Volume 41 — Georgia Reports

Arbitration and Award. Certainty. Before Judge Alexander. Pulaski Superior Court. October Term, 1869.

Tax. Municipal Corporation. Constitutional law. Before Judge Clarke. Dougherty Superior Court. December term, 1869. . *In October, 1869, a fi. fa. was issued against Livingston, in favor of said city, for $282 00 for “his city tax” of that, year, and $93 00 costs, and was levied upon his property. He filed his oath that the fi. fa. was proceeding illegally, because the City Council had no right to levy said tax, because it was a special tax and not ad valorem.

Minors. Arbitration. Jurisdiction. Before Judge Clark. Chambers. Lee county. September, 1869. R. L. Payne, of Lee county, Georgia, died testate, leaving a wife, three daughters and two sons. His will provided that his executors should pay his debts and then carry on his-farm for the support and maintenance of his family, with power to control his -property and change it as said executors saw proper.

<p>1. BILE O'F EXCEPTIONS—DISMISSAL—CERTIFICATION OF RECORD WITHIN TEN DAYS—DILIGENCE OF COUNSEL.—A failure of the Clerk below to certify the record within ten days from the filing of the bill of exceptions in his office, is no ground for dismissing the cause in the Superior Court; Provided, counsel for plaintiff in error exercised ordinary diligence to have the Clerk below certify it in time. (R.)</p> <p>3. DILIGENCE—CASE AT BAR —MANDAMUS AGAINST CLERK.—What amounts to ordinary diligence depends upon the circumstances of the case. Counsel should apply for mandamus against the Clerk, unless the circumstances render it impi'acticable or unnecessary to do so. (R.)</p> <p>3. ADJUDICATION 'OF CAUSES*—PROVIDENTIAL CAUSE —POSTPONEMENT.—Under the Constitution a cause must be disposed of at or before the second term. Providential cause is not good for postponement except at the first term. (R.)</p>

Ejectment. Evidence. Before Judge Clark. Lee Superior Court. September Term, 1869. This was ejectment in favor of Doe upon the several demises of Joseph Thompson, Joseph Little, Alfred Kersey et al., against Roe, casual ejector, William McAffee and Benjamin Cameron, tenants in possession, for land lot number one hundred and seventy-four, in the thirteenth district of Lee county.

Ejectment. Evidence. Before Judge Clark. Calhoun Superior Court. March Term, 1870. Isaac Colson et al., as heirs-at-law of Dennis Colson, sued Brown for certain lands in said county. One of the plaintiffs testified that in 1839 his father, Dennis Colson, died in possession of said lots, and that dower in them was assigned to his wife, and she held possession; that she died in 1860 or 1861; that Brown was in possession at her death, claiming under Williams & Baldwin.

<p>STATUTE OF LIMITATIONS—WHEN STATUTE BEGINS TO RUN ON OPEN ACCOUNT.*—THe plaintiffs sued the defendants in a Justice’s Court, on an open account for $17 00, the first item of which was charged in November, 1860, and the last item of which was charged on the 15th September, 186S, and the defendants pleaded the statute of limitations in bar of the plaintiffs’ right to recover. The Justice overruled the plea of the statute of limitations, and gave judgment for the plaintiffs. An application was made to the Judge of the Superior Court for a certiorari for alleged error in the ruling of the Justice, which was refused by the Judge:</p> <p>Held, That the amount sued on being one entire account between the parties, the statute of limitations did not begin to run against the same until the date of the last item in said account, and that four years had not expired from the 15th September, 1862; to the time of the adoption of the Ordinance of the Convention in 'November, 1865, suspending the operation of the statute of limitations, and that the plaintiff’s right of actions was not barred.</p>

'Divorce. Alimony. Bill of Exceptions. Before Judge Harrell. Randolph Superior Court. November Term, 1869.

Relief. New Trial. Before Judge Harrell. Randolph Superior Court. November Term, 1869. Lamar sued Thornton, as principal, and Leroy C. Sale, as his security, upon a promissory note for $2,250 00, made by them on the 1st of January, 1862, due the 1st of January, *1864, with interest from date, payable to E. B. Loyless, or bearer. Both defendants were served. In May, 1867, there was a trial, and he obtained a verdict for only $1,522 50.

Construction of Will. Election, etc. Before Judge Harrell. Randolph Superior Court. November Term, 1869.

<p>Wills. Practice. Before Judge Harrell. Early Superior Court. April Term, 1870.</p> <p>In 1864, James Freeman made his last will. So much of it as is useful here, is in the opinion. At that time he had no child living. Pie died in January,' 1867, and in October, 1867, his wife was delivered of a child. Subsequently, his executor propounded said will for probate, and it *was caveated by his wife, upon the ground that the will did not make provision in contemplation of the birth of a child, and was therefore revoked by the birth of said child in 1867. She married Layton and he was made a party with her.</p> <p>On the trial it was shown by the scrivener that he and testator intended to make provision for any posthumous child, and both believed that said will did so. The Court charged the jury, that if the evidence showed, that a child was born to testator' after making the will, the will could not be set up unless the evidence showed that a provision was made in said will in contemplation of the birth of such child, and that that fact could only be shown by the will itself; that whether it did or did not contain such a provision, was a question for the Court, and that he charged them that it did not.</p> <p>The jury found against the will. The executor moved for a new trial, upon the ground that said charge was erroneous. The refusal of a new trial is assigned as error. Upon the reading of the record, this Court would not hear from plaintiff in error.</p>

<p>Practice. Motion for New Trial. Mistake. Before Judge Harrell. Terrell Superior Court. November Term, 1869.</p> <p>John H. Snyder & Company, brought case against James Edmondson, and obtained a verdict and judgment against him at May term, 1869, of said Court. Edmondson’s counsel moved at said term for a new trial, without filing any brief of the evidence. The grounds for new trial w;ere, that the verdict was decidedly against the weight of the evidence, and contrary to law and to the charge of the Court. During said May term, the Judge heard the motion and ordered that plaintiff’s counsel show cause at the next term, why a new trial should not be had, and that meanwhile said judgment be superseded until further order, and that Edmondson’s counsel have until next term to file a copy of said evidence. Said order recited that a brief of the evidence had not been filed, because the interrogatories read by plaintiff’s counsel could not be found, and that it was suggested that plaintiff’s counsel still had them.</p> <p>At November term, Mr. Irvin, counsel for Snyder &■ Company, for cause, showed that said case was tried on Monday, the first day of said May' term, that he remained in Court, until the following Friday and obtained leave of absence from the Court (having finished his business there); the Judge called upon the bar to make objections to such leave, if any they had, but no objection was made; said motion for a new trial was made after he left, nor had he any notice of it, or of said supercedeas, or rule, until four months after the Court adjourned, when he called upon the Clerk for a fi. fa. upon said judgment, and was handed- a copy of said rule; no copy of the evidence has been made out or filed, nor was any cause shown, nor does any exist, why said motion was not made, heard and determined at May term aforesaid; because a correct copy of the evidence can not now be made; and lastly, *that the supercedéas was granted upon the idea that Edmondson’s attorney had carried from the Court the interrogatories used on the trial, which was not .true. These grounds of objection were sworn to.</p> <p>At the hearing, the Clerk of the Court stated, that at May term aforesaid, Edmondson’s counsel called on him for the interrogatories read by Snyder & Company in said case, that he made diligent search in the Clerk’s office for them, but could not find them, and, supposing it to be true, told Edmondson’s counsel that Snyder & Company’s counsel had taken them off; that since last term some of these interrogatories had come into his office, but from what source he did not know. Thereupon Edmondson’s counsel moved to file a brief of the evidence under the approval of the Court.</p> <p>The Judge refused to allow the copy of the evidence filed then, and dismissed the application for a new trial, upon the'ground that, having granted the time upon the assumption that Snyder & Company’s counsel had said interrogatories, when he did not have them, the order should be rescinded. This action of the Court is assigned as error.</p>

Before Judge Harrell. Terrell Superior Court. November Term, 1869. Phinizy sued Treadwell upon his promissory note for $586 00, made the 14th of January, 1862, and payable sixty days after date, to Phinizy, or bearer.

<p>INN-KEEPER—'DILIGENCE REQUIRED IN PROTECTING GUEST’S PROPERTY*—LIABILITY FOR SAFE KEEPING FOR A REASONABLE TIME.—An inn-keeper is bound to extraordinary diligence in preserving the property of his guest entrusted to his care, where the guest has complied with all reasonable rules of the inn. And if the guest, on departing from the inn, leaves his or her baggage with the inn-keeper with his consent, he is liable for its safe keeping as an inn-keeper, for a reasonable time, according to the circumstances of the case.</p>

<p>FRAUDULENT ALTERATION OF DEED—MAY BE SHOWN AT LAW—EJECTMENT.—The fraudulent alteration of a deed by the grantee which voids it, may, in an action of ejectment, be shown at law without going into a Court of Equity.</p> <p>SAME—DEED DRAWN FROM DEFENDANT BY NOTICE-EVIDENCE TO SHOW ALTERATION.—When the deed is drawn from the defendant by notice, and the plaintiff introduces it in evidence, he may show that it has been fraudulently altered by the defendant, the grantee, when he seeks to recover on a breach of a condition subsequent. The deed in such case is a necessary link in his title,'and the plaintiff may show that it has been altered by the defendant.</p>

<p>*Statute of Frauds. Damages. New Trial. Before Judge Harrell. Randolph Superior Court. May Term, 187'0.</p> <p>This case was before this Court before; See 37 Georgia. Reports, 26. Plaintiffs had amended their declarations by charging in one count that the forty thousand cross-ties were to be furnished at twenty-five cents each, and in another that they were to be furnished at the price then usual, and delivered between Dawson in said county, and Wall’s Station in Randolph, on the line of said Railroad. At May Term, 1867, of the Court, defendant’s counsel had pleaded the general issue, and that the contract (if made) was void, because not in writing nor to be performed within a year.</p> <p>When the case was about to be tried, plaintiffs’ counsel moved to strike the pleas, because they were not sworn to. The Judge said he would do so unless they would then swear to them-. Thereupon defendant’s counsel moved to dismiss the case because the declaration did not show jurisdiction in said Court, they contending^ that under the ruling of the Court the defendant had never appeared or pleaded in said cause. The Court overruled the motion, the pleas were sworn to and the trial proceeded. The testimony for the plaintiffs was the same as reported in 37th Georgia Reports, pages 27, et seq., except as follows: Crews said that no price was mentioned in his proposal to Powers; that he told Bryan it was twenty-five cents, because he understood that to be what others were getting. He did not testify on this trial that Powers offered to contract for twenty thousand, or that he, Crews, refused to contract for less than forty thousand, because a smaller contract would not justify the preparations, or that Powers said he would consult the Supervisor as to whether forty thousand were needed. Nor did plaintiffs’ counsel read- in evidence the letter used on the former trial,, but its contents were proved without objection. And another witness testified as Davis did. Plaintiffs testified that they had paid the hands in advance, and because of the stopping of said work, they went off owing plaintiffs some $300 00; one of them testified it threw him out of employment, *and that he supposed he lost thereby $1,500 00; they testified that the land, provisions, etc., were bought by them pursuant to said contract and to carry it out; that the land was almost worthless except for timber for cross-ties; that they sold it for $700 00 on credit, and had not collected the money; they paid $150 00, each, for two wagons, $100 00 in gold for axes, bought one thousand pounds of bacon, saws, etc., etc., mules, etc. The bacon was used up by the hands, or stolen after they left, the wagons were worn out, the mules greatly injured, so that one which cost $200 00 sold for $140 00, and the other was worthless, and the other plaintiff devoted much time to the work, his time being worth $100 00 per month.</p> <p>Heard, who was but an Assistant Supervisor, the President of the Company, Powers and Brantley, were all sworn and examined. They testified that in 1865 the defendant needed many cross-ties and were furnishing some to the Macon and Western Railroad Company, for accommodation, etc., at their cost. Each of them said he had never made any contract 'with Crews or with Bryan, or either of them. They said the habit was for the agents of the defendant to give to any one wishing to get cross-ties, printed specifications as to the kind of ties, etc., and receive such as were good and needed by them, paying the then usual price. Powers said Crews did propose to furnish ties, but not a particular number, nor at any price; that he never furnished any, nor was he, Powers, ever advised in any way, that Crews had a contract, or had transferred it, or that plaintiffs were working under it; that he paid thirty-five cents for plaintiffs’ ties, because that was the price at the time of delivery; knew nothing of plaintiffs’ preparations for doing said work, and stopped them, as they did others, because the defendant and the Macon and Western Railroad Company needed no more ties at that time. And Heard testified that while he knew that plaintiffs were getting ties, he supposed they were getting them as others, and not under any special contract. Nor did he or Powers remember the conversations with them, showing that such a special contract was recognized, as testified to by plaintiffs.</p> <p>*The jury found for the plaintiffs for $2,000 00 and costs. Defendant’s counsel moved for a new trial upon the grounds that the Court erred in not dismissing said case for want of jurisdiction considering when and how said motion was made; because the verdict was without evidence to sustain it and contrary to law. The Court granted a new trial and that is assigned as error.</p>

Default. Practice. Before Judge Johnson. Talbot Superior Court. September Term, 1869. (This cause was continued upon a suggestion of a diminution of the record.) Carthart & Brother, of New York, brought assumpsit against Durden for goods sold and delivered. No plea was filed, but on the first trial the verdict was for defendant, and plaintiffs appealed. To the declaration was attached a bill of particulars with the date of sale and price of each article set down.

<p>Scaling Ordinance. Relief. Before, Judge Johnson, Talbot Superior Court, March Term, 1870.</p> <p>Willis, as administrator of John T. Nelms, sued Owen on his note, for $457 70, payable to Nelms or bearer, made on the 1st of October, 1866, and due one day after date. Owen pleaded that on the . . . day, of . . ., in 1862, he borrowed of Nelms, $250 00 in Confederate currency, and $50 00 in bank bills, and gave Nelms his note therefor, for $300 00, due on the 25th of December, 1862, and that it was then and there stipulated and agreed by and between him and Nelms, that said note was to be paid at its maturity, in Confederate Treasury notes, which, at the date of the note and its maturity, were worth but twenty cents in the dollar, as compared with gold, that the note sued on, was at its date given by him to Nelms in renewal of said old note; further, that after the maturity of the old note, .he, in pursuance of said original agreement, at the time last aforesaid, tendered Nelms the principal and interest due on said old note, in Confederate money, and Nelms refused to accept it in payment of said old note. Plaintiff demurred to these pleas, and the demurrer was sustained. Thereupon,' plaintiff, took judgment for the principal and interest, due on the new note with costs. The. defendant assigns as error the sustaining of said demurrer.</p>

Equity ,Pleacbngs. Fraud. Charge of Court. Exceptions. Before Judge Johnson. Schley Superior Court, October Term, 1869. Benajah T. Peacock, Menzes R. Barnes, and Jacob M. Gay, made and delivered to George W. Mott, their joint and several promissory note for $687 50, dated the 25th December, 1866, due twelve months after date, and payable to said Mott, or bearer. On the 26th of December, 1867, Mott sued said parties on' said note.

Constitutional law. Before Judge Johnson. Schley Superior Court. October Term, 1869. This case was before this Court at December Term, 1867. The Judgment was affirmed: Crim v. Sellars, 37th Georgia Reports, 324.

Homestead. Landlord and Tenant. Estoppel. Before Judge Johnson. Schley Superior Court. October Term, 1869. These causes were by consent argued here together. The facts necessary to an understanding of the opinion appear on it. It will also furnish a good reason for not attempting a more detailed or particular account of them here. The original papers were lost, and just before argument here, copies were established.

Equity. Administrators. Before Judge Johnson. Talbot Superior Court. September Term, 1870. Mahone’s bill contained the following averments: John Howard died, intestate, in 1863, leaving lands, slaves and other property. Mahone was duly appointed his administrator. He sold some of the personal property and lands.

<p>Continuance. Evidence. Before Judge Johnson. Muscogee Superior Court. November Term, 1869.</p> <p>H. C. Mitchell and Robert M. Gunby, partners under the style of H. C. Mitchell & Company sued Woolfolk Walker and Henry A. Chapman, partners, under the style of Walker & Chapman, upon an open account for $1,757 78, for goods sold and delivered. No credits appeared upon their bill of particulars. The plea was payment in full, without specifying how or when. When the cause was called defendants moved for a continuance on the following grounds, supported by the oath of said Walker; That before the Court he had delivered to plaintiffs a draft for $500 00, drawn by Walker & Chapman, and accepted by Gray, Bedell & Hughes, which was to be applied as part payment of said account, that said Gunby endorsed said draft, deponent had paid it and delivered it to his attorneys; that they had searched for it and could not find it; that if deponent had it, it was locked up in his mother’s iron safe, and that she was in New Orleans, and he could not open the safe; that, had he not believed his attorneys had it, he would have searched said safe for it. Further he said he had delivered to one of plaintiff’s attorneys a memorandum of said acceptors, by which he could identify said draft, and that said attorney had promised to bring it into Court, but had failed to do so. The continuance was refused.</p> <p>One of the plaintiffs testified to the correctness of their account, and they closed. Walker then testified that he delivered to plaintiffs four drafts, for $500 00 each, and each *accepted by Gray, Bedell & Hughes, one drawn by Walker & Chapman, and the other by himself, for Mrs. C. M. Walker; and that the one drawn by his firm was to be applied to said account, and the others to Mrs. Walkers’ account; that he acted as agent for Mrs. Walker, and for his firm, and made said arrangement with said Gunby, and that no credit had been given for said drafts.</p> <p>In rebuttal, Gunby testified that Walker made the arrangement with him as to purchasing said goods, and delivered to him two or three drafts, of $500 00 each, two drawn by Walker & Chapman, and that he then and there “credited the accounts of Walker, as he directed, giving the particular account credit, as directed by Walker.” In surrebuttal, defendants offered in evidence the pleadings in a suit then pending, in favor of said plaintiffs, against Mrs. Walker, to show that the account in it, sued upon, had no credits upon it, except one by a draft of $500 00. The Court rejected this evidence because of irrelevancy.</p> <p>The jury found for the plaintiffs, for the full amount sued for. The defendants say the Court erred in refusing to continue said cause, and in rejecting said record.</p>

Pleadings. Scaling Ordinance. Before Judge Johnson. Muscogee Superior Court. November adjourned Term, 1869. Julian Hartridge, John Chisolm and Thomas E. Loyd sued Daniel Fry upon his promissory note, payable-to plaintiffs, or order, for $13,200, made on the 23d of August, 1864, and. due ninety days thereafter.

Intruders, Before Judge Johnson. Muscogee Superior Court. November Term, 1869. On the 3d of February, 1868, Robert N. Simpson made an affidavit under section 4000 of Irwin’s Revised Code, to eject Jesse Wall from certain premises therein 'described.

Pleadings. Stamps. Before Judge Johnson. Muscogee Superior Court. February Term, 1870.

Livery Stable Keeper’s lien. Pleadings. Before Judge Johnson. Muscogee Superior Court, November Term, 1869.

Statute of' Limitations. Bill of Exceptions. Before Judge Johnson. Muscogee Superior Court. February Term, 1870. In 1867, Ragland, as administrator, de bonis non, of George W. Hardwick, sued Barringer, et al., upon their joint and several promissory note, payable to himself, as such, dated December 15th, 1853, and due twelve months after date. They pleaded the Statute of Limitations. At the trial, plaintiff’s attorney read in evidence the note, and closed.

Pleadings. Evidence. Interrogatories. Before Judge Johnson. Muscogee Superior Court. November Adjourned Term, 1869. Hall, Moses & Company, brought complaint against Mott, and Loyd Bowers, as “joint owners of steamer River Bride/'' upon the following promissory note: “Columbus, 'Georgia, May 1, 1861. $684 19. Sixty days after date, we promise to pay to Hall, Moses & Company, or order, Six Hundred and Eighty-four 19-100 Dollars, value received.

<p>WITNESSES—DEATH OF ONE PARTY—COMPETENCY.*— In a suit on a partnership contract against the administration of a deceased partner and the surviving partner, the other party to the contract may, notwithstanding the death of one of the partners, be a witness, if it appear that the contract was made with the surviving partner, or with both the partners actually present and engaging in the transaction, and this especially so if the surviving partner has himself been sworn as a witness.</p>

<p>NEW TRIAL—EVIDENCE TO SUPPORT VERDICT—DISCRETION OF COURT—TEN PER CENT. DAMAGES.*—A motion was made for a new trial, on the ground that there was no evidence to support the verdict, and it appearing from the evidence contained in the record that there was sufficient evidence to support it, and no error in the charge of the Court to the jury:</p> <p>Held, That this Court, in accordance with its repeated rulings, will not interfere with the discretion of the Court below in -refusing to grant a new trial, and that ten per cent, damages be awarded, as provided by the 4221st section of the Code.</p>

Jurisdiction. Exemption of Personalty. Before Judge Cole. Bibb Superior Court. November Term, 1869. Rutherford was transferree of a judgment in favor of one Holdridge, against C. A. Wright, obtained on the 26th of January, 1868. . On it, one Shorter was garnisheed.

<p>^Insurance. Waiver. New Trial. Before Judge Cole. Bibb Superior Court. November Adjourned Term, 1869.</p> <p>This cause has twice before been before this Court: See 36th Georgia Reports, 623, and 37th Georgia Reports, 672. In the 37th Georgia Reports, the main facts are stated. It is necessary to call attention to some of them, more especially to present the present case. On the 24th of July, 1865, Plant & Cubbedge shipped by the Macon and Brunswick Railroad, from Macon to Buzzard Roost, (Station No. 3 on said railroad,) thirteen bales of cotton, to Hotchkiss & Nunnally. On that day the defendant insured it for the sum of $2,000 00, the insurance to begin “immediately following the delivery thereof on board of the railroad cars at Macon, and so shall continue and endure until said goods and merchandise shall be safely landed at Savannah, (Georgia,) if done in forty days.” Said policy further stated: “This insurance is declared to be on thirteen bales of cotton, from Macon to Buzzard Roost, on the Macon and Brunswick Railroad cars, from Buzzard Roost to Darien, by the flat of Hotchkiss & Nunnally, and from Darien to Savannah, by steamer or sail vessel, and risk to allow forty days for the trip, unless sooner made.”</p> <p>The flat belonging to Hotchkiss & Nunnally, at Buzzard Roost, sunk, before said cotton was put upon it. L. P. Choice & Company were building another box, at that point. It was not finished and the river was low. These causes detained the plaintiff’s cotton. Cubbedge informed defendant’s agent of the sinking of said flat, told him of the detention, and asked him to strike out from the policy “flat of Hotchkiss & Nunnally,” and to insert in lieu thereof “box of L. F. Choice & Company,” and the agent did so. Cubbedge testified that this change in the policy was made on or about the 14th of August,' 1865. (The agent testified that it was made some time in July.) On the 4th of September, 1865, the cotton started from Buzzard Roost to Darien on said box of Choice & Company, and proceeded well till the 16th of September, when it run under a stooping tree and was sunk, *etc. These facts were shown upon the trial, and with them was evidence of a sale of so much of the cotton as was saved from the wreck. The Court charged the jury that “unless the cotton insured was stopped by stress of weather, (which means storms, tempest, or unavoidable accidents,) plaintiffs can not recover.” The jury found for the plaintiffs. Defendant moved for a new trial, upon the grounds that the verdict was contrary to the evidence and to law, in that the forty days were past before the loss, and because the verdict was contrary tp said charge. The Court granted a new trial, and that is assigned as error.</p>

<p>WRIT OF ERROR—APPELLATE PRACTICE—FAILURE OF CL0RK TO SEND RECEIPT FOR RECORD—NO GROUND FO'R DISMISSAL.—The failure of the clerk below to send to the Clerk of this Court the receipt which, by Rule 11th of this Court, he should take from the Post Master or Express Company, for the record, when he delivers it for transmission to this Court, is no ground to dismiss the writ of error. The Rule is but directory to the Clerks below. (R. See end of Report.)</p> <p>DORMANT JUDGMENT—HOW DORMANCY PREVENTED* —ENTRY UPON EXECUTION WITHIN SEVEN YEARS FROM ITS DATE.—-A judgment on which an execution issued within seven years from its date, it pot dormant if there be a proper entry upon the fi fa. within seven years from its date, even though the entry on the fi. fa. be more than seven years after the date of the judgment.</p>

Nuisance. Costs. Before Judge Bigby. Troup .Superior Court. November Term, 1869. Wilkinson, and other citizens of Troup county, and freeholders, made affidavit that the health of their community was injured by the mill-dam of one Traylor, in said county, and sought to have it abated as a nuisance. A trial was had and the jury found for the defendant, with costs of suit. Thereupon a judgment was entered up against said citizens, the informers, for the costs of said proceeding.

<p>Landlord and Tenant. Scaling Ordinánce. Before Judge Pope. Fulton Superior Court. November Term, 1869.</p> <p>Clark sued McCroskey upon his promise to pay rent of a store-house in Atlanta, from the 2d of May till the 2d of December, 1864, at $1,000 00 per month. McCroskey pleaded that dollars in his promise meant Confederate currency which were then worth but four cents in the dollar, and contended that the demand should be scaled according to equity; that he had paid $1,000 00 in such currency on the 2d . of May, 1864, and another $1,000 00 on the 2d of June, 1864, and that (on or about the 23d of July, 1864, he was compelled to abandon the occupancy of said premises, in consequence of the shelling of Atlanta by the Federal army, under General Sherman; that thenceforth up to the time of its destruction, he was unable, for the same reason, to occupy said property, and on or about the 14th of November, 1864, the same was burned by said army, by means whereof the value of said property for rent was almost if not entirely destroyed; and he prayed that the equities between the parties be adjusted by the jury under the Ordinance of 1865.) Clark’s attorney demurred to that part of the pleas contained «in (). The demurrer was overruled.</p> <p>*They introduced McCroskey’s promise to pay for said rent $1,000 00 per month, as aforesaid; showed by a witness the character and situation of the house, that it would have rented for $150 00 per month in specie before the war, and would then rent for $200 00 per month in Greenbacks, and that others would have taken it in May, 1864, at $1,000 00 per month in Confederate currency. Plaintiff closed. McCroskey testified that he occupied said premises for -two months and twenty days from the 2d of May, 1864; that about the 22d of July, 1864, some of General Wheeler’s men entered the store, broke down the doors, and in a few days afterwards, by the shelling of the city by the Federal army, he was compelled to abandon the house; that for the same reason he was kept from occupying it until it was burnt up on the 14th of November, 1864, by said Federal army; that after the entrance of said army into Atlanta, better stores could be had for.nothing, owners being anxious to have their premises occupied in order to preserve them; that his principal business was selling slaves, and the principal value of said store was in that it had a sort of jail in the rear to keep run-a-way slaves. Another witness testified to the same facts. The payment of the $2,000 00 in May and June in Confederate currency was shown. By consent, Barber & Son’s table, showing the value of Confederate currency, was considered as in evidence.</p> <p>The Court charged that there was a general rule of law that when real property was rented for a definite term, the tenant was liable to pay the rent even though the property should be destroyed or the tenant be deprived of the possession of the same, unless the destruction or loss of possession resulted from some act of the landlord, or from a defect in; his title. There is, however, a certain class of contracts, 'commonly known as “Confederate contracts,” being all those made between the 1st of June, 1861,_ and the 1st of June, 1865, with reference to which a special rule has been adopted, which rule is that either party, in any suit for the enforcement of any such contract, may, upon the trial, give in evidence the consideration and the valtie thereof at any time, *and the intention of the parties as to the currency in which payment was to be made, and the value of such currency at any time, and from all the evidence thus submitted, the jury may render a verdict upon principles of equity; that therefore he declined to charge that the destruction of the tenement or loss of the possession bv any casualty not caused by the landlord or defects in his title, did not relieve the -tenant from payment or rent during the continuance of the term for which he rented; neither would he charge that such destruction or loss relieved the tenant from paying rent; but from all the evidence submitted, under said special -rule, the jury might find a verdict upon principles of equity.</p> <p>The jury found for plaintiff for $43 99 and costs. His counsel moved for a new trial, upon the grounds that the Court erred in overruling said demurrer and in said charge. The new trial was refused, and that is assigned as error.</p>

Married Women. Promissory Notes. Before Judge Pope. Fulton Superior Court. November Term, 1870. • Clark & Grubb sued Catharine Valentino and Gabriel Valentino upon a promissory note, for $195 00, dated the 7th of January, 1860, payable one day after date to said plaintiffs or bearer.

.Homestead. Before Judge Kirby. Walker Superior Court. March Term, 1870. In January, 1870, Lazenby applied to the Ordinary of said county for the setting apart, as his homestead, of three hundred and forty-five acres of land, on which he lived, and for the exemption of certain personalty. In his petition this property was fully described, and he claimed that he was entitled to it because he was the head of a family, composed of his mother and two sisters.

Criminal Law. Arrest of Judgment. Before Judge Kirby. Polk Superior Court. February Term, 1870.

Tax. Corporations. Constitutional Raw. Before Judge Parrott. Bartow Superior Court. April Term, 1870. On the 16th of March, 1869, a House bill amending the several Acts incorporating the town of Cartersville, was read the third time and passed in the Senate. 'On the 18th of March, the General Assembly adjourned, sine die. Section 1st of said Act extended the corporate limits.

Use of Water Courses. Before Judge Parrott. Bartow Superior Court. March Term, 1870.

Money had and Received. Contracts. Evidence. Before Judge Andrews. Hancock Superior Court.

<p>BANKRUPTCY*—HOMESTEAD—EXEMPTION FROM LEVY AND SALE EVEN' FOR PURCHASE MONEY.†—The homestead and exemption provision of the Code is the exemption law of this State, referred to in the bankrupt act of the United States, and, as by the Code, said homestead is not subject to levy and sale, even for the purchase-money, a judgment against a discharged bankrupt, though obtained before his discharge, cannot levy upon and sell a homestead for the bankrupt, set apart by the bankrupt officials, even though said judgment be for the purchase-money of the same.</p>

<p>Constitutional Law. Slave Notes. Before Judge Andrews. Oglethorpe Superior Court. April Term, 1870. ‘ •</p> <p>Jennings,' as administrator of one Mattox, filed his bill for direction and marshalling the assets of' said estate, against the creditors of Mattox. Clark, as trustee for Mrs. Hayes, was one of Mattox’s creditors, and was claiming part of the assets upon a promissory note, given by Mattox, on the 6th of January, 1860, to him, as such trustee, for $1,900 00. On it $135 00 had been paid on the 21st of January, 1861, and $200 00 on the 1st of August, 1862. It was admitted that this note was due and unpaid, and that there was a sufficiency of assets for its payment in part. But it being also admitted that the note was given for a slave, the administrator contended that the Court could not order anything paid to said trustee on said note.</p> <p>There was no dispute as to any other fact. Thereupon the Chancellor entered a decree excluding said note from participation *in the said assets. He put his judgment upon Article V, Section XVII, Clause I, of the Constitution of Georgia, of 1868, holding the same to be constitutional.</p> <p>(Here counsel for plaintiff in error submitted the cause without argument, stating that his object was to take the cause to the Supreme Court of the United States.)</p>

Constitutional Law. Universalism. Before Judge Andrews. Oglethorpe Superior Court. April Term, 1870.

Contracts. Waiver. Motion for New Trial. Bill of Exceptions. Before Judge Gibson. Washington Superior Court. October Term, 1869.

<p>Order of Argument. Claim. Honiestead. Before Judge Snead. City Court of Augusta. November Term, 1869.</p> <p>In December, 1868, Bartlett sued out a distress-warrant against Russell individually. In May, 1869, the sheriff levied said warrant Jupón the stock in trade of the defendant and in his possession.” Russell claimed the stock as next friend for his wife and children. When the cause was to be tried, the parties consented that the Judge should try it without a jury. The plaintiff’s counsel claimed the right to open and conclude the case, but this was denied by claimant’s counsel. The Court decided in favor of the latter. Counsel for plaintiff then moved to dismiss the cause because Russell could not assert the rights of his wife and children growing out of the Homestead Act of 1868, by a claim, but could only redress the wrong perpetrated by a levy on such property by an action of trespass against the sheriff. This motion was overruled.</p> <p>The claimant’s attorneys then offered in evidence the petition and order, showing the setting apart of certain articles therein named, under the Homestead Act, which order was *passed in November, 1868. A part of said property, as appeared by the record, was “eight hun•dred and fourteen dollars and fifty cents in his stock in trade, consisting of watches, jewelry of all kinds, fancy goods and such articles usually kept in a watchmaker’s or jeweler’s store, and fixtures for the same.” This evidence was objected to, because said Homestead Act was unconstitutional as against debts due before its passage, and because “said Act did not apply to a stock of goods constantly changing in character and value, and because no schedule of the stock was filed in the petition,” as shown bytsaid record. The Judge said he would presume the Ordinary did his duty, would not review his proceedings in this way, and allowed the petition' and order for exempting said property for the Use of Mrs. Russell and her children to he read as evidence.</p> <p>Russell then testified that the goods levied on were identically those set apart by said order, and that it was all the property he owned at the filing of said petition, except a due bill of one.......which he then and there, in open Court, offered to plaintiff; that all the property levied on had been sold since the claim was filed, to one Long, who stood his security on the claim bond; that Long had paid him nothing for it, but was his friend, and he preferred Long; that plaintiff’s debt was for house rent due in 1867, but plaintiff had sued him and he did not intend to pay plaintiff until he was ready to do so ; that he was now carrying on business for Long. Here claimant’s case was -closed. Plaintiff’s counsel read as evidence his distress-warrant, and it was admitted that the goods levied upon were, at the date of the levy in possession of defendant, and .that he was still carrying on the business -of a jeweler. Upon these facts the Court held the property not subject to the payment of said debt. Plaintiff’s counsel say it was error to refuse him the right to open and conclude the cause, to refuse to dismiss the claim, to admit the record and to decide as the Court did.</p>

<p>Jurisdiction. Slave Notes. Before Tudge Snead, of The City Court of Augusta. February Term, 1870.</p> <p>On the 14th of February, 1860, Spires made his promissory note due one day after that date. Walker sued him upon said note and procured ■ a judgment against him on the 29th of May, 1866. On the 25th of January, 1870, the fi. fa. issued upon said judgment, was levied upon Spires’ property. At February Term, 1870, of said Court, Spires’ counsel moved to set aside said levy, because said note was given for slaves. The parties were at issue thereupon. Walker’s counsel admitted that, the consideration of said note was slaves. No other evidence was offered. Walker’s counsel insisted that he had a rieht to have the jury pass upon the legality of said levy. Spires’ counsel objected upon the ground that, the admission of Walker’s counsel ousted the jurisdiction of the Court, and the jury had nothing to try. The Court allowed the case argued before the jury. Argument* concluded, the Court charged the jury, that the section of the Constitution of Georgia, of 1868, denying jurisdiction to the Courts to enforce any fi. fa. founded upon a debt, the consideration of which was slaves or the hire thereof, was in conflict with the Constitution of the United States and void. He was requested to charge the jury, that under said admission they should find that the consideration of the debt on which this fi. fa. was founded was slaves. He refused so to charge. The jury returned a verdict as follows: “We, the jury, sustain the levy.” Thereupon the Court ordered said fi. fa. to proceed.</p> <p>Spires’ counsel sued out a writ of error upon the grounds that the Court erred in allowing argument before the jury, and in allowing them to pass upon said issue, after said admission, and in charging as he did, refusing to charge as requested, and in ordering the fi. fa. to proceed.</p>

Trusts and Trustees. Purchaser. Notice. Before Judge Robinson. Morgan Superior Court. May Adjourned Term, 1869. *This cause was before this Court before: See Thrasher et al., v. Partee and wife, 37th Georgia Reports, 392, where the bill and answers of Thrasher are fully reported. The sheriff returned on the 8th of June, 1867, that the bill was served on Lane by leaving a copy at his most notorious place of abode.

New Trial. Before Judge Schley. Chatham Superior Court. May Adjourned Term, 1869.

<p>CONSTRUCTION OF INSTRUMENT—WHETHER DEED OR WILL—WILL.*—An instrument in writing executed by B., in the form of a deed, was offered in evidence as a deed, which was objected to on the ground, that no present interest in the property was conveyed by it, and it was therefore a testamentary paper and not a deed. The instrument contains the following words: “I give and devise unto them (his three sons) and their heirs, the following property, all my estate, both real and personal, consisting of lands, money and evidence of debt, horses, cattle, hogs and all other stock of all descriptions that I may die possessed of, to them and their heirs,” etc.:</p> <p>Held, That this was a testamentary paper and not a deed; that no present interest in the property was conveyed under i.t, but only such of the described property as the maker of the instrument should die possessed of was conveyed by it. If he was possessed of all the property mentioned in the instrument at the time of his death, then it would have passed under it if legally executed, but if he was not possessed of all, or any of the described property at the time of his death, then none of it would have been conveyed to his three sons. The instrument conveys only such of the described property as the maker thereof “may die possessed of.” No present interest in the property was conveyed to the sons, and until the death of the maker of the instrument, no one could know what portion of the property described therein he would die possessed of; consequently, the instrument conveyed only such portion of the described property as he might be possessed of at the time of his death, and is in law a testamentary disposition of the property, to take effect at the death of the maker of the instrument.</p>

<p>Criminal Law. Before Judge Sessions. Cherokee Superior Court. July, 1869.</p> <p>Rhodes and- James Mullins were indicted jointly for horse-stealing. When Rhodes was about to be tried, his counsel moved for a continuance because of the absence of Mullins’ wife who had been subpoenaed, and who was absent without Rhodes’ consent; but where she was or what he expected to prove by her, was not stated. The motion’ was overruled. They then moved to change the venue because an impartial jury could not be had in said county. In support of this, they examined several citizens who swore that the excitement was very great when the stealing occurred, but that they thought an impartial jury could now be had. That motion was overruled and the trial was begun. That'Rhodes and Mullins, with one Baty, were the persons who committed the larceny, was shown by Baty, who had turned States’ witness, and one Reese, and by other witnesses testifying to facts corroborative of what Baty said. For the defense, several witnesses testified that they knew Reese’s character and would not believe him on oath, and a smaller number testified that they knew it and would believe him. Two witnesses testified that they knew Baty’s character and would not believe him. A seventeen year old boy, who was not Rhodes’ son, but who said Rhodes and his mother lived together, ^-'undertook to establish an alibi for Rhodes. After argument had the jury found Rhodes guilty. His counsel moved for a new trial, upon the grounds that the Court erred in not continuing said case, and in not changing the venue, because Baty had been allowed to testify, against him, when it appeared he had been forced to confess the crime by threats of bodily harm, because one Wheeler was. not an impartial juror, because the sheriff who summoned the jury was interested, in that Rhodes had once escaped from him while under said charge, and the sheriff was indicted for his escape, and because the verdict was contrary to the evidence.</p> <p>Accompanying the record are certain objections as to the jurors, but when they were made or what was done with them, does not appear. It did appear that Baty had been threatened before he confessed. It did not appear that the sheriff was indicted. -Some one made an affidavit that Wheeler had said before the trial, that Rhodes was a bad man and ought to have his neck broke, but Wheeler swore that the remark was idle, made some time before the trial and never thought of by him afterward, that he was friendly to Rhodes and would have gladly cleared him if his conscience would have allowed it, and that he had given him a fair trial, etc., etc. There was no affidavit by Rhodes or his counsel that what Wheeler had said was not known before the trial. The Court refused a new trial, and error is assigned on each of said grounds.</p> <p>(The case was here at December Term, 1869, but upon a suggestion of a diminution of the record it was continued.)</p>

<p>CHARGE OE COURT—SUPPORTED BY PROOF—NOT ERROR.*—A charge of a Judge in a criminal case, that if certain facts are proven, the prisoner is guilty, is no error, if the charge is supported by the proof.</p> <p>SAME—JURY JUDGES OE LAW AND FACT IN1 CRIMINAL CASES—MUST REGARD CHARGE AS LAW.†—While jurors are judges of the law and facts in criminal cases, they should receive the law from the Judge, and they do wrong if they do not regard his charge as the law. (R.)</p>

Negroes. Illegitimates. Habeas Corpus. Before Judge Clarlf. Dougherty County. Chambers, February, 1870. Said Dinah and Hector are negroes. They had been slaves, lived together as man and wife and had issue, a boy, now ten or eleven years old. After the birth of this boy they separated, and though belonging to the same master and living at the same place, they did not maintain the relationship of husband and wife at the date of emancipation 'from slavery.

<p>Constitutional Law. Jurisdiction of Ordinary. Before Judge Harrell. Webster Superior Court. March Term, 1870.</p> <p>The Ordinary of said county issued a fi. fa. against Browning, for $50 00 and costs, for peddling in said county without license. Matthew’s, the sheriff, levied it upon Browning’s property, and he filed an oath of illegality thereto, and being unable to give bond to replevy the property, deposited $100 00 with the sheriff, and thus replevied it. He then sued out a possessory, warrant against the sheriff for the $100 00, claiming that the Ordinary had no jurisdiction to issue such fi. fas. Upon the trial, various points were made and decided which are not material here. The Court held that the Ordinary had no right to issue the fi. fa., and that, therefore, the proceedings under it were illegal, and ordered the sheriff to deliver the $100 00 to Browning. This is assigned as error.</p>

<p>Railroad Companies. Minors. Measure of Damages. Before Judge Harrell. Randolph 'Superior Court, May Term, 1870.</p> <p>Charles Rogers was killed in 1866, by an engine on the Southwestern Railroad. His widow brought case therefor, against the railroad company, returnable to November Term, 1868, of said Court. Pending that action, the widow died leaving divers minor children of herself and said Charles, surviving. John David, a proch'ien ami of said minors, was made a party plaintiff to said action, and prosecuted it for the benefit of said minors. At November Term, 1867, said cause *was tried, and the plaintiff was non-suited. The cause was brought to this Court, .and at its June Term, 1868, was dismissed for want of prosecution. In July, 1868, within two years from the death of their father, said David as such prochein ami, again brought case against said company for said killing. The company pleaded the foregoing facts in bar to this last action, and the plea was demurred to generally The Court overruled the demurrer, and held that under said admitted facts this last action could not be maintained. This is assigned as error.</p>

Case against County. Demurrer. Before Judge Johnson. Chattahoochee Superior Court. March Term, 1869. Scales brought case against, the Ordinary of said county, in which he averred, that in 1869, “there was, and thence hitherto has been and still is, a certain public road in said county, known as the road 'leading from Jamestown to Massey’s church, etc., the same heading a certain creek, in said county, known as the Oswitchee creek.

Statute of Limitations. Interrogatories. Before Judge' Johnson. Muscogee Superior Court. November Term, 1869. On the 19th of October, 1867',’Kellogg brought complainant on an open-account against A. T. Calhoun, as administrator of. Alexander Calhoun, for the value of a half pipe of brandy, sold to deceased on the 1st of July, 1856. The pleas were the general issue, the Statute of Limitations (four years,) and plene administravit.

<p>REMOVAL OE CAUSES—DIVERSE CITIZENSHIP—PREJUDICE OR LOCAL INFLUENCE—PARTIES CLAIMING PRIOR LIENS—FINAL DETERMINATION 0¡F CONTROVERSY.*— Mathew B. Peters had a wife, Thalia Peters, and three minor children, in New York. A total divorce was adjudged between them in the proper Court in that State, and it was further adjudged that he pay to his divorced wife ten dollars per week during their joint lives, as alimony. Mathew B., afterwards married another wife, Anna M. Brown, in .Georgia, who had one child, when lxe became a lunatic, and Colonel Best wast appointed his guardian.</p> <p>Thalia, his first wife, a citizen of New York, filed her bill in equity in the Superior Court of Bibb county, Georgia, setting forth the judgment for alimony, and charging that it was wholly unpaid, and praying that the lands of her late husband be sold by the guardian, and the money raised applied in paying off her claim. Mathew B. Peters died pending this suit, and Best became his administrator.</p> <p>Anna, his last wife, commenced her proceeding in the Court of Ordinary of Bibb county, to have a year’s support allowed her and her minor child out of the estate, in preference to all other liens. The Commissioners, by their return, allowed her $1,800 00. And Thalia, the first *wife, appeared in Court and controverted Anna’s right. The Court of Ordinary refused to approve the return of the Commissioners, on the ground that the three .minor children of Thalia were not provided for by the return, and on the further ground that Thalia’s judgment, by the law of New York, is a special lien on the estate, higher than the, claim of Anna, to a year’s support.</p> <p>Best, the administrator, then filed his amended answer to Thalia’s bill against him, in the nature of a cross-bill against thern both, and against various other defendants claiming to have the highest lien on the fund, for bills for the lunatic while in the asylum, bills for nurses and attendants, doctor’s bills for services in his last illness, burial expenses, etc.</p> <p>Thalia Peters then filed her affidavit, stating that she has reason to, and does believe, that from prejudice, or local influence, she will not be able to obtain justice in the State Court, and prayed that the case pending between the said Anna and herself be transferred to the Circuit Court of the United States:</p> <p>Held, That the Court below erred in granting the order of transfer, as there cannot, in' this case be a “final determination of the controversy, so far as it concerns her,” in the Federal Court, unless all the other parties to the litigation, claiming prior liens upon the funds of the estate, were before the Court. Warner, J., dissents.</p> <p>CONTINUANCE—ABSENCE OF COUNSEL.—When one of the three attorneys of a party is sick, and.the other two are at another Court, this Court will not continue the cause for their absence. (R. See Report.)</p>

Set-off in Equity. Before”Judge Green. Newton Superior Court. March Term, 1870. The bill of Tommey & Stewart against Ellis was filed on the 15th of December, 1869, and made this case: Tommey and. Stewart, as partners, A. D. Hammett and G. J. Orr, were partners in the lumber business, under the style of Hammett, Orr & Company. In the latter part of 1865, Orr, on behalf of said firm, contracted with Ellis for timber to be delivered at their mill, to be sawed on shares.

New Trial Refused. Before Judge Bigby. Troup Superior Court. November Term, 1869. Thornton sued McLendon on an open account for $252 83, besides interest, running from April 14th, 1861, to the 1st of January, 1865, all the items of which were for work done in a blacksmith’s shop, except $65 00 for “amount-of Moseley’s note retained by McLendon.” The plea was the general issue.

New Trial. Judge pro hac vice. Bill of Exceptions, Before Honorable John Collier, presiding by consent. Fulton County. Chambers. Held: that while they had the right to look into the evidence and say whether the motion for new trial should he granted, (even if Judge Collier had erred in refusing to decide upon the motion,) and might hear suggestions from defendant’s counsel, as amici curiae, on the evidence and charge of the Court, counsel for defendant had no right…

Equity. Estoppel. Before Judge Kirby. Eloyd Superibr Court. July Adjourned Term, 1869.. The bill of Frances Morris made the following case: She is a widow seventy-seven years old, infirm and poor. William Morris, her husband, died in 1857, leaving an estate worth $30,000 00, and her and seven children as his heirs. His son, Samuel A. Morris, became his administrator, sold and disposed of his estate, but refused to pay to these heirs their distributive shares.

Constitutional Law. Before Judge Parrott. Gordon Superior Court. April .Term, 1870. The facts of this case are fully stated in the concurring opinion of Judge Warner, [q. v.].

Criminal Law. Obscene Language. Before Judge Andrews. Oglethorpe County. January, 1870.

Statute of Frauds. Resulting Trusts. Before Judge Andrews. Hancock Superior Court. April Term, 1870. This was a bill by Mrs. Lawrence praying that Rives should be declared her trustee for certain land which he claimed adversely to her, because of certain facts averred by her, and which are fully reported in the opinion.

<p>Use and Occupation. Before Judge Andrews. Wilkes Superior Court. February, 1870.</p> <p>Goolsby sued Hill for $900 00 for the use and occupation of certain land during 1866, 1867, 1868.</p> <p>That the land was Goolsby’s, and that Hill had occupied it during 1864 and 1865 as Goolsby’s tenant, and had occupied it during 1866, 1867 and 1868, was not controverted. Nor was there any controversy as to the value of the premises for rent, such as is important here.</p> <p>Hill’s defense was that Goolsby had sold him the land in the latter part of 1865, and that since then he occupied as purchaser. As to this, the evidence was substantially as follows: Hill agreed to pay Goolsby forty bales of cotton, and *Goolsby agreed to make him title to the land'when the cotton was paid. This contract was reduced to writing, and left with a third party, with the understanding that the parties would meet next morning, each would stamp his part of the contract, and deliver the papers. Hill the next morning, before the exchange of papers, went to said third party and notified him not to deliver his bond, saying he would not be bound thereby. The papers were never delivered. Hill remained in possession, Goolsby dunned him for payment of the cotton, never for rent, and Goolsby spoke of him as having bought his land and refusing to pay for it. At the end of 1868 Hill abandoned the premises and Goolsby retook possession. Hill’s counsel, not content with what he testified to as to the character in which he held the premises, sought to prove by others that Hill said while in possession, but in the absence of Goolsby, that he was in as purchaser. This evidence was rejected. It was admitted that Hill had paid nothing on the purchase set up, not had paid any rent for said three years. The written papers were not introduced as evidence.</p> <p>The Court charged the jury that if Hill voluntarily abandoned the land, without giving Goolsby notice or requiring him to make the title at the end of said three years, and without paying for the land, he might be held liable for rent. If Hill went to said third party the morning after the papers were signed and told him he would no longer be bound by the contract, that was conduct from which the jury might infer, a rescisión of the contract of purchase, and that he afterwards held as tenant of Goolsby, and became liable to pay rent.</p> <p>The jury found for plaintiff for $750 00 and costs. Hill moved for a new trial, upon the ground that the Court erred in rejecting his said sayings, and in each part of said charge, and because the verdict was contrary to law and evidence. The Court refused a new trial, and that is assigned as error on said grounds.</p>

<p>SCALING ORDINANCE—ADJUSTMENT OE EQUITIES-ORDINANCE NOT GIVEN IN CHARGE.—When a note was given in January, 1865, for Confederate treasury notes loaned, the jury may adjust the equities between the parties under the Ordinance of 1865, though it may not be distinctly given in charge. There is nothing in this case to distinguish it from other like cases decided by this Court.</p> <p>BILL OF EXCEPTIONS—NOTE SUED ON IN SHORT FORM! —NECESSITY FOR COPY IN BILL.*—Where suit on a note was brought in the short form, with a copy of the note attached to the petition: Held, It was not necessary to copy the note in the bill of exceptions; it was sufficient to refer to it as the note sued upon. (R. See end of Report.)</p>

Wife’s Separate State. New trial. Before Judge Robinson. Baldwin Superior ,Court. February Term, 1870.

Principal and surety. Novation, etc. Before Judge Robenson. Morgan Superior Court. November Term, 1869. Crawley sued Morrison, as maker, and Hanson, as security on the following paper: “$650 00. Twelve months after date, I promise to pay Robert Crawley, or bearer, six hundred and fifty dollars, for *value received of him, cash borrowed. November 17th, 1865. J. J. Morrison, J. F. Hanson, Security. “I agree to pay the above in gold, having received it in gold.

<p>Waiver. Fraudulent Judgment. Bill of Exceptions. Before Judge Gibson. Richmond Superior Court. March Adjourned Term, 1870.</p> <p>On the 15th of June, 1867, Walton, by his attorney, H. W. Hilliard, filed in the office of said Court, his action against William G. Whidby, “as administrator, de bonis non, cum testamento annexo, of Thomas J. Walton, deceased, upon the following open account:</p> <p>William G. Whidby, administrator, etc,, etc., of Thomas J. Walton deceased,</p> <p>To Stephen Walton.</p> <p>1849.</p> <p>October 10th. For twelve hundred dollars paid, laid ■ out and expended» and advanced to</p> <p>Thomas J. Walton, deceased,.........$1,200 00 *1849. .</p> <p>October 10th.- Work and labor done, and money delivered and paid to Thomas J. Walton............(____ $4,000 00</p> <p>$5,200 00</p> <p>In the petition Whidby was described as “of said county.” On the 27th of June, 1867, Whidby acknowledged service as such administrator, and waived copy and process. He filed no defense. On the 8th of June, 1868, Walton’s attorney took a verdict against Whidby, as such administrator, for said $5,200 00 and entered a judgment for that amount and costs, against him as such administrator. Fi. fa. was issued and was levied upon certain shares of the Georgia Railroad and Banking Company.</p> <p>At this point, George Barnes filed his bill for injunction of said fi. fa.- and to set aside said judgment, against the sheriff, Whidby and Walton. It, with its amendments, made this case: Thomas J. Walton died between September, 1849 and the 14th of January, 1850, testate, possessed of thirty shares of stock in said company. Said will gave the dividends of part of said stock to his wife, during her life, and of the balance, in trust, for the maintenance of his step-son Bruce, and the residuum, in trust, for the sole use of his daughter, wife of Luther L. Hill, of Montgomery, Alabama, all upon terms in the will stated. This will was proven and the executors qualified on the day last aforesaid. The executors fulfilled their duties and were discharged, leaving the matter of Bruce and Mrs. Hill undisposed of.</p> <p>Afterwards, in April, 1866, Whidby was duly appointed administrator, de bonis non, cum testamento annexo, and gave bond in the sum of $1,500 00, with Barnes as his security. Under the direction of the Court of Ordinary, Whidby disposed of the Bruce part of the stock, according to said will. Subsequently, Stephen Walton, who had been testator’s slave, brought said suit, and the proceedings, already stated, were had thereupon. When Whidby acknowledged service of *said suit, he was a citizen of and residing in Fulton county, Georgia, he and plaintiff, and others unknown, combined, thus fraudulently, to give jurisdiction to Richmond Shperior Court, and allowed judgment by default, with intent to defraud the beneficiaries of said estate, and said Barnes, security. The case upon the docket stood against Whidby individually. Whidby is wholly insolvent. This judgment was taken in June, 1868, in violation of General Order No. 37, of Major General Meade, commanding the department of Georgia, etc., and against the orders of the presiding Judge, that no judgment should be taken in cases covered by said order. Said Order, No. 37, at the instance of the Convention, of Georgia, temporarily put in force certain parts of the Constitution of Georgia, adopted in 1868, but not then ratified, of which the following was part: “No Court in this State shall have jurisdiction to try "or determine any suit against any resident of this State upon any contract or agreement, made or implied, or upon any contract, made in renewal of any debt, existing prior to the 1st day of June, 1865.”</p> <p>Neither the sheriff nor Whidby answered. The negro, Walton, answered. He admitted all the averments of the bill except as follows: Whidby did not distribute said Bruce stock according to law; it is still subject to his demand. He was never a slave. He was kidnapped when a boy, and brought from the District of Columbia to. Richmond county, and forcibly held as a slave by said. intestate, who annuallv received large sums for his hire. At length he raised $1,200 00 and procured one Moore, who acted as his friend, tó pay this to intestate, and take a bill'of sale to him, that he might thereafter be free. In 1853 he was adjudged free (because free-born) in the District Court of said District, returned. to Richmond county, was registered as a freeman of color, and has ever since been resident there and regarded as free. Said judgment was obtained openly according to the usual rules, his petition having been on file, subject to■ inspection all the while said suit was pending.' It was done without fraud, was for a just demand and against Whidby, who was then resident in .Said Richmond county, *being but temporarily away, animo revertendi. Said judgment was spread upon the minutes of said Court, openly read, and it and the fi. fa. upon the execution docket' were ever open to public inspection. The order of General Meade, and the order of the Court under it were unconstitutional, because they impaired the obligations of contracts made ■or implied prior to June, 1865.</p> <p>The injunction was granted, and motion to dissolve it was overruled. In the conduct of the cause at Chambers the Judge wrote and attached to the bill his reasons. Part of them were as follows: “I am satisfied that the announcement was made by me at every Court, to the Bar generally, that no judg1ment would be permitted on contracts prior to June, 1865, never for a moment questioning the power of General Meade to issue and enforce the order under the Reconstruction Acts of Congress. This case being in default, and appearing upon my docket as an individual indebtedness of Whidby, upon the announcement that personal service had been effected upon the defendant, judgment by default against defendant was permitted, or rather a verdict by default taken. Upon reading the minutes next morning, the Clerk called my attention to the fact that the verdict was for a claim anterior to Juine, 1865. I then, in presence of said Clerk, requested said counsel to take an order vacating said judgment, which I had good reason to expect had been done up to the filing of this bill. This much I feel bound to say in justification of my own course as Judge in permitting some and prohibiting others from obtaining judgment.” Pending the cause, Walton died, and his wife, as administratrix, was made a party. On the trial, Whidby’s evidence was read over defendant’s objection that he not having answered the bill could- not bind defendant by admissions. He testified that he was insolvent, and that he removed to DeKalb county in April, 1867, '(but did business in Atlanta, Fulton county;) and other witnesses testified to the same.</p> <p>George T. Barnes testified that inquiries were made of the firm of Barnes & Cumming about legacies left by Thomas J. Walton, and upon examination they found that Jno. H. M-ann *had been executor of the estate, but that it was then unrepresented; that they applied to Whidby, who consented to act as administrator, and that witness went on his bond; Whidby sold some stock and turned over the proceeds; Whidby was regularly appointed administrator;' that one Luther L. Hill, of Montgomery, Alabama, was entitled to a certain legacy under the will, which. had mot been fully administered; that Hill was a stranger, and employed Barnes & Cumming to have his stock turned over to' him, and to this end they applied to Whidby to become administrator cum testamento annexo.</p> <p>The statement of Judge Gibson in overruling the motion to grant the injunctiori was read as evidence.</p> <p>McLaws swore he was Clerk of Richmond Superior Court at the time of filing of writ; Mr. Hilliard asked him where Whidby was to be found; witness answered in Atlanta; and thereupon Mr. IT. filed the writ, and at once took away the same, docketed “Stephen Waltop v. William G. Whidby.” The endorsement on the original writ was “Stephen Walton v. William G. Whidby, administrator de bonis 'non, cum testamento annexo, of Thomas J. Walton, deceased;” so endorsed whep papers were filed and docketed by him..</p> <p>The -Court docket was put in evidence, on which the case sounded as follows:</p> <p>“Stephen Walton v. William G. Whidby.”</p> <p>Whidby’s insolvency was admitted. The clause of the Constitution of Georgia and the General Order of General Meade, No. 37, March' 12, 1868, were read as evidence, and plaintiff closed.</p> <p>The defendant put in evidence transcript of the record of a Court of the District of Columbia, in which it appeared that he had been adjudged free in April, 1853, and that Moore, against whom the suit for freedom was brought, had sworn to the payment of $1,200 00, as set out in the answer.</p> <p>The original declaration and proceedings were put in. evidence.</p> <p>*The defendant then closed his case.</p> <p>Walton, by his counsel, requested the Court to charge the jury: 1st, That the relation of the complainant to the judgment- complained of is too indirect to entitle him to relief in a Court of Equity. 2d, That if any negligence has been shown by W. G. Whidby, in failing to set up a defense to the suit at law, he is not entitled to relief in a Court of Equity, when he seeks to enjoin or set aside the judgment obtained in a Court of law. 3d, That the complainant is not entitled to any relief that W. G. Whidby is not entitled to. 4th, That a judgment recovered against a party sued out of the county of his residence cannot be collaterally attacked in a Court of Equity. 5th, That the complainant, to entitle himself to relief in a Court of Equity in this 'case, must allege and prove that the amount for which the judgment was recovered, or some part thereof, -was not justly due. Which charges the Court refused to give, but did charge the jury that: “If the injunction were asked by Whidby, the principle invoked by respondent to counsel would demand more careful attention. Yet when the judgment is sought to be enforced against other person’s rights, and as it stands may affect injuriously the rights of others, the case presented by the surety in behalf of himself and the heirs .at law, or legatees, for relief or injunction, is quite different. Whilst it may be in the power of Whidby to waive the jurisdiction of Court, and consent to be sued in Richmond county, yet if that consent and waiver and the- further action and judgment of the Court may affect others,, and it is about to be enforced against rights of others, the person affected may assert the invalidity of that judgment, and Whidby, an insolvent representative, cannot consent to judgment, or waive jurisdiction of the Court, by which the surety would he bound or his right affected. The order of General Meade, suspending the jurisdiction of this Court for a limited time over a certain class of debts, was binding and legal, and enforced and intended to be enforced in all the proceedings of this Court, and all judgments obtained in violation of said order'- should be set aside at least as to interest *and parties not represented or heard on the trial.” The jury found for the complainant. To all which charges and refusals to charge, Walton, by his counsel, then and there excepted. /.-He says: 1st, that the Court erred in giving the charge as set forth. 2d, in refusing to give the said several .charges as requested.</p> <p>When the cause was called here a motion was made to dismiss the bill of exceptions because Order No. 37 was not copied in the hill of exception. It was part of the record, (in the bill,) and the motion was overruled.</p>

<p>Illegal Contracts. Bill of Excéptions. Before Judge Gibson. Richmond Superior Court. January Term, 1869.</p> <p>Towner brought ejectment against Bugg. He showed by his deed and by his oath, that in 1855 he bought the lot, had been in possession from that date up to 1863, when he left the country, leaving Bugg, as his slave, in possession, with a promise to Bugg that no wages would be required from him if he would keep intruders off the place, keep it in good order and pay Towner’s taxes till his return; that Bugg did not pay the taxes, nor keep said place in good order, and when ■he returned, after emancipation, refused to give him possesr sion. It came out in evidence that Bugg furnished part of the, money which paid his price when Towner bought him. The defense offered to show by Bugg and by admissions of Towner, that Bugg’s former master was dead and Bugg was about to be sold and begged Towner to buy him, let him re^ pay the price and then be actually free, though nominally Towner’s slave; that Towner agreed to this, bought him and Bugg repaid the price, and that Towner agreed to buy this place for Bugg, let Bugg pay for it, and to hold the title for Bugg’s benefit, and that Bugg did so pay for it and had occupied it as his own. All this testimony was ruled out, upon the ground that while Bugg was a slave he could not make a contract. The plaintiff had a verdict for the premises in dispute. Bugg moved for a new trial, because of the rejection of said evidence. The *case hung fire, but finally a new trial was refused, and that it assigned as error. ■ The only description of Towner’s deed in the bill of exceptions, was this: “Plaintiff then offered deed from Zemula Walker, dated December, 1855, to Walker Towner, made by attorney-in-fact, Joseph Burch. The power and the deed both offered and admitted by the Court in evidence, the deed being to the land in dispute.” The certificate to the bill of exceptions was in the usual form. But the brief of evidence had never been agreed to by counsel, and the Judge had approved it in these words only: “I cannot be supposed to recollect the testimony (after a year’s time) given in before me on the trial, yet I believe .this brief is correct in substance. I know that all testimony going to prove a contract with a slave, as to freedom and purchasing land with proceeds of his labor, was ruled out by me on the trial.” Defendant’s counsel moved to dismiss the writ of error, because said deed was not copied in the bill of exceptions, and because the Judge had not certified that the evidence was correctly set forth. The motion was overruled.</p>

Garnishment. Expenses. Before Judge Robenson. Greene Superior Court. May Term, 1870. The Augusta Manufacturing Company sued one Cunningham and pendente lite garnisheed one Carmichael. Judgment was obtained and the garnishee paid money to the sheriff. Plaintiff called on the sheriff, by rule, to show cause why he did not pay over said money to the company.

Equitable Lien. Distribution of Estates. Practice Supreme Court. Before Judge Robenson. Wilkinson Superior Court. April Term, 1870. The administrator of A. C. Brown, deceased, filed a bill to marshal his assets, etc. 'All the questions of priority, etc., were settled by decree, except one made by Plowesi He had filed a bill against the administrator, in which he made this case: *On the 15th of February, 1867, he was in Macon selling mules.

<p>CERTIORARI—MEMORANDUM OF EVIDENCE AS ANSWER—NO GROUND FOR DISMISSAL—SUFFICIENT ANSWER SHOULD BE REQUIRED.—Where a Justice of the Peace obtained a memorandum of the evidence on the trial in his Court, taken down by plaintiff’s counsel, and annexed it to the papers as his answer to the certiorari, and the answer was excepted to by the defendant in certiorari, on that ground:</p> <p>Held, that it was error in the Judge to dismiss the certiorari. He should have ordered the Justice 'to make such answer as the law required.</p>

Constitutional Law. Slave debts. Before Judge Schley. Liberty Superior Court. April Term, 1870. Stoddard on the 13th of October, 1866, sued Gaulden for a balance due upon his notes, due on the 1st of January, 1856, 1857 and 1858, respectively.

Taxation. Rebellion. Before Judge Schley. Chatham Superior Court. July, 1869. The Mayor and Aldermen of Savannah held the note of Margaret O’Bryne et al., for $6,502 17, dated the 23d of May, Í867, due one day after date, and secured by a mortgage upon realty. They sued upon the note and sought to foreclose the mortgage.

Insurance. Marriage. Charge of Court, etc. Before Judge Schley. Chatham Superior Court. April, 1870.

<p>Contempt. Possessory-Warrant. Supercedeas. Before Judge Sessions. Clinch Superior Court. October Term, 1869.</p> <p>On the trial of a possessory-warrant for certain cattle, between Yoemans & Strickland and Johnson, in the County-Court, the cattle were given to Johnson’s possession, upon his giving bond as required by the' statute. Yoemans & Strickland then sued, out a certiorari. Pending this certiorari in the Superior Court, Johnson sold the cattle. The judgment of the County-Court Judge was reversed, and the cattle were ordered back to the possession of Yoemans & Strickland. Johnson failed to deliver them and thereupon a rule issued, calling on him to show cause why he should not be attached for contempt for said nondelivery. Pie answered the facts aforesaid, said it was out of his power to restore the cattle, that his sale was bona fide, without any intention of committing a contempt, and that the remedy was on said bond, or otherwise than by this rule. This answer was uncontradicted, but the Court ordered him to be imprisoned till he delivered the cattle. That' is assigned as error.</p>

Pleading. Award. Before Judge Sessions, Glynn Superior Court. November Term, 1869. For the facts of this case, so far as necessary to understand the opinion, see the opinion.

Equity. Multifariousness, etc. Before Judge Sessions. Glynn Superior Court. November Term, 1869. Francis H. Orme, of the County of Fulton, and Seaborn J. Benning, administrator of Seaborn Jones, deceased, of the County of Muscogee, averred as follows: ' About the year 1733, the city of Brunswick was founded by Gen. Oglethorpe, acting for the King of Great Britain.

Pleading. Before Judge Harrell. Randolph Superior Court. May Term, 1870; Cooper sued Causey upon an open account. Causey pleaded that “he did not undertake and promise in manner and form as the said plaintiff has above thereof complained against him, and - of this he puts himself upon the country.” This plea was sworn to according to the form required by law. Cooper’s counsel moved to strike the plea, because it was not an issuable plea.

<p>QUO WARRANTO—WRIT OR ERROR—CERTIFICATION OF RECORD BY CLERK OF COURT.—In a contest between M. and T., as to which of them was Clerk of the Superior Court,_ the Court decided against T., who was in office. He sued out a writ of error, took no supersedeas, and his deputy certified the record to this Court. The writ of error was dismissed, because the record was not certified by the Clerk of the Court.</p>

<p>Practice. Supreme Court. From Terrell.</p>

The bill of' exceptions recited, without more, that the cause of Jackson M. Magill, administrator, etc., against A. V. Boat-rite et al., a bill for. relief, direction and injunction was submitted for final decree, and upon the pleadings “a report of the Master and the things therein contained being considered by the Judge, he rendered a decree which is of record *which is referred to in this bill of exceptions, to which decree the heirs at law, N. A. Smith and others…

<p>Practice. Constitutional law. From Schley.</p>

<p>Practice of Supreme Court. From Muscogee.</p>

<p>Practice. Supreme Court. From Muscogee.</p> <p>On the 11th of June, 1870, Seay v. Treadwell ante was dismissed because the transcript of the record was not certified in time and no diligence was shewn to have it so sent up.</p> <p>Counsel for Perry et al. hearing the decision, and fearing that this cause might be dismissed, filed his affidavit that “at the end of that time (ten days from the filing) or within a few days thereafter,” he called on the Clerk and was told by him that he had attended to the bill of exceptions as he had told him, and the Clerk was understood to mean that he had sent it up within the time, as he had been requested. And ^thereupon a mandamus was issued against the Clerk to respond as to the facts, and shew cause why he had failed to send up the record within the time required by the rule of this Court.</p> <p>In response, the Clerk swore that he was instructed by Perry’s counsel that he must certify and transmit the record to this Court in ten days from the filing of the bill of exceptions in his office, and was by him referred to a rule of this Court to that effect, which the counsel could not find, but told him (the Clerk) that it as somewhere in the Code; and the Clerk promised to do so. But, on consultation with'several persons, and especially with one who had for many years been a Clerk of said Superior Court, he was told that Perry’s counsel was mistaken. Being unable to find such rule in the Code and supposing that if the bill of exceptions and transcript were forwarded soon enough to reach here before the return day for this term, all would be right, he postponed sending it up. He said that he did subsequently tell counsel for Perry that he had attended to his request, but, at the time, not thinking of the matter, meant only that he had certified the record and not that he had sent it up to this Court; though he did not doubt that counsel understood him to mean that he had sent it up. He further stated that he had yet never seen the rule alluded to.</p> <p>The bill of exceptions was filed in office below on the 2d of April, 1870, the record was certified on the 9th of that month, but it did not reach the office of the Clerk of this Court till the 13th of May, 1870. There is a daily mail from Columbus, the county site of Muscogee county, to Atlanta. When the cause was called here for hearing on the 18th of June, 1870, her counsel for defendant in error moved to dismiss the writ of error, because though it had arrived here more than twenty days before the term, yet the record had not been sent from the office of the Clerk below to the Clerk of this Court within the time required by the rule.</p> <p>Counsel for Perry produced his said affidavit, said order and response of the Clerk, and contended that the fault was with the Clerk; said the Clerk was mistaken as to his saying the rule was in the Code, and that he had been diligent to *correct his error as soon as it was discovered. The reply was that, “a few days thereafter” was too indefinite a showing as to when he applied to the Clerk to see if his instructions were carried out, and that by the Clerk’s affidavit .produced by Perry’s counsel, it appeared that he told the Clerk that the rule was in the Code, when it was in the 39th Georgia Reports,* and this mislead him and produced the delay.</p> <p>The cause was dismissed. The reasons for dismissal were the want of diligence, etc., as stated in the reply of counsel for defendant in error as aforesaid.</p>

<p>On the 25th of June, counsel for plaintiff in error appeared in Court, and stated, that he was informed that the *Clerk said he (counsel) was mistaken as to a statement in his affidavit, that he was satisfied that the Clerk meant no contempt, etc., and asked that the rule against the Clerk below be discharged, that the order for removal be set aside, and that he have leave to withdraw the record of the cause, and thus leave the judgment of the Court below affirmed. This was allowed.</p>

This was a bill for account in favor of Anderson et al. against James Rankin as executor of William Rankin et al. There was a verdict against defendants and they sued out a bill of exceptions.

<p>Bill of Exceptions. From Muscogee.</p>

<p>Practice. Supreme Court. Prom 'Spalding County.</p> <p>*The writ of error was again dismissed because prematurely here. See The Nacoochee Hydraulic and Hose Mining Company v. Davis, 40th Ga. R., 309.</p>

<p>Bill of Exceptions. Practice. From Coweta.</p>

<p>Practice Supreme Court.</p>

Marriage Settlements. Trusts. Arbitration, etc. New Trial. Bill of Exceptions. Practice. Before Judge Andrews. Richmond Superior Court. June Term, 1869. Held: that if the Cunningham children were creditors of George Schley, they did not give credit upon the faith of the property settled upon his wife, and that, therefore, the failure to record the marriage settlement did not avail them.

Equity. Administrators and Executors. Confederate Money. Before Judge Knight. Dawson. Superior Court, ............ 1870. *In May, 1860, George Keith made his last will and testament.

<p>CONFLICT OF LAWS—PRESUMPTION THAT LEX LOCI CONTRACTUS SAME AS GEORGIA LAW.—Where 'a note was made and delivered in the purchase of a mining privilege at Pike’s Peak, in Kansas, on the Sabbath day, and suit thereon is brought in the Courts of this State, and there is no evidence of the lex loci contractus produced on the trial.</p> <p>Held, That the presumption of law is, that the law of the place where the note was made is the same as our own; especially will such presumption be made where a contrary presumption would be unjust to the Christian civilization 'of the age and in violation of the decalogue.</p> <p>SABBATH—NOTE MADE IN' PURSUANCE OF TRADE O'R BUSINESS—VOID.*—As the laws of this State forbid, under penalties, any violation of the Lord’s day by the transaction of any business, trade or calling, a note made upon the Sabbath day, in pursuance of trade or business, will not be enforced by the courts of this State under the laws of this State, as such contract is void.</p>

Corporations. Equity Pleading. Before Judge Knight. Chambers. Lumpkin County. December, 1870. *Dexter, and about a dozen others, not residing in this State, but in Boston, Massachusetts, Pennsylvania, and New York city, with Richard Van Dyke, of said county, as trustee, filed their bill containing the following averments.

*Sayings of Party as Evidence. Polling Jury. Practice Supreme Court. Before Judge Davis. Habersham Superior Court. April Term, 1870. Murphy brought ejectment against Griggs for a part of a lot of land .in said county. No brief of the evidence was before this Court. So much of the facts, as appears in the bill of exceptions, is as follows: The dispute was as to Griggs’ right to possession of'said lot up to a particular line.

<p>Contempts. Imprisonment. Before Judge Clark. Sumter-County. Chambers. August, 1870.</p> <p>Said Remley and DeWall were merchants and partners, under the firm name of Remley and Company.. On .the 7th of January, 1870, DeWall filed a bill in said Court against Remley, praying for the dissolution of said firm, for an account and settlement, for injunction, and that a Receiver be appointed to take charge of the assets of the firm. The Chancellor granted an order requiring Remley to show cause, on the third Monday of said month, why said injunction should not issue and why a Receiver should not be appointed as prayed for. Remley answered'the bill. At the time appointed for hearing, upon consent of counsel for the parties, it was ordered that upon Remley’s giving bond with good security, in the sum of $10,000 00 “fully to comply with the interlocutory orders of the Chancellor in this Court, as well as to answer fully the decree to be rendered in this cause,” the motion for injunction and Receiver be considered as refused. Further, by consent, an auditor was then and there appointed by said order with power to hear and determine *all the matters in issue between the parties, and report the same to the Chancellor, in vacation, as early as practicable, and “for non-conformity to any interlocutory order in said case he (Remley) should be subject to an attachment as for a contempt, as well as liable on said bond.”</p> <p>The auditor made his report, setting forth the assets and debts, etc., etc., particularly which are not material here. He stated that the stock would pay the debts of the firm and leave a surplus of $839 50. Remley was to keep the stock and pay the debts, and get the choses in action into two equal parts, and let DeWall take one and he keep the other, and Remley was to pay in cash to DeWall half of said surplus, plus $18 18, this last being half of what the firm owed DeWall; further, that Remley should convey a certain lot to D'e Wall's wife (the firm having the legal title to it, whereas she was the real owner), and that Remley gave security to comply, if DeWall desired it, but the auditor thought the bond already given was sufficient; Remley was not to delay payment of the firm debts till he could make collections, and the firm was to be considered as dissolved from the 8th of January, 1870. Upon the coming in of this report, by like consent, on the 1st of February, 1870, at Chambers, the Chancellor passed an order that said firm be considered as dissolved from the 8th of January, 1870; that Remley pay DeWall $436 93, as required by the auditor’s report, within three days from that date; that Remley divide the choses in action into two lists and give DeWall choice of said lists; that said report be made the judgment of said Court and be fully complied with.</p> <p>Remley did not do all that was required. On the 23d of February, 1870, DeWall wrote Remley, demanding of him half of the money collected by Remley on the firm accounts; before they were divided, the whole amount collected by Remley on the list of accounts selected by DeWall, the use of the firm books till he could draw off said accounts selected by him, and stating that, if his demand was not responded to that day, he should have him attached for contempt. Remley did not respond. Thereupon, on the next day, DeWall, at Chambers, presented to the Chancellor a petition *setting forth said decree, that, before making the division of accounts, as by the decree he was required to do, Remley collected about $400 00 on said firm accounts and did not put the accounts on which these $400 00 were collected upon either of the lists submitted for division; that the lists, (but lately furnished,) as presented, did not contain all the accounts; he got Remley to add others o'f which DeWall was cognizant and then took his choice as directed, though then satisfied that other accounts had been left off from said lists; on the lists of accounts given to DeWall, Remley has collected about $220 00; Remley,' though- often requested, will not pay him half of said $400 00, nor pay him said $220 00 collected on his accounts, nor let DeWall have the firm books long enough to draw off his accounts; that on the 23d he made said written demand on Remley, to which he made no response, and that Remley was about to leave for New York, and that it would greatly injure DeWall if he was not compelled to pay him before leaving.</p> <p>He prayed for an attachment to compel Remley to comply with said decree. The Chancellor passed an order requiring Remley not to leave the county, and to show cause before him, on the next day, at 10 o’clock, A. M., at Chambers, why he should not be attached for contempt for not complying with said decree. A copy of said petition and order was at once served on Remley by a constable. He did not appear as required, and thereupon the Chancellor ordered the sheriff to arrest him and bring him before the Chancellor, to show cause, at once, why he did not comply with said decree and why he should not be punished for his contempt of the order last aforesaid, and that the books of the firm be at once turned over to DeWall. Remley’s counsel asked a day to file an answer, and it was granted by the Chancellor, with the further order, that he show cause why he had not paid the claim of Sharp & Thompson against the firm, and why he did not make said deed to Mrs. Wall.</p> <p>Remley’s counsel then demurred to and answered said proceeding. The demurrer was upon these grounds: 1st. Said order is improvident, because said decree was a final disposition *of the cause^ 2d. Service by the Constable was not sufficient in law. 3d. The process granted was not annexed by the Clerk to the original bill, nor any copy thereof to the copy bill, as required by law; and last, because DeWall had a complete remedy at law.</p> <p>He answered that he made said division of accounts as soon as practicable; that before making it he had collected on said accounts $388 00, half of which belongs to DeWall; but he denied that the decree required him to pay DeWall the same; said he was ready to do so, however, when DeWall would settle with him fairly. He admitted that he had collected out of DeWall’s part of said accounts'$212 50, (stating how he did so, to show that there was no dishonesty in doing it,) and that he was justly to account to DeWall therefor. He then set out that he had paid out for the firm $62 69, which were reckoned in the schedule of accounts, because these claims were not on the books of the firm, and he claimed DeWall should pay one-half of that, say $31 34-yí. Further, he said, DeWall had collected $6 50 which belonged to Remley. Further, he said, one Black owed them jointly $37 20, and he wished to give DeWall an order on Black for that and claimed a credit for $18 60 against DeWall. Therefore, he admitted that he owed DeWall $350 06, and said that he was always ready to settle on that basis. He said some accounts had been inadvertently left off the lists, but this he was willing to have rectified by DeWall, who had obtained the books of the firm. He filed with his answer a deed to Mrs. Wall, as required, and made an explanation as to why he did not pay the demand of Sharp & Thompson. He denied any intended contempt; said, being busy, etc., trying to get off to New York, hé did not read the paper served on him by the constable, did not have time to consult his counsel, but supposed his counsel would attend -to it for him. He insisted that attachment was an unnecessary and an illegal remedy under the facts. Fie prayed ,a return of the books to him, that he might close up the firm business. The hearing did not come off till August, 1870.</p> <p>The Chancellor overruled the demurrer and heard the parties *on the pleadings aforesaid, etc. At the .hearing DeWall admitted that he had collected said $6 50, and that it was a proper charge against him by Remley. Remley’s counsel stated that DeWall had admitted that the statements in the answer as to said $62 68, were correct, and neither DeWall nor his counsel denied that DeWall had so said. DeWall’s counsel also ■expressed DeWall’s readiness to admit said credit of $18 60, by reason of the claim on Black. Remley’s counsel said they were ready to give the order on Black for the $37 20 aforesaid, and it was admitted that Remley had paid DeWall the $419 75, due him as half of the surplus of stock over the debts.</p> <p>After argument the Court adjudged that Remley was in contempt, of which he might purge himself by paying to DeWall, within three days, $424 50; if he did not pay it within three days, he should be put ,in jail and there kept till he paid said $424 50, with ■ interest for the past six months.</p> <p>Remley’s counsel now say that the Chancellor erred in overruling the demurrer on the several grounds stated therein; in granting an order for payment of $420 50, thereby including said $18 18, which the firm owed DeWall on account, and not allowing said $6 50 collected by DeWall, or the $31 34, DeWall’s half of the debts paid by Remley, or the $18 50 in Black’s hands; in not ordering the books returned to Remley, etc.</p> <p>The Court certifies, that no point was made before him as to said credits; that there was some talk about them, but it was understood that they did not desire him to go behind the decree. As to the- delivery of the books, etc., he certified he was ready to comply with Remley’s wish, when Remley complied with the order of the Court.</p> <p>(When the cause was called here, counsel for defendant in error moved to dismiss the writ of error, because it was premature, as this was but an interlocutory order. The Judge’s certificate was dated in August, 1870. The Court ordered argument to proceed, reserving that question for decision, if the Court thought it was well raised. In the argument, *counsel for defendant asked for .damages for a frivolous writ of error.)</p>

<p>NEW TRIAL—EQUITY—EVIDENCE—MISTAKE, SURPRISE AND MISPLACED CONFIDENCE.—The complainants allege that the counsel for the defendants told the counsel for the plaintiffs that they had a copy of the plat and grant to the lot of land in dispute, and that it would not be necessary for plaintiffs to obtain one, as the counsel for the defendants would furnish it on the trial; that relying upon this statement of the defendants counsel, the plaintiffs did not procure a copy of the grant; that upon the trial the counsel for the defendants, in pursuance of said agreement, did furnish what purported to be a copy of said original plat and grant, issued from the Secretary of State’s office, remarking at the time, “here is a copy plat and grant—we make no point upon that;” the counsel for the plain■tiffs believing, as was stated by the counsel for the defendants, that it was a copy of the original plat and grant to the lot of^ land in dispute, did not critically examine it, and it was offered in evidence. The defendants demurred to the bill for want pi equity, which was sustained by the Court below, and the bill dismissed:</p> <p>Held, That the allegations in complainants’ bill make such a case as entitles the complainants to relief on the ground of mistake, surprise and misplaced confidence in the statements of the defendants’ counsel in relation to the copy plat and grant, whether intentional or otherwise; the more especially as the judgment of this Court reversing the judgment of the Court below (at a former term,) was placed on the sole ground that the copy grant was to lot number one hundred and seven, as set forth in the record then before it, but which is now shown to have been a mistake, and the lot in dispute, number one hundred and twenty-seven, was, in fact, granted to Scott, under whom the plaintiffs claimed, and not number one hundred and seven.</p>

Arson. Arrest of Judgment. Before Judge Harrell. Webster Superior Court. September Term, 1870. Lydia Brightwell was tried for arson in said Court, upon an indictment which charged her with burning an out-house “on the 17th of May,” 1870, without stating whether she did so in the day time or night.

Criminal Daw. Evidence, etc. Before Judge Clark. Sumter Superior Court. August Special Term, 1870. Eayette Hill was indicted for the murder of John Wormack 'in said county,- on the 1st of August, 1870, with a ball shot from a pistol. The indictment, as originally written, charged the assault on said day in usual form, and in charging the death said Wormack “within one year from the day first aforesaid,” died.

^Obstructing legal process. Criminal law and practice. Before Judge Harrell. Webster Superior Court. September Term, 1870. Statham was indicted for obstructing legal process. The indictment .does not appear in the record, nor does the. order appointing a Solicitor pro tem. It is said that the Solicitor General, S. Wise Parker, drew the indictment and subsequently undertook to nol. pros, it, and that afterwards a Solicitor pro tem. was appointed.

Continuance. Mistake. Before Judge Clark. Sumter Superior Court. October Term, 1870. *Snelling, sued out an attachment against William Bryce & Company. The affidavit is dated the 24th of March, 1868, the bond is dated the 27th, and the attachment the 24th of said month. The attachment was returnable to the next term of the Court, and the return day of the April Term was not out on the 24th, but was out before the 27th of March.

Corporations. Trespass. New Trial. Before Judge Harrell. Sumter ‘ Superior Court. . . , Term, 1870.

Rule against Sheriff. Contempt. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1870. *In April, 1870, a rule' nisi was granted against Darley, sheriff, requiring him to show cause why he should not pay over to plaintiff’s attorney the amount due on a judgment in favor of George W. Thomas, against S. S. Boone, principal, and W. A. Hawkins, endorser, which was for $1,500 00, besides ■ interest.

Criminal Law. Opprobrious Words. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1870. ■ The indictment charged Mitchell with assaulting Charles W. Hancock, on the 25th of October, 1870, with a stick, unlawfully beating him therewith, with intent to murder him.

<p>Bill of Exceptions. Injunctions. Before Judge Clark. Sumter county. Chambers. October, 1870.</p> <p>*On the 8th of September, 1870, Glass et al., presented to Judge Clark a bill against Clark et al., praying an injunction against their use of a mill-pond averred to be a nuisance. On the 22d of October, 1870, the Judge refused the injunction without a hearing. This refusal is brought here by writ of error. When the cause was called here, counsel for defendants in error moved to dismiss the writ of error—first, because the matter was res adjudicata, by reason of the dismissal of the cause before, (see 40th Georgia Reports, 548,) (and produced the record of said former case to show the identity,) and secondly, because the Judge’s order was interlocutory, without a hearing, and therefore not reviewable here now. The motion was heard with the argument of the cause.</p>

Arbitration. Bill of Exceptions. Before Judge Clark. Sumter Superior Court. November Term, 1870. William Tomlinson and his brothers and sisters, children of Jared Tomlinson, filed a bill against Styes as to the north half of a lot of land in said county, which they claimed to hold under their father; and William M. Hardwick and George Slappey had a controversy with said complainants as to the south half of said lot.

Construction of Wills. Practice. Before Judge Clark, Macon Superior Court. December Term, 1870.

<p>1. NEW TRIALS—BRIEF OF EVIDENCE—RULE NISI.*—In a motion for a new trial, if a brief of the testimony has been agreed upon by the counsel and filed in the Clerk’s office, and the Court has granted a rule nisi, it is error in the Court at the hearing to dismiss the motion because the' brief of testimony was not approved by the Court. The granting of the rule nisi is a presumptive approval within the meaning of the rules of Court.</p> <p>3. SAME—SAME—AMENDMENTS-†—A motion for a new trial, including the brief of testimony, may be amended in the same terms as other proceedings in the Superior Court.</p>

Slave Debts. Relief. Before Judge Harrell. Terrell Superior Court. November Term, 1869. In 1859, Sena J. Cherry gave her bond to the Ordinary of said county for her faithful conduct as the guardian of Susannah M., Margaret A., Elizabeth A., and Georgiana C. Powell, minors of F. C. Powell, deceased, and Peter W. Reddick, John D. Whaley and James M. Powell signed the same as her securities.

Indictment, Adultery, etc. Before Judge Harrell, Randolph Superior Court, May Term, 1870.

Failure of Consideration. Equity Jurisdiction. Before Judge Harrell. Terrell Superior Court. May Term, 1870. Kemp sued Watson on his promissory note for $200 00, dated the 3d of January, 1867, and payable to Kemp on the following Christmas.

Criminal law. Certainty. Arrest of judgment. Constitutional law. Before Judge Harrell. Randolph Superior Court. May Term, 1870. Bell was, at May Term, 1870 of said Court, indicted for larceny from the person, in said Court. The indictment charged him with the larceny of “twelve five dollars and one ten dollars notes, to-wit: United States promissory or bank notes of the value of seventy dollars.” Upon it he was then and there tried and convicted.

Landlord and Tenant. Before Judge Harrell. Terrell Superior Court. May Term, 1869. On the 17th of May, 1869, the attorney of John Sealy, as agent of Mrs. Sealy, made affidavit that Kuttner was in possession of certain land therein described only as “tenant by sufferance,” and “not under contract for rent from -Sealy, agent, nor by contract with any other person authorized to rent the same,” and a' warrant issued thereupon to give Sealy, agent, possession of the same.

<p>GUARDIAN AND WARD—PARTIES TO ACTION.*—Where a bill is filed by a ward, through her prochein ami, against her guardian, and it appears from the facts of the bill that the matter of complaint is against the guardian for disposing of her property unlawfully:</p> <p>■ Held, That a Court of Equity has jurisdiction of the subject-matter, and such wax'd may institute suit against her guardian by her next friend for the ^assertion and vindication of her rights in the premises.</p>

Trusts and Trustees. Before Judge Harrell. Randolph Superior Court. May Term, 1870.

<p>Party as Witness. New Trial. Before Judge Harrell. Terrell Superior Court. May Term, 1870.</p> <p>Orr, Brown & Company, on the 23d of June, 1867, gave R. N. Reed & Company their promissory note for $2,443 54, due the 1st of November, 1867. On the 1st of January, 1868, Leroy Brown mortgaged to R. N- Reed & Company certain described lands, partly in Terrell county and partly in Calhoun county, to secure $5,033 63 due to R. N. Reed & Company by said Brown and said Orr, Brown & Company, endorsed by a note dated June 22d, 1867, and due 1st November, thereafter, for $2,443 54. The aggregated indebtedness is entitled to a credit of $2,066 03, paid by Brown, leaving due to mortgagees, at that time, $3,000 00. (The date of the note, as recited in the mortgage, is evidently a mistake—it should be 23d.) On the 17th of September, 1868, Brown paid on said note $282 52.</p> <p>At May Term, 1869, of Terrell Superior Court, R. N. Reed & Company petitioned for the foreclosure of said mortgage on all of said lands. A rule nisi was entered upon the minutes and was in the usual form, but it was not signed by anybody. As the record appears, the sheriff returned, upon the petition, that he had served Brown “personally with a copy of the within rule nisi.”</p> <p>At November Term, 1869, of said Court, Brown filed the following objections to the foreclosure: Said rule, as served on him, is signed by nobody, and has no certificate showing that it is part of the minutes of said Court; and that he had paid the note in cotton.</p> <p>Upon the trial, the parties proceeded directly to the contest *as to said payment, taking no notice of the alleged defect in service. As to a payment there was no dispute, but one of the plaintiffs testified that they had credited Brown’s open account with part of the amount paid and had credited the note with the balance, only, and that the payment was made without any instructions as to application. On the 'other hand, Brown admitted that he owed the open account,. but testified that it was expressly understood and directed by him, at the time of payment, that it should be .applied to the account. Each party gave, in extenso, facts going to> show his statement to be true. The jury found $2,310 68 to be due on the note and a rule absolute for the foreclosure of the mortgage was taken. Brown moved for a new trial upon the grounds, that the verdict was contrary to law, the evidence, and equity; because the foreclosure, as to the land in Calhoun, in Terrell Superior Court, was illegal; and because of proper service as aforesaid. The Court, said that the question of jurisdiction as to the Calhoun land, and as to the service, were not made, and refused a new trial. This refusal is assigned as error.</p>

<p>Secondary Evidence. Before Judge Harrell. Stewart Superior Court. August Term, 1870.</p> <p>Jeremiah Paul, by his bill against Hawes, made this case. In 1858 he bought an undivided half interest in certain mills and land from Hawes, on credit, for $3,000 00 gave his notes therefor,- and formed with him a partnership, tyr which he was to take charge of said mills in person; I-Iawes was to furnish a laborer. They were to divide the expenses of the mill, and the profits were to be applied, first, to the support of Paul’s family, and then one-half of the net balance was to- be credited on said notes. By Paul’s consent, I-Iawes sold $1,600 00 worth of said land and took the proceeds. *Paul furnished him about $400 00 in supplies, from the mill. In 1856, I-Iawes .wished to sdl the balance of the land and the mills, to one Davis, at $3,000 00 cash to himself, and agreed, if Paul would consent to this sale, he, I-Iawes, would give up to Paul his said notes and divide equally with him the proceeds of said partnership. Paul consented, the sale to Davis was made, and Davis bought of I-Iawes other partnership property. Hawes took the books of the firm, pretending to wish to collect and settle the firm business, but now refuses to let Paul have the books, or come to any account with him, or to give up said notes. He offered to give up Hawes’ bond for titles, prayed that he be compelled to account and give up said notes, and that, meanwhile, he be enjoined from selling the notes and from collecting the accounts, and that the books be put into the hands of a Receiver. Paul died, and his wife, Elizabeth, became his administratrix, and was made a party in his stead.</p> <p>The averments of the bill were admitted, except as here modified. The partnership was, by written agreement, to include the mill, a blacksmith shop and raising of stock. Proceeds were to be applied, first, to paying Hawes’ hire for his blacksmith and the other slaves furnished, and furnishing them provisions and clothing; then half of the net proceeds was to lie Paul’s, and, deducting from his half a reasonable support for his family, the balance was to be credited on said notes, which were for $1,000 00 each, due one, two and three years after date. In 1856 this partnership was dissolved, by Davis agreeing to buyout Hawes and take his place in the partnership with Paul. Paul was to get up his notes for $3,000 00 and give Davis his notes for $2,000 00 and have from Davis an undivided half interest in said land and mills when he paid Davis $2,000 00, according to the terms -agreed upon by them. He said the other property sold to Davis went, like the lands and mill, as part of the firm property. Hawes admitted he had the books, said he was ready to give up the notes and settle, but Paul was not. He claimed that the firm owed Paul little if anything. To this answer he attached as exhibits what purported to be'a list of the persons *owing the firm and the amount due- to each. In October, 1858, there was a verdict against Plawes for $1,066. 74, with an order that he give up Paul’s notes. Plawes appealed. On the appeal trial, complainant read evidence of conversations of Hawes, to show how much was made by said business, and closed. Defendant’s counsel proposed to introduce secondary evidence of the contents of the books of the firm. To account for the non-production of the books, Plawes testified that he delivered them to C. A. Evans, his attorney, and had never seen them since, and could not produce them. B. S. Worrill, Esq., Hawes’ solicitor, stated that he and ‘Evans were partners in the practice of law, representing Hawes, that these books were in their office when they drew said answer and when Evans went into the Confederate army; that he had seached for them diligently, but could not find them. It was admitted that Evans had not been applied to for the books. Worrill said he did not write to him because he was satisfied Evans left the books in their office, as aforesaid, and could tell nothing about their whereabouts. The Court held that the loss of the books was not sufficiently accounted for, and would not allow the evidence. The jury gave a verdict against Hawes for $600 00 and interest, and it was decreed that said notes should be given up. The refusal to admit secondary evidence of the contents of said books is assigned as error.</p>

Divorce. Party as Witness. Before Judge^ Harrell. Stewart Superior Court. October Term, 1870. In March, 1870, Thomas Castello sued his wife, Sophronia, for a divorce, averring that, three years before, she abused him in the most insulting manner, when he was violently ill and helpless, refused to render him any assistance, abandoned his home, and had remained away ever since. On the trial, after proving the marriage, plaintiff was offered as a witness to prove said averments.

Bills. Notice. Before Judge Harrell. Stewart Superior Court. October Term, 1870.

Equity. Fraud. Bill of Exceptions. Before Judge Harrell. Quitman Superior Court. November Term, -1870. The case made by Raines’ bill against Dunning et al. was this: In November, 1869, Raines obtained a judgment against James Suggs for $3,600 00. The fi. fa. was issued and levied upon Suggs’ land, which was advertised by the sheriff for sale.

<p>DOWER—ELECTION—HOMESTEAD.*—Where H. died intestate, leaving a widow as his sole heir-at-law, who elected to take her dower in the lands of her deceased husband, and afterwards applied for a homestead out of the other lands of her deceased husband:</p> <p>If eld, That, afte'r electing to take her dower, she was not entitled to a homestead out of the other lands of which her husband died seized and possessed.</p>

Homestead Act. Lien. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. Epsey O. Pry averred that she was the mother of five minor children; that her husband would not apply for the exemption of his personalty under the Homestead Act, and prayed that the personalty, in her schedule annexed, be set apart under said Act. Over $450 00 worth of the said personalty consisted of cotton, corn, fodder, and potatoes.

Jurisdiction of Tustices of the Peace. Interest. Before Judge Johnson. Muscogee Superior Court. April Term, 1870. *Laney sued out an attachment against Marble. In the affidavit, which was attested by no officer, he claimed $91 46, besides interest. The attachment was returnable to the Justice’s Court.

Physician. Certiorari. Witness. Before Judge Johnson. Muscogee County. Chambers, May, 1870. Fogarty sued McCardle as administrator of BrassillS' uppn an open account for $31 25, in a-.Justice’s Court. All the items of the account were for medicines furnished to various *persons (we suppose members of -deceased’s family) except five, which were for visits, prescription and medicine, and amounted to $18 50.

<p>Garnishment on Administrators. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.</p> <p>Sapp sued out attachment against one Clark, and had a garnishment served 'upon McArdle, as the administrator of one Brassill. AVhen Sapp had obtained judgment against Clark, he wished to proceed against said garnishee. But the garnishee averred that said garnishment was served upon him in less than twelve months after the granting 'of his letters of administration, and moved to dismiss it. The fact not being denied, the Court dismissed the garnishment. That is assigned as error.</p>

Equity. Marshaling Assets. Multifariousness. Before Judge Johnson. Muscogee Superior Court. July, 1870. When this cause was called below, the Court asked the counsel for. Irvin, the administrator in this bill for marshaling assets and for direction, whether he was ready to proceed with the cause.

Amendment. New Trial. Before Judge Johnson. Muscogee Superior Court. May Adjourned Term, 1870. *The petition'of Matthews, Burke & Cameron averred that at certain times, therein set forth, they furnished Winter certain specified sums of money to be, by him, invested in high wines for their benefit, upon his promise, within a ’specified time, to return said money and part of the profits on said high wines, and that he did not make such investment and would not repay said money.

*New Trial. Cumulative Evidence. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. Orand, Paramore & Company sued Walker for $7’5 00, balance of the price of a horse. That Walker bought the horse at $600 00, and had not paid this balance, was not controverted. But the defense was that the horse was unsound.

<p>Jurisdiction. Pleading. Evidence. Waiver. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. *Carrugi sued the City Eire Insurance Company of Hartford, Connecticut, as “a corporation existing by and under the laws of Connecticut, with power to insure against losses by fire,.doing business in Columbus, Georgia, as an insurer against losses by fire, by its agent, Robert R. Murdock.” He averred that on the 4th of January, 1867, he paid said agent $45 00 as premium and, iti consideration thereof, the agent delivered to him a policy of said company, insuring him against loss by fire, for one year, for $1,000 00 on the furniture in the second story of the building described, and $2,000 00 on the stock of furniture and fixtures in the lower story; that on the 24th of March, 1867, said insured property was destroyed by fire; that, according to the requirements of said policy, he made proof of said loss and demand of payment, and payment was refused.</p> <p>In his petition he also set forth the history of the matter in substance, thus: The day before this policy was taken out he applied to Murdock for insurance for $6,000 00, told him that Mr. Hill had already insured the same property for $5,000 00, took Murdock through the lower story and exhibited the stock, furniture and fixtures to him and offered to show him that up stairs, but Murdock would not go up, but said he would make the insurance for $6,000 00; that, on the next day, Murdock brought him the .policy sued on and another, in another company, for the same amount, and explained that he had put it in two companies to divide the risk; read to him the written portions of said two policies, received the premiums on each and delivered them up to him: that trusting to Murdock’s known integrity, he did not read the policies but, since the fire, has discovered that the policy sued on contains these words: ‘“If 'the assured or any other person or persons interested shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not,) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company, in writing, and mentioned in. or endorsed upon this oolicv, then this insurance *shall be void and of no effect.” He averred that the foregoing conduct of Murdock was a waiver of said condition, or if not, a fraud which vitiated said condition, and he prayed that the iurv should nass unon that matter as if a bill were filed to get rid of the effect of said condition of the policy. The value of the lost property being averred, he prayed judgment for the face of the policy. Service was perfected by serving Murdock, the agent.</p> <p>Carrugi also sued upon said other policy issued by Murdock, as agent of the Phoenix Insurance Company of Hartford, Connecticut, for the other $3,000 00 and, by consent, that suit was. to abide the result of this one.</p> <p>The defendant pleaded to the jurisdiction, because said defendant was, at and before the bringing of this suit, “a corporation. resident of the State of Connecticut, existing under and by-virtue of the laws of said State of Connecticut, and resident therein, and was not, at the commencement of said plaintiff’s, action, a citizen of, or resident within, the State of Georgia,” and that the defendant had not been served with the process. Upon demurrer, this plea was overruled. Defendant then pleaded the general issue, and defendant then pleaded—2d. “That said stock of furniture was not consumed, burnt, lost, or destroyed by fire in the manner and form as plaintiff hath alleged; and that by the making of said claim or demand upon defendant, said plaintiff hath attempted to defraud defendant by attempting to receive an amount largely in excess of his actual loss, whereby said policy, according to the provisions thereof, is void and null.”</p> <p>3d. “Plaintiff did not, according to the condition of said policy, as soon after the loss as possible deliver, as particular an account of their loss and damage, as the nature of the case would admit, and, in order to support his said claim, did, on the 22d of April, 1867, in the county of Muscogee, make a certain affidavit in support of said claim, and there was false swearing, with intent to defraud defendant, in -violation of the provisions in the body of the policy contained, said plaintiff having then and there sworn that the amount annexed to said affidavit contained- a true statement of his *loss by fire, and the whole amount of what he saved from the fire, and showing -the amount, of loss; that the values set down in the account are, in case of articles obtained at a distance from Columbus, to the best of his knowledge, information and belief, the prime cost of such articles, with the expense of transportation added; and, in the case of other articles, the ordinary selling price of said articles, in Columbus, amounting to an aggregate of $14,307 00 loss; whereas, said-account did not contain a true statement of the said loss or damage, contrary to the body of said policy and the conditions of the same, whereby said plaintiff hath forfeited all claims on defendant.”</p> <p>4th. “At the-time said insurance was made, defendant inquired of said plaintiff whether there was other insurance, or whether the property had been insured in any other office, and plaintiff failed to inform defendant of the fact, although at the time there existed other insurance, to-wit: on the furniture, $2,000 00 and on the merchandise and fixtures, $3,000 00, and that, had said information been given, defendant would not have made said policy.”</p> <p>The fifth plea reiterated the averments of the fourth and that Carrugi’s failure to give notice of said prior insurance was such a fraudulent concealment as avoided the policy.</p> <p>The sixth plea-averred that, after said policy issued, Carrugi obtained other insurance on said property in the Atlantic Fire Insurance Company of Brooklyn, New York, without the knowledge or consent of defendant, and without having the same mentioned in writing in or on said policy, and thereby lost his rights cinder said policy according to its terms.</p> <p>Before going into the trial, the Court ordered the said third plea to be stricken, upon which ground does not appear by the record. /Plaintiff’s counsel read in evidence the policy of defendant. It is in the usual form. It contained the following stipulations material to this cause. The company was not to be liable for musical instruments and certain other things named, “unless separately and specifically insured.” “If the assured, or any other person or parties interested, *shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage on the property hereby insured, or any part thereof, not consented to by this company, in writing, and mentioned in or endorsed upon this policy, then this insurance shall be void and of no effect. And in case any other contract or agreement for insurance (whether valid or not) against loss or damage by fire exists on the property hereby insured, or any part thereof, whether prior or subsequent to the •date of this policy, the insured shall not, in case of loss or damage, be entitled to demand or recover of this company any greater portion of the loss and damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance.” “Any interest in property insured not absolute, or that is less than a perfect title, must be specifically represented to the company and expressed in this policy, in writing, otherwise the insurance shall be void.” Alienation of the property avoided the insurance, and it stated that ■“entry of a foreclosure of a mortgage or the levy of an execution shall be deemed an alienation of the property.” In the clause specifying when and how the proof of loss was to be made, and what it should contain, and that the assured should be subject to examination, etc., was this condition: “If there appear anv fraud or false swearing, the insured shall forfeit all claim under this policy.” The company was not to be liable for more than the actual value of the property insured or what it would take to replace it, and the company was to have the right to replace at its option. Reinsurance for anv other insurance company was to be on the basis of joint liability with said company, and in no event was the company to be liable for a sum greater than such portion as the sum thereby reinsured bears to the whole sum insured on the property by the company re-insured, and in case of loss, this company to pay their pro rata proportion,- at the same time, manner and form, as the company reinsured. It concluded with the declaration that “this' is policy is made and accepted upon the above express conditions.” The written portion of *the policy was to the effect stated in the declaration; but it was nowhere written in or on said policy, that there was any other insurance on said property, or that defendant consented to such.</p> <p>Mrs. Carrugi’s interrogatories were read over thea objection of defendant. She testified that the commissioners read over to her the bill of particulars of the goods lost or missed after the fire; that she could not read English at all, but that the commissioners—one of them acting as interpreter when she did not understand Engish—asked her as to each item; she thought the values were fair as affixed to this bill, and gave her means for knowing their value. She testified that her husband did tell Murdock before this policy was delivered, that Hill had already insured the property for $5,000 00, and that Murdock examined below and declined examining above, and, when he brought the policies, explained why he made two as aforesaid, read over to Carrugi only the written part of the policies, delivered them and received the premiums. It did not appear on the face of these interrogatories that said commissioner, who acted as an interpreter, was sworn as an interpreter.</p> <p>Miss Carrugi’s interrogatories were also read. She thought the list aforesaid correct, but knew not the value of the articles. She also testified to the notice of prior insurance for $5,000 00 with Hill and that Murdock declined examining up stairs before insuring. And this last was also testified to by a stranger, who was present when Murdock declined going up stair's, and he said he heard Hill’s name mentioned, but in what connection he did not remember. Miss Carrugi was then put upon the stand and examined. She then testified that said list was made up after the fire by her father, her mother and herself putting down all the missing articles which either could remember; that she remembered particularly only the furniture and clothing. Plaintiff testified that'he told Murdock that Hill had insured him for $5,000 00 and he wanted $6,000 00 more insurance; that Murdock looked below, expressed himself satisfied and would not go. above, made out two policies, etc., as aforesaid, and that his *wife and daughter and said stranger were present during said conversation. He said he remembered all the articles in the list except the clothing and furniture; said that all his goods, etc., lost by said fire were worth from $18,000 00 to $20,000 00: that the fire occurred in March, 1868, and the claim and demand for payment was made in Aoril. 1868. He admitted that after this policy was made, his $5,000 00 with Hill expired and was renewed, and that he did not inform Murdock of this renewal. He was asked whether the property insured was not mortgage, whether there was not large judgments against him, and whether he was not insolvent, but upon objection by his counsel, the Court suppressed the answer.</p> <p>The plaintiff’s counsel then read to the jury said list of articles. It contained a bill of particulars of furniture, etc., on the upper floor, put down at $1,967 50 (among other articles was a piano at $550 00); wearing apparel, aggregated at $371 45; liquors, etc., in front store, aggregated at $3,422 10; other liquors and restaurant furniture, aggregated at $2,642 34; property destroyed by the fire, but not included in the list as sworn by as aforesaid, $779 00; propertry saved and not in said list, $953 75; Counter, $75 00; making a total valuation of the contents of the house, at the time of the fire, $10,271 14. A witness testified that the prices for the articles in said list were fair, and he and several others testified that Carrugi had a good stock. .One testified that his furniture was worth $1,400 00. Here plaintiff closed.</p> <p>For defendant, Murdock testified that the stock was meager; that he did not go above because Carrugi said the upstairs was the apartments of his wife and daughter, and that he asked as to other insurance, but that Carrugi did not tell him of having any, nor did he know it till after the fire; and he said he and Carrugi were alone when the conversed, except that Mrs. and Miss Carrugi were about twenty feet off, in another room, separated by a partition. He said he had no authority to issue a policy without entering prior insurance thereon. Hill testified, that he, as agent of the Atlantic *Fire Insurance Company of Brooklyn, New York, insured said property for $5,000 00, and renewed it on the 16th of January, 1867, when it had expired; that he did not know he then had other insurance; or would not have renewed his policy, because he thought $5,000 00 was fully three-fourths of the value of the property and, that he had refused to insure it for more than $5,000 00. Defendant’s counsel then read in evidence said policy for $5,000 00, issued by Hill on the 16th of January, 1866. They tendered in evidence a copy of defendant’s, charter, but the Court rejected it. It contained the folowing:</p> <p>“Sec. 11. That in every application for insurance, the applicant or applicants shall well and truly state his, her or their title to the property proposed to be insured, and the nature and amount of any and' all encumbrances thereon, and misrepresentation made in respect to the same shall render the policies issued upon such applications void and of no effect, and the conditions annexed to each policy shall be fully complied with, otherwise the policy shall be void during such non-compliance.</p> <p>“Sec. 12. That if there shall be any other insurance upon the whole or any part of the property insured by any policy issued by said company during the whole or any part of the time specified in such policy, then every such policy shall be void, unless such double insurance shall exist by consent of said company indorsed upon the policy, under the hand of the Secretary; and if such other insurance shall exist by consent of said company, as aforesaid,’and a loss shall happen, then said company shall be holder to pay only its just proportion of such loss, according to the whole amount insured upon- the property damaged or destroyed.</p> <p>“Sec. 13. That if any alteration shall take place which shall increase the risk or hazard of any property insured by said company, by the act of the insured, the insured shall give immediate notice thereof to. the company, and if required shall pay an extra premium for the additional risk; otherwise the insurance shall be wholly void as to such property, and the insured shall be entitled to the return of a just proportion *of the premium paid on the same according to the unexpired time of the policy.</p> <p>“Sec. 14. That in all cases of loss or damage, said company shall be liable only to the extent and value of the interest of the insured in the property damaged or destroyed at the time of the loss.</p> <p>“Sec. 15. That all policies of insurance and renewals of policies shall be signed by the President and countersigned by the Secretary, and may be made either with or without the common seal of the company, and each policy or renewal shall be good to the insured, his, her, or their heirs, devises, executors or administrators, as the case may be, and to the assignee or assignees for collateral security only during the term for which it was insured.</p> <p>“Sec. 16. That any person insured by said company, who shall sustain loss or damage by fire, shall forthwith forward a notice thereof to the company, and shall also forward a statement as soon thereafter as may be, declaring what interest the insured had in the property burned, or whether any, and what other insurance upon the same existed at the time of the fire; whether the loss was sustained by misfortune and without fraud on the part of the insured, and whether the conditions annexed to his, her or their policy has been complied with ; and the declaration so made shall be subscribed by the insured and sworn to before and certified by a magistrate most contiguous to the place of the fire, not interested in the loss and not related to the insured, and the same shall be accompanied by a certificate from the said magistrate, that he verily believes the statement so made is true; and fraud or false swearing in the premises shall subject the injured to the forfeiture of all claims for loss or damage under the policy.”</p> <p>It was then shown that in 1867 Carrugi’s property was returned for taxes, the upper, story at $1,500 00, merchandise $500 00 and other property $500 00; but whether Carrugi made the return, did not appear. It was also shown that in 1868 the stock was taxed at $1,000 00.</p> <p>The evidence closed. The Court charged the jury among *other things, that if Carrugi notified Murdock, defendant’s agent, before this insurance was effected, that he had previously insured with Hill’s company, it made no difference whether this was reduced to writing and entered upon this policy or not—it was a waiver by the company and the company was bound nevertheless; and that if Murdock had such notice before giving this policy, and if Hill’s policy expired after this was issued and Hill renewed his, defendant was liable notwithstanding defendant had no notice of such renewal. The jury found for the plaintiff for the full amount, without interest. The company assign as error the overruling of said plea to the °jurisdiction; striking of said plea to the merits; allowing the interrogatories of Mrs. and Miss Carrugi; allowing Miss Carrugi to testify after her interrogatories had been read; overruling the objection to said list of articles as evidence; rejecting the charter of said company and the charge as given.</p>

<p>1. CHARGE OF COURT — VERDICT —NEW TRIAL.*—A charge of the Court, though erroneous, which does not affect the verdict, is not a good ground for a new trial.</p> <p>3. ISSUE OF FACT—EVIDENCE—VERDICT-.—In an issue of fact, if there be evidence on both sides, this Court will not disturb the verdict unless it be strongly and decidedly against the weight of testimony. i</p> <p>3. ADJUSTMENT OF CLAIMS*—ORDINANCE OF 1865.†—In cases coming under the Ordinance of 1865, in relation to Confederate contracts, the jury have a large discretion in the adjustment of the equities between the parties under the contract.</p> <p>4. EXECUTION OF INTERROGATORIES—WITNESSES.— Section 3820 of the 'Revised Code prohibiting the presence of a party, his agent or attorney at the execution of interrogatories to be used in a cause does not apply when the witness examined is a party to the suit himself.</p> <p>5. PAROL EVIDENCE:‡—CONTRACTS—SCALING ORDINANCE.—Parol evidence contradicting the terms of a written contract is not admissible on the ground that the contract is included within the Scaling 'Ordinance of 1865.</p>

Intruders. Agency, Trespass. Before Judge Knight. Gilmer Superior Court. May Term, 1870. The attorney of Montgomery, as administrator of William R. King, made an affidavit against Sarah Walker to eject her, as an intruder, from certain land which belonged to King. Upon that a warrant was issued, on the 23d of January, 1868, and, under it, on the same day, the sheriff ejected Sarah Walker from the premises and put said attorney in possession, to hold for his said client.

Vendor’s Lien. Bona fide purchasers. Before Judge Harrell. Randolph Superior Court. May Term, 1870. The bill of Sanders made the following case against McAffee and Owens: On the 9th of October, 1861, Sanders sold to Samuel W. Anthony, now residing out of this State, the north half of land, lot number eighty-seven, in the ninth district of said county, made him ¿ fee-simple title thereto, and Anthony went into possession thereof under his deed.

<p>1. SATISFACTION OF JUDGMENT—LIENS—AFFIDAVIT* —Where there was a judgment against S., a garnishee, in-a suit in favor of T. & Co. against H., and S. after the judgment, pays the money to a judgment in favor of B. against PL, of older date than the judgment of T. & Co. v. H., S. having also been served with summons of garnishment in B.’s suit v. H.:</p> <p>Held, That this was a satisfaction of the judgment of T. & Co. v. S., unless it be shown that B.’s judgment was not, in fact, the oldest lien, and the whole question of the payment, and which of the judgments was, in fact, the oldest, may be inquired into on an affidavit of illegality by S., setting up the payment to the oldest judgment.</p> <p>2. AFFIDAVIT—PRACTICE—EVIDENCE.—Where the Judge of the Superior Court required the affiant in an affidavit of illegality to an execution, which affidavit was quite voluminous, to make a brief of the grounds taken in the affidavit, in the shape of a motion, this was not such error as this Court will correct, it being mere matter of practice, for the convenient transaction of the business of the Court. But in so doing, if a material allegation in the affidavit is not included in the brief, 'it is error in the Court to reject evidence going to support it,' and confine the defendant to the brief.</p>

*Wills. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. Daniel Huff made a paper in the form of a will, by which he gave-certain property to his wife during her life, in lieu of dower, certain stock to Warren C. Huff, in trust for two of Warren C.’s children, and the residuum to said Warren C. reciting that he did this because his estate was reduced by the war, and because he had given his other children as much as this residuum.