Volume 42 — Georgia Reports

Murder. Insanity. Jurors. Before Judge Johnson. Muscogee Superior Court. May Adjourned Term, 1870. At November Term, 1868, of said Court, said Anderson was indicted for the murder of his wife, in said county, on the 13th of August, 1868.

<p>Motion for new trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.</p> <p>Sparks averred that he hired a horse to Brunson for a few days to plough, for reasonable reward, and that while Brunson so had him, he so carelessly and negligently managed him as to allow him to run away with the plough and thereby he was mortally wounded, to the damage of Sparks the value of the horse. Brunson pleaded not guilty.</p> <p>That the horse was hired, was wounded, and died next day, and his value, was shown. For the plaintiff it was shown that a tenant of Brunson called at Brunson’s request to borrow the horse, and said it was for Brunson, and that Brunson would pay for it; that he got the horse and gear, ploughed him all day, and upon returning home, the horse turned out of the road, the tenant pulled the line, it broke and the horse ran away. This tenant said that he was not in fault, but that the matter was attributable to the worn line which Sparks had loaned, with which to work the horse.</p> <p>The defendant testified that he did not know Sparks, had moved into the neighborhood only three days before, found said tenant on the premises, and consented that he should remain and cultivate a parcel of ground for half of its products, and that he suggested to the tenant to plough it, and the tenant went of his own accord and borrowed the horse, without any instructions from him. The jury found for the plaintiff the value of the horse. Defendant moved for a new trial upon the ground that the verdict was strongly and decidedly against the weight of the evidence. The Court refused a new trial, and that is assigned as error.</p>

<p>Abatement. Bankruptcy. Before Judge Johnson. Muscogee Superior Court, May Term, 1870.</p> <p>Conner brought ease against said Company for the loss of his goods. When the cause was called for trial, defendant’s counsel said plaintiff could not proceed because, pendente lite, Conner was adjudged a bankrupt. This was admitted, and plaintiff’s counsel then proposed to make Conner’s assignee in bankruptcy a party plaintiff. It was replied that he had been discharged and this was admitted; but the assignee was present and consented to be made a party. The Judge said the cause had abated, and refused to make the assignee a party. Conner’s counsel then stated that they were interested, having a fee of fifty per cent, on the recovery, and proposed to have the cause proceed in Conner’s name for their use. This was refused, nothing more appeared and the cause was held to have abated. These refusals and this holding are assigned as error.</p>

<p>Held, That he was premature. R.</p>

Bes Adjudieata. New Trial. Practice. Before Judge Johnson. Muscogee Superior Court. May Adjourned Term, 1870. This cause was brought before this Court at June Term, 1870, without any motion for a new trial having been made in the Court below.

Equity. Administrator. Bill for Direction. Before Judge Johnson. Talbot Superior Court. September Term, 1870. The following facts appear by the bill and amendments of Jeter, as administrator of Copeland: In 1860 Copeland died, intestate, leaving a large estate. ■ The widow administered, but her letters abated by her marrying. One Gamble became administrator de bonis non. The widow’s second husband died, and she married Jeter in 1864.

Equity. Receiver. Bill of Exceptions. Before Judge Clark. Chambers, Macon county, October, 1870. Einstein & Eckman, and others, filed a bill containing the following averments: Barnard Golinski, of Albany, a trader, owes Einstein & Eckman, Robert Zacharias, and Meyer, Cohen & Company specified sums of money on drafts due respectively on the 19th, 1st and 18th of October, 1870. These drafts were given for goods bought by said Golinski from said respective parties.

<p>When a motion is made to continue a case for the purpose of procuring testimony, the Court may require the showing to be reduced to writing and sworn to by the party moving the continuance; but if the opposite party will admit and does not contest the truth of the facts expected to be proved, the continuance should not be allowed. But it is error for the Court to overrule the motion for a continuance on the ground, that the opposite party will simply admit the facts expected to be proved, and then allow such opposite party to contest the truth of the facts admitted. To avoid the continuance of a case for the purpose of procuring testimony upon a proper showing made therefor, under the 3472d section of the Code, the opposite party must admit, in writing, the facts expected to be proved, and agree that he does not contest the truth thereof.</p>

<p>Where the evidence of the plaintiff in the action, is insufficient, in law, to entitle him to recover, the defendant may demur thereto, and demand of the Court a judgment of non-suit; but, if the demurrer to the evidence is overruled by the Court, then the defendant, according to the long and well settled practice of the Courts of this State, may go before the jury and contest the plaintiff’s right to recover, by the introduction of evidence in his own favor. The overruling the defendant’s demurrer to the plaintiff’s evidence has never been held by the Courts of this State, since the adoption of the Judiciary Act of 1799, to be conclusive as to the plaintiff’s right to recover the money or property sued for.</p>

<p>When there was a trust-estate for a woman and her children, and by the terms of the trust the husband was entitled to the annual income for the support of himself and family, without account, and an action was brought, at law, to make the trust-estate liable for necessaries furnished the beneficiaries and the trust-estate, and it appeared that the husband, owning a plantation side by side with the other, worked them together as one place, and, during the year, supplies were furnished him and goods sold to the hands on orders from him, as an advance on their part of the crop, and the share of the hands was, at the end of the year, to the extent of these advances, retained and sold with the general crop, and the jury found for the plaintiff the full amount claimed:</p> <p>Held, That there was no error in the Court, in granting a new trial, on the ground that the jury found contrary to the evidence.</p>

Constitutional Law. Relief. Before Judge Coee. Dooly Superior Court. April Term, 1871.

<p>Where the Court below granted a new trial upon the ground that the verdict was contrary to the evidence, and it appears from the record that there was conflicting evidence in the case, and sufficient testimony to have sustained the finding of the jury':</p> <p>Held, That, while this Court will, reluctantly, interfere with the province of the Court below in granting new trials, yet, it is important to the fair administration of justice that, in all cases where the verdict of the jury is not strongly and decidedly against the weight of evidence, new trials on this ground ought not to be granted.</p> <p>Where, during the trial of a cause in Court, two jurors go into a grocery to take a drink with a third party, and meet one of the parties plaintiff in the grocery, and the other party is called in, and takes a drink, and before leaving the party, defendant, thus called in, treats to cigars, and one of the jurors takes from his roll of money a twenty-five cent piece, and hands it to the bar-tender, and the same juryman also takes off the bottle of whiskey, all this being known to the plaintiff, and transpiring in his presence:</p> <p>Held, That such conduct by jurors is reprehensible, and the exculpatory affidavits filed do not relieve it of all obnoxious appearances. Yet as the plaintiff was cognizant of it, and informed his counsel, and no motion was made in the premises, but the case went on to verdict without objection, the granting a new trial, on this ground, was not authorized under the rules of law.</p> <p>When the Judge charged the jury that, whilst it is true, as a general rule, that two or three witnesses are better than one, and will be more readily credited, yet, in this ease, upon the point of what this contract was, if the jury believed that the contract was made between one of the plaintiffs, Mr. Wright, alone, and the defendant, it is witness against witness, and the plaintiffs cannot sustain their version of the contract without additional proof:</p> <p>Held, That such charge was error, that the witnesses being both of them parties, the case ought to have been submitted to the jury to determine the credibility under all the facts and evidence of the case, and that the Court ought to have granted a new trial on this ground.</p>

<p>Stay-Resolution. Sheriffs. Practice. Supreme Court. Before Judge Cole. Bibb Superior Court. May Term, 1870.</p> <p>In July, 1869, Huson obtained a judgment, in said Court, against G. B. Roberts and W. L. Stark. (See Huson vs. Roberts, et al., 40th Georgia Report, 30.) Fi. fa. issued upon said judgment on the 21st of March, 1870, and was handed to the sheriff for collection. He having failed to make the money, was, at May Term, 1870, ordered to show cause why he should not pay Huson the amount of the fi. fa. His answer does not appear by the record. But sufficient appears to show that his excuse was that defendants claimed tli&t said fi. fa. was founded upon a debt made prior to June, 1865, and was, therefore, stopped by the stay-resolution of 1870, viz: (“That all the proceedings in the several Courts of this State founded on any debt or contract made or entered into before the first of June, 1865, and all levies and sales by virtue of any execution so founded shall be and are hereby stayed until twenty days after the recess taken by this General Assembly shall have expired/’) and promised him if he would not levy they would protect him, and pay the debt if the Court decided that he ought to have levied. The Court held this excuse to be insufficient in law, and ordered the sheriff to pay the amount due on the ji. fa. Failing to do this, he was called on to show cause why he should not be attached for contempt. To this he replied, as aforesaid, with this addition : He was advised, and believed it was right, to decline levying under the circumstances and therefore declined. The Court granted an order that he be imprisoned till he paid said ji. fa. The granting of the said two rules is assigned as error.</p> <p>When the cause was called here, the record in Huson vs. Roberts et al., used in another case, to-wit: Huson vs. Martin was agreed to be used here. The Judge certifies that said record was not used before him in the Court below. It is immaterial to say more about it here than that Martin’s counsel said the case was covered by the resolution, because the contract was made before June, 1865, but Huson’s counsel said that the judgment was for a default occurring after the 1st of June, 1865. Counsel for defendant in error moved to dismiss the writ of error because it was double, in that the rule for the money and the rule for contempt were distinct causes. This was held to be no ground for dismissal. They then moved to compel counsel for Martin to elect upon which of said cases they would proceed. The Court held that there was but one case in the bill of exceptions.</p>

<p>Sheriffs. Practice. Stay-laws. Before Judge Cole. Bibb Superior Court. May Term, 1869.</p> <p>Huson’s counsel ruled the sheriff for not collecting his fi. fa. against Roberts et al., obtained a judgment requiring him to pay the amount, and, on his failure to pay, an order absolute for his imprisonment till he did pay said amount to Huson. The sheriff sued out a writ of error and thus superseded said judgments. At the same time, pending this supersedeas, Huson’s counsel stated to the Court that the pretence by which the sheriff had been induced not to make the money, was that it was for a debt contracted prior to June 1865, and was therefore stayed by the Stay-resolution of 1870; that said resolution and the Relief Act passed afterwards were unconstitutional, and, if not, that this cause was not covered by them. To prove this, they presented the original record and evidence in Huson vs. Roberts et al: 40 Ga. R., 30. And without making Roberts et al., parties to the motion, moved the Court to order the sheriff to proceed to collect said fi fa., notwithstanding said Stay-resolution and Relief Act.</p> <p>The Judge declined to grant such order, upon the ground that the fi. fa. itself was an order for the sheriff to proceed, and because he had just passed the orders absolute aforesaid, because of his failure to proceed. This refusal is assigned as error.</p>

Warranty. Before Judge Cole. Bibb Superior Court. November, 1870. Stroberg claimed damages from Burge for the breach of a verbal warranty of a horse. The evidence sufficiently appears in the opinion. The Court was requested to charge the jury, that if Burge simply said that his horse was fourteen years -old, without intending to represent him as no older, Burge was not liable for misrepresentation as to the age of the horse.

<p>Trade-Marks. Copy Right. Equity Practice. Before Judge Clark. Chambers, Bibb County. August, 1869.</p> <p>J. H. Zeilin & Company sought to enjoin Ellis from making and vending certain medicine in such packages and wrappers as was calculated to injure their sale of a similar medicine for which they had a patent. The similarity of the packages and wrappers cannot well be shown here. The main charges in the bill are set forth in the opinion. Judge Cole being related to complainants, referred the bill to Judge Clark. He ordered Ellis to show cause why the injunction should not be granted. Pie answered, and, after argument had, Judge Clark ordered the injunction to issue.</p> <p>Subsequently, Ellis demurred to the bill because it had no equity, because J. H. Zeilin & Company showed no exclusive right to make and vend such medicine, and because the bill showed that their medicine was a quack remedy, a deceit upon the public, and not deserving the protection of a Court.</p> <p>Complainant’s counsel contended that the demurrer could not be entertained, because, by the granting the injunction after a hearing, from which no writ of error was sued out, the matter was res adjudieata. Judge Clark overruled the demurrer, and that is assigned as error.</p>

Trusts. Marriage Settlements. Ejectment. Before Judge Cole. Bibb Superior Court, May Term, 1870. Held: possessed, and enjoyed by the said Elizabeth, and further, that the said Elizabeth may dispose of the said property by her last will and testament.

Party as witness. Practice. Before Judge Cole. Bibb Superior Court. May Term, 1870. Stotesbury brought complaint against Lanier, as administrator of Cinthia Wimbish, upon an open account. The gist of plaintiff’s cause was, that he had entrusted intestate with certain articles to keep for him, that they had been converted since her death, and that her estate was liable for their value.

<p>1. Where there was a question of fact, as to whether there had been a formal gift by the father to the son, of real estate, with delivery of possession, under such circumstances as made the gift good against creditors of the father, and there was evidence on both sides, and the whole question of law and fact, was submitted to the Judge, this Court will not disturb his judgment, unless it be strongly and decidedly against the evidence.</p> <p>2. To make a valid gift, there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift, inter vivos, (R).</p> <p>3. The legatee of a specific bequest of real estate, under a will, who has the assent of the executor to the legacy, has not such a title, as gives him a right to take a homestead therein, to the exclusion of the creditors of the testator.</p>

<p>Equity Practice. Injunction. Before Judge Cole. Bibb County. Chambers. December, 1870.</p> <p>On the 29th of November, 1869, Cubbedge & Hazelhurst filed a bill against Adams, making this case. They are bankers and brokers, and Adams is a cotton buyer; all live in Macon, Georgia. Adams has been one of their customers, for several years; has procured large advances of cash fro in them; has occasionally been largely in their debt, and, on such occasions, secured them against loss, as far as he could. Up to the close of their business relations, he always asserted his readiness, and ability to protect them against loss, for advances. From the foregoing facts, they placed implicit confidence in Adams’ said assurances. Besides, Adams frequently exhibited to them his monetary status, to induce them to continue such advances, and to satisfy them of the safety in so doing. Up to the closing of their account, they believed that all Adams’ property was pledged, as a security, for such advauces. At the close of the cotton season of 1869-70, Adams owed them $9,308 97, and they paid a small amount for him since. Calling upon him for a settlement, they were astonished to find that he could not settle, and, upon inquiry, learned that Adams has conveyed all his property, with unimportant exceptions, to one Flanders, of Macon, his brother-in-law, in trust, for the wife and children of Adams, as appeared by a copy of the deed exhibited. The deed was made on the 22d of September, 1869; its consideration was “love and affection,” and it conveyed to Flanders, in trust, for Mrs. Adams and her children, by Adams, in esse, or to be in esse, free from the disposition and contracts of Adams, with power in her to change the trustee, and with power in him to sell, with her written consent, without applying to any Court. It conveyed Adams’ residence, and all his household and kitchen furniture, part of lot number six, south half of number one, square number fifty-eight, numbers sixteen and seventeen, all in Macon, and twelve hundred and eighty acres of land in Missouri. This deed was recorded in Bibb county, on the 8th of March, 1870. This deed was made to defraud them, and other creditors, and it was withheld from record, that Adams might continue to get credit upon faith of his owning said property, and that, too, when, as they believe, he was insolvent. At the date of said deed, Adams owed them $7,900 00, and, without giving them any notice of his deed, he continued business with them without means to secure or pay them. Further, Flanders has been discharged, and Adams has been substituted as trustee. Under said deed, he has sold two pieces of property covered by said deed, and has advertised other portions of it for sale. Adams admits that he used the proceeds of said sale as if the money belonged to him absolutely. His family have enjoyed the money advanced by them to him, and said property conveyed is subject to the payment of their demand, whether this deed be annulled or not. They have reason to believe, and do believe, that Adams will sell all of said property, and convert its proceeds to his own use, unless he be enjoined. They prayed for an answer to said allegations, that said deed be declared void as to them, and that Adams be made to pay them said account. The Chancellor granted a temporary injunction, and ordered Adams to shew cause why it should not be continued.</p> <p>He made the following answer, in response to said order He admitted that he was in their debt, on the 22d of September, 1869, and said that indebtedness was in this way: They held his note for $4,025 00, made on the 3d of September, 1869, secured by a deposit of one hundred and seventy-nine shares of stock, in the Macon and Brunswick Railroad Company. Soon after, but perhaps after'the 22d of September, 1869, they sold one hundred of said shares for $3,300 00, and applied.that to the part payment of said note, and they hold the other shares yet. Besides this, as appears by his bank book, he owed them on the 22d of September, 1869, $7,930 20. On the 23d of September, 1869, he deposited with them $7,197 55, and on that day issued checks amounting to only $107 17; so that, exclusive of said note, and leaving out any reckoning of usury, he owed them when the deed was made $839 82. Said deposit was .proceeds of cotton owned and held by him, on the 22d of September, 1870. Estimating said stock at $30 00 per share, said shares would overpay said note by $1,341 00, which added to said deposit would overpay all of said indebtedness.</p> <p>When said deed was made, he kept out realty and railroad stock in Georgia worth, as he believes, $6,400 00, besides an interest in two lots, supposed to contain copper, for which he would take $5,000 00; it was worth but little if it has no copper. Since making said deed he has sold considerable of the realty, not covered by the deed, and this he was compelled to do, to prevent possible loss on cotton bought since the deed was made. This deed was not made to defraud any creditor; loss was not then anticipated, and his property outside of said deed, was on the 22d of September, 1867, sufficient to pay all his debts, except some advances which had been made by his father-in-law, which he regarded when they were madejas debts which would never harrass or oppress him, and so he has been assured by his father-in-law > the larger part of these were used in paying for said residence, and he .regarded it as a gift to his wife, rather than a debt against him. He made the deed simply to protect his family against possible losses by him in business. Before he did it, he was advised by Hazlehurst to make such provision, and he told him he would. Since making it he sold one of the lots covered by it, at $900 00, and used the money, (so far as used at all), in family expenses; he may have used part of complainants’ advances in the same way, but the bulk of them was used in purchasing cotton.</p> <p>During the several years of his business with complainants, they charged him from two to two and a half per cent. per month as interest, and this usurious interest is necessary to make up said claim against him. What part is usury he does not know accurately, but the commissions and interest charged by them against him, from the 19th of August, 1867, to the 9th of October, 1869, is $1,847 02. What interest was charged from January, 1866, to the 19th of August, 1867, he does not know; the interest charged from the 9th of October, 1869, to the 17th of August, 1870, is $1,615 26. He claims this usury as a credit.</p> <p>Complainants then submitted affidavits of the following purport. Hazel hurst affirmed that he had had a conversation with Adams, touching a settlement on his family, before the date of said deed, to-wit: in the spring of 1868, when 'Adams had been successful and could make a settlement and have enough to pay his debts besides; that this was merely a casual conversation. Adams did not say he would, and did not tell him that he had done so, nor ever alluded to the subject, and the setlement was discovered by accident; and that complainant did not charge two and a half per cent, interest per month, as stated in the answer, so far as he could discover from the firm books. Cubbedge affirmed that Adams had frequently said to him that he owed his father-in-law, Flanders, more than he owed complainants, and regarded it as a debt; said they had not charged him usury as stated in his answer; has admitted that his family got, in the aggregate, as much as a year’s support out of their advances; that, since said deed was made, Adams has more than once treated the property covered by it as his own, and used a part of the proceeds of that which was sold. He and Hazelhurst both affirmed that Adams had, by assurances, etc., led them to believe all his property was bound for their advances, and this last was affirmed also by their bookkeeper. Further, he said, no collateral was ever required for any balance or draft, but they dealt with him upon the faith of his having property sufficient to meet the same, and the relations of the parties in business were very confidential; he also says they never charged Adams usury, as claimed by him in his answer.</p> <p>Other affidavits stated the indebtedness of Adams, on the 22d of September 1869, as follows: To Rice & Davis, Boston, $4,000 00 ; to Hardeman & Sparks, $1,852 24; to Harris, Clay & Company, $29 35; to 8. Anderson, $78 62 ; to S. T. Coleman, $194 13; to J. L. Shea, $85 00; lo F. Lake, $375 00; to J. H„ Hertz & Company, $67 00; to A. P. Collins, $75 00; to Heath, Tax Collector, $181 00; to Singleton, Hunt & Company, $57 00; to Mix & Kirtland, $41 15; to J. W. Burke & Company, $54 66 ; to the City of Macon, $135 00.</p> <p>In support of his answer, Adams affirmed that the conversation alluded to in his answer, when Hazelhurst advised him to make such settlement, occurred just before he did make it, on the sidewalk opposite Strong’s store; that his indebtedness was several hundred dollars less, when said deed was made, than he had stated in said answer; that Hardeman & Sparks’ debt was for cotton bought before the 22d of September, 1869, and then on hand; the draft drawn against it. was deposited with complainants, and when the cotton was sold, its proceeds were applied to the payment of the draft; that the Rice & Davis debt was for cotton shipped to them ; a draft was drawn in favor of complainants against it, the cotton, was sold, paid the draft, and left a surplus of $390 00, which should be added to his assets; that he has paid said debts due to Heath, tax-collector, Burke & Company, and City of Macon, and part of some others of said debts mentioned in affidavits aforesaid; that, excepts Shea’s and Hertz’s, said demands were for family supplies and taxes and work on the residence lot; Shea’s and Hertz’s being for clothing, mostly for himself, and that he either thought some of said accounts were paid or overlooked them in estimating his indebtdness. Flanders affirmed that, as to the advances made by him to improve said residence, he supposed Adams and his family always considered them as a gift to the family, and that he never intended embarrassing Adams in any way with respect to them.</p> <p>After reading these pleadings and affidavits, complainant’s counsel proposed to except to Adams’ answer and have him answer over. The Chancellor would not allow it, saying it could not be done upon this motion; but that if it were evasive or insufficient, he would consider it in deciding upon the injunction. They then proposed to swear Adams, (who was present,) and examine him orally touching the matters in which they thought his answer insufficient and evasive, and as to the whole controversy. Adams’ counsel objected and the Chancellor would not allow that done. It was admitted that counsel for Adams had been asked before the hearing if he would consent to have Adams so examined, and that he refused, and that he was also asked if he would advise Adams to refuse to give complainant’s counsel an ex parte affidavit to be used against him, and said he would not.. (Counsel said here in argument, that he so objected and refused only because said requests were illegal, and not because he feared Adams had withheld any part of the truth.)</p> <p>After argument, further injunction was refused, and the temporary one set aside. Complainant’s counsel say the Court, erred in refusing to allow them to except to said answer, and to examine Adams orally, and in refusing the injunction prayed for.</p>

Mortgages. Injunctions. Before Judge Cole. Bibb county. Chambers. March, 1871. Peyton’s bill made this case: In May, 1870, he loaned Neville $300 00, and took his note therefor, and borrowed for Neville other $700 00, and stood his security therefor. Neville was then publishing and conducting “ The Macon Daily Journal,” with Harrison and Ricks as his partners.

Guardians. Interest. ‘ Before Judge Green. Munroe Superior Court. August Term, 1870. Thomas Walker died testate.

Securities. Equity. Before Judge Gibson. Upson Superior Court. May Adjourned Term, 1870. All the facts necessary to an understanding of the points in this cause, passed upon by this Court, are set forth in the opinion.

<p>Verdict. New Trial. Before Judge Green. Newton Superior Court. September Term, 1870.</p> <p>This was complaint against Bruce upon his due bill for $120 00, given on the 19th of May, 1868, as “balance of settlement.” Bruce pleaded that this due bill was the ending of a long, detailed course of borrowing money by him from plaintiff’s testator, that its sole consideration was usury, and pleaded also an excess of usury paid, as a set-off. After hearing all the evidence, and the charge, the jury found for .plaintiff for $137 50, being principal and interest. Defendant moved for a new trial, upon the grounds that said verdict was larger than the principal sum sued for, and because the verdict was decidedly against the weight of the evidence, etc. The new trial was refused, and that is assigned as error.</p>

<p>3. Where an action brought against a corporation by its corporate name, was proceeding in Court, and such defendant pleaded that it was dormant, and not using its franchises conferred by its charter, and the evidence under such plea was rejected by the Court, and the record shows that the corporation was created under the Act of 1847, adopting the name of the "Newton Manufacturing Company," and that by such name it had commenced business, and that one party had purchased out and took sole control and ownership of the stock and property, and that under the same name, the business was continued after such purchase, the same agents remaining in the ordinary and accustomed discharge of duty, the books appertaining to the business, and brands or stamps upon the manufactured goods being carried on unchanged, and that in the case before the Court, certain cotton was procured for the Newton Manufacturing Company, contracted for by an agent in its name and received by it:</p> <p>Held, That the fact of one becoming the owner of all the shares of stock and property of said company, did not, under the facts, render the corporation dormant, or forfeit the franchise of the company ; and as long as the company, by its officers and agents or owner, carried on the business in the corporate name, it was by that name liable to suit for all contracts made in its name, and the right of suit exists until the liability so incurred was discharged, and it was not error in the Court to disallow testimony of dormancy, which would have been neither pertinent nor material.</p> <p>2. Where, upon contract entered into for cotton, the party had his election to require the return of the cotton at places specified, or payment in money therefor:</p> <p>Held, That a demand for settlement, and refusal to pay for the cotton, dispensed with any formal notice of election, and constituted sufficient demand and notice before the institution of suit to predicate the action. (</p> <p>3. When, in the progress of the case, evidence was rejected by the Court, to the effect that at the time the contract sued on was alleged to have been entered into by the defendant, a party was the owner in fact of the property of such Newton Manufacturing Company, evidence having been offered to show such dormancy of the corporation:</p> <p>Held, Under the facts where the business was carried on in the charter-name, with the knowledge of the said stock-owner, and under such name the contract sued upon, by the agent of such company was entered into, that the evidence was not material to the issue in the case, as it made no difference as to the fact of who owned the property. If the business was carried on in the corporate name without notice to the public of such sale or transfers, the suit was properly brought against the corporation.</p> <p>4. Where in a matter of fact evidence has been submitted to the jury, and the charge of the Court has fairly presented the questions at issue and the law thereon to them, and they have found a verdict sustained by such testimony:</p> <p>Held, That this Court will not grant a new trial or reverse the Court below refusing to grant a new trial upon this ground.</p>

Dormant Judgments. Set-off. Equity. Before Judge Green. Newton Superior Court. September Term, 1870. This cause was before this Court heretofore. See Camp vs. Pace, 40th Georgia Reports, 45. When the judgment of this Court was made the judgment of the Superior Court, Camp had his fi. fa. levied upon the intestate’s property.

Ejectment. New trial. Before Judge Gkeen. Pike Superior Court. October Term, 1870. In July, 1850, Doe brought ejectment for certain land in said county upon the demises of Edmond Blalock, Jonathan Harkness and Caleb Thompldns against Roe, casual ejector, and William Raden, tenant in possession. The pleas were the general issue and the Statute of Limitations. In April, 1857, there was a verdict for defendant.

<p>Principal and Agent. Attorneys at law. Novation. Slave debts. Before Judge Green. Upson Superior Court. November Term, 1870.</p> <p>The facts of this cause are in the opinion. When it was called here, counsel for defendant in error moved to dismiss the bill of exceptions, because the contest was as to whether this were a debt for the hire of slaves and, therefore, this Court had no jurisdiction to hear it under the constitutional prohibition of jurisdiction over such debts. The motion was overruled.</p>

Distress-Warrants. Before Judge Grees. Upson Superior Court. November Term, 1870.

Emancipation. Wills. Before Judge Bigby. Troup Superior Court. November Term, 1869. On the 18th of December, 1858, Nathan Truitt of said county, made a last will and testament, by which he disposed of most of his property to his wife and his daughter, Mrs. Willis.

Landlord and Tenant. Rent. Equity. Before Judge Bigby. Troup County. Chambers. September, 1870. Hall’s bill against Holmes and wife, filed in July, 1870, made this ease: He rented from Holmes, as agent of bis wife, the LaGrange Hotel, at $720 00 per annum, payable in monthly installments of $60 00, upon condition that Holmes would repair the premises, the garden, negro quarters, and especially the roof of the hotel, then evidently in a leaky condition.

Verdict. Interest. Continuance. Before Judge Bigby. Carroll Superior Court. August Term, 1870.

<p>Costs. Estoppel. Judgments nunc pro time. Before Judge Lochrane. Fulton Superior Court May Term, 1871.</p> <p>In May, 1869, Calhoun obtained a verdict against the Mayor and Council of Atlanta, for $99 46, and entered judgment thereon for said sum as principal, and for “$- for his costs in this behalf expended,” etc. The defendant sued out a writ of error to this Court. Pending that writ of error, the parties were in treaty as to settling the ease. Defendant would not agree to pay the fees of plaintiff’s witnesses, but said he would pay if plaintiff would receipt the jd. fa. as follows: “Received of the defendant the sum of $106 00, in full of the within judgment.” Plaintiff’s counsel refused to agree that plaintiff should pay his own witnesses’ fees. Defendant’s counsel replied that he would pay said amount, $106 00, (which was in full of principal and interest,) if said receipt was given, and would risk the effect of the receipt. The receipt was then signed, and the $106 00 was paid. Afterwards, plaintiff’s counsel brought the foregoing facts to the notice of the Court and prayed to fill said blank in the judgment for costs, nune pro tuno, with the sums due by plaintiff for the fees of plaintiff’s witnesses.</p> <p>Besides the above, it was agreed that the Clerk’s costs had been paid, and that no costs were entered into said judgment or fi. fa., though the witnesses had proved their subpoenas, and delivered them to the Clerk on the day that the judgment was entered up, and before the ji. fa. was issued. And it seems to have been conceded that these witnesses were sworn on the trial. The proceeding was in the name of the plaintiff, for the use of the witnesses named in the motion. The Court overruled the motion, and that is assigned as error.</p>

Equity. Release of Lien of Judgment. Before Judge L'ochrane. Fulton Superior Court. October Term, 1870. Seago bought certain land from Sasseen, on the 8th of August, 1868, sold part of it to one Smith for $1,505 00 on credit, giving Smith his bond for titles. On the 7th of April, 1869, Smith agreed to sell his part of the land to Harrison for $1,600 00. Adair, a real estate dealer, negotiated this trade between Seago and Smith and Smith and Harrison.

<p>Bankruptcy. Surety. Lex Loci Contractus. Before Judge Hopkins. Fulton Superior Court. October Term, 1871.</p> <p>On the 22d of May, 1822, at Atlanta, Georgia, J. J. Morrison gave to Phillips his promissory note, due six months thereafter, with said Solomon as his security thereon. Upon this note Phillips sued Morrison as Maker, and Solomon as security. Morrison pleaded that on the 21st of January, 1869, he was “legally released” from said contract by a discharge in bankruptcy granted to him by the District Court of the United States, for the Northern District of Georgia. Solomon pleaded among other things “ that he entered into said contract on the 22d of May, 1866, in said State, solely as a security for said maker,” that said maker on the 30th of May, 1868, filed his petition in said United States District Court for a release from all debts, claims, liabilities and demands which could be proved against his estate in bankruptcy, under the Act of Congress of the United States, etc., approved the 2d of March, 1867, and was, on the 21st of January, 1869, legally released from the same by said Court, as appears by his discharge (fully set forth); that said note was at the date of said application and discharge, and is yet, a debt which by said Act was provable against said Morrison’s estate, and which existed on the 30th of May, 1868, and is not nor ever was such a debt as is by said Act excepted from the operation of a discharge in bankruptcy; that by that means said Morrison has been discharged from all liability on said note to said Phillips, and said Morrison’s obligation on said note on the said day of said discharge became extinct. And by these means, according to the laws of Georgia, under which said contract was made, the said Solomon’s obligation, which was only accessory to that of Morrison, became also extinct.</p> <p>The note was read in evidence by plaintiff. The discharge as pleaded was admitted. Phillips’ counsel demurred to said plea of Solomon, and the demurrer was overruled. Thereupon, no other evidence being introduced, the Court charged the jury that if the obligation of the principal had become extinct by his discharge in bankruptcy, the surety was discharged, and they should render a verdict for the defendants. This was done. Phillips’ counsel say the Court erred in overruling said demurrer and in said charge to the jury.</p>

<p>Criminal Law. Arrest of Judgment. Before Judge Parrott. Murray Superior Court. October Term, 1870.</p> <p>All that appears by the record of this case is as follows: At October Term, 1867, Judge Milner, then presiding, issued an order, reciting that at the then last term of the Court Garner was put upon trial for riot, and, after all the evidence for the prosecutoin had been introduced, withdrew his plea of not guilty and pleaded guilty; and an order requiring him to show cause why he should not then be sentenced for said crime. At October Term, 1870, before any sentence was passed upon him, his counsel withdrew said plea of guilty and pleaded not guilty. At this last term his counsel moved in arrest of judgment, upon the ground that the withdrawal of the plea of guiffiy and the plea of not guilty were a bar to further proceedings against Garner until trial and conviction. In this motion it is said that said withdrawal “ was recognized and allowed by the then presiding Judge.” Judge Parrottoverruled this motion in arrest of judgment at October Term, 1870, and sentenced Garner. The bill of exceptions recites that said withdrawal was before the Court adjourned, but after the jury was discharged from the consideration of the case; that the Judge was notified of said withdrawal, “and hence said Judge, in October, 1867, did not pronounce any sentence or pass any judgment against said defendant.” This refusal to arrest the judgment is assigned as error.</p>

<p>The widow’s right to dower in the lands of which her husband died seized and possessed either by deed, or in law, is a legal right of which she cannot be barred except in the manner as provided by law, that is to say, her relinquishment of her right to dower must be made in the manner as prescribed by law.</p>

<p>Statute of Frauds. Part Performance. Before Judge Parrott. Dade Superior Court. November Term, 1870.</p> <p>Steel sued Payne for damages for breach of a verbal contract as to the rent of certain lands for two years, averring various facts of part performance. These facts and the contract sufficiently appear by the evidence. On the trial, plaintiff testified, substantially, as follows:</p> <p>Defendant’s land was grown up in brush and briers when he rented it. By the contract, defendant was to repair and rebuild the fence, plaintiff to keep and work the land for two years and pay defendant one-third of the crops for rent. The contract was not reduced to writing at the time, but defendant promised to have it done at some future time, but neglected to do it. The plaintiff went on the land under the contract, cleared up one field, the work of which was worth $100 00, built and repaired houses, the work of which was worth $50 00, cultivated the land one year and paid the rent. Defendant would not consent for plaintiff to remain on the land another year, but rented the land to other persons and put them in possession of it. Plaintiff cleared up the land and did the extra work on it, in order to get to stay on it two years. Defendant used no force or legal process to put plaintiff out of possession, and plaintiff used neither to prevent the new tenant from taking the possession.</p> <p>Another witness was offered to proved the same facts. Defendant’s counsel objected, and moved to dismiss the action, upon the ground that the case made by the pleadings and evidence was that of a contract void by the Statute of Frauds. The Court rejected the evidence and dismissed the cause. That is assigned as error.</p>

Executors. Priority of Lieus. Before Judge Andbews. Hancock Superior Court. April, 1870. John Cheeley died testate, leaving certain land to his legatees: His nominated executors were Thomas J. Dickson, George W. Davis and Mary Cheeley, all of whom qualified. In 1860, they, as such executors, offered for sale said land to the highest bidder, upon a credit, the purchaser to give security.

Dormancy of Judgments. Before Judge Eobinson. Morgan Superior Court. September Term, 1870. On the 10th of September, 1860, Thrasher obtained a judgment against Baldwin Copeland, and had a ft. fa. issued thereon. On the 12th of May, 1862, the sheriff receipted on the ft. fa. for the costs then paid by Thrasher. On the 15th of July, 1863, Thrasher receipted on theft, fa. for part of the sums due thereon.

New Trial. Before Judge Robinson. Green Superior Court. September Term, 1871. Held: as such, for each, and that it was given to him by his father. They put in evidence defendant’s return for taxes from 1853 to 1864, inclusive, in each of which years he gave in for taxes a sum of money as due to each of them by him as trustee.

<p>Where an indictment for burglary charged the parties with being accessories before the fact, and several witnesses were introduced who testified to the finding of the goods stolen in the possession of such parties, there being no evidence that they concealed the crime from the magistrate and harbored, etc., the principal; and the Judge charged the jury, “if they found from the testimony that the defendants procured a burglary to be done, and instigated the perpetration by reward or hope thereof, and afterward received the goods, knowing them to be stolen, it would authorize them in finding the defendants guilty as accessories after the fact,” and in the same connection, “If they found from the evidence that the defendants concealed the crime or harbored the principal to prevent his arrest, then, in contemplation of law, they were accessories after the fact,” and a motion was made in arrest of judgment and for a new trial which was overruled by the Court:</p> <p>Held, The Court erred in its charge to the jury, and ought to have granted a new trial, under the facts in this case.</p>

Attachment. Partnership. Before Judge Chisolm. City Court of Savannah. July Term, 1870. Holloway had an attachment against Brinkley levied upon three bales of cotton.

County Tax. Before Judge Sessions. Glynn Superior Court. December Term, 1870. On the 1st of August, 1870, Rowe, as Ordinary of Glynn county, ordered that one hundred and fifty per eentvrn be levied upon the State tax, for county purposes, for 1870, according to section 545, Revised Code, allowing Justices of the Inferior Court to levy such tax, without a recommendation of the grand jury.

Practice. Supreme Court. Damages. Before Judge Clark. Calhoun Superior Court. March Term, 1870. In September, 1869, a mortgage ft. fa., in favor of William J. Vason, executor of Turner Clanton, against William G Bray, was issued from said Court. On the 4th of October, 1869, Avera, the sheriff, levied it upon the mortgaged lands. At March Term, 1870, he was ruled by the plaintiff.

<p>A bill praying for an injunction was presented to the Judge for his sanction, and a rule nisi was granted, calling upon the defendants to show cause, on the day therein named, why the injunction should not be granted, which was duly served on the defendants, but they failed to appear and show cause on the day named by the Judge, and afterward the Judge granted the injunction. Whereupon the defendants, by their counsel, petitioned the Judge to suspend his order granting the injunction, which was refused, and the defendants excepted.</p> <p>Meld, That there was no error in the refusal of the Judge to grant the petition to suspend his order granting the injunction, on the statement of facts contained in the record; that their remedy was to move a dissolution of the injunction in manner prescribed by law in such cases, if they desired to get rid of it.</p>

Continuance. Evidence. Rent. Before Judge Gibson. Richmond Superior Court. May Term, 1870. McGruder, in his own right, sued Ponder for rent, returnable to May Term, 1870, of said Court. When the cause was called for trial,Ponder’s counsel moved for a continuance, but on what ground does not appear. It is said in the bill of exceptions that it was because Ponder was providentially kept away by sickness.

<p>Inasmuch as the plaintiffs’ intestate accepted the check of Jones, the treasurer, for the balance due him on cei’tificate of deposit, the bank was only bound to pay that check in such funds as Jones, the treasurer, had on deposit therein, and if the holder of that check declined or refused to receive in payment thereof such funds on its presentation, that was not such an appropriation of the funds of the drawer of the check in the hands of the bank to the payment of the plaintiffs’ debt, as would preclude the bank from paying over to the drawer of the check the balance due him by the bank in closing up bis account; the plaintiff, by his own act, refused to have the funds of the drawer on deposit in the bank appropriated for the payment of that check, conceding that the offer of payment in Confederate Treasury notes was an acceptance by the bank to pay the check in that currency. The facts of this case do not show such a wanton or fraudulent refusal of the bank to pay the holder of the check in the funds deposited by the drawer thereof as would make the bank liable.</p> <p>Although we think the Court erred in its charge to the jury, in relation to the question of tender, and in relation to other points involved in the case, still, the verdict was right, under the law applicable to the facts, as disclosed by the record, and we affirm the judgment of the Court below in refusing a new trial.</p>

<p>Priority of Lien. Rent. Before Judge Snead. City Court of Augusta. August term, 1870.</p> <p>In May, 1867, George Jones et al., as trustees, leased certain land to one Erain for a term of five years, in which it was stipulated that they should “ have a lien upon the buildings (to be erected thereon) for any rent that may be due on the premises.” On the 4th of June, 1870, a distress-warrant in favor of the landlord was levied upon certain buildings, which had been put upon the premises by Frain. They were sold, and the proceeds were in the sheriff’s hands. Then came Twiname & Sumner, who held against Frain a judgment obtained in 1869, and claimed said proceeds. After paying the costs and attorney’s fees for bringing the money into Court, the balance was ordered to be paid to Twiname & Sumner. This is assigned as error.</p>

Claim. Lien. Bona fides. Before Judge Harrell. Randolph Superior Court. May Term, 1870. The other cause of Sanders vs. McAffee & Owen, at this term, was an effort to defeat a vendor’s lien against certain land therein mentioned. Besides this they were endeavoring to collect their said fi. fa. by a levy on the land. The judgment was dated the 4th November, 1863, in favor of Sanders vs, S. W. Anthony, and the fi. fa. issued upon it was levied upon said land in December, 1868.

Ejectment. New Trial, Before Judge Harrell. Quit-man Superior Court. May Term, 1870. Suggs brought ejectment against Anderson for part of laud lot number sixty-eight, in said county, to-wit: forty acres of it on the north side of a certain branch.

<p>A return by the sheriff upon a fi. fa., that he has “ received of the defendant $9 25, in full of the costs on this fi. fa., is such a return or entry as, under section 2863 of the Revised Code, will prevent the dormancy of the judgment.</p>

Pleading. Factors. New Trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.

Rescission. Lien. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. Terry & Smith, commission merchants, sued Barnett & Company on an open account for cash advanced in purchasing goods for them, commissions, etc. Part of the items were as follows : 1866, January 2d, to cash advanced for one hundred and thirty barrels flour, invoiced superfine, $962 00, fifty barrels flour, invoiced extra, $437 50.

Relief Act of 1868. New Trial. Before Judge Green. Newton Superior Court. September Term, 1870. On the 27th of September, 1860, Green B. Turner obtained a judgment in said county against Noah Phillips for $2,000 00 principal, and $766 02 interest to that date. Fi. fa. was issued in October, 1860. In May, 1861, Turner transferred this fi. fa. and judgment to Camp. Phillips died in 1864, and his wife administered upon his estate.

<p>Railroads. Negligence. Evidence. Trespass. Before Judge Lochrane. Clayton Superior Court. September Term, 1870.</p> <p>Baber brought case against the Macon & Western Railroad Company for killing his cow on the 26th of May, 1869. On the trial, Baber’s counsel offered in evidence a notice, as follows:</p> <p>“ Georgia, Clayton County :</p> <p>To the Macon & Western Railroad Company: — You are hereby notified that within the last three months, to-wit, on the 26th of May last past, you damaged the subscriber by killing a milch cow belonging to him, by the running of a car, engine or locomotive or other machinery on your road; and desiring that the amount of damages may be legally assessed, you are hereby required by agent or attorney, or in person, to appear at the next term of the Superior Court to be held in said county on the second Monday in September next, then and there to show cause, if any exist, why the damages shall not be assessed according to law. This 18th of August, 1869. JAMES M. BABER.”</p> <p>On the back of this notice was an affidavit by Baber, plaintiff, that he served a copy of said notice on the defendant’s agent at Jonesboro, on the 18th of August, 1869. Defendant’s counsel objected to said paper as evidence, because it did not sufficiently describe the damage done and because the affidavit of plaintiff was insufficient evidence of its service.</p> <p>These objections were overruled, and the paper was read to the jury. The evidence of the plaintiff’s witnesses showed that, on the morning of the 26th of May, 1869, just before the usual time for the coming of the morning train by Baber’s, Mrs. Baber turned out said cow; that the cow was seen running along the side of the track and in front of the engine when said train arrived; that she suddenly tried to cross the track in front of the engine and was either struck by the engine or kicked at it; that she was injured thereby and from that injury died in a few days; that the train was running at usual speed. The engineer and fireman testified positively that the engine did not touch the cow. Other facts showed that the cow was injured by the engine. And this was conceded by defendant’s counsel. But they relied upon said evidence to show that it was an accident caused by the cow’s crossing in front of the engine so suddenly as not to attract the attention of the engineer or fireman. The value of the cow was shown.</p> <p>Defendant’s counsel requested the Court to charge the jury that Mrs. Baber’s turning the cow out, in the vicinity of the railroad, just before the coming of the train, was negligence and carelessness, to be considered by the jury, and that when said cow got upon-the track it made Baber a trespasser. The Court refused so to charge, but charged, that if plaintiff’s cow was injured by defendant’s servants, the law presumes negligence on their part, and they must explain it; that the fact that Mrs. Baber turned out the cow in the vicinity of the railroad before the train came was no evidence of carelessness to be considered by the jury, and that it was not true that if said cow, so turned out, got upon the track it made plaintiff a trespasser, unless it was shown that the defendant’s road was inclosed with a lawful fence. The verdict was for the plaintiff for the value of the cow.</p> <p>Defendant’s counsel moved for a new trial, upon the grounds that the verdict was strongly and decidedly against the weight of the evidence, and because the Court erred in admitting said notice as evidence; in refusing to charge as requested, and in charging as he did. He refused a new trial, and that is assigned as error on each of said grounds.</p>

Criminal Law. Venue. Jurors, etc. Before Judge Loch-bane. Pulton Superior Court. September, 1870. Isaac Wheeler and Pinckney Woodruff were jointly indicted in DeKalb Superior Court for the murder of Stephen Winn, a negro, in DeKalb county, on the 15th of May, 1869. At September Term, 1869, of DeKalb Superior Court, the defendants were arraigned and pleaded not guilty. They severed, and Wheeler was put upon trial.

License. Municipal Corporations. Before Judge Robinson. Baldwin County. Chambers. April, 1870. The Mayor and Council of Milledgeville granted license to certain persons to retail spirituous liquors in Milledgeville, and received from them the license fee usually charged by them; how much does not appear.

<p>Damages. Railroad Companies. Before Judge Robinson. Wilkinson. April Term, 1870.</p> <p>Dixon brought case against said company for injuries done to him by running its car over him, etc. The evidence showed that, at Gordon, where the road from Milledgeville joins the road from Savannah, the train was standing in the usual place, after dark, taking wood and water. The public road was blocked up by the train, and the train also stood across the usual crossing for foot passengers. Dixon, wishing to cross the track, got under the train for that purpose; this he did twice; the second time the train suddenly moved, and inflicted said injuries upon him. As to whether the usual signal was given before moving, the evidence was conflicting. The train was moved to give way for the Milledgeville train coming in.</p> <p>The Court read to the jury sections 2921, 2979 and 2980 of the Revised Code of Georgia, and that part of the opinion of this Court in the case of The Maeon & Western Railroad Company vs. Johnson, B8th Georgia Reports, as to said sections, and then charged them as follows: “ A railroad company is liable for any damages done to persons by the running of the locomotives, ears or other machinery of such company, or for damages done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company., No person shall recover damages from a railroad company for injury to himself or his property when the injury is done by his consent, or where the injury is caused by his own negligence. If the party plaintiff, and the agent of the company are both at fault, the plaintiff may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to the party complaining. Applying these general principles of law to this case, if the jury believe, from the evidence, that the plaintiff has been damaged in his person by the Central Railroad Company, or any one in the employment of said company, in consequence of the failure of said company or its employees to have exercised all ordinary and reasonable care and diligence in the running of their cars at the time stated in plaintiff’s writ, then the plaintiff is entitled to recover. But if the jury believe, from the evidence, that the Central Railroad Company or their employees did exercise all ordinary and reasonable care and diligence at the time the injury is alleged to have been done to the person of the plaintiff, then the plaintiff is not entitled to recover. If the jury believe, from the evidence, that the Central Railroad Company were without fault on their part, and that the injury alleged to have been sustained by plaintiff was caused by his own negligence, then the plaintiff is not entitled to recover. If the jury believe, from the evidence, that plaintiff and defendant were both at fault, then plaintiff may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to the plaintiff. If the jury should believe, from the evidence, that the plaintiff is entitled to recover damages, it is for the jury to ascertain from the evidence what the amount of damages should be. Damages are given as compensation for the injury done, and the injury done is generally the measure of damages, where the injury is of a character capable of being estimated in money. If the jury believe, from the evidence, that the injury alleged to have been sustained by the plaintiff was not caused by his own negligence, but that it was caused by the failure of defendant to have exercised all ordinary and reasonable care and diligence, then the jury must endeavor to ascertain, from the evidence, the extent of the injury, and what would be a suitable compensation for the same in money, taking into consideration the expenses of medical treatment and nursing incurred by the plaintiff in consequence of the injury alleged to have been done him; also taking into consideration the age and value of the services of the plaintiff to himself and family before the alleged injury. Where there are conflicts or discrepancies in the testimony of witnesses, it is the duty of jurors to endeavor, if possible, to reconcile such conflict or discrepancies without imputing perjury to any of the witnesses. If witnesses swear differently in regard to the same things, other things being equal, that witness is to be believed who has the best opportunity or means of knowing.”</p> <p>And the Court further charged, at request of defendants’ counsel: “ That, if the evidence shows in this case that though the Central Railroad Company, the defendant, or its' agents, were guilty of negligence, that is to say, if they failed to give the signal that the train was about to back, yet if Dixon, the plaintiff, could, by ordinary diligence, have avoided the consequences to himself of that negligence, he is not entitled to recover from the Central Railroad.” The jury found for plaintiff $5,000 00 and costs. Defendant’s counsel moved for a new trial, upon the grounds that the verdict was contrary to evidence, etc.; that the Court erred in charging the law as to when both parties are at fault, without qualifying it by saying that, if plaintiff could, by the exercise of ordinary care and diligence, have avoided the accident, then defendant is not liable for damages; and because the charge is contrary to law, inconsistent and contradictory, and therefore liable to mislead the jury. The motion was overruled, and error is here assigned on each of said grounds.</p>

Husband and Wife. Damages. Railroad Companies. Before Judge Robinson. Morgan Superior Court. September Term, 1870. Wynn brought case againt the Georgia Railroad & Banking Company, making the following averments: On the 18th of July, 1869, defendant was running over its road a “pay-train,” without a schedule and without notice to the public.

Barter and Sale. Scaling Ordinance. Tried before Judge Sohley. Chatham Superior Court. May Term, 1870.

<p>An action of ejectment was instituted in the name of a trustee of a married woman against the defendant, to recover the possession of a tracj of land, the title to which was claimed under a marriage settlement deed. The demise in the declaration was alleged to have been made by the lessor of the plaintiff in the name of the trustee of Melvina Adams, a feme covert. During the pendency of the suit, the husband of the/eme covert died, and on the trial of the case, the Court allowed the declaration, on motion of plaintiff’s counsel, to be amended, by striking out the name of the trustee, so as to leave the demise in the name of Melvina Adams as the plaintiff’s lessor:</p> <p>Held, That, under the provisions of the Code, there was no error in the Court in allowing the amendment, inasmuch, as on the death of the husband, the legal and equitable title to the land was in the widow, and that she could recover in her own name by showing title to the land in herself as the plaintiff’s lessor.</p> <p>It is also shown, by the evidence in the record, that on the 26th June, 1848, Bennett Adams and Melvina Brinson executed an ante-nuptial contract, or marriage settlement, by which, all the property she then had, or might thereafter have, should be her separate estate and property, the legal title of which was vested in a trustee for the joint use and benefit of herself and husband during her coverture, with power to sell and dispose of the property in any way she might think fit, in as ample a manner as if she was a feme sole, such disposition of said property by her to be the written conveyance, or other title papers that may be executed by the trustee named in the deed, with the consent of the said Melvina Brinson, written and signed by her, vpon said conveyance, or other evidence of title, of the said named trustee. This marriage settlement was not recorded until the 8th January, 1857. On the 12th January, 1857, the trustee named in the marriage settlement, conveyed the tract of land in dispute to Mrs. Melvina Adams, the legal effect of which, was to vest the title in her husband by virtue of his marital rights ; provided the conveyance had been made by the trustee in pursuance of the terms of the marriage contract, but the written consent of Mrs. Adams tipon that deed of conveyance, does not appear, as required by the marriage settlement. On the 15th of January, 1857, Adams and his wife conveyed the land in dispute to Mc-Bryde. The evidence in the record shows, that she was coerced to join in the deed by the threats of her husband. The land was sold at sheriff’s sale as the property of McBryde, and purchased by McGuire, who sold to the defendant. The evidence in the record shows that this tract of land was a part of the property which Mrs. Adams received from her father’s estate, and was, therefore, a part of the property embraced in the marriage settlement:</p> <p>Held, That the deed from the trustee, Ryals, to Mrs. Adams, not having been executed in accordance with the terms and manner prescribed in the marriage settlement, did not convey any title to her, or to her husband, to the land in dispute, and they not having any title under that deed, conveyed none to McBryde; that Mrs. Adams (the coercion of her husband being out of the question) did not convey the land in accordance with the mode prescribed in the marriage settlement, so as to defeat her right and title to the land secured to her by its terms and provisions. All the parties claiming to have purchased the land under McBryde’s title, done so after the marriage settlement was recorded ; and in any view that we have been enabled to take of this case, from the evidence in the record, the verdict of the jury, was right, under the law applicable thereto, and we will not disturb it for any of the alleged errors complained of by the defendant.</p>

False Imprisonment.* Fugitives from Justice. Before Judge Snead. City Court of Augusta. November Term, 1869. Pettus was tried for false imprisonment of one Kernighan, in the City Court of Augusta, and found guilty. Upon a refusal of a new trial, the ease came here for review. But one question was passed upon by this Court.

Nuncupative Wills. Last Illness. Before Judge Johnson. Muscogee Superior Court. June Term, 1870.

Relief. Injunction. Before Judge Johnson. Muscogee County. Chambers. November, 1870. Flewellen’s bill, filed in Muscogee, made this case: In May, 1867, Baldwin & Company obtained judgment against Flewellen for $18,233 93, and ft. fa. was issued in June, 1867. All of it has been paid but $5,000 00. Prior to June, 1865, one Bradley obtained a judgment against Flewellen, which now calls for $4,700 88.

<p>Where there was a bill pending in equity in favor of Zorn vs. Respass, in relation to the title and possession of land, and during Respass’ temporary absence from the county, Zorn dismissed his bill and took out a proceeding as an intruder against Respass’ tenant, an ignorant colored man, who had a growing crop on the premises, and who, from ignorance of his rights, failed to make the counter-affidavit'required by law, and Zorn, was in consequence, put in possession, and Respass ousted, and Respass immediately on his return, made the affidavit, but the sheriff refused to receive or act upon it:</p> <p>Held, That a bill setting up these facts, and praying a restitution of the possession as unfairly obtained under color of legal process, is not demurrable for want of equity, or because there is an adequate remedy at law.</p>

Motion to dismiss Writ of Error from Troup county. This writ of error was returned to June Term, 1870. It was then continued because of the sickness of Mrs. Worthy’s counsel. When it was called at January Term, 1871, her counsel stated that she had died since the last term, and had no administrator, and proposed to let it stand for the next term to make parties. Defendant’s counsel moved to dismiss the writ of error for want of prosecution.

<p>Appeals. Administration. Before Judge Bigby. Meriwether Superior Court. August Term, 1871.</p> <p>(Warner, J.-being interested, did not preside in this cause. It is sufficiently reported in the opinion.)</p>

Administration on Estates. Before Judge Bigby. Meriwether Superior Court. August Term, 1870. Campbell died insolvent. Worrill and Freeman each applied, as creditor, for administration, and the Ordinary granted it to Freeman. The cause was on the appeal in the Superior Court.

<p>1. Continuances are in the sound discretion of the Court, and this Court will not disturb the judgment of the Court below, on a question of continuance, unless there be an abuse of the discretion vested, by law, in the Judge.</p> <p>2. The value of the premises in dispute, in an action of ejectment, except so far as it affects the mesne profits, is immaterial to the issue.</p>

Homestead. Constitutional Law. Before Judge Bigby. Coweta Superior Court. September Term, 1870. Calhoun, a bachelor, with no family but hired servants, applied for a homestead, as the head of a family. McLendon, a creditor, objected, and the Court ruled that Calhoun was not the head of a family. That is assigned as error.

Partition. Equity. Res Adjudicata. Before Judge Big-by. Troup Superior Court. September, 1870. . This was a bill to prevent waste, appoint a Receiver, etc. It is sufficiently reported in the opinion. While complainant was presenting the bill, defendants’ counsel moved to dismiss it. Plaintiff’s counsel said the motion was out of order. But the Court allowed defendants’ counsel to proceed.

Equity. Conclusiveness of Judgments. Before Judge Hopkins. Pulton county. Chambers, January, 1871. The bill of B. P. and John M. Hill, filed in Coweta county, made this case: In November, 1859, B. P. Hill bought of William Mitchell certain land, and gave him therefor bis promissory note for $5,450 00, due the 25th of December, 1860, with John M. Hill and one Dennis as his securities. The note was not paid at maturity.

Constitutional Law. Taxation. Before Judges Parrott and Schley. From Fulton and Chatham counties. July and August, 1870.

Equity Practice. Injunction. Before Judge Parrott. Chambers. Fulton County. August, 1870. The bill of the next friend of Mrs. Barnes made this case against James E. Gullatt, as administrator of William Barnes, complainant’s husband, and J. J. Thrasher, and other nominal parties.

<p>1. Where, upon the trial of a case, a presiding Judge granted a non-suit, stating at the time he was not satisfied with the argument of the legal question upon which such non-suit was awarded, and would grant leave to move to reinstate the case, on the argument of which motion he would decide the question, and the counsel for defendant entered the judgment of non-suit on the minutes, and plaintiff’s counsel drew up the motion to reinstate, reciting therein such leave granted as aforesaid, upon which motion the defendant’s attorney acknowledged service, and the motion was put on the docket at the same term, there being no entry of it filed by the Clerk thereon, or brief of evidence filed:</p> <p>Meld, That it was not error in the Court to hear the motion to reinstate, as it stood upon the docket, and that the motion to reinstate, under the facts of the case, differed from a motion for a new trial, and did not require the formalities or requirements of such motion.</p> <p>2. When, under the facts just recited, and on the hearing of such motion, counsel moved to amend the minutes of the Court, so as to make them conform to the leave granted to move to reinstate, and the fact being undisputed, as well as sustained by the testimony of the presiding Judge:</p> <p>Meld, That it was not error in the Court below to allow the amendment nunc pro tunc, under the established principles of law, embodied in the Code, sections 294 and 3449.</p> <p>3. Meld again, Where the Court, in an action for damages brought against a railroad for killing stock, when the sum sued for was over the Justice’s jurisdiction, and the suit was instituted in the county of defendant’s residence, and not under the section 2988 of the Code, granted a non-suit on account of the absence of proof of the notice required by such section of the Code, that such decision was error; as the Superior Courts of this State have original and general jurisdiction in such cases, and the special remedy given by the Code is cumulative merely ; and it was proper in the Court below to reinstate the case on the determination of this legal question.</p>

<p>1. An unusual and extraordinary flood in a river is such an act of Q-od as excuses a common-carrier from Ms liability, at all events, for goods he has undertaken to transport; but even in such a case, the carrier is bound to exercise the care of a very prudent man to preserve the freight entrusted to him for carriage.</p> <p>2. Diligence, and the want of it, are questions of fact, to be determined by tbe jury, under the evidence and the charge of the Court, and a new trial ought not to be granted by the Circuit Judge, unless the jury find strongly and decidedly against the weight of testimony.</p> <p>3. In this, case, the verdict is not strongly and decidedly against the weight of testimony, and as the case was fairly submitted to the jury, under the charge of Court, it was error in the Judge to grant a new trial.</p>

<p>1. Where an action was brought by a stockholder in a Building and Loan Association to recover back usury paid, in a settlement with them of the notes and mortgages executed for the sums of money he had received, and the plaintiff, being put upon the stand testified, among other things, that in such settlement, he had paid over $3,000 00 more than principal borrowed and legal interest and that the bill of particulars attached to his declaration was correct, and showed prima facie evidence of such fact, and there was no proof of the constitution and by-laws of such Association before the Court, and the Court granted a non-suit, and overruled the motion of plaintiff to open such case, and offer additional testimony:</p> <p>Held, first, That usury voluntarily paid may be recovered back, under the laws of this State; Code, section 2025, declares the contract as to usury void, and is in affirmance of the principles of the common law, as has been settled by this Court, and is sustained by a long series of decisions, sanctioned by the highest and most eminent judicial authority :</p> <p>2. Held again, Under the facts in this case, there was sufficient testimony to have caused the case to be submitted to the jury, and the settlement relied on, under the principle of accord and satisfaction, was not conclusive of the rights of the plaintiff, but constituted a defense which ought to have been submitted to the jury:</p> <p>3. Held again, That the fact of plaintiff being a shareholder in such Association did not warrant the conclusive presumption against him, that there was no usury in its transaction; this may or may not appear from its constitution and by.laws, and the nature of its operations in loaning money, but without such proof it did not appear from the facts before the Court:</p> <p>4. Held again, The motion to add additional testimony ought to have been allowed, under the rule laid down in MeColgan vs. McCay, decided by this Court.</p>

<p>Under section 2110 of the Revised Code of this State, “a second insurance on the same property, without the consent of the insurer voids his policy.” And this is true even though the second insurance, valid upon its face, is voidable by the second company on the ground of the failure of the insured to give it notice, at the time the policy was procured, of a prior insurance of the same property in another company.</p>

<p>1. Where a suit was pending in a Court of this State against the Superintendent of the Western & Atlantic Railroad, upon the Act of 24th of October, 1870, to authorize the lease of said road, and before said lease was consummated:</p> <p>Held, Under the 8th section of such Act, which provides for the settlement of the liabilities of said road by a Board of Commissioners therein named, or until the claim has been verified by a judgment of the Court having jurisdiction of the case, that the Court having jurisdiction of the case may proceed, under such jurisdiction, to a hearing, and by an appeal to this Court, under the rules of law.</p> <p>2. Where a suit was instituted against the Western & Atlantic Railroad for damages, growing out of a breach of contract, and the declaration alleged that the contract was in writing and had been lost:</p> <p>Held, first, The remedy, under the Code, section 3910, is cumulative, and does not deprive a party of his right to sue at law.</p> <p>3. Where proof of a loss of an original paper is made before the Court, and he admits secondary proof thereof:</p> <p>Held, Under sections 3714 and 3779 of the Code, questions of diligence in exhausting the means of information for primary evidence, accessible to the party, is one addressed to the sound discretion of the Court below, with which this Court will not interfere, except where it has been flagrantly abused.</p> <p>4. Where the evidence upon the breach of contract exhibits the fact that the plaintiff was to receive a certain price, and the amount necessary for the performance, after such alleged breach, is a matter of fixed computation, and the Court charged the jury on the measure of damages that plaintiff was entitled to recover the whole amount sued for, less what would have been his expenses in performing the contract:</p> <p>Held, That the actual damages which tho plaintiff was entitled to re-, cover, embraces the difference between the cost of doing the work and the price to be paid for it. The law requires the utmost good faith in relation to contracts, and where parties refuse to carry out contracts into which they have entered, the party injured may pursue his remedy for damages, and the measure of the damages for such breach or refusal to carry out the contract will be computed by ascertaining the profits of the enterprise, after deducting the legitimate and actual costs of its execution; and, in the view we entertain of the law of this case, the charge of the Court below was error.</p> <p>5. When a motion is made for a new trial, on the grounds of newly discovered evidence, in the discovery of a letter, testified to as the contract of the parties, and such letter referred to matters of defense proven on the trial:</p> <p>Held first, That applications for new trial on this ground, and the question of diligence and materiality, and whether it is cumulative only or goes to the impeachment of a witness, and whether it would have changed the result, will be closely, if not critically, scanned by the Court:</p> <p>Held again, Where the newly discovered evidence is reconcilable with the other proof in the case, or if there appears, on the whole, sufficient evidence to support the verdict, the Court will not grant a new trial, especially where the Court below has violated no rule of law in submitting the case to the jury, and there is sufficient evidence to support it, and he has refused a new trial.</p> <p>6. Judgment affirmed, with instructions to deduct from the amount o f the verdict $2 00 per month, with the interest thereon for three years.</p>

Rape. Evidence. Charge of Court, etc. Before Judge Hopkins. Fulton Superior Court. October Term, 1870. The details of this ease are sufficiently set forth in the parts of the proceedings below and the opinions, for an understanding of the points decided. When the evidence was concluded, the Court charged the jury as follows: Gentlemen of the Jury: You begin this trial with a presumption of innocence in favor of the defendant.

<p>A suit was brought against the Western & Atlantic Railroad for the loss of personal property delivered to them at Dalton for transportation to Atlanta, and plaintiff proved that the property sued for was put on board the railroad cars, and was lost. The evidence for the defense consisted, in part, of an original receipt, produced by plaintiff, or notice, as follows: “ Received of Mr. W. O. Sanders, (stating the property,) for shipment to Atlanta, at his own risk,” and the testimony of the agent, which showed that, at the time, General Johnston’s army was in Dalton, and the cars were taken by the military at their pleasure, and that shipment of private freight was generally understood to be at the owner’s risk, and that all shippers knew it was not uncommon for the military to take the cars and throw such freights out, and that he believed defendant knew of the risk, and that he had to take it. It further appeared that the car loaded with plaintiff’s goods at Dalton, consisting of a wagon, two mules and a horse, was found next morning in Atlanta, loaded with Confederate hoi’ses, a part of the wagon found lying near the depot at "Dalton. Upon this statement of facts, the Judge charged the jury that the stipulation in the receipt, that the property was shipped at owner’s risk, was no protection to the road unless the property was proven to have been taken by the Confederate army from the cars, and the jury found for the plaintiff, and the Court below refused a new trial:</p> <p>Held, That the charge of the Court, under the facts, was too narrow a view of the law providing for express contracts by railroads; that while the general proposition of law laid down is in the language of the Code, there were facts in this case arising not only from the presence of an army, but the character of the receipt given, and the evidence of the agent as to plaintiff’s knowledge and consent thereto, which ought to have been submitted to the jury under the evidence, to say whether or not he had knowledge of the contents and consented thereto; for this would limit the liability, if the jury believed from the evidence that it was an express contract. And whether it was or was not, was a fact for the jury, which ought to have been submitted to them under all the evidence in this case.</p> <p>Held, again, If the jury were satisfied, from the evidence, that the car was taken by a superior force, which the defendants could not resist, still it was the duty of the Court to instruct the jury touching the requirements of care of the goods by the defendants after they were thrown out of the car, or the existence of such circumstances as prevented its exercise, and that the jury ought to have the whole matter fully before them, upon the law applied to the facts; 1st, as to whether there was an express contract between the parties; and, 2d, as to the care taken, if any, or reason why it was not done by the defendant or its agents, relative to the goods, if the jury believed they were thrown off by the military authorities.</p>

<p>Where a suit was pending against two joint and several obligors, one of whom claimed to he security only for the other, and this was known to the plaintiff, and the principal had filed a plea to the merits of the action, and the plaintiff, without the action or consent of the surety, and after the surety, satisfied that no trial could be had on the plea at that term of the Court, had gone home, dismissed his suit as to the principal, to get clear of the plea, and then took a judgment against the surety, and the surety filed a hill to enjoin the judgment, alleging these facts, and alleging, further, that at the time the suit was dis. missed against the principal, the debt was barred by the Statute of Limitations, and if the surety paid the debt, he was, by this act of the plaintiff, deprived of his rights to recover it from the principal:</p> <p>Held, That there was equity in the bill, and the Judge, on the facts of the ease, as they appeared on the bill, answer and affidavits, ought to have granted the injunction until the trial could be had on the case made by the bill.</p>

Arbitration. New Trial. Before Judge Kirby. Floyd Superior Court. July, 1870. In May, 1867, there was a controversy between Mitchell and McCulloch respecting the sale and purchase of Mitchell’s interest in the Rome Foundry and Machine Works by McCullough.

Private Property for Public Use. Mills. Before Judge Parrott. Murray Superior Court. May Term, 1870. Harris sued Loughbridge for backing the Conasauga River upon his land.

<p>Reforming Contracts. New Trial. Before Judge Parrott. Murray Superior Court. May Term, 1870.</p> <p>This cause was here in 1868. See Adair, administrator, vs. Adair, administrator, 38 Georgia Reports, 46, where the cause is fully reported. A new trial was granted. Another verdict was had in favor of reforming the deed, etc., and the cause came here again in 1869. See same case, 39 Georgia Reports, 75. A new trial was again awarded, and a third verdict, in favor of reforming the deed, etc., was obtained.</p> <p>A motion for new trial was made upon the grounds that the verdict was unsupported by evidence, and upon various alleged errors of the Court in rejecting evidence, etc. As the opinion of the Court can be understood without these, we do not give them. The Court refused a new trial, and that is assigned as error.</p>

Railroad Companies. Private Property for Public Use. Water-courses. Before Judge Parrott. Dade Superior Court. November, 1870.

<p>Distribution of Estates. Equity Pleading. Before Judge Harvey. Gordon Superior Court. October Term, 1870.</p> <p>This cause is sufficiently reported in the opinion.</p>

Eelief Act of 1870. Before Judge Parrott. Dade Superior Court. November Term, 1870. Hoveuor, as guardian for several minors, sued Nicholas and others upon their joint and several promissory note, dated the 4th of March, 1863, and due one day after date. On the trial, it was admitted that the note belonged to the minors, and its consideration was shown to be on a specie basis.

<p>Dower. Election. Estoppel. Before Judge Harvey. Gordon Superior Court. October, 1870.</p> <p>Mrs. Bailey, supposing her late husband’s estate solvent, elected to take a sum of money, absolutely, in lieu of dower. The Superior Court appointed commissioners to fix the amount, and tl’ey made their return to the succeeding term of the Court. Nothing was done at that term. By the next term it was ascertained that the estate was probably insolvent, and her attorney took an order withdrawing said application for said reason. Subsequently, she applied for dower. The administrator and a creditor pleaded said former election as above. At the hearing she swore to her said reasons for her action, and that no third party had so acted upon her election as to be prejudiced thereby. The Court allowed her dower assigned, and that is assigned as error.</p>

Homestead. Before Judges Harvey and Johnson, Marion and Paulding Superior Courts, 1870.

<p>Carriers. Common-Carriers. Before Judge Parrott. Catoosa Superior Court. September, 1870.</p> <p>Dunn & Brown had a mill, and to make it more accessible, had a fiat for their customers to go to it across the pond. Self went there, procured his load, and, when re-entering the ferry to return, the fiat got loose, while his mules were on it and his wagon on land, and the mules were drowned. He sued Dunn & Brown as carriers for hire, averring the hire to be the custom obtained by the ferry. The evidence important for our purpose showed the following facts: The ferry was not chartered, but private; no toll was charged upon it, but it did increase the custom of the mill, by rendering the mill more accessible to certain customers. Defendant’s counsel requested the Court to charge that, “ if this was a private ferry, built by defendants for the accommodation of themselves and a portion of their customers, to the mill, and defendants did not charge toll or compensation for putting persons over on said flat, and charged plaintiff nothing for carrying him over, defendants are not bound to the diligence of a common-carrier, nor of a carrier for hire, but were only bound to use slight care, and liable for gross neglect.”</p> <p>The Court refused so to charge, but charged: “ If defendants established their ferry for the accommodation of their customers, and thereby persons were induced to go to their mills, they were common-carriers for such persons, and if plaintiff was their customer, they were bound to extraordinary diligence, and liable for any loss accruing to their customers, without fault of the customers. Ferrymen are common-carriers. Common-carriers are bound to extraordinary diligence. If the ferry was a gratuity; that, is by it, no benefit accrued to defendants, no custom was brought to their mill, they would not be common-carriers, and would be bound to only ordinary diligence,” and vice versa.</p> <p>The jury found for the plaintiff. A new trial, upon the grounds, that the Court erred in not charging as requested, and in charging as he did, etc., was granted. That is assigned as error.</p>

<p>If the owner of a specific sum of money loan it to another, fora special purpose, as that the borrower shall pledge it to secure his forthcoming to answer on a bail bond, and the pledge is accordingly made:</p> <p>Held, That when the bond is complied with, the original lender and true owner of the money may maintain assumpsit against the pledge for the rocovery of the money.</p>

Assumpsit. Agency. Before Judge Andrews. Elbert Superior Court. September Term, 1869. Ketchum sued Verdell for the value of certain corn and sacks shipped to him in December, 1866. The only dispute, was as to whether Verdell owed Ketchum.

Promissory Notes. Mistake. Guardian. Before Judge Andrews. Wilkes Superior Court. June, 1870. In 1862, Poole gave to Dr. Walton his promissory note, payable to bearer, and signed “ J. S. Poole.” Wilkinson sued Poole on this note, in a Justice’s Court.

Constitutional Law. Buie versus Sheriffs. Slave-debts. Before Judge Andrews. Hancock Superior Court. June, 1869. Bebecca Silas et al. had a fi. fa. against Stacy et al., but upon what judgment it was founded, or when it was issued, do not appear. The sheriff sold certain of defendants' property, and paid out the money to other fi. fas. He was ruled to show cause why he should not pay this fi. fa.

Criminal Law. Confessions. New Trial. Before Judge Andrews. Elbert Superior Court. September Term, 1870. Banks, a negro, was indicted for the murder of another negro. The evidence consisted of proof of the killing, and a confession, and certain other facts to show that Banks was the slayer, and the circumstances of the killing. This evidence would be of no use to the profession, further than it appears in the opinion.

Promissory Notes. Contracts. Before Judge Andrews. Oglethorpe Superior Court. October Term, 1870. Grattan, as executor of Mrs. Gilmer, brought “complaint” against Echols on three promissory notes, for $1,761 33 each, dated the 1st day of December, 1865, due at one, two and three years after date, respectively, with interest from date, made by Echols, payable to Mrs. Gilmer, or bearer.

<p>Capture of Private Property by Confederate States officers. Trespass. Before Judge Schley. Chatham Superior Court. July, 1870.</p> <p>Stafford brought trespass, vi et armis, against Mercer and Gue for the taking from his plantation certain cotton, corn and fodder, on January 2d, 1862. The defenses were the general issue, and that Mercer was a General, in the service of the Confederate States of America, at war with the United States of America; was ordered by his superior officers to take corn and fodder, for the use of the troops under his command, and to remove all property which might fall into the enemy's hands to a place of safety, and, pursuant to this order, had said cotton, which was on Cumberland Island, subject to capture by the United States forces, taken to Savannah, Georgia, as a place of safety, and stored, for Stafford, with Stafford's usual factor, whose clerk was said Gue. All which he claimed he had a right to do, under the laws of war; and that defendants were protected from any recovery, also, by an Act of the General Assembly of Georgia, approved 15th Eebruary, 1866, for the relief of Confederate States soldiers, for acts done under orders of their superiors. The taking, by certain Confederate officers, the value of the property, etc., was shown, by Stafford. For the defense, it was shown that the taking was under and pursuant to orders from General Mercer; that it was necessary for the exigencies of the service, and to keep it out of the hands of the enemy; that the usual receipts were given therefor, and that the cotton was stored with plaintiff’s usual factor, at Savannah, where he was notified that it would be left. It further appeared that this factor was absent, in the service; that Gue was his agent and clerk, and that Gue, after consulting the factor and the military authorities, sold it, because Savannah was threatened by United States forces, and placed the Confederate money gotten for it to plaintiff’s credit, but that plaintiff got no notice of this sale, etc., communication with him being cut off till the end of the war. Plaintiff got nothing for any of said produce; he refused, at the time of seizure, to receive the usual government price for his corn and fodder.</p> <p>The evidence being closed, the Court charged the jury as follows:</p> <p>1. If the jury find from the evidence that the plaintiff consented to the removal of the property in question, then there was no trespass, and he cannot recover.</p> <p>2. If there was a state of war existing between the United States and the Confederate States in 1882, when the property in question was taken and removed, and if General Mercer was an officer in the Confederate army, and as such officer ordered the removal and taking of said property by the command of a superior or higher officer of the Confederate States, as an act of war, then Mercer is protected, and is not a trespasser, and is not liable to respond in damages.</p> <p>3. If the defendant Gue received the cotton as the clerk of John W. Anderson, who was the ordinary factor of Stafford, the plaintiff, (even though he knew the circumstances under which it was taken and removed,) still he is not liable as a trespasser in that event. If any one is liable under that state of facts it is John W. Anderson, the principal, and not Gue, the clerk and agent.</p> <p>Counsel for plaintiff then requested the Court to give the following charges:</p> <p>1. That any unlawful interference with the private property of a citizen by another is a trespass, and for such the law gives damages. (The Court so charged).</p> <p>2. In trespass all are principals, there are no accessories. And each is liable for the full amount of the damages accruing by virtue of the trespass; and to constitute one a trespasser it is not necessary that he should have done the act complained of personally, but all who are in any way aiding, assisting, advising, commanding or countenancing it, are responsible as principals, as well as those who perpetrate the act. (The Court so charged).</p> <p>3. The Act of the Georgia Legislature, of February, 1866, for the relief of bona fide Confederate soldiers, which has been pleaded in this case by defendants is not law, was not when the plea was filed, the said Act being repugnant to the Constitution of the United States and the Constitution of Georgia, and that the jury cannot take said Act into the consideration of this case as law. The Court refused to give said charge, and stated that he would not charge upon the constitutionality of the Act of 1866, saying the second head of his charge would cover the case, and it was unnecessary to notice said Act. And, at this stage, the Court, (after refusing to charge as requested, and giving the intimation that the charge was unnecessary,) let the defendant’s counsel strike the plea of defense under the said Statute of 1866, after the same had been argued upon to the jury and Court, both by counsel for plaintiff and defendants.</p> <p>4. That the attempt on the part of the State of Georgia to withdraw from the Union was illegal, that the organization of the Confederate States into a Confederacy in hostility to the United States Government was illegal; that the laws passed by the State of Georgia, and those enacted by the Southern Confederacy, from the date of secession up to the termination of the late war were illegal and void. And if the defendants did (by virtue of any of the above mentioned laws) any act to the plaintiff’s property, which, under the Constitution of the United States and the laws pursuant thereto, amounted to a trespass, such authority being derived from an illegal power, and one in hostility to the government to which plaintiff owed allegiance, cannot justify the act and protect the defendants. That any order or command emanating from either the civil or military authorities of the Confederate States, commanding the defendants to do that which in the eye of the law is a trespass, will not protect them if they did the act. (The Court refused so to charge.)</p> <p>If the taking of the plaintiff’s property by these defendants was a trespass under the Constitution and laws of the United States, it makes no difference whether defendants took it by command of a superior officer or of their own accord. In either ease they are trespassers, and the jury are bound so to find. (The Court refused so to charge.)</p> <p>6. If the jury believe from the facts of this case as disclosed by the evidence, that General Mercer issued the order as an officer of the Confederate States army, by virtue of which plaintiff’s property was seized, without the consent of plaintiff, and without any compensation at the time of seizure, and further, if they find that F. L. Gue received the cotton and produce thus seized, knowing the circumstances under which it was taken and that the same belonged to plaintiff, or if Gue sold the same without any order from plaintiff, then, in law, both Mercer and Gue are trespassers, and the jury must so find. (The Court refused so to charge.)</p> <p>The jury found for the defendants. A new trial was moved for, upon the grounds, that the verdict was contrary to law, etc., and that the Court erred in charging as he did, in refusing to charge as requested, a,nd in allowing said plea of the Act of 1866 stricken, as aforesaid. .The Court refused a new trial, and errer is assigned on each of said grounds.</p>

<p>1. If a paper has been diligently searched for and cannot be found, its contents may be shown by parol. (R.)</p> <p>2. Though notice to quit was not served upon the proper agent of the tenant, yet if the tenant got the notice it is sufficient. (R.)</p> <p>3. If the printed minutes of a Conference were read to a party by one who knew they were the minutes, it is competent to read said minutes in evidence to show what was read to the party. (R.)</p> <p>4. In a proceeding by trustees to turn out tenants of their church, their chairman may make the affidavit. (R.)</p> <p>6. It appears from the record, that on the 24th day of September, 1845, a deed was made to the land in dispute (upon which Andrew Chapel was afterwards erected) to trustees for "the use of the colored members of the Methodist Episcopal Church, South, within the jurisdiction of the General Conference of such church, and that a large portion of the congregation using said house of worship, dissevered their connection with the Methodist Episcopal Church, South, and united with the African Methodist Episcopal Church, the trustees at the time permitting the occupancy of the church to such organization; and afterwards, in 1865, the parties presented their memorial to the Georgia Conference of the Methodist Episcopal Church, South, stating that they had associated themselves with the African Methodist Episcopal Church, and requesting that this property be ceded to them ; and the Conference replied that the titles to the house of worship used by colored charges of their church were vested in trustees, and that they had no power to convey the property to any other organization whatever, but recommended that the colored people who were lately members “of our church” be permitted to use them to worship in. And such action was properly notified to the parties, and they continued in their use of the church ; and that in September, 1868, a notice to quit was served, responded to in January, 1869, declining to give up the possession until compelled by law; and the chairman of the board of trustees made affidavit under the 4005th section of the Revised Code, to which a counter-affidavit was filed under section 4007 ; and issue joined, and the Judge charged the jury, in effect, that except it appeared that the defendants were members'of the Methodist Episcopal Church, South, that the plaintiffs were entitled to recover.</p> <p>Held, Under the facts in this case, that the title to the property vested by the deed in the trustees for the use of the colored members of the Methodist Episcopal Church, South, and just as soon as the members severed this connection, which was perfected by their uniting with the African Methodist Church, that instant they surrendered all legal right as beneficiaries to the use or occupancy of the church, and all claim except at the will or sufferance of the legal owners.</p> <p>6. Reid, again, Under the facts in the case, that their occupancy after notice of the permission to occupy, constituted them tenants-by-suffrance, under the Code, to the legal owners. They were lawfully in possession before they ceased membership, and their remaining by permission of the lawful owners afterwards, was under the changed relation, established,' by their severance from the membership of the church, and did not relate back to their original possession as members of the Methodist Episcopal Church, South. They were not trespassers, for they had permission; nor were they owners, for they had no color of title. They were not tenants-at-will, for they were not in under contract, and their status was that of tenant-by-suffrance, and subject to be removed under the 4005th section Revised Code of this State.</p>

<p>Personal Liability of Stockholders. Tried before Judge Schley. Chatham Superior Court. May Term, 1870.</p> <p>In March, 1869, Jones sued Wiltberger as a stockholder of the Mechanics’ Saving and Trust Association, on his personal liability, for the deposits made with the association by Jones, cestui que trust. It was admitted that Jones, as trustee, was a depositor of the amount sued for, had recovered judgment against the corporation for that amount, had fi. fa. issued, and that the sheriff returned on it nulla bona; that the corporate stock was $250,000 00, its indebtedness for deposits, $198,510 37, and that Wiltberger owned $25,000 00 of the stock. The defense was, that Wiltberger had redeemed as many of the debts of the corporation as he w-as liable for, under the personal liability clause of the charter. This clause is copied in the opinions. The association had made an assignment, and, to prove his defense, Wiltberger read a receipt by the assignee, dated June 1st, 1870, as follows :</p> <p>“Received from William H. Wiltberger, stockholder in the Mechanics’ Savings and Loan Association, the evidences of deposit by the depositors in said association to the amount of twenty thousand one hundred and seventy-one 46-100 dollars, and I hereby acknowledge the cancellation of the debt of said association to that extent as paid and discharged by the said William H. Wiltberger.”</p> <p>The assignee swore that he had satisfactory evidence of the assignment of the deposits by Wiltberger, and cancelled the debts of the association to the amount named in said receipt, as paid by Wiltberger; Wiltberger surrendered to him the evidences of the deposits, without any compensation, paid or promised. Then, without proving the handwriting of any of the depositors, Wiltberger’s counsel put in evidence the original deposit books, in each of which there was an acknowledgment that Weltberger had paid the depositor therein named, and purporting to be signed by the depositor.</p> <p>They also read in evidence a written statement, by the assignee, of the amount due a certain depositor and her transfer thereon, of the claim to Wiltberger, he having paid her. Most of them were not dated; some dated in 1870. All this evidence came in over the objections of Jones’ counsel. Defendant closed. The Court charged the jury, as hereafter appears, and they found for the defendant.</p> <p>Jones’ counsel moved for a new trial, upon the following grounds: The Court erred, 1st, in admitting the assignee’s statement, that “ he had satisfactory evidence,” etc. 2d. In admitting said transfers and receipts without proof of the signatures. . 3d. In admitting said assignee’s written statement of what the association owed a depositor. 4th. In charging that, if the evidences of deposit were purchased by Wiltberger after the suit was begun, he could be allowed them in discharge of his liability as stockholder; that he had a right to purchase the evidences of deposit and give them in evidence, in discharge of his liability as stockholder; and; last, because the verdict was contrary to law, etc.</p> <p>The Court refused a new trial, and that is assigned as error, on said grounds.</p>

Insurance. Parol contract for land. Before Judge Schley, Chatham Superior Court. May Term, 1870.

Taxation. Municipal Corporations. Before Judge Schley. Chatham county. August 1870.

Quo Warranto. Injunction, etc. Before Judge Schley. Chatham County. Chambers. March, 1871.

<p>Where A, as administrator of 0, filed his bill of interpleader, in which he alleged his intestate left property to which he held bond for titles from Collier, that the property had been sold and the fund arising therefrom is claimed by several persons who allege their priorities, who were made parties, and on the hearing it appeared that one of the claimants held a judgment lien against the vendor, and the main question was whether a transferee of the notes given for the purchase-money by such vendor was entitled to priority over said judgment, etc.:</p> <p>Held, Under the facts in this case, the verdict of the jury, decreeing a good title to the purchaser upon his full compliance with the terms of sale, and in favor of the administrator for his actual expenditures upon the property, and for administration fees and reasonable counsel fees, was correct. But it was error to apply the balance of the proceeds arising from the purchase-money to the payment of the notes transferred by the vendor in preference to the judgment lien against such vendor ; and we direct the decree to be so entered as to apply the balance first to the payment of such judgment lien.</p>

Criminal Law. Murder. Tried before Judge Clarke. Dougherty Superior Court. June, 1870. Braswell was charged with having murdered one Lockley with a gun. A physician testified for the State, that Lockley died on the day stated, from a gunshot wound in his breast.

<p>Bes Adjudieata. Before Judge Clarke. Calhoun Superior Court. September Term, 1870.</p> <p>This cause was here at December Term, 1869. See Dumas, administrator, vs. Robinson, et al., 40 Georgia Reports, 349. The judgment below was then reversed, upon the' ground that the Court below erred in passing on but a part of the issue submitted to him, and because it did not appear that the consideration of the debt upon which the judgment was founded was slaves, or the hire of slaves, and that the Court ought to have ordered the Ji. fa. to proceed for one-third of the amount due on the judgment.</p> <p>When the remitittur was returned to the Court below, he ordered it entered upon the minutes, that the Ji. fa. be credited with two-thirds of the amount due thereon, and proceed for the other third. When the illegality case was called, Dumas’ counsel moved to dismiss it, because by the judgment of the Supreme Court, already made the judgment of the Court below, the matter was res adjndieata. On that ground the Court dismissed the illegality. That is assigned as error.</p>

<p>Habeas Corpus. Minors. Fraudulent Judgments. Before Judge Clarke. Calhoun Superior Court. September Term, 1870.</p> <p>Milly Cutts, a negro, signed the following paper:</p> <p>" GEORGIA — Calhoun County :</p> <p>“ I, Milly Cutts, do hereby agree that my children may be bound out to W. A. Hatcher and W. T. Wilkerson.</p> <p>“ MILLY h" CUTTS.”</p> <p>A -lest: mark,</p> <p>his</p> <p>“A. D. i*j Howard.”</p> <p>mark.</p> <p>Thereupon, Hatcher applied to the Ordinary of said county, in July, 1870, represented that her children, Mary, nine yeara old, and Aaron, three years old, had no parents in the county; (their mother being in jail, for stealing, in Sumter county;) that they had no means, and were likely to become chargeable to the county, and prayed that they be bound over to him, as apprentices, till they were twenty-one years old, respectively. Upon the production of said consent, and proof of the facts stated in the petition, the Ordinary bound them to Hatcher, pursuant to the prayer.</p> <p>In September, 1870, Milly Cutts sued out habeas corpus against Hatcher to regain possession of said children. -He answered, setting up said consent and judgment as his justification for holding them. This consent Milly’s counsel traversed.</p> <p>When the cause came on for hearing, Hatcher moved to dismiss the warrant, because, by his answer, it appeared that he had custody of the children under the order of a Court having jurisdiction, etc. This motion was overruled.</p> <p>Milly then testified, that in July, 1870, she was working for Hatcher at fifty cents per day, and had her five children with her; that Cutts'came with a warrant from Sumter county, charging her with having stolen $600 00 from him, and was about to carry her to Sumter for trial. Before going, she agreed that Hatcher should have the care of these children till she returned, and she did not understand that she was agreeing to more than this when she signed said paper. She admitted that she left them without any food or means of support. She further said that a Mr. Ansley had taken her from jail, by standing her security, and that she had agreed to live with Cutts, her former master, and work out the stolen money, and that she wished to carry her children with her.</p> <p>Cutts testified, that he had agreed to take Milly and her children and keep them while she worked out said $600, and that he would do so; that she was a good hand on a farm.</p> <p>Hatcher testified, that when Milly was about to be taken away, as aforesaid, she asked him to take care of her children, and he said he would, if the Ordinary would bind them to him; that he went to the Ordinary, who said he would bind them to him if their mother consented, and wrote out said paper for her to sign; that he took the paper to her- and read it over to her, and she signed it, saying she understood it. The Court ashed Hatcher what he said to her in explanation of said paper, and he said he told her it was an agreement that he should take care of her children. (It appeared that Wilkerson had the other three children.)</p> <p>Howard testified, that he understood the paper, and that Milly said she did; that she said she wished Hatcher to have these children; that something was said about her returning, but he did not remember what. ■</p> <p>The Court ordered the children to be returned to her. This, and his refusal to dismiss the writ on the said motion, are assigned as error.</p>

<p>Administrators and Executors. Before Judge Clarke. Dougherty Superior Court. June Term, 1870.</p> <p>(The opinion gives all the facts necessary for understanding it.)</p>

Ejectment. New Trial. Before Judge Clark. Calhoun Superior Court. September Term, 1870. This was ejectment by Doe, on the demise of Mary Mills, as administratrix of Frederick Mills, against Roe, casual ejector, and said May, as administrator of William Mills, tenant in possession, for land lot number one hundred and eighty-three, in said county. Plaintiff claimed under a conveyance of said land by William Mims to Frederick Mills, made in March, 1857.

<p>Equity Jurisdiction. Injunction. Before Judge Stro-ZIER. Mitchell County. Chambers. March, 1871.</p> <p>William A. Byrd, as administrator of Benton Byrd, filed Iiis bill, in Mitchell county, against Sarah E. Lewis, administratrix of Thomas Lewis, containing the following averments: In 1858, land lots, numbers forty-seven, forty-eight, sixty-three, and seventy-six, in the Ninth District of Dooly county, including the Danville ferry and its franchises, were about to be sold. Benton Byrd and Thomas Lewis agreed to buy them, jointly. Lewis bid them off at $2,000 00, took title in his own name, and paid for them. In 1861, they had a settlement of said contract, and Lewis made Byrd a deed to a half interest in number sixty-three, and the ferry and franchises, and took Byrd’s note for $793 94, the balance due Lewis, under the contract. As soon as Lewis made said purchase, he and Byrd took joint possession of the property, as theirs in common, and so continued till they both died, in 1869. Being intimate friends and having great confidence in each other, no other consummation of said contract was made.</p> <p>Some time after giving said note, Byrd paid Lewis $500 00 on it, and, by Byrd’s request, the ferryman paid Lewis all the ferriage, to-wit: $487 70, to discharge said note. One-half of this $487 70 belonged to each of them. And, since the death of the parties, Sarah E. Lewis, as Thomas Lewis’ administratrix, has received $600 00, being all the ferriage. Byrd, for many years, did all the repairing, etc., of the ferry, at a cost of $500 00. Besides this, Byrd owed Lewis $130 00 for a mule. This shows the state of the accounts between them.</p> <p>Yet Lewis’ administrator, residing in Sumter county, has sued Byrd’s administrator on said note, for its full amount, and for said mule, and brought ejectment against him for said number seventy-six, although Byrd had had joint possession of said lot under said contract ever since the purchase. He prayed for an account and settlement, and for injunction against said suits. The bill was demurred to because there was no jurisdiction over the subject matter in Mitchell county; because it contained no equity, and because the remedy at law was complete. At the hearing, complainant’s counsel presented affidavits of witnesses to admissions by Lewis, of the facts stated in the bill. The demurrer was overruled and the injunction was granted. That is assigned as error.</p>

Sheriff’s Sales. Mistake. Mandamus. Before Judge Gibson. Burke Superior Court. May Term, 1870. On the first Tuesday of May, 1870, Byrd, as sheriff, at the usual hour and place of sheriff’s sales, offered for sale a lot under a mortgage fi. fa., and it was bid off by Collins. He tendered the sheriff his bid, but the sheriff refused to make him a deed. Collins sued out mandamus to compel him to do so.

<p>Railroads. Municipal Corporations. Nuisance. Before Judge Gibson. Richmond Superior Court. June Term, 1870.</p> <p>Mason made an affidavit that locomotive engines, drawing long trains of cars, then were and for a year before, had run on the railway located in Washington street, between Reynolds and Telfair streets, in the City of Augusta; that this was a nuisance “which tends to the immediate annoyance of" and works hurt, inconvenience and damage to “the citizens in general,” whose business requires them to pass along or across said street, and who reside in or own houses near to and fronting on said street: 1st. By impeding and obstructing the free and common use of passage along and across said street, by the length and irregular movement of trains of ears. 2d. By shaking the houses, thereby breaking the plastering and filling the houses with dust and smoke. 3d. By disturbing the occupants by the noise of bells and steam, frightening animals drawing vehicles, etc. Said street is but sixty-five feet wide, and is one of the most ancient and populous streets in Augusta, and this running of locomotives, etc., endangers the lives of citizens, and has killed some, and decreases the value of all the property on the street. These trains and locomotives belong to the South Carolina Railroad Company, the Charlotte, Columbia and Augusta Railroad Company, and the Georgia Railroad and Banking Company. And he prayed the Mayor and Council to abate the same, as a public nuisance. Many minor questions arose on the trial, which throw no light upon the opinion.</p> <p>Mason proved the giverments in his affidavit by “a cloud of witnesses.” The defense was, that by Acts of the General Assembly, the Mayor and Council of Augusta had a right to allow said street to be so used, and that it had contracted with said railroad companies, so as to permit such use. The acts, ordinances of the city, and contracts alluded to, were put in evidence.</p> <p>Vason contended that the Charter of Augusta (1798,) gave the City Council no power to grant the right to lay said track in a street, that the Acts relied upon was unconstitutional, because they made no provision for compensation to those injured by such use; that they did not contemplate the using of steam upon the railroad, and if it were contemplated the manner of its use and its results made it a nuisance.</p> <p>These two bars of iron constituting the railroad track, were in the middle of the street, without embankments or excavations, and passage across the street, etc., is only interrupted by the presence of the trains.</p> <p>The City Council decided that this was not such a nuisance that they should require its abatement, and dismissed the petition at Vason’s costs.</p> <p>He carried the matter to the Superior Court, upon all the questions made below. The judgment below was affirmed, and that is assigned here as error.</p>

<p>1. The holder of a promissory note as collateral security, who takes it without notice, stands upon the same footing as any other innocent purchaser without notice.</p> <p>2. It is only when the Judge of the Superior Court has committed some error of law, or has abused his discretion in judging of the facts, that this Court will interfere with his judgment in refusing or granting a temporary injunction.</p>

Railroad Companies. Common-carriers. Before Hon. John Collier, Judge pro hao vice. Fulton Superior Court. October Term, 1870. In the winter of 1865, McDaniel consigned two lots of cotton to New York, part of each failed to reach New York and was lost. They sued Baugh, as Superintendent of the Western and Atlantic Railroad. That it failed to reach its destination and was lost, its value, and a demand and refusal to pay for it were shown.