shewed no reason for the relief sought, and specially to so much of the bill as sought discovery and recovery of the amount of income from the estate mentioned in said bill, and the investments made by said defendant of the same, and to so much of said bill as sought a forfeiture of the life-estate.</p> <p>The Court sustained the special demurrer, and struck out those parts of the bill and of the prayer which are stated within brackets ante.</p> <p>"Woodward then answered the bill. He admitted the allegations as stated, except as follows : He married said widow in April, 1855, she then being about forty-five years old ; he then lived in Monroe county, Georgia, and was amply able to pay all his debts without inconvenience or sacrificing any portion of his estate; he took his wife to his said house, and staid there till the next year, and then moved with her and his three children to said Meriwether place; that he carried with him one negro man, his carriage-driver, and a woman, his cook, and their six children, and he purchased another man and his wife and three children, and also purchased two negro girls and two children: used these girls as seamstresses only ; besides those, he did not take to said place any slaves, either his own or hired, though he then owned twenty-five or thirty slaves. In 1857, he purchased about fourteen hundred acres, the Petit place, adjoining said premises, and early in 1858, removed his slaves to the Petit place. He stated that when he went to the Gates place, it had twelve or thirteen hundred acres cleared, and nine hundred acres in the forest growth ; some six or seven hundred acres of the cleared land was worn out and seemed to have been turned out some time before, unfit for cultivation, grown up in pine and other bushes, etc. ; of the remainder, there was about two hundred acres of fresh land, and in good order for cultivation, the balance, though much worn, by manuring and preparing, would pay for cultivation; but there was not sufficient land cleared to keep the hands employed, etc. He gave a detailed statement of his management of it, and the Petit place, so as to show that he was not clearing too much of said premises, and stated that during a part of the time, while he was so clearing, complainants’ fathers passed by, saw it being done, and made no objection; that since 1858, he had not cleared in all over one hundred acres on said Gates place, and had improved the swamp by ditching, etc.; the clearing in part,- was removing timber prostrated by an hurricane.</p> <p>On the trial, Dr. Parks testified, that he had known the land many years, and lived next to it, that Woodward commenced clearing on the premises in 1855, and in that year and in 1856, cleared one hundred and forty or one hundred and fifty acres, and was clearing on the land in the fall of 1866; that a part of this, say almost all, or about forty or fifty acres, was land on which the timber had been torn down by an hurricane, and it was proper and good husbandry to clear this up, and use the timber in repairing the place ; about one hundred acres cleared by him was swamp-land, which required great labor to clear and reduce it to cultivation. He said he thought that the land was worth, when Woodward took possession of it, $3 00 or $4 00 per acre, but now nothing; perhaps, fifty cents per acre, as there is, not suffiqient timber to keep it up; that, in his opinion, the reversionary estate had been damaged, by Woodward’s waste, $3,000 00 or $4,000 00. He thought it would take the timber of thirty-five acres per annum, to keep up the farm. A Mr. Jones testified, that Woodward had cleared about one hundred acres on said land; that the timber on fifteen or twenty acres would, be needed per annum to keep the place in repair; and he stated that, in his opinion, the reversionary estate had been damaged, by Woodward’s clearing, $1,000 00.’</p> <p>There was some other testimony, but that is not material now. The defendant’s solicitor objected to the said opinions of Parks and Jones, but the Court allowed them given in as evidence.</p> <p>The Court charged the jury, among other things, as follows: That portion of the bill which originally prayed for a discovery having been stricken out, upon demurrer, the bill is one in which the complainants undertake to prove the facts necessary for a recovery. The answer is simply pleading, not evidence for the defendant; the admissions in the answer against his interest, is evidence for the complainants. Waste is anything which works a permanent injury to the substance of the inheritance, willfully committed or carelessly allowed. Does the testimony show that there has been a waste or reckless use or consumption of the substance of the .inheritance of complainants by the defendant, and that without due regard to the rights of complainants? If so, that is waste.</p> <p>He then read section 2235 of the Code to the jury,, and added: If you should believe, from the evidence, that the life-tenant has failed to exercise the ordinary care of a pru-’ dent man, in the use and enjoyment of such estate, for the protection and jireservation of the' estate of the remainder-men, or willfully or carelessly permitted acts of waste to take place, he forfeits his interest to the remainder-mén, and they are entitled to immediate possession.</p> <p>The jury found that the life-estate was forfeited, and that Woodward should pay complainants $>2,000 00 and costs. A new trial was moved for, upon the grounds that the verdict was contrary to the evidence, etc., and because the Court had erred in each of said propositions stated in his charge, and because he erred in allowing Parks and Jones to give their said opinions. The Court refused a new trial, and this is assigned as error, on said grounds.</p>

<p>A witness for the State, in a criminal case, who, in obedience to a subpoena served upon him while temporarily in this State, actually comes from his home, in a distant State, where he resided when the subpoena was served upon him, and testifies in the cause, is entitled to mileage from the county treasury, for the whole distance traveled in coming from and returning to his home.</p> <p>Cost in criminal cases. Decided by Judge Collier. Chambers. Fulton county. December, 1867.</p> <p>An indictment for larceny after trust, etc., was pending in Fulton Superior Court. The record does not show whose property was stolen. During April Term, 1867, said Dutcher, who resided in St. Louis, Missouri, being in the court-room, was subpoenaed in said case, on behalf of the State. Under the subpoena, he attended court till it adjourned, and the Solicitor General permitted him then to go home, without requiring a bond to return, upon his promise that he would return, in obedience to said subpoena. He did return, attended the Court, was sworn, and gave his testimony in the case. He proved his subpoena, claiming twenty-one days, at $2 00 per diem, and in coming and returning, twenty-two hundred and fifty miles, at $2 00 for each thirty miles. He asked the Judge to approve said account, so as to authorize the county treasurer to pay it. The Judge allowed the per diem, and the mileage for three hundred and seventy-five miles, traveled in this State, but refused to allow mileagé for travel beyond this State. This refusal is assigned as error.</p>

Misconduct of Jury. Decided by Judge Collier. Fayette Superior Court. March Term, 1868. Phillips brought an action against Blalock and John T. Hewell, as partners in cotton-buying.

<p>1. An appeal should not be dismissed because of the insufficiency of the security, until the appellant .has been required to give other security, or shew cause why the appeal should not be dismissed.</p> <p>2. By the provisions of the 3329th section of the Code, railroad companies are liable to be sued for injuries done to persons, or property, by the running of “hand-cars” upon their roads, as well as by the running of ears propelled by steam-power, and may be sued therefor, in any county in which the cause of action originated.</p>

Bankruptcy. Security on appeal. ■ Decided by Judge Pakkott. Fulton Superior Court. October Term, 1868. Odell sued Wootten, and had judgment. Wootten appealed to the Supei’ior Court, giving security, and there plead that, on the 19th day of May, 1868, he had been duly adjudged a bankrupt, (vouching the record of the discharge,) and was thereby discharged from said demand.

<p>' Assumpsit. Motion for new trial. Decided by Judge Speer. Henry Superior Court. October Term, 1867.</p> <p>Rhoderick T. Harper & Wm. B. Ammons, merchants and partners, under the style of Harper & Ammons, brought assumpsit against Alexander Lemon, upon an open account for goods sold and delivered to his daughter, between the 1st of March, 1860, and 8th of October, 1861, amounting to $583 45. One count averred that they were furnished to her as necessaries, and another that they were furnished by special request of her father. The account was as long as the moral law, and embraced almost everything which a school-girl with carte blanche would buy. She very frequently bought snuff, indulged pretty freely in candy,-and the like, bought quite a number' of cheap gold rings, etc. In the account were three or four items, amounting, in the aggregate, to about $WL0 00, stated to be “ per order,” and six items for cash loaned and cash paid for her, amounting, in the aggregate, to $6 95.</p> <p>Alexander Lemon died, and Abel Lemon, his executor, was made defendant.</p> <p>Upon the trial, the plaintiff relied only on the second count. Wade Harper, being on the witness-stand, proved the plaintiffs’ books of original entry ; that the account sued on was in the hand-writing of Julius Askew, deceased; that before that, he had testified in this cause, that he copied the account; that he posted the books, but did not sell the articles ; he had compared the day-book with the account sued on; those marked, in the account, he sold and delivered to the said daughter; the others were in the hand-writing of his brother, one of the plaintiffs, except one, which was in the hand-writing of Askew. (What he had marked does not appear.) The charges for the goods, he said, were reasonable, and her father had said, in the Spring or Summer of 1860, to him, to sell her any goods she wanted. He said he only knew the items and prices .from the books. He was the clerk of plaintiffs from January, 1860, to July, 1861. The daughter was a school-girl, sixteen or seventeen years old. The cash items were advanced by him. He thought that some of the items were not gotten by the daughter, but upon orders, sent by negroes, by Alexander Lemon.</p> <p>Allen Turner testified that, in the Spring of 1860, he and Alexander Lemon were in plaintiffs’ store, leaning on a pile of blankets, and he spoke to him about his daughter trading with plaintiffs, and Lemon told him that he had told Thomas Harper, one of the plaintiffs, to let his daughter have anything she wanted. The girl had married before this trial, and testified that she bought the goods, that sometimes her father gave her permission to buy, and sometimes she did not ask him, that he gave her money when she asked him for it, and sometimes directed her to go to the store and get on a credit what she wanted. The plaintiffs proved that they kept correct books, introduced the books, and closed.</p> <p>On the part of defendant, a witness testified that he saw Alexander Lemou meet Harper, in the- corner store, and say to Harper that he had frequently told him not to sell his daughter goods, as she was not a judge of goods. Harper said he would take it back, it was a small bundle, and he did take it back; he did not know when it was, but it was after 1856, and he thought about the beginning of the war; he did not know where Harper was doing business then. It was shewn that in 1860 and 1861 plaintiffs did not do business in the corner store.</p> <p>There was other testimony as to Alexander Lemon’s pecuniary ability, showing that he was worth from $20,000 00 to $30,000 00, and as to his habit of furnishing his family proper supplies, etc.., but, as the first count in the declaration was abandoned on the trial, it is not material here.</p> <p>The Court charged the jury that they must first be satisfied, from the evidence, that the items in the account were correct before they need inquire as to Alexander Lemon’s liability. He told them, if the account was correct as to items and values, that this promise to pay need not be in writing, because, if Alexander Lemon was liable, it was by reason o, iii.i making his daughter his agent to purchase the goods; t^aL it the father fails to supply necessaries, his daughter may buy them, and the law will imply a contract by him to pay for them, but by express agreement, the authority from the father may be greatly enlarged, and if Alexander Lemon authorized plaintiffs, or either of them, or their clerk, to let his daughter have from their store whatever she wanted, he made her his agent to contract and he is bound by her acts, though they may exceed what is actually necessary for her comfort, and if the evidence showed such general authority was given, the presumption of Jaw is, it continued until revoked,.and plaintiffs' or their agents had notice of the revocation. He further charged that knowledge by a father that his daughter was purchasing goods, and his failure ’to stop it, would not bind him for everything bought, but only for reasonable necessaries, suitable to her circumstances and condition in life; that under the authority to give her what she wanted, it was permissible to make such sm’all advances of cash as are common for merchants to make to their customers.</p> <p>He was requested to charge, that there could be no recovery for the items charged “ per order,” without producing the orders. He refused so to charge, telling the jury that the order was the best evidence, but as there was no objection made at the time, they could say whether the proof of those items was satisfactory. He was also requested to charge, that if the daughter’s agency was limited by the father, in his notice to plaintiff as to quantity and price of the goods, and as to the time when the permission ceased, then plaintiff could not. exceed the authority, nor the time limited, nor recover for any unreasonable quantity purchased. The Court told the jury he would not so charge, because there was no evidence to support such a charge. The jury found for the full amount of the account, with interest and costs.</p> <p>Defendant’s attorney moved for a new trial, upon the grounds that the Court erred :</p> <p>1st. In allowing the clerk to testify, by referring to the books of original entry, he saying that he did not recollect the sale or delivery of the goods, except by the entries in his handwriting in said books.</p> <p>2nd. In allowing the books read to the jury, without first proving, by the clerk, his knowledge of the account “ outside of the books.”</p> <p>3d. In allowing the books used as evidence, to charge said defendant, when there was a clerk by whom said account was required to be proven, he being present in Court, and shewn to have been in the plaintiffs’ employment when said account was contracted.</p> <p>4th. In refusing a non-suit because it was not shewn that said goods were necessaries, and that the minor’s father did supply her. (No non-suit appears to have been moved for.)</p> <p>5th. Because plaintiffs had proved no promise to answer for this debt binding on defendant.</p> <p>6th. Because of the vagueness and uncertainty of the amount for which defendant was liable, if at all.</p> <p>7th. Because the charge is contrary to law, and without law to support it.</p> <p>8th. Because the Court failed to charge that the conduct or silent admission in reference to the liability of the defendant, or failure to assert the authority of plaintiffs to sell the goods to defendant’s daughter, when such authority was questioned, and the effect of such conduct and failure of denial was evidence that the jury might consider in determining the truth of said authority, defendant’s attorney having called the attention of the Court to the same in his argument to the jury.</p> <p>And 9th. The verdict was contrary to law, the charge of the Court, the evidence, and the weight of evidence.</p> <p>The Court granted a new trial,'upon the ground that his charge was wrong, he believing that an authority to let her have whatever she wanted, did not authorize plaintiffs to let the daughter have things extravagant or unreasonable.</p>

Debt. Motion for new trial.. Decided by Judge Speek. Henry Superior Court. October Term, 1867. Merritt filed, in the County-Court, a petition to establish certain notes, which he claimed were executed-by John W. Langford and John W. Henderson, payable to himself, and which he had lost.

<p>1. Where one who holds land adversely to the widow’s right of dower, but who was not notified of the application, comes in, at the return term of the commission, and contests the return, he can not object to the order of the Court appointing the commissioners, on the ground that one of them was not a free-holder.</p> <p>2. When, in an issue on the return of commissioners to lay-off dower, the applicant opened the case by proof to sustain the return, and the contestant replied with proof attacking it, it is too late for the contestant to claim that he has a right to open and conclude the argument before the jury.</p> <p>3. In an issue on the return of commissioners to assign dower, it is error for the Court to charge the jury, that in estimating the value of the land, (other than the dwelling-house aud curtilage,) they ought not to consider improvements, such as log dwellings, etc., “unless these improvements are of considerable value, such as a two-story house, etc.”</p>

Rule against the Sheriff. Decided by Judge ¥m. M. Reese. Warren Superior Court. April Term, 1868. Curran Battle was defendant in several ji. fas. issuing out of said Court. Under one of them, his property was sold on the first Tuesday in January, 1868. At the April Term, 1868,the sheriff was ruled, and the different plaintiffs mfi. fa. were at issue, as to which of them should take the proceeds of the sale.

<p>The minor legatees under a will, who are not the children of the testator, have no right, in a case pending in Chancery, upon a bill filed by the executor, for direction, to an interlocutory ordei’, setting apart money for their support, unless the estate is solvent, and able to pay all just debts, and leave a sufficient fund, out of which to pay the sum necessary for their support. And it was error in the Chancellor to grant said order, when the solvency of the estate was denied, till it had been ascertained by the report of a Master in Chancery, or in some other legal way, that there would be a fund after the payment of the debts of the estate.</p>

Assignment. Motion for new trial. Decided by Judge Worrill. Muscogee Superior Court. May Term, 1868. Embry & Fisher, in their pending action against Herbert W. Blair, sued out garnishment against Julius J. Clapp. Clapp answered that he owed Blair nothing, and had none of his effects. Embry & Fisher traversed said answer, and there was a trial of that issue. The evidence on the trial was as follows: Fred.

Trover. Charge of the Court. By Judge Worrill. Chattahoochee Superior Court. September Term, 1868. Osteen had' a watch, which both he and Y/allis, and E. G. Raiford claimed. That watch was left, by Osteen, with a jeweller to be repaired. When it was sent for, the jeweller, by mistake, sent another watch to Osteen. The defendants, by possessory warrant against Osteen, got possession of this watch, and, to regain it; Osteen brought trover against .them.

Assumpsit. Charge of the Court. By Judge Cole. Bibb Superior Court. May Term, 1867. This was complaint by Joseph Glawson against Mrs. Mary Lamar, upon an account for “ services as an overseer, from January 1st, 1860, to January 1st, 1861, $550 00. The action was brought in October, 1861. The general issue was filed.

<p>When a feme sole gave her note for fifty dollars, and afterwards married in 1862, before the adoption of the Code, her husband receiving through the wife property more than sufficient to pay the debt, and the husband died before any judgment was obtained against him for the debt of the wife:</p> <p>Held, That as the parties were married before the adoption of the Code, the husband was liable for the debts of his wife only to the extent of the property received through her, when judgment was recovered against him therefor during the coverture. The will was competent evidence for the purpose of shewing, that the parties were married prior to the adoption of the Code in 1868, as it was dated 31st July, 1862, and recognized therein the maker of the note to be his wife at that time.</p>

<p>When an attachment was levied upon fifty shares of capital stock of a corporate company, and sold at sheriff’s sale, it was the duty of the sheriff to give a certificate of purchase to the highest bidder, and on presentation of such certificate to the proper officer of the corpora, tion, it was his duty to make the necessary transfer of the stock to the purchaser on the books of the company. In such case, the sheriff does not put the purchaser in possession, but the proper officer of the corporation is, pro hao vice, a public officer under the Code, charged with that duty, and if he refuses to do it, mandamus is the proper proceeding to compel its performance.</p>

Landlord and tenant. Motion for new trial. Decided by Judge Cole. Bibb Superior Court. May Term, 1868. McIntyre sued out a warrant against McBurney, as his tenant, holding a certain lot over and beyond his term. McBurney denied holding under him. The jury found against McBurney for double the proven rent. His attorney moved for a new trial, upon the ground that the verdict was contrary to the charge of the Court, and against the weight of the evidence.

Assumpsit. Distribution of estates. Tried before Judge Foster. Jasper Superior Court. October Term, 1867. On tbe 2nd of March, 1861, John W. Burney, Jr., as principal, and John W. Burney, Sr., as security, made and delivered to said Barron their promissory note for $3,630 00, due 10th of November, 1861.

<p>When a testator appointed four executors to execute Ms will, and an application was made to -the Ordinary to require three of the executors to give bond and security according to the provisions of the 2411th section of the Code, upon the ground that said executors were mismanaging the estate of the testator, and said cause having been tried in the Superior Court, on appeal from the Court of Ordinary, and the jury having returned a verdict requiring the executors to give bond and security, and a motion having been made in the Court below for a new trial, which was overruled:</p> <p>Held, First, that the insolvency of the executors is not per se a sufficient ground to require the executors to give bond and security, especially, ■when it appears from the evidence in the record, that their pecuniary condition is as good now, as it was at the time of their appointment by the testator.</p> <p>Second, that the turning over to one of the executors, by the widow, shortly after the testator’s death, of a large amount of promissory notes and other evidences of debt, which, said executor has continued to hold and retain in his possession, with the consent and approbation of two of the other executors, against the protestation of the fourth named executor, is not per se such mismanagement of the estate, as will require the executors to give bond and security under the law.</p> <p>Third, that the Court erred in charging the jury, “that if more than one qualifies, each is authorized to discharge the usual functions of an executor, but all must join in executing a special trust, and I refer you to the will to ascertain whether it contains a special trust," whereas, the Court should have charged the jury, whether the will did, or did not, contain any special trusts, thatbeing a question of law for the Court to decide, and not a question of fact to be referred to the jury.</p> <p>Fourth, that the Court erred in not granting a new trial, upon the ground, that the verdict of the jury was strongly and decidedly against the weight of the evidence, as to the mismanagement of the estate by the executors.</p>

¡Scaling Ordinance. Motion for new trial. Decided by Judge Eobinsoh. Morgan Superior Court. September Term, 1868. Pligh sued McHugh upon a promissory note for $1093 95, dated 3d of March, 1863, and due the 25th of December then next.

Decided by Judge Cole. Bibb Superior Court. November Term, 1867. Solomon brought complaint on a promissory note against Lochrane. The plea was the general issue. On the trial, Solomon read in evidence his note, and closed. It was made in Atlanta, 6th of October, 1858, by Lochrane to Solomon, or bearer, for $1,000 00, payable sixty days after its date, at the agency of The Georgia Railroad Bank, in said city.

Burglary. Motion for new trial. Decided by Judge Worrell. Muscogee Superior Court. May Term, 1868. James Martin and Paul Key, two negroes, were indicted for breaking and entering the store-house of James Bradford, in March, 1868, in the night time, with intent to steal therefrom, etc. They were tried and found guilty, with a recommendation, by the jury, that they be imprisoned in the penitentiary for life.

<p>Where the Court below ordered a garnishee to perfect an answer to which exceptions had been filed, and the garnishee neglected to answer until the garnishment was called, on the motion docket, at the next term after the order had been passed, and even then, though present in Court, insisted on leave to answer at an adjourned term, which the Court had determined to hold, and the Court permitted the plaintiff to enter a judgment against the garnishee :</p> <p>Held, That this Court will not control the discretion of the Judge below, in refusing, at the adjourned term, to set aside the judgment, and permit the garnishee to answer.</p>

Complaint. Statute of Limitations. Decided by Judge Hutchins. Hall Superior Court. September Term, 1867. This was complaint in favor of Martha B. Banks, against Moses Brian, as executor of U. Iv.

Equity. Trustees. Tried before Judge Green. Henry Superior Court. October Term, 1868.

<p>1. When a party did not enter an appeal within the time prescribed by law, and has otherwise been guilty of negligence, a new trial will not be granted on account of newly discovered evidence ; more especially when the evidence is cumulative, and one of the witnesses, of whom the discovery is alleged to have been made, gave evidence on the trial, and the other was a clerk of the party moving fo; the new trial, at the the time of the transaction, and the motion is not made more than twelve months after the rendition of judgment.</p> <p>2. Under the 6th section of the 11th article of the Constitution, motions for new trials, bills of review, or other proceeding, to vacate judgments, orders or decrees, made since the 19th of January, 1861, must be for fraud, illegality, or error of law. That section does not relieve one who was cast in his suit, or lost his rights by his own negligence.</p>

<p>Bill for direction. Order of distribution. Ademption. Decided by Judge Pope. Bartow Superior Court. October Term, 1868.</p> <p>John Clayton, Sr., of Bartow county, Georgia, made a will containing the following bequests :</p> <p>“Item 3d. I give and bequeath unto my wife, Agnes Clayton, absolutely, three negroes, to-wit: (naming them,) and $1,500 00 in money, to draw interest from the time of my death. I also give to her, my said wife, the house, kitchen, smoke-house, hen-house, garden, orchard, and the land the orchard is on, and enough land for turnip and potato patches, where I now reside, and fire-wood from off my land near Alatoona, for and during her naturnal life, and at her death, said houses and out-houses, garden, orchard, and the land the garden, houses and patches are on, to be sold, and the money to be equally divided between John Clayton and James K. Polk Clayton, two sons of a nephew of mine. But if my said wife should desire not to reside at said' house, and leave the same, or should relinquish her rights to the same for life, then I give and bequath to her, absolutely, the sum of $1,000 00, to be paid out of my estate. I also give and bequeath to my said wife, such part or parts of my household and kitchen furniture as she may desire and select for her own use, and should my wife leave said dwelling-house and other houses herein-before given her for life, with the garden, orchard, and patches mentioned, or relinquish her life-estate in the same, then said house, garden, etc., may be sold at any time, and must be sold with the farm lying near Alatoona, and connected with the said houses, if the houses, garden, etc., are left or relinquished in time to be sold with the land.</p> <p>“ Item 4. I give and bequeath unto Charles Collier Clayton, a son of my nephew, the plantation lying on- Alatoona creek, in the county of Cobb, in said State, which plantation I purchased from William and James McEver, also the following slaves, (naming twelve slaves,) also one horse, one mule, six cows, one wagon, and the plantation-tools now on said plantation, or that may be on it at the time of my death. (This item also gave to him two other old slaves, with request that he take care of them.)”</p> <p>(Item 5 was a bequest of two slaves to one Letty Crow.) “Item 6. All my plantation and land lying near Alatoona, in Bartow county, (except as before provided,) and all the remainder of the negro slaves, and all my other horses, mules, cows, hogs, plantation-tools, wagons, carts, household and kitchen furniture, (except as before bequeathed,) and all other property I have or may have at the time of my death, I wish sold by my executor, at public out-cry, either for cash or for credit,- and either with or without an order of the Court of Ordinary, as my executor may think best, and the money arising from the sale of the land, after paying the expenses of selling, commissions, etc., to be equally divided between the said John Clayton and James K. Polk Clayton, share and share alike, and the money arising from the sale of the last mentioned negroes, and all other property, and all money collected that may be due and owing to me at the time of my death, or that I may have on hand at the time of my death, after paying the specific legacies and necessary expenses of administration, and all that may arise from sale of any other property I may own at the time of my death, either real, personal or mixed, I give and bequeath unto the children of my deceased sister, Elizabeth Logan, who died in the State of Alabama, and to the children of my deceased brother, Charles C. Clayton, who died in the State of Mississippi, share and share alike, each child to have an equal share, and if any of my said nieces or nephews should now be dead, or should be dead at the time of my death, leaving a child or children living, then said child or children are to take and receive the share his or their mother or father would have received, if living. “Item 7th. The legacy herein given to said wife is intended to be in lieu of any dower in and to any real estate or land I may own at the time of my death.”</p> <p>(Item 8th gave everything which he might acquire, and which was not disposed of by said will, to said nephews and nieces mentioned in the -6th item.) “Item 9th. I hereby nominate and appoint Warren Akin sole executor of this my will, and in addition to the usual commissions at law, I give and bequeath to him one thousand dollars as a full compensation for any extra trouble he may have in executing this my will, and he is in no event chai’gable for interest on money he may have in hand, unless he refuses or fails to pay it over to the person entitled thereto, when he is legally and properly called on for it by the person so entitled to it.”</p> <p>In September, 1862, when this will was made, John Clayton, Sr., owned much personal property, which was afterwards lost or destroyed by the war. He died on or about the sixth day of November, 1864. Akin proved the will and qualified as the executor. Agnes Clayton, the wife of testator, relinquished all her rights to the life-estate given to her by the 3d item of said will, and selected and received the furniture given her in said will, and elected to take her legacies, and relinquish her right of dower. James K. Polk Clayton died on the 11th of August, 1864, and Charles Collier Clayton became his administrator. Akin sold all the personalty, except promissory notes and other evidences of debt, had rented out the land mentioned in said 6th item, and the houses on the land at Alatoona, and offered to sell some corn which was made in 1865, by the tenants, as rent-corn, on the land mentioned in said 4th item, as given to Charles Collier Clayton, and offered to rent out said land for 1866, but Charles Collier Clayton claimed the corn and the land, though he had ho title to the land, except as such legacy, and to that the executor had not assented.</p> <p>To pay Agnes Clayton said $2,500 00 and interest, and said $1,000 00 to Akin, for extra trouble in executing said will, the demands against the estate, if all of them are established, and all the expenses of executing said will, will require over $5,000 00; and all the personal effects and assets of said estate, debts due and demands, the rents of the Alatoona lands and houses for 1866, and the estate, except the lands devised to Charles Collier Clayton in said 4th item, and the land required to be sold and its proceeds to be divided between John Clayton, Jr. and James K. Polk Clayton, as mentioned in said 6th item, will not amount to more than about $2,000 00. Therefore, it is absolutely necessary to resort to the lands mentioned in said 4th and 6th items of the will, to pay the expenses of the administration, the debts of the estate, and to pay Agnes'Clayton $2,500 00 and interest ; and if the legacies mentioned in said 4th and 6th items are specific legacies, then they must abate, in order to make such payments. The value of said rent-corn and the rental of said land, (worth say $500 00,) ought also to be applied to the payment of said debts, etc. Said bequests to Agnes Clayton having been taken by her in lieu of dower, should not abate. Charles Collier Clayton claims that the land bequeathed to him in said 4th item, and the corn made thereon since the death of testator, belongs to himself, and that neither is subject to the payment of the expenses of administration or said debts, until the land mentioned in said 6th item and the residue of the estate is first exhausted.</p> <p>"With an averment of the foregoing facts and views as to the law applicable to them, Akin, as executor of said John Clayton, Sr., filed his bill for direction against said Agnes, said John Clayton, Jr. and Charles Collier Clayton, individually, and as administrator of said James K. Polk Clayton, praying the judgment of the Court upon the following questions :</p> <p>1st. Has the legacy of-James K. Polk Clayton lapsed? And if so, how shall it be disposed of?</p> <p>2d. Is the legacy to John Clayton, Jr., and to James K. Polk Clayton, in said 6th item, a special legacy, and does it stand on the same footing with the legacy to Charles Collier Clayton, and must each be abated, pro rata, to pay the debts . of the estate, the expenses of administration, and the bequests to Agnes Clayton?</p> <p>3d. Is Agnes Clayton’s an ordinary specific legacy, and must it be abated, pro rata, with other specific legacies ?</p> <p>4th. Is not the coin, grown on the land devised to Charles Collier Clayton, in 1865, and for the rent of the land, for 1866, subject to the payment of said debts and expenses?</p> <p>He prayed for general relief, for a specific decree against Charles Collier Clayton for the value of said corn, and that said defendants should answer touching said averments.</p> <p>The main facts of the bill were not denied. But John Collier Clayton answered that he went into possession of the farm bequeathed to him by said 4th item, under the following agreement, viz: In the spring of 1863, testator told him that he had given to him that farm, which was then in possession of a tenant under a lease; that testator said, “ I give you 'possession of it at once, you paying said tenant a reasonable price for the balance of the term for which he had leased the farm ;” that he then paid the tenant $600 00 for said unexpired term, and went at once into possession under said agreement, and had ever since so remained in possession thereof by himself or tenants, and he claimed it and the corn, as averred in the bill. He contended that that legacy was adeemed.</p> <p>Agnes Clayton also answered the bill, admitting the averments, and that Akin, as exeutor, had paid her $300 00, her year’s support, and $600 00 of her money legacy, but she contended that her legacy, being in lieu of a relinquished dower, should not abate.</p> <p>On the trial a witness testified, that soon after John Clayton, Sr., made his will, he requested the witness to tell Charles Collier Clayton that he had given him said farm; that the witness did tell him so, and Charles Collier Clayton bought out the tenant, paying him several hundred dollars, and took possession, which was approved of by the testator, and the testator ever afterward spoke of it as the property of Charles Collier Clayton.</p> <p>"Warben Akin testified, giving a detailed statement of judgments held by him in favor of testator^ stating that he had notice of many claims against the estate, some of which were in judgment; that he hoped to get rid of some of these claims, but that if they all had to be paid, it would be impossible for the personal assets to pay the debts and Agnes Clayton’s year’s support, $300 00, and her legacy of $2500 00, and the $1000 00 due to himself, and the other expenses of administration, even though he might collect all the judgmerits in favor of the testator, and use one-half of the proceeds of the land devised to John Clayton, Jr., and James K. Polk Clayton. He explained the probabilities of collecting and of having to pay the claims pro and con, showing that the payment of the debts, without a resort to the legacies, was at least doubtful. He also testified that when he sold certain land of testator, he did it when there was a great demand for land, and after extensive advertisement.</p> <p>As to Charles Collier Clayton, Akin testified, that he knew he ought not to take that land, if he could avoid it, because he knew that Charles Collier Clayton was testator’s favorite, and that testator wished him to have the land. As to his own claim, he testified that testator applied to him during Court to write his will, and wished him to act as executor; that he declined saying to testator that in his (Akin’s) opinion, as a general rule, executors who actpd honestly and fairly were not paid for their services, and for that reason, he had never been an executor, administrator, or guardian, and would not voluntarily place himself in a position where he might be tempted to do wrong, in order to get compensation for his services; after some conversation, testator proposed to give him $1,000 00, besides the regular commissions, as a compensation for all labor and trouble which he might have in executing the will; to this, Akin agreed, wrote the will, read it over to the testator and the witnesses, and it was executed. He said he would not have consented to act as executor, nor have qualified as such, but for said $1,000 00 ; that he had already attended to a claim case for the estate; had filed the bill in this case, and had never employed any counsel for the estate, except that he had retained Judge Walker at this trial, and had put some notes out for collection, when he could not attend to them in person. On the trial, Charles Collier Clayton offered to testify as to said gift of the farm to himself, but the Court held him incompetent. He also offered to show, as a witness, that Akin had sold certain land of the estate, when it was unnecessary, and for less than it was worth, and the Court held* that that was irrelevant. He offered to show that the debts due to the estate were largely in excess of those clue by it. The Court rejected said testimony. After argument had, the Court instructed the jury how to find, and they accordingly found a verdict, and there was a decree as follows :</p> <p>“ 1st. That the $1,000 00 to Aikin was a part of the expenses of administration, (but that this finding was not to include creditors, not parties to this bill, as to that $1,000 00).</p> <p>2d. That the $1,000 00 due Agnes Clayton, in lieu of dower, is a debt of the highest dignity, and with the $300 00 allowed her as her year’s support, should be paid before any other debt or legacy, (the $900 00 already paid to her of course to be deducted).</p> <p>3d. The $1,500 00 willed to her is a general money legacy, and should not be paid till all the specific legacies are satisfied.</p> <p>4th. That the proceeds of the land near Alatoona, where testator lived and died,, was a specific legacy to James K. Polk Clayton and John Clayton, but that, inasmuch as Jas. K. Polk Clayton died without issue, before testator died, said legacy lapsed, and was assets in the hands of the executor, and should be paid to the widow on account of the $1,300 00 due her, with interest, less said $900 00.</p> <p>5th. That, after paying the widow, the next payment should be the expenses of administration, including the $1,000 00 to Aikin, and then the other debts due from said estate should be paid.</p> <p>6th. To make these payments, that the residuum of the estate, including said lapsed legacy, be first used, and if that was insufficient, then the general legacies, say said $1,500 00 of the widow, and if that was not sufficient, then said legacies to John Clayton, Jr., and Charles Collier Clayton, pro rata, and that the cost of this proceeding be paid as part of the expenses of administration.</p> <p>7th. That Charles Collier Clayton has no title to said farm, except that derived from the will, and none by the pretended gift, and that he pay $575 00, and interest, for rent of the farm for 1865 and 1866, and this to be taken, if necessary, to pay the debts, before resorting to said farm itself, or to the specific legacy of John Clayton, Jr.</p> <p>The verdict was signed by one who was not of the jury which tried the cause. This happened in this way: There being no fact in dispute, the argument was had as to the law of the cause, and when the Judge .pronounced his opinions, time was given to draw up the decree, and when it was ready, the Judge instructed the acting foreman of the jury, then in the box, to sign the verdict, the Court understanding that the counsel all consented thereto.</p> <p>Charles Collier Clayton assigns that said decree is erroneous, because the verdict was so signed; because of the 1st and 5th items of the decree, classing Akin’s $1,000 00 as expenses of administration; the finding that the land on Alatoona Creek, belonging to Charles Collier Clayton, is a specific legacy, and subject to the said debts, and liable to abatement pro rata with other specific legacies, and all of said 7th item of the decree; and the refusal to let him testify or to show that Akin sold said land unnecessarily and for toó little, and that the debts due. to the estate were in excess of those due by it, were all erroneous.</p> <p>Agnes Clayton assigned as error the finding that her $1,500 00 was a general money legacy, and not to he paid till after the debts and specific legacies were satisfied; that the devise of the Alatoona land to Charles Collier Clayton to the land to John Clayton, Jr., were specific legacies, and to be enjoyed in preference to her said provisions in lieu of dower.</p> <p>Thits were made the foregoing two cases, which below and here were treated as one.</p>

Case. Motion for new trial. Decided by Judge Flemming. Chatham Superior Court. May Term, 1267- Miles D. Cullens and his wife brought an action on the case against said corporation, to recover damages, because said wife had been injured by falling into a hole or inequality in the pavement of the public market of said city.

<p>Scaling Ordinance. Motion for new trial. Decided by Judge J. M. Clark. LeeSuperior Court. September Term, 1868.</p> <p>This action was by the payees against the makers of the following paper:</p> <p>“$68,750 00. December, 1864.</p> <p>By the first day of January next, I promise W. D. Green, Philip West, E. W. Liggon, Elizabeth Whitrett, and P. S. Hall, or bearer, the sum of sixty-eight thousand seven hundred and fifty dollars, in Confederate (The word Confederate was crossed by lines as if it was intended to be stricken out — Reporter.) currency, and should the currency depreciate beyond its present value, it is to be estimated at is present value, and so paid.</p> <p>“JOHN JONES, by Willis A. Jones</p> <p>“W. A. JONES, Sec.</p> <p>“C. B. CALLOWAY, Sec.”</p> <p>Upon it were indorsed the following credits:</p> <p>‘‘Bec’d on the within note thirty-five thousand one hundred and ninety-seven 50-100 dollars. Dec. 20th, 1864. PHILIP WEST.”</p> <p>“Bec’d on the within note ($30,000 00) thirty thousand dollars. This the 25th day of February, 1865. PHILIP WEST. ’ ’</p> <p>The effort of defendants on the trial was to scale the same by the Ordinance of 1865.</p> <p>The plaintiffs read in evidence said paper, shewed by Philip West, that it was given between the first and the tenth of December, 1864, for a settlement of lands on Pa-' chitla creek, Calhoun county, Georgia, containing thirteen hundred and seventy-five acres, which was worth $10 00 or $12 00 per acre before the war, has been worth that much since, and at the time of trial, was worth, he supposed, $6 00 or $7 00 per acre; that said credits were for Confederate currency, paid to himself, the amounts being shewn by-the credits. Another witness, in behalf of plaintiffs, testified about as did West, as to the value of said land. Two of the defendants testified that said land was not then worth over $2 00 per acre; that the fencing ivas bad, etc., and that they would take that price for their part of it. With these agreed another witness. The defendants, besides the evidence aforesaid, shewed that the word “ Confederate ” was stricken out of the original paper, so that it should be payable in either State or Confederate currency, and that $1 00 in gold, was worth, in Confederate currency, $32 00 cn the 1st, $35 00 on the 15th, and $50 00 on the 30th of December, 1864, and $60 00 on the 1st, and $65 00 on the 15th of January, 1865, $50 00 on the 1st, and $46 00 on the 15th of February, 1865, and $55 00 on the 1st of March, 1865. The plaintiffs’ attorneys requested the Court to charge the jury thus: “ You will find out, from the proof, the value of the several sums of money paid on the note, on the day that the note was made, and deduct therefrom the face of the note, if there was a decline in the value of Confederate money between the several periods, in accordance with the contract expressed in the note.” And further, that they could not take the value of the land then, but make up their verdict on the basis of its value at the time the contract was made. The Court did not so charge, but charged:</p> <p>1st. The credits upon the note, are an absolute and full extinguishment of the debt, to the amount of the credits.</p> <p>2d. (Was a reiteration of first.)</p> <p>3d. If you believe the note was payable in Confederate money, you can, in determining the amount of the balance due, take either the value of the land for which it was given, or the value of the Confederate money. Either mode is open to you. You can add to your finding, if you think proper, the difference between gold and the present currency.</p> <p>' 4th. In coming to a conclusion, as to the mode of arriving at results, that is, whether you will make the land or the value of Confederate currency, the basis of your calculation, you can inquire as to the intention of the parties, as to the currency in which the same was to be paid. Either mode, the land or the currency, is open to you. The whole question is submitted to .your consideration, and you may consider the value of the land or.the currency at any time.</p> <p>The verdict was for $219 02, with interest from 25th of February, 1865, and costs of suit, against said defendants. Thereupon, plaintiffs moved for a new trial, averring that the Court erred in refusing to charge as requested, and in charging, as specified above, and that the verdict was contrary to the evidence, etc. The Court refused a new trial, and this is assigned as error.</p>

Relief-law. Demurrer. Decided by Judge J. M. Clark. Sumter Superior Court. October Term, 1868. Cutts & Johnson and James Stewart, on the 22d of January, 1861, gave their single bill or bond for $5,229 01, payable to the order of N. A. Hardee & Co., forty-five days after date, and also an agreement to pay expenses if suit had to be brought on it. Suit was brought thereon,- in March, 1861. One of the plaintiffs died, and the case proceeded in the name of the survivor.

<p>1. An agent for the sale of goods cannot, as against the owner, pledge or mortgage them to a third party, to secure advances made on his own account.</p> <p>2. To constitute a pledge or pawn, under the Code, there must be a deposit of the thing pawned, and this cannot be dispensed with by a written agreement, that the party making the pledge will be the bailee of the pawnee.</p> <p>3. When, in the submission of the Jaw and the facts of a case to the Judge, it was agreed that if the Judge should have any doubts upon a question of fact, he should submit it to a special jury, and on the trial there arose a.question of notice to a bank, and it was proven that the fact was advertised in two daily papers taken at the bank, was known to one of its directors, published in a large printed card and circulated among the business men of the community, and painted in large letters on the walls of the store in which the goods, about which the dispute arose, were kept:</p> <p>Held, That although the cashier and president of the bank, and one of the clerks, denied the notice, as witnesses, the Judge might well fail to have such doubts as would require him to call in the jury.</p>

Equity. Injunction. Demurrer. Decided by Judge Cole. Bibb Superior Court. June Term, 1868. On the 24th of February, 1856, the Macon Manufacturing Company, a corporation, bought of Wm. E. Carswell, of Wilkinson county, Georgia, two hundred and forty-eight bales of cotton, at the full market price, thirty-five cents per pound. They bought it to manufacture. They paid him $7,500 00 in cash.

Case. Motion for new trial. Decided by Judge Cole. Bibb Superior Court. November Term, 1867. Arthur W. Johnson was a passenger upon the night passenger train from Macon to Atlanta, over the railroad of said company. That train was followed by a freight train.

Ejectment. Statute of Limitations. Prescription. Decided by Judge Worrill. Chattahoochee Superior Court. September Term, 1868. In 1860, ejectment was brought by John Doe, upon the demise of Roily Hopper against Richard Roe, casual ejector, and John Pollard, tenant in possession. On the 24th of September, 1867, the declaration was amended by laying a new demise in the name of Edmond B. Tait, as executor of the last will and testament of Roily Hopper, deceased.

<p>Equity. New-trial granted. By Judge Gibsoh. Richmond Superior Court. January Term, 1868.</p> <p>The bill of Joseph J. Pearce against E. M. Bruce & Co. and James Pearce, contained the following, in substance: In February, 1865, complainant was a warehouse and commission merchant in Augusta, Ga., and had stored in his warehouse a large quantity of cotton, belonging to divers persons, to whom he had given his warehouse receipts for the same. On the tenth day of that month, the military authorities, under the pretense of public necessity, without complainant’s consent, took all of the cotton from the warehouse, and about six hundred bales of it were left on the bank of the river. During said month there was a freshet in the river; five hundred and thirty bales of said cotton were rescued and removed from the river bank to the warehouse of Flemming & Wheless, in said city. The military authority assisted in this removal. Afterwards, James Pearce (and others unknown) fraudulently, etc., procured the following order from C. H. Grosvenor, Brevet Brig. General and Provost Marshal General, of the United States, in said city:</p> <p>HEADQUARTERS DEPARTMENT OF GEORGIA, Office of the Peovost Makshal Genekal, Augusta, Ga., August 25, 1865.</p> <p>Messrs. Flemming & Wheless, warehousemen: You will forthwith deliver to James Pearce one hundred and thirty (130) bales of cotton, more or less, stored in your warehouse by Wm. A. Matthews, said Pearce paying your warehouse charges for storage.</p> <p>By command of Major General Steadman.</p> <p>O. H. GROSVENOR, Brevet Brig. Gen. and P. M. G.</p> <p>(In pencil across the face) “Shipping mark W. E.”</p> <p>This Wm. A. Matthews was a negro, and, when said cotton was taken to the warehouse of Flemming & Wheless, was a slave, in their employment, and had no right, title or interest, in the cotton. Afterwards, on the 28th of August, 1865,' said James Pearce procured another order from Grosvenor, the caption and signature of which is as above, the body of which was in these words :</p> <p>“You will deliver the cotton to Mr. Pearce as directed, it appearing that it is not 'Confederate or abandoned.’ The military will sustain you.”</p> <p>Armed with these orders, James Pearce and his confederates arranged with Elisha M. Bruce and Thos. L. Morgan, factors, commission merchants, and cotton agents of said city, under the firm name and style of E. M. Bruce & Co., for the delivery and shipment of said cotton. E. M. Bruce & Co., under and by force of said orders, received from Flemming & Wheless one hundred and fifteen bales of said cotton, (the marks of which had become illegible or obliterated by long storage and exposure to the weather,) worth $25,000 00, shipped the same out of this State, and sold it on account of . James Pearce and his confederates. Said Bruce and said Morgan knew, when they got the cotton and shipped it, that it was not “Confederate .or abandoned” cotton; that said James Pearce had no legal or eqfiitable title thereto, that said Matthews was a negro, and his pretended claim invalid, and that said orders were illegal, unjust, and oppressive. Subsequently, E. M. Bruce & Co. advanced $8,000 00, or other sum, on said cotton, to said James Pearce and Grosvenor and their confederates.</p> <p>The complainant having such special property in said cotton, and fearing that he might be held accountable therefor to those holding his receipts, and having no other adequate redress, prayed that E. M. Bruce & Co. should be enjoined from making any further advances on said cotton, or selling the same, or paying over the proceeds thereof to said James Pearce, or his associates, and that they and James Pearce, and their . confederates, should account for damages, and for the value of said cotton, to the complainant, etc.</p> <p>The injunction was granted by Judge Hook. Bruce & Morgan were served; as to James Pearce, there was a return of non est. Bruce & Morgan filed their joint answer, in substance stating that they knew nothing about the facts stated, except that James Pearce, about the first of September, 1865, employed them to ship one hundred and twelve bales of cotton, as his property, on account of James Pearce & Co., to Watts, Crane & Co., of New York; that he delivered to their shipping -clerk orders on Flemming & Wheless for the cotton, and procured the permission of the military for its shipment; (military permission for such purpose being then absolutely necessary); that they advanced to James Pearce about $10,000 00, but never advanced anything to any one else; that they had made advances of $2,500 00 for expenses of shipping said cotton, and that the only interest they' had, or ever had had, in the cotton, was their claim on the same for such advances and expenses. They said they believed that the cotton had been shipped from New York to Liverpool, and perhaps it was sold. They denied all fraud and combination, or knowledge of any thing of the kind. When this answer was filed, did not appear, but it was sworn to in April, 1866. In January, 1868, Morgan filed an amendment to his answer, averring that, if the alleged tort was true, it was the act of Bruce only, without direct or indirect co-operation by him; that since said answer was filed, Bruce had died, and “ his death had been suggested to this Courtthat no representative of Bruce had been made a party, and that the complainant could not proceed without such representative was made a party. The Court decided that the cause could proceed against the survivors. At the same time, he further amended, by answering that E. M. Bruce & Co. was composed of himself and Eli M. Bruce, and Elisha M. Bruce was the party sued and served; that he did not know this when the answer was filed, and now plead that his partner, Eli M.-Bruce, was never served.</p> <p>'When complainants’ solicitors were notified of this, they moved to amend, th§ record by substituting Eli for Elisha, in the name of Bruce, wherever it occurred. The Court allowed this amendment over the objection of the defendants’ solicitors. The case was tried, and resulted in a verdict for the complainant for $19,444 34, with interest from 28th August, 1865. What the charge of the Court was does not appear, except as stated in the motion for a new trial. The defendants moved for a new trial, on the grounds that the Court erred,</p> <p>1st. In holding that the cause could proceed without Bruce’s representative being a party.</p> <p>2d. In holding that the owners of the cotton were not necessary parties to the bill.</p> <p>3d. In charging the jury, “If a party assert the right of another over property, after notice from the owner, it will be evidence of conversion.”</p> <p>4th, 5th, 6th. Because the verdict was against the law and evidence, for reasons therein stated.</p> <p>7th. Because the verdict was contrary to the evidence. Because, if any such tort or wrong, as that charged by the bill, was committed by Bruce, it was before Morgan was his partner, and, therefore, no recovery could be had against Morgan.</p> <p>8th. For the same reason, there could be no recovery against Morgan, as surviving partner.</p> <p>9th and 10th. Even if he were a partner, the evidence did not connect him.with the tort, and, therefore, the verdict was wrong.</p> <p>11th. Because of certain newly discovered evidence set out in the record.</p> <p>This motion was amended by adding other grounds for a new trial, as follows:</p> <p>' 1st. It was necessary that James Pearce should be served, in order to do complete justice.</p> <p>2d. Because no allowance was made by the jury for said advances and expenses.</p> <p>3d. Because complainant, having renounced all claim on the cotton, he could not recover.</p> <p>4th. Because no damage to complainant was shown by the evidence.</p> <p>5th. Because Bruce’s death was not suggested upon the record, and no proceeding, in said case, could be had until such suggestion was made.</p> <p>It appeared that Bruce’s death had been suggested on the Judge’s docket, but not on the minutes. Complainants’ solicitors asked'to put it upon the minutes, nunc, pro tu/nc, which the Court then allowed, over the objection of defendants’ solicitors.</p> <p>The Court granted a new trial upon the 7th, 8th, 9th, and 10th grounds, overruling the other grounds.</p> <p>Complainants’ solicitors brought the cause up for review, assigning for error 1st, 2d, 3d, 4th, and 5th, that the Court erred in granting the new trial, for any of the reasons stated in said 7th, 8th, 9th, and 10th grounds of the motion.</p> <p>6th. In not putting the grant of the new trial upon condition, that complainants abate or write off, from said verdict, the part not sustained by sufficient evidence.</p> <p>7th. In granting a new trial, as to the whole case, and not confining it to the question of said advances, diminishing the recovery.</p> <p>8th. In holding that these advances, or any part of them, ought to be allowed to said survivor.</p> <p>9th. In holding that it was not sufficiently shewn that Morgan & Bruce were partners prior to 1st of September, 1865, and that, therefore, Morgan was not liable.</p> <p>And in the same bill of exceptions, the defendant’s solicitors brought up, for review, the decision as to said 1st, 2d, 3d, 4th, 5th, 6th, and 11th grounds, for new trial, and 1st, 3d, 4th, and 5th grounds in the amended motion for new trial, and upon the ground that the Court erred in allowing Bruce’s death suggested on the minutes of the Court at the time it was done.</p>

<p>Equity. Transfer of mortgage. Tried before James M. Clark. Mitchell Superior Court. November Term, 1868.</p> <p>On the 1st of August, 1853, three men, named Faircloth, made and delivered to James Mansfield, their two promissory notes, for $1,000 00 each, payable to Mansfield or bearer, with interest from date, due on the 1st of January, 1855, and the 1st of January,'1856, respectively. At the same time, they delivered to him their mortgage on certain lands, to secure the payment of said .notes. The mortgage was duly recorded. On the 31st of August, 1853, Mansfield transferred said mortgage to William H. Watson, without recourse on Mansfield. On the 1st of May, 1854, he also delivered the note due on the 1st of January, 1856, and a paper in the following words, to one Jno. N. Pate :</p> <p>“ Georgia, Dougherty, County.</p> <p>“ Whereas, I have this day (sold) to Jesse Pate, a promissory note on Wm. M. Faircloth, David Faircloth and Riley Faircloth, for the sum of one thousand dollars, dated the 1st of August, 1858, and due on the first of January, 1856, payable to me, or bearer, which is secured to me by mortgage on” (here follows a description of the land) “which said mortgage I do hereby agree to have transferred to said Pate, before said note falls due, for the purpose of securing the payment of said note to said Pate, his heirs or assigns.</p> <p>“ Witness, my hand and seal, this 1st May, 1854.</p> <p>JAMES MANSFIELD, [l. s.]/’</p> <p>On the 6th of January, 1855, Watson re-delivered said first note, and re-conveyed said mortgage to said Mansfield. He then sued the makers thereon, obtained his judgment on the 15(.h of December, 1855, had the mortgaged premises levied on by thefi. fa. founded on said common law judgment, and the same was sold in March, 1856, to one Cheever, at sheriff’s sale, for §1135 00. The fi. fa. was then paid off, (the balance of the fund being paid to the defendants in fi. fa.)</p> <p>In 1858, Roberts brought his action against Mansfield, averring said facts, that he was the assignee of Jesse Pate, bona fide, for value, and before said second note and agreement was due, and without knowledge of the first note, or of anything to make him doubt the perfect security of said second note, that the makers were insolvent, and that said Mansfield, by selling said land, as aforesaid, and especially by giving notice at the sale, that the purchaser would get an unencumbered title, had caused him to lose said demand, and praying judgment against Mansfield, for the amount of said second note. Thereupon, Mansfield filed his bill, averring that he transferred to John N. Pate, (who, by mistake, was called Jesse Pate in the contract,) as agent for one Treadwell, said note, and delivered to him said promise to transfer said mortgage, in consideration that Pate, as such agent, would credit a note which Treadwéll had against Mansfield with $125 00, and had given him a note on Treadwell for $330 00, due 1st October, 1854, which was to be discharged by three other wagons; that, at the date of the trade with Pate, he informed him of the first note being transferred to Watson, and that he had transferred the mortgage to Watson to secure said note, and that for that reason he could not then transfer it to him; that it was expressly understood that the security of the first note was a right prior to the security of the second, and was not to be injuriously affected by the-transfer to Pate, but that he was to buy back the mortgage from Watson, and hold it first for the security of the first note, and then transfer it for the security of the other.</p> <p>He stated that Treadwell did not give him said credit of $125 00, but sold his note before it was due, and he had been compelled to pay it; that, honestly intending to carry out his contract, on the 17th of December, 1855, having, at great expense, gotten back the mortgage, he offered to transfer the mortgage to Treadwell, and tendered such a transfer to R. F. Lyon, attorney-at-law for said Roberts; that he could not at law set up this defense against Roberts, nor then prove anything inconsistent with the writing aforesaid, and yet he ought to be paid said $125 00 and said $330 00 notes, with the interest on each, and he prayed injunction against Roberts’s said action till said writing was reformed, so as to carry out the real agreement, etc., and that Treadwell and Roberts should answer touching said premises. 'The injunction was granted, and the bill was served on Roberts and Treadwell. Treadwell answered, admitting that Pate took the note and transfer, as his agent, and gave a note on him for $330 00, as the difference between the wagons, etc., sold, and the Faircloth note, but he never heard from Pate anything else as to said trade, nor knew anything else about it, except as to said $330 00 note, and what appeared in the said written transfer; that he did sell Mansfield’s note without having put any credit on it, but knew not that any was to have been put on it till Pate told him so, long after he had sold it, and it had been sued on; he said that Pate was insolvent and gone; he himself was insolvent now, but would have paid said $330 00 note, had it been presented when he was good ; that he has no interest directly or indire„ctly, in the Roberts action; that in a few days after Pate had delivered them to him, he sold to Roberts said note and transfer for full value, in a due course of trade, and without knowledge or suspicion by either that there was any defense to the paper.</p> <p>Roberts answered, saying he knew naught of the matters aforesaid, except that before said note was due, and with the full belief that it was good, he gave Treadwell a negro woman, worth $650 00, and the balance in cash, for said note and agreement. The parties went to trial on this common law action and the bill in equity together. Plaintiff read, in evidence, the note and writing which were taken by Pate, the original mortgage and said transfer of 31st August, 1853, and retransfer of 6th January, 1855, and said first note' attached to the mortgage. There was on the mortgage, also, a transfer, as follows:</p> <p>“For value received, I do hereby transfer and assign the within mortgage deed unto H. Treadwell, for the purpose of securing the last promissory note therein specified. I retain my right to hold said mortgage to secure the payment of the first note therein described, which said transfer is made without any recourse or liability on myself, my heirs and assigns, this 17th December, 1855.</p> <p>JAMES MANSFIELD, [l. s.]</p> <p>This last transfer plaintiff’s attorneys did not read in evidence. Plaintiff also read, in evidence, said common law action, and the fi. fa. showing said sale and disposition of the proceeds of said land. Plaintiff’s attorneys also read, in evidence, an agreed state of facts, by which it was admitted that this was the mortgaged land; that at and before said sale, R. F. Lyon stated that, as attorney of James T. Roberts, he held the agreement of Mansfield to transfer said mortgage to secure said $1,000 00 note, before the first of January last, before the sale, and that Mansfield, on demand, had refused to make the transfer; that David A. Vason then stated, that Mansfield had agreed to transfer the mortgage, as he understood and made the contract, but that Lyon had refused to take it, because it was not in compliance with the written agreement to tranfer; .that thisy?. fa. was founded upon the first note specified in the mortgage, and that he was satisfied that the purchaser, at said sale, would get a perfect title and get the land free from said mortgage. In doing this, Vason was representing said Watson and said Mansfield, (Watson having about $700 00 in said fi. fa., and the balance Of it belonging to Mansfield,) and was then, also, attorney for Mansfield in this litigation; Vason bid for the land, and ran it up to the amount of the fi. far, it brought more, and the balance was paid to the defendants in fi. fa., under an order of Court. Lyon did not state that he was authorized to waive his lien, but the contrary; nor did he do so; he only stated that he was employed to sue Mansfield for the money, for refusing to transfer the mortgage, as he had 'agreed. Vason may have created the impression that the title would be good to the purchaser under the sale, but to those to whom he gave his reasons, he stated that Lyon’s refusal of the proffered transfer was a waiver of his client’s right to control the mortgage against the land after this sale, (he meant said transfer of 17th December, 1855); that Lyon was the attorney of Treadwell, and said offer was made after Lyon, as attorney for Roberts, had demanded the transfer to him, according to the written contract; and further, that the Faircloths were insolvent, and the only security for the note was the land.</p> <p>' R. F. Lyon testified that he received said note and agreement of Mansfield from Roberts, for collection, and called on Mansfield for the transfer of the mortgage. Mansfield refused to make such a transfer as the writing called for, but, soon afterwards, tendered the one dated 17th December, 1855, which Lyon would not take, because it was not in conformity to the writing. Said John 1ST. Pate, by interrogatories, showed that the trade and understanding between him and Mansfield was in substance as set out in Mansfield’s bill, and further, that he told Treadwell, as to the $125 00 credit, but the note on which it was to have been placed, having been traded off, and Treadwell having directed him to get up the note, and make the credit, he failed to do so during the two months that he stayed with Treadwell.</p> <p>Mansfield testified that he offered to Lyon said transfer of 17th December, 1855, on the same day of Lyon’s demand, and just after the demand, which was made on that day. The defendant read in evidence said transfer.</p> <p>The evidence being closed, the Court charged the jury. After stating the case, that they might understand it fully, he proceeded as follows: “ Whatever may have been the agreement or understanding between Mansfield and Pate, or Tread-well, differing from the written agreement, said agreemefit or understanding does not bind Roberts, unless notice is brought home to him. The mortgage was transferred to Roberts by operation of law; was an incident to, and followed, the note in the hands of the purchaser. The law having vested the right to the mortgage in Roberts, he had the legal right to foreclose the same, or otherwise assert his lien on the mortgage property. It was his duty, on the day of sale, to have given notice to purchasers of his mortgage lien ; if he gave notice, then the lien continued, and followed the property in the hands of the purchaser. If he failed to give notice, then he is in laches, he loses his lien, and the purchaser gets a clear title.</p> <p>“ The defendant is bound by his contract, according to its terms, and while the law transfers the mortgage lien to Roberts, yet, the defendant is bound to fulfill his contract, and, if any damage resulted to plaintiff by his failure to do so, he is liable for the damage. If the failure or refusal caused the plaintiff to lose his lien, or otherwise his debt on the Eaircloths, then the measure of damages is the note and interest. But if the failure or refusal caused no special damage, and the plaintiff was in as good condition after as before refusal, then he can not recover, unless he shows some special, actual, damage.”</p> <p>The verdict was for the defendant. The plaintiff in error says the whole charge is erroneous, and especially that part of it as to the transfer of the mortgage to Roberts by operation of law.</p>

Priority of mortgage liens. Decided by Judge Gibson. Richmond Superior Court. June Term, 1868. ' The house and lot of Thomas M. Johnson was sold by the sheriff for $6,800 00. He applied $4,111 00 to costs and a mortgage in favor of Clayton.

Assumpsit. Confederate Currency. Tried before Judge Gibson. Eichmond Superior Court. June Term, 1868. The facts of 3STo. 1 were these: Gould sued'Miller upon the following promissory note: $3,000 00, Augusta, 12th July, 1862. Three years after date, we jointly and severally promise to pay A. Gould, or order, three thousand dollar's, with interest’after one year, payable every six months, for value received. JAMES PISH, JOÑA. M. MILLER.

<p>Murder. Motion for new trial. Decided by Judge Parrott. Bartow Superior Court. September Term, 1868.</p> <p>John Long, as principal, and John C. Duff, as accessory, were indicted for murdering Abraham B. Echols, in Gordon county, Georgia, on the 16th of October, 1866. The bill of indictment was silent as to where they resided. Because a jury could not be had in Gordon county, in April, 1868, the Judge, on motion of prisoner, ordered that said case should be tried in Bartow county. On the 21st of September, 1868, the case was called, and the defendant’s attorneys stated that they intended pleading insanity, and asked the Judge for an officer to send for witnesses; but he said it would be time enough when the issue was made. On the 24th of September, 1868, the case was called for trial. When Long was arraigned his attorneys wished to plead nothing but insanity; the Court required a plea of “guilty” or “ not guilty,” and thereupon they plead “ not guilty ” and insanity at the time of the killing. Simultaneously Long moved for a continuance upon the grounds: 1st. That Mcklin was his attorney, on whom he mostly relied, atod whom he had partly paid; that he was absent, as he believed, because he had not been informed that said case had been transferred from Gordon county; that Long himself did not know of this transfer till the 22d instant, when the officer went for him to Milledgeville, Baldwin county, where he had been confined since the finding of the bill of indictment ; that he had had no opportunity of corresponding with Mcklin ; that he believed Mcklin believed said case.would be tried in Murray or Dade county, he particularly having exerted his influence in having the venue changed; that he was satisfied neither Nicklin nor his other counsel knew that this case would be called in that Court till the week before or the week before that. 2d. Because of the absence of John Plays, T. L. Cox, R. B. Hackney, William Thompson, E. J. Kiker, William Black, Aronstead Abbott, V. Carter, and J. C. Eain, (of Gordon county, he believed;) that he had ordered subpceanas for them, and believed they had been served ; that they were not absent by his consent or procurement, and that he expected to get their testimony next term; that he expected to prove by said witnesses that when Echols was killed, Echols was approaching him (Long) with a pistol in hand and another man by his side with a gun in his hand, and both in the act of shooting at Long, and expected to show such acts on the part of deceased as would make out a complete justification for Long; that he positively knew that three or more of said witnesses were present at the time, knew all the facts, and would be compelled to testify as aforesaid, and finally, that this motion was not made for delay, but to obtain a fair trial.</p> <p>The Judge asked what facts the defendant expected to show by each of said witnesses, but his counsel would not change the form of the motion. The continuance was not granted, but for some cause, unexplained by the record, the case did not proceed then.</p> <p>The case was again called on the 28th of September, 1868. The attorneys reiterated his showing for a continuance as to Nicklin’s absence, and asked a continuance for the further reasons of the absence of J. N. Carter, of Hall county, T. L. Cox, of Whitfield county, who had been subpoenaed, and of Wm. Lewis, of Pickens or Gilmer county, whose name he had just ascertained, by whom he would prove the facts aforesaid as to Echols approaching him with a pistol at the time of the killing. The formal parts of the showing were all correct. His attorneys introduced John Hays to prove that Lewis and Cox were present at the killing, and Hays stated that there were three other persons present in Court who were present at the killing. The Court refused to allow the continuance. A special jury was empannelled to try the issue of insanity.</p> <p>On the 29th of September, 1868, they again moved, to continue, submitting as a showing an affidavit by Long that he was not ready to proceed with the issue of insanity because of the absence of Campbell Wallace and twenty-seven other witnesses, (naming them,) of Walker county, Georgia, by whom he expected to prove that, at the time of the killing, Long was laboring under insanity or mental aberration, and that he had been, for some time previously, so afflicted, and because of the absence of said Lewis, said Cox, and said Carter, by whom he expected to prove the same facts. With this was an affidavit by Jesse A. Glenn, one of Long’s attorneys, .stating that on the 21st of September, 1868, he had asked for an officer to send for these witnesses, having stated his intention to plead insanity as aforesaid, and that the Court would not then send, and that, at each calling of the case since, he had notified the Solicitor General of his intention to rely on said plea. The Court ordered the case to proceed. The defendant’s attorneys offered no testimony, nor would offer any. Thereupon, the Court ordered the plea of insanity stricken, and that the case should be tried under the plea of not guilty.</p> <p>The case was submitted to the jury, and a witness for the State was sworn and was about to be examined. Then Long’s attorneys moved to quash the indictment because the indictment was silent as to Long’s- residence; it wanted the words “ of the county and State aforesaid ” after the defendants’ names.</p> <p>The Court overruled the motion, holding that that averment was unnecessary.</p> <p>The testimony for the State was as follows:</p> <p>R. C. Book sworn said : I was present when deceased was killed, in October, 1866,1 think the 10th, in Gordon county; I first saw Long at Calhoun; he was in search of a horse on Wednesday evening; I and Mr. Echols went home from Court; I was easing supper and heard a noise in the lane; sent my son out to see; heard some one coming, and saw Long threatening to shoot my son, with pistol in hand; Long said he would shoot me if I came where he was ; he then got on his horse and galloped off between my house and Echols’; I know Long, and know it was the' same man with Duff, and that the horse Long had, there was a dispute about; Long rode off up the lane; he was bareheaded aud the horse was without a saddle; I was standing in the yard; he rode on back; deceased was feeding his hogs as Long rode back; Long called to deceased to come to him; deceased said he vould be there in one minute; deceased went to the porch, set his bucket down, turned back toward where Long was, and asked Long what he wanted; Long said he was hunting an horse thief; deceased asked Long what kind of an horse; Long said a gray horse, as well as I recollect; deceased asked who stole the horse; Long answered “Adair”; deceased said nothing more, that I heard; Mr. Cox asked Long if he were not the man who passed there a few minutes before; Long said he was not; Cox asked Long why he had no saddle, and why he was bareheaded; Long said he lost his hat while hunting this thief; Cox asked Long who were with him; he said two or three men were with him, and then fired at deceased and killed him; I remember nothing that was said, if anything was; Long then rode off and hallooed; Cox said, “follow him, gentlemen;” Long hallooed back and said, “come on and I will wait for you;” the pistol ball struck deceased just over the left eye, and the ball lodged in the back part of his head; I examined the wound; Long was about three feet from deceased when he shot; there was only deceased’s fence between them; deceased was on the side of the fence next to his house; the killing was between sunset and dark; deceased had been home some hour before he was killed; deceased was Clerk of the Superior Court; it was two hours, by the sun, when I and deceased went home; when the pistol fired deceased dropped back and fell; don’t suppose he moved after he was shot; Long went away, after the shooting, as fast as his horse could go; I saw Long several times between Monday and Wednesday; never saw the horse till Long, Duffy and King brought him in and were disputing about him; Long did the shooting; Cox was somewhere in the yard when Long came up; Miller was in the yard, between the house and the fence; Cox was by the side of the deceased when he was shot; Miller was on the left and Cox on the right of deceased when he was shot; I was a juryman, that week, in Gordon county; was in Court Monday, Tuesday and "Wednesday, and deceased was discharging his duty as Clerk; my house is some fifty yards from deceased’s; I was sworn on the com mitting' trial in this case; I swore then that deceased was about feeding his hogs; I was saddling my horse as Long came between deceased’s house and mine; I heard the conversation between Cox, Long and deceased; deceased was standing against the fence, and had his foot on it; the fence was some forty feet from deceased’s house; I am not positive whether it was Monday or Tuesday, when X first saw Duff; I served on the jury three days that week; was on the petit jury; I have had no conversation as to what I should swear in this case; I was some thirty feet from deceased wheu he was shot.</p> <p>William Miller sworn, said: I was with deceased when he was killed, not more than five feet from him; it was in Gordon county, Wednesday night, 10th October, 1866, between sun-down and dark; deceased was standing at his gap, in front of his dwelling-house, on the inside of the fence, about fifteen steps from his dwelling-house; I saw him when he went to the gap; he and I first went to the gap; we were going to feed the hogs, and were at the gap to pour in their slop ; I returned to set my bucket down, and returned to the piazza; I and deceased walked on in the direction of the gap; the man who shot deceased was sitting on his horse at the fence; deceased said to that man “ how do you do ?” the man said he was hunting a horse-thief; deceased asked him whom he suspected; he answered, “ a man named Adair;” “ very well,” said deceased; the man who shot deceased said, “hold on a minute or two, and I will assist you; ” a word or two passed, but nothing in anger, when that man drew his pistol and shot deceased down by the fence, not being over three feet from deceased when he shot him ; the man immediately-dashed off and brought a scream as he did so.</p> <p>I can not identify Long as the man who shot; the man was a stranger to me; he was on a gray horse; the horse was without a saddle, and the man bareheaded; deceased, and the man who shot him, did not converse more than fifteen minutes before deceased was shot; deceased fell to the ground at the crack of the gun; (I suppose the shot was with a pistol ;) the man instantly left, after the shooting, as fast as his horse could go; I went to deceased immediately; he never moved hand or foot, nor breathed, after he was shot; he was struck just over his left eye; I saw blood escaping from the ball-hole and from the ears; I think the bone of the skull, in the back part of the head, was broken; Mr. Cox and I were present when deceased was shot; Boon was near by, but did not see him when deceased was shot; Boon was not present at the shooting; no one but myself and Cox were present, so far as I know; I was at work for deceased; Cox Arent out of the house with deceased; Ave went out in the first place to feed the hogs.</p> <p>K. C. Boom re-introduced, said; When I first saw Long, lie Avas very drunk; deceased had no weapons-when he Avas killed, and was making no effort to hurt Long.</p> <p>William -Milleb re-introduced, said: I did not see deceased, Cox, or any one at deceased’s house, have any kind of Areapons; no angry Avords was said by deceased to prisoner in any way; they might have had arms without my knoAving it.</p> <p>J. W. Reaves sworn, said: I was not present when deceased was killed; I saw Avound right above left eye, made by a ball; it passed through the head and lodged against the skin on the opposite side; the skull was broken, back and front; I saw brains and blood escaping from the wound; I have seen Long before, saw him in Calhoun on the day before deceased Avas killed; saw Long'frequently during, that day; the first time I saiv him he Avas holding a horse owned by Mr. Duff, a gray or white horse; I don’t remember about the horse being saddled; the next time I saw him was the day after the killing, about two or three o’clock; Long was on the same horse, in the woods, about a mile to the left of Calhoun ; he was bareheaded, and the horse was without a saddle; Long, the prisoner, is the man I saw the. day of the killing; the whole county was in pursuit of him, because he was charged ' with killing deceased; it was from 1 to 10 or 12 o’clock, and perhaps a little later; Long had on him three Colt’s pistols when found, each shoots six times, but one had one barrel of it discharged; I arrested Long; he said, at the time of his arrest, that is, the first word was, “ do you want this horse,” or he might have said, “ are you hunting me?” I took the pistols and carried them to town; handing Long the pistol with an empty barrel, I asked him if it was the one with which he killed deceased, and he said it was; I am a practising physician; said shot killed deceased; pistols generally sell from $15 00 to $18 00; I never saw Long and Duff in town except on the day of this killing. Carter’s quarter is in the direction of deceased’s house, but that is not the best road ; Long was drinking on the day of said killing; it was up in the day sometime when deceased was killed, and it was one or two o’clock when Long was seen drinking.</p> <p>The defendant’s attorneys introduced no testimony. After argument they requested the Court to charge the jury as follows :</p> <p>1st. “The jury are the judges of the law and the facts, and are bound, under your oaths as jurors in this case, to decide the law according to your own opinion of the law; they may differ from the Court in its charge to them as to the law. If you conscientiously differ with the Court as to the law, and fail to carry out that difference, you would be guilty of peijury.”</p> <p>2d. “If there is a reasonable doubt in the minds of the jury, from any cause, as to the guilt of the prisoner under the charge of murder, then the jury can not find the prisoner guilty of that charge; that the jury are there to consider as to the offense of manslaughter, and if then should be a reasonable doubt in the minds of the jury, from any cause, then the jury can not find the defendant guilty of manslaughter; you should be governed by this rule in the investigation of the several grades of manslaughter, and if reasonable doubts should go through the case, on each grade of homicide, then you should acquit the prisoner.”</p> <p>3d. “If the jury believe that the prisoner was, at the time of the commission of the act, surrounded by such circumstances as would excite the fears of a reasonable man, that the deceased, or those who were approaching him, intended to commit a personal injury upon him amounting to a felony, then the killing must be justifiable homicide; that is the law; whether deceased really intended or not to injure the prisoner, the law does not look alone to deceased’s intention, but to the circumstances which would cause a reasonable man to act.”</p> <p>What the 4th request was, does not appear by the record.</p> <p>5th. “Mental alienation, from any cause whatever, at the time the deed was done, to the extent that the accused did not know what he was doing, will rebut the presumption of malice arising from the apparent recklessness of his (defendant’s) conduct so as to reduce the offence from murder to manslaughter.”</p> <p>6th. “ That while drunkenness is no excuse for crime, yet you must consider of it, as a means of coming to a conclusion in arriving at the intention of the accused, and his state of mind at the time, so as to show the absence of malice, and the apparent recklessness of his conduct might be so far excused as to reduce the offence to manslaughter.”</p> <p>After giving in charge all the grades of homicide, the Judge proceeded to charge the jury as follows: “If yon believe, from the evidence in this case, that Long shot Echols through the head, and the evidence has not disclosed circumstances of paliation, the Court charges you that this is such an external circumstance, capable of proof, as may establish express malice, and if this act killed Echols, and the proof does not show it to be voluntary manslaughter or involuntary manslaughter, or justifiable homicide, it is murder, and it is your duty so to find.</p> <p>When a homicide is clearly proved, malice is presumed by the law, unless the testimony discloses circumstances and l’ebuts that presumption. If the jury believe that Long shot and killed Echols intentionally, he is presumed to intend the natural and proximate consequences of his own acts, and if it is not shown that Echols, or those with Echols and co-operating with him, assaulted Long or attempted to commit a violent, personal injury to Long, or did some other act equivalent to these, it will be your duty to find Long guilty of murder.</p> <p>Malice shall be implied wherever no considerable provocation appears, and where all the circumstances of the killing ‘show an abandoned and malignant heart. This law shows that when a person shoots into a crowd, or toward a person unknown to the slayer, and kills another in a reckless manner, and when the circumstances show a disregard of human life or human safety, that malice is implied. In this case, it may appear that both express and implied malice is shown. The Court has already charged you as to express malice. If the evidence shows that Echols had given Long no considerable provocation, and he was unknown to Long, and that Long wantonly shot and killed him, malice is implied, and the killing is murder, and the jury should so find.”</p> <p>He then gave in charge the first of said requests. He read the second to the jury, saying that he declined to charge it, and added that if they had reasonable doubts with the several grades of homicide, and those doubts arose from or grew out of the testimony in the case, the position taken was right; that the words “from any cause” were too sweeping, and should be understood thus: “ from any cause shown by or originating from the testimony in the case.”</p> <p>He declined charging the third request. Reading it to the jury, he said: “Unless deceased, and those with deceased and co-operating with him, intended or showed to prisoner that they intended to commit a violent personal injury on prisoner, amounting to a felony, the prisoner would not be justifiable in killing deceased. If A and B were approaching C, and exhibiting evidence of felonious injuries on C, it would not justify C in killing I), who has nothing to do with A and B. What a stranger or third party did or proposed to do could not justify Long in killing Echols, unless Long had been given reason to infer that Echols intended to harm him seriously.”</p> <p>The fourth request he refused. Reading it to the jury, he said: “ With regard to this charge, unless the evidence shows that the accused had good reason to believe that Echols, or some one acting in conjunction with him, were about to commit some injury upon the accused, the accused had no right to shoot deceased, and unless Echols had something to do with the circumstances surrounding prisoner, or prisoner had good reason for believing that Echols was engaged in them, the circumstances surrounding prisoner could not justify him in shooting Echols.</p> <p>He refused to give in charge the fifth and sixth requests, but with reference to drunkenness, charged as follows :</p> <p>“Drunkenness shall not be an excuse for any crime'or misdemeanor, unless such drunkenness was occasioned by the fraud or artifice or contrivance of other person or persons, for the purpose of having the crime committed, and then the person or persons so causing said drunkenness, for such malignant purpose, shall be considered a principal, and suffer the same punishment as would have been inflicted upon the person committing the offence if he, she, or they, had been possessed of sound reason and discretion.</p> <p>From the law it will be found that drunkenness is no excuse for the killing of Echols, unless the evidence discloses the fact that the drunkenness was procured by the fraud of some person to procure the commission of the offence. Evidence of drunkenness may be given in to rebut the presumption of malice where provocation is shown on the part of the deceased, to show that the accused might by some provocation have been more easily excited when drunk than if he had been sober, and thus made subservient to irresistible passion, but if the evidence does not show that deceased provoked defendant, or did something to excite his animosity, if it were in proof that he was drunk, it could not inure to his advantage.</p> <p>If your minds rest satisfied beyond a reasonable doubt that th.e accused did shoot and kill A. B. Echols, the deceased, with malice aforethought, either express or implied, it is your- duty to find the defendant guilty. If you believe that there are palliating circumstances, and that there is a good legal reason for so finding, you may recommend that he be confined in the penitentiary for life; it requires your recommendation to have his punishment reduced from death to imprisonment for life.”</p> <p>The balance of the charge was only directory as to the form of their verdict.</p> <p>The defendant was found guilty of murder. His attorneys moved for a new trial upon the following grounds:</p> <p>1st. The refusal of the continuance upon the affidavit of the 28th of September, 1868, when the case was last called for trial.</p> <p>2d. Because the Court required the defendant to state in his affidavit of 24th of September, 1868, what he expected to prove by each of his witnesses.</p> <p>3d. Because the Court erred in requiring the defendant to plead not guilty when he proposed to plead insanity, and required both pleas filed simultaneously.</p> <p>4th. Because the Court erred in refusing the application for continuance, on the ground of insanity, under the affidavits of 29th, September, 1868, aforesaid.</p> <p>5th. Because the Court erred in ordering the issue of insanity withdrawn from the jury when he did.</p> <p>5th. Because the Court erred in pressing defendant to trial without calling on him to plead “guilty or not guilty.”</p> <p>7th. Because the Court erred in not quashing the indictment for the reason stated, and at the time when the motion was made.</p> <p>8th. Because the charge was not sustained by the law or facts of the case.</p> <p>9th. Because the Court erred in refusing to charge as requested, and in qualifying the requests as he did.</p> <p>And last. Because the verdict was contrary to the law and evidence.</p> <p>The Court refused a new trial, and this is assigned as error upon the grounds aforesaid.</p>

Equity Contribution, etc. Decided by Judge Irwin. Lumpkin Superior Court. May Term, 1868. Kilgo sued out an attachment against Benjamin E. Castle-berry, as a non-resident, for $50 00, and had the same levied on certain lots of land in said county. He obtained judgment therefor, on the 6th of August, 1866.

Attachment and garnishment. Before Judge Parrott. Fulton Superior Court. October Term, 1868. Pope sued out attachment against E. H. Williams, and had Watkins garnisheed, on the 30th of March, 1867. Pope afterwards had judgment against Williams. Watkins answered, denying that he owed Williams, or had any of his property. This answer was traversed.

Case against a carrier. Charge of the Court. By Judge Cole. Macon Superior Court. May .Term, 1868.

Exemption Laws. Retroactive Legislation. Decided by Judge N. G. Foster. Jasper Superior Court. November, Adjourned Term, 1867. Boynton filed a bill against Richard J. Loyal, to enforce the vendor’s lien. ' Loyal admitted all the facts necessary to sustain the lien and prayed, that after discharging it the amount allowed to insolvent debtors be set apart for his benefit, as allowed by law. In April, 1867, there was a decree as prayed for by Boynton.

Nuisance. Jurisdiction. Landlord and Tenant. Certiorari. Before Judge Gibson. Richmond Superior Court. June Term, 1868. Foster Blodgett was Mayor of the City of Augusta, and acting as Recorder thereof. As Recorder, he issued a summons requiring Vason to answer for an alleged violation of an ordinance of said city. That ordinance was, “ no person shall keep on his or her premises any nuisance to the annoyance of his or her neighbors.

United States revenue stamps. Note given under mistake, etc. Before Judge Milner. Whitfield Superior Court. November Term, 1868. In October, 1866, Lowry sued J. Percy Green and Julia Green, his sister, upon their joint and several promissory note for $450 00, payable to Lowry, dated the 18th of November, 1865, and due one day after date. The record does not show that any plea was filed, but their defence appears by the evidence offered by them.

Parol evidence. Motion for new trial. Before Judge Davis. Hall Superior Court. September Term, 1868. In October, 1837, Benjamin Dunagan gave bond as the administrator of the estate of Ezekiel Dunagan, deceased, with Isaiah Dunagan, James J. McCleskey and David G. Eberhart, as his securities.

<p>Construction of will. Ademption of legacy. Before Judge Hansell. Thomas Superior Court. March Term, 1867.</p> <p>On the 4th of May, 1859, Adoniram Vann made his last will. By the third item of it he gave to his wife, Jane Vaun, durante viduitate, twenty slaves and his “Home place,” with stock, furniture, provisions, etc. If she married the slaves and their increase were to be divided equally between her and his two minor sons. The fourth item provided that the slaves belonging to said minors, after such division, and all the other property mentioned in the third item should be divided equally between said minors, each taking his half upon attaining his majority, and that during her widowhood Mrs. Vaun should receive the rents, issues and profits of all the property covered by the third item, except so much of them as was necessary for the maintenance and education of said sons. No part of said property was to go to the payment of the debts, until the residue of the estate was exhausted, but so soon as it was ascertained that there were other assets sufficient to pay the debts, the executors were to turn over all of said property to Mrs. Vaun and the testamentary guardians of said sons, and after that, the executors were to have no further control over that part of the estate.</p> <p>He made other bequests to trustees for his daughters, and nominated Smith Paramour and said Whitlock as his executors. On the 4th of May, 1860, he made a codicil by which he made a different disposition of one of the slaves mentioned in said third item, and provided that $900 00 be paid to the said trustees out of the property mentioned in said third item, because he had expended that sum on that property since making his will.</p> <p>In October, 1860, he made another codicil, stating his reason therefor to be “to give direction to a certain fund that- I shall have,” and provided as follows: “Inconsequence of my having sold the residence and lands attached to the same, as bequeathed in the the third item of my will and testament, for the sum of $10,000 00, it is my desire, and I do will that said sum of money be re-invesed by my executors before named for a plantation for the use of my beloved wife during her life or widowhood. If she should marry again, said plantation is to go and to belong to my beloved sons,” said minors “as specified in the third and fourth items of my will and testament.”</p> <p>In January, 1861, testator died. The will and codicils were proven, and the executors qualified and took posssession of the estate. In 1867, Mrs. Vaun, in behalf of herself, and as proohein ami of said sons, filed her bill against said executors, setting forth the foregoing and the following facts: Testator intended that she should have a farm and slaves to work it. The mass of his estate was in choses in action which had not been collected, and therefore no farm had been bought for her. Slavery was abolished, and therefore she could never have slaves to work a farm. The other property given to her and said minors was not sufficient for her support, and the maintenance and education of said sons. She therefore prayed that the executors be compelled to pay over to her $10,000 and interest, that part be hers, and that she be allowed to invest the balance of it for the maintenance and education of said sons.</p> <p>The executors, by answer, admitting the facts averred, said the change of circumstances could not change the will, and such a change would be unjust to the other legatees, because the estate could not pay the legacies, nor would sell for $10,000 00. They said no interest ought to be allowed; that the proceeds of the “Home place” constituted the fund out of which testator intended said bequest to be paid • that testator sold the “Home place” to one Kearse, for $10,000 00 on a credit, taking Kearse’s notes. He tendered the complainant said notes, or the “Home place,” (of which they held the title, Kearse having gotten no title,) in payment of the legacy; that besides the “ Home place ” there were no assets in this State but $3,000 00 or $4,000 00 in doubtful notes. The parties agreed that the Chancellor should decide the matter upon the bill and answer. He decreed that the executors should pay to Mrs. Vaun $9,100 00, with interest only from the 1st of January, 1866, (because interest could not have been made before that date,) with the power in her to use the interest of said sum for the support and maintenance Of herself and said sons and their education; that the principal be invested in good securities under his direction, and that the $900 00 be paid as provided by the first codicil.</p> <p>The executors excepted, and say the Chancellor erred in requiring said $9,100 00 paid, and the complainant says he erred in not giving her interest from January, 1861. Though it does not appear that any evidence was introduced in the assignment of errors, he states that testator had received $2,500 from Kearse, and the executors offered to pay that to complainant, and give her the notes, and though the reasons for the decree in extenso are in the record, there is no allusion to $2,500 00 in the record elsewhere than in the said assignment. But in the argument said assignment was treated as being based on the.evidence.</p>

<p>1. Penal laws are to be construed strictly in favorem vitae.</p> <p>2. Section 4251 of the Code declares that, “ Any person convicted of the offence of insurrection or an attempt at insurrection, shall be punished with death ; or if the jury recommend to mercy, confinement in the penitentiary for a term not less than five normorethan twenty years.” Held, that this prescribes no penalty for the offence of an attempt to incite insurrection.</p>

Vagrancy. Tried before Judge Harrell. Early Superior Court. April Term, 1869. Mims was tried for vagrancy.

Rule against sheriff. Decided by Judge Harrell. Randolph Superior Court. November Term, 1868. Wootten, at November Term, 1866, of said Court, ruled Varner, who had been a deputy sheriff, for not paying the principal and interest on ají. fa. in Wootten’s favor against oneHockstetter, which Varner had had for collection..

Set-off, Recoupment. Tried before J. A. W. Johnson, an attorney selected by the parties. Bartow Superior Court. March Term, 1869. Taylor was foreclosing a mortgage to secure a note made by Hardin to him. Hardin set up, by way of defence, that Taylor had damaged him by his conduct in relation to building a certain saw-mill. Upon the trial Taylor’s counsel objected to such testimony, but the Court overruled the objection.

<p>Ejectment. Tried before ■ Judge Andrews. Oglethorpe ' Superior Court. October Term, 1868.</p> <p>This was ejectment by John Eberhart, administrator, cum testamento annexo, of Nathan Mattox, against William F. Mattox.</p> <p>The plaintiff read in evidence the will of Nathan Mattox, dated 29th of January, 1857, showed that the testator died in 1862, showed title to the premises in testator at his death, and that defendant was in possession of them when this action was brought, proved the value of the rent, and closed.</p> <p>The will contained nothing pertinent to this matter,, except its fourth item, which was as follows: “After the foregoing, I will, desire, and direct that my executors, hereinafter named, keep all my property together, for and during the widowhood of my wife Lucy, to be used for the support and maintenance of my said wife and our children, and I direct that my executors give off to each of my sons, -who are under age, as they may respectively arrive at the age of twenty-one years, and to my daughter as she may come of age or marry, about thirty-one or thirty-two hundred dollars, in money or property, as may be most convenient to the estate and most suitable to the party receiving the property; and in order to enable my executors the more conveniently to carry out all the foregoing objects of this item, I hereby.give them power to sell any of my property and to buy or to exchange for other property, taking care to give a full statement and history of all such sales, purchases and exchanges in their return to the Court of Ordinary.” Thomas J. Mattox and John Henry Mattox were nominated as the executors.</p> <p>The defendant offered in evidence a deed dated November 19th, 1863, made by said nominated executors, .conveying said premises to himself, which deed showed that the sale by them to the defendant was a private one. Plaintiff’s attorney objected to this deed upon the ground that a private sale was not allowed by said will, under the law. The Court sustained the objection. Plaintiff had a verdict and judgment for the premises and the rent proven.</p> <p>The rejection of said deed is assigned as erroneous.</p>

Burglary. Motion for new trial. Before Judge Worrill. Muscogee Superior Court. November Term, 1868. The indictment charged Jordan with having broken into the store-house of Clements & Tillman, during the night of the 10th of September, 1868, with intent to steal therefrom the goods therein kept. He was arraigned for trial in December, 1868.

Motion to dismiss bill of exceptions. The bill of exceptions recited that an action of assumpsit in favor of plaintiffs in error against defendant in error, was tried before Judge James M. Green, in ISfewton Superior Court, resulted in a verdict in favor of plaintiffs in error, and they moved for a new trial; that after several postponements, by consent, and “ after perfecting a brief of the testimony,” and argument had, a new trial was granted upon the grounds, “1st. That…

Motion to dismiss bill of exceptions, from Troup Superior Court. November Term, 18,68. Spencer sued Reid & Brother for certain money alleged to have been paid out by him at their request. They plead the general issue, etc. The jury found for Spencer.

<p>Ejectment. Tried before Judge Harrell., Early Superior Court. April Term, 1869.</p> <p>' This was ejectment for a town lot in Blakely, being part of land lot No. 154 in the 28th District of said county, and for other forty acres of lot No. 166, same district, upon the demises of Thomas J. Rowe, et al. There was a distinct case for each lot, but the title and defence being the same, they were tried as one below, and came as one to this Court. R. W. Wade, as administrator of S. S. Stafford, deceased, had been made a party defendant. On the trial, Jesse Williams testified that he took possession of the premises under a purchase from Rowe, at the time the deed was made. Green, sheriff, at March sales, 1867, sold the lot to Stafford. Rowe had been in possession about a year before, and Major West Avas in possession at the time of the sale as witness’ tenant. He paid Avitness rent up to the date of the sale. Williams bought the place Avithout knowledge of the mortgage from RoAAe to Stone. At the end of the year HightOAver took possession as Stafford’s tenant, %nd Stafford’s tenant had been in possession ever since said sale. He testified further, that it was worth, for rent, $150 00 per annum. The plaintiff then read in evidence a deed from Rowe to Williams for said lot, dated 2d of October, 1862.</p> <p>James B. Jones was shown a deed from himself as trustee to John W. N. Stone for said forty acres of land, the Fryer lot, and testified that he bought it from John V. Heard, that he did not know Avhat became of the deed, supposed some of the parties had it. He got fire-AVOod from it and exercised control over it till Stafford bought. He thought that after Williams bought it, there was a brick-yard on it. Plaintiff read in evidence a deed from said Stone to said Rowe, dated 21st of October, 1861, for said four acres, and a deed from James B. Jones, trustee, to said Stone, dated 1st of July, 1861, for the Fryer lot.</p> <p>John W. N. Stone testified: that he was in possession of the house and lot four or five years; bought it from Sapp; Rowe Avas in possession about a year, and sold to Williams. Plaintiff’s attorney handed him a deed; he said that * the deed was in his hand-Avriting; * that he knew the witnesses to the deed, W. C. Hainesley and his Avife; Hainesly is dead; his Avife lives in Calhoun county; that after buying the forty acre lot he exercised no acts of ownership over it, except perhaps getting a little wood from it; * the deed from Sapp to him was signed by said witnesses in his, (Stone’s,) presence,* but he did not know the hand-writing of the witnesses ; * he went into possession under said deed from Sapp*.</p> <p>So much of said testimony as is between the * * came in over the defendant’s objection. Plaintiff’s attorney then tendered said deed from Sapp to John W. N, Stone, trustee, dated in 1855, witnessed thus:</p> <p>“ W. G. Hainsley, J. P. Emma ¡*j Hainsley.”</p> <p>This deed had never been recorded. Defendant’s attorney objected to it till it was proven by one of the subscribing witnesses. The Court allowed it read, without proof, as color of title. The absence of the original papers being accounted for, the plaintiff’s attorney read in evidence, from the minutes of the Court, the rule nisi aud rule absolute for foreclosing a mortgage made by said Eowe to said Jones. The rule absolute was taken at October Term, 1866, and recited that Eowe gave Stone a note for $ 625 00, dated the 21st of October, 1861, and due on the first day of the next January, and another note exactly the same, except it was due one year later, and gave his mortgage on said two lots, on the same day, to secure the notes, that said rule nisi was granted, and “ a copy of said rule having been served on the said Thomas J. Lowe, according to law.” Here plaintiff closed.</p> <p>The defendant’s attorney then read in evidence the original mortgage from said Eowe to said Stone on said lots, dated 21st of October, 1861, and recorded 21st of November, 1861, the mortgage fi. fa, the levy thereon and the sale of said property, under said levy at sheriff’s sale to said Stafford, the deed from Green, sheriff, to Stafford for the premises, according to said sale, and closed.</p> <p>Plaintiff’s attorneys, in rebuttal, introduced T. T. Swan, who testified that * he thought that when the rule absolute was taken, Eowe had left the State ;* that "Williams knew of the mortgage; that witness let him have the notes to try to secure himself by attachment; that Williams was present and knew when the rule absolute was taken, and made no complaint to witness; that he was satisfied that the service was considered sufficient when the rule absolute was taken; that no order for publication of the rule was taken by witness, and he was the sole attorney for Stone.</p> <p>James B. Jones testified : that he knew Rowe ;* he left the State before the rule nisi was granted; moved to Arkansas in the fall of 1865'; he, witness, acknowledged service of the rule nisi, without' having been authorized so to do by Rowe. * Upon cross-examination, he said that he acknowledged the service to save costs of publication ; that Rowe was a partner in the firm of J. J. Williams & Company; Williams was dead; Rowe was the sole surviving partner, and the business of the firm was left with witness, as the agent of Rowe; he signed Rowe’s name to the matters of the firm; collected some costs due Rowe as late sheriff; paid some debts due by Rowe, out of the assets of said firm ; that he signed the acknowledgement of service, as agent of Rowe; that he wrote many letters to Rowe; told him of the rule nisi, and of the sale, but all his letters but one. came back from the dead-letter office; he did not know whether that one informed him of said acknowledgment; did not know that Rowe knew it. So much of the evidence as is between * * came in over the objection of defendant’s attorney.</p> <p>The evidence being closed, the Court charged the jury: 1. The great question in this case is, was the mortgage properly foreclosed ? The whole case hinges on that fact. If not served as directed by the Code, it was no service. While Rowe could adopt it or not, could ratify or disapprove of the act of Jones, yet it could not bind the rights of third parties; that before Jones could acknowledge service he must be specially appointed for the purpose, i. e., to acknowledge service of the rule nisi, and if the jury shall find, from the evidence, that Jones was not specially appointed the agent or attorney of Rowe, to acknowledge service on this rule nisi, then there was no legal service, and the judgment was a nullity so far as it affects the rights of third parties, and the purchaser at sheriff’s sale could acquire no right under the sale, and the plaintiff must recover.</p> <p>2. If both parties claim under Rowe, it was unnecessary for the jury to investigate the title beyond Rowe, as neither party could, dispute Rowe’s title.”</p> <p>The jury found for the plaintiff the premises in dispute, with $208 33 for mesne profits. The defendants’ attorneys moved for a new trial upon the grounds that' the Court erred in admitting the evidence objected to by them, in admitting the deed from Stafford to Stone, as a color of title, in each branch of his charge, and because the verdict was contrary to the evidence, etc.</p> <p>The motion was overruled, and this is assigned as error on each of said grounds.</p>

Garnishment. Certiorari. Decided by Judge Clark. Sumter Superior Court. April Term, 1869. Smith & Richmond sued one Hay in the County-Court, and garnisheed Emanuel.

Intruders. Equity practice. Decided by Judge Clark. Sumter Superior Court. October Term, 1869. In December, 1865, Wyley filed his affidavit, under section 4000 of the Code, to eject Mrs. Whitely from land known as the “ Whitely dower,” and on the 4th of January, 1866, she filed a counter-affidavit that she did hold in good faith and in her own right the possession of, and claim said lands as her’s. The sheriff did not eject her, but returned said papers to Court.

Mandamus. Decided by Judge Schley. Chatham Superior Court. January Term, 1869. Held: but returning in a few moments, stated that after considering the matter he would receive the censure.

Bill for specific performance. Tried before C. D. Mc-Cutchen, an attorney, selected by the parties. Dade Superior Court. November Term, 1868. Held: took said title and possession to defraud him, he (Street) never having paid all the purchase money to Burnett; that Burnett’s residence was not known, that he resided out of Georgia and had no property therein. He prayed that Street should be compelled to pay him reasonable rent for said premises, and convey them to him.

Mill-wright’s lien. Practice. Decided by Judge Pope. Eulton Superior Court. October Term, 1868.

Injunction against trespass. Before Judge Worrill, Chattahoochee Superior Court. March Term, 1869. Harp, by his bill, made this case: In 1868 he owned a judgment against E. G. Webb, amounting to say $1,200 00 and had the fi. fa., founded on it, levied upon seven bales of cotton, two mules, a tract of land, and other of E. G. Webb’s property, sufficient to pay theft, fa. At the date of the levy cotton was worth ten or twelve and a half cents per pound.

Equity. Injunction. Decided by Judge Harrell. Randolph Superior Court. November Term, 1868. Powell, by his bill, complained as follows : In 1862, Parker sold and conveyed to him a settlement of lands in Sumter county, Georgia, containing five hunderd acres, more or less> with valuable improvements, for $5,500 00 cash. Parker had been in possession of the land for several years, and put Powell in possession when the contract was made.

Ejectment. Explanation of grant. Decided by Judge Clark. Sumter Superior Court. April Term, 1869. This was ejectment in favor of Doe on the several demises of Benjamin F. Tuggle and his wife, formerly Mary O. Holland, and H. S. and Eli S. Glover, executors of Eli Glover, deceased, against Roe, casual ejector, and McMath and John Teal, tenants, for lot of land No. 240, 26th district of said county.

Decided by Judge Clark. Sumter Superior Court. February Term, 1869. This is the same case reported in 37 Ga. B., 48, (Jones vs. McOrea,) with this exception : After the Supreme Court had affirmed the judgment of the Court below holding that a new trial could not be obtained by the bill for the reasons given therein, the counsel moved, at law, for a new trial upon the same ground. The Court overruled the motion, and that is assigned as error.

Landlord and tenant. Decided by Judge Clark. Sumter Superior Court. April Term, 1869. Bonaldson, as administrator of Josiah Moody, made an affidavit that his intestate leased a certain lot of land to Mrs. “ F. P. Moody and her child, Edward Moody,” for a term which had expired, and that they, upon demand made, had refused to give him possession of the premises.

<p>Manumission. Emancipation. Decided by Judge Gibson. Burke Superior Court. May Term, 1868.</p> <p>Augustus H. Anderson, of Burke county, Georgia, died in 1853, testate. The will was as follows:</p> <p>Item 1st provided for the payment of his debts.</p> <p>Item 2nd loaned to his wife certain slaves, and furniture, during her life, gave her a carriage and horses and the privilege of using his residences in Burke and Richmond counties, until the 1st of January, 1875, if she lived to that period.</p> <p>Item 3d gave to one Bugg, the right to reside at his place, “Forehand,” as long as he wished, etc.</p> <p>Item 4th gave to Augustus Anderson, son of one Murphy, $500 00, to be held by Murphy for his use.</p> <p>Item 5th gave to Adam and Maria, two old slaves, $20 00 each, per annum, and provided for their kind treatment.</p> <p>Item 6th was as follows: “I desire and direct that my executors cause to be removed to a free State, and there emancipated, John, son of my negro woman slave, Louisa; that they pay the expenses of such removal, and for the reasonable support and schooling of said John, until he is put to a trade, and that when, if he do, reach the age of twenty-one years, they invest and secure for his benefit, as (they) may deem best, the sum of three thousand dollars, to be raised out of my estate.”</p> <p>Item 7th was as follows: “I desire and direct that my negro slave, Louisa, mother of said John, shall be kept at my Burke plantation till the 1st of January, 1875, that she be kindly treated and provided for, that she be employed as a seamstress as heretofore, and that she be paid by executors, annually, until that time, the sum of fifty dollars, if she choose then (in 1875) to go to a free State and be emancipated, my executors are directed to carry out her determination, and to invest and secure for her use, as they may think best, two thousand dollars, to be raised out of my estate, the interest of which she is to receive during her life, and then her son John, if in life, is to have the benefit of said investment absolutely. If said slave, Louisa, shall determine not to go to a free State, then I give her to my son-in-law, Moses P. Green, if then in life, or if not, to any one of the children or decendants of my daughter Martha, that said slave may select as her owner.”</p> <p>Item 8th gave to Moses P. Green absolutely the slaves before loaned him, with privilege of using any of testator’s land till 1st January, 1875, gratis.</p> <p>Item 9th appropriated $100 00 per annum till 1st January, 1875, to pay a missionary for his slaves.</p> <p>Item 10th provided that the residue of his estate, with the wife’s legacy, after her death, should be kept together till the 1st of January, 1875, etc.</p> <p>Item 11th provided that the net income of the estate, after paying legacies, should be paid one-third to his wife during life, one-third to said Gfreene during his life, remainder first to Greene’s wife and then to the guardian of her children, and that the other third should be held by the executors for the uses, etc., specified in the 12th item; his wife’s third, at her death, was to be divided in halves and go as the other thirds.</p> <p>Item 12th provided that, the income from 11th item should be invested as the executors thought best, to be paid to his daughter, Susan, or her children, as they needed it, and on the 1st of January, 1875, this fund to be paid to her children or their descendants.</p> <p>Item 13th provided that, on the 1st of January, 1875, the residuum of the estate not disposed of, if his wife was then dead, be divided into halves, one-half to go to Martha’s children and the other to Susan’s children, on terms specified. A provision was also made here for the wife, should she be alive in 1875.</p> <p>Item 14th provided that if Susan or Martha were alive on the 1st of January, 1875, and childless, each should take absolutely said half given to her children.</p> <p>Item 15th required the executors to secure the legacies to the females to their sole use, unless they thought it not proper to do so.</p> <p>Item 16th provided that if, on the 1st of January, 1875, no person was alive, or represented by lineal (not collateral) descendant, the executors should sell all the property as they thought best, (seeing that the slaves got good masters,) and pay $10,000 00 to the Georgia Female College, at Macon; $10,000 00 to the trustees of Emory College, at Oxford; $20,000 00 for the endowment of a free school of Brigham’s district, Burke county; $20,000 00 for the endowment of another such school near Lester’s district, in said county; and the executors were to see that necessary acts of incorporation were had for these purposes; any balance was to be used in building and endowing a college, under the control of the Methodist denomination, at Brothersville, Richmond county, Georgia, etc.</p> <p>Item 17th nominated Moses P. Green, Charles J. Jenkins, Elisha A. Allen, and Andrew J. Miller, as his executors and testamentary guardians of any legatee who might be a minor when his or her legacy was payable.</p> <p>The will was admitted to probate. Green, alone of said named executors, qualified as such. This negro, John, was then about twelve years old. In some way, (it does not appear how by the record,) the Superior Court of Burke county had this will, etc., before it, and in 1855 there was a decree, that Green, as such executor, should extinguish Bugg’s claim by purchase, that he should, “ under the direction of Thomas M. Berrien and Andrew J. Miller, solicitors in this cause, make such provision and investment for the slaves, John, Adam, Maria, and Louisa, and such disposition of them as will substantially carry out the provisions of said will in relation to them that Green be allowed to retain, for his own use, such sum out of the estate in his hands, as should, in the opinion of said solicitors, be sufficient consideration for the release of his privileges granted in said 8th item; that Green sell all the land of testator in Burke, and all the slaves thereon, (except Adam, John, Maria, and Louisa,) when and where, and on such terms as Green and the solicitors should agree upon, and that, after paying all legacies and fees, and costs, and making the investments provided for in the decree, the residue shall be invested, under the direction of said solititors, in State stock, or other stocks and securities for the uses and purposes specified in said will; that Green repoi’t annually to said Court, his action under the decree: and power was given to enlarge the decree if necessary to carry out the same. Pursuant to said decree, Green proceeded to sell the property; bought most of it himself, and paid the other legacies, etc. But he paid Louisa nothing. She died in 1858 or 1859. He did not execute the will as to John, but he was kept in Georgia and used as a slave until slavery was abolished. He became of age in 1862.</p> <p>Upon the state of facts, set out in his bill for account against Green, filed in April, 1868, said negro, John, claimed that he should be paid the $3,000 00, also what it would have cost Green to have executed the 6th item of the will, as to John, and also the annuity and legacy given to his mother by the 7th item of said will, with interest according to law.</p> <p>Green’s solicitors demurred to this bill upon the grounds that said 6th and 7th items of the will were void, under the Acts of the General Assembly of Georgia, passed in 1801 and 1818, prohibiting emancipation; because John never has had, nor has any capacity to take under said will, or to compel Green to perform; because John is not, and never was, a citizen of the United States of America, having such rights as to enable him to sue in any State or Federal Court, nor is there any law, State or Federal, giving him a right to sue for any claim arising before emancipation; because the whole will showed that Green had the right to refuse performance of the trusts in items six and seven specified; because, (as to the claim under his mother,) her death defeated any claim which she had, and because, for the reasons aforesaid, she could not take, and, therefore, could not transmit anything. Judge Gibson overruled the demurrer as to John’s claim under the 6th item, leaving the other to be determined at the hearing. This decision is assigned as error by Green’s solicitors, upon the points indicated in the demurrer.</p>

Divorce. Alimony. Decided by Judge Gkeen. Spalding Superior Court. February Term, 1869. Mrs. Dicken sued her said husband for divorce upon the ground of cruel treatment.