Volume 4 — Georgia Reports

Assumpsit upon an indorsement of a note. Tried before Judge Fleming in Chatham Superior Court. The facts of this cause are fully set out in the opinion of the Court. It is conceded as the general rule, that the law of the place where the contract is made, is to govern, as to the nature, validity, obligation and construction of the contract.

Indictment for Libel. Tried before Judge Fleming in Chat-ham Superior Court, May Term, 1847. Motions in arrest of judgment, and for New Trial, successively overruled.

By an Act of the Legislature- of Georgia in 1841, — “to make permanent the water-line, for certain wharves, on the shore of Hutchinson’s Island in the Savannah River, opposite the City of Savannah; and for appointing Commissioners to carry the same into effect,” a commission was established, “to consist oí four persons to be chosen and appointed by the Mayor and Aldermen of the City of Savannah; three to b'e selected by the Commissioners of Pilotage, for the bar of Tybee and…

This was a motion to set aside a judgment for $3537-,^, in favor of the defendants against the plaintiff in error, in Pulaski Superior Court. Tried before Judge SCARBOROUGH, and motion refused, October Term, 1847. All the facts necessary for a proper understanding of the points decided, are embodied in the opinion of the Court. Wm.

These two writs of error being sued out to the same decision in the Court below; were considered together. In Equity. In Effingham Superior Court. Decision on Demurrer, by Judge Fleming. The facts of this case and the points decided by the Court below, are fully set forth in the opinion of the Court.

This was an application for discharge under a writ of Habeas Corpus, in Chatham county, before his Honor Judge Fleming.

<p>£1.] An instrument .conveying slaves, importing an absolute gift on its face, and duly recorded, with a condition that if the grantee should die before the grantor, the property shall revert; and'with a proviso that the .grantee shall pay to each slave two dollars per month during tlieir natural lives — is not a testamentary paper, but a deed.</p> <p>£2.] The criterion for determining whether an instrument is a deed or a will, is the intention of the maker as to the character of the estate, and as to the time when the estate is to take effect.</p> <p>£3.] The estate created by this instrument is an absolute property in the ¿laves upon a condition subsequent.</p> <p>£4.] Naked possession is not per se, a bar under the statute of limitations, when the beginning of the possession is permissive.</p> <p>£5.] Possession of property by agreement with the owner, entered into at the time when the title is executed by the grantor, is not adverse possession, and creates no title under the statute-; but it may become adverse possession by a claim of title by the tenant, brought home to the knowledge of the owner; and the statute commences to run only from the time that the knowledge of the claim is thus brought home.</p> <p>£6.] Declarations of the tenant that he is in possession in his own right, where the commencement of the possession is permissive, and not brought home to the knowledge of the owner, does not constitute adverse possession.</p> <p>£7.] This deed is not in conflict with the laws of Georgia, prohibiting manumission.</p>

Deceit, in the Superior Court of Thomas county, tried before' His Honor, Judge Scarborough. The facts in this cause are fully givéli in the opinion of the-Court. cited and commented upon the following authorities: On 1st exception, as to the' Competency of the witness. 1 Greenl.

<p>[1.] A motion in arrest of judgment may bo made at any time before the adjournment of the court, at which the cause is finally disposed of; the defendant’s right to make such motion will not be defeated by the entering tip a judgment by the plaintiff on the record, before the adjournment of the courtr at which the canse is finally determined.</p> <p>[2.] By the provisions of (he Act of 26th Dec. 1826, notice of the non-acceptance of a bill of exchange, drawn in this State, on persons residing in New York, and indorsed in this State, is not necessary to bind the indorser, when not payable at a chartered bank.</p>

<p>[1.] The Act of 1826, “to define the liability of indorsers of promissory notes, and other instruments, and to place them on the same footing with securities,” changesthelaw merchant so far, as to dispense with demand and notice, in order to bind indorsers, except on bankable paper; Held that an indorser m blank, on a promissory note,, which is absolute, unconditional, and unrestricted on its face, cannot prove by parol, that it was given for the purpose of negotiation, or was intended to be negotiated at a chartered bank.</p>

<p>£1.] Where a matter lies within the legal discretion of the Circuit Court, this Court will control that discretion; yet only in case of a refusal to exercise, or a flagrant abuse of it.</p> <p>£2.] Mandamus is not a writ of mere right; but may issue or not, at the discretion of the court, except in case of a clear legal right under the laws of the State, in which case, the law and the right is imperative on the court.</p> <p>£3.] Mandamus is in the nature of a suit, to which the State is not a party.</p> <p>[4.) Adverse possession for seven years, creates a good title under the statute of limitations.</p> <p>[5.] Possession under color and claim of title, is adverse possession.</p> <p>[6.] Possession under a grant from the State, is possession under color of title; even when the grant is void for irregularity, if the tenant enters under it Iona fiie.</p> <p>[7.] The Statutes of Limitation do not ran against the State.</p> <p>[8.] Lands are not subject to survey and to be granted in this State on head rights, unless they are vacant lands.</p> <p>[9.] Land in possession of a grantee, under a grant from the State, and whose possession has continued for more than seven years, is not vacant land, although the grant be void, because irregularly issued.</p>

<p>[1.] When a surety to a note, bond, or other contract, having failed to make special defence upon the trial, afterwards takes control of the execution against his principal, under the Act of 1831, the lien of the judgment against his principal hi his hands, takes effect from the date of that judgment.</p>

<p>[1.] A verdict and judgment rendered in favor of a defendant, which is after-wards set aside, is no bar to a subsequent suit between the same parties, for the same cause, of action.</p> <p>[2.] The Act of 1801, which authorizes three or more of the Justices of the Inforior Court to preside in all cases in which the Judges of the Superior Courts are parties, or interested, is constitutional.</p>

Indictment for passing “ counterfeit gold coin.” Tried before Judge Warren, in Baker Superior Court, December term, 1847. The facts of this case are embodied in the opinion of the court. contended, 1st. That a grand juror is an incompetent talesman to try a criminal cause, not being the peer of the prisoner; that such was the law of England, as adopted in this State, and that the distinction is recognised in our own statutes.

<p>[X.] Where a party claims title to land under an administrator’s deed, he must, in all cases, show the order of the Court of Ordinary, granting the administrator license to sell the land.</p> <p>[2.] In-order to divest the title of the heirs to the lands of their deceased intestate ancestor, by an administrator’s sale, it must be shown that the requisitions, of the statute, authorizing such sales, have been complied with.</p> <p>.[3.] After the authority of the Court of Ordinary to make the sale has been shown, the recitals in the deed made by the administrator to the purchaser, of the acts required to be done by him under the statute, will be considered as prima facie evidence of the truth of such acts having been done^unlil the contrary is shown.</p>

<p>[1.] An entry on the motion docket is no part of the record.</p> <p>[2.] The Judges may make mies for new trials, returnable in vacation, in cases where the application has first been made in Term, and recorded., and where the record shorn that such rule is so made returnable in vacation.</p>

Notice; Lien; This was a rule nisi vs. the sheriff, to pay over money.- Tried before Judge Floyd, in Pike Superior Court, August Term, 1847. For the facts of the case, the reader is feferred to the opinion delivered by the Supreme Court. Chappell and Gibson, for the jilaintiffs in error, relied upon the following authorities. 4 Kent’s Comm. 168. 4 Paige’s R. 215. 3 Atk. R. 646. 10 Johns. R. 460. 15 Johns. R. 566 to 569. 18. Johns. R. 544. 19 Johns. R. 281. 19 Wend.

<p>[1.] On an issue of fraud, suggested by a creditor under the Act of 1S23 for the relief of honest debtors, an appeal to another jury, as provided by the Judiciary Act of 1799, will not be allowed.</p> <p>[2.] On a question of fraudj a new trial will not be granted, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done; although there may appear to have been a preponderance of evidence against the verdict.</p>

<p>[1.] A suit is pending against a bankrupt, at the time of his discharge, upon a debt proveable in bankruptcy. Said, that the bankrupt must plead his discharge in bar, if the condition of the suit is such as to permit him to make such a defence; and if he fails to plead it, a Court of Equity will not annul the judgment rendered against him, and thus make his discharge available.</p> <p>[2.] Equity will interfere to set aside a judgment rendered by a Court of competent jurisdiction, only in cases' -where the defendant has a good defence of which he was entirely ignorant — or Where he was prevented from making it by fraud, or accident, or tire act of the other party,- tiumixed with negligence or fault on his part.</p> <p>[3.] Where a suit is instituted at law and the defendant suffers a judgment by default, and the plaintiff continues his cause at the second Term, and third and fourth Term, and at the'fifth Term takes his judgment, the defendant at no time having filed any plea or answer — *Held that these acts do not constitute a fraud in the procurement of the judgment, so as to authorize a Court of Equity to set aside the judgment in favor of a defence, which would have' been good if made.</p> <p>[.4.] In such a case, the defendant’s ignorance that the suit was pending, when his defence accrued to him, held no ground for Chancery to set aside the judgment.-</p>

Issue upon the foreclosure of mortgage. Tried before Judge Floyd, in Pike Superior Court, August Term, 1847.

Trespass for levy offi.fa. on plaintiff’s property, and justification under Üiefi.fá.-pleaded by defendant. Tried before Judge' Floyd, in Pike Superior Court; August Term. 184?. It appears that plaintiff, a number of years ago; purchased off defendant, as executor of P. Scott, deceased, a tract of land, and gave his note with security therefor.

<p>£l.] Notwithstanding the issue submitted to the Jurjr be one exclusively of fact, and there have been two concurrent verdicts, yet if the finding be clearly against law, the verdict will be set aside and a new trial granted: especially where an important principle is involved, and the verdict is to be followed by serious consequences to the party against whom it is found.</p> <p>[2.] The Act of 1833, to compel Sheriffs and Coroners to deliver possession of real estate, sold by them under execution, to the purchaser, declares, tha* “ when any Sheriff or Coroner shall sell any real estate, by virtue of and un“der the authority of any execution, it shall be the duty of such Sheriff or “ Coroner, (as the case may be,) upon application, to put the purchase?, “his or her agent or attorney,in possession of the real estate sold; Provided, “ that this Act shall not authorize the officer making the sale, to turn out any “ other person than the defendant in execution, his heirs, or their tenants, if “ such other person were in possession at the time of the rendition of the “judgment, or if such person has acquired the possession under the judgment “ of a Court of competent jurisdiction, or claims under the person or persons “ acquiring such right by the judgment of such court” — Held, that if possession be not given immediately and before the next term of the Court, or before the officer malting the sale goes out of office, that it can only be done under an or= der of the Court, with notice to the tenant.</p> <p>£3.] Where a purchaser at Sheriff’s sale enters into asubsequent agreement with the defendant in execution, whereby he is suffered to remain on the land,- he is considered as having waived his statutory right, and he fcannot, upon the failure or refusal of the party, at the end of two years and eight months, to comply with his contract, call upon the officers tvho made sale of the land to deliver him possession.</p>

<p>[1.] Where a suit was instituted on a joint and several note against H., as principal debtor, and S., as security — Held, that inasmuch as it appeared on the face of the record, that it was the separate debt of H., secured by the joint security of S., that H. might set off an open account which he held against the plaintiff for dealings between themselves under the statute.</p>

Debt. Plea — Failure of consideration. Tried before Judge Floyd, in Montoe Superior Court, September Teriii, 1847. For tlie facts of the case, the reader is referred to the opinion deliveredby the Supreme Court.

Rule to set aside nonsuit. From Monroe Superior Court, September Term, 1847. Heard and overruled in the Court below — Judge FloycL presiding.

<p>[1.] The Act of the Legislature of the 29th of December, 1847, which declares that, from and after its passage, it shall not be necessary to make securities on appeal and injunction bonds parties to writs of error — Held, not to be applicable to cases occurring before its passage and pending at the time.</p> <p>[2.] The clause of the Constitution of the united States and of the State of Georgia, which prohibits Cx post facto laws — Reid, to apply to criminal laws alone.</p> <p>[3.] Retrospective laws which are not cx poslfdclo in their character, and which d o not impair the obligation of contracts, are not within the prohibitions of the Constitution.</p> <p>[4.] The Legislature may pass retrospective laws, and the Courts may enforce them, provided they are hot ex post facto in their character — do not impair the obligation of contracts — divest no antecedently vested rights, and are not violative of the great fundamental principles of the Social Compact.</p> <p>[5.] Retrospective laws; which divest previously acquired rights, Although such as are not within the prohibitions of the Constitution, are upon the same position, as to principle, with ex post facto laws; and, if enacted by the Legislature will not be enforced lay the Courts. And are farther void, because in conflict with the fundamental principles of our Government.</p> <p>[6.] Laws which act upon remedies alone, although retrospective, will be enforced ; provided they do not impair the obligation of contracts, di- disturb absolutely vested rights; and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of 'enforcing existing obligations. The Act of the 29th of December, 1847, is not within these provisos.</p> <p>[7.] Motion to reinstate the case, after the writ of error dismissed, refused</p>

<p>[1,] A judgment creditor, upon a usurious contract, comes into a Court of Equity seeking to have his debt satisfied out of the money in the hands of the assignees, arising from the sale of the insolvent’s property, upon which he had a lien at law, which he waived. Consenting to the sale upon the assurance of the trustees, made in ignorance of the usury, that his claim should be paid, Held, that the usury may be set up by way of answer to the bill — provided a sufficient excuse be rendered why the original debtor did not avail himself of tills defence at law; and if sustained by proof, the judgment shall be displaced for the usury, and stand only against the trust fund, for the principal and legal interest due on the original loan.</p>

Trespass on the case. Tried before Judge Floyd, in Butts Superior Court, September Term, 1847.

Assumpsit. From Bibb Superior Court. Tried before J udge-Floyd, November Term, 1847.

<p>[1.] An assignee of an execution does not acquire, by virtue of the transfer, a right to recover damages for a fraud alleged to have been committed against the original plaintiff, four years before the title of the present holder accrued.</p>

<p>LI.] It is not error in the Circuit Judge, in his charge to the Jury, to instruct them as to questions of law, which are raised by counsel in their address to the July, or to instruct them as to what he may believe perversions by one counsel, of legal positions assumed by adverse counsel before the Jury.</p> <p>[2.] A witness who testifies generally in affirmative terms, that a party did not receive value for the transfer of a promissory note, without limitation or qualification, as to witness’ knowledge, or as to time, or place, is a negative witness; and is not to be believed in preference to a witness who swears affirmatively, that such party did receive value in the transfer of the note.</p> <p>[3.] If a witness be liable to a third person, who is liable to the party calling him, he is a competent witness; such circuity of interest is not sufficient to disqualify him.</p> <p>[4.] The purchaser of a bill, note or other negotiable security, transferable by delivery, who takes it before it is due, from one who himself has no title bona fide and for value, acquires a good title. Held, farther, that such title is not defeated by the want of such caution in the purchase, as a careful and prudent man would exercise in the conduct of his affairs, or by gross negli gence, but that it may be defeated by mala fides in the purchase, and that mala fides consists in notice, actual or constructive, of the fact, that the security is not the property of the person who offers it, and a privity with or participation in a fraud upon the true owner. Held, also, that proof of want of proper caution, or gross negligence, or of any other fact which goes legitimately to. show mala fules, may be submitted to the j ary, subject to the direction of the Court as to the law of the case. Held, that it is proper for the loser of a bill or note to give immediate notice to the parties on it, and to the public of its loss; blit public notice, not brought home to the buyer, will not aflecl his title, nor will the failure to give public notice preclude the loser from showing that the buyer toot the bill or note-mate fide.</p>

<p>[1.] What constitutes adverse possession.</p> <p>[1.] What portion of the premises may be considered in the occupant’s possession.</p> <p>[3.] How far fraud is a good replication to the plea of the Statute of Limitations.</p> <p>[4.] A defective conveyance, or a deed with one witness, or a transfer on the back of a deed, or a bond for titles, is sufficient to give color of title ; and a person holding possession under such instrument for seven years, will be protected by the Statute of Limitations, notwithstanding he may know of the defect or infirmity in his tide.</p>

<p>[1,] Where a judgment creditor ¿fecks the aid. of a Court of Equity, to reach the equitable assets of 1ns debtor,, not the' subject matter of levy and sale, lie must slmw that he has pursued^his legal remedies to every available extent; but where, as in this State,''UÜJJjndgment creates a lien upon the defendant’s property, a Court of Equity will lend its assistance to a judgment creditor, for the purpose of removing an obstruction, fraudulently interposed to prevent the property of his debtor from being made subject to his judgment lien, without a return of nulla bona on the execution.</p> <p>[2.] A chose in action, belonging to the wife before marriage, and not reduced into possession by the husband during the coverture, survives to the wife.</p>

<p>£1-1 The Judgment of tins Court in Collkis vs. The Central Bank, held not to be a reversal of the Decree of 1846, settling the relative dignity of the liens of the bill holders and judgment creditors of the Monroe Hail Road and Banking Company, upon the fundraised by the Side of the effects of that Company.</p> <p>£2.] The Decree of 1846 being unreversed, as to the lien of bill holders and judgments, a judgment creditor - cannot demand a judgment of the Circuit Court de novo upon his lien, and if rendered would not be entitled to his Writ of Error thereon, as late as December, 1847.</p> <p>[3.] The Statutory Lien of bill holders under the Charter of the Monroe Rail Road and Banking Company, attaches equally upon all the property and effects of that Company.</p>

<p>II.] In-Georgia, a Sheriff is not a judicial officer, and although an instrument ta>hen by him, for the appearance of the defendant to answer a criminal charge, is not technically a recognisance, still it is good as a bond or .obligation, and scire facias is the proper remedy for its forfeiture.</p> <p>£2.] Before Baffin a criminal case can be made liable, the record must show, that the principal was called and did not appear.</p>

Indictment for Arson, in Habersham Superior Court. Tried before Judge Dougherty, September Term, 1847.

<p>[1.] A Surety who has paid the debt of his Principal, is, in a Court of Chancery, upon the Equity which springs out of the relation of Principal and Surety, and the fact of payment, subrogated to all the rights of the creditor; and in the distribution of the assets of the Principal, is entitled to occupy the place and to be substituted for, the creditor, upon the original evidence of the debt.</p>

<p>[1.] A plaintiff having two executions which are liens on money, in the hands of the Sheriff, arising from the sale of defendant’s property, cannot apply the fund to either ii. fa. at his option; but the law will appropriate the proceeds of the debtor’s property, to the older lien.</p> <p>Note. — See the doctrine of Application of payments, fully discussed in 1 American Lead. Cases, 141 — 158.—Ret.</p>

<p>[[.] Where a party to a suit, seeks to introduce the testimony of witnesses on the trial, taken by interrogatories and commission, he must state the particular ground, in Iris application for a commission, on which he seeks to take the deposition of such witnesses, as declared by the Acts of the Legislature; and unless the witness whoso testimony has been taken by commission, is within some one of the provisions of the Statutes providing for the admission oí such testimony, it will be rejected.</p> <p>[2.] Where there has been no violation of any rule of law, and the facts of tbs-case have been fairly submitted to the Jury by the Court, a new Trial will not be granted.</p>

Case for Words, in Jackson Superior Court. Tried before Judge Dougherty, February Term, 1848.

In Equity. — Tried before his Honor, Judge Wright, March Term, Forsyth Superior Court, 1848. The facts are stated in the opinion of the Court. argued : 1st. That Robert Foster’s children took a vested interest in remainder at his death. Preston on Estates, 94, 98.

<p>£1.] Where a Bill was filed by the contractors on a Rail Road, against the Rail Road Company, to set aside the award of an interested Arbitrator, and to have an account for damages sustained by the contractors, for breach of contract on the part of the Company; Held, that a Court of Equity had jurisdiction, to grant relief, where it appeared by the terms of the agreement, it was stip-lated between the parties, “that all disputes and differences arising under the contract, should be submitted to the Engineer of the Company, whose decision should be obligatory and conclusive between the parties, without further recourse or appeal; it appearing the Engineer was a stockholder in the Company, to the amount of ten thousand dollars, which fact was unknown to the contractors, at the time of making the agreement by which the Engineer was selected as such arbitrator.</p> <p>[2.] That a man cannot be a judge in his own cause, is a principle too well es tablished to require the citation of authority to support it.</p>

<p>[1.] The traverse of the answer of a defendant in Garnishment, is not a collate* ral issue, and may be appealed from by either party, who may be dissatisfied with the verdict of the Jury, as matter of right, 1</p>

Assumpsit, in Burke Superior Court. Tried before his honor, Judge Holt, November Term, 1847. The facts of the case appearing.in the opinion of the Court, are not here repeated. submitted the following points and authorities; The discharge of a secuiity to a note, by reason of the holder’s inaction after notice to sue, results with us, from the provisions of the act of 1831. At Common Law, the liability of the security is co-extensive with that of the principal.

<p>Starnes, contra, contended, that this Bill was filed by the Executors of Fox, against the heirs at law, and certain charities, legatees under the Will, for the construction of the Court. The decision below was in favor of the charities and against the heirs. It was impossible, therefore, to make them all parties plaintiff. And also, that the description "heirs at law,” was sufficiently definite. If necessary, he moved to amend the Writ of Error by inserting the other heirs as parties plaintiff.</p>

<p>[1.] The Statute of 9 Geo. II. Cap. 36, is uot of force in the State of Georgia.</p> <p>[2.] The principles of the Statute of 43 Elisabeth, Cap. 4, relating to charitable uses, have been adopted and constitute apart of the law of this State.</p> <p>[3.] The Superior Courts in this State are empowered to exercise geueral Equity jurisdiction, in all cases where a Common Law remedy is not adequate; and have an inherent Jurisdiction over bequests and devises to all charitable uses and trusts, where the same are definite and specific in their objects, and capable of being executed.</p> <p>[4.] A Court of Equity in Georgia lias inherent jurisdiction to carry into effect the charitable bequests of a Testator, according to his intention, independent of the Statute of 43 Elisabeth.</p>

Trover in Richmond Superior Court. Tried before Judge Holt, January Term, 1848. This was an action of Trover, for a promissory note, for seven hundred dollars, drawn by William E. Dealing and indorsed by William Dealing, and tried on this appeal. The following is a brief of the evidence submitted to the Jury. 1. Carter Crittenden, sworn for plaintiff. Heard plaintiff demand of defendant the note for which this suit is brought.

Caveat to Will. On Appeal, in Columbia Superior Court. Tried before Judge Holt, at March Term, 1848. The plaintiffs in error gave notice to the defendants in error, to prove the Will of their testator, Marshal Keith, in solemn form, in the Court of Ordinary of Columbia county, which notice being complied with, an appeal by consent from that Court, was taken to the Superior Court of Columbia county.

Wilkes Superior Court. Tried before Judge Sayre, March Term, 1848. This was an application on the part of the defendant in error, to take the benefit-of the “ Honest Debtor’s ” Act, of 1823. The plaintiff in error as a creditor, suggested as fraud, that the schedule filed under the Act, did not contain a true statement of all the effects of the debtor; upon which issue was joined.

Indictment for receiving stolen goods from a negro. Tried before Hon. James A. Merriwetiier, in Putnam Superior Court, March Term, 1848. The plaintiff in error, at the March Term, 1848, of Putnam Superior Court, was put upon his trial under an indictment for “ receiving stolen goods from a slave.” It was proven by Donaldson Prichard that the watch was stolen from him on the night of 2d Dec. 1843.

Assumpsit, &c. in Warren Superior Court, tried before Judge Sayre, April Term, 1848. The ‘following Bill of Exceptions, upon which error was assigned, will disclose the facts of this case : TnoiiÁs F. Persons, Adm’r. 1 vs. > Assumpsit in Warren Sup. Court. Henry Hight. ) Be it remembered, that this cause came on for trial at the present April term, for the year Eighteen Hundred and Forty-Eight, and issue was joined upon the pleas of the general issue and usury.

<p>[1.] Where, by the Act of Incorporation, “ The City Council of Augusta'1 were empowered to make and establish such by-laws, rules and ordinances, that shall appear to themrequisiteand necessaryfor the security, welfare and convenience of the said City: Held, that an ordinance of the City Council regulating the keeping and retailing Gunpowder within the limits of the City, was within the powers conferred by the Charter, and authorized thereby.</p> <p>[2.] The Term “ Criminal Cases,” as used in the 1st Section, 3d Article of the Constitution, has reference to such acts or omissions as are in violation of the public laws of the State, and not to the violation of 1he local by-laws, or police regulations of Town and City Corporations. “ Trial by Jury as heretofore used in this State," as mentioned in the 5th Section of the 4th Article of the Constitution, does not apply to pecuniary penalties imposed by municipal corporations of Towns and Cities, for a breach of their local by-laws and police regulations, for the security, welfare and good government of such Towns or Cities.</p>

In Equity, in Tatnall Superior Court; Demurrer. Decided by Judge Holt, April Term, 1S4S. The plaintiff in error, as the next friend of his four minor children, filed this hill against the defendant in error, as the administrator of their deceased grandmother; praying an account for their distributivo portion of tlie estate.

Affidavit of Illegality, in Warren Superior Court. Tried before'Judge Sayre, April Term, 1848.

<p>[1.] A writ of Error will be dismissed, if notice of the signing of the Bill of Exceptions, and copies of the writ of Error and Citation are not served within-the time required by the Act organizing the Supreme Court, and the 21st-Rule of Court.</p> <p>f2.] A writ of Error will not be allowed for correction of Errors, in the decree' or verdict rendered by a Jury, as to matters of fact.</p>

<p>[1. Whatever produce accrues upon a specific legacy, as interest, rent, hire, or in any other form of profit, from the death of the testator, aud nothing more or less, belongs to the legatee, and that, whether the enjoyment of the principal is postponed or not.</p>

<p>[1.] A husband who survives his wife, is entitled to all her choses in action, whether reduced into his possession in his life-time, or not.</p>

Assumpsit, in Chatham Superior Court, tried before Judge Fleming, at January Term, 1848. A full statement of the facts in the cause, is embodied in the opinion of the Court. Held: that as to the previous proceedings, there was no necessity to show them, for the single fact in issue was, “ whether the decree of the Court of Chancery was reversed,” not what the previous proceedings were ; and therefore, proof of the decree, and of its being reversed; was clearly sufficient.

<p>£1.] 'The dismissal of the Writ of Error in the Supreme Court in this State, under the provision of the Constitution, operates as an affirmance of the judgment of the Court below.</p> <p>£2.] Where a decree in Equity has been before the Supreme Court on a Writ of Error, and the judgment of the Court below affirmed, a Bill of Review will not lie to reverse such decree for Error, apparent on the face thereof.</p> <p>[3.] Where a plea was filed, (notbeing a plea in bar, of a former recovery,) it was held not necessary to set out the entire record of ihe judgment of the Supreme Court, dismissing the Wilt of Error in that Court: but only so much of the leading facts as were relied on by defendants as a bar to the complainant’s bill, in a distinct and issuable manner.</p>

In Equity, in Twiggs Superior Court, tried before Judge Scarborough, April Term, 1848. This was a Bill in Equity, filed by the plaintiff in error against Hartwell H. Tarver and William M. Tarver, of the county of Twiggs, executors of Ruffin R. Tarver, deceased, John Martin of the county of Jones, Michael Watson, and Frederick D. Wim-berly, of the county of Houston, and the Bank of Columbus, located in the county of Muscogee.

Covenant. Tried before Judge Scarborough, in Twiggs Superior Court, April Term, 1848. Held: a breach that the wife of the covenant- ■or liad a claim of dower in the land, which was not extinguished or relinquished. It is true, it is said, that dower is an incumbrance, in 2 Greenl. Ev. but it is there said that an outstanding, paramount title is a breach of the covenant against incumbrances.

Robert Alexander, Judge of the Chattahoochee Circuit, requiring him to certify and sign a bill of exceptions, tendered. The facts appear in the decision of the Court.