Volume 39 — Georgia Reports

Claim lien. Tried before Judge Harrell. Early Superior Court. October Term, 1869. In January, 1867, John Matthews, of the one part, and Edmund Glenn and other negroes, of the other part, made a written contract by which Matthews was to furnish them land, seed, quarters, teams, tools and implements, and provisions, and they were to tend the farm, and divide the crop with Matthews, he taking one-half of it. They were to work on the plantation of Mrs. Sarah Glenn.

Attorney’s lien. Decided by Judge Harrell. Webster Superior Court. March Term, 1869. S. H. Hawkins was a member of the firm of Worrill & Hawkins, attorneys at law. The firm, as such attorneys, obtained a j udgment in favor of Chapman against said Lawless. Thereupon a fi.fa. was issued upon which there Avas a return of nullábona on the-16th of March, 1859.

<p>When a matter in controversy between the parties had been submitted to three arbitrators for their consideration and judgment, and. it appeared from the record, that, after hearing and considering the evidence submitted by the respective parties, an award was made by the arbitrators, and returned to the Superior Court, as provided by the 4184 section of the Code, and one of the parlies suggested, on oath, that the award was illegal, upon several grounds stated therein, for the purpose of having a trial before a special jury, as to the validity of said award, and the grounds and specifications set forth in said affidavit were demurred to as being insufficient in law to authorize the setting aside said award: Held, that the demurrer only admitted the truth of such facts as were well pleaded and set forth in the affidavit, and that, to make such facts available against the award, it should have been alleged in the affidavit, that the facts set forth and complained of were the ‘1 result either of accident, mistake, or the fraud of some one or all of the arbitrators, or parties — or is otherwise illegal," and the particular illegal acts complained of must be specially set forth, which, in law, will vitiate the award, otherwise the affidavit will be demurrable.</p> <p>The general allegation that the award was contrary to the evidence before the arbitrators, or without evidence, or that proper credits were not allowed by them, etc., is not sufficient to set aside the award, unless it is alleged and proved that the award was the result either of accident, mistake, or the fraud of some one, or all of the arbitrators or parties, or is otherwise illegal, as where the arbitrators should refer the matters submitted to them to chance or lot. The award of the arbitrators is final and conclusive between the parties, unless it is attacked and set aside upon some one of the grounds specified in the Code, and the affidavit must state some one of these legal grounds, with sufficient precision, so that an issue can be found and tried thereon.</p>

<p>Lien. Decided by Judge Clark. Dougherty Superior Court. June Term, 1868.</p> <p>One Holly rented from Seabrook, as administrator of Dawson, a plantation in Dougherty county, known as the Dawson place, and employed Toler as his overseer for 1867, agreeing to furinsh his family supplies, etc., and pay him $600 GO.</p> <p>Afterwards, on the 3rd of May, 1867, Holly agreed to let Bray & Clemmons take said place, and they rented it from Seabrook, as such administrator. In writing, it was agreed that they should take the place and stock and utensils for the balance of the year, and return them in good order, saving the usual wear and tear, at the end of the term, and they stipulated in these words: “to pay, as rent, for the use of said plantation and the stock and other property upon it, thirty-five bage of cotton weighing five hundred pounds, to be delivered at Eust & Johnson’s warehouse in Albany, Georgia; (this cotton to be sound, merchantable cotton, of an average quality, made of the crop of this year, on the-said place,) and also five hundred bushels of sound corn, and we agree that these two items of rent shall be the first lien on said crops, and to be first taken from the same.”</p> <p>On the 31st of May, 1867, Bray & Clemmons, “in consideration of advances of provisions made and to be made by R. N. Reed & Co., for the purpose of assisting them to make a crop,” pledged to R. N. Reed & Co., their entire crop of cotton to be made that year, to be shipped as fast as it could be picked out, to said R. N. Reed & Co., for sale on commission, and that all advances made by R, N. Reed & Co., should be first paid out of the net sale of said cotton. On the 1st of June, 1867, Bray & Clemmons took Toler as their overseer on said plantation, upon the terms of his contract with Holly.</p> <p>Bray & Clemmons made but twenty-one bales of cotton and five hundred bushels of corn on said plantation.</p> <p>Eour of these bales of cotton had been sent to Albany, to be shipped to said R. N. Reed & Co. Upon learning this, Seabrook, as administrator, sued out a distress-warrant, and levied on said four bales, and the balance of the corn and cotton at the plantation. This balance of the cotton had been loaded on the wagons at mid-night, and the sheriff found it near the plantation. The record does not show the affidavit upon which this warrant issued. But it was admitted that it was sued out sometime in December, 1867, and that it did not state that Bray & Clemmons were seeking to remove these goods from the premises. Toler, in January, 1868, levied an attachment on said property, but had no judgment at the date of this decision. The agent of the Ereedmen’s Bureau took the cotton and corn from the sheriff, and had it sold privately to pay off the wages of the negroes who raised the crop. After that was done, about $890 00 was left, and a motion was made, in said Court, to distribute that sum according to law. Toler claimed his wages, and for meal twice furnished to the hands, (but no sum was specified for this,) none of which had been paid. R. N. Reed & Co. showed that, on said 31st of May, 186 T, they had advanced Bray & Clemmons, in cash, $2,257 81, and in supplies, etc., for said plantation, from that time to the 2nd of November, 1867, other sums, making a total of $3,322 35, all of which. Avas advanced under their said contract, and that they had legally foreclosed their lien, but since the levies by Seabrook’s distress-warrant, and of Toler’s attachment. Seabrook, as administrator, claimed said rent under his said contract. And each claimant contended that he. should be paid before either of the others.</p> <p>The Judge decided that Seabrook’s claim took priority to the exclusion of the others. Toler and R. N. Reed & Co. assigned this ruling as erroneous, saying that the Court erred because the affidavit did not state that Bi’ay & Clemmons were seeking to remove the goods from the premises, because the affidavit did not show such a state of facts as entitled Seabrook, as administrator, to the process of distress, (what it showed does not appear by the record,) because a distress-warrant will not lie for rent reserved in products, because Seabrook’s claim is an unliquidated demand, and its amount cannot be ascertained in such an ex parte proceeding, because the landlord’s lien attach only from the time of levying his distress-Avarrant, because the rent reserved Avas more than half of the crop raised, and, if good at all, is only good to the extent of half the crop raised, as against other liens and claims.</p>

Trespass vi et armis. Lien of attorneys. Settlement. Tried before James J. Scarborough, Esq. Sumter Superior Court. October Term, 1868. Green sued the Southern Express Company and others for false imprisonment, and obtained a verdict against the Company for $5,000 00. The Company appealed. At the appeal trial, many questions were made, and come here in these bills of exceptions for review. As they were not passed upon by this Court, they are omitted.

<p>Ejectment. Tried before Judge Clark. Baker Superior Court. November Term, 1868.</p> <p>This was ejectment in favor of John Doe, upon 'the demise of Ebenezer Granniss, as administrator of John Kennedy, deceased, against Roe, casual ejector, and Samuel D. Irvin, as administrator of James Bond, deceased, tenant-in-possession, for lot of land, 128, in said county.</p> <p>The plaintiff’s attorney read in evidence the grant of said lot from the State to Pharis Gove, and a deéd by which Gove conveyed it to S. ~W. Nichols. These papers were produced by the defendant under notice. The locus m quo and that Granniss was the administrator of Kennedy aforesaid, were admitted. Plaintiff’s attorneys then tendered a deed made by said Nichols to said Kennedy, dated the 25th of May, 1839, purporting to have been executed in presence of J. A. James, J. G. Martin, “Balaam Peters, J. P.,” and recorded on the 13th of May, 1840.</p> <p>The name, “ Balaam Peters, J. P.,” was in a different ink from any thing else in or on said deed, and on the back of it were the words of an affidavit, for probating the deed, dated the 3rd of December, 1839, in the usual form. It appeared to have been written for the purpose of being sworn to by said Martin, before one Sullivan; but it had never been executed, i. e. neither had Sullivan witnessed it, nor had Martin signed it.</p> <p>Because of these circumstances, the defendant said that “ Balaam Peters, J. P.,” was signed to the deed after said 3rd of December, 1839, and because of these suspicious circumstances, objected to the introduction of the deed upon the ground that it was not sufficiently proven' to carry it to record under our statutes. The Court rejected the deed.</p> <p>It being admitted that the defendant held the premises under a deed from said Nichols, made subsequently to the date of said rejected deed, and that his deed was duly recorded, he was allowed to take a verdict, the plaintiff excepting to the rejection of said deed by the Court.</p>

<p>Foreclosure of mortgage. Decided by Judge Clark. Dougherty Superior Court. December Term, 1869.</p> <p>Flagg & Fish made and delivered to Thomas H. Willing-ham a mortgage on certain lands, to secure the payment of certain notes. Willingham transferred the mortgage in this manner : “ For and in consideration of the sum of two thous- and dollars, to me in hand paid by John W. Johnston, as administrator of Green D. Sharke, late of said county, deceased, the receipt whereof is hereby acknowledged, I do transfer and assign to said John W. Johnston, as said administrator, all my right, title, and interest in and to the within, without recourse on me.” Afterwards, Johnston, in his individual name, sued out a rule nisi for the foreclosure of this mortgage. The defendants appeared and objected to a rule absolute, upon the ground that Johnston should sue, as administrator of Sharke, and could not recover in his individual name. The Court overruled this objection, and the rule absolute was taken. This decision is • brought here for review. When it was argued here, attorney for plaintiff in error said that the record showed that the transfer was not stamped, and for that reason also the Judge erred. Rut no such point appearing to have been made below, this Court said they would not consider it here.</p>

Jurisdiction of Superior Court. Bill of Exceptions. Before Judge Clark. Chambers. Dougherty county. Cook made an affidavit before said Judge, at Chambers, that, as a factor and commission merchant, he had advanced $1,944 04, to Charles L. Whitehead, deceased, to make his crop, and had a lien, under the Act of 15th of December, 1866, and prayed for a fi. fa. against the goods of deceased, in the lands of his said administrator.

Amendment. Bankruptcy. Decided by Judge James M. Clark. Dougherty Superior Court. December Term, 1868. Lathrop, Cady & Burtis sued out attachment in said Court against William W. Kendrick, and had garnishment thereon served upon said Lawton. Before judgment thereon against Kendrick, and while the attachment was pending, he had been adjudged a bankrupt in the District Court of the United States, upon the petition of his creditors.

Assault with intent to murder. Tried before Judge Clark. Dougherty Superior Court. December Term, 1868. Jake Collier, a negro, was indicted and convicted of an assault, with an intent to murder Jesse Williams, another negro. The circumstances of the shooting, as detailed by Williams, were as follows: — Jake came into the cotton patch, where Jesse was picking cotton, and said to him, “I am after you.” Jesse ran off a piece.

<p>When two notes were given to the plaintiff, for cotton seed, for Green J. Jordan’s plantation, and signed, “J. Spradley, Agent for Green J. Jordan Held, that this was a contract of Jordan, the principal, and not the contract of Spradley, the agent; the more especially, as the evidence in the record discloses the fact, that the agency was made known to the payee of the notes at the time they were given, and that the cotton seed was purchased for Jordan, and not for Spradley, the agent. The suit should have been brought against Jordan, and not Spradley, the agent; and the fact that Jordan filed a plea in the case, as a defendant, alleging that the cotton seed were worthless, did not necessarily make him a party to the original suit against Spradley ; and there was no error in the Court below in refusing the order to make him a party, inasmuch, as Jordan was not named as a defendant in the original suit, and not being named as a defendant in the original suit, the filing of his plea did not make him a defendant, when no process was prayed against him as such. The verdict in favor of the defendant, Spradley, was right, under the law and the facts of the case ; and there was no error in the Court below in refusing the motion for a new trial.</p>

<p>Motion to set aside judgment of the County-Court. Decided by Judge James M. Clark. Sumter Superior Court. . April Term, 1869.</p> <p>Foster, as administrator of Joseph McDonald, deceased, sued Daniels, in the Count3,--Court of said county. Upon the first day of the term, he obtained a verdict against Daniels, but did not enter judgment thereon till two days after, to-wit: on the 22nd of July, 1868.</p> <p>At said term of the Superior Court, Daniels’ attorneys moved to set aside said judgment, upon the ground that N. A. Smith, his attorney, had leave of absence from said term of the County-Court; that the judgment should be opened, and the equities should be adjusted under the relief law, and because the County-Court had been abolished before said judgment was entered. The Court below ordered the judgment to be set aside, upon the last of said grounds, and this is assigned as error.</p>

<p>Motion to vacate judgment against a married woman. Decided by Judge Clark. Sumter Superior Court. February, 1868.</p> <p>Huff, in 1867, in the County-Court, averred that C. A. Wright was indebted to him $93 10, besides interest, upon the following promissory note:</p> <p>“ Thirty days after date I promise to pay W. A. Huff, or bearer, ninety-three and 10-100 dollars, payable in Macon, Ga., for value received in tobacco, in 1865. C. A. WRIGHT.</p> <p>Macon, Ga., Sept 20, 1866.”</p> <p>The service was by leaving a copy “at place of residence.” There was no appearance by C. A. Wright. Judgment was entered, and the fi. fa. issued upon it was levied on certain property, “ as the property of Mrs. C. A. Wright.” Until this, she had not been, in any way, recognized in this proceeding as a feme eouvert, or a feme at all. After this, she moved, in the Superior Court, to set aside said judgment, on the ground that when said note was made, and when the judgment was entered, she was eouvert, the wife of Melton A. Wright.</p> <p>This being admitted, the Court, upon inspection of said papers, vacated the judgment, and this is assigned as error.</p>

Equity practice. Receivers. Injunctions. Supersedeas. Decided by Judge Clark. Lee county. Chambers. January, 1869.

<p>Ejectment. New trial. By Judge James M. Clark. Sumter Superior Court. October Term, 1869.</p> <p>This was ejectment upon the demises of Jack Brown, William Webb and his wife, Martha, and William T. Scott, against Parker, tenant in possession for lot of land, number 127, in said county.</p> <p>The plaintiff read in evidence a copy plat and grant from the State to William T. Scott, made the 17th of April, 1835. In the brief of testimony it is spoken of as “ a grant to the premises in dispute;” but while the copy plat, in the briefj is for number 127, the grant is for number 107. It was then shown that Scott died leaving said Mrs. Webb his sole heir-at-law. Possession by defendant when the suit was commenced, 16th April, 1856, was admitted.</p> <p>Jack Brown testified that said Webb employed him to bring this suit, and made him a quit-claim deed to said land only to secure him against the expenses of litigation; that from 1856 to 1862, inclusive, said lot contained fifty acres cleared, and was worth, for rent, from $5 00 to $>6 00 per cleared acre, per annum. The plaintiif closed.</p> <p>Tiie defendant’s attorney read in evidence a deed from Grabriel Harrison, as administrator of Albert Jones, to Carter & Harvey, dated 7th of December, 1846, and a power of attorney from said administrator to James Wright, Jr., who made the deed as his attorney in fact. This deed was objected to upon the ground that the administrator could not constitute an attorney in fact for such purpose, and that the probate of the power of attorney was insufficient; but the objections were overruled. Next he read a deed from Carter & Harvey to ■ said Parker, dated the 7th of July, 1851, a deed from the sheriff of said county to one Barlow, dated the ■1st of December, 1841, and a quit-claim .deed from said Webb to Jack Brown, dated the 15th of December, 1855.</p> <p>Wright Brady testified that he had known the lot’from 1832; that one Evans once built some cabins on the lot, and had possession of it some time, but left it before it was sold by Jones’s administrator; that he did not know when Parker took possession ; that he had been in some time, and might have been in possession in 1848; that when he got possession he held it till. Powell took possession.</p> <p>Powell testified that he took possession in 1863, and that then there were about thirty acres cleared.</p> <p>Plaintiffs’ attorneys moved to rule out said deed from Harrison, administrator, because it was not good, as color of title, there being no evidence of possession of the lot by the grantees in said deed, or by any one holding under them. The motion was overruled.</p> <p>Plaintiffs attorneys requested the Court to charge the jury that the statute of limitations did not run against a feme covert. He refused so to charge, and did charge the reverse. The jury found for the defendant. Plaintiff's attorney moved for a new trial upon the ground that the Court erred in not rejecting said deed, and in not ruling it out afterwards, and refusing to charge as requested, and in charging as he did. The Court granted a new trial, and that is assigned as error. (All the deeds were for number 127, and no notice seems to have been taken of the variance between them and the copy grant till the cause was argued here.)</p>

Divorce. Alimony. Decided by Judge Clark. Sumter Superior Court. April Term, 1869. In 1866 Wardlaw married a widow who had a minor son. In 1867 she sued him for a divorce, upon the ground of cruel treatment, by compelling her to work in inclement weather, and at labor too severe for one of her delicate constitution, and by not providing for her support.

Mandamus. Decided by Judge Clark. Sumter county. Chambers. May, 1869.

Certiorari. Decided by Judge James II. Clark. Sumter county. Chambers. April, 1869. Lucinda Taylor was charged with “ disorderly conduct in said city,” Americus, and was found guilty by the Mayor. She appealed, and the cause was heard before the Mayor and Aldermen de novo. On this trial there was evidence of a quarrel between Lucinda and another. The witnesses did not locate this quarrel otherwise than by saying it was at Lucinda’s house.

<p>tYhere the attorneys of the parties in the Court below, agreed upon the statement of facts, upon which the Court below made its decision, but no bill of exceptions was ever presented to, or signed and certified by the presiding Judge, as required by the 4103 section of the Code: Held, that the ease was not properly before this Court upon a writ of error, as required by law, and that it could not be heard to correct the errors, which it was agreed by counsel the Court below had committed; unless the same had been duly sanctioned and certified by the presiding Judge, before whom the case was tried.</p>

<p>Bankruptcy. Lien of Judgments. Decided by Judge Parrott. Catoosa county. Chambers. April, 1869.</p> <p>Lellyett & Smith, bad their j/L fa. against Wooten & Gordon, levied on certain land as the property of Wooten, and Jones claimed the land. The parties agreed that Judge Parrott should hear the cause at Chambers, and there decide all questions of law and fact.</p> <p>It was admitted that Wooten had owned the land since the rendition of the judgment; that Wooten had been regularly discharged as a bankrupt, under the Bankrupt Act of Congress, of the 2nd of March, 1867; that said judgment was a valid lien on said land up to the time when Wooten became a bankrupt, and is so yet, unless the lien is destroyed by Wooten’s said discharge; that Wooten sold said land to Jones, and Jones took possession of it several years before March, 1867; that this land was not mentioned in Wooten’s schedule, in the Court of Bankruptcy, and his property paid no dividend in said Court, and last, that plaintiffs judgment debt was not proved in the Court of Bankruptcy.</p> <p>Jones’ counsel moved to dismiss the levy upon the ground that the lien of the judgment was destroyed by Wooten’s said discharge. The Judge overruled the motion, and ordered the fi. fa. to proceed. It is said the Judge erred in not sustaining said motion oh said ground.</p>

Assumpsit. Evidence. Motion for new trial. Before Judge Parrott. Bartow Superior Court. March Term, 1869. This was assumpsit for money had and received, etc., by Reuben Gaines against Enoch B. Gaines, as administrator of Aaron N. Gaines, deceased.

fa. to proceed. Decided by Judge Parrott. Bartow Superior Court. March Term, 1869. Before the war between the United States and the Confederate States of America, Boyd, for a valuable consideration, had become indebted to Sales, $2,900 20 upon a gold basis. Sales sued him, and in September, 1863, obtained a judgment against him for that sum, with interest and costs.

<p>When upon the trial of a cause, it appeared that a witness, who had been sworn and examined upon a former trial of the same cause between the same parties, had left the State and gone to the Cherokee Nation of Indians, west of the Mississippi river: Held, that the testimony of such witness, on such former trial, reduced to writing, on a motion for new trial, agreed to by counsel, and approved by the Court, was competent evidence to be submitted to the jury on a new trial of the same cause, between the same parties, under the 3729th section of the Code.</p>

<p>Complaint. Motion for new trial. Decided by Judge Pope. Troup Superior Court. November Term, 1868.</p> <p>In October, 1867, Judge Orville A. Bull sued St. Johns for $300 00, for professional services in a cause of Thomas B. St. Johns vs. John T. Pullen, executor of Hogair& John Shanks, to-wit: filing the bill, Shank’s answer thereto, etc.</p> <p>Pending the action plaintiff died, and his wife, as his executrix, was made plaintiff. The pleas were general issue, and that plaintiff undertook to perform said services at and for $300 00, to be paid in Confederate currency, that plaintiff’s ill health prevented him from performing all the service, and forced defendant to employ another attorney, and that he had .paid to each of them a bale of cotton worth $75 00, and ought not to pay more.</p> <p>It was admitted that plaintiff filed the bill and answers, and did all the services shown by the minutes of the Court from May term, 1864, to May term, 1866, and that about Christmas, 1867, he received from defendant a bale of cotton weighing five hundred pounds.</p> <p>Mr. Speer testified, that the property, about which the bill was filed was worth about $2,500 00, and that ten per cent, thereon was a reasonable fee for such a case, if completed.</p> <p>B. C. Ferrell put the compensation of plaintiff at from $125 00 to $150 00. B. H. Bigham put it at $125 00, saying it was a friendly suit, and that, after May term, 1866, the defendant employed him to complete, and he did complete, the services; that in December, 1867, defendant paid him and Judge Bull each a bag of cotton. Cotton was shown to. have been then worth ten or eleven cents per pound. They all stated that Judge Bull had been in ill health for several years.</p> <p>Plaintiff closed. The only testimony for defendant, was said Shank’s, who testified that when he went to get Judge Bull to file said answer in 1864, he asked him what was the agreement between him and St. Johns, and he replied that he had agreed to attend to the whole business for $300 00 ; that he said that seemed high; Judge Bull replied that it did seem high, but that the $300 00 was Confederate money, and would not buy more that forty bushels of corn, and that if he did not succeed in the cause, St. Johns was to pay him' nothing; that at the date of this conversation corn was worth $1 00 per bushel.</p> <p>The jury found for the defendant. Plaintiff’s attorney moved for a new trial, upon the ground that the verdict was contrary to the law and the evidence, etc. The Court refused a new trial, upon the condition that St. Johns would pay the costs which had accrued up to the time of paying said bale of cotton. This is assigned as error.</p>

<p>1. When a garnishment has been dissolved by the defendant giving security, as provided in the Code, and the security is or becomes insolvent, the plaintiff may garnishee again.</p> <p>2. Under section 3027 of the Code of Georgia, it is the duty of a Court, when it has jurisdiction of a right, and no specific remedy is afforded by express law, so to mould its -processes and proceedings as to afford relief to the party having the right.</p>

Assumpsit. Compounding a felony. New trial. Granted by Judge Pope. Fulton Superior Court. October Term, 1868. On the 29th of September, 1860, James H. Johnson and Martha J. Johnson, as makers, and Jo. S. Smith, and James E. Williams, as securities, made and delivered to John H. Lovejoy their joint and several promissory note, whereby they promised to pay him or bearer $610, on or before the first day of the next January.

<p>Ejectment. Non-suit. By Judge Pope. DeKalb Superior Court. October Term, 1868.</p> <p>So much of what occurred at the trial of this cause as is necessary, is this:</p> <p>Plaintiff’s attorneys read in evidence a bond made in said county by Swift to Miller, on the 22nd of July, 1863, in which Swift acknowledged that Miller had, that day, paid him $2,000 00, and had given to him two notes, one for $4,000 00, due on the 25th of December, 1863, and the other for $6,000 00, due on the 25th of December, 1864, with interest from the 25th of December, 1863, and bound himself to make to Miller or his executors and administrators, title to certain land therein described, (the premises in dispute,) when those notes were paid. Miller then testified that he paid the $2,000 00 in cash, and the 4,000 00 note all in Confederate currency, stating the several payments to have been as follows : $460 00 on the 14th of August, 1863; $1,500 00 on the 27th of August, 1863; $1,300 00 on the 10th of September, 1863; $250 00 on the 22nd of September, 1863, and the balance afterwards; that, though nothing was said at the time of the purchase, about the currency; he understood that he was to pay Confederate currency, that when he paid off said note, he told Swift that he had' more money, and could get more in a few days, and if Swift wished he would soon pay off the $6,000 00 note, that Swift replied that he had no use for more money then, and did not wish him to pay the other note then.</p> <p>He produced the $6,000 00 note. He explained how it came into his possession; that it was sent to him by mail, by Swift, pursuant to what Swift said was a rescinding of the trade, but what Miller said was not so, because of an alleged mistake which he had made in writing to Swift.</p> <p>He put in evidence a letter from Swift to him, dated the 16th of December, 1864, in which Swift said: “ I write to make you a proposition relative to our trade of property at Lithonia,” (the premises in disputo,) “ as your note will be due in a short time, and I presume you will wish to close it out in some way. 1st. I am willing to let your note stand until the close of the war, and receive pay in good currency. 2nd. Or I will receive Confederate money on a gold basis; that is, I will receive it at what it is worth at this time, allowing the depreciation on Confederate money at the time we traded, which was five to one, and in some localities six to one. Old man Richards sold gold in Augusta last week at thirty-three for one, which would make your note $179,-160 00, after deducting the depreciation at the time we traded. 3rd. I will take the property back, and give you up your note, you losing the amount you have paid. I presume you recollect my proposition last December, and that you refused. * * * *. Since Mr. Morris has possession of the house it is well taken care of, so far as the house goes.” * *</p> <p>They next read in evidence a letter from Miller to Swift, dated 17th of February, 1865, beginning, “Mr. Born informs me you wish to rent the property I bought from you,” and then containing the proposition, pursuant to which Swift, on the loth of February, 1865, sent him the $6,000 00 note, and requested the return of the bond. Because of said alleged mistake in Miller’s proposition he did not return the bond, nor accept the $1,200 00 in Confederate currency, which was sent him by Swift, by express, and was still in the express office unclaimed. Miller then offered to testify that he wrote “$1,200 00” in said letter by mistake for $12,000 00, but the Court rejected the testimony.</p> <p>Another letter from Miller to Swift, dated 25th of February, 1865, in which Miller urged that he had made a mistake, etc!, and ending thus: “you need not take possession until I give it to you,” and a reply to it, written by Swift on the 9th of March, 1865, Avere offered in evidence. The Court rejected all of Miller’s letter, except: “ I Avill send your money and note back if you don’t Avish to comply with the terms stated in this,” and all of Swift’s reply, except: “ as to your note and money I sent you, I have no claim or right to; as for your sending it back to me, if you do, I shall only hold it subject to your order.”</p> <p>Miller further testified, that he did not pay said $6,000 00 note when it was due, nor ever made any tender of payment, except through Mr. Winn; that he had not the money to pay it, but handed the note to Mr. Winn, who offered to raise the money and make the tender; that he fixed upon no amount to be tendered, that he left that to Winn to settle Avith SAvift, but expected it to be the value of the $6,000 00 at the maturity of the note.</p> <p>Winn then testified, that very shortly before the beginning of this suit he Avent to Lithonia as the agent and attorney of Miller, to tender to Swift the remainder of the purchasemone}'-, and to endeavor to get title to the premises in dispute; he saAv Sivift, told him that he had come as agent and attorney of Miller, to pay him the value of the purchase-money yet due, and demand of him the titles to the premises in dispute; that Swift replied that he had no demands against Miller; that Miller furnished him no money; he carried about $100 00 in money, and a check on the Atlanta National Bank for $200 00, Avhich the bank had never accepted ; that he carried the check in lieu of the money, as a matter of conAmnience. Just after Swift’s reply to him, Colonel Goldsmith came in, and asked Winn if the money he had AAras legal tenders, and he thought he said yes; then Swift said to Winn that if he would accept a tender at all, he AA'ould require the gold, to Avhich Winn replied that if he would accept the money he Avould get the gold. He did not remember whether he had the note Avhen he saw SAvift; Miller had giAren it to bim. In the conversation, Swift said he considered the matter settled, and Winn urged said mistake. Winn had not fixed in his mind the amount he intended to pay, but left it to be computed between him and Swift, if Swift would accept; he could not state whether he intended to offer the value of the note' at its date or at its maturity. Swift said Miller owed him nothing, and did not offer to make the title upon receipt of any amount; Winn understood him to mean not that Miller had paid him, but that the trade had been rescinded. Witness offered to pay as abive if Swift would make the title, and not otherwise.</p> <p>It was shown that the value of the premises ranged from $3,500 00 to $4,500 00 before, during, and since the war, and the annual value for rent was put at from $250 00 to $300 00. With this testimony and the table of values of Confederate money as compared with gold, as published in 34th Georgia Reports, the plaintiff rested his cause.</p> <p>Upon motion of defendant’s attorneys, the Court granted a non-suit, and this is assigned as error.</p>

<p>1. A guardian, who acted with the caution of a prudent man, and loaned the money of his wards, prior to the adoption of the Code, 1st January, 1863, and toot a note well secured by a mortgage upon negro property, which was lost by reason of the emancipation of the slave’s, is not liable to his wards for the amount so lost.</p> <p>2. A guardian, who acted in good faith, and received Confederate Treasury notes in payment of debts due his wards, at a time when prudent men generally received them in payment of all debts due, acted under color of law, and is protected by the Act of 1866 and the Ordinances of the Conventions of 1865 and 1868. And if he loaned out the funds so received prior to 1st January, 1863, upon what was, at the time, good security, and they were afterwards lost by the results of the war, he is not liable.</p> <p>3. A guardian who loaned out or invested the funds belonging to his wards, after the adoption of the Code, without an order of Court, did so at his own risk, unless the investment was in the stocks, bonds or other securities, authorized by law ; and he is liable for the value of the money or currency received by him, and so invested or loaned, allowing him a reasonable lime to invest it, whether he lost it or not.</p> <p>4. Where the guardian loaned out the money of his wards, after the adoption of the Code, without an order of Court, and took a note for $1,500 for its repayment, and the Court, on the trial, refused to allow the note to be read in evidence, because it was no stamped : Held, that the Court did not err, as the guardian was liable in any event, in such case, for the value of the currency when received, allowing him a reasonable time to re-invest, and the note, whether stamped or not, was properly rejected.</p>

Widow’s year’s support. Equity. Injunction. Decided by Judge Green. Spalding Superior Court. February Term, 1869. Corbin obtained a judgment, in 1861, against Jethro Jackson. Other persons, in the same year, obtained other judgments against Jackson. In 1868, Jackson, in consideration of $1,600 00, conveyed to Samuel D. Irvin, by deed, with a warranty of title, certain land, receiving all the purchase-money except $900 00, and for that took Irvin’s note.

Inn-keepers. Jurisdiction of Justice-Courts. Decided by Judge Green. Mbnroe Superior Court. November Term, 1869. Rockwell sued Proctor, in the Justice-Court, as an innkeeper, for the value of an overcoat left at said inn, and lost. Proctor plead the general issue, and that he never, as said inn-keeper, had said coat. The case was on the appeal.

<p>1. An heir-at-law, before he can claim any part of an estate as distributee, must account for advancements at their value at the time of the advancements.</p> <p>2. In the distribution of intestate’s estate, a memorandum, kept by the parent, of his advancements to his children, indicating a scheme of distribution of specific articles in kind, is only evidence of the fact of the advancements, etc., prima facie of their value, and its indications of the intestate’s scheme for the distribution of his estate will be unheeded, unless the paper be proven as a will.</p> <p>8. The value of an estate, at the time of the first distribution, is the proper criterion for arriving at the rights of the heirs-at-law, with respect to advancements.</p>

<p>When the Court below granted a new trial on the ground that two of the jurors who tried the case, were members of the grand jury, and had found a true bill against the defendant for the same trespass on the criminal side of the Court, which fact was not known to the defendant until after the trial: Held, that this Court will not control the discretion of the Court below in granting the new trial.</p>

<p>Remarks by the Judge. Motion for new trial. Before Judge Worrell. Muscogee Superior Court. November Term, 1868.</p> <p>Coleman sued Steinheimer upon an account, as follows:</p> <p>Rent of store from 28th Feb’y, 1866, to 1st October, 18G6, $1,000 00</p> <p>Wrapping-paper, twine, etc..........•'.................................... 6 00</p> <p>Personal services in selling his goods, @ $30 00 per month, from 1st March, to 13th August,................................. ICO 00</p> <p>Board from. 8th April to 1st July, @ $40 00 per month,.......... 109 30</p> <p>Washing and ironing during same time,............................... 10 00</p> <p>Use of horse and buggy almost every day from 1st March to 28th July,.......1............................................................. 200 00</p> <p>Money paid at his request to Morris (carpenter,) for putting backs to cotton-cards — paid 28th July, 1866,............... 36 25</p> <p>Freight and expenses paid for him, July 12th, 1866,......$8 45</p> <p>Do. Paid July 14th,.......................................... 1 39 9 84</p> <p>Insurance paid for him to R. B. Murdock, Ag’t., 22nd June,... '39 50</p> <p>$1,574 89</p> <p>Or. by cash for his goods sold frota 1st July, I860, to 13th Aug., 1866,..................................................................... 90 50</p> <p>Balance,.......................................................................$1,479 39</p> <p>The plea was the general issue. On the trial the plaintiff testified that, on or about the 1st of March, I860, he rented to defendant, from the 28th of February, 1866, till the following October, sufficient room in plaintiff’s store for defendant to keep, exhibit and sell his goods, at the agreed price of $1,000 00. Defendant did so occupy said store from the 1st of March, 1866, to the 13th of August, 1866. He sold defendant’s g'oods for him, and considered this service, wrapping-paper and twine worth, at least, $30 00 per month; that defendant agreed to pay what said services were reasonably worth; that he boarded defendant from the 8th of April, 1866, till the following July, at the agreed price of $40 00 per month, defendant to have his washing done elsewhere, but it was done by plaintiff’s servants, and worth $10 00; that almost daily, from the 1st of March, 1866, till the 28th of June following, the defendant used plaintiff’s horse and buggy, to carry him, defendant, to the butcher pen, to carry his goods to the auction store, and to ride his wife, using it sometimes three or four times in a day, and also used plaintiff’s servant as a driver, agreeing to pay therefor what was right; that a horse and buggy cost $5 00 per diem at the livery stable, and plaintiff thought such use was worth $200 00; that he paid the carpenter as charged in the bill of particulars; that he paid for defendant $9 8.4 to the Muscogee Eailroad Company for freight, and to Murdock, for insuring defendant’s goods, $35 50 ; that the defendant had paid him nothing on any of said accounts, but was entitled to the credit stated in the bill of particulars.</p> <p>Upon cross-examination, he testified that he paid, as rent for said store, $25 00 per month from July to October, 1865, and $1,000 00 from October, 1865, till October, 1866; that in June or July there was a misunderstanding about the rent with the landlord, and he agreed to pay the. landlord $3,-000 upon the agreement of defendant that he would pay $2,000 00; that defendant had many damaged goods, and hauled them to and from the auction store very often ; that a Baltimore merchant, (whose name he did not recollect,) had offered to pay plaintiff $3,000 00 for the store, and buy his stock at a large per cent, above costs; that he did not agree with defendant to keep and sell his goods, and to take therefor twenty-five per cent, of the profits; that in February he borrowed $300 00 from defendant, but repaid it about the 27th of April, 1866 ; that his servant told him defendant had her to do his washing, and paid nothing but a rotten belt, worth only twenty-five cents; that defendant had no exclusive control of the horse and buggy, but ordered it when he wished.</p> <p>Plaintiff’s counsel tendered in evidence two receipts, purporting to bo signed “ Hunter, Ag’t.,” for $1 50, and $8 34, respectively, for freight due the Muscogee Eailroad Company. They were objected to upon the grounds that Hunter was not shown to be the agent of said company, or that the signatures were his. The objections were overruled. They also offered a receipt for $36 25, signed by said Morris, carpenter, and one for $39 50, signed by Murdock, insurance agent. These the Court rejected because they were unstamped.</p> <p>Defendant’s counsel introduced seven witnesses to impeach the plaintiff, five of whom testified that because of his characfcer they would not believe him on oath; the other two said they would believe him.</p> <p>The defendant then testified that he put his goods into plaintiff’s store upon an agreement that twenty-five per cent, of the profits should be paid plaintiff for rent, and that till defendant went North, plaintiff daily took out his said pay therefor; that he never agreed to pay $1,000 00 for rent, could have gotten such room as plaintiff furnished him at $25 00 for three months’ rent; that he sold goods for plaintiff, and considered their services in that regard as a fair set-off; that the agreed price for his board was $30 00 per month, and was regularly paid, and he paid the servant for the occasional "washing which she did for him; that ho never hired the horse and buggy, but did occasionally use it, as plaintiff had testified, having no idea that he was charged for it; but used it ^s a friend uses such property of another friend, and that he never used them over fifteen or twenty times, except when riding with plaintiff to and from his meals at plaintiff’s request; that the items of $36 25, paid Morris, and $9 84 paid freight to the Muscogee Railroad Company, were correct, but he had not paid them because he and plaintiff had not settled for his goods sold by plaintiff while he, defendant, was in New York; that he repaid plaintiff the $39 50 paid by him. to Murdock, insurance agent; that he never took any receipt from plaintiff.</p> <p>During this cross-examination, defendant admitted that he had been turned out of the ministry of the Jewish Synagogue in said county, and was asked by plaintiff’s counsel why he was turned out. Defendant’s counsel objected to his answering the question. Defendant expressed his willingness to answer. The Judge asked the plaintiff’s counsel if he insisted upon the question, and he replied affirmatively. He then asked defendant’s counsel if they insisted on their objection, and they said they did. Thereupon, the Judge turned to the defendant, on the witness-stand, and said, loud enough for the jury to hear him, “I am perfectly willing to hear your explanation, but as your counsel objects, I must sustain the objection.”</p> <p>After the Court charged the jury, the Judge directed the plaintiff’s counsel to hand the papers to the jury. Whereupon, he took up a package containing the said receipts for $1 50, $8 34, $36 25, and $39 50, and two other notes or receipts, signed by Hunter, as agent for the Muscogee Bail-road Company, which two last had never been tendered in evidence, and it was admitted in the argument that they had nothing to do with the case, and said, “ shall I give these papers to the jury ?” The Court replied in the affirmative, and the jury took the package. The jury found for the plaintiff for $312 59, with interest from 1st January, 1869, and costs.</p> <p>Defendant’s counsel moved for a new trial, upon the grounds that the verdict was contrary to the weight of the evidence; that the said remark of the Judge to the defendant while on the stand, was error; that his allowing the jury to take out said package of papers over defendant’s objection, was also error. When the motion for new trial came on for hearing, plaintiff ’s counsel stated that he did not recollect that there was any objection made to the jury’s taking out said package, and the Judge said he did not. B. J. Moses stated, in his place, that he conducted the cause for defendant, and defendant was anxious to explain said receipts) but he refused to allow him to do so, because the Court had ruled them out; that in the afternoon of the same day, B. J. Moses, Jr., told him that the Court had allowed them to go out with the jury, and he replied to B. J. Moses, Jr., that “ it was unheard of.” A member of the jury made an affidavit that when the package was handed to the jury “ Mr. Moses said something about the receipts going out, but he, (affiant,) cannot remember what.” Nothing else appearing, the Court refused a new trial, and this is assigned as error.</p>

Before Judge 'Worrill, Chattahoochee Superior Court. March Term, 1869. Mrs. Cousins brought an action for money had and received, against McCook, and on the trial the evidence was as follows: She testified, that she and a negro named Edmund, in 1866, contracted to farm together, upon land rented from Duncan’s estate, and from McCook; she was to furnish (and feed) two mules, and her two sons to work; he to find himself and hands: and they were to divide the crop equally.

<p>A suit was instituted on a guardian’s bond against the principal and security to recover the amount of a judgment alleged to have been rendered against the guardian, and when the judgment was offered in evidence it appeared to have been rendered against the defendant therein in his individual capacity, and not as guardian. The plaintiff then moved the Court to amend the judgment, upon the ground that it was rendered upon a note signed by the defendant in his individual capacity, but in the body thereof promised to pay the plaintiff the amount specified in the note “as guardian,” without stating for whom, he was guardian. The Court refused the motion to amend the judgment, and non-suited the plaintiff’s case upon the evidence offered to charge the guardian and his security in a suit upon his guardianes bond for the amount of the judgment claimed by the plaintiff: Held, that the guardian could not, by any contract, bind the estate of his ward so as to render his security liable therefor, other than such as are specially allowed by law, as provided by the Code, and that there was no error in the refusal of the Court to allow the judgment to be amended, and in granting the non-suit, upon the statement of facts contained in the record.</p>

Equity. Dissolution of injunction. By Judge Cole. Bibb Superior Court. February Term, 1869. Douglass’ bill against Thomson and the sheriff of said county, contained the following averments: Douglass bought of D. W. Hammond a plantation, containing eight hundred acres of land, at $6,400 00, and gave his note therefor, signed by Thomson as security, and secured by a mortgage on the land.

Constitutional laws. Injunction. Decided by Judge Cole. Chambers. Bibb county, March 1869.

Establishing lost will. Before Judge Robenson. Jasper Superior Court. December Term, 1869. Elizabeth Kitchens averred that her 'husband, Charles Kitchens, died testate, produced an alleged copy of his will, by which she took the whole estate and prayed the Ordinary that it should be established in lieu of the lost orignal.

<p>Habeas Corpus. Certiorari. Decided by Judge Pope. Floyd Superior Court. March Term, 1869.</p> <p>R. F. Payne died in April, 1868, testate, leaving his wife, Mary II. Payne, and two sons, Samuel H., born in April, 1866, and Benjamin E., born in February, 1868. The fourth item of his will was as follows: “ Having implicit confidence in the integrity, experience, and judgment of my father, Samuel T. Payne, and, as my children are young, and to be raised and educated, as well as their circumstances will permit, and, as my wife is also young, and without much financial experience, I do ordain, constitute and appoint my father, Samuel T. Payne, guardian both of the persons and property of my two before-mentioned sons, Samuel and Benjamin, with full power and authority to appropriate all or such portions of their estate hereby bequeathed to them/ respectively, as, in his judgment, he may deem best for their maintenance and education, and I do hereby counsel and advise my beloved wife to stay and reside with my father, Samuel T. Payne, and to be governed by his counsel and advice, at least, during her widowhood, being conscious that he will, as hé has done, act the part of a father by her.” Said Samuel T. was the nominated executor. The widow and her sons lived with him. She assisted in the household duties, etc., for some time, but finding that mode of life inconvenient and disagreeable, she determined to leave, and take lier sons with her. Said Samuel T. Payne would not allow her to take the boys away. On the 20th of February, 1869, she sued out, against him habeas corpus, alleging that he detained said boys illegally. The Ordinary issued the writ, and, in reply to it, he answered that he held them, under said item of said will and his letters of executorship under the same.</p> <p>At the hearing, said ¡Samuel T. testified that said Mary H. had only about two hundred dollars worth of property, besides some beds and bedding; that he and those who knew her, looked upon her as a person of weak mind, and unfit to raise children. He further swore that their father often told him that he wished him to keep the boys, and not to allow them to go elsewhere; that he would about as soon see them dead as raised at Tult’s. (Tult was Mrs. Payne’s step-father, and she intended going to him. He lived in Lincoln county, two hundred and fifty miles from Rome, Georgia.) He said he had kept, since testator’s death, and was willing yet to keep, the widow and the boys.</p> <p>The Ordinary directed the boys to be delivered to their mother, and that Samuel T. Payne should pay the costs. The defendant’s attorneys sued out a certiorari to review said decision. Upon argument, the Judge overruled the certiorari, and ordered the boys, at once, delivered to their mother. This is assigned as error.</p>

Equity. Eeceiver. Decided by Judge Harrell. Webster Superior Court. March Term, 1869.

Equity. Conveyancing, etc. Stamps. Tried before Judge Harrall. Early Superior Court. April Term, 1869.

Partnership. Pleadings. Evidence. Tried before Judge Hakrerl. Early Superior Court. April Term, 1869. McDonald brought complaint against said Long, of Clarke county, and John M. Phinizy “partners and farmers of said county,” upon an open account for supplies for the farm, etc. Long was named by initials only. The suit was brought in January, 1868.

<p>Contempt. Decided by Judge J. M. Clark. Baker county. Chambers.</p> <p>Cook filed a bill for injunction and the appointment of a Eeceiver, etc., against said Smith and D. D. Smith, in said county, touching certain cotton, on which Cook claimed a factor’s lien. The prayer was that “they be enjoined from further interfering with the said crop of cotton that the same may be held for the purpose of discharging said drafts at maturity,” ******* and that a Eeceiver may be appointed by this Honorable Court, to take charge of said plantation and said farm, and have the cotton crop delivered in conformity to said contract and agreement,” etc.</p> <p>The Court sanctioned the bill, and passed the following order : “ John F. Cagile, of Dougherty county, is hereby appointed Eeceiver to take possession of said crop and farm, and attend and have the same gathered, and the sheriff is required to put said Eeceiver in possession.” By a supplemental bill and injunction, each of said Smiths were enjoined from “ alienating said property or any part thereof.” The Eeceiver, under said order, ivas in possession of said farm and crop. While he was so in possession, said Frank P. Smith was adjudged a bankrupt, on his own petition, by a Register in Bankruptcy. After this, and before more was done, four bales of the cotton which the Receiver had gathered off said farm, were taken away from the farm. It being suspected that Frank P. Smith had taken them, ho was ordered by the Chancellor to show cause why he should not return said four bales of cotton to the Receiver, and wiiy he should not be punished for a contempt of said injunction. Frank P. Smith appeared and plead, that before the removal •of the said four bales of cotton he was a bankrupt under the laws of the United States, and that he had been so adjudged in the District Court of the United States by F. Hesseltine, Register in Bankruptcy, and that thereby the Superior Court of said county ceased to have jurisdiction of said cause. At the same time he answered the rule. He said he did not remove said cottotp nor had anything to do with its removal; that the facts were as follows: When he filed his application in bankruptcy he reported this cotton with his other property, to his attorney, J. J. Hall, to be put into his schedule; his attorney assumed the expenses of the proceedings in bankruptcy, and was to receive therefor $300 00, and that he would charge the four bales of cotton for his reimbursement, and he, Smith, consented thereto, but with the distinct understanding that Hall was to take the chances df recovering said bales of cotton from the Receiver, as he, Smith, would not undertake to interfere with the Receiver’s control of the same; that he stated to Hall that he could only sell to him his interest in the said cotton, and no more, as it was in the hands of the law; and as he, Smith, had no other means of paying him, Hail accepted the proposition, and afterwards took possession of the cotton, and afterwards told Smith that if it was not awarded to him, Hall, by the Register, he, Hall, would hold it subject to the order of the Court. He denied any intention to violate the injunction; said Hall had advised him that his conduct was right, and would cause him no trouble; that the cotton was stored subject to Hall’s order, and he prayed that Hall deliver it up if he, Smith, had done wrong.</p> <p>Upon the hearing it was shown that while the agent of the Eeceiver and the Eeceiver were both absent from the farm said four bales of cotton were taken away from his possession without their consent; that Frank P. Smith had said to this agent that said injunction was settled or disposed of, when it had not been settled or disposed of, and that he had turned over said four bales of cotton to his counsel in bankruptcy. Hall testified that Frank P. Smith, when he engaged him, said he had been enjoiried from the use of his cotton crop, and he advised Smith that an adjudication in bankruptcy would be a virtual disposition of the injunction, and Smith made the transfer of his interest in said four bales of cotton with the understanding that it would not be a violation of the injunction; that Smith had no agency in the removal of it, but that he, Hall, had it moved for safe-keeping, (but not out of the jurisdiction of the Court,) aud had proposed to give Cook a bond of indemnity if the Court should hold he was not entitled to it. He then gave in full his reasons for believing his advice was correct.</p> <p>It was shown that the cotton was worth twenty-five and a half cents per pound at the hearing; that it was worth from twenty to twenty-one cents per pound on the first of December then last; that Johnson, a warehouseman, had shipped it to Savannah, after advancing $250 00 on it, and had sold it. The adjudication of bankruptcy was proved.</p> <p>The Chancellor ordered Frank P. Smith to be confined in jail, without bail or main prize, until he returned said four bales of cotton to the Eeceiver, or pay him $496 40, its value, and the costs of this proceeding.</p> <p>Frank P. Smith’s attorney sued out a bill of exceptions, assigning that tire Chancellor erred in taking jurisdiction of said Smith under the circumstances, in holding that Smith was liable for the removal of said cotton at all, in holding that his bona fides, and the advice of his counsel, did not protect him, and in holding him liable for the value of the cotton at the time of hearing.</p>

Dower. Omns probandi. Tried before Judge Gibson. Washington Superior Court. December Term, 1867. The husband of Francis E. Haines died, and McCullers became his administrator. She petitioned for an assignment of her dower out of certain lands, of which she averred that her husband died seized and possessed. McCullers resisted it upon the ground that her .husband in his lifetime had sold and conveyed the lands to him.

<p>Proceeding to eject intruder. Before Judge Parrott. Whitfield Superior Court. December Term, 1868.</p> <p>Stansell, on the 8th of August, 1867, made his affidavit according to law to eject McHan from certain premises in Dalton, Georgia, upon the ground that he was an intruder, that he did not in good faith claim a right to such possession, and yet would not abandon the same. McHan filed his counter-affidavit, claiming a legal right to such possession, and this issue stood for trial in the Superior Court.</p> <p>The evidence for Stansell was, that he had contracted for the premises from E. R. Sassern, and paid him. part of the purchase-money; afterwards M. C. Martin became the owner oí the premises, and the trade with Sassern was changed over to Martin. Martin, on the 7th of June, 185 — , gave to Stansell his bonds, conditioned to make him titles to the two parcels of land upon his paying two promissory notes given for the balance of what he had agreed to pay Sasseen, and upon his making to Martin a deed to another lot. Under this original contract and under these bonds Stansell occupied the premises from early in 1857 till about the 20th of December, 1863. When he refugeed from Dalton to Middle Georgia, he made arrangements for a tenant to occupy the premises, but this failing, he left them vacant, intending to return when he could. He never was in Dalton afterwards till in April, 1869, he went there to attend Court, and then , found McHan in possession. Stansell had no title to said lands except as stated.</p> <p>For the defendant it was shown that Martin had traded off said notes and endorsed them. He and Stansell was sued thereon, and judgment was entered against Stansell as maker, and Martin as endorser, in November, 1860; and no part of this judgment has ever been paid. Martin died and Sibey Martin became his administratrix. She, as such administratrix, employed an attorney to get possession of the premises. He found certain persons in possession, notified them that he would sue them and they moved off, setting up no claim to the premises. He then put a person in possession as tenant of Mrs. Martin, administratrix, and when he went out, to-wit: in November 1866, McHan went in as her tenant. There being no controversy about the facts, the Court instructed the jury that Stansell was entitled to recover the possession of the premises, and they found accordingly. This instruction is assigned as error.</p>

Ejectment Conditions and Covenants in deeds. Before Judge Parrott. Whitfield Superior Court. April Term, 1869. This was ejectment in favor of the heirs of Mark Thornton, for a parcel of land in Dalton, Georgia, whereon are the passenger and freight depots of the Western & Atlantic Rail Road. The pleas were the general issue and the statute of limitations.

Landlord and tenant. Motion for a new trial. Before Judge Pope. Fulton Superior Court. October Term, 1868.

<p>Dying declarations. Motion for new trial. Before Judge Green. Spalding Superior Court. February Term, 1869.</p> <p>Wooten brought case against Wilkins for the seduction of his minor daughter, averring that she bore a child begotten by Wilkins, and she and the child died, and that thereby he lost her services and that of her mother, (in waiting upon her and the child,) and paid physician’s bills> traveling expenses, burial expenses, etc. All the facts as averred, were proved, except that she was seduced, and that Wilkins was the seducer. Upon these points the following circumstantial evidence was offered: Two letters written by one of the witnesses for Wilkins, to said daughter, in which he speaks of great anxiety to see her, etc., but made no allusion to sexual intercourse. Her mother testified to the color of the child, (which lived a few weeks) and that it favored Wilkins; and a physician, as an expert, stated facts in his science going to show that a child begotten by Wilkins, probably would have had such color. It was shown that Wilkins frequently visited her at and before the date of her pregnancy, but there was no evidence of their being seen in any suspicious situation; and it appeared that other men stayed at the house where she was a servant. (It was stated in argument here, that the parties were negroes.)</p> <p>During the trial, plaintiff’s attorney asked the mother who the daughter said was the father of the child, and under what circumstances she said it, and stated that he wished to prove this as her dying declarations. The Court would not allow the witness to answer the question. The verdict was for defendant. A new trial was asked for, upon the grounds that the Court erred in refusing to allow said question answered, because the verdict was contrary to law and the evidence, and for certain newly discovered evidence. This last ground was not insisted upon. The Court refused a new trial, and that is assigned as error.</p>

Dower. Tried before Judge Pope. Floyd Superior Court. March Term, 1869. William R. Smith died in May, 1864, leaving his widow, Anna E. Smith, surviving him. In August, 1866, commissioners appointed to assign her dower, assigned to her four lots of land embracing the homestead, to-wit: Numbers 233, 248, 273 and 288, in the 23d district and 3d section of Floyd county, for life, or in lieu thereof, absolutely, $12,000, if she preferred it. She elected to take the money.

• Quo Warranto. Tried before Judge William Schley. Chatham County. March) 1869.

<p>Pleading. Jurisdiction. Slave note. Before Judge Habbell. Randolph Superior Court. November Term, 1868.</p> <p>Shorter, as bearer, sued J. L. Cobb, et al., upon their promissory note, dated the 16th of July, 1861, and due twelve months after date. When the cause was called for trial, the defendants’ counsel moved to dismiss it, upon the ground that said note was given for slaves. Without submitting the cause to a jury, the Judge examined Cobb, who testified that said note was given for slaves. Thereupon, the cause was dismissed. This is assigned as.error.</p>

Jurisdiction. Slave note. Before Judge Parrott. Chattooga Superior Court. March Term, 1869. Hart and W. D. Davis, his security, in 1859, gave to White, their promissory note, due the 1st of March, 1860, and White sued them on the same. At March Term, 1869, the defendants plead that the consideration of said note was a slave, and insisted that, for that reason, the Court could not try the cause.

Jurisdiction as to slave debts. Attorney’s fees. Before Judge James M. Clark. Sumter Superior Court. October adjourned Term, 1868. In 1850, Francis M. Jones and his wife, Julia A., brought trover against said Morgan to recover certain slaves, or their value and hire. Francis M. had died, and the action was pending in the name of the said Julia A., as survivor.

Claim. Motion for new trial. Decided by Judge Clark. Baker Superior Court. November Term, 1869.

Criminal law. Marriages of negroes and whites. ' Decided by Judge Clark. Dougherty Superior Court. December Term, 1869.

Ejectment. Motion for new trial. Decided by Judge James M. Clabk. Sumter Superior Court. April Term, 1869. This was ejectment upon the several demises of John Malcom, Hillman Hawks, et. al., against John Thomas, tenant in possession, for land lot No. 43, in the 17th district of originally Lee, now Sumter county.

Equity practice. Injunction. Decided by Judge J. M. Clark. Baker Superior Court. November Term, 1868.

Claim. Practice. Evidence. Tried before Judge Jas. M. Clark. Lee Superior Court. March Term, 1869. Cock and Thompson, as administrators of Eobert Thompson deceased, had a mortgage fi. fa., in their favor, against A. H. Phillips, levied upon lot, No. 293, 14th District, Lee county, and Green and West claimed it.

Claim. Homestead. Prescriptive title. Decided by Judge Parrott. Whitfield Superior Court. April Term, 1869. Ou the 29th of October, 1861, Dooly obtained a judgment against one Forsyth, upon which a fi. fa. was issued on the 13th of November, 1861. On the 4th of November, 1868, this fi. fa. was levied upon a lot of land in said county, as Forsyth’s property. Isbell, as trustee for his children, claimed the land.

Claim. Lien of judgment. Decided by Judge Walker, an attorney selected to try the cause. Bartow Superior Court. March Term, 1868. On the 23d of November, 1858, in Cass, (now Bartow) Inferior Court, D. L. and R. M, Wingard obtained two judgments against Joel Stone. On each of these judgments a fi. fa. was issued on the 8th of December, 1858.

Before Judge Pope. Troup Superior Court. November Term, 1868. Broughton was seeking to foreclose a mortgage against Godwin. He resisted it upon the ground of payment. It appeared that Godwin let Broughton have $2,000 00, to be used for their joint benefit, or, if not so used, to be returned.

Bills of Exchange. Constitutional law. Decided by Hon. Dennis F. Hammond, presiding by consent. Fulton Superior Court. October Term, 1868. Held: and directed the jury to sign a verdict for said defendant. Plaintiff’s attorneys say that-the Judge erred in holding that said paper was a bill of exchange entitled to days of grace before demand of payment and protest, and in holding that any demand and protest were necessary to bind the endorser on that paper.

<p>If B purchase from A two parcels of land at the same time, and when they come to draw the writings, A suggests that B, to save the writing of two deeds, take a deed for one of the parcels from C, from whom A had purchased it, but had not yet gotten title, saying it would do just as well, and B consented, and there was in fact a mortgage on that land, given by C, of which B was ignorant: Held, that B, who had the mortgage to pay, might, in a suit by A on one of the notes given at the time, plead a failure of consideration to the amount of his damage.</p>

Equity. Landlord and tenant. Administrator buying at his sale. Decided by Judge Green. Monroe Superior Court. February Term, 1869.

Homestead. Constitutional law. Dormant Judgment. Before Judge Green. Monroe Superior Court. April Term, 1869. Chambliss petitioned the Ordinary of said county for the exemption from his debts of certain personalty and certain land as his homestead. In obedience to the order of the Ordinary the county surveyor laid off certain five hundred and one acres of land in said county as said homestead, and certified that they were not worth over $ 2000 00 in specie.

<p>Motion to set aside confession of judgment. Decided by Judge Gbeen. Spalding Superior Court. February Term, 1869.</p> <p>See this case in 36th Ga. R., 108. When it was called for re-trial, counsel for Dobbins moved to dismiss the motion to vacate the judgment upon the ground that, pending this motion, Dupree had been adjudged a bankrupt and had an assignee in bankruptcy duly appointed. These statements were proved by the record from the proper offices. The Court overruled the motion to dismiss and ordered that the trial proceed. The evidence produced in this case before, was reproduced; there was some variation in the words of the witnesses, and also some additional testimony. For so much of this as is material to an understanding of the opinions, see them.</p> <p>The Court charged the jury, 1st. That the employment of an attorney-at-law, by a party, in all his cases, does not authorize the attorney to acknowledge service of the suits; the authority to acknowledge service must be specially given; it may be a general authority to acknowledge service in all suits or a special authority in particular suits. 2d. If Dupree had notice of the suit and afterwards, Cook, as attorney, under his authority, either special or general, confessed a judgment for him, Dupree is bound by it.</p> <p>He was requested to charge that, though the attorney was not duly authorized to acknowledge service and confess judgment, yet if the same was done and the defendant admits that all the defense he had against the note was usury reserved in the contract by the plaintiff in the judgment sought to be set aside, who has, according to the evidence, remitted and discharged from said judgment all the usury included therein, the jury should find in favor of Dobbins. The Court refused so to charge. He further charged that, if Dupree had notice of this judgment in 1862 and 1863, and took no steps to vacate or set it aside until 1866, such conduct may amount to an acquiescence in and ratification of said judgment, and the jury may find for Dobbins, as a party may be bound by the act of an assumed agent either by ratification or by silence, according to the circumstances of the case. The jury found for Dupree, vacating the judgment. Dobbins’ counsel moved for a new trial, upon the ground that the Court erred in not dismissing the motion, because of Dupree’s bankruptcy ; that the verdict is contrary to the weight of the evidence ; that the charge of the Court first stated was erroneous; that the verdict was contrary to the charge of the Court as to acquiescence after notice of the judgment, and that the refusal to charge as requested was error. The Judge refused a new trial, and upon this error is assigned.</p>

<p>A fi. fa. issued on the 12th of April, 1861, on which is no entry by a proper officer to execute and return the same, within seven years from that date, is dormant. The Act of the 30th of November, 1860, and subsequent Acts supending the Statute of Limitations, and the several Acts enacting Stay-laws did not suspend the dormant Judgment Act; that Act is not a Statute of Limitations. Wabkee, J., dissents.</p>

<p>Lien ox judgments. Equity. Tried before E. H. Pottle, Esq., presiding by consent. Wilkes Superior Court. March Term, 1869.</p> <p>Judge Andrews having been of counsel in this cause, by consent, Mr. Pottle, an attorney of the Court, was made Judge pro hao vice. This case is that of Anderson vs. Walton, 35th Ga. E., 202. In March, 1861, Nicholas Taliaferro obtained a judgment against Phebe Stinson and Walton. While this judgment was unpaid, and a subsisting lien on the property of said defendants, Anderson bought of Mrs. Stinson eighteen bales of cotton. This was in November, 1865, before the Stay-law had been declared unconstitutional, and while the Ordinance of the Convention of 1865 subsisted. Walton, by bill, averred that Anderson bought said cotton with notice of this lien on it, mixed it with his own, so that it could not be identified, and was removing it out of the jurisdiction of the Court, that he, Walton, was only security for Mrs. Stinson, and -wished injunction against the removal of the cotton, lest he should lose the money. Discovery was prayed for. The judgment having been entered against Walton, as a principal, by amendment to his bill, Taliaferro was made a party complainant, and prayed that the judgment be corrected so as to be against him as security for Mrs. Stinson.</p> <p>The answer of Anderson was that he bought the cotton in 1861, bona fide, and for a valuable consideration, without notice of said lien.</p> <p>The judgment was corrected by an order nunopro tuno, so as to make Walton a security thereon. At the trial the original fi. fa., and the order so amending it, were read in evidence to the jury. Complainant then examined Walton, who testified that Anderson, in the winter of 1861-2, he thought, bought said cotton from Mrs. Stinson, knowing it was hers, after witness had told him of said Taliaferro judgment, and of another in witness’ favor against Mrs. Stinson; that he was at the depot when the first lot of twenty bales of cotton was stopped by this injunction, and saw in that lot twelve bales marked P S, and afterwards saw two or three other bales of it in Anderson’s warehouse, two or three marked P S, and others B S; witness thought the marks B S, T B S and BBS had been changed. Another witness testified, that in the fall of 1865 he saw, in Anderson’s warehouse, six bales of cotton marked B S, and one damaged bale marked P S. One Jones testified, that in 1862 or 1863, he, as agent for Mrs. Stinson, sold Anderson said eighteen •bales of cotton, and received in payment for them an account due from Mrs. Stinson to Anderson, Jones’ own account, and some cash; he did not tell Anderson it was Mrs. Stinson’s cotton, but Anderson was her neighbor, and she was his customer; Jones was her nephew, and generally attended to her business, and he supposed Anderson'knew the cotton belonged to his aunt; he knew none in the neighborhood whose initials were B S but Ben. Smith, a farmer, who did not deal in cotton. It was shown that cotton in the fall of 1865 sold for 36J cents per pound, and that five cents per pound was a fair allowance for, expenses. The agent, at the depot where the cotton was stopped by the injunction, testified that the cotton was marked with “I. L. A. to' J. J. R. & Co.,” and with other marks, as follows: three marked P S, two S S, seventeen B S, two BBS, and one B B; that-eighteen bales were brought next day to the depot, and they and the twenty-four brought the first day were sent to Augusta at Anderson’s request.</p> <p>The defendant relied on his answer. Complainants’ counsel requested the Court to charge the jury: 1st. That whether Anderson bought said cotton bona fide, and for valuable consideration, and without notice or not, he could not protect himself and obtain a good title to the cotton against the judgment by proof of two years’ possession, as the plaintiff in fi. fa., Taliaferro, could not enforce his judgment from the time of the purchase by Anderson to the end of the war. 2d. That if they believed from the evidence that the eighteen bales of cotton bought of Mrs. Stinson were mixed with the eighty-two bales belonging to Anderson, without marks of identification, and could not be identified, complainants were entitled to an account in equity from Anderson in the proportion that the whole cotton sold at the time of the service of the bill bore to that which was unsold.</p> <p>The Court refused so to charge, but charged that, though it was a matter of doubt, his opinion was that he was bound by the decision of the Supreme Court to charge that two years’ possession of the cotton, bona fide, and for a valuable consideration, without notice, before the levy or service of this bill, discharged said cotton from the lien of said judgment under 3525th section of the Code; that complainants were not entitled to recover for any of the bales of cotton so bought of Phebe Stinson, which were mixed with defendant’s cotton, unless the particular identical bales of cotton so bought could be identified by sufficient proof, unless it was shown that the mixture 'was made wrongfully and fraudulently. The jury found for Anderson. Complainants’ counsel say that the Court erred in refusing to charge as requested, and in charging as he did.</p>

■ Constitutional laws. Homestead. Decided by Judge Andrews. Wilkes Superior Court. April Term, 1869. John Downer applied to the Ordinary of Wilkes county for exemption of personalty, worth $ 1,000 00, and of his homestead under the Act of the 3d of October, 1869. Nine hundred and thirty acres of land, certified by the surveyor to be worth not more than $2,000 00- in gold, and his personalty were allowed him by the Ordinary.

Illegality. Homestead. Before Judge Andrews. Hart Superior Court. March Term, 1869. Linton Stephens and Cosby Connell, as executors of James Thomas, deceased, foreclosed a mortgage made by Kelly on the 3d of May, 1859, and a mortgage fi. fa. issued accordingly, in April, 1867. Kelly had said land laid off and set apart as his homestead under the “Homestead Act” of 1868.

Landlord and tenant. Before Judge Worrill. Muscogee Superior Court. November Term, 1868. This was complaint on the following note, begun 15th August, 1867. “ §137 50. Columbus, Ga., December 22d, 1866. On or before the first day of July, 1867, I promise to pay W. U. Garrard, executor, the sum of one hundred and thirty-seven dollars and fifty cents, for store rent. Henky C. Pope.” Plaintiff introduced the note and closed.

Equity. Trust. Wife as witness. Before Judge Cole. Macon Superior Court. September Term, 1867.

Jurisdiction over slave contract. Specific performance. Before Judge EobLnson. Baldwin Superior Court. August Adjourned Term, 1868.

Equity. Mistake, etc., in award. Demurrer. Before Judge Bigby. Chambers. Polk county. March, 1869. So much of the facts of this voluminous record as is necessary to an understanding of the decision, is set forth in the head note and opinion prepared by Judge McCay.

Eule against Sheriff. Before Judge Habbell. Early Superior Court. April Term, 1869. In March, 1861, Eowe mortgaged laud to Jones to secure his note, due in January, 1862. The mortgage was foreclosed, and the fi. fa. delivered to the sheriff in time, for him to have made the money by said term. He did not make it, and Jones ruled him.

<p>The single fact that the defendant lost a large amount of property by the late war, without any proof that the plaintiff was in fault, or that it was caused in any manner by the plaintiff’s act, raises no equity for the reduction of a debt contracted before the war.</p>

Motion to set aside judgment. Slave note. Decided by Judge Harrell. Terrill Superior Court. November Term, 1868. John B. Crim held a note on John Maguire, made in 1860, and due in 1863, and in 1862 transferred it to Graham, en dorsing it as follows: “ I endorse the within note for value rec’d.” Graham sued the maker and endorser on said note, and obtained a judgment against both in 1866.

Equity jurisdiction, etc. Decided by Judge James M. Clark. Dougherty county. Chambers. April, 1869. Jerry Beall, of Baldwin county, Georgia, sued Eugenia C. Beall, Julia A. McLaren, Peter McLaren, and Mathew L. Bryan, in Dougherty Superior Court, on two promissory notes made by them to him, for $20,000 00 each, each dated the 23d of January, 1866, and due on the 1st of January, 1867 and 1868, respectively.

<p>Proof of handwriting. Case. Decided by Judge Gibson. Richmond Superior Court, January Term, 1869.</p> <p>On the 8th of September, 1865, Joseph Crews bound himself in writing to convey for Bruce two hundred bales of cotton from Laurens Court-house, South Carolina, to Augusta, Georgia, within eight weeks from that date, in consideration of $6 00 per bale in gold, to be paid by Bruce to Crews, as the cotton arrived. This cotton was then in Crews’ warehouse at Laurens Court-house. He did not carry it, and Bruce sued him, averring that Crews had damaged him not only by failing to convey it, as he promised, but, by preventing his getting possession of it, had caused him great loss by reason of the decline in the price of cotton. Bruce died, and his administratrix became the plaintiff.</p> <p>The defence was, that military orders and military seizure caused the failure and detention. The plaintiff’s counsel, in rebuttal, sought to show that this military interference was brought about by Crews. During the trial, two letters written by Crews to Bruce, on the subject of said cotton, had been read in evidence. Plaintiff’s counsel sought to intro-1' duce a copy of what purported to be a letter from Crews to one Colonel Brown about this cotton, in which it was stated that Crews claimed the cotton as his own; that if it was not, he (Crews) was an agent of the United States Treasury Department, and suspected that Bruce had bought the cotton from blockade-running companies, and therefore did not comply with a military order to deliver it to Bruce. It was signed Joseph Crews, and had on it a certificate, dated January 19th, 1866, signed “ C. S. Brown, Lt. Col. 1st Batt. M. Vols., com’d’g 3rd Sub. Disk, 'Western So. Ca,,” in which this Brown stated that the original was in his possession. A witness was called to testify to his knowledge of Crews’ handwriting. He was introduced to prove that he made said copy, and that the original was in Crews’ handwriting, and to account for the non-production of the original in order to get in said copy. He stated that' he knew Crews’ handwriting from having seen letters, purporting to come from Crews, received by a commercial house in which the witness was a clerk, through the post office and in the ordinary course of business. But he said none of said letters were in reply to any letter written by him, nor had he seen the letters to which they purported to be replies. The Court held that the witness had not sufficient knowledge of Crews’ handwriting to prove it. They then proposed to show the witness the two letters already in evidence, written by Crews, and to have him testify that the letter from which he made said copy was in the same handwriting as that of those two letters. The Court refused to allow this.</p> <p>After the charge of the Court, the jury rendered a verdict for the defendant. The plaintiff’s attorney moved for a new trial upon the grounds that the Court had erred in said rulings, and because the verdict was against the evidence and the principles of equity. The new trial was refused, and this is assigned as error.</p>

<p>Ejectment. Tried before Judge Parrott. Murray Superior Court. March Term, 1869.</p> <p>This was ejectment for land lot 187 in the 8th district and 3d section of Murray county, upon the several demises of Asa Adams, John Phillips, et al.', against Amos Bishop and James A. R. Hanks, as administrator of Edward M. Galt, It was brought on the 27fh of March, 1866.</p> <p>The defendants were shown to have been in possession of the premises when the action was commenced, and the annual value of the premises was shown. The title produced by plaintiff was a grant of the lot from the State to Asa Adams, a deed from Adams, dated 23d of January, 1834, (and recorded on the'lst of October, 1866,) to William C. Phillips for one undivided balf of the lot, a deed from Adams to John Williamson, dated the 2d of January, 1835, recorded 10th of January, 1858, for one undivided half of said lot, a deed from John Williamson to John Phillips, Anthony Phillips, John Warnock and Asa Adams, dated the 15th of June, 1850, recorded 1st of October, 1866, for half the lot, a deed from Anthony Phillips, Patrick Pliillips, John Warnock and Asa Adams, called in the deed the heirs ofVm. C. Phillips, deceased, to John Phillips for one half of said lot, recorded the 22d of November, 1857. The plaintiff closed.</p> <p>The defendant introduced J, A. E. Planks, who stated facts to show the loss of a deed to Galt, his intestate. Amos Bishop testified, that he held one half of the lot as his own, and the other as the tenant of Galt, and that his improvements were worth as much as the rent during his occupancy; that he had been in possession ever since December, 1856, claiming it as aforesaid. He further stated that Galt had a deed for the lot from Asa Adams, of Montgomery county, to Eichard S. Smith, of Troup county, dated about 1833 or 1834; that it had three witnesses, one of whom was a magistrate. The defendants’ attorneys then read in evidence a certified copy of the last mentioned deed. Thereupon, Asa Adams filed an affidavit, that said deed was a forgery, and said deed was then withdrawn. Bishop further testified, that Galt also had a deed from said Smith to William E. Tapp, and one from Tapp to himself, for all of said lot; each deed was in the usual form, had three witnesses, and were dated before he, Bishop, took possession. Pie produced a bond for titles for an undivided half of the lot, given to him by Galt in the spring of 1857, and a note given by himself to Galt for one fourth of said lot. Neither the bond nor note hacl any date; the note was for $150 00, payable in “insolvent notes?” including some he held on Galt.</p> <p>When Adams made affidavit that said deed to Smith was a forgery, the Court arrested the cause and required an issue to be joined and tried as to its genuineness, and ruled that the onus was on the defendant to show that it was genuine, and that he must introduce other evidence besides the record to prove that fact. The defendant had no other evidence of its genuineness, and therefore withdrew that deed as aforesaid.</p> <p>The evidence being closed, the Court charged the jury among other things, 1st. That if the plaintiff admitted W. C. Phillips’ was dead, and the deed showed title in him for one half of the lot, and there was no evidence that the plaintiffs were his heirs, plaintiffs could not recover, because the recital in the deed that they were such heirs was not sufficient evidence of that fact. 2d. That while Bishop’s possession might be sufficient to give him a title by prescription to one undivided half of the lot, yet it was not such a possession as would protect Galt’s estate, and that the jury might find one undivided half, or fourth, against Hanks as administrator of Galt. The jury found against Hanks, administrator, for one half, and in favor of Bishop for the other half of the lot, and costs, without mesne profits.</p> <p>Hanks, administrator, moved for a new trial, upon the grounds that the verdict was against the evidence, etc., and contrary to the first clause of said charge, and because the Court erred in the second clause of said charge.</p> <p>The Court refused a new trial and that is assigned as error.</p>

Case. Demurrer. Decided by Judge Pope. Troup Superior Court. November Term, 1868. Berry brought case against the Montgomery & West Point Railroad Company, averring that it had a depot and agent in said county. Said agent was served. It was averred that Berry’s slave, Isaac, in June, 1862, being employed by said defendant to run as a train hand, was, by the carelessness of the defendant’s agents and employees, killed near Franklin, in Alabama, by falling from the train.

<p>Before Judge Clark. Lee Superior Court. March Term, 1869.</p>

<p>Contempt. Before Judge Clark. Sumter Superior Court. April Term, 1869.</p>

<p>1. The pendency of a former suit for the same cause of action is a proper matter to be plead in abatement, and if the parties go to trial on the merits, the defendant can not set this up in law.</p> <p>2. If, in an application for a partition of lands, the defense be that there has been a partition by commissioners, who made no return, but that the parties had acquiesced, and had subsequently, under said partition, each occupied for several years his portion, as set-off, to the exclusion of the others, and made valuable improvements, so that it would be a fraud upon either to repudiate that division, it is error in the Court to charge the jury that this adverse and independent possession by each of his part, must, in order to constitute a defense to an application for a new partition, have continued seven years.</p>

Wills. Distribution of estates. Before Judge Foster. Jones Superior Court. May Term, 1868.

Illegality. Variance. Practice. Temporary administrator. Before Judge Worrill. Chattahoochee Superior Court. March Term, 1869. Reese filed a bill against Dorothy Jones, as executor of her deceased husband, to enforce a vendor’s lien on certain lands.

<p>Confederate money. Administrators. Motion for new trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1869.</p> <p>James H. Patrick made his final return, as administrator of Thomas J. Patrick, in 1869, in which he sought to get credit for $140 00 for “Confederate money” then on hand. The widow of intestate, then Mrs. Jepson, objected to the allowance of said return. It was allowed by the Ordinary and an appeal was taken before Judge Worrill presiding. Mrs. Jepson’s counsel read in evidence the transcript of the record of said administration from the Court of Ordinary and a relinquishment of dower by Mrs. Jepson, and an election by her, under the statute, of one-third of the proceeds of intestate’s land in -lieu of dower. It was admitted that the land sold-for $400 00, and the only controversy was as to one-third of that amount, which was by the administrator claimed to be rejnesented by said $140 00.</p> <p>Defendant’s counsel examined the administrator, who testified that, as administrator, he sold said lands in July, 1860, for $400 00, on credit till November, 1860; that he then collected said $400 00, and loaned it to one Ligón, of Columbus, Georgia, who was the sole security on his administrator’s bond, and took from him no security; that he took Ligon’s note at twelve months, and did not recollect whether he had renewed it; that Ligón paid Mrs. Jepson the interest on her third till he came and paid the whole $400 00, which was in November or December, 1864; that this payment was in Confederate treasury notes, of which it then took $57 00 to buy $1 00 of gold; that he was then talcing “Confederate money” for his own claims, having confidence in the Confederate cause; that he put this money with his own, bought supplies, etc., without distinguishing between it and his own, and that it was wholly lost by the failure of the Confederacy. He said he had other “Confederate money” on hand at the collapse, and produced a package of it, saying he could not state that it was the identical treasury notes paid him by Ligón, but that it was at least of the same kind, and that he did not know Ligón was insolvent till after the war.</p> <p>During this examination the counsel sought to prove by Patrick (and proposed to do so by the Ordinary also) what conversations he had as to the investment of said fund. The evidence was rejected upon the ground that the Court of Ordinary was one of record. Patrick was asked by his attorney, whether Ligón was solvent in November, 1860, but the Court refused to allow him to answer the question. The testimony as to the fact and date of Ligon’s payment to him and as to the fate of the “Confederate money” repaid to him, and as to his then taking such currency for his own claims, came in over the objections of plaintiff’s attorneys. In rebuttal, a witness, resident in Columbus, testified that as attorney and executor of an estate, he had long before November, 1864, refused to receive such currency, and forbidden the sheriff to accept it in his cases. Another attorney, residing thirty miles from Columbus, testified that lip to November, 1864, at his home, Confederate money was taken in payment of old debts, and it was considered unpatriotic to refuse it; that he was in Richmond, Virginia, after November 1st, 1864, and the people still took said currency.</p> <p>Mrs. Jepson’s counsel requested the Court to charge the jury, that when an administrator assents to an election of a life- . estate of one-third of the proceeds of the sale of the deceased husband’s land, he is bound to invest the money according to the direction of the Ordinary, and that if he did not obtain such direction but loaned the money out, without such direction, and afterwards it was returned to him in “Confederate money,” which perished on his hands without fault, he is still liable. The Court refused so to charge,but charged the jury that the single question for their consideration was, whether Patrick, in receiving said “Confederate money” from Ligón, acted in good faith, and as a prudent man would have done under the circumstances. If he acted in good faith and as a prudent man would have done, he is not liable, otherwise, he is.</p> <p>The jury found for Patrick. Judge Worrill was succeeded by Judge Johnson, and before him a'motion for new trial was made. The grounds for new trial were, that the verdict was contrary to law and. sti’ongly and decidedly against the weight of the'evidence; that Judge Worrill erred in admitting said evidence which was objected to, in refusing to charge as requested and in charging as he did. The new - trial was refused, and that refusal is here for review.</p>

Equity pleading. Covenants. Before Judge Johnson. •Muscogee Superior Court. May Term, 1869.

Constitutional law. Insolvent costs. Before Judge Johnson. Muscogee Superior Court. May Term, 1869. Adolphus Rutherford was Clerk of the Superior Court of Muscogee from 1855 to 186-. He died in 1861 or 1862, leaving a claim for insolvent costs accruing to him in the criminal cases in said Court.

Practice. Criminal law. ' Arrest of judgment. Bill of exceptions. Before Judge Green. Spalding Superior Court. August Term, 1869.

Non estfaetum. Agency. Estoppel. Ratification. Before Judge Green. Newton Superior Court. September Term, 1869. David Ogletree and others, as executors of Philemon Ogle-tree, sued John S. Weaver and- Isham Weaver, upon a promissory note purporting to be signed by them, dated the 9th December, 1861, and due the 7th of December, 1862, for $814 03, payable to the executors of said Philemon Ogletree. Isham Weaver plead non est factum.

Continuance. Practice. Damages. Before Judge Green. Newton Superior Court. September Term, 1869. On the 7th of June, 1866, Steadman delivered to Simmons his two promissory notes, by one of which he promised to pay Simmons or bearer $7,000 00 twelve months after date, and by the other of which he promised to pay Simmons or bearer $800 00 one day after date. On the small note Steadman paid $114 50 on the 19th of September, 1866, and $100 00 on the 1st of November, 1866.

Confederate contract. Tender. Charge of the Court. Before Judge Bigby. Meriwether Superior Court. August Term, 1870.

Certiorari. Verdict contrary to evidence. Before Judge Pope. Fulton Superior Court. May Term, 1869. P. The Justice charged the jury, that Mayson’s putting the money on the railing, would be no payment unless he gave the money to plaintiffs, or one of their clerks or agents, in such a way that such person saw the money, and understood that it was in payment. The jury found for the defendant.

Army seizures, etc. Western and Atlantic Railroad, etc. Demurrer. Decided by Judge Pope. Fulton Superior Court, May Term, 1869.

Evidence. Common-carriers. Before Judge Pope. Fulton Superior Court. May Term, 1869. On the 11th of November, 1865, the Western and Atlantic Railroad agent received for shipment certain cotton, and gave therefor a receipt, as follows: “ Western and Atlantic, East Tennessee and Georgia, Virginia and Tennessee, and Orange and Alexandria Railroads. THROUGH FREIGHT LINE CONTRACT. Route by rail as above, and per steamer to New York. Atlanta, G-a., November 11, 1865.

Common-carriers. New trial. Before Honorable J. J. Wright, an attorney, presiding by consent. Floyd Superior Court. July Term, 1869. Sloan sued the Rome Railroad Company,' as a common carrier, for twenty-four bales of cotton consigned to Clayton & Phinizy, Augusta, Georgia.

Administrator’s returns. lies adjudieata. Before Judge Parrott. Catoosa Superior Court. March Term, 1869. Woods was administrator of John Gray, deceased. Mrs. Baber, formerly his widow, was the guardian of John Gray’s minor heirs. On the 5th of June, 1866, she, as such guardian, complained to the Ordinary that Woods was mismanaging said estate, and had made no returns, and obtained an order from the Ordinary for Woods to appear and settle with her.

<p>Equity. Marriage settlement. Before Judge Parrott. Gordon Superior Court. October Term, 1869.</p> <p>Ardis, as trustee for Mrs. Skelly and her children, filed a bill containing the following averments : On the ■ 31st of August, 1842, in Edgefield District, South Carolina, he, as such trustee, John C. G. Key and Ann J. Ardis (now Mrs. Skelly) entered into the following contract: “ Whereas, a marriage is shortly to be had and solemnized between the said John C. G., and the said Ann J.; and whereas, the said Ann J. is seized and possessed in her own. right of certain property hereinafter mentioned, and referring for more particular description thereof to a schedule hereunto annexed and made a part of this deed, which the said parties have agreed to settle and secure as hereinafter provided: Now the said Ann J., for and in consideration of the premises and the sum of five dollars to her in hand paid by the said John Ardis, the receipt whereof is hereby acknowledged, has given, granted, aliened, conveyed, bargained, sold and transferred, and by these presents does give, grant, alien, convey, bargain, sell and transfer, unto the said John Ardis, his heirs and assigns, all and singular the property of the said Ann J., real and personal, more particularly specified and described in the schedule hereunto annexed, and made a part of this deed: To have and to hold the said property to the said John Ardis, his heirs and assigns forever; in trust, nevertheless, to and for the uses and purposes following, that is to say: To and for the joint use and maintenance of the said John C. G. and Ann J., from the time of their marriage, for and during their joint lives, (for which time the said property is to be under the control and management of the said John C. G., but is not to be in any way or manner, or the increase thereof, liable for any of his contracts;) then to the use of the survivor for and during his or her natural life; and in case of his survivorship, and there being issue, still to be under his control and management during his life; then to vest in and become the property of the child or the children of the said Ann J., (the issue of said marriage,) living at the time of the death of said survivor, and if any such child or children be dead, leaving issue then alive, such issue shall take'in place of such deceased child or children; but if there be no issue of said marriage, or if such issue shall die in the lifetime of such survivor, without leaving issue alive at the time of the death of said survivor, said survivor shall take an absolute estate in said property. And if the said Ann J. survive the said John C. G., and marry again, and, at the time of her death, there be issue of the present contemplated marriage, and also issue of any such subsequent marriage then living, the issue of any such marriage shall take an interest in said property in the same manner and to the same extent as if it or they were the issue of the first marriage, and the said John C. G. does hereby release and relinquish to the said John Ardis, for the uses and purposes aforesaid, all his marital' rights in and over the said property that might otherwise be acquired by his marriage with the said Ann J., and the said John Ardis covenants and agrees with the said John C. G., and the said Ann J., respectively, to hold the aforesaid property in trust for the uses and purposes before mentioned. And if at any time hereafter, it shall be deemed advisable or necessary by said John C. G. and Ann J., or the survivor of them, the said John Ardis, with the written consent and request of the said John C. G. and Ann J., or the survivor of them, may sell, exchange, or otherwise dispose of all or any part of said property, but the proceeds of such sale, exchange or other disposition, and the increase thereof, shall be held as such to the uses and purposes before mentioned.”</p> <p>The property mentioned in the schedule was certain lands in South Carolina, and some cash. Key and Ann J. Ardis married and had issue; Key died, leaving Ann J. alive, and the issue died, leaving no issue. In Key’s lifetime and since, the South Carolina property was converted into cash and it was invested in slaves and other personalty. In November, 1857, the widow married Thomas W. Skelly, and by him had a son and daughter, now aged ten and seven years, respectively. John Smith was administrator of one Abbott, ■and as such, in December, 1859, agreed to sell privately to Skelly, certain (described) land of Abbott’s estate, at $12,000, said Smith, knowing that Skelly was insolvent, and that he could not pay for it except out of the trust fund aforesaid, which Skelly had. To perfect the title to this property, it was agreed between Smith and Skelly, that the land should be sold at administrator’s sale, and that Skelly would bid it off, but take it at $12,000, without regard to what it might bring at said sale. It was advertised and sold at public outcry at administrator’s sale, and bid off by Skelly, as the highest bidder, at $8,000. Skelly gave his individual notes to Smith, as administrator, for $12,000, and took bond for title to said premises for himself. In fact, said land was not worth over $8,000, and Smith knew it, nor is it now worth more. Skelly paid Smith, on these notes, $7,100, Smith knowing that the same was the funds of the said trust estate. In September, 1864, Skelly died, intestate and insolvent, without having paid the balance of his notes. Joseph Printup has become Skelly’s administrator, and is about to sell said land as the property of Skelly. Mrs. Skelly and said son and daughter lost the balance of said trust estate, because it had been invested in slaves, and will be penniless unless they can recover said land or the trust money invested in it.</p> <p>Ardis contended that the $8,000 was all that was legally due for said land, and prayed that Printup should deliver the bond, and that Smith should convey the land to him, as such trustee, for said uses and trusts, and surrender the balance of Skelly’s notes, or that a decree be had rendering said land liable for said trust fund so paid out by Skelly, in preferencé to all other liens, and for general relief, and that meanwhile Printup should not sell said land.</p> <p>The injunction was granted. When the cause came on for trial defendant’s counsel moved to dismiss the bill, because the trust created by said deed was executed, and therefore complainant had no right to sue. The bill was dismissed, and that is assigned as error.</p>

Remote damages. Restraint of trade. Demurrer. Decided by Judge Parrott. Murray Superior Court. October Term, 1869.

<p>Prior to the adoption of the new Constitution, an appeal lay from the verdict of a petit jury to a special jury, on an issue growing out of a proceeding under sections 4000, 4001 and 4002 of the Code, to expel an intruder.</p>

Relief. Before Judge Alexander. In Lowndes Superior Court. May Term, 1869. Williams sued Gibson on two promissory notes. Against one of them Gibson plead non est faotum. These notes were given to one Boyd, and were once owned by one Clyatt. Clyatt testified that he asked Gibson for the money on the note in question, stating its amount, and Gibson made some promise as to paying it.

<p>1. The Judge of the Superior Courts has no power by rule, in vacation, to compel an assignee in bankruptcy to turn over to a sheriff of a State Court property of the banlcrupt, which was in the possession of the bankrupt when the assignee took the control of it, but which, it is claimed, had been levied upon by the sheriff by virtue of a fi. fa. issued from a judgment of the State Court, older than the judgment in the Bankrupt Court, by which the defendant in the fi. fa. was declared a bankrupt.</p> <p>2. Under such a state of facts the sheriff’s remedy was by action of trover, or by a proper proceeding in the Bankrupt Court, which has jurisdiction over the assignee.</p>

<p>Ejectment. Mesne profits. Equity. Before Judge Clabk. Lee Superior Court. October Term, 1869.</p> <p>In October, 1869, James Gardner and Dillard Spradley filed their bill, containing the following averments: In 1864,'Gardner bought of William McAffee a plantation, part of which is land lot No. 175, in the 13th district of said county. At the time of the purchase, a suit was pending, in said county, in favor of John Doe, upon the several demises of Joseph Thompson, Joseph Little, William Byrd and T. Thomas, vs. Roe, casual ejector, and said McAffee, tenant in possession, for said lot; but believing McAffee’s statement that his title to said lot was good, Gardner took possession, and paid him for it. In January, 1869, Gardner rented the plantation to Spradley, and he cultivated it, and in October, 1869, had on said lot matured cotton unpicked, sufficient to make, say fifteen bales. In September, 1869, one Cameron was made a party defendant in said action of ejectment, the cause was tried and resulted in a verdict for the plaintiff for said lot, and $1,000 00 for mesne profits, the recovery being upon the demise of Joseph Little. McAffee and Cameron were preparing a motion for a new trial, but Alfred Kersey, who is the real plaintiff in said ejectment cause, agreed to release them, (who were solvent) from the mesne profits if they would pay Kersey’s attorney’s fees, and allow Kersey to have Spradley’s said cotton, and accordingly they did not move for a new trial. Immediately a writ of possession was issued, and placed in the hands of the sheriff, with orders to give possession of said lot and crop on it to said plaintiff in ejectment. Complainants are informed, and believe, that Joseph Little was dead at the date of said recovery, and therefore the recovery was void. The recovery of mesne profits was based on evidence covering the year 1869.</p> <p>They prayed injunction against the writ of possession. The Judge granted a temporary injunction against taking Spradley’s “growing crop,” and ordered the plaintiff in ejectment to show cause why injunction should not issue as prayed for. Kersey answered that he did not know upon which demise his recovery was had, denied the collusion charged, and said that his recovery was good and covered the crop. Upon these pleadings the cause was argued, and the Judge refused the injunction. Spradley’s solicitors stated that they, bona fide, wished to take a writ of error to the Supreme Court, and asked time to do so, but it was refused. They say the Judge erred in not granting the injunction, because the recovery was void for the reason stated; because the $1,000 00 for mesne profits included the rent of said lot for 1869, and was against tenants who were solvent; because he should have granted the injunction as to the matured crop, and because the Judge erred in refusing time for a writ of error to be sued out.</p> <p>The Judge, in certifying the bill of exceptions, said, he could not undertake to say for what year rent was recovered, nor on what demise the recovery was had. Though the record of the ejectment cause was spoken of in Kersey’s answer and alluded to as of file in the Clerk’s office, it seems not to have been used in this cause below, and did not come up with these proceedings.</p>

<p>Relief Act-. Demurrer. Before Judge Harrell. Stewart Superior Court. April Term, 1869.</p> <p>Sims sued Brown upon his promissory note, made on the 4th of March, 1867. Brown plead that the consideration of said note was a debt contracted before June, 1865, and when he then owned land and about twenty slaves, worth about $20,000, and by the emancipation of the said slaves he lost $15,000, and therefore, claimed the benefit of the Relief Act. Sims’ attorneys demurred to the plea, because the note sued on was made since June, 1865. The demurrer was sustained, and that is assigned as error.</p>

Dower. Decided by Judge Harrell. Quitman Superior Court. November Term, 1869. In 1863, Lewis E. Holliman died testate, seized and possessed of a plantation in said county, containing seven hundred and twenty-nine acres. Ann E. Holliman was his widow, and John Atwell his executor.

<p>Administrator’s sales. Equity. Before Judge Harrell. Webster Superior Court. September Term, 1869.</p> <p>McGlawn, by his bill, filed in 1866, against Mrs. Grubbs, made the following averments: In 1858, he loaned her husband $3,611 85, less the 'interest of twelve months, and took therefor her husband’s note, secured by a mortgage on seven slaves. Grubbs died in 1863, owning eight or nine hundred acres of land, in said county, and certain personal estate. Mrs. Grubbs took possession of his estate as, his administratrix, and McGlawn sued her, as administratrix, on said note, to September term, 1866, of said Court. Mrs. Grubbs paid some of her husband’s debts out of his personal assets. In the latter part of 1865, Mrs. Grubbs obtained an order from the Ordinary of said county, for the sale of said land for the benefit of Grubb’s heirs and creditors, advertised said land for sale, offered it, on sale day, in two parcels, for cash, that one Sackett bid in all said land at her request, at $1,200; she made a deed, as administratrix, to him, and he immediately reconveyed it to her, no money having passed nor any consideration having been paid for either of said conveyances. No debts were pressing upon said estate to necessitate said sale; it was made when there was but little money in the country, when there were no mails, except by railroads, when the newspaper, in which the notice of sale was published, probably did not reach a dozen persons in said county, and she made the sale thus, and when she did, for the purpose of buying the land at a nominal sum, in fraud of the creditors; a few days before the sale, McGlawn visited Mrs. Grubbs, to see her about his note, and she told him that he was the principal creditor of her husband’s estate and asked him not to sue her, showed him forty acres of land prepared for cotton, told him she did not wish to sell her husband’s land and thought she could make enough on said forty acres to pay her husband’s debts: — that, if she failed in this, she would, the next winter, sell the three hundred acre tract next to Preston, in said county, and pay the debts, and thus keep five hundred acres for herself and children. Had he not believed these fraudulent statements of her purposes and wishes, Mc-Glawn would have attended said sale, and made said land bring its value. Said lands, at a fair sale, and at a fair price, would have discharged all of Grubbs’ debts; but, as it is, its price and the value of the personality will not pay one half of them. Mrs. Grubbs has no property but said land.</p> <p>He prayed that her said sale and conveyances be declared void, and that meanwhile she be enjoined from selling the land, etc. The inj unction was granted by Judge Clark. Mrs. Grubbs answered the bill, denying no part of its averments, except the charge of bad faith and that she told McGlawn she did not wish to sell the land and would pay off the debts in the manner stated by the bill and that money was unusually scarce; she said that mails were carried by private hands, and newspapers were eagerly sought for and that she did not doubt that the sale was generally known; that she had not intended buying the land, but sent her son to the sale, with instructions not to let it be sacrificed, and he got Sacketf to bid it off for her at about $1,600 00, which was a low price, but was the highest bid at a fairly advertised and conducted sale. She contended that her title was good. Upon the filing of her answer she moved to dissolve the injunction' and dismiss the bill, because it had no equity, or if it had, because her answer had sworn it off. The motion was overruled, and that is assigned as error.</p>

<p>1. A motion, made on oath at the first term of the Court, to set aside an award, which did not state that the award was the result of accident or mistake, or the fraud of some one or all the arbitrators, or parties, or that it was otherwise illegal, pointing out in what the illegality consisted, was insufficient, and was properly dismissed on demurrer.</p> <p>2. When such motion was made at the proper term it was amendable at a subsequent term. But if the movant did not ask to amend, and chose to go to trial on the motion as made, the judgment against him, when affirmed by this Court, is final and conclusive, and the matter in controversy is res adjudicata.</p> <p>3. The judgment ordering an award spread upon the minutes will not be set aside, because the presiding Judge was one of the arbitrators, who was to be paid jointly by both parties for his services, when the parties made no objection to the Judge presiding, on the ground that he was an arbitrator, till after the case had been brought to the Su-' preme Court and final judgment rendered. It is too late to raise the objection in a bill of review filed for the purpose of getting a new trial.</p> <p>4. A bill of review will not be sustained and a new trial granted, on the ground that the parties, dissatisfied with the award, asked the Judge of the Superior Court to keep the Court open, to give them time to per- ■ feet their objections to the award, which he refused to do, but adjourned on the morning of the first day of the adjourned term; as the award was entered upon the minutes at the November term, and the Court was adjourned over till March, when the request was made by counsel and denied by the Court. The bill does not show sufficient diligence, or sufficient reason, why the objections to the award were not made out in proper shape between November and March and filed before the Conrt adjourned; the more especially as the counsel did not, at the trial term, move to amend, but went to trial upon his objections as made out and filed before the adjournment of which he complains.</p> <p>5. A bill of review will not be sustained, or a new trial granted, on the ground of newly discovered evidence, unless it is shown: 1. «That the evidence has come to the knowledge of the party since the trial. 2. That it was not owing to want of diligence that it did not come sooner. 3. That it is so material that it would probably produce a different result if the new trial were granted. 4. That it was not cumulative only, speaking to facts in relation to which there was evidence on the trial. And the affidavit of the witness himself must be produced, or its absence accounted for. 6. The new trial will not be granted if the only object of the testimony is to impeach the character of a witness.</p>

Attorneys’ fees. Charge of the Court. Before Judge Johnson. Muscogee Superior Court. May Term, 1869. Moses & Gerrard brought complaint against L. Haiman & Brother upon an open account, one item of which was “ For professional services in the matter of Henry Lafour vs. L. Haiman & Brother, $2,500.” The other items were for small fees, amounting in the aggregate to $60 00, and about which there was no dispute.

Appeal in collateral issue. Before Judge Worrill. Muscogee Superior Court. May Term, 1869. On the 31st of July, 1867, Margolius gave to Lockhard & Ireland, a mortgage upon “ his entire stock of goods, wares and merchandize,” in his designated store-house in Columbus, to secure his note to them for $589 29, due 10th November, 1867. On the 11th of December, 1867, this mortgage was foreclosed, and the mortgage ji. fa. was levied on Margolius’ goods.

<p>I. When the husband refused to take the benefit of the Homestead Act, and the wife filed her petition and schedule in the Court of Ordinary, praying to be allowed the property exempt, for the use of the family, and before the order, allowing her the property exempt, had passed in the Court of Ordinary, the husband was adjudged a bankrupt, and the property included in the wife’s schedule was afterwards sold by the assignee in bankruptcy: Held, that the wife cannot recover the property, by possessory warrant, from the purchaser at the sale made by the assignee in bankruptcy. -</p>

<p>1. When, from the nature of the case, the defense set up as an excuse for the killing, was that it was justifiable homicide in self-defense, it was not error in the Court to give in charge section 4267 of the Revised Code as the law applicable to the case.</p> <p>2. Previous threats by the deceased that he would take the life of the accused if he did not pay him some money he owed him, which were not communicated to the slayer before the fatal deed, are not admissible in evidence in justification of the killing in self-defense, and a new trial will not be granted to let in newly discovered evidence of such threats.</p> <p>3. A new trial will not be granted for newly discovered evidence, which is only cumulative, or intended to impeach a witness, or when it would not, if heard on the trial, probably have produced a different result.</p> <p>4. Jurors will not be heard to impeach their own verdict.</p> <p>5. It is the imperative duty of the Judge of the Superior Courts to hold the Courts at the regular times fixed by law, and he has no right to adjourn any of said Courts from the regular term to some other time, by order in vacation, unless it is in the language of the statute, “not possible for him to attend the regular term of said Court, from sickness of himself or family, or other unavoidable cause." And in case the Judge, by order in vacation, adjourns over the regular term of the Court to any other time, for any other cause than those expressed by the statute, no party litigant can be compelled to try his case before the Judge at such irregular term.. But if the parties in a civil ease go to trial without objection, they will not afterward be heard to set up the irregularity.</p> <p>6. A defendant who is charged with a crime involving his life or liberty, is not held to have waived anything, unless he does it by express agreement for the purposes of the trial. If the term of the Court has been illegally adjourned and a party at such adjourned term is convicted of murder or manslaughter, he is not bound by the proceedings, and is entitled to a new trial, on motion.</p>

Case against corporation for nuisance. Before Judge Cole. Bibb Superior Court. May Term, 1869.