Volume 40 — Georgia Reports

Motion to transfer case to United States Circuit Court. Before A. R. .Brown, Esq., Judge pro hae vice. Sumter Superior Court, April Term, 1869. This cause was twice before this Court before. See Mordecai vs. Stewart, 36th Ga. R., 126, and 37th Ga. R., 364.

Rule against Sheriff. Relief Law. Decided by Judge Harrell. Lee Superior Court. September Term, 1869.

Continuance.' Reformation of Deed. Mistake. Before Judge Clark. , Chambers. Worth county. July, 1869. The bill of William Mitchell against Benjamin F. Mitchell and Benjamin Willis made the following case: William Mitchell owned a plantation in said county, composed of land lots Nos. 253 and 254, lying' broadside to each-other, and each containing four hundred and ninety acres.

Emancipation by Will. Before Judge Worrill. Muscogee Superior Court. May Term, 1869. Redd propounded, as the last will of Owen Thomas, a paper, duly executed on the 25th of February, 1852, containing the following requests. “Item 1st. I desire all the debts I may owe, if any, promptly-paid.

Distress-warrant. Before Judge Harrell, Randolph Superior Court. May Term, 1869. S. A. McNeil made an affidavit before the County-Judge that Harker owed him, as administrator of William W. McNeil, $500 00 for rent, and the Judge issued his warrant commanding the proper officers to levy upon a sufficiency of Marker's property to pay that amount and costs. The levy was made upon certain personalty.

<p>When a suit was instituted by one partner against his co-partners to re- . cover his share of the proceeds or profits of the copartnership, and it appeared in evidence that the copartnership contract was for the purchase and sale of tobacco, for the mutual benefit and profit of the partners themselves, one of whom was to furnish the transportation of the tobacco from Augusta to Macon, and the partner who was to furnish the transportation of the tobacco made a contract for the transportation of the same with a Quartermaster of the Confederate Government, with the knowledge and consent of the other partners, to have the tobacco transported in Confederate Government wagons as the same were returning empty from the railroad depot, and agreed to pay for such transportation of the tobacco either in bacon or Confederate money: Held, that this was not such an executory contract, made with the intention, and for the purpose, of aiding and encouraging the rebellion, as made it illegal and void;/that the intention and purpose of the contracting parties was to aid and benefit themselves, and not to aid and- encourage the rebellion, and that the Court below-erred in granting a new trial in the case on that ground.</p> <p>Held, also, that there is sufficient evidence in the record to sustain the verdict of the jury.</p>

Lower. Before Judge Cole. Bibb Superior Court. May Adjourned Term, 1869. 'Jilie petition of Mary Lay, widow of Joseph Lay, was as follows: In 1867 her husband died testate. His will was admitted to probate, and Solomon was qualified as his executor. By said will he supposed that he had *mply provided for her support, etc., but the estate lost $>40,000 00 since the war, and is not sufficient for her support and maintenance.

Amendment. Res adjudicaba. Before Jud^e Green. Henry Superior Court. April Term, 1869. This cause was before this Court before. See 37th Georgia Reports,, 640.

Claim. Equitable Mortgage. Tax Sales.' Before Judge Green. Spalding Superior Court, August Term, 1869. On the 16th of February, 1868, Jones obtained a judgment against one Gullett for $386 84, besides interest and costs. The fi. fd. issued upon this judgment was, on the 28th of January, 1869, levied upon a house and lot in Griffin as Gullett’s property. Smith, by Patterson as his agent, claimed the property.

<p>Set-off. .Dormant Judgments. Before Judge Green. Newton Superior Court. September Term, 1869.</p> <p>On the 1st of July, 1860, Charles Camp, in the Inferior Court of said county, obtained a judgment for $812 50, principal, $85 32, interest, and $-, costs, against Sarah A. Camp, principal, and Harry Camp as security, and afi. fa. -was issued thereupon on the 21-st of January, 1862. On the 24th of December, 1860, Daniel Baker, in the same Court, obtained a judgment against Harry Camp (as trustee for Sarah A. Camp) and one Johnson, as security, for $642 00, principal, $8 95,'interest, and $--, cost's, and on it afi.fa. was issued on the 20th o.f January, 1862. No entry, by any proper officer, was made upon 'either of these fi. fas. within seven years from the dates when they were - issued. At August Term, 1869, of said Superior Court, Baker sued out scire facias against Harry Camp as such trustee, and James M. Pace, as administrator of said Johnson, to revive the last named judgment. In August, 1868, H,arry Camp sued James M. Pace, as administrator of Charles Camp, for $500 00, for certain services performed for said Charles Camp in his lifetime. The plea was the general issue only. On the trial of this case it appeared that Charles Ca,mp had agreed to have $500 00, due Harry Camp for said services, credited on said first stated judgment, but it had never been done, and so Harry Camp recovered a judgment against Pace, as administrator of Charles Camp, for $500 00, with interest from the 1st of August, 1866.</p> <p>- After this last judgment was entered up, Pace, as administrator of Charles Camp, moved to have said $500 00 judgment entered as a credit upon the first named judgment. Harry Camp, in answer to a rule nisi for that purpose, objected to this upon the following averments: 1st. That said $500 00 judgment was for services done for said Charles without any agreement that he should be paid by a credit on. said first named judgment, but Charles Camp agreed after-wards to pay him by .entering such a credit; that it was understood that the credit was to be then entered, so that he might save himdelf out of trust property of Sarah Camp then in his hands, said fi. fa. being the oldest one against said Sarah’s trust estate, but Charles Camp afterwards refused to enter the credit. Now that fi.fa. is dormant. 2d. That the judgments in favor of Charles Camp and Baber are both dormant;-Pace, as• attorney of Baker, is reviving Baber’s, which is the younger lien, but is taking no such steps as to Charles Camp’s, and thereby increases Harry Camp’s risk of loss-by giving this junior judgment prior lien on said trust estate. 3d. The judgments sought to be set off were obtained in different Courts, and therefore could not be thus set off. 4th. Pace should have plead set-off in the case of Harry Camp against him as administrator; and last, because Harry Camp’s attorney has a lien for fees on the judgment in his favor.</p> <p>' Upon inspection of the papers, and considering said objections, the Court ordered the first named fi.fa. to be credited by $500 00, as of the 1st of August, 1866, and that Pace, as administrator, should pay said attorney’s fee, thereby satisfying the judgment of Harry Camp against Pace as administrator.</p> <p>Harry Camp’s, attorneys say that the Court erred in overruling his said objections to said judgment being so satisfied, and especially as his objections were sworn to, and nothing was shown against them.</p>

.Jurisdiction of the Superior Court. Mandamus. Marshal’s Sales. Before Judge Pope. Fulton Superior Court. May Term, 1869. Eudd failed to pay his (Atlanta) city taxes, fi. fa. issued against him therefor, was levied on certain land in said city, and after due advertisement the then marshal of the city sold the land; Jennings bought it, and took a deed from the marshal. He did not get possession of the premises.

Railroads. Liability for killing Confederate States Soldier. Decided by Judge Pope. Fulton Superior Court. November Term, 1869. Nancy Martin, in 1866, sued Wallace, as Superintendent of the Western and Atlantic Railroad, for killing her husband.

Lien. Claim. Before Judge Parrott. Catoosa Superior Court. August Term, 1869. Yates sued Dickson, Wooten & Malone, as makers, and Curry, as security, on tlieir profnissory note. • Pending the action, payments Avere made on it.

<p>Military Captures. Practice. Before Judge Parrott. Murray Superibr Court. October Term, 1869.</p> <p>In June 1866, Brakebill brought case against Leonard and five other named persons, averring that on the 29 th of December, 1864, they took from him, by force, without lawful warrant- or authority, fraudulently and without his consent, a three year old mule, worth $150 00, one barrel and seventeen gallons of syrup, worth $16 00, and a halter, worth $5 00, to his damage, etc. The defendants were served, pleaded the general issue, and in January 1868 the cause was put upon the appeal, by consent.</p> <p>On the trial, Brakebill testified that on said day in December, 1864, be was en route for Cleveland, Tennessee, witli some syrup to exchange for salt and other family supplies, was overtaken by said defendants, (except Leonard,) was asked where he was going, and he said, “to mill;” they passed on and returned and told him they had orders to arrest persons trading with the Federáis, and that they believed he was going to them; he then admitted that he was going there, they arrested him and took him to the headquarters of Leonard, who was Captain of a company of Confederate soldiers. Ble was kept under arrest till next morning, and then told by Leonard that they had concluded to take what he had and let him go, upon his giving security not to trade again with the Federáis. He gave the security and importuned Leonard not to take all he had, and Leonard let him keep one mule and his wagon, and kept the other mule, seventeen gallons of syrup and said halter. He testified, also, as to the value of the articles kept by Leonard.</p> <p>A person.who was arrested with Brakebill testified to the same facts, and plaintiff rested his cause.</p> <p>One of the defendants testified that the suspicion against Brakebill was excited by his having trunks in his wagon, that they arrested him under certain orders,- which, while he had not seen them, he knew by common report. It was shown that Leonard was a Captain under General Wheeler, and that these defendants were of Leonard’s command;, it was, also, shown that orders issued in November, 1864) for Wheeler’s men to leave North Georgia and join him, but that there was difficulty in sending orders through at that time, and it was not knowm whether Leonard had received this order.</p> <p>General Wheeler testified by interrogatories, to which he appended copies of orders, which, he said, he received from General Beauregard. In one of these, dated 22nd October, 1869, and received by him 18th November, 1869, he was ordered among other things for him to do in North Georgia, “should the enemy advance anywhere, you will drive off all the stock in their front.” Another, dated 18th November, 1869, ordered him to employ his cavalry “ to best advantage, retarding advance of Sherman’s army and destroying supplies in his front;” * * and to consume and destroy all sup.plies within his reach. By another, dated 28th November, 1864, Wheeler was notified that eight hundred dismounted Cavalry would report to him that night, and he was ordered to mount them “as rapidly as possible, by capture or impressment, and use them to the best advantage.” Plaintiff's counsel objected to the reading of these copy orders, as evidence, but the objection was overruled and they were read with General Wheeler’s evidence. His evidence amounted to this: that,, if Leonard acted upon and within these orders, he was so acting by military order.</p> <p>At this stage of the proceeding, before defendants had closed their testimony, the Judge remarked that “ the old man Brakebill had been badly treated, but he might charge it to the war,” and announced the case dismissed, without any motion from defendant’s counsel. In the bill of exceptions, he says he did so “ because it appeared that the property was taken in obedience to the orders of superior officers, and in accordance with the practice of soldiers in each army during the war, and because it was a useless waste of time to pursue a fruitless investigation.” Judgment for costs was entered against plaintiff. His counsel-complain at said dismissal and judgment, and at the allowance of said copy orders as evidence.</p>

Dormant Judgments. Distribution of Estates. Practice. Before Judge Parrott. Whitfield Superior Court. November Term, 1869. On the 4th of January, 1859, King obtained a judgment against James Morris, in Whitfield county, upon which a fi.fia. was issued on the 18th of November, 1859. On this fi. fa. were no entries, but a receipt by King’s attorney for $500 00, dated 12th of Juñe, 1860, and a receipt by the clerk for the costs, dated the 13th of December, 1859.

Statute of Frauds. Before Judge Knight. Lumpkin Superior Court. April Adjourned .Term, 1869. Harris & Price sued Young upon an open account for-$10 30, before a Justice of the Peace. Young pleaded the general issue, and relied on the Statute of Frauds.

<p>When an affidavit of illegality had been filed to an'execution, and the questions of illegality involved therein had been finally adjudicated by this Court: Held, that such adjudication was conclusive upon the rights of the parties in that case. Held, further, that the party making such affidavit of illegality, could not, nor could his legal representative after his death, by & motion to set aside the execution and judgment for the same causes embraced in the affidavit- of illegality, or which might have been embraced therein, be heard to vacate or set aside said execution and judgment, the mord especially after the lapse of several years since the rendition of the same, for causes which may have existed prior thereto.</p>

Confederate Money. Relief Act. Before Judge Knight. Towns Superior Court. November Term, 1869. There is no record in this case. It was waived.

Lost Note. Slave Debt. Before Judge Davis. Gwinnett Superior Court. September Term, 1869. Venable averred that Daniel D. Born, on the 20th of November, 1860, gave his promissory note to R. C. Gaines, who, on the 28th of May, 1862, sold it to him, that Born paid on it $140 00, in 1861, and died without paying the balance, that William J. Born administered upon his estate and refused to pay the note, that it was lost in 1865, and prayed that a copy of it might be established.

Stipulated damages. Guarantee. Evidence. Before Judge Andrews. Oglethorpe Superior Court. October Term, 1869. Cox sued Sims upon the following obligation: “On or before the first day of February, 1869, I promise to deliver to S. H. Cox, at the Lexington depot, twenty bales of cotton, for value received, said cotton is to average in weight four hundred pounds per bale and to be of middling quality.

. Rule against Sheriff. Distress Warrant. Before Judge Gibson. Washington! Superior Court. April Term, 1869.

<p>Common-Carriers. Acts of Congress. Before Judge Gibson. Richmond Superior Court. January Term, 1869.</p> <p>Stovall sued Plant, averring that he was a common-carrier by the steamer Eclipse, from Augusta, Georgia, to Savannah, Georgia, and intermediate points on the Savannah river, and that as such he received certain lumber, etc., on the 27th of December, 1866, to be conveyed to Savannah, and carelessly, etc., failed to deliver it, to Stovall’s damage $2,000 00. Stovall proved the delivery of the lumber, etc., on said steamer at Stovall’s landing, on said river, for delivery at Savannah, its value and its loss. It was shown that the Eclipse was blown up about twenty or thirty miles above Savannah, that the boat, lumber, etc., sunk, and were a total loss, that Stovall’s agent proposed going with rafts to satfe it, but the agent of the Eclipse declined giving liim authority to interfere with the lumber, etc., short of Savannah, and that part, at least, could have been saved if an effort had been made by defendant. Stovall’s counsel then read in evidence the enrolment of said steamer, dated January 1st, 1866, whereby it appeared in conformity to the Acts of Congress of February 18th, 1793, and May 6th, 1864, thatmne Milliken owmed five-twelfths and Plant owned seven-twelfths of said steamer, etc. It was admitted that Milliken was dead.</p> <p>The defendant showed that when the Eclipse was at Purysburg landing, on the South Carolina side of the river, wooding, the engine exploded, the Eclipse sank, and ‘her cargo was lost; that this bursting of the boiler was caused by the engineers carelessly failing to clear out the boiler as often as was usual and necessary; that neither Plant nor Milliken was present at the time; that the tide runs up said river above said Purysburg; that the Eclipse was engaged in the river trade between said Savannah and Augusta, stopping at points on either side, but seldom, however, on the Carolina side.</p> <p>Plant’s counsel requested the Court to chairge the jury that if the Eclipse was lost while engaged in navigation in tide water, and between Georgia and South Carolina, then such navigation is a part of the inter-State commerce, and under the Constitution, is under the control of Congress; that if said facts existed, Plant, under the Act of Congress of 1851, is liable only for the value of his interest in the Eclipse and her freights, if he were not engaged in or conniving at the negligence which caused the loss; that if there was a total loss of the vessel and cargo, in the course of the voyage, no freights were earned, and Plant had no interest in the freights; that if the vessel dnd cargo were a total loss, during the voyage, Plant had no further interest in the vessel and freight, and is relieved from liability to Stovall under said Act of 1851."</p> <p>The Court refused so to charge, and Stovall had'a verdict and judgment for the proven value of the lumber, etc. Plant’s counsel moved, for'a new trial, upon the grounds, that the verdict was contrary to the evidence and law, and because of said refusal to chárge as requested. The new trial was refused, and that is assigned as error.</p>

Jurisdiction over Nuisances. Prohibition. Before Judge Gibson. Richmond Superior Court.. June Term, 1869.

New trial., Common-Carriers. Evidence. Before Judge Gibson. Richmond Superior Court. July, 1869. This case was before this Court before. See 38th Georgia Reports, 129. It was again tried and resulted in a verdict for the value of the ten bales of wool.

<p>Motion for New Trial. Damages. Bill of Exceptions. Before Judge Robinson. Jasper Superior Court. April Term, 1869.</p> <p>Brooks sued Jonas W. Holland for damages, averring that he had damaged Brooks’ land (described in the declaration) by obstructing the free and natural passage of the water in a certain creek which ran through said land, and thus rendering said land useless for cultivation, and by filling up a ditch on Brooks’ land. Holland pleaded the general issue. The petit jury found for Brooks $250 00. An appeal was taken. Holland died, and his representative was made a party. The special jury, in November, 1867, found for Brooks $550 00. Judge Foster was then presiding. Holland’,13 counsel being sick, time was given for preparing a brief of the evidence, and to move for a new trial. The grounds for new trial were, that the verdict was strongly and decidedly against the weight of the evidence, and because of an alleged refusal of Judge Foster to charge as requested. The brief of the evidence was submitted to Judge Foster, and approved by him in writing. He also denied, in writing, 'having refused to charge as requested. This paper was filed in the Clerk’s office, and upon it Judge Robinson, Judge Foster’s successor, heard the motion, and refused a new trial.. For so much of the evidence as is material to an understanding of the law of the case, see the opinion. This refusal is assigned as error. ' (When the cause was called here, the Reporter, counsel for Brooks, moved to dismiss the bill of exceptions because the evidence was not embodied therein. The bill of exceptions began in the usual form, and said, “the following oral and documentary evidence was introduced: (See brief of oral and documentary evidence filed on motion for a new trial.”) (Here occurred a blank page.) The next sentence was: “The. jury, after,being charged by the Court, retired, and returned a verdict for $550 00 damages for plaintiff, whereupon defendant moved for a new trial,''upon the following grounds:” Here was a blank of two pages, then the brief of evidence, requests to charge, comments of Judge Foster, etc., followed, and after that came the motion for new, trial, etc. The Clerk then certified that “the foregoing is the true original bill of exceptions, and a true and complete tranécript of the record, and the evidence, oral and documentary, hereto attached, is a true copy of the original evidence filed on the motion for a new trial.” All the foregoing were attached together. The motion was based upon the belief, from the foregoing facts, that there never was any evidence in the bill of exceptions, but that the Clerk had put it in .after the bill of exceptions was filed. Counáel for plaintiff in error averring that that was not so, the Court, upon an inspection of the papers, overruled the motion.</p>

<p>Personal Liability of Stockholders, etc. Equity. Before Judge Robinson. Putnain Superior Court. September Term, 1869.</p> <p>Alexander Reid et. al., as creditors of the Eatonton Manufacturing Company, by their bill, made this case: In 1835 the General Assembly of Georgia incorporated said company, as a cotton and wool factory, with the usual powers of a corporation. Under this charter, the company began business, with a capital of $50,000 00. In June, 1849, having made say $40,000 00 in profits, the capital stock was increased to $75,000 00 and distributed among the original stockholders pro rata. The stockholders, and their respective shares, are stated, as also the changes caused by deaths- and transfers. The company had no capital except that invested in the factory and machinery, and depended upon borrowing money to do business. In order to gain credit, by certain stockholders, representing largely over half the stock, in June, 1849, it was resolved that loss or gain should be shared by the stockholders according to their stock and that the stock and private estate of each stockholder should be liable for the debts of the company, in proportion to the shares held by each. And after this resolution was passed, the stockholders held themselves out to the world as individually bound, as aforesaid. Upon this understanding it became habitual for the several members to stand the company’s security; sometimes one and then another of them would do so. On such understanding, Adams, a stockholder, stood its security to Alexander Reid, and he and the company were sued and a judgment was had against them. Said Reid loaned the company money, sold them corn, provisions, cotton, etc., on credit, and in fact wholly sustained it. He would not have done so but for such personal liability, and of this he told them. The factory, etc., were destroyed by Sherman’s army, in 1864. The company is dissolved and insolvent, owing say $60,000 00 and its corporate assets being worth not more than $10,000 00. Reid’s said judgment amounts to $>20,-000 00. The Stay law,, an indisposition to sacrifice the property, etc., prevented Reid from selling the property under'said judgment. A sale by this and other judgments will disclose the exact amount of remaining indebtedness for which the individual stockholders must respond, and the pro rata share due from each.</p> <p>In 1861, when Reid ceased to credit the company and sued it, the company resolved to suspend operations and 'sell out the corporate property, and did suspend till about the 30th of October,-, when certain named stockholders formed a partnership for working the factory, under the name of the Putnam ^Manufacturing Company, and worked for one year. The rent of the corporate property, for that year, was worth $2,000 00, which the partnership never paid, though it made very large profits, say $100,000 00. On the 11th of September, 1862, stockholders of the corporation, representing a majority of the stock, when the corporation was insolvent and Reid’s demand was in judgment, as they well knew, resolved to resume operations, taking the chances of working upon credit and did so work the factory till its said destruction. They declared monthly dividends, from sixty to one hundred per cent, upon the stock, during the first year, and paid these dividends to the stockholders, in disregard of Reid’s superior claim. For the year ending the 18th of December, 1863, the nett dividends were $240,000 00 and the next year $250,000 00. How much of this each stockholder got is shown; said Adams got $4,000 00. Since said suspension, the President of the corporation has been running a grist and saw mill belonging to the corporation.</p> <p>Complainants claim said rent, said dividends, and the profits on the grist and saw mill are held by the stockholders in equity as a trust fund to pay the judgments. They prayed for a Receiver to take charge of the property, for a discovery of said rents, dividends and profits, and that when the quantum, in each stockholder’s hands was discovered, he should be held personally liable for his share of their indebtedness, etc. This bill was demurred to for want of equity, or if it contained equity, because complainants’ remedy at law was complete, and because it was multifarious in that it prayed for relief upon distinct grounds. The Chancellor sustained the demurrer and dismissed the bill. That is assigned as error.</p>

<p>Attachment. Partnership propertyt Before JudgeSchlet. McIntosh Superior Court. April Term, 1869.</p> <p>Patterson had an attachment against Trumbull levied upon a mill and the land on which it stood, as the property of Trumbull. Trumbull’s counsel moved to dismiss the levy, because the property levied upon belonged to a firm of which Trumbull was a partner. It was admitted that this was true, and the levy was amended so as to stand only upon the interest of said Trumbull in said property. By consent, the plaintiff had judgment, subject to be set aside if the Judge should decide that the interest of a member of a firm could not be levied upon by attachment. Upon argument had, the Judge set aside the judgment and dimissed the levy. That is assigned as error.</p>

Partnership Contracts. Usury. Charge of the Court. Before Judge Schley. Chatham Superior Court. May Term, 1869.

<p>Slave Debt. , Deceit. Relief. Pleading. Amendments. Before Judge Clark. Lee Superior Court. March Term,, 1869.</p> <p>In 1863, Mulkey filed his petition against McAffee in which he averred that on the 27th of December, 1862, he: agreed, at McAffee’s request, to sell him “ the Mulkey house and lot,” estimated at $1,000 00, and to take from Mc-Affee, for said premises; a negro woman, Ann, then twenty-four years old, McAffee warranting her sound and healthy; that this trade was consummated on said day, McAffee delivered the slave, with a bill of sale, warranting her sound and healthy, up to that date, adding “but I will not warrant said Ann’s he,alth, or soundness, after this date,” that “ confiding in said promise and understanding” that said negro was then sound and healthy, he conveyed said premises to McAffee; that said negro was then, and long had been, unsound and unhealthy, * sick with a cough, chronic bronchitis, or similar malady; she was worthless, and died off said disease on the 23rd of February, 1863, to his damage, $2,000 00. Though there are no .formal worths of the action of assumpsit, the prayer ended, “ to answer your petitioner assumpsit.” The pleas were, 1st, the general issue, 2nd, that .the Court could not enforce said claim because it was for a -debt, the consideration of which was a slave, and 3rd, that on the 27th of December, 1862, McAffee was worth $42,000 00 and at the surrender of the Confederate armies he was worth but $15,000 00, said loss having been caused “by the emancipation of his slaves, and the destructive and ruinous effects ■of the war.”</p> <p>Plaintiff’s attorneys demurred to said second plea. The demurrer -was overruled. Defendant’s counsel then moved to dismiss said cause, upon -the ground that its averments were insufficient to base a recovery upon. Before the Court had pronounced its judgment upon this motion, plaintiff’s counsel amended the petition, by, inserting therein, at the point indicated by the * ante, that McAffee falsely and fraudulently represented said slave to be sound and healthy, knowing that she was not so, and thereby effected said exchange, to Mulkey’s damage, $1,000 00, and filed also another amendment, in no material point different from the other, except that it gave the nature of the disease of which she died, and the facts of the trade somewhat in detail. Defendant’s attorneys objected to these amendment^ upon the ground that they made an action for deceit, and that such action could not be joined with assumpsit. The Court allowed the amendments and then overruled the motion to dismiss. The only facts about which there was a contest below -were whether said slave died of unsoundness which existed at the time of the trade,, and whether defendant knew of said unsoundness and falsely represented her as sound. Upon the first of these points the evidence was as follows: For the plaintiff, he and many other witnesses testified that they knew,the slave from the 28th of December, 1862, till said date of her death, that she had on the 2nd, 3rd, and 4th of January, 1863, a very bad cough, expectorated much offensive'and bloody matter, and was wholly unable to do any work, aauj was an expense •and trouble to plaintiff till her death. In reply, the defendant, his overseer and overseer’s wife, and a negro man, testified that they had known said slave for several years, prior to said trade, that she worked regularly and so far as they knew was sound and healthy. As to the scienter, the plaintiff testified that defendant offered to let him have either of three women, that he selected Ann and took a bill of sale, but'on the next morning had his suspicions aroused by defendant’s offering Ann..a pair of shoes, which were then very high, (worth $8 00,) saying that she might take cold and be sick, and by a conversation between McAffee and his wife, of which he could understand nothing, except that she did not wish McAffee to sell Ann to him; defendant was then asked to let him have another of said women- and consented, but upon that womap saying she would not go with plaintiff, defendant said, “you see I have done all I can,” and plaintiff said-no more. It was shown that the physician who attended upon Ann, in her last illness, was dead. Another physician testified that such symptoms, as aforesaid exhibited in January, 1863, showed that she had an abcess of the lungs wljich must have been some time in forming, that she must have had the disease four or five weeks, perhaps longer, perhaps for years before her death, and that if said symptoms so manifested themselves early in January, 1863, her unsoundness must have been very appareht to any one, long before the 27th of December, 1862. Another physician testified that he was defendant’s family physician in 1860, 1861, 1862, and perhaps longer, and that between February and July, 1861, he presented a bill to defendant for treating Ann two or three weeks in thesummer of 1860, for a complication of inflammation of the womb and pneumonia, and that defendant said he ought not to pay the full amount because his' wife said Ann was not sound. Defendant testified that he did not know Ann was unsound, honestly believed she was sound, and put said words in the bill of sale because he had recently had two of his soundest slaves to die, and then determined never to warrant á slave sound beyond the date of sale, and that he told plaintiff this at the time, as the reason for inserting those words. There was no other evidence as to representations as to Ann’s health.</p> <p>Defendant’s attorneys during the trial, offered to show the loss of his property, as pleaded! The Court held that the “Relief Act” did not apply to this cause and rejected the evidence.</p> <p>The Court charged the jury : 1st. “This is not an action on the contract to hold McAffee liable' on the warranty, but an action of deceit, for and on account of the false and fraudulent representations made by McAffee, at or about the time of the sale. 2nd. If McAffee, at, or about the time of the sale, represented the negro to be sound, and she was not sound at the time of sale, and McAffee knew she was not sound, then he is liable for such false and fraudulent representation, and you will so find. 3d. But if McAffee made such representations in good faith, not knowing that the negro was unsound, he is not bound, and you will so find. 4th. If McAffee fraudulently and recklessly represented said negro to be sound, not knowing whether she was sound or not, with intent to deceive Mulkey, and she was unsound at that time, he is liable. To falsely and recklessly state a fact to be true, not knowing whether it is true or false, if intended to deceive, is equivalent to a knowledge of falsehood.”</p> <p>The jury found for plaintiff $*1,100 00, with costs. Defendant’s attorneys moved for a new trial, upon the grounds that the Court erred in allowing said amendments of the petition, in rejecting the evidence of McAffee’s loss of property, that the verdict was excessive, unsupported by the law and evidence as, to soienter, and contrary to the 1st, 2nd and 3rd charges of the Court, and because the 4th charge was hypothetical.-</p> <p>The new trial was refused, and error is assigned on each of said grounds. ' , '</p>

Criminal Law. Larceny. New Trial. Before Judge Harrell. Randolph Superior Court. May Term, 1869. The bill of indictment charged Shaw and a negro, Paldo Stanley, with simple larceny, by unlawfully and with force and arms, on the 11th of November, 1868, in'said county, privately taking and carrying away a bag of cotton worth $125, of the personal goods of James F. Sealey. Shaw was tried alone.

Attestation of Wills. Before Judge Johnson. Muscogee Superior Court. May Term, 1869. In 1868, Mrs. Corridon, being in extremis, wished to make her will, conveying realty and personalty. It was written and read over to her; she was satisfied with it, aud declared it to be her will. Four persons (including the scrivener) who were present, signed it as witnesses. Next morning the scrivener remembered that' she had not signed it. He went back to her to have it signed.

Bill of Exceptions. Pleading. Arrest of Judgment. Promissory note. Before Judge Worrill. Muscogee Superior Court. May Term, 1869.

<p>When a judgment had been obtained in a Common Law Court upon a warranty for the sale of a slave alleged to be unsound, and a bill was filed to open and set aside said judgment, on the ground that it was a contract for the sale of a slave: Held, that a general demurrer to said bill for want of equity, was properly sustained by the Court below.</p>

<p>When a bill was presented to the Judge of the Superior Court, praying for an injunction to restrain the collection of an execution issued by the Comptroller General, against a defaulting tax collector, and his securities ; -and after hearing the argument of counsel, on a rule to shbw cause, the injunction was refused: Held, that if the complainants were entitled to have any judicial interference, in regard to the several matters of which they complain, they had as ample and complete remedy in the Common Law Court as in a Court of Equity.</p>

Insurance. Waiver by Agent. Pleading. New Trial. By Judge Johnson. Muscogee Superior Court. .August, 1869.

Confederate Currency. Scaling Ordinance. New Trial. Before Judge Cole. Bibb Superior Court. May Term, 1869. ' ■ Bowdre, as trustee for Edmund Fitzgerald, held certain bonds of the Macon & Brunswick Railroad Company, dated in 1862, bearing interest, payable semi-annually, which bonds were secured by mortgage on said company’s real and personal property.

Injunction. By Judge Green. Spalding County. Chambers. September, 1869. In 1863, Head held sis notes, made by Bagwell, for $300 00 in the aggregate, and agreed, that if Bagwell would pay him during that year he would receive the amount in Confederate currency.

New Trial. Before Judge Green. Newton Superior Court. March Term, 1869. D. H. Wilcox & Company sued Strong for the price of sundry bags of Phceuix Guano sold him in 1866. He pleaded the general issute, and that plaintiffs represented the guano as a good fertilizer, when in fact it was worthless.

Dormant judgment. Evidence. ’'Before Judge Green. Newton Superior Court. September, 1869. In June, I860, Baker obtained a judgment in said county against Harry Camp, trustee for Sarah A Camp, principal, and one Johnson, security, which became dormant. Scire facias was issued for its revival. Camp pleaded that the note upon which said judgment was founded was^paid before judgment, and claimed the benefit of the Belief Law.

Competency of wife^ Misconduct of juror. Uncertainty. Before Judge Bigby. Heard Superior Court. March Term, 1869. On the 9th of February, 1863, A. H. Jackson gave to James Jackson his promissory note for $5,216 32-100, due at one day after date. They died. Nancy Jackson administered upon James Jackson’s estate, she being his widow, and R. H. Jackson administered upon the estate of A. H. Jackson. She, as administratrix, sued R. H. Jackson, as administrator, on said note.

Relief Law. Motion to Reduce ’ Judgment. Decided by Judge Bigby. Carroll Superior Court. April Term, 1869. Vaughn held a judgment against Connell founded upon a debt contracted prior to June, 1865. He moved to have this judgment submitted to a jury, under t'he second section of the Relief Act of 1868, for the purpose of having the jury reduce it.

Certiorari. Stone-cutter’s Lien. Decided by Judge Pope. Fulton Superior Court. May Term, 1869. On the 2nd of July, 1867, Gray, made and delivered to A. F. Rurnett & Brother a marble counter-top,, at the agreed price of $84 50. A. F. Burnett & Brother afterwards paid Gray thereon $51 50. While the balance was due, A. F. Burnett & Brother sold and delivered it to R. M. Rose & • Company, who purchased it without any nptice of the lien of Gray, so far as the record shows.

<p>Relief Act. Damages for delay. Before Judge Parrott. Catoosa Superior Court. August Term, 1869.</p> <p>On the 6th of October, 1862, Howser gave his note for $400 00, payable to J. M. Roach, or bearer, on the 1st of October, 1863, on which’ he paid $50 00, on the 17th of March, 1863. Roach died owning this note and it came to the possession of Evans, his administrator. On the 3rd of December, 1866, Evans, as such administrator, and Howser, submitted to arbitrators how much Howser should pay on said note. Their award was th'at he should pay $287 50, in gold. This award was entered upon the minutes of said Court, in vacation. In November Term, 1868, an order was taken making it the judgment of said Court, as of May Term, 1867.</p> <p>In July, 1869, Howser moved to open said judgment and submit the matter de novo to a jury under the Relief Act of 1868. This was done in August, 1869. Howser’s counsel read in evidence said note, submission, award and judgment, and then examined Howser as a witness. He said he bought certain land from Roach, at $1,200 00 to be paid in Confederate currency, that he paid $400 00 in cash, gave another note for $400 00, due the 1st of September, 1863, and the note above described; that Roach said to him that Confederate money was as good to him as gold; he paid the $400 00 due on the 1st September, 1863, and the $50 00 credited as aforesaid, in Confederate currency; that when the last note was due he tendered the full amount to Roach in Confederate currency, but Roach refused to accept it; that in 1864 he tendered $100 00, in greenbacks, to Roach, but he would not take it, saying it was “war money;” with this $100 00 Howser bought a mare and some one stole her that he paid Evans, as administrator, $34 20, in United States currency, on the 30th of August, 1867, and took a receipt for $20 40, being its gold value, and on 7th September, 1867, paid,him $13 18, as $9 42, in gold, and again on the 30th of October, 1867, he paid him $34 30, as $20 40, in gold, and he testified that the land bought was now worth $500 00. By other evidence it appeared that one dollar in gold bought $2 50 in Confederate currency, at the date of the note, and in October, 1863, it bought $15 00 of such currency, and that Howser had paid Evans forty other dollars, when and in what, did not appear. Three witnesses testified as to the present value of said land, and they put it at $900 00, $700 00 and $1,000 00, in United States currency, respectively. The Court gave in charge the Relief Act of 1868. The jury found a verdict for $398 70, principal, and $16' 78, for interest and $-for costs, without specifying whether it was for specie or United States currency.</p> <p>Howser’s counsel moved for a new trial upon the grounds that said verdict was strongly and decidedly against the weight of the evidence and contrary to the charge of the Court. The new trial was refused, and that is assigned as error.</p>

<p>Military Orders. Before Judge Parrott. Catoosa Superior Court. August Term, 1868. ’</p> <p>In October, 1865, Edwards brought trover and bail against Daly for a horse, averred to have been converted by Daly on the 1st of April, 1865. In November, 1866, Edwards obtained a judgment for $130 00 damages,'and $— costs.' Daly appealed. Pending this appeal, Daly ""obtained the following order:</p> <p>“Headquarters, 3rd Military District,</p> <p> Department of Georgia, Florida and Alabama, </p> <p>Atlanta, Ga., March 7th, 1868.</p> <p>(Special Order, No. 51 — Extract.)</p> <p>III. Whereas two suits are on the civil docket in trover, plaintiff Reuel Edwards, and one on the criminal docket for robbery, plaintiff, the State, one pending in Catoosa Superior Court, State of Georgia against Simeon Daly, and it ha3 been satisfactorily shown to the Major General Commanding that the taking of the horse, for-which the defendant is sought to be held responsible, was ordered by the United States military authorities, and was not the personal act of said Daly, which view of the case is concurred in by the Honorable James Milner, Judge of said Superior Court: Therefore, it is hereby ordered that _the above named suits in Catoosa Superior Court be discontinued or dismissed by the Court without further costs to said Daly than he has already paid. ,</p> <p>By order of Major General Meade.</p> <p>R. C. DRUM, Ass’t Adj’t General.</p> <p>Official: George Meade, A. D. C.</p> <p>To Sheriff of Catoosa county, Georgia.”</p> <p>This order was delivered to the sheriff. At the next term Daly continued the case because of the absence of his leading counsel; at the next term he again continued the case, because of his sickness; at the first continuance Daly had an official copy of said order in his pocket, .and at the second his counsel, who made the showing for a continuance had it in his pocket, but at neither terfn was any motion made to dismiss the case, nor was the attention of the Court in any way called to said order.</p> <p>Both parties had subpoened witnesses, and prepared the cause for trial at August Term, 1869. "When the cause was called for trial, Daly’s counsel produced said order, and moved upon -it, to dismiss the cause. The Court dismissed the cause and entered judgment in favor of Daly against Edwards for the costs since and before said order was issued, including that which Daly had paid. Plaintiff in error says that the Court erred in dismissing the cause, and in compelling Edwards to pay the costs which Daly had paid.</p>

Bankruptcy. Practice. Lien. Before Judge-Schley. Chatham Superior Court. May Term, 1869. In December, 1867, Randell & Company sued Peter Dunbar and John Franz,, partners, under the style of Dunbar & Franz, in the District Court of the United States, for the District of South Carolina, and on the 21st of August, 1868, obtained a judgment against them.

<p>A writ of quo warranto was filed in belialf of the State of Georgia on the relation of Fulgham against Johnson for the purpose of inquiring by what authority the defendant, Johnson, assumed to exercise and perform the office and duties of tax-collector of the county of Pulaski, and on the hearing of the case, the Court decided that Fulgham was the legally elected tax-collector fob that county, and that Johnson was not, and rendered a judgment of ouster against said Johnson, ousting him from said office and the exercise and enjoyment of the . privileges, duties and emoluments of the same, and ordered that the Clerk of the Court should transmit a certified copy of the judgment of the Court in that case to the Governor of the State- for his action. After the rendition of the judgment of ouster against Johnson, an application was made to the Court for a rule calling upon Johnson to show cause why an attachment for contempt should not be issued against him for continuing to perform and exercise the office and duties of tax-collector in said county, which application was refused: Held, that the issuing of a writ of quo loarranto is not a proceeding on the equity side of the Court, and that, inasmuch as the judgment in this case, so far as the same related to the defendant, only ousted him from the office of tax-collector, ivilhout more, the legal effect of such judgment was to render null and void all his pretended official‘acts as such tax-collector, after the rendition of such judgment, and thus deprived him of all official authority as such tax-collector to interfere in any way with the legal rights of the citizens of that county in that capacity. The legal presumption is, that when the Governor is officially informed of the judgment of the Court rendered in this case, he will issue a commission to the party who, under the law, as declared by the judgment of the competent tribunal, is entitled to it. The judgment of the Court below is-that Fulgham is entitled to the office under the laws of the State, and that Johnson is not.</p>

Bill of Exceptions. Equity Practice. Before Judge Clark. Lee county. Chambers. August, 1869.

<p>(McCay, X, haying been of counsel in this case, did. not preside.)</p> <p>A motion was made in the Court below to vacate and set the entry of satisfaction, made by the sheriff on aft. fa., and upon the trial of an issue formed thereon, it appeared that the payment was made by the defendant in ft. fa., to the sheriff, on the 27th April, 1865, in Confederate Treasury notes, which were worthless at that time: Held, that the payment having been made after the failure of the Confederate Government, the Confederate Treasury notes failed with it, and that the payment of th eft. fa. in that currency was not a good and valid payment at the time said payment was made.</p>

Homestead. Distribution of money under judgments. Lein. Before Judge Harrell. Randolph Superior Court. May Term, 1869. At May Term, 1863, two judgments were rendered by said Court against A. B. Hendry, one in favor of- William E. Sessions for $1,785 00, principal, $512 00 for interest to judgment and costs, and the other in favor of A. P. G. Harris for $183 11, principal, $17 35 for interest to judgment and costs.

Homestead. Pleading. Appeals. Before Judge Harrell. Randolph Superior Court. May Term, 1869. Held: that no objécíion could be then heard, except want of sufficiency or fullness of the schedule, or fraud of any kind, or to dispute the valuation of the property, or the propriety of the survey.

Constitutional law. Relief Act. Decided by Judge Harrell. Randolph Superior Court. May Term, 1869. Janes moved to submit to a jury a judgment which Gunn held against him, and to have the same reduced as allowed by the second section of the Relief Law of 1868. Gunn’s counsel demurred to this motion, upon the ground that said section was contrary to the Constitutions of this State and of the United States. The demurrer was overruled.

• Lien Laws. Jurisdiction. Before Judge Johnson. Muscogee Superior Court. August Term, 1869. In May and June, 1867, in said county, the following persons sued out fi. fas. against S. O. Boardman, Thomas P. Morgan andE.

<p>Liability of Administrator. Before Judge Johnson. Chattahoochee Superior Court. September Term, 1869.</p> <p>Barbara Davis, as heir-at-law of Samuel Jones, sued William Bagley, as administrator of said Jones, and his securirities, upon an administrator’s bond made by them on the 10th of June, 1861, averring that, though Bagley had, as administrator, taken possession of said estate, and paid all its debts, he still held $50,000 00, of which she was entitled to one-tenth, and yet would not pay her. Bagley pleaded payment, and that the assets in hand were notes given for slaves, and not collectible and Confederate Treasury notes collected in due course of administration, all of which was worthless. His securities, by plea, claimed the' benefit of the “ Relief Act,” without specifying any reason for such claim. The plaintiff’s counsel read in evidence said bond, and the returns of Bagley as such administrator. From them it appeared that on the 1st of January, 1862, he held, as such administrator, $160,000 00; that he had charged himself with $8,025 40, as administrator of Thomas Davis, late husband of plaintiff, and credited himself, as Davis’ administrator, with $2,025 40, as due to the estate of Jones by the estate of Davis for negro hire. It was shown that Jones died several years before Davis died, and that he died before any distribution of Jones’ estate; that Jones left ten heirs, one of whom was plaintiff, and that Davis left said plaintiff, his widow and five children him surviving.</p> <p>It was shown that after Davis’ death, Bagley reserved such amount as he thought necessary to pay Jones’ debts, etc., and concluded that the remaining share of each of Jones’ heirs was $8,025 40, and determined to pay out accordingly. He charged Davis’ estate with said negro hire, and reduced that share to $6,000 00, and, bona fide, believing that was correct, announced to plaintiff that she and each of her children shared that portion equally, and that he was ready to pay to her and each of her five children $1,000 00. She supposed he was right as to the law, took her $1,000 00, and allowed him to pay each of her children $1,000 00, as he proposed. Learning that Her children were not entitled to share said fund with her, she claims that Bagley should pay her the $5,000 00 which he had so paid to her children.</p> <p>The Court charged the jury that if Bagley, bona fide, made such payment to said children, by plaintiff’s consent, it was equivalent to a payment to plaintiff; that if said payments to the children was unauthorized, and Bagley has sufficient, in nominal value, of the assets of Jones’ estate to pay plaintiff, which assets had become worthless without Bagley’s fault, plaintiff could not recover. Plaintiff’s counsel requested the Court to charge the jury that if plaintiff was ignorant of her rights as an heir of Jones, and Bagley induced her to consent to said payments to the children, then such payment did not discharge Bagley’s liability to her. He so charged, adding, that if Bagley was also ignorant of plaintiff’s rights as heir of Jones, and so made the payment by her consent, he was discharged thereby. They requested him to charge that if she ratified said payments in ignorance of her rights, whether that ignorance was caused intentionally or unintentionally by Bagley’s concealment, such ratification would not bind her. The Court said it was a sound legal proposition as between principal and agent, but was not applicable to this case, and would not so charge. (There was no evidence of any ratification, unless it be that she failed to object for some time after the payments were made.)</p> <p>The jury found -for the defendants. Complaint is made against each clause of the charge given, the qualification of the first request, and the refusal to give the last request in charge.</p>

<p>Equity. Demurrer. Decided by Judge Johnson. Chattahoochee Superior Court. September Term, 1869.</p> <p>Davis, by his bill, averred that on the 12th of May, 1864, he owned a piano worth $700 00, and sold it to Mrs. F. A. Fisher for $1,500 00, and took her individual note for it. Her husband was in the army, but she usually acted as his agent, and he supposed her husband would be bound by law by her promise. The husband died, and she became his administratrix, and had this piano appraised as part of his estate. Afterwards she married Moorefield, and McNeil was made administrator de bonis non of Fisher, and advertised said piano for sale. Moorefield and his wife claimed it, but their claim was dismissed for some informality. Mrs. Moore-field has.the piano, will not pay the note, nor give it up to Davis, nor arbitrate the matter, and McNeil will not undertake to sell it under the circumstances, and therefore Davis can not claim it. He says that the note is .void, first, because he gave credit to a married woman, and because both being ignorant of the revenue laws, said note was never stamped, and therefore lie says the title of the piano is still in him. He prayed that he should recover the piano, or have other relief. The bill was dismissed upon the ground that Davis had a plain and adequate common law remedy. That is assigned as error.</p>

Rent. ' Equity. Demurrer. Decided by Judge Johnson. Chattahoochee Superior Court. September Term, 1869.

Practice. Before Judge Johnson. Muscogee Superior Court. May Adjourned Term, 1869. At May Term, 1869, of said Court, Sikes obtained a judgment against McKendree, in a cause then pending.

<p>Practice. Motion for New Trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1869.</p> <p>Rooney averred that he stored with Grant & Company, as warehousemen, cotton, to be kept in a particular place, and with notice to them, insured it, as being in that place; that, without notice to him, they put it into a different place, where it was burned, and thereby he could not recover his insurance. He claimed of them the value of the cotton and his premium paid out. The j ury found for the defendant. Rooney moved for a new trial, upon the grounds that the Court (Judge Worrill) .erred in a part of his charge, and that the verdict was contrary to the evidence. His motion was overruled and he sued out a writ of error.</p> <p>At June Term, 1869, of this Court, said cause was dismissed, and the judgment below was affirmed, because the bill of exceptions did not contain the evidence heard in the Court below. (See 38th Georgia, 597, note.) Counsel for' ' Grant & Company, at May Adjourned Term, 1869, of Muscogee Superior Court, presented the remittitur, ■ and had the judgment of the Supreme Court made the judgment of that Court. Counsel for Rooney, “at that time notified the Court that they had a motion for a new trial to make. The Court (Judge Johnson) stated that if the cause had been, carried by writ of error to the Supreme Court, and judgment affirmed, a motion for a new trial would not be entertained, and did then and there refuse to entertain said motion for a new trial.” This refusal is assigned as error.</p>

Novation. Evidence. Scaling Ordinance. Security, etc. Before Judge Cole. Dooly Superior Court. October Term, ] 869.

Assignment of errors. Before Judge Cole. Bibb Superior Court. Máy Term, 1869. McBurney sued Hollingsworth upon a draft, and for money had and received. The plea was payment, and on that issue evidence, pro and con, was introduced. After argument, and a charge from the Court, the jury found for the defendant.

<p>The plaintiff and defendants entered into a parol agreement for the r,ent of a plantation for one year, and for the purchase of the stock, provisions and agricultural implements thereon, and afterwards reduced ! their agreement to writing. One of the defendants swore upon the trial that it was the intention of the parties to have inserted- in the written agreement that the plaintiff was to use his influence with the negroes on the place to remain there as laborers, but by “ mistake ” it was omitted, without showing how, or in what manner, or by whom the mistake was committed : Held, that this was not sufficient averment of a mistake, under the law, to lay the foundation-for the introduction of parol evidence to prove that it was part of the agreement that the plaintiff should use his influence with the negroes on >he place to remain there as laborers, and that it was error in the Court to admit the evidence as to the injury sustained by the defendants in consequence of the negroes leaving there.</p> <p>Held, also, that although the plaintiff may have represented to the defendants that there, was a greater quantity of stock and .provisions on the place than they found to be there when they took possession of it, if they made no objections, but proceeded to make a crop with what they found there, and paid part of the rent without any complaint as to the deficiency of corn and other things, it is too late, at the end of the year, for them to insist that they did not get as much as they expected, and for that reason seek /to repudiate their contract. They knew when they took possession of the place, or might have known by, the exercise of ordinary diligence, what was on it, and if there was any material deficiency in anything represented to be on the place, then was the time for them to have repudiated the contract if they had desired to do so.</p>

<p>It appeared that S. had instituted suit against E., in a Court of this State, to recover the sum of $5,000.00, alleged .to be due the plaintiff by the defendant, and during the pendency of the suit in this State, the plaintiff instituted a suit against the defendant E. in the Supreme Court of the State of New York, and held him to bail there for the same identical demand for which the suit was pending in the Court of this State. A judgment was obtained by the plaintiff against the defendant, in the Superior Court of this State, in the suit instituted here, which judgment was paid off and satisfied by the defendant; ?,nd a bill was filed by the defendant in that judgment against the plaintiff therein, alleging, that after the payment and .satisfaction of the judgment obtained in this State, the said plaintiff, fraudulently led the defendant in that judgment, (now complainant,) both by word and act, to believe that the suit pending against him in the New York Court would be abandoned, and thereby prevented him from making his defence thereto, as he otherwise should have done, but with full knowledge that the judgment obtained in this State had been paid off and satisfied, afterwards proceeded in the New York Court, and obtained a judgment there, upon the same identical demand. The prayer of the bill is, that the defendant may be perpetually enjoined from enforcing that judgment, so obtained, in the New York Court, against him and his securities on his bail bond: Held, that the States of the American'Union, except for all purposes as specified in'the Constitution of the United States, are in legal contemplation, foreign to each other,' and that, as both parties are citizens of this State, a Court of Equity has jurisdiction over the person of the defendant, to restrain him, by injunction, from enforcing the judgment obtained in the.State of New York ; it being contrary to equity, and good conscience, that the defendant should collect both judgments for the same demand; that there is a clear distinction as to the power and authority of a Court of Equity, in this State, to restrain, by injunction, the proceedings of a Court in another State, and the power and authority of the Court to restrain, by injunction, the personal action of a citizen of this State. . In the one case, a Court of Equity, in this State, has no jurisdiction, in the other it has jurisdiction to restrain the personal action of the defendant from enforcing an unconscientio’us demand in another State, in a proper case made ; that the record now before the Court makes such a case. Comity between the Courts of the several States, does not require the Courts of this State to assume that the Courts of the State of New York, are any more"competent to hear and decide the defendant’s claim, and do him justice, than are the Courts of this State, to the jurisdiction of which, the defendant has voluntarily submitted the same for adjudication; and the judgment of the Court below, dismissing the complainant’s bill, should be reversed.</p>

<p>Equity. Trustees. Damages. Before Judge Green. Chambers. Monroe county. October, 1869.</p> <p>Rhodes, of said county, filed a bill against Gauladett individually, and as trustee for,his daughters, Mrs. Hardee and Mrs. Irwin, and their children, and others, in which he made the following averments: On the 19th of November, 1866, he bought certain land in said county, which James S. Pinekard had sold Gauladett, from Gauladett, (who professed to own one undivided third of it individually, and the other undivided two-thirds as trustee for said daughters and their respective children,) took a deed from Gauladett in said double capacity, and to him, in the. same double capacity, gave him for it his, Rhodes’, promissory note for $5,000 00, due the 1st of January, 1868, with a mortgage to secure said note. Rhodes took possession of the land, but did not pay said note -when it was due. Gauladett, in said double capacity, foreclosed said mortgage, and had a judgment absolute in February, 1869. Rhodes sued out a writ of error to the June Term, 1869, of this Court, and the case has ended. (The bill of exceptions was withdrawn.) At said February Term the said note was sued on in the same way, and a judgment was entered upo'n it at the August Term^ 1869, of said Court. - '</p> <p>Since these judgments were obtained, Rhodes has discovered facts which make him fear that his title is not good, and that either Gauladett never was trustee for his said daughters, but used the money of their husbands in that way to cover it up and defraud' their creditors, or, if he was trustee, he has committed such a breach of trust as makes it unsafe for Rhodes to pay the purchase-money to him, lest Rhodes be liable for the same to the cestui que trusts, and besides, Gauladett had no authority to sell said trust estate, and conveyed no title. These facts are r Erwin and Hardee have become bankrupts, Gauladett has transferred Rhodes’ note to Stoval & Edmondson in exchange for paper on Erwin & Hardee, and Gauladett has proved that claim' against Erwin & Hardee solely in his individual capacity. Stoval & Edmondson transferred Rhodes’ note'to Warren, who now claims it, and yet these judgments remain in favor of Gauladett in said double capacity, and are being enforced against Rhodes. (Erwin & Hardee are wholly insolvent, and Rhodes is informed that Gauladett is also insolvent.</p> <p>He prayed that all of said parties should answer touching said matters; that a decree might be framed so as to protect him from loss, and that, meanwhile, no steps be taken to enforce either of said j udgments. The injunction was granted. The defendants, Gauladett, Erwin and Hardee, answered that in 1863, when neither of them owed anything,- they agreed to buy said place, each paying one-third, and that Gauladett should hold his third individually, and the others, as trustee, as aforesaid, and took a deed accordingly from said Pinckard, in which said Gauladett was clothed with full power, “ without the authority of an order of Court, to sell and dispose of said property at such times and on such terms as lie may deem best for their benefitthis was well known to said Pinckard? one of Rhodes’ solicitors, and the deed was on record in said county; Gauladett has ever since controlled the matter exclusively, and transfered the note without any notice to them on this wise: Stoval & Edmondson, on the 10th of December, 1867, ¡drew on Erwin & Hardee for $9,210 83, due ten days after date, and Erwin & Hardee accepted the draft. It was payable in bank, and was protested. To protect Stoval & Edmondson, Gauladett, in his double capacity, transferred to them Rhodes’ note, and they let Warren, who owned the draft, have Rhodes’ note to release them, and let Gauladett take said draft. Gauladett has proved the draft against Erwin & Plardee, bankrupts, their assets will pay fifty cents in the dollar, and thus the cestui que tmsts are in no danger; besides Gauladett is amply able to respond in, damages. They said no defense was made to either of said suits, and that this bill was hatched up for delay.</p> <p>Mrs. Erwin and Mrs. Hardee, by answer, ratified all that Gauladett had done as their trustee. ' Stoval & Edmondson and,Warren answered substantially as aforesaid, as to the matter and manner of the transfer. All denied any combination or fraudulent intent.</p> <p>Upon the coming in of these answers, they moved to dismiss the bill for want of equity, or that failing, to dissolve the injunction because the equity was sworn off. In support of the answers, they showed that Gauladett owned $12,000 00 worth of realty in Savannah, and twenty-three shares of Central Railroad stock, and ten shares of South-Western Railroad stock, unencumbered, in his own right, and that Rhodes, on the 10th of February, 1869, wrote inquiring who held said note. The complainant showed that Gauladett proved said claim against Erwin & Hardee in his individual capacity solely, and that the liabilities of the bankrupts was $247,000 00.</p> <p>The Chancellor dismissed the bill, and that is assigned as error.</p>

<p>Where A was employed by B, at a salary of $100 00 per month, and A directed B to pay $25 00 per month, of his salary, to O,, for the benefit of C’s wife and children, as a donation, or gift, from A., and B. 'failed to pay the money, and O died : Held, that A might recover the money from B, by suit, in his own name, and the statement in the , declaration that he was suing for the use of C.’s family, is mere descriptio personae, or surplusage. • \</p>

Habeas Corpus. Criminal Law. Negroes. Decided by Judge Pore. Fulton County. Chambers. June, 1869. Louisa Edwards made oath, before a Justice of the Peace, that William Allen was the father of a bastard child, of whom she had been delivered, and who was likely to become chargeable to said county. In this affidavit both Allen and herself were averred to be negroes.

Partnership. Evidence. Before Judge Pópe, DeKalb Superior Court. March Term, 1869.

Equity Pleading and Practice. Interpleader. Injunction. Before Judge D. F. PIammond, presiding by consent. Fulton County. Chambers. October, 1869. Trippe ruled Hillyer, of Fulton county, for money collected by him, as an attorney-at-law, for Littlefield, Perkins' & Company.

Criminal Pleading. Larceny. Arrest of judgment. Before Judge Pore. Fulton Superior Court. September Special Term, 1869.

<p>An action was brought by the plaintiff, as an employee of the defendant, alleging that he had been injured and damaged by other employees of the defendant, in carelessly, and negligently, running and pushing a certain hand-car upon the Railroad track of the'defendant. On the trial of the case, the plaintiff offered evidence to prove that he was injured in consequence of the defective construction of a certain instrument, called a “Jigger,” which was used by the employees of the road, which evidence was objected to by the defendant, on the ground that there was no allegation of that fact in plaintiff’s declaration, which objection was overruled by the Court, and the evidence-was admitted. The jury found a verdict for the plaintiff, for the sum of $2,750 00, and a motion was made for a new trial, upon several ^grounds, which was granted by the Court below. The plaintiff excepted : Held, that it was error in admitting the evidence as to the injury sustained by the plaintiff in consequence of the defective construction of the “Jigger,” there being no allegation of that fact in his declaration, but on the contrary, the injury was alleged to have been dqne by the careless and negligent running and pushing the hand-car on defendant’s road, by the employees thereof.</p> <p>Held, further, that this Court will more reluctantly interfere with the discretion of the Court below, in granting a new trial, when the plaintiff, the only witness in the case, states, that on a former trial thereof, He swore, that there was no negligence, either in New, or Jones, who were with him as employees of the road, when he was hurt; but who stated on the last trial, that he was injured by the 'carelessness of Mr. New, and Mr. Jones, without giving any explanation as to the conflicting statements made by him, in relation to that material point in the case, on the different trials thereof.</p>

Continuanbe. Impeaching Witness. New Trial. Before Judge Pope. Eulton Superior Court. May Term, 1869.

<p>Motion to vacate Judgment on slave note. Before Judge Harrell. Early Superior Court. April Term, 1869.</p> <p>' Ransone sued Grist upon notes made in 1854 and 1860, and obtained a judgment thereon, at October Term, 1866, of said Court. Fi. fa. had issued from said judgment, hut no effort was being made to enforce payment of the judgment. At April Term, 1868, Grist moved to have said ji. fa. satisfied, upon the ground that the consideration of said notes was slaves. Grist testified that said notes were given for slaves, bought before their said dates. Thereupon, the Court ordered the ji. fa. returned into Court, and declared the judgment null and void. This is assigned as error.</p>

Bigamy. Criminal Pleading. Negroes. Before Judge-Harrell. Webster Superior Court. September Term, 1869.

Charge of the Court. Evidence. Certainty. Before Judge Harrell. Randolph Superior Court. May Term, 1869. Barbrey made affidavit that Heinkin & Palmore were indebted to him $980 88, and resided out of this State.

Arres! of Judgment. Objections to Juror. Laches. Before Judge Harrell. Randolph Superior Court. May-Term, 1869. Laramore sued Gormley upon his promissory note for $2,323 33, due 1st January, 1860; Gormley pleaded a tender of property and refusal of it, (under the Relief Act); the jury found for the plaintiff for $1,500 00. Gormley’s counsel moved to set aside the verdict, because one of the-jury who rendered the verdict was one whose name was never in the jury-box.

<p>1. Where the Judge, on the calling of a cause, intimates, that, in his opinion, the defendant’s plea is a bad one, and, the parties nevertheless go to trial, and no point is made on the plea, or on the evidence under it: Held, that the intimation of the Judge, made before the cause was submitted to a jury, is not a ground of error.</p> <p>2. When there is a plea to the jurisdiction of the Court, and a trial and verdict, and the defendant complains that the verdict is contrary to the evidence, he cannot, for that reason, move to set aside the judgment. He must move for a new trial, in the manner provided by law.</p>

Bankruptcy. Rule against Sheriff Before Judge Green. Upson Superior Court. May Term, 1869. Howell held a fi. fia. against Beall et al., founded upon a judgment obtained on the 8th of November, 1867, and ordered the sheriff to collect it. On the 25th of November, 1868, the sheriff levied it upon fifteen hundred pounds of cotton seed, a horse and fifty bushels of corn, as the property of said defendant, and advertised it for sale.

Trust Estates. Before Judge Green. Spalding Superior Court. August Term, 1869.

<p>Scaling Ordinance. Charge of Court. By Judge Green. Newton Superior Court. September Term, 1869.</p> <p>Thomas sued Knowles, upon his promise, made the 14th of March, 1864, in this State, to pay him, or bearer, $500 00, by the 1st of January, 1866, “in the commonly received currency of the country, at that time.” The defense was that it should be scaled according to the Ordinance of 1865. Plaintiff’s counsel read in evidence the promise, and proved that on the 1st of January, 1866, greenbacks were the common currency in this State, and closed.</p> <p>Knowles testified that the note was given for $500 00, in Confederate currency, loaned to him by Thomas, when that currency was worth but one in twenty for gold; that it was just before the funding, by. which such currency was to lose one-third, and he understood Thomas’ agreement to let him have it without interest, was to get currency better than that then in band, to-wit, new issue of Confederate Treasury notes; that he afterwards offered to pay Thomas, when the currency was much more depreciated, and he would not take it, saying it would be better, or be would lose it altogether. He admitted that Thomas refused to accept a note payable in Confederate money. Thomas and his brother, who drew the paper sued on, said that when plaintiff refused to take anote due so long off payable in Confederate currency, and presented the paper sued on, Knowles hesitated about signing it, they discussed the probabilities as to the currency, and they both thought Knowles understood that he was to pay whatever was the currency, at the maturity of the paper, before he signed it.</p> <p>Plaintiff’s counsel requested the Court to charge the jury, that they must enforce the intention of the contracting parties ; that if they intended said paper to be discharged in a currency in-use at a particular time, that intention will control •; it not being the province of a Court to protect parties, in the absence of fraud, against the folly of their own contracts. The Court refused so to charge. He repeated to them the Ordinance of 1865, and charged that if this paper was given for Confederate money, borrowed ^between June 1st, 1861 and June 1st, 1865, the amount “should be scaled according to the gold or intrinsic value of the Confederate money loaned at any time, according to the proof submitted,” with interest from the maturity of the paper; that they had a liberal discretion, could not make a contract for the parties, but should give an equitable construction to the contract and give a verdict upon principles of equity. The jury found for the plaintiff, $43 00, with interest from 1st of January, 1866.</p> <p>Plaintiff’s counsel moved for a new trial, upon the grounds that the verdict was contrary to the evidence, etc., that the Court erred in refusing to charge as requested, and charging as he did. The new trial was refused, and 'that is assigned , as error.</p>

Scaling Ordinance. Charge of Court.. Before Judge Green. Newton Superior Court. September Term, 1869. H. and T. M. White sued Lee upon a paper as follows: “Received of H. and T. M. White $5,000 00, for which I am to deliver them cotton, at seventy-six cents per pound, amounting to six thousand five hundred and seventy-eight pounds, the cotton to be baled by me in cotton bagging and cotton rope, said cotton to be delivered on or before the 25th of December next.

Partnership. Interpleading. Before Judge Kirby. Walker Superior Court. September Term, 1869.

<p>Arbitration. Practice. Construction of Statutes. Before Judge Kirby. Eloyd Superior Court. July Adjourned Term, 1869.</p> <p>In June, 1866, Chisolm agreed with Cothran and A. R. Smith, to submit to arbitration a controversy which he had with them, concerning certain cotton. The January Term, 1867, of Floyd Superior Court, was adjourned till in April, 1867. On the 9th of February, 1867, the arbitrators heard the cause and 'made an award, and gave to each of the parties a copy of it. On the 17th- of April, before said Adjourned Term convened; counsel of Cothran & Smith gave written notice to Chisolm’s counsel, that, at the then approaching Adjourned Term, they would 'object to judgment upon said award, and move to vacate it, upon grounds stated in said notice. When the Adjourned Term met, and said cause was called, in its order on the motion docket, on the 22d of of April, 1867, said award was entered upon the minutes of the Court, in presence of counsel of Cothran & Smith; On the 22d of April, 1867, said counsel for Cothran & Smith filed certain objections to said award, and they were entered upon the minutes of said Court. These objections were not verified. On the 24th of April, 1867. Chisolm’s counsel entered up a judgment against Cothran & Smith for the amount found in his favor, against them, by said award.</p> <p>Afterwards, in May, 1867, Cothran & Smith made affidavit to said objections, but it was conceded in the argument that this was after said Term adjourned. At the July Adjourned Term of said Court, Chisolm’s-counsel demurred to said objections, because they were not made at the January Adjourned Term, and because they were insufficient in law. The Court below overruled the demurrer, and ordered a trial to be had on said objections, this is assigned as error. (As this Court did not pass upon the merits of the objections, they are immaterial here.)</p>

Equity. Partnership. Before Judge Kirby. Floyd Superior Court. July Term, 1869.

Motion to set aside Judgment. Laches. Before Judge Parrott. Gordon Superior Court. October Term, 1869. Crawford’s bill, filed in February, 1869, contained the following averments : One Phillips was elected Clerk of the Court of Ordinary of Cass (now Bartow) county and asked him to become one of the securities on his official bond, telling him that Lewis Tumlin would also stand his security.

Order of Argument. Rule agaifast Sheriff. Before Judge Parrott., Murray Superior Court. October Term, 1869. Buchanan was sheriff, and McDonald his deputy. „ McDonald went out of office, and Buchanan, in April, 1869, obtained against him a rule nisi, requiring him to show cause why he should not pay into Court the amounts called for by divers cost^/i. fas., in favor of the officers of the Court, which McDonald had had for collection, while-he was in office.

<p>Jurisdiction of Superior Court. Before Judge Parrott. Catoosa Superior Court. August Term, 1869.</p> <p>Elizabeth A. Taylor, by her Rill filed in Catoosa county, made this case: In 1849, she made an ante-nuptial contract with one Eulcher, whereby they were to marry, but her property, and future acquisitions, were to be hers exclusively, and then married him. This contract was legally recorded. . After the marriage she entrusted Fulcher with her money, etc., with a request that he should buy certain land in Walker (now Catoosa) county, Georgia; he bought the land, Rut took the conveyance to himself. They look possession of the land, and improved it with her money. In 1855 she and Fulcher separated, and she sued him for a divorce. He proposed to sell said land in 1855, and then, for the first time, did she know that she had not a legal title to it. In 1856 he conveyed it to his brother, pending said action for divorce, and solely to defraud her, and after she was divorced, and after she had notified Cloud of the facts, and that the land was hers, Cloud bought the land from said brother in April, 1858. Because of her solicitor being ignorant of the facts, no disposition was made of said land when her divorce was granted. In 1856 a judgment was obtained against her husband, Fulcher, and in July, .1858,(said land was sold under said judgment, and Cloud bought it at sheriff’s sale for about $600 00. She married Taylor in 1859, and he did not die till 1864. During her coverture the Statute of Limitations did not run against her.</p> <p>Robert Strange, - Strangé and Robert Campbell,'of Catoosa county, are in possession of said land as Cloud’s tenants, and she prayed that they be parties defendant to the bill. She averred that Cloud resided in Walton cobnty, Georgia, and prayed for general relief, and that he account to her for the rents, issues and profits of said land, and that he be compelled to give her possession of it.</p> <p>The bill was demurred to, upon the ground that it contained no equity, and that there was no jurisdiction in Catoosa county against Cloud, against whom alone any decree was asked for. The Chancellor sustained the demurrer, and dismissed the bill. That is assigned as error.</p>

Homestead. Injunction. Before Judge Parrott. Murray Superior Court. October Term, 1869. Kilgore’s bill averred as follows: On the 2d of January, 1869, he filed in the Ordinary’s office his application for setting apart and valuation of a homestead, under section 2013 of Irwin’s Code, said application and papers being “all right.” For some cause unknown to Kilgore, the Ordinary took no action on these papers until the 23d of March, 1869.

Homestead. Rule against Sheriff. Decided by Judge Parrott. Dade Superior Court. November Term, 1869.

Dower. Decided by Judge Knight. Pannin Superior Court. May Term, 1869. Isabella Davis, by her petition for dower, filed in October, 1868, averred that her husband died in May, 1858, seized and possessed of certain lands in said county, that one Dickey was his admiiffsirator, and prayed for the appointment of •commissioners to assign her dower out of 'said lands. The commissioners were appointed, laid of the dower, and made their return to May Term, 1859, of said Court.

Claim. War. Agency. Before Judge Knig&t. Lump-kin Superior Court. September Term, 1869. A ft. fa., in favor of George A. Gordon against George William Gordon, was levied upon the four-fifths of certain lands in said county, as the property of said defendant, and Andrew Howell and Daniel Howell claimed the same. On the trial, George A. Gordon’s attorney read in evidence said fi.fa.

Supersedeas. Mandamus Nisi, to compel Certificate of Bill of Exceptions, etc. The Nacoochee Hydraulic Mining Company filed a bill for injunction, etc., against one Dean, returnable to May Term, 1869, of said Court. It was sanctioned, injunction was issued and served. The defendant answered the bill, and at the trial term, the cause was continued by complainant.

Relief Act. Constitutional Law. Before Judge Davis. Habersham Superior Court. April Term, 1869. Addison and another, as makers, and still another, as endorser, made and delivered their promissory note to Fayette for a certain lot of land in said county, and had Fayette to convey the lot by deed to the Methodist Church South. Fayette sued them on the note, arid had judgment in April, 1862.

Possessory Warrant. Partnership. Before Judge Andrews. Warren Superior Court. April Term, 1869. Rainwater sought to recover seventy-five bushels of corn from Usry, by possessory warrant.

Common-Carriers. Agency. Before Judge Gibson. Richmond Superior Court. January Term, 1869. Eleanor N. Fitzsimmons, as trustee for the children of J. Mott Alston, brought case against the Southern Express Company as a common-carrier, and as warehousemen, for the loss óf a box of family silver plate, etc., with counts to meet the different phases of the case apparent from the evidence. There was no question as to title or value.

Distribution of estates. 'Illegitimates'. Negroes. Decided by Judge Gibson. Richmond Superior Court. June' Term,' 1869.

Equity. Construction of Deed. Before Judge Robinson. Jones Superior Court. October Term, 1869.

<p>Relief Law. Tender. Confederate money. Decided by Judge Sci-iley. Bryan Superior Court. December Term, 1868.</p> <p>In 1859, Ham made and delivered to Remshart two promissory notes for $125 00 each, due the 1st of January in 1861 and 1862, respectively, and at the same time delivered to Remshart a mortgage on certain land to secure their payment. Remshart sued Ham on these notes, and Ham confessed a judgment for what was due on them in December, 1867. In the last named month, Remshart began the foreclosure of said mortgage. In December, 1868, said judgment remaining in statu quo, Ham pleaded, as reasons why said mortgage should not be foreclosed, that he had “ paid on said notes about $1,200 00 since the close of the late war, and offered the further sum'of $1,200 00, in Confederate money, in the second year of the late war, and seven bales of cotton of the value of $1,000 00 in gold, at the same time any number of negroes, sufficient to pay the whole amount of said notes,” and prayed that “said notes be scaled according to the Ordinance of Georgia,” and further pleaded “the Act of the last Legislature, known as the Act for the relief of the people of Georgia.”</p> <p>Remshart’s counsel insisted that said judgment was conclusive, and that, therefore, he had a right tóente^’ judgment of foreclosure for the same amount.</p> <p>The Court allowed the rule absolute for the amount of said judgment, upon the condition that if, after argument had, he should conclude that Ham was estopped by said judgment from controverting the amount claimed, the rule absolute should stand, otherwise'it should be set aside.</p> <p>Upon consideration he thought Ham was “ entitled po give in evidence the facts mentioned in the first section of the Relief Act of 1868, for the purpose of affecting the verdict of the jury and the rights of the plaintiff, notwithstanding said judgment,” and passed an order vacating said ruleabsolute. This is assigned as error, for the reason that said judgment was conclusive as to the amount due on said notes.</p> <p>(This-cause was argued in June Term, 1869, and held up by the Court.)</p>

<p>Attachment. Motion to set aside judgment. By Judge Clark. Mitchell Superior Court. May Term, 1869.</p> <p>Holloway sued out an,attachment against Frances Chiles, founded upon an affidavit stating only “ that Frances Chiles, administratrix, late of said county, is indebted to Levy G. Holloway in the sum of $947 00, besides interest, and-that said Frances Chiles is removing without the limits of said county,” and had it levied upon a lot of land in said, county. Holloway’s petition against her, as administrator of James M. Chiles, was filed. Judgment was entered up accordingly. Her attorney moved to set aside said judgment, because said affidavit presented no ground for attachment, and because said land did not belong to the estate of her intestate. Holloway’s attorney resisted this upon the grounds that this motion came too late, because the judgment, if defective, was only voidable, and could not be collaterally attacked. The^ Court sustained the motion to set aside the judgment. This is brought up for-review.</p>

Practice. Payment in Confederate currency. Slave debt. Before Judge Clark. Calhoun Superior Court. September Term, 1869. Elizabeth Jones averred, in her bill against Jesse Robin-’ son, that she had been the wife of one Stokes, who died, leaving a large estate and no heir, except herself and their daughter.

<p>Injunction. Contempt. Conflict of jurisdiction. Before Judge Clark. Dougherty county. Chambers. September, 1869.</p> <p>George Bliss & Company, Hannah & Harvey, Trowbridge, Dwight & Co., and Nicholas Conyers, in behalf of themselves and other creditors of the estate of Charles W. Rawson, deceased, by Hipes & Hobbs et al., as their solicitors, filed their bill against Annie E. Rawson, his widow and administratrix, in which they made the following case: They had credited deceased for their respective specified demands, some of which were in open accounts, and some in judgment, upon the faith of a large amount of property which he owned, and of which he died seized and possessed. After his wido\y became his administratrix, she set up a claim to a large portion of his realty as her own, and was allowed $6,000 00 in money in lieu of dower, and $3,500 00 for her year’s support, and was now proceeding to sell only the balance of said realty as administratrix. They said, if this was allowed the creditors could not be paid, that the allowance of $6,000 00 was excessive, and that her claim of said realty as heir was fraudulent, for reasons therein stated, and- prayed that all the realty be sold as the property of deceased, that they be allowed, if they could, to razee said $6,000 00 allowance, so as to provide means for paying said demands, atad meanwhile that she be enjoined from selling any of said realty as administratrix* The injunction was granted as prayed for. She answered, denying that said $6,000 00 was excessive, and saying it had been legally assigned to her; said that the realty claimed by her-was hers, given to her by her father, and denied that her husband had obtained credit on the faith of that property; averred that many suits were pending against the estate, and that said contemplated sale was necessary to pay the claims against the estate, and prayed to proceed with it. She further claimed, that she and her children should be allowed a homestead of realty, worth two thousand dollars in specie, and an exemption of personalty worth one thousand dollars in specie, out of the estate, under the Homestead Act of 1868, to the exclusion of said creditors. And by cross-bill she prayed that said creditors, their attorneys, and all others, be enjoined from suing or proceeding against her by judgment or otherwise, until all the assets were duly marshalled, and brought in before the Court for distribution and adjustment, according to equity. The Chancellor, in February, 1869, ordered that she proceed with the sale, that she apply for the homestead and exemption to the Ordinary, and enjoined the creditors from prosecuting their claims either by suit at common law, or by levy and sale upon the property of said estate, or said administratrix and ordered that they be all made parties to said bills, and in that way settle their rights/.</p> <p>While this last injunction continued unmodified, Hines & Hobbs filed in the 5th Circuit Court of the United States for the Southern District of Georgia, a bill in favor of said Trowbridge, Dwight & Company, of New York, against Annie E. Rawson, as administratrix of said deceased, for the foreclosure of a mortgage which said deceásed, in his lifetime, had given said Trowbridge, Dwight & Company for securing their said claims. This mortgage covered certain of the realty in possession of said administratrix, as such, and certain other realty-fin possession of other persons, though this did not appear by the bill filed in the said Circuit Court; but the parties holding under Rawson were not made parties'to said bill. Upon being served with this bill, Mrs. Rawson sued out a rule nisi before the chancellor, who granted the said injunction, calling on Hines & Hobbs to show cause why they should not be punished for violating said injunction.</p> <p>They answered that said injunction was intended solely to protect Mrs. Rawson from suits seeking to make her personalty liable for the debts of her husband, and that the bill of foreclosure was in its nature a proceeding in rem., and could not hinder or interfere with the litigation in the State Courts, nor with said administration; that the greater part of the realty, specifying it, upon which they were seeking the foreclosure, was not claimed by Mrs. Rawson in any way, but had been sold by her husband in his lifetime, and was then owned and possessed by third persons named, and that they were compelled to sue before the 1st of January, 1870, or said claim would be barred by the! Statute of Limitations.</p> <p>Upon hearing argument upon this answer, the Chancellor determined that it waS insufficient in law, and ordered that Hines & Hobbs, attorneys for Trowbridge, Dwight & Company, dismiss said proceedings in the United States Circuit Court, for the foreclosure of said mortgage,- as against Mrs. Rawson, as administratrix as aforesaid, and that in default of doing so, they be considered in, contempt. That decision is. brought here for review.</p>

Executor’s Sales. Agency. Lien of Judgments. Before Judge Clark. Mitcbell Superior Court. November Term, 1869. - Neal, on behalf of himself and such creditors as might join him, filed a bill agaiust Jubal Cochran, as executor of Allen Cochran, their common debtor, and certain others, creditors, etc.,'to adjust the equities between the creditors, and for other purposes. Our concern, at present, is with those other purposes.

Equity Practice. Receiver. Decided by Judge Clark. Lee Superior Court. September Term, 1869. For the beginning of this strife see Robenson vs. Jason et al., 37th Georgia Reports, 66. After the judgment of the Supreme Court in that case ha'd been made the judgment of the Court below, Ross & Son and Robenson began negotiations for a settlement of the matter as between them.

<p>When the sheriff served Rogers with summons of garnishment, and the defendant in attachment filed his bond with security to dissolve the garnishment, aud the sheriff notified the garnishee that the bond had been filed and that the garnishment was dissolved, and the garnishee afterwards paid the money to the defendant in attachment, which he owed him, at the time the garnishment was served upon him, and the Court afterwards held that the bond given by the defendant in attachment was not in proper form, and that no judgment could be rendered upon it: Held, that the Court erred in allowing judgment to be entered up against the garnishee for the amount paid by him to the defendment in attachment, after the notice from the sheriff that the bond had been given and that the garnishment was dissolved.</p>

Certiorari. Before Judge Worrell. Muscogee Superior Court. June, 1869.. Redd propounded a paper as the will of' Owen Thomas, deceased, and offered to prove it in solemn form. Sophia Hargroves, M. W. Thweatt et al., as heirs-at-law, filed their caveat. In this paper Redd, and another since dead, were named as executors. After hearing the evidence the Ordinary allowed the paper (except a clause as to emancipation of slaves,) set up as Thomas’ will.

<p>Assignment by Bank. Priorities of creditors. Before Judge Johnson. Muscogee Superior Court. May Term, 1869.</p> <p>In 1868, Willcox, as assignee of the Bank of Columbus, •filed a bill for direction, etc., against S. W. Belcher et al., the creditors of said bank. He averred as follows: On the 31st of March, 1866, the bank assigned to him all its property and effects, with instructions to convert the same into cash, pay the expenses of doing this, and his reasonable charges, and then to “ pay and discharge the debts ” of the bank “ in accordance with the priorities established by law in cases where bank charters are surrendered or forfeited,” and he accepted the trust. On the next day he gave notice for creditors to present their demands, notifying bill-holders that their priority of payment would cease unless the bills were presented within six months. Within the six months bill-holders, who were not stockholders of the bank, presented bills amounting to $186,951 5.0, and bill-holders who were stockholders presented bills amounting to $228,278 00. Informal notice of $8,253 00 in other bills was given within the six months by persons not stockholders; $683 00 in bills was presented after the six months, and $57,520 00 of other bills are known to be outstanding, but have not been presented. There are depositors who deposited Confederate currency, and took certificates payable in that currency. There are two judgments against him as assignee. TJ'he assets are insufficient to pay all of said demands. The difficulties presented are theseThe bill-holders who are not stockholdei’s, and who presented their bills within the six months, claim that they should have priority in exclusion of all others to the full amount of their bills; the stockholders who presented their bills within the six months resist this, and sa,y they and said othef bill-holders, who presented their bills within six months, should be so paid to the exclusion of all other bill-holders ^nd creditors; the bill-holders who did not present their bills within the six months resist that, and assert that all the bill-holders, without reference to the time of presenting the bills, shall take the assets to the exclusion of the stockholders and other creditors. Again, the bill-holders who are not stockholders, say that he should at least pay them now such a dividend as they are entitled to, counting them as having no priority over any creditor; the depositors demand present currency on their certificates, but the Receiver thinks they should be razeed according to the Scaling Ordinance of-1865.</p> <p>Pending the bill, orders were granted, requiring the assignee to pay twelve and a half per cent, to each bill-holder who presented.his bills within the six months, and ordering the realty, etc., of the bank to be reduced to cash. These orders were complied with, and a report was made, as required by the Court. None of the creditors denied any material part qf the bill. Dr. Billing claimed for a deposit made before the war, for which he had sued and obtained a judgment at May Term, 1866, of said Court, and contended that as the bill-holders could hold the stockholders liable they should give way to his judgment. William Dougherty set up that stockholders of the bank, who were its directors, had bought up its bills since said assignment at a nominal value, and contended that if they shared with the other bill-holders at all, they should take according to what they paid for the bills, and not according to the face of the bills.</p> <p>There being no issue of fact, the statements in the bill and the answers being taken as true, the parties agreed that the Chancellor should determine the matter without a jury, and decree accordingly. He decreed that $12,963 27 be first paid on account of the 'expenses of administering said assets, and that the assignee should pay out the balance of the fund $147,479 37, to the bill-holders then before the Court, and to Dr. Billing, pro rata, in the- proportion that the whole, demands allowed ($579,016 37) bears to said fund;.that the bills of the directors be withdrawn, and that the assignee noté his payments on the bills, and report to the next term of the Court.</p> <p>Error is assigned because stockholders holding bills were-allowed to come in on equality with other bill-holders; because all bill-holders were put on equality without.regard to the time when they presented their bills; because Billing is allowed to share equally with the bill-holders.</p>

<p>Bill to marshal assets, etc. Demurrer. Before Judge Johnson. Harris Superior Court. October Term,' 1869.</p> <p>This bill, filed in January, 1868, was demurred to for want of equity, the demurrer was sustained, and that is assigned as error. Its averments were as follows: Bryan, in 1864, was appointed administrator of Thomas Hickson, deceased. The only heir is Myra T. Hickson, of Bibb-county, Georgia. The estate was regularly appraised at $285,594 00 in Confederate currency. The estate consisted of twenty-four hundred acres of land, seventy-seven slaves, and various personal property and assets, specified. Because of the perilous times, Myra T., in August, 1865, to induce Bryan to become administrator, agreed to allow him to take, as extra compensation for his services as such administrator, four per cent, upon the inventory after deducting the value of the slaves. He proceeded to discharge the liabilities of the estate, and regarding it as perfectly solvent, in some instances he took up demands against it by giving therefor Myra T.’s note, with himself as her accommodation endorser, without any benefit' to himself. On the 26th of"December, 1864, he so took up a demand against the estate in favor of Elizabeth and Amanda Davidson for $1024 00, besides interest. Upon this note said Elizabeth sued in Harris county, had that case marked dismissed, without paying the costs, and only to vex and harrass Bryan, sued upon it in the Circuit Court of the United States for the Southern District of Georgia, in the name of John W. Davidson, of Alabama, who is not the bona fide owner of said note. He hopes to have said suit enjoined, and on legal grounds to dismiss it, having had all necessary pleas filed. When this is done Elizabeth and Amanda will again sue him unless restrained. There are other claims which fall under similar principles of equity, which should be brought before the Court with suitable explanations that equity may be done. Thomas Gordon, of Catoosa county, as administrator de bonis non of James Simpson, obtained a decree against Bryan as such administrator, to enforce the vendor’s lien for the purchase-money of the most valuable portion of the lands of the estate for about $3,000 00, and has begun suit on the notes given for the purchase-money aforesaid, to enable him to recover his pro rata share of what may remain unpaid when said lands shall have been sold under said decree.</p> <p>Bryan did not reside on the plantation, Myra T. did, and so, for some time, did one Hanlon. He deceived her, and married her while he had another wife, and he and one Black-man consumed part of the estate, for which he asks they may account. Hanlon has fled tó parts unknown; Myra T. has been divorced from him, and Blackman died in Texas, and his estate is unrepresented. But these expenditures were not beyond Myra T. Hickson’s position and station in society, and were afterwards charged to her in her year’s allowance. This allowance, her dower, which w'as assigned, and emancipation of slaves, reduced said estate. Lee obtained a judgment against Bryan as administrator while he supposed the estate was solvent, and seeks to enforce that judgment, and a suit is pending against him by McGehee for $175 00. (A schedule of debts, and the description of them are exhibited.) Upon consultation with Lee and other creditors, Bryan suggested the necessity of filing a bill to marshal the assets; Lee said they thought if he would sell the property on credit it would bring enough to pay all, and they would wait. He did so sell, selling much of the property to Myra T. Owing to the decline of cotton and other unforeseen causes, he can not raise money from said sales, and all the proceeds and assets will not pay all the debts.</p> <p>He prayed that said Elizabeth and Amanda, and other creditors in like situation, be enjoifaed, and that the notes given to them be decreed to be demands against the estate only, that Gordon be enjoined on his common law action, that all other creditors be enjoined from further proceedings against him, that they all answer as to the nature'and dig- , nity of their demands, etc., that the assets be marshaled, and that he be instructed how to pay them out, and he be allowed his compensation and solicitor’s fees, arid then be discharged' from further liability.</p> <p>The inventory of appraisement, sale bills, and his returns, were all exhibited. The inventory, made the 15th of October, 1864, footed up $285,594 00. Of this amount $140,-755 00 was for the slaves, $34,000 00 is for land, and the balance was for the usual personal property of a wealthy farmer. His returns showed that up to July 1st, 1866, he had received in cash for said estate $4,635 96, all of which ■he had paid out since the war; that from July 1st, 1866, to January 1st, 1868, he had received $3,730 24, and after taking out his payments and commissions, he owed the estate in cash $2,892 05. The exhibited claims against the estate footed up $6,266 45. They accrued in 1859 and 1864, and the intermediate years. Of these, the demand of Sampson’s estate was $3,000 00. Lee’s judgment was $1,575, with interest from October, 1867.</p>

Equity. Private sale by administrator. By Judge Cole. Bibb Superior Court. May Term, 1869. The bill of Thomason and others against said company, and Charles C. Usher averred as follows: -In 1861, James Wakeman died in said county, seized and possessed of a large estate, real and personal, all of which, except some slaves, he gave by his will to his wife, who was his sole heir. .

Dormant Judgments. Statute of Limitations. .Before Judge Green. Newton Superior Court. September Term, 1869. ^ On the 3rd of October, I860:, a mortgage fi. fa. was issued in favor qí Clark as executor of Conyers, against certain lands therein named, which Horton had mortgaged. No entry was made by any officer on said ft. fa. till it was levied .upon-said lands, on the 29th of October, 18Í38.

<p>Liability of Western & Atlantic Railroad. Retroactive Law. Before Judge. Pope. Fulton Superior Court. May Term, 1869.</p> <p>Early in 1861, Turner brought case against Lewis, as Superintendent of the Western & Atlantic Railroad, returnable to April Term, 1861, of the Superior Court of said county. He averred, that on the 8th of July, 1859, he was employed by hnd acting as a fireman on an engine of said defendant, on said road, and was damaged by the sinking or opening of the track of said road, causing the engine to upset and scald him; that he expended money for board, nursing, etc., in trying to cure himself, but could not be cured, and was' for two years wholly disabled from attending to business, suffered great pain, and was disabled for life; that this upsetting of the engine was caused by the carelessness aud negligence of the track-raiser, and other servants of defendant, over whoni he had no control, and who did not work at the same work with him, but stayed upon said railroad to keep it in order, and they failed to do so, and allowed the track to get in such order as to upset said engine.</p> <p>Thé plaintiff proved the time, manner and extent of the injury, as stated, and that he was a first class fireman, getting $2 00 per day, that he demanded payment according to the statute, and it was refused, and that his duties caused him to stay on his engine, while the track-raiser’s duty was to stay on his section of the road, and keep it in order, and that the road at that point had been some time in bad order, and that the track-raiser was discharged immediately upon the happening of this occurrence. Here plaintiff rested his case. Defendant’s counsel moved for a non-suit. The motion was overruled, the cause was argued, and plaintiff had judgment for $2,000 00 and costs. A new trial was moved for, upon the ground that the Court erred in refusing a non-suit, and because the verdict was contrary to the evidence, etc. The Court refused a new trial, and error is assigned thereupon.</p>

<p>Common-carriers. Before Judge Pope. Fulton Superior Court. May Term, 1870.</p> <p>Rosenthal sued Wallace, as Superintendent of the Western & Atlantic Railroad, for loss of certain goods lost by said railroad. He obtained a verdict, and the defendant asked for a new trial upon several grounds, but a new trial was refused. But one point was passed upon by this Court. It appeared that the goods were shipped from Nashville, Tennessee, consigned to Columbus, Georgia, and were received in good order by defendant at Chattanooga, and stolen in Atlanta. The question of dispute "was whether said defendant delivered them to the connecting road, the Atlanta & West Point Railroad, it being conceded that such delivery would exonerate the defendant..</p> <p>Dooly, the Master of Transportatipn of said defendant, testified that defendant delivered the car containing said goods to the said connecting road upon the evening of its arrival in Atlanta, and said car was in the custody of the agents of the connecting road from Friday evening till Sunday^ morning ,• that it was the duty of said connecting road to receive and transfer freight as soon as possible into their own cars, and this usually required from twelve to twenty-four hours; that when freight is checked out of a car the connecting road returns the car.</p> <p>John B. Peck testified, that he had been for twenty-one years connected with railroads, last as Master of Transportation of the Western & Atlantic Railroad, and that the road in possession of goods, delivers to the connecting road, in Atlanta, by placing the cars containing the goods on the track of the receiving road, from which they are transferred into the cars of the connecting road; when the cars are put by the delivering road on the track of the receiving road, the safe custody of the cars devolves upon the receiving road; according to custom, the delivery to the receiving road takes place when the cars containing the goods are placed on the track of the receiving road; they are then guarded by the watchman on the receiving road until the goods are checked out, and the officers and employees of the delivering road have no custody of them whatever after the cars are so placed for a transfer of freight. If, in checking, out any goods called for by the manifest are missing, and the car shows no signs of having been broken open, or entered by an unauthorized person, the delivering road is liable for the deficiency, as it is presumed that' there is an error in the manifest. But if the car is broken, or any signs of wrongful entry appear, the receiving road is held responsible, inasmuch' as the car was in its custody, and the, blame of the theft rests with its employees. Connecting roads receiving goods by car loads are considered responsible for their safety until checked out, and they are checked out to see that they agree with the freight list, and to fix “shortage,” if there be any, upon the proper road. The receiving road is responsible for goods whether in good or bad order, and if the receiving road fail to guard the cars delivered to it, it pays for the loss anyhow.</p> <p>The Agent of the Georgia Railroad at Atlanta testified to the custom about as laid down by Peck, “ except when the car is necessarily kept over all night before the freight is checked out,” and with this addition* “connecting roads hold themselves responsible only for such- goods as are checked out in good order, unless it can be shown that the damage occurred on their road; if the loss cannot be located, it is prorated.”</p> <p>. The Agent of the Macon & Western Railroad Company at Atlanta testified, that the receiving road only holds itself liable for goods checked out in good order, except when it appears that the car has been broken open while on their tracks, and with him agreed the Agent of the Atlanta & West Point Railroad Company at Atlanta.</p> <p>On Sunday morning the car was sent back to the'Western & Atlantic Railroad, a window in it was loose, and goods had been stolen from it.</p> <p>The Court charged the jury that when freights pass over different connecting roads, the last roads receiving the goods as “ in good order,” is liable to the consignee for any loss or damage done to the goods; if defendant received the goods, as one of a line of connecting roads, the burden is upon defendant to show that the goods were delivered to the next connecting road in good order. It is said that this charge is erroneous, and that the Court should have charged that the delivery of the car to the connecting road in apparent good order would be presumptive evidence of the good order of the contents of the car.</p> <p>When the cause was called for a hearing here, a motion was made to dismiss the bill of exceptions, because the errors were not specified in it. The errors were specifically set out in the motion for a new trial, and the complaint in the bill of exceptions was the refusal of a new trial. The motion was overruled.</p>

<p>D. was indebted to F. for slaves bought of him, and F. was indebted to P. for land, and by mutual agreement of the three, D. gave his note to T,, the amount of the several debts being the same. This is a novation. The debt from D. to F. and from F. to T. are at an end by the new contract between D. and F., and the consideration of this contract is, on the part of T., ,the satisfaction of his debt on F., and on the part of D. the satisfaction of his debt to F.</p> <p>2. It is not a good objection to a verdict as evidence that it does not show that it was rendered -by a full jury, nor to a fi. fa. that it was issued by the Clerk’s deputy and had no seal of that officer upon it. (R.)</p> <p>3. When the parties are at issue on the facts set forth in an affidavit of illegality to an execution, the defendant in fi. fa. cannot set up new grounds of illegality not contained in his affidavit.</p> <p>4. A charge of the'Conrt that does not harm the party complaining of it, is not a ground for a new trial, even though the charge be wrong.</p> <p>[See concurrence of Wakkex J„ and dissent of Brown C. J¡]</p>

Homestead. Practice. Before Judge Andrews. Warren Superior Court. November, 1869. Hodo made a wdll directing that bis estate be equally divided between bis widow and bis eight children when the youngest was twenty-one years old. He died, and bis will was probated in 1862. _ . Mrs. Hodo, his widow and mother of his minor children, petitioned for a homestead and exemption of personalty out of the estate of her deceased ,-husband.

Libel. Charge of the Court. New Trial. Before Judge Gibson. Richmond Superior Court. ■ July Term, 1869. McCarty brought case against' Pugh for maliciously publishing him, as having committed perjury, by reason of which he no longer was allowed by his acquaintances to have intercourse or business transactions with them.

New trial. Before Judge Gibson. Richmond Superior Court. June Term, 1869. Picquet brought ejectment against Mrs. Gibbs for certain land in said county. She pleaded the general issue and Statute of Limitations. Evidence was introduced pro and con, the Court charged the jury, and they found for the defendant.

Specific performance. Agency. Before Judge Robinson. Putnam Superior Court. March Term, 1869. Smith’s bill made the following case: He was told by Benjamin F. Adams that he had authority from N. Foster Brown and Jefferson Wynn to sell a house and lot in Eaton-ton, and that the price was $3,500 00 in Confederate money, and offered to buy it, if Adams would take $1,100 00 then and $2,400 00 in two or three weeks, to be sent to Adams, or deposited in bank, subject to his order.

Mandamus. Bill of Exceptions from Morgan Superior Court. May Term, 1869. Dismissed, and cause'afterwards reinstated. Abner M. Partee and wife filed a bill against Dawson B. Lane and Early W. Thrasher, and in May, 1869, had a decree against said defendants. They moved for a new trial.

Injunction. Streets. Railroads. Before Judge Pope. Fulton County. Chambers. October, 1869. By the present map of Atlanta, going south-east, the Macon and Western Railroad crosses Pryor street and terminates in the general passenger depot, located between Pryor and Loyd streets.

Certiorari. Bastardy. Costs. Before Judge Knight. Lumpkin Superior Court. September Term, 1869. Malinda Loggins made affidavit that Hyden was the father of her bastard child, and that it was likely to become chargeable to the county.

Trespass qucere clausum fregit. Damages. Before Judge Knight. Lumpkin Superior Court. September Term, 1869. Irby brought trespass quare clausum fregit against the Yahoola River and Cane Creek Hydraulic Hose Mining Company, averring that it had with force and arms broken and entered land lot 345, in said county, and cut and carried therefrom' three hundred trees, of the value of $500 00. The defendant pleaded the general issue and Statute of Limitations.

Plaintiff’s attorney read in evidence said bank bills and closed. No evidence was offered by the defendant.

Homestead Act of 1869. .Exemption of Personalty. Decided by Judge Eobinson. Morgan Superior Court. May Term, 1869. On the first of January, 1866, David S. Phelps bought of John W. Porter four mules and other property, amounting to $953 00, and gave Porter his note therefor, to be paid out of the proceeds of the crop which Phelps should make in 1866 on the plantation rented to him by Porter.

Slave debt. Novation. Before Judge Robinson. Jones Superior Court. October Term, 1869. In 1858 or 1859, James Caldwell sold slaves to Charles D. Bostwick and Joseph L. Holland, taking their note for' the price. James Caldwell sold the note to Robert Caldwell, who in 1858 sold it to Gresham, who paid specie for it. In 1860 Joseph L. Holland died and Benjamin L. Holland became his administrator.

<p>Competency of witness. Before.Judge Schley. Chat-ham Superior Court. 'June Term, 1869.</p> <p>Meldrim sued Mrs. McIntyre, as administratrix of her deceased husband, on an account. \ She pleaded the general issue and payment. The plaintiff having introduced his evidence, Mrs. McIntyre's testimony was offered by interrogatories. She testified to the payment. Plaintiff's counsel objected to her testimony, upon the ground that her husband being dead, plaintiff could not testify in the cause, and, therefore, she being his administratrix, could not. The Court rejected her testimony, and plaintiff had judgment for his claim..' The refusal to admit Mrs. McIntyre’s testimony*is assigned as error.</p>

<p>Relief Law. Decided by Judge Garnett Andrews. Elbert Superior Court. March Term, 1869.</p> <p>Dillard, on the 11th of September, 1866, obtained a judgment, in said county, against said White. Fi. fa. was issued upon it and a levy was made. White then made an affidavit in which he stated simply that he desired “to take the benefit of an Act entitled an. Act for the relief of debtors, and to authorize the adjustment- of debts, upon the principles of equity, passed by the General Assembly of Georgia, in the year 1868.” The sheriff returned the fi. fa. and affidavit to Court.</p> <p>When the cause was called, White’s attorneys offered in evidence saidj/?. fa. and said affidavit. Upon motion of Dillard’s attorney, it was ordered that said affidavit be dismissed and that the fi. fa. proceed. *</p> <p>It is stated in the assignment of errors, that the Judge so 'did, because he held said Relief Law, so far as it authorizes the submission of judgments to juries, for such purpose, was unconstitutional, and said holding is brought here for review. " '</p>

Constitutional Law. Relief Act. Before Judge Bigby. Carroll Superior Court. April Term, 1869. ' ■ _ In October, 1867, Martin, as administrator, obtained a judgment against Bonner. In April, 1869, Bonner moved, under the 2d section of the Relief Act of 1868, to submit said judgment to a jury, with a view of having its amount reduced.

<p>, Rule against Sheriff. Laches. Relief Act. Before Judge Kirby. Floyd Superior Court. July Term, 1869.</p> <p>In June, 1867, Kite sued one Ayer upon his promissory note, dated the 13th of January, 1863, and due two years after date. No plea was filed and judgment by default was entered in Kite’s favor, on the 27th of March 1869. Fi. fa. was issued in the usual form, reciting the amount and date of said judgment. On the 4th of May, 1869, Lumpkin, as deputy sheriff, levied it upon certain land as Ayer’s property. On the'same day Ayer made and delivered to Lumpkin his affidavit, as prescribed by the “Relief Act of 1868,” stating that he desired to avail himself of the benefits of said Act. Thereupon Lumpkin did not proceed under said levy.</p> <p>At said term'of the, Court, Kite’s attorney obtained a rule nisi, calling on Lumpkin to show cause why he should not be compelled to pay Kite the amount due on said fi. fa. Lumpkin showed for cause said affidavits having been delivered to him, and further that Ayer had made a motion at said term, which was still pending, in which he was trying to set aside said judgment and scale the debt, under the Ordinance of 1865, for the following reasons: that he, Ayer, employed Smith & Branham, attorneys-at-law, to defend said suit; that said note was given for the land levied upon, and though not so expressed, was to be paid in Confederate currency ; that the price agreed to be paid for said land was $1,000 0O', all of which had been paid (in Confederate currency) except $333 33, the principal of said note; that said land is not, and was not on the 13th of January, 1863, worth more than $200 00 in good currency; that in January, 1864, when he paid the second note, he also offered to discharge this one, in Confederate currency; that the suit was begun when, by law, pleas were not required to be sworn to, and when the general issue was considered as filed when counsel answered for defendants, but judgment was taken after the law was changed in that regard, and that, though he was sure he had employed said attorneys, they supposed they were not employed, and therefore no plea was filed. This showing was demurred to. The Court refused to make the rule against Lumpkin absolute, and his refusal is assigned as error.</p>

<p>This was mandamus from Lumpkin.</p>

Distress-warrant. Evidence. Charge oí Court. Before Beuben W. Carswell, Esq. Glasscock Superior Court. August Term, 1869.

Criminal Law. Continuance. Confessions, etc. Before Judge Snead. City Court of Augusta. May Term, 1869. Erain was indicted in said Court for larceny of a bale of cotton. He was absent. His counsel moved to postpone the trial for that day, because of Frain’s sickness.

Equity pleading. Mistake. Before Judge Alexander. Pulaski Superior Court. October term, 1869. Simon Merritt has lived very many years on a certain plantation in said county, one undivided half of which was owned by him and the other half by his son-in-law, Ruel W. Anderson.

2. At December term, 1869, Mr. Hawkins renewed the motion to dismiss on said ground, and upon the ground that but for the fault of counsel for defendant the papers would have reached the office of the Clerk of this Court in time for June term, 1869, to which they were properly returnable.-

<p>Equity from Lee County.</p>

<p>1. One Sparks sued out a warrant against James Maxwell and his wife, as his tenants, holding certain premises beyond their term. Doyal, the deputy sheriff, under said warrant, dispossessed them and put Sparks in possession of the premises.</p> <p>After the usual certificate by the Judge, came all the pleadings and a brief of the evidence, pro and con, annexed to the bill of exceptions, and on it, was the agreement of counsel that it was correct, and the acknowledgment of the service of the bill of exceptions. After all this, was other evidence and copies of the records and judgment of the Court. The whole was attached together and certified by the Clerk; but none of this evidence was “identified as true, by the signature of the Judge thereupon,” as is required by the 10th Eule of the Supreme Court. (See 38th Ga. E., 689.)</p>

1. Glass et al. filed a bill in Sumter county against Clarke et al., and obtained a rule nisi calling upon them to show cause why an injunction should not be granted as therein prayed for. This case was dismissed for non-compliance with said 10th rule. McCay J. concurred, hesitating, because of the peculiar facts of the case. It being a proceeding in vacation, and wholly in writing, he was not very clear that the affidavits are not part of the record.

<p>McCay, J., dissented in this cause, on the ground that the evidence had nothing to do with, the error assigned, to-wit: that it was too late to make the motion.</p>

1. This was complaint by Barge against Pratt and one Cochran, on promissory notes, in Randolph county. Pratt defended upon the ground that he was but a surety on the notes, and had given notice to Barge to sue the principal, with whieh he did not comply, within the time prescribed by law. The trial resulted in a verdict for the defendant. Barge moved for a new trial, but it was refused. He sued out a writ of error.

<p>1. In 1847,. Henderson employed Anhilles D. Shackleford, an attorney-at-law, to recover for him certain land in Whitfield county, agreeing to give him' one half of the land if recovered, Shackleford paying all expenses. The cause was tried several times, was several times before the Supreme Court, and finally Henderson got the land. Shackleford had died before the final recovery. Upon a suit by his administrator for his fees, Henderson pleaded the general issue, that said contract was champertous, and that Shakleford did not recover the land, but that the recovery was by other attorneys, employed and paid by him, after Shackleford’s death. There was a verdict against Henderson.</p>

<p>1. The right of a family of minor children to a homestead, is a sufficient estate to justify the Judge of the Superior Court in appointing a trustee, and said trustee or guardian, or next friend of the family of minors, may apply for such homestead intheir behalf.</p> <p>2. The homestead and exemption, for a family of minor children, being in pari materia with the laws allowing dower to the widow and minor children, is to be construed in harmony therewith, and such family of minors take said homestead and exemption subject to the dower in the same and to the year’s support.</p> <p>3. The minor children of a deceased father are entitled, as against the creditors of the father, to the homestead and exemption provided for by article 5, section 1, of the Constitution of 1868.</p> <p>4. The effect of said homestead and exemption upon the rights of the heirs-at-law, if any such there be, who are of full age, it is not for the creditors of the father to litigate on the application for the homestead. The said heirs, as such, cannot be parties to the proceeding, nor can their rights be adjudicated therein, and this Court, they not being parties, makes no judgment upon the question.</p> <p>5. The creditors of the father, out of whose estate a homestead and exemption is claimed for his minor children, may make objections to the regularity of the proceedings, contest the right of the applicants to be considered “the family of minors” of the deceased, and make any of the other issues, proper to be made before the Ordinary, as provided by the statute for setting aside the homestead. Warner, J., dissents.</p>

<p>1. When a testator, at the date of his will, had a wife and a son and daughter, and brothers and sisters of both the whole and half blood, and gave in his will several legacies to his daughter for life, and at her death to her children, and if she died childless, then to his (the testator’s) “heirs of the full blood,” and the daughter died childless before the testator:</p> <p>Held, 1. that the legacies did not lapse by the death of the daughter, but went to the testator’s “heirs of full blood.”</p> <p>2. that by the phrase “'heirs of the fall blood” the testator meant his statutory heirs, including his wife; but if it should so happen that at the death of his daughter childless, his statutory heirs should be his collateral heirs, then he intended only those of the whole blood to take, to the exclusion of those of the half blood.</p> <p>2. Section 2425 of the Code, providing that “All property acquired subsequent to the making of the will shall pass under it, if its provisions be sufficiently broad to embrace such property,” is prospective only, and after acquired real estate does not pass under wills made before the Code went into operation, even though the testator did not die til afterwards. '</p> <p>3. When there is a legacy of the income of $50,000 Charleston City stocks to a widow for life, in lieu and in bar of dower, the widow is put to her election as to the legacy or dower in all the real estate of which the testator dies seized, whether said real estate passes under the will or not. If she elect to take the legacy, she has no further interest in the real estate, either by way of dower or by way of a child’s part in lieu of dower, and this whether the realty passes by the will or not.</p> <p>4. A bequest of the income of $50,000 of Charleston City stock, at its par value, is a bequest of the income of stock of the nominal value of $50,000, and not of the income of $50,000 worth of such stock at its market value.</p> <p>5. This Court will not overrule the judgment of the Judge of the Superior Court, in dissolving an injunction, unless there is an abuse of the discretion which the law confers upon such Judge. Warner J., dissents as to the first head note.</p>

This was an action of ejectment in Lee Superior Court. The defendant filed an affidavit attacking the genuineness of a deed under which plaintiff claimed title to the premises. The Court ordered a trial as to the genuineness of said deed. Evidence was introduced pro and' con; the Court charged the jury, and they found that said deed was genuine.

Powers of Corporations. Injunction. Before Judge Cole. Chambers. Bibb county, November, 1869. Stephen Collins, as a stockholder in the Southwestern E. E. Company, and in the Atlantic and Gulf' E. E. Company, and as a citizen of the State of Georgia, and of the city of Macon, Peter Solomon and Jas.

Taxation of Railroad property.' Decided by Judge Cole. Chambers. Bibb County. October, 1869. The Ordinary of Bibb county endeavored to levy a tax upon the property of the railroad companies having their termini in Macon. His right to do so was denied by the companies.

Relief Act. Before Judge Johnson. Marion Superior Court. September Term, 1869. Joseph Belk et al., as executors of Joseph Belk, sued Smith upon his promissory notes, made the 26th of March, 1866.

<p>1. When there is some evidence to sustain a verdict, and the Court below has refused a new trihl, .and no rule of law -has been violated, this Court will not re,verse the judgment.</p> <p>2. Newly discovered evidence upon a point principally controverted on the first trial, and upon which the party moving for a new trial introduced-evidence, is cumulative only, and not a good ground-for a new trial!</p>

<p>To sustain a plea under the Relief Act of 1868, it must appear that the loss which the defendant claims, as an equitable ground for reducing the plaintiff’s claim, was in some way the faultof the plaintiff.</p>

<p>On the trial it was shown by plaintiff’s witnesses, substantially, as follows: On said day, in 1860, Baxter bought certain land from Abercrombie, at $3,000 00, paid him some cash, and gave these notes for the balance of the purchase-money. About the same time, Abercrombie bought of one Fields certain other land and gave him his note for $1,500 00. In February, 1863, Abercrombie had not paid Fields, and Baxter had paid only about $500 00 of his notes. In this state of the matter Baxter called on Abercrombie, who belonged to the Confederate States Army, and wished to pay his notes in Confederate currency. Abercrombie refused to accept it, saying that he would not take such currency unless Fields would take it from him in payment of his note. Baxter then said he would go to Fields and take up Abercrombie’s note, and get a deed from Fields to Abercrombie for Abercrombie’s land, and then take up his (Baxter’s) notes. Abercrombie said that he would, before his return to the army, instruct his wife to deliver to Baxter his notes when Baxter brought the deed and Abercrombie’s notes from Fields to her. He gave his wife such instructions, and expressly told her not to accept anything from Baxter in payment of his notes unless it was his own Dotes and deed, as aforesaid, or such currency as Fields would accept from him. Fields had refused to accept Confederate currency from him. Abercrombie went back to the army • Baxter did not go to see Fields, but went to Mrs. Abercrombie and offered to pay the notes in Confederate currency. She refused, at first, to accept it, saying she would take no currency which Fields would not take. Baxter told her that the Congress of the Confederate States had made such currency a legal tender, and that if she refused to accept it the debt would be, in law, paid; that Fields would be compelled by law to accept it from her, or his debt would be, in law, paid. She wished him to see Fields first, but he said Fields was from home and would-not be back for two or three weeks. Believing his statements, she accepted the currency for the balance due on said two first mentioned notes ; went at once to see Fields, who had not been from home; offered him the same bills ; he refused to accept them, and then, within a week from'the time she had received them, she went to Baxter and tried to get him to take them, but he would not.</p> <p>Part of this testimony was given by Mrs. Abercrombie. She was objected to as incompetent, but the objection was overruled.</p> <p>The defendant testified that he only told Mrs. Abercrombie that it was rumored that Congress had passed such a law, aud denied saying that if Fields did not accept the currency his debt would be, in law, paid, and denied saying Fields was from home. He further testified, that the land which he bought was worth, at the trial, only $1,000 00, that he lost, by-the war, and without his fault, twenty slaves, worth $600 00 each, stock worth $1,000 00, and something more by depreciation in the value of his other lands.</p> <p>Defendant’s counsel requested the Court to charge the jury substantially, that if credit was given upon the faith of Baxter’s property, and it “ was lost by the war, and the said plaintiff was in the Confederate army, or was engaged in said rebellion, and gave aid and encouragement to the same, these facts and circumstances combining together, are sufficient to authorize the jury to reduce the amount of the debt sued for, according to the Equities of the case, and render such verdict as to them shall appear just and equitable.” The Court refused so to charge. He told the jury what evidence was admissible under the Relief Act of 1868. But he charged them that if said notes were intended to be paid in Confederate currency, they might consider such tender, but that it must be made like a tender of chattels, according to section 2824 of the Code, that if the note was made prior to the war and payable in “dollars,” nothing could authorize them to reduce the note, or consider said tender as legal, unless it was made according to law, section 2823, Code; that no reduction could be made because of a loss of property, unless plaintiff caused the loss in some way, and that plaintiff, being a Confederate States soldier, was not to be considered by the jury. He further charged that the payment to the wife was bad, unless she had authority to accept it.</p> <p>It had been approved by the Provisional Governor, but not by Major-General Terry.</p>

<p>Where the verdict is wrong as to any of the joint defendants, and the Judge of the Superior Court is dissatisfied with his own rulings on the trial, and has granted a new trial, this Court will not interfere with his discretion, though the verdict might have been sustained in the discretion of the Court, as to part of the defendants.</p>

<p>Arbitration. Party as a witness. Before Judge Harrell., Eandolph Superior Court. November Term, 1870.</p> <p>On the 17th of June 1859, Jacob L. Cobb and James Morris, became partners as negro-traders. On the 22d of June 1860, the business was continued by new articles of partnership. In July 1864, Morris filed a bill against Cobb, to compel discovery and an account and settlement of said business, and of .a mercantile partnership arising in 1862, out of Cobb’s having bought goods on joint account with funds, etc., furnished under said articles of 22d June, 1860. Under it a Eeceiver took charge of the goods. Cobb answered denying indebtedness. James Morris died, and Thomas Morris and Franklin Morris became his executors, and on November, 1865, were made complainants in his stead. In January 1866, they amended the bill, and on the 27th of January, 1866, said executors and Cobb, submitted to arbitration “all questions involved in the bill and answer,” that they be “fully and finally disposed of and settled,” that thus the property in the hands of the Eeceiver should be disposed of fully and finally and “all questions arising as to the rights and liabilities of the parties for property, which by any means, might have been received by either from said Eeceiver, should be fully and finally adjudicated. J. A. R. Hanks, on the part of complainants, W. K. Moore on the part of defendant, and E. S. Barclay or C. D. McCutchen, selected as third arbitrator, were to make such award. They were to be controlled by the Arbitration Act of 1856, as amended and published in the new Code of Georgia.</p> <p>In November, 1866, said arbitrators sat for the hearing of said matters, and heard the evidence pro and con. Before them, Cobb testified as a witness in his own behalf and his answer was treated as evidence for him.</p> <p>The award was that Cobb should pay complainants $1,486-55, that a Receiver to be appointed by the Superior Court should take the goods and assets from the old Receiver (against whom both parties alledged that he had wasted their goods,) convert the same into cash, and pay the expenses of this litigation first, and then the firm debts pro rata, that neither Cobb nor Morris’ estate should ever after account for what either had taken from the old Receiver, and that a certain draft of $30,000 00 belonged to said estate exclusively. They added that thus they had disposed of all matters submitted, except a claim of Cobb on one Rower for" about $1,000 00 ; as to that they said in the award : “Not being able to decide from the evidence submitted whether the executors of Morris shall account for said claim or not, it is therefore not considered or embraced in this award.”</p> <p>This award was entered upon the minutes of the Superior Court of said county at November Term, 1866. Thereupon Cobb’s counsel filed exceptions to said award, to prevent its becoming the judgment of the Court. These consisted of a general averment that the partnership made no money, and of seventeen different allegations of facts shown on the trial before the arbitrators, with an averment that the arbitrators “ by mistake,” did not give proper weight to said facts, and further, that the award was illegal because “ by mistake ” the arbitrators did not settle the question as to the said claim of Cobb on one Rower. Complainant’s solicitors joined issue upon said suggestions, and the cause was submitted to a jury.</p> <p>Cobb’s counsel read the answers of a witness to show that in May, 1864, James Morris accounted with Cobb, and fell in his debt $32,000 00 or $38,000 00, besides certain promissory notes amounting to $2,027 00 and two receipts, one for $10,000 00 and the other for $4,000 00. He examined the said Receiver, and showed by him thé disposition of certain of said partnership property which had come to his hands as Receiver. Certain promissory notes and receipts showing indebtedness of James Morris to Cobb were read to the jury. Cobb was then offered as a witness in his own behalf. Counsel for defendant in error said in argument here, that he was offered as a witness not of what occurred before the arbitrators but of indebtedness of James Morris to himself. Cobb’s counsel said he was offered to prove that the arbitrators had made mistakes of facts in said matter.’ The record is silent on this point. Complainant’s counsel objected to Cobb as a witness because James Morris was dead, and the Court refused to allow him to testify. Without more, counsel for Cobb closed. Complainant’s counsel offered no evidence.</p> <p>The verdict was in favor of the award. Thereupon Cobb’s counsel moved for a new trial upon the grounds that the Court erred, in refusing to allow Cobb to testify in his own behalf, and because the verdict was contrary to law, and strongly and decidedly against the weight of the evidence. The Court refused a new trial, and that is assigned as error on said grounds.</p>

Construction of Wills. Estoppel. Before Judge Harrell. Webster Superior Court. March Term, 1870. The Ordinary of Stewart county sued, (for the use of Arm-stead Goar and Abner F. Goar,) James L. Shivers, as the executor of Pharis Goar, deceased, upon a bond giveu by Pharis Goar, as the guardian of said Armstead and Abner F. and their sister. Several defenses were filed.

<p>A proceeding against a road commissioner under section 701 of the Revised Code is not technically a criminal proceeding but a proceeding against a public agent for neglect of duty. And the presentment of the grand jury, mentioned in said section, need not be in the form required in a presentment of a person for a violation of the criminal law of the State. In such case the rohd commissioner is not entitled to demand a trial by jury.</p>

<p>Ejectment. Evidence. Before Judge IIareell. Clay Superior Court. April Term, 1870.</p> <p>Doe, on the demise of Eady, Thomas J. Smith and Sarah A Cook, executrix ofW. C. Cook, and others,brought ejectment against Eoe, casual ejector, and C. B. Shivey, tenant in possession, for lot number three hundred and sixty-six in said county. Plaintiff’s counsel read in evidence a grant of said lot from the State to Eady, dated 15th January, 1821. They then produced an affidavit by said Smith, “that the title deeds composing the chain of title from the owners and as they are recorded are not in his possession, power or custody, that he has made diligent search and enquiry and has been unable to find them; hence he believes they are lost or destroyed and an affidavit from said Sarah A. Cook, stating, “that the deeds that appear on record in the Clerk’s office of said county, to lot of land number three hundred and sixty-six, in the twenty-sixth district, the lot for which the said S. A. Cook, executrix, and Thomas J. Smith, are suing C. B. Shivey, in an action of ejectment, are not in her possession, and, as she believes, are lost or destroyed and she make this affidavit that copies of the same from the records may be used in said case.”</p> <p>Thereupon, plaintiff’s attorneys offered in evidence copies of deeds to said lot, duly certified from the records, from Eady to Thomas Broddus, from Broddus to David Merriwether and others, a deed from them, the heirs of Broddus, to said Smith, and from Smith to said Cook. (Said last deed purported to convey but a half interest in said land.) Defendant’s counsel objected to these copies and they were rejected, upon the ground, (as was said in argument,) that there was no proof that such original deeds had ever existed. Plaintiffs closed.</p> <p>Defendant’s counsel examined plaintiff’s attorneys who admitted that they did not represent Eady, that said Smith and said Cook were their clients, and that they had no right to sue for Eady, except that by said copy deeds he appeared as a warrantor of the title of said land, in the chain of title as aforesaid. And Shivey testified that he had been in possession of said premises from 1852, did not go in under ~W. C. Cook, or hold as his tenant, that once, while in possession, he requested Cook to purchase it for him, stating to Cook that if he would get a good title to the land he would give him a certain animal for it.</p> <p>The Court charged the jury that said Smith and Cook could not recover in this action on the demise in the name of Eady, unless they showed a connection between their title and Eady’s, and that they could not show by parol, that Eady was a warrantor on the title held by said plaintiffs. The jury found for the defendant.</p> <p>Plaintiff’s attorneys say that the Court erred in rejecting said copy deeds, and in charging as aforesaid.</p>

<p>Constitutional law. Witness. Before Judge Harrell. Randolph Superior Court. May Term, 1870.</p> <p>Bryan, A. J. Moye and N. M. Weaver, were required by rule to appear before the Superior Court and show cause why they should not be fined for a neglect of their duties as road commissioners of said county. They answered and were at issue with the State; they were tried jointly. The solicitor general proposed to examine said Bryan as a witness for the State. Defendant's counsel contended that this was a criminal proceeding, and that Bryan could not be compelled to testify against himself. The Court overruled the objection, Bryan was examined, and the State closed. Weaver and Moye testified in behalf of defendants. The Court fined each of said parties $50 00. Compelling Bryan to testify is assigned as error. Other points were made but were not passed upon by this Court in this case.</p>

<p>Gaming. Keno. Constitutional Law. Jury. Before Judge Johnson. Muscogee Superior Court. May Adjourned Term, 1869.</p> <p>The indictment, which was in the usual form, charged said Brown “with the offence of keeping a gaming table; for that the said G. H. Brown, by himself, on the seventh day of July, in the year eighteen hundred and sixty-nine, in the county aforesaid, did keep and have a certain Keno table, the same, then and there, being played with balls and did, then and there, preside and deal at said Keno table; and the jurors aforesaid, upon their oaths aforesaid, do say, that said Keno table, so kept and had by the said G. H. Brown, was then and there kept and used for the purpose of playing and betting at the same, contrary,” etc. It was demurred to genei’ally and the demurrer was overruled.</p> <p>The evidence on trial was introduced by the State only. It was as follows: Defendant kept Keno at the “Arbor” in said county in J uly, 1869. “Keno” is carried on by means of a number of balls, with numbers on them, being placed in an urn-like receptacle or globe swung in the air; from this these balls are drawn. Combinations of these corresponding numbers are placed upon boards usually kept in the laps of parties who choose one or more of said boards. Checks, kept for the convenience of change, are paid for a combination of numbers, and, if this combination is drawn' out, the successful party holding it is entitled to and does receive the “pot” containing all the checks put in by the parties, less fifteen per cent, which is kept by the owner of the “Keno.” ■ “Keno,” resembles a lottery and in some respects a raffle. Neither defendant nor any one connected with the game did any betting; no money was bet on the boards; the money put into the “pot” is paid for the combination numbers, just as in a lottery. Defendant drew out the balls from the globe, sat off to himself and had nothing to do with any betting; he did not bet or wager anything. “Keno” does not resemble Faro or Roulette, but is in the nature of a lottery and the party drawing the combination numbers takes the prize. This urn or globe is swung in the air on a table, and the numbers are drawn therefrom. Defendant managed and conducted it; he received the money or checks from the parties holding the combination numbers on the boards and he paid out the checks so received less fifteen per cent. It was admitted that said table was licensed by the Mayor and Council of Columbus.</p> <p>The Court charged the Jury that if they believed from the evidence “that the defendant kept what is commonly called a ‘Keno’ table in this county, about the time charged in the indictment, and managed • it and kept it for' the purpose of playing and betting, it matters not what their idea about betting is or what their individual opinion may be, he has thereby violated the law and they should find him guilty. If defendant did, about the time mentioned in the indictment, keep a table with aglobe thereon, from which balls were drawn by him, with numbers thereon, and a certain number of other person had each a board with numbers on the same and if these persons each paid money into the hands of the defendant and if the person first getting five numbers drawn from the globe corresponding to like numbers on his board, has all the money paid in by those takiug chances, less fifteen percent., and this table and balls was kept by defendant for the purpose as above expressed, it is keeping a gamingtable and they should find him guilty; but if such is not shown by the proof they should find him not guilty.”</p> <p>■ He was requested to charge the jury that they were the judges of the law and the fact in criminal cases. He so charged with this addition: “This does not mean that jurors may do as they please or disregard the charge of the Court; it does not authorize them to say, that the judgment of the Court in refusing to quash the indictment was wrong. If the Court errs in its rulings or charges the parties may except, but if the jury, after they retire, should disregard or set aside the charge, the parties would be without remedy. Being judges of the law and fact means principally that the jury cannot in criminal cases return a special verdict, that their verdict must be general, either guilty or not guilty, and for this purpose jurors are judges of the law and fact.”</p> <p>The defendant was found guilty and fined $300 00 and costs. His counsel say that the Court erred in refusing to quash said indictment, in charging as he did and in qualifying the request to charge as he did.</p> <p>(This case was continued last term upon a suggestion of a dimunition of the record.)</p>

Relief. Judgments. Uncertainty. Bill of Exceptions. Before Judge Pope. Clayton Superior Court. March Adjourned Term, 1869. Camp moved to set aside or scale two judgments which stood against him in said Court.

<p>Jurisdiction of County-Court. Process. Bill of Exceptions. Before Judge Kirby. Walker Superior Court, March Term, 1870.</p> <p>This controversy grew out of the following summons :</p> <p> State of Georgia, Walker County: </p> <p>JohnR. Wardlaw vs. John Hatfield and Allen Williamson.</p> <p> To the Sheriff of said county: </p> <p>The defendants are hereby notified personally or by attorney, to be and appear at the County Court to be held in and for said county, on the second Monday in November next, then and there to answer the plaintiff John R. Ward-law in fourteen several actions of debt on promissory notes, a statement of which notes are hereto annexed, as in default thereof the Court will proceed as to justice shall appertain. In witness whereof I have hereto set my hand and seal, this October 19th, 1866. Lawson C. Black, J. C. C.</p> <p>STATEMENT OE NOTES:</p> <p>By the 1st of January next, we or either of us promise to pay John R. Wardlaw or bearer, fifty dollars value received. Witness our hands and seals, 14th February, 1860.</p> <p>John Hateield, [l. s.]</p> <p>Allen Williamson, [l. s.]</p> <p>One note same as above : It repeated the “one note same as above,” twelve times and ended thus: “One note same as above for fifteen 62-100 dollars.” The return upon it was at follows : “Executed the within by serving the defendants with copies of the original. October 26th, 1866.</p> <p>A. A. Simmons, [l. s.]”</p> <p>On said summons was entered a judgment as follows: “December Term, 1866; ordered by the Court that the plaintiff recover of the defendants the sum of fifty dollars in each several actions numbers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15,16, and the sum of fifteen 62-100 dollars on number 17, with interest and cost of suit in each several action. December 10th, 1866. R. B. McCutchen.”</p> <p>In March, 1870, Williamson represented to the Superior Court, (to which the business of the old County-Court was turned over by the Constitution of 1868,) that he was but a surety on said notes and moved to set said judgment aside because it was rendered by the County-Court, at a monthly session, when said Court had no jurisdiction to enter judgment for the sum apparently claimed therein; because if said summons sets forth any cause of action or any more than one, on one fifty dollar note, it sets forth causes amounting to $665 62 besides interest; because, though fourteen cases ■were upon the docket of said Court to which said judgment refers, there was but one summons, and if said entries upon the docket were intended for judgments, they were rendered without process or summons and are void; because Mc-Cutchen who signed said judgments was not at that time Judge of said Court.</p> <p>"Wardlaw’s counsel produced the County Court-docket, and showed upon it cases beginning at “number 4” and running up to “number 17” inclusive, each as follows : “John R. Wardlaw vs. John Hatfield aud Allen Williamson, deb’t. December Term, 1866, judgment for plaintiff ibr $50 00, interest $20 78, costs $3 20. R. B. McCutchen, J. I. C,” except the last one in which the principal is put as $15 62, and the interest at $6 50. Lawson Black, testified that he was then Judge of the County-Court, and was absent, that McCutchen was then a Judge of the Inferior Court of said county and presided in his stead in the County-Court during his absence. Upon this state of facts the Court refused to set aside the judgment, and that is assigned as error.</p> <p>This summons and the entries thereon did not come up with the copy of the record, but being copied in the bill of exceptions the Court allowed the parties here to supply such, deficiency in the record by the bill of exceptions.</p> <p>There was no certificate of the Clerk of the Court below upon the bill of exceptions. In his certificate to the record which was never attached to the bill of exceptions, the Clerk certified that “the foregoing is a true and complete transcript of the record in the case of (stating this case), and the original bill of exceptions, a copy of which is on file in my office,” and the Clerk of this Court stated that these two papers came to him together in'the same envelope. All of the entries on said docket was not copied in the bill of exceptions, but only set out as stated ante. Eor these reason? defendant’s counsel moved to dismiss the writ of error. The motion to dismiss was overruled.</p>

<p>Corporations. Judgments. Notice. Before Judge Parrott. Whitfield Superior Court. October Term, 1869.</p> <p>In January, 1866, Harbin sued out an attachment, returnable to April Term, 1866, against Hugh O’Hara and James Laman, under the firm name of O’Hara & La-man. On the first of February, 1866, it was levied by service of garnishment on “Edward White, the President of the Dalton and Jacksonville Railroad Company,” a corporation of this State. The declaration, filed at April Term, 1866, was in the usual form, upon a written promise by said firm, binding the firm “to pay H. P. Harbin the sum of five thousand dollars when we collect from the Rome Railroad Company; that we have now entered suit against said Company. We bind ourselves to pay to the said Harbin, when collected, the money, with interest from this date, or bonds, whichever we may collect.” At October Term, 1866, Laman pleaded the general issue, and that their suit against the Rome Railroad Company was still pending, and they had not collected the money or bonds.</p> <p>On the 8th of August, 1866, the Alabama and Tennessee River Railroad Company, the Georgia and Alabama Railroad Company and the said The Dalton and Jacksonville Railroad Company, distinct corporations, agreed in writing, to “unite together so as to form one consolidated company, with all the rights, privileges and franchises belonging to either” of them in order to act as one company, and complete and own a railroad from Selma to Dalton, via Rome, Georgia. The fifth clause of said agreement was as follows : “All the debts, contacts and obligations and liabilities of each one of said parties to this contract and agreement are hereby assumed by the consolidated company formed under this contract.” The agreement bound each to procure Legislative sanction of this agreement and consolidation. On the 13th of.December, 1866, the General Assembly of Georgia passed the consolidating Act. The General Assembly of Alabama did so on the 8th of Feburary, 1867. These bills changed the names to “The Selma, Rome and Dalton Railroad Company.”</p> <p>On the 19th of June, 1867, Laman’s counsel agreed to >vithdraw his pleas in said attachment upon Harbin’s attorney agreeing that the cause should stand as if no pleas had ever been filed and would take a judgment binding nothing but the debts attached. The Court then ordered the pleas to be withdrawn, and the cause to proceed according to said agreement. In August adjourned Term, 1867, there was a verdict in favor of Harbin against O’Hara & Laman, and judgment was entered for the recovery, “to be levied of the property, effects and credits attached by summons of garnishment in the hands and possession of the garnishee in this case.”</p> <p>Harbin’s counsel then took an order reciting that judgment had been entered on said attachment againt O’Hara & Laman, that service of garnishment “was served on the Dalton and Jacksonville Railroad Company” and “that said Dalton and Jacksonville Railroad Company, whose name has been (since the service of said summons) changed to that of The Selma,-Rome and Dalton Railroad Company, has never filed any answer to said summons of garnishment,” and ending that he recover of “said railroad company, but now known as The Selma, Rome and Dalton Railroad Company, the full amount of said judgment recovered on said attachment, to-wit,” etc., and “that fi. fa. issue against said company for the said sums aforesaid.” Fi. fa. was issued against The Selma, Rome and Dalton Railroad Company. At October Term, 1868, this consolidated company moved to set aside said fi. fa., and vacate the judgment against it, because: first, It was never served ; second, because the order for judgment against it misrecited the facts, and this company had no notice of said order; third, because thew-hole proceedings, from the attachment to the end, are illegal and void, because no cause of action existed against it at the date of suing out said attachment. This motion came on for a hearing at October Term, 1869. The record of the proceedings aforesaid, and the contract of consolidation was submitted to the Court. It was admitted that the consolidated company had no notice of the judgment or proceedings against it, except such as might in law arise from the original service of garnishment, and that Laman’s counsel withdrew said pleas because he ascertained he could not sustain them. The Court refused to set aside the fi. fa., or vacate the judgment, and that is assigned as error.</p>

Arbitration. Jurisdiction. Before Judge Johnson. Schley Superior Court. A ¿mil Term, 1870.