Volume 43 — Georgia Reports

Liens. Before J udge Gibson. Rich monel Superior Court.. June Term, 1870. On the 15th of February, 1868, the Stonewall Jackson Loan and Building Association took a mortgage upon certain property. They foreclosed it, had the property levied on in 1869, and the sheriff sold the property and brought the money into Court. Various fi. fas. against the mortgagors came into Court to claim this money.

<p>Branch, Sons & Company sued Ansley, and the jury found for Ansley. They moved for a new trial solely upon the grounds that the verdict was contrary to law, the charge of the Court and the evidence. The Court refused a new trial, and that is assigned as error.</p>

Equity. Injunction. Corporations. Ultra Vires, etc. Before Judge Cole. Chambers.. Bibb County. March, 1871.

Corporations. Ultra Vires. Construction of Acts. Practice of Supreme Court. Before Judge Hopkins. Fulton county. Chambers. December, 1870.

<p>1. Where a bill was brought for specific performance of a contract for the sale of land, and a bond for titles was attached as an exhibit to the bill, and was admitted by the answer:</p> <p>Held, That it was not error in the Court to permit such bond to go in evidence without other or further proof of its execution.</p> <p>2. Where the party gave notice in writing of his absolute refusal to comply with such contract of sale :</p> <p>Held, That the charge of the Court below to the effect that proof of tender after such notice was not necessary, was not error, but in conformity with the rulings of this Court in 12th Georgia, 154.</p> <p>3. Where the defense set up to a bill for specific performance is the incapacity of the party to enter into such contract, and upon -this question several witnesses have been introduced, some dozen testifying as to his derangement, and reciting facts upon which their opinion was based, all concurred in the general impairment of his -mental faculties, but several stated that he had ordinarily attended to his own business, and made his own trades, and the evidence for complainant denied the fact, and the intrinsic evidence of the transaction exhibited no sufficient unreasonableness as to inadequacy of price, or that he did not fairly comprehend, in its effect, the nature of the transaction, but on the contrary, that he did:</p> <p>Held, That while we recognize the rule as laid down by Chancellor Kent, in his exhaustive disquisition of the learning and authority in 6th John’s Chancery Report, 225, upon the discretionary powers of Courts of equity in such applications for specific performance, sustained, as it is, by a galaxy of English Chancellors, and while we recognize the proposition, that where a party elects his remedy in a Court of equity, it is devolved upon him, by the forum and the jurisdiction he invokes, that he must show affirmatively his clear right to the remedy before he will be entitled to his decree for his specific performance. Yet, under our law, equity jurisdiction rests in the Superior Courts, and a jury is a part of our chancery system ; and where a question of fact has been fairly submitted to them, which will always, and of justice, be presumed, where there is no exception to the charge of the Judge presiding at the trial, and the jury have found for the complainant, and the Judge below refused to grant a new trial, upon the authority of Davis vs. Smith, 30th Georgia, 263, and- Raden vs. Tompkins, decided at the present term, to the effect that where the question is one of fact, and there is sufficient evidence to sustain it, and no rule of law was violated in submitting the case to the jury, and the Court be-law has refused a new trial, this Court will not interfere.</p> <p>An adhesion to this rule is essential to the administration of justice, and cannot he departed from without an unwarranted invasion of the established principles controlling the decisions of this Court. See Warner, Judge, concurring.</p>

<p>1. When, upon the trial of an indictment for murder, the Judge admitted evidence of the character of the accused for violence, and also of the deceased for peaceableness, the same not being in rebuttal and objected to by the prisoner:</p> <p>Held, That such ruling was error, under the well established principles of the law of evidence.</p> <p>2. Where the accused, by his counsel, offered in evidence the testimony of a witness, taken down by the Court in a former trial, and the Court rejected it, except such parts as he decided to be in conflict, characterizing such testimony as heresay:</p> <p>Held, That such testimony, taken down in writing on a former trial, when properly proven, may be offered in evidence by either party to discredit the witness, in whole or in part — in whole, to show the negative of something stated, not testified to on former examination, or in part to contradict the witness, and such evidence may he read to the jury, who will apply it by their memory of what was then sworn to before them, and adjudge the question of its conflict or its materiality, and such application and consideration is a question for the jury under the charge of the Court.</p> <p>3. When the Court admitted in evidence a particular act of insult, a quarrel between the prisoner and deceased, occurring several months before the homicide, and not connected with the cause occasioning it :</p> <p>Held, That the admission of acts of previous quarrels, of particular acts, to be admissible against the prisoner, must not be a separate, distinct and independent act, but there must be some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction, and sheds light upon the motive of the parties, to render such particular act or acts admissible. The state of feeling generally between them may go in evidence to illustrate their conduct at the time.</p> <p>4. When the Court charged the jury, upon the facts, that the case was without the provisions of section 4266 of the Code, but such section was qualified by the provisions of section 4267:</p> <p>Held, That the Court erred in the application of section 4267 to the cases provided for by section 4266, as that section is applicable to cases only where, after persuasion, remonstrance, or other gentle measures used, a forcible attack and invasion on the property or habitation of another cannot be prevented, it shall be justifiable homicide to kill the person so forcibly attacking and invading the property or habitation of another, and the only justification to that section is: “ But it must appear that such killing was absolutely necessary to prevent such attack and invasion, and that a serious personal injury was intended or might accrue to the person, property or family of the person killing.”</p> <p>5. Held again, Under this section 4266, construed with the other sections upon the same subject matter, the use of the word person in «the concluding paragraph is to be taken in its connection with habitation, property or family, and, virtually, only such cases as arise when the party is attacked in the manner prescribed in the view of his domicil and in the protection of either person or property connected therewith.</p> <p>6. When several witnesses were introduced in a case, and the Judge selects one by name, and charges the jury, “If you believe A, then the homicide set out in the indictment is murder</p> <p>Held, To be error; for it excluded the consideration of the whole ease from the jury, and such exclusion involved material questions of fact in the case.</p> <p>7. When the Court complimented a witness for the prosecution, the mere fact of compliment being certified without giving the language used:</p> <p>Held, That such action by the Court was calculated to give an improper potency to the influence of his testimony, and was not proper in a case involving life.</p> <p>8. When the fact appeared, upon motion for new trial by the affidavit of the sheriff, that he had, at the request of the jury, brought to them, in their room, loose papers, purporting to be the evidence in the case, not knowing what the papers consisted of, and no exculpatory explanations given:</p> <p>Held, That, in a case of murder, a new trial ought to have been granted upon this ground. For the purity of jury trials, nothing is more to be guarded than the introduction into their rooms of papers relating to the case, without the sanction of the Court. The question is not what material injury they did, but the possibility of injury resulting from an illegal act.</p>

Reconstruction Acts. Contracts. Before Judge Gould, Judge of City Court of Augusta. June, 1870. This was an action by Ramsey against the City Council of Augusta, for his salary as policeman.

Removal to United States Courts. Admissions, Parol evidence to vacate wills. Before Judge Johnson. Muscogee Superior Court. May Term, 1870.' This case was here at December Term, 1869, and a new trial was granted. See Redd vs. Hargroves et al., 40 Georgia Reports, 18. The will and grounds of caveat are there fully set forth.

<p>Alexander held a note on Biggers for the balance due on the purchase-money of laud and brought suit on such note, to which Biggers pleaded tender and relief, etc., and during the pendency of such suit, Alexander also brought his action of ejectment for the land. And Biggers filed his bill in equity reciting these facts and praying injunction against Alexander’s action of ejectment, which was refused:</p> <p>Held, That the Judge committed no error in refusing the injunction under the facts in this case; that Biggers has a good defense at law, by pleading the pendency of the suit, and if the suit on the note is dismissed, then Biggers may file his bill in equity under the facts and his rights may be properly adjudicated.</p>

<p>New Trial. Before Judge Robinson. Morgan Superior Court. September Term, 1870.</p> <p>See the cause of the Georgia Railroad and Banking Company against Robert J. Wynn, ante. After the demurrer was overruled, the cause was tried. The substance of the evidence as to the cause of Mrs. Wynn’s injury and consequent death, etc., was as follows: The pay train was run-</p> <p>ning, not on any schedule of which the public had notice, but on one of which the employees of the company had notice, and at usual speed. Mrs. Wynn, her daughter, her son, about fourteen years old, and driver, about sixteen years old, were in the carriage, and had just passed over the railroad at a public crossing, and the carriage was stopped, for what purpose does not appear. The coming train was hidden from them by undergrowth, etc. The whistle was not blown. The passing train frightened the mules; the driver first, then the son, then Mrs. Wynn, and last the daughter, jumped out. The evidence was conflicting as to whether the driver abandoned the mules or held them. They ran away, but did no damage to the carriage or harness. Mrs. Wynn fell from the carriage and was so injured as to cause her death.</p> <p>As to damages, it was shewn that her physician’s and undertaker’s bills amounted to $162 00. One witness testified that she was worth $1,200 00 per annum to her husband in taking care of his domestic affairs, and another said she was worth from $11 00 to $15 00 per month. Her age was forty-seven years, and she was in good health.</p> <p>Defendant’s counsel requested the Court to charge the jury, that Wynn could not recover damages for the death of his wife. He refused so to charge, but did charge that “every person may recover for torts committed to himself or his wife or child, or ward or servant.” The jury found for plaintiff $7,000 00 and costs. A new trial was moved for upon the ground that the verdict was strongly and decidedly against the weight of the evidence, and because the Judge refused to charge as requested, and charged as he did, etc. He granted a new trial on the ground that the verdict was strongly and decidedly against the weight of evidence. The granting of a new trial is assigned as error.</p>

<p>Slave Debts. Practice. Before Judge Schley. Chatham Superior Court. May Term, 1870.</p> <p>Corbin’s fi. fa. against Robert Habersham & Sons was levied. They filed an oath of illegality, averring that thejft. fa. was bottomed upon certain drafts given for slaves.</p> <p>Ou the trial it was proved that Corbin sold slaves to one Middleton, in February, 1860, and took for them Middleton’s drafts, accepted by Robert Habersham & Sons; that he refused to accept Middleton’s obligation without security; that the said acceptors had no connection with the trade, but accepted simply as Middleton’s security. When this evidence came out, the Judge said he had no jurisdiction to try the cause and stopped it. This is assigned as error.</p>

■Evidence. Bailment. Estoppel. Practice Supreme Court. Before Judge Clark. Mitchell Superior Court. June, 1870. This was trover, for certain cotton, by Patten against Baggs. One Stephens testified that in 1862 he sold thirty-nine bales of cotton to A. J. Hull, and gave Hull a writing describing the cotton, and agreeing to hold it subject to Hull’s order, and that subsequently he stored it in Baggs’ warehouse, by Hull’s order.

<p>Evidence attached to a bill of exceptions, as part of it, must be identified by the Judge below, or the eause will be dismissed here. (R.)</p>

<p>All of this cause necessary, appears in the opinion delivered from the bench, as follows :</p>

Mistake. Res adjudioata. Before Judge Harvey. Eloyd county. July, 1871. After Kohn’s bill of exceptions was dismissed, for the reasons stated in the last case, ante, the remittitur from this Court affirming the judgment, was made the judgment of the Court below, a fi. fa. was issued and was proceeding against Scott.

Removal of causes to United States Courts. Before Judge Clark. Dougherty Superior Court. September Term, 1870.

Corporations. Statute of Frauds. Before Judge Knight. Lumpkin Superior Court. April Term, 1871. In March, 1866, Castleberry conveyed his land to one Pride, but remained in possession and planted part of the land. Pride was agent for the Georgia Company, and had the headquarters of the company in Castleberry’s residence. The hands, teams and wagons of the company destroyed the fences and crops, and Castleberry called on Pride for payment.

Relief Act, 1870. Bes adjudicaba. Before Judge Knight. Dawson Superior Court. April Term, 1871. See the origin of this ease, ante, 41st Georgia Reports, 437. The judgment was that Byers et al, complainants, recover of Smith & Looper $5,500 00, to be paid to a Receiver, when appointed, and that they be removed from their executor-ship. A fi. fa. was issued accordingly on said judgment, and was levied upon certain lands of Looper.

Accomplices. Evidence. Res gestee. Before Judge Alexander. Laurens Superior Court. April Term, 1871. Parsons was indicted for being accessory before the fact to the offense of stealing certain cotton by one Jack Wright.

<p>Railroads. Estoppel. Municipal corporation. Streets. Before Judge Clark. Decatur Superior Court. May Term, 1870.</p> <p>Several of the questions raised in this cause were not passed upon here. And the main points were passed upon, not in this case, but in the decision of The Soulh Carolina Railroad Company et al., vs. Steiner, from Augusta, decided at the same time. The facts upon which this opinion is based, are as follows: The charter of The Atlantic & Gulf Railroad Company, granted prior to the adoption of the present Code of this State, for fixing certain damages to be paid, authorized a submission to arbitration, with a right of appeal to the Superior Court. Mann owned a lot in Bainbridge, fronting on a street, and claimed that the company had damaged him by running its road-bed and track along said street, making a cut six or eight feet deep. He and the company submitted the quantum of damages thereby done to him, to arbitration, under said charter. The submission recited that the company had run its track in said street. The arbitrators made an award, from which the company appealed. On the trial, it was shown that Bainbridge is in the route between the terminal points for said road, mentioned in the charter; that the city authorities of Bainbridge gave the company permission to' run their track in and through the street fronting Mann’s lot, and that Mann had no property on said street. And it was testified by a witness that, in fact, the company did not run its track in said street, (as was supposed when the matter was submitted to arbitration), but on a lot joining the street. There was evidence as to damages, etc. The Court charged that the company was estopped from denying that its track was in said street, unless they can show they made a mistake in the submission; that the company had no right, under its charter, to occupy said street with its track, and the city authorities of Bainbridge had no power to grant the company the right to make an excavation six or eight feet deep in said street, and therefore the company is a trespasser and takes no advantage by the charter, but is liable as any other person for all damages resulting from said trespass and erection of a nuisance. The jury found for Mann, and the company brought the cause here for review.</p>

New trial. Scaling Ordinance. Before Judge Harrell. Dougherty Superior Court. December, 1870. This was a suit to foreclose a mortgage, made to secure a promissory note for $3,500 00, given by Cargyle’s intestate, Brinson, on the 13th of December, 1862, due the 1st of January, 1864, on which a credit of $2,800 00 had been made, •on the 8th of January, 1864.

<p>Repealing Statutes. Jury. Before Judge Strozier. Dougherty Superior Court. December, 1870.</p> <p>Under the Act of the 10th of October, 1868, certain members of certain fire companies are exempted from jury duty. The commissioners, in selecting persons for jury duty in Baker, county, put the names of sixty members of one of these companies in one envelope in the jury box, but not on the jury list. Some of them, being put upon the traverse jury, claimed exemption under said Act. The Court refused to discharge them, bolding that the general jury Act of 1869 repealed this special exemption. This is complained of here.</p>

<p>Rule against Sheriff. Relief Act. Before Judge Steozieb. Dougherty Superior Court. February, 1871.</p> <p>On the 25th of July, 1870, a fi.fa. for $137 90, principal, $40 21, interest, up to the 1st of June, 1870, aud costs, was issued in favor of James Williams, against Mercer and De-Graffenreid, and was subsequently put into the hands of Kemp, sheriff, for collection. He did not make the money, and was, in February, 1871, ruled therefor. He objected to the rule being made absolute, because the fi.fa. was founded upon a contract made prior to June, 1865, and plaintiff had not attached to the fi. fa. his affidavit as to the payment of taxes, etc., as required by the Relief Act of the 13th of October, 1870, which he contended was a condition precedent, which must be complied with before said fi. fa. could be legally levied.</p> <p>The only evidence of the age of the contract, apparent from the rule, is the amount of interest. But, with the record, and certified as part of it, came up an affidavit, made by said defendants, in which they stated that the contract was made prior to June, 1865; that plaintiff had not paid all legal taxes due thereon, etc.; that, by bad debts and depreciation of property, they had lost $50,000 00, by reason of the late war, and were, therefore, entitled to have the fi. fa. reduced, according to said “ Relief Act.” And further, they . affirmed that some time in A.ugust, September or October, 1870, Kemp called on them for the money on said fi. fa.; that they told him it was an old debt, but that they would pay it, but did not pay it; after the passage of that Act, they had not paid it, because plaintiff had not made said affidavit as to taxes.</p> <p>Counsel for plaintiff in error insisted that this paper was no part of the record, but counsel for defendant said it was. Whether this paper was before the Judge below when he considered this cause does not appear. He simply decided that the sheriff had not shown any good cause why he did not collect said fi. fa., and made the rule against him absolute. This judgment is assigned as error.</p>

Injunction. Before Judge Stkozier. Calhoun Superior Court. March Term, 1871. John Williams, by bill, made this case: In 1869 he bought of Hollis an undivided half interest in Hollis’ saw and grist mills, on Notchaway creek, the land and the stock thereto belonging, and in the turnpike across the Chickasawhatchee creek, on the road from said mills to Albany, Georgia, and in the steam mills, near tiie ea^t end of said turnpike.

Criminal law. Before Judge Strozier. Decatur Superior Court. April Term, 1871. This indictment against Dean contained two counts. In the first, he was charged with assaulting one Andrews, with a knife, with intent to murder him, giving time, place, etc. In the other, giving same time, place, etc., he was charged with having stabbed said Andrews with a knife. His counsel moved to quash the indictment, because of said joinder of counts.

<p>Husband and wife. Married women. Before Judge Stbozieb. Mitchell Superior Court. May Term, 1871.</p> <p>Whitehead’s bill made this ease: In June, 1863, he bought of Moses Pullen eertain land for $2,800 00, cash, took possession, and still holds it under Pullen’s deed. In January, 1863, Pullen had conveyed this land to Mrs. Arline, who was then in possession, but had not had her deed recorded. She paid Pullen for it $1,800 00 in Confederate currency; but, by a subsequent agreement between her and Pullen, this trade was annulled. She delivered her deed to Pullen to be destroyed, and he delivered it to Whitehead with the other muniments of title to this and other lands, which Pullen, at the same time, conveyed to Whitehead-By oversight, this deed to Mrs. Arline was not destroyed, but was recorded with the other muniments of title. And persons unknown, combining with Mrs. Arline, an ignorant woman, had procured an action of ejectment to be brought against Whitehead and his tenants, to recover from them the possession of said certain land. The prayer was for injunction. (This deed was in the ordinary form.) The answers were such as is shown by the evidence for the defendants hereinafter. For the complainant, Pullen testified that Arline, husband of Mrs. Arline, about to leave for the army and anxious to have his wife near to Pullen, her physician, that he might take care of her, agreed with Pullen to give him a note for $1,500 00, made in 1861, by one Hicks, for said land, and Pullen agreed to accept it, and Arline requested him to have the deed made to Mrs. Arline. Further, Arline instructed him that, if he sold his contiguous lands, to sell this also, and with the proceeds to buy another place for his wife joining such other place as Pullen might buy for his own home, and to take her with his family. Pullen subsequently conveyed it to her and she moved upon it. When Whitehead proposed to buy the whole, Pullen’s and Mrs. Arline’s, Pullen told Mrs. Arline of the proposed purchase, she consented and delivered her deed for destruction, to carry out said trade. The sale to Whitehead was perfected, and this deed was delivered up to him for destruction, and Pullen and Mr. Arline gave Whitehead possession. The note was for Mrs. Arline’s land, sold to Hicks in March, 1861. Whitehead’s brother testified to the deed of Mrs. Arline being delivered up for destruction, and the payment of the $2,800 00 for Pullen and her, and that Pullen said it was done by her consent.</p> <p>For the defendant the evidence was this : Mr. Arline testified, that he did not trade for said land before going into the army, but simply left with his wife the Hicks note to buy a place with it for him. Nor did he tell Pullen to make a deed to Mrs. Arline, nor knew that it was done till since the war. He did not authorize his wife or Pullen to resell such land as she might buy. He denied putting his wife under Pullen’s charge, further than by requesting him to see that she did not suffer. One Hall testified, that Mrs. Arline was an ignorant woman, and took him with her to buy said land, and the trade was made for the Hicks note without any intimation that Mr. Arline had traded for the land • and this was after Arline was gone into the army. Another witness testified, that Mrs. Arline was not present when Pullen sold to Whitehead. Whitehead testified, that Pullen represented himself as Mrs. Arline’s agent, and Pullen, Mrs. Arline and himself agreed to the destruction of said deed to her, as aforesaid, and that it was, by oversight, handed to the Clerk, with other papers, for record. Mrs. Arline testified, that Pullen, when she went with Hall to buy the laud, offered it for the Hicks note, she agreed, and he, of his own accord, had the deed made to her. When he had sold to Whitehead, he came and told her he had sold, called for the deed which he had made her, and said he would buy her another place; but he bought no other place, nor paid any part of the proceeds to her.</p> <p>Whitehead’s counsel requested the Court to charge the jury;</p> <p>1st. If Mrs. Arline delivered up to Pullen his deed to her, to enable him to include this lot in his sale to Whitehead, and Pullen did so include it, Mrs. Arline is estopped from asserting title against Whitehead.</p> <p>2d. Whether or not she got her money from Pullen is immaterial. If she, by putting her deed in Pullen’s possession, enabled him to sell the lot to Whitehead, and Whitehead paid the agreed price, Whitehead’s payment is good, and she must look to Pullen.</p> <p>3d. If, with notice of the sale, Mrs. Arline acquiesced in it, and gave possession to Whitehead, she could not gainsay the sale, but had ratified it.</p> <p>4th. If Mr. Arline left a note with his wife to purchase a home, and she took a deed to herself, the title vested in her, and she had a right to sell the land. Whether she was authorized by her husband to have the deed made to herself or not is immaterial, as to 'Whitehead’s rights If Whitehead, bought without notice that the deed was wrongfully made to her, he got a good title.</p> <p>He refused to give the first request, saying: “It is upon an assumed state of facts.” He refused to give the .second and fourth requests. The third he gave, with this qualification : “ If the title was in her under the law and she fully understood the consequences of her acquiescence.”</p> <p>He then charged the jury: If an husband buy property and take title to his. wife, she takes the property as an advancement and it becomes her separate estate. A married woman cannot dispose of her separate property except through a trustee, while she may, in equity, do such acts as a Court of equity might compel a specific performance of, but only for the purpose of preventing fraud upon innocent parties. If one sell property to a married woman and makes her a title, without the knowledge or assent of the husband, the title vests in the husband. When one buys property, the title to which appears to be in a married woman, it is notice to him that the property belongs to the husband; and it is upon him to show that the husband caused the title to be made to the wife. If the title to this land was in Mr. Arline, that title must be divested in a legal way, either by a direct conveyance of Mr. Arline or his legally constituted agent, under power of attorney, or by a fraud produced by Mr. Arline upon some innocent party. It must be fraud by Mr. Arline. If this deed was made to Mrs. Arline, without the knowledge or consent of Mr. Arline, then the title vested in him, and no conveyance by her could divest his title unless it was with his consent or direction. When there is a conflict between witnesses, it is the duty of the jury to reconcile the testimony if it can be done, hut if it cannot be reconciled, then to look to the manner of the witness, his connection, etc.</p> <p>The jury found for defendants in the bill. Whitehead’s counsel moved for a new trial, upon the grounds that the Court erred in said refusals to charge as requested, said qualifications of requests, and in each part of his charge as given, and because the verdict was contrary to law, the evidence, etc. The new trial was refused, and error is assigned on each of said grounds.</p>

Equity practice. Lease. Restraint of trade. Landlord and tenant. Before Judge Strozier. Dougherty county. Chambers. 1871.

Ejectment. Evidence, etc. Before D. H. Pope, Judge, pro hao vice. Worth Superior Court. May, 1871. Judge Strozier having been of counsel in this cause, it was, by consent, tried before L. PI. Pope, Esq. It was ejectment, originally, by Judge Harris against H. D. Tabor, but since proceeding in the name of A. G. Eonaldson, administrator of Judge Harris. Tabor died after this trial, pending the motion for new trial, and his administrator was made a‘party.

Criminal law. Jurors. Dying declarations. New Trial. Practice. Before Judge Clark. Baker Superior Court. April Term, 1871. Jeff Nesbit and George Johnson were indicted for murdering John Jordan, with a hoe, in said county, in April, 1870. All the parties were negroes. While empannelling the jury, one Williams, after answering the statutory questions on his voir dire, was put upon the prisoners. Their counsel asked that he be put upon the Court as trior.

<p>Rule against Sheriff. Practice. Before Judge Clark. Sumter Superior Court. April Term, 1871.</p> <p>Raiford, as sheriff, had iu hand a fi. fa. in favor of Taylor, and levied it apon certain personal property. It was claimed and he delivered the property to claimant without taking the usual bond to pay plaintiff, cost and damages, iu case it were shown that the claim was made for delay only. For the want of this bond the claim was dismissed. At April Term, 1871, Taylor ruled Raiford for this money. He answered, showing that he had not sold said property because it was claimed. Not being able to produce the property, the Court held that Raiford was liable to Taylor for the value of the property, and ordered an issue as to value to be tried. Issue was then joined, but was not tried till April Term, 1871. Eaiford was then absent, and his answer could not be found; and for these reasons his counsel objected to going to trial, but the objection was overruled. While Taylor was proceeding to show the value of the said property, Eaiford’s counsel admitted it was worth more than was due on the fi. fa., and the jury so found. Thereupon the Court ordered Eaiford to pay Taylor the amount due on the fi. fa., or be attached for contempt. He did not pay and was arrested. He swore that his health had been bad for six months, that he came to Court during the two first days, but took sick and went home, and when said issue was tried, was at home sick in bed. And his counsel moved for a rule to show cause wrhy the order for him to pay said money should not be set aside, and for supersedeas pending that motion. The Court refused the rule nisi. It is claimed that the Court erred in forcing a trial in the absence of Eaiford and of his answer, in granting the rule absolute and attachment against him, and in refusing to grant the rule nisi to vacate the judgment and supersedeas.</p>

Promissory notes. Sureties. Before Judge Clark. Schley Superior Court. April Term, 1871. Mott sued upon a promissory note made in 1866, payable to him “for value received,” and signed as follows: “B. T. Peacock, M. R. Barney, J. M. Gay,” averring that Gay was a security.

<p>Criminal Law. Confessions. Corroboration. Tried before Judge Clark. Lee Superior Court. March Term, 1871.</p> <p>Murray, a negro, was indicted and tried for burning a gin-house. It was shown that the gin-house was consumed by fire, but how and by whom were the questions. It was one hundred and fifty yards from the dwelling of its owner, was unoccupied and had cotton seed and lint cotton stored therein. It was about a mile from Murray’s home. The evidence to fix the burning upon Murray was as follows: About a year before he had lived with the owner of the gin-house. When brought before the Court for commitment he was sober, and after being warned by the Judge that anything which he said might be used against him, he said that about one o’clock at night he put fire to the gin-house. The gin-house was burned about one o’clock at night; there was no fire there the day before, but there was a remnant of a burning brushheap about two hundred yards off. The witness testified to Murray’s confession when charged.</p> <p>For the defendant, a witness testified that the burning was between ten and eleven o’clock, p. m., and that Murray was then at home asleep, and gave the reasons why he knew the fact. There was evidence that Murray had had some liquor given to him before making said confession.</p> <p>In rebuttal, the State introduced another witness, who testified that at another time and place Murray told him that he burned the gin-house because he had lived with its owner and he would not pay him his wages.</p> <p>After the Court charged the jury as to the caution to be observed in receiving confessions, etc., he charged as follows: “A confession, uncorroborated by other evidence, will not justify a conviction.” What kind of corroboration is necessary to support the confession ? Proof that the house was burned and the reasonable certainty that some one set fire to it, is such a corroboration as the law contemplates. If the house was burned at one o’clock at night, and the defendant confessed that he burned it at that hour, without any suggestion of the hour when the house was burned being made to him, you can take that as a corroborating circumstance. If the gin-house was burned,, and there is no evidence of how it was burned, the law presumes that the burning was accidental, but this is not the presumption if there is evidence to satisfy you that the accident could not have happened and a reasonable moral certainty that some one set fire to it.”</p> <p>The jury found the defendant guilty. A new trial was moved for because said charge was erroneous, and upon various other grounds, touching matters that occurred during the trial, not pertinent to our purpose. The new trial was refused, and that is assigned as error.</p>

<p>Mandamus. Tax. Before Judge Clark. Lee Superior Court. April Term, 1871.</p> <p>Three f< commissioners, appointed by the Legislature of said State, on the 18th of February, 1856, to assess damages sustained by the owners of town lots in the town of Webster, Lee county,” in May, 1856, gave Cheatham a certificate that he was so damaged $1,460 60, and to one Watterera certificate that he was so damaged $161 00. Each of these papers had written upon its back, “Eiehard T. Walters, J. I. C., Samuel Sullivan, J. I. C., James S. Herrin, J. I. C,” and Watterer’s was transferred by him, in writing, to Cheatham. On Cheatham’s certificate, the county treasurer had made several payments, for which Cheatham had receipted on the back of said paper, the last of which was dated August 26th, 1858. In January, 1870, Cheatham filed his petition, setting forth said demands, averring that there was a balance due on his certificate and all was due on the one transferred to him, that the Ordinary would not assess a tax to have the same paid, and prayed that he be compelled by mandamus to do so.</p> <p>The Ordinary objected to the mandamus being made absolute, upon the grounds that said claims were nót a valid subsisting debt against the county; that mandamus was not the proper remedy; because the county was not liable to Cheatham till he had exhausted “the removal fund” provided by law; because the Inferior Court of the county had not indorsed said certificates, the indorsements aforesaid not being a compliance with the Act; because said Act is void as against the citizens of Lee county; because it was barred in that this suit was not begun in four years, or six years, after the right of action accrued, nor before the 1st of January, 1870; and because Cheatham showed no sufficient legal title to the certificate transferred to him by Watterer. The Chancellor made the rule absolute, and error is assigned' upon each of said grounds.</p>

<p>'Trover. Equitable mortgage. Before Judge Clark. Lee Superior Court. April Term, 1871.</p> <p>Stokes brought trover against Hollis for a quantity of lint cotton. To prove title, he introduced the following paper, signed by Stokes and Walker:</p> <p>“GEORGIA — Lee County. — This instrument of writing, made and executed the 13th of February, 1869, between Stephen S. Walker and G. M. Stokes, both of said county and State, witnesseth, that for and in consideration of the sum of two dollars to him in hand paid by said G. M. Stokes, the receipt whereof is hereby acknowledged, and in consideration of the benefit of this sale and contract to him, the said Walker has sold and does hereby sell his entire crop now growing and to be grown on the Brown & Hollis plantation, in said county, where he, the said Walker, resides and is carrying on a farm, and does sub-rent and sub-let to the said Stokes during the year 1869, together with all the stock of horses, mules, oxen, cows, wagons, harness, farming utensils, etc. And the said Walker agrees hereby to remain on said place and manage, oversee, control and cultivate, as bailee and manager, (and which said Walker agrees to be,) honestly and faithfully, under the directions and instructions of said Stokes, and for the benefit and advantage of said Stokes. In consequence, Stokes is not to be liable for mismanagement of any of said crops, or for any loss of any of said property, in consideration of the honest and faithful performance by said Walker, as manager, etc., as aforesaid, and agrees to give him for his services, to be rendered as such, all the proceeds of said farm, after deducting therefrom all the expenses and advances which the said Stokes may incur or make, in consequence of or on account of carrying on said farm, or for auy other indebtedness due said Stokes by said Walker.”</p> <p>Stokes testified that he had possession of said farm during 1869; took said paper to seeui’e him for expenses, labor, advances, etc., to be made, to enable Walker to make a crop on said farm; Walker rented the farm from Hollis & Brown and was unable to farm without aid. He made advances to Walker, got part of the crop, but over $800 00 was still due him, and he wanted said cotton or his money. Brown induced Stokes to make this contract, by agreeing to waive the rent claim till Stokes was repaid. He never had any possession of said cotton except by Walker as his bailee. It was shown that Hollis had possession of said cotton. Plaintiff closed here, and the Court non-suited him. That is assigned as error.</p>

<p>Possessory Warrant. Amendment. Before Judge Clark. Sumter Superior Court. March Term, 1871.</p> <p>On the 7th of November, 1868, Joseph Duckworth sued out a possessory warrant before one Brown, Justice of the Peace, against Randall Duckworth, to get possession of a certain horse. The trial was had before one Fort, and he, on the 9th of December, 1868, ordered the horse to bedelivered to Joseph upon his giving bond and security according to law. On the 22d of December, 1868, Fort issued an order that Randall keep the horse, upon giving bond and security, because, as he recited, Joseph had failed to give bond. After this order was written, it was shewn to Fort that the sheriff had not given Joseph an opportunity to give the bond, and that on the 23d of December, 1868, he did make and tender the bond. Thereupon, Fort instructed the sheriff to deliver the horse to Joseph, and he took it from Randall and gave it to Joseph. On the 29th of December, Randall went before one Guerry, Notary Public and ñx offioio Justice of the Peace, and sued out a possessory warrant for said horse against Joseph.</p> <p>When the trial of this case came on, in January, 1869, all the foregoing papers and facts were in evidence, and it appeared that Randall’s attorney had objected to said Joseph’s said bond, because the security was not good, and demanded that they should justify, and they did not. Guerry ordered that the horse remain in Joseph’s possession.</p> <p>Randall’s attorney sued out a oertiorari to correct said action of Guerry. Judge Clark, after hearing argument, ordered the oertiorari to be dismissed. Before the judgment was written, Randall’s attorney moved to amend the petition by averring that it was proven, on the trial, that Joseph did have opportunity to give the bond, was repeatedly called on to do so, and did not because he could not, and that Guerry be required to answer the petition so amended. The Court refused to allow this amendment, and ordered that Joseph keep the horse, upon making his bond good, and if he did not so make it, then Randall should have the horse. This is assigned as error.</p>

Intruders. New Trial. Before W. A. Hawkins, Esq., Judge pro hae vice. Sumter Superior Court. April Term, 1871. Mrs. Turner sought to have Penelope Barfield removed from certain land, as an intruder. She filed an affidavit that she claimed a legal right to the possession of the land. The Judge being disqualified to preside, Willis A. Hawkins, Esq., presided by consent.

Oertiorari. Before Judge Clark. Lee Superior Court. February, 1871. In 1870, Christy sued out against Outlaw, a warrant, for forcible entry and detainer. There was a trial and decision against Outlaw. He sued out a oertiorari to correct errors alleged to have been made on said trial.

<p>Certiorari. Appeal. Before Judge Clark. Webster Superior Court. March, 3871.</p> <p>Picket et al. petitioned the Ordinary to lay out a public road over the land of Harrell. He ordered it laid out, and Harrell entered an appeal to the Superior Court. When the cause was called for trial, upon motion, the Court dismissed it, upon the ground, that an appeal did not lay in such case; that the remedy was certiorari. This is assigned as error.</p>

Illegality. Slave debt. Laches. Before Judge Clark. Webster Superior Court. March Term, 1871. In December, 1867, Albritton sued Miller upon his note given in August, 1866, and due 1st January, 1867. Miller, though personally served, made no defense. The appearance term of the Court lasted but one day. In September, 1868, judgment was entered against Miller on said note, fi. fa. was issued, in October, 1868, and levied in January, 1870.

Pleading. Amendments. Administrators and executors. Before Judge Clark. Sumter Superior Court. April Term, 1871.

Equity. Fraud. Before Judge Cla.ee. Sumter county. February, 1871. Boone filed a bill against Collins, making this case: In 1867 his agent sold Collins a piano at $575 00, if paid by the 1st of October, 1867, or $600 00 if not then paid for, and took Collins’ note expressing the same. Collins was a farmer and offered warehouse acceptances as security, but his manner and surroundings satisfying Boone that he would pay, he would not take security.

Relief Act of 1870. Demurrer. Before Judge Clark. Sumter Superior Court. April Term, 1871.

Ejectment. Prescription. Party as witness. New trial. Before Judge Glakk. Lee Superior Court. March Term, 1871. This was ejectment for two hundred and two and one half acres of land, begun in August, 1856. The sole fight below was as to whether John L. Laramore had made out a title by prescription to the premises in dispute. He testified that he bought it from his father, in 1845, and took possession, and ever since had possession thereof.

<p>Ejectment. Limitations. Prescription. Before Judge Clark. Lee Superior Court. March Term, 1871.</p> <p>This was ejectment by Doe, upon the demises of Hancock and James Jackson, as administrator of A. J. Lamar, etc., begun in June, 1863. In September, 1869, the declaration was amended by adding a demise in the name of the heirs of A. J. Lamar, (defendants objecting,) and the cause was tried.</p> <p>The plaintiffs read in evidence a regular chain of title from the State down to A. J. Lamar. The deed to him was made in 1844. It was shown that A. J. Lamar died in 1848, and A. J. Lamar became his administrator and guardian of his said heirs, in 1849. One of these sole heirs was, in 1869, twenty-two years old, and the other was twenty-nine years old. The loous, possession by defendants when suit was brought and the annual value of the premises were proven. Defendants read in evidence a series of deeds begun in 1851 and ending in 1856, by which the land was conveyed regularly from the first feoffer in this chain to the defendants, but there was no showing that any of these feoffers had any regular title, nor was either of them a person under whom plaintiffs claimed. A witness said plaintiffs had conveyed this land to defendants pending this suit, but no such conveyance was produced or accounted for. There was evidence introduced to establish a continuous possession by defendants and their feoffers under said deeds from 1841 or 1845 up to the beginning of the suit, and to reduce the mesne profits claimed by plaintiffs. In rebuttal, there was evidence that tlie first of defendant’s feoffers, being in possession in 1847, claimed to hold under A. J. Lamai', and for him.</p> <p>Defendants requested the Court to charge the jury as follows :</p> <p>1st. If defendants or their feoffers were in possession in 1847, under color of title and claim of right, and continued so to hold, regularly, openly and bona fide until 1863, plaintiffs are barred.</p> <p>2d. If adverse possession begun in 1847, and the right of action accrued in A. J. Lamar’s lifetime, the Statute of Limitations began to run against Lamar, and plaintiffs are barred.</p> <p>3d. Seven years’ possession prior to suit, and after administration on Lamar’s estate, bars plaintiffs.</p> <p>4th. If defendants bought the land from plaintiffs the defendants are entitled to a verdict.</p> <p>The Court Gharged that, though the statute began to run against A. J. Lamar in 1847, and did run till his death, at his death it stopped running as against the heirs during their minority. The requests were refused. The jury found for the plaintiffs. There was a motion for new trial upon the grounds that said verdict was contrary to law and the evidence ; because the Court erred in charging as aforesaid and refusing to charge as requested, and in allowing the new demise added. This motion was overruled in March, 1870, and error is assigned on said grounds.</p>

Ejectment. Bona fide purchaser. Notice. Before Judge Claek. Sumter Superior Court. November, 1870. In March, 1868, Wright brought ejectment against Smith. By consent the facts were agreed upon, and it was submitted to the Court whether Smith had a title by prescription. The facts were these: In 1857 Hill et al., conveyed this land to Wright, who had his deed recorded about eighteen months after its date.

<p>Dower barred by decree for permanent alimony. Before Judge Clark. Sumter Superior Court. March, 1871.</p> <p>Here dower was resisted upon the ground that the decree for permanent alimony to the wife was in lieu of dower, etc., by its terms. For the facts see the opinion.</p>

<p>New trial. Before Judge Clark. Lee Superior Court. May Term, 1871.</p> <p>This case is sufficiently reported in the opinion.</p>

<p>Homestead. Relief. Estoppel. Before Judge Clark. Webster county. Chambers. June, 1871.</p> <p>Parker’s bill against King made these averments: On the 5th of January, 1860, he bought of King four hundred and five acres of land, in said county, whereon Parker is living, paid him therefor $600 00, cash, and gave his two notes for $1,020 00 and $1,620 00, respectively, due twelve months thereafter. A few months thereafter, he also bought of King corn, etc., at $305 00, and gave therefor his three notes. When the notes for the land were due, he paid thereon $1,600 00. By clearing, and other specified improvements and repairs of said land, which cost him, say $675 00, he has so improved said place that it is worth, at least, double what it was when he bought it. In 1863 King obtained judgment against him on said notes, and Parker offered to pay him the amount of the judgment, but King would not accept the tendel’, (what it was and when made does not appear.)</p> <p>•In 1863, and 1864, and 1867, he made payments on the judgment, and directed that they should be applied to payment of the land debt first, but $255 00 of these payments were wrongfully applied to pay the debt for the personal property. King agreed to receive, in part payment for said land, a note held by Parker on one Crynes for $109 93, and directed Parker to sue it to judgment in his, Parker’s, name, for King’s use, which he did.</p> <p>When Georgia seceded from the Union, King was a citizen of Georgia, and so remained during the war, and gave money, provisions and clothing by way of aiding the armies of the Confederate States, and sympathized with them. By the result of this war, besides not being able to make cotton during its continuance, Parker lost slaves worth $16,000 00, and a large amount by depreciation of the value of his choses in action.</p> <p>In December, 1868, the fi. fa. founded on said judgment was levied on said land, Parker made affidavit that he wished to scale said judgment, under the Belief Act of 1868, and the sheriff returned the papers to Court. When this matter came on for trial, in March, 1870, Parker was unrepresented and at home, too sick to attend Court. Had he been present, he could have proved that said personalty was part of the consideration of said judgment; that King aided “the rebellion ;” that Parker tendered payment of the debt, and had paid $400 00 or $500 00 thereon, which had not been credited thereon, and the loss which he had sustained by said war. The case was tried and the affidavit was dismissed, as Parker heard after Court adjourned. He had no notice that King had filed his affidavit as to paying taxes, under the Belief Act of 13th of October, 1870. Two creditors of King, claiming $500 00 or $600 00, have garnisheed Parker, and if he pays King he may have to pay these creditors again.</p> <p>In 1869 he applied to have said land exempted from the payment of his debts, as his homestead. King appeared and objected to the order for exemption being granted, because said purchase-money was not paid, and the Ordinary, passing on the whole matter, granted the homestead. King did not appeal, and is, therefore, estopped from selling said land. And yet the sheriff, at King’s instance, is about to sell said land, under said judgment. He prayed for injunction against such sale, that he have a new trial, “and adjust the matters and equities set up in this bill,” “according to the Belief Act of 1868,” and for general relief.</p> <p>Upon receiving this bill, in May, 1871, the Chancellor ordered King to shew cause why the injunction should not be granted.</p> <p>When the time for hearing came, Parker’s counsel read affidavits from his son and an inmate of his house. The son said Parker, during said March Term, 1871, “ was quite sick,” from Tuesday till Saturday, hardly able to leave his room, and decidedly too unwell to attend Court.” The other person said he was “ very sick during most of the week ” and from Tuesday till Saturday unable to go to Court or “ attend to the duties about the house.” They also put in evidence the papers showing the setting apart of said land as his homestead. In reply King introduced the other papers alluded to in said bill. From these it appeared that on the 21st of December, 1868, King’s agent made affidavit that said judgment was for the purchase-money of said land, and thereupon, on the next day the sheriff levied on said land. This is the levy stopped by Parker’s relief affidavit as aforesaid. On the fi. fa. on the $1,020 00 note the payments were $900 00, 5th December, 1863; $600 00, 25th January, 1864, and $72,00, balance, 7th January, 1867. The entry of payment on the other fi. fa. was $625 24, paid January 7th, 1867. The verdict of the jury on said trial was, that Parker was in possession of the land when the suit was begun, and that the judgment was for the purchase-money of the land, and thereupon the illegality was dismissed and the fi. fa. was ordered to proceed.</p> <p>As to Parker’s sickness, etc., a juryman made affidavit that Parker was, on said trial, represented by counsel, and the same who had represented him from the filing of said relief affidavit, and that, on the day of the trial and the day before, Parker was ploughing in his farm about eight o’clock, A. M.; and several other persons made affidavits of the same purport. He showed that the garnishment was dissolved. Besides these facts, King demurred to the bill for want of equity. The Chancellor refused the injunction, and that is assigned as error.</p>

<p>Where A, being fairly indebted to B, in discharge of the debt, sold him the north half of lot number eighty-six, and A, being in debt to others, it was arranged that B should take a deed to the whole lot, and make a title to A’s wife for the south half, and the deeds were so made, and A afterwards sold the whole lot to C, who had notice of the transaction between A and B:</p> <p>Held, That the contract as to the two halves of the lot being severable, the fraud as to the south half did not vitiate the whole, and the jury having set aside the whole deed, it was not error in the Court to grant a new trial as to the north half.</p>

<p>An award of arbitrators is conclusive as to all matters submitted to them by the parties, but if it is doubtful, from the terms of the submission, whether certain matters were submitted to and passed upon by the arbitrators, it is competent for the Court to admit evidence as to the truth of the facts of the case, and then to charge the jury as to the law applicable thereto.</p> <p>It is competent to introduce evidence to shew a non-compliance with the terms of an award, inasmuch as that does not impeach the awardj but merely goes to show a non-compliance with the terms of it.</p> <p>If the Judge, by oversight, omit to sign the certificate to a bill of exceptions, and it comes to this Court uncertified, the papers may be withdrawn to cure this defect; and a certificate by the Judge that this was his fault, thus explaining the delay, will make the cause stand properly for hearing at the next term of this Court, and it will not be dismissed because the bill of exceptions was not certified in the time prescribed by law. (R. See end of Report.)</p>

<p>Continuance. Relief Acts. Before Judge Harrell. Randolph Superior Court. February, 1871.</p> <p>In 1867 Graves, as executor, sued Bone on his note for $600 00, made in January, 1860, due 25th of December, 1860. He pleaded, that he had lost largely by the result of the war; had tendered Graves the amount due on the note in 1863; and prayed an adjustment of the “equities between the parties,” under the Relief Act of 1868. The cause came up for trial in February, 1871, in Bone’s absence. His counsel moved to continue, because the Judge had announced that he would try no cause affected by the Relief Act of 13th of October, 1870, and because, if Bone were present, he would prove the truth of said pleas.</p> <p>Plaintiff stated that he would show that said note was given for land, of which Bone was in possession when this suit was begun. Thereupon, the Court refused the continuance. Plaintiff read his note, showed it was given for land, of which Bone was in possession when suit was begun, and had since sold it for over $600 00.</p> <p>There was some evidence under said plea of an offer to pay during the war, but the Court told the jury to disregard it and give plaintiff a judgment for the amount due on the note. This was done. The same day Bone arrived and moved for a new trial, upon the grounds, that the Court erred in refusing the continuance, and in instructing the jury as aforesaid. The Court refused a new trial, and that is assigned as error.</p>

New trial. Reversal of judgment. Before Judge Harrell. Randolph Superior Court. November Term, 1870. The original cause is fully reported in 41st Georgia Reports, 51.

<p>Upon appeal from the judgment of the Ordinary setting apart a homestead of realty and personalty exemption, it is error in the Court to restrict the jury to find for or against the homestead, etc., as platted; the whole case comes up by the appeal, and the Court should administer the law with regard to its terms and provisions.</p> <p>The Act of 1869 applies to personalty, and the wife, in making application for exemption of personalty, is bound by the fraud or concealments of property by her husband, and must conform, in such proceedings, to the provisions of the Act of 1869.</p>

<p>Trover. Non-suit. Before Judge Harrell. Early Superior Court. April Term, 1871.</p> <p>Georgia A. Mercier brought trover for a sewing machine against A. J. Mercier, her brother. The evidence was that their father bought the machine and brought it home as a present for plaintiff, and gave it to her; that she used it, no one else claiming it, so long as she lived there; that she went away, leaving the machine; her father soon after died, and the machine is still in the house, now occupied by the defendant. But the witness had never seen defendant or his wife use the machine. Its value being shown, the plaintiff closed. Upon motion of defendant’s counsel, the Court non-suited the plaintiff, and of that complaint is made.</p>

Partnership property. Levy. Before Judge Harrell. Early Superior Court. April Term, 1871. Henderson’s fi. fa. against P. B. Jones was levied on certain lots of land as the property of P. B. Jones. Jones filed an affidavit that the lands were not his, individually, but belonged to him and John F. Jones, as partners in farming, and also filed a claim to the land for the partnership.

Evidence. Tenants-in-common. Partition. Before Judge Harrell. Terrell Superior Court. March Term, 1871. Thomas J. Blackshear et al. averred that they were tenants-in-common with Loyless in certain land, and prayed for its partition. He resisted, upon the ground, that plaintiffs had no title to said land, that they were not tenants-in-common with him, and that he had the exclusive title to the same.

<p>"When one man employs a laborer to work on his farm, and another man, knowing of such contract of employment, entices, hires, or persuades the laborer to leave the service of his first employer during the time for which he was so employed, the law gives to the party injured a right of action to recover damages.</p>

<p>When a defendant pleaded that the consideration of the note sued on was negro slaves, and the Court examined a witness as to that fact, and dismissed the case without submitting it to the jury:</p> <p>Held, That this was error.</p>

<p>Parol evidence to vary note. Lawyer’s fees. Before Judge Johnson. Stewart Superior Court. April Term, 1871.</p> <p>Beall sued Scaife upon his note and due bill as follows : “Due E. H. Beall, or bearer, one hundred dollars, value received. January 13fch, 1869,” and, “ By the 25th of December next, I promise to pay to E. H. Beall, or bearer, fifty dollars, value received ;” each signed by Scaife. Scaife pleaded that these promises were given to Beall, as an attorney at law, for his fee in The State vs. Mobley, and Beall failed to attend to the same from beginning to end, and by willful default and neglect allowed Mobley to go unpunished; and they were given in consideration that Beall would prosecute Mobley, and Mobley had not even been arrested ; and therefore the consideration wholly failed. Plaintiff read in evidence said papers, and closed.</p> <p>J. L. Seaife testified that the note and due bill were given to Beall, an attorney at law, as a fee, Beall agreeing to have Mobley arrested, and prosecute him to conviction, for assault with intent to murder; that the due bill was to be paid when Mobley was convicted, and the note when due.</p> <p>In rebuttal, Beall testified that J. L. Seaife spoke to him and Mr. Wimberly, an attorney, for his brother, the defendant, and fixed a fee at $500 00, but when defendant came, he and Wimberly had some private conversation, and the fee was arranged by agreeing that $100 00 was to be paid in cash and $50 00 Christmas. After the due bill was drawn, defendant said he did not have the $100 00, but that it should be paid in a few days. The consideration of the note and due bill was the professional services of Beall & Wimberly, to be rendered' as attorneys in the prosecution of Mobley for assault with intent to murder. When the warrant was sent for Mobley, he escaped into Alabama, before arrest. Beall told defendant, if he would come and get a true bill before the grand jury, and would pay the expenses, he would send for Mobley. He said they ever had been, and were yet ready to render the promised services, but defendant refused to prosecute Mobley. He denied any such contract as that sworn to by J. L. Seaife. Wimberly testified substantially as Beall had.</p> <p>Defendant testified that Beall did not tell him to go before</p> <p>the grand jury; was ready to do so, but did not know it was necessary; that Beall did send him word that Mobley was in Texas, and said he would send for him if he (Scaife) would pay the expenses, but he thought the law provided means for paying such expenses.</p> <p>Beall, Wimberly and another testified that they did not remember that J. L. Scaife was' present when the contract was made, but defendant and another witness testified that he was. It does not appear that any of this testimony was objected to.</p> <p>The Court charged the jury: “If Scaife agreed with Beall, as an attorney-at-law, to pay him $150 00 to prosecute the case of Mobley, this means that he was to do such professional services, as a lawyer, as might be required of him in the prosecution of the case — not that he was to act as deputy sheriff to assist in the arrest, or to act as a witness before the grand jury; and if Beall was willing and ready to render such services as Scaife might require, the consideration of the note has not failed, although Mobley was not arrested; and plaintiff is entitled to recover the full amount. But if the agreement was that Beall was to prosecute the case to conviction, and Mobley has not been convicted, the consideration has failed.</p> <p>He was requested to charge : “ If said notes were given as a fee to prosecute the case, only one-half was due as a retainer, in the absence of any special contract as to the amount to be paid for a retainer; and if Mobley was never arrested, plaintiff can recover only half due as a retainer.” He refused so to charge.</p> <p>The jury found for $150 00, interest and cost. The charge and refusal to charge as requested are assigned as error.</p>

Tax Relief Act of 1870. Before Judge Harrell. Stewart Superior Court. April Term, 1871. This was a suit on a note made in 1859. The plaintiff did not file any affidavit as to payment of taxes under the Relief act of 13th of October, 1870.

<p>Rule against sheriff. Rent. Homestead. Lien. Before Judge Johnson. Stewart Superior Court. April Term, 1871.</p> <p>Harrell made affidavit that J. K. Davis owed him seven bales of middling cotton, each weighing five hundred pounds, and worth $700 00, for the rent of a plantation for 1868. A distress warrant was issued, and on the 20th of November, 1868, was levied upon four thousand eight hundred pounds of cotton seed, four thousand five hundred pounds cotton in the field, four hundred and ninety-five bushels of cotton seed, three mules and a cow and calf, and two yearlings. This cotton and cotton seed were treated here as raised on said land in 1868. Charles Davis claimed the cow and calf and half of the cotton and cotton seed, according to law, and the balance was by the Ordinary, on the 28th of November, exempted under the Homestead Act under a petition filed on the 18th of November, 1868. The sheriff being required to show cause why he had not-made the money on the warrant, answered the facts aforesaid. His answer was demurred to. The Court overruled the demurrer and refused to grant a rule absolute against the sheriff. That is assigned as error.</p>

<p>Administrator’s bond. Before Judge Harrell. Stewart Superior Court. April Term, 1871.</p> <p>This was a suit by the Ordinary on an administrator’s bond, against the administrators and their surety. The surety pleaded that he signed the bond upon the agreement with the administrators that another named person, who had agreed to do so, would also sign as surety, and said person never did sign the bond. The balance of the case is fully reported in the opinion.</p>

<p>Interest. Uusury. Specific performance. Before Judge Harrell. Early Superior Court. October Term, 1870.</p> <p>The bill of Mrs. Weaver against Chauncey, complained that he had loaned her $40 00 to pay for certain land bid off by her at sheriff’s sale, that he took the sheriff’s title to himself for security, and that though she had tendered back the money, and “ liberal interest ” he would not convey her the land. She prayed for a specific performance. All the evidence on the trial was as follows:</p> <p>One Swaine testified; he was agent for Mrs. Weaver, employed by her to attend the sheriff sale in the county of Early, on the first Tuesday in June, 1869, and instructed to buy in, for her, the lot in dispute. Witness attended the sale and did buy in the lot for her, at forty dollars; not having the money, he borrowed from Mr. Robinson twenty-three dollars, a day or two after the sale, and paid the same over to the sheriff ;• he agreeing to wait for the balance, saying all that he wanted was money enough to pay the plaintiff in jd. fa. Several days after this the said Robinson called upon witness to refund the money borrowed; witness went to defendant, a friend and relative of complainant, and told him he had bought in the said lot of land for Mrs. Weaver, and asked if he would not loan the money to her, to be allowed a liberal interest, which he said Chauncey agreed to; at the same time witness suggested that he was willing for the sheriff to make to the said Chauncey a deed to the said land, as a security for the money loaned, and at the same time said to Chauncey, that if Mrs. Weaver was willing for Chauncey to beep the land, he was perfectly willing to it, and that having the deed already in him, there would be no necessity for any further conveyance; but if Mrs. Weaver wanted the land, Chauncey was to make a deed to her upon her paying the forty dollars advanced with a liberal interest upon the same.</p> <p>Under this agreement, Chauncey paid back the money borrowed from Robinson, and paid the sheriff costs, making in all the sum of 040 00. Whereupon, the sheriff made a deed of the lot of land to Chauncey, and witness notified Mrs. Weaver of the arrangement he had made for her.</p> <p>Complainant testified that in three or four weeks after the arrangements were made with said Chauncey under which he advanced 040 00 to her agent, Swaine, she went to pay Chauncey the money, with interest, but Chauncey had gone into the country. She found Chauncey in the country, and offered to pay him the money, with interest, and asked that he would make titles to the said lot of land, as he had promised. Whereupon, Chauncey replied, that he could not make titles uutil he saw Mr. Swaine, and promised to meet witness in Blakely, on a certain day, at which time the said witness went to Blakely, but the said Chauncey had gone off.</p> <p>Sheffield testified, that at .the October Term of Early Superior Court, 1869, as the agent for complainant, and by her direction, he tendered to the said Chauncey the 040 00, and also, 020 00 as interest on it, on the condition that Chauncey would make title to the said lot of land to Mrs. Weaver. Chauncey refused to accept the money.</p> <p>Defendant testified, that some time after said sale, Swaine told him that he had bid off said lot of land for Mrs. Weaver, for 040 00, and that Mrs. Weaver had failed to pay the money, and that the sheriff was pressing him, Swaine, for the same, and that if witness would pay the sum of 040 00, he would instruct the sheriff to make him titles to the said lot of land; he paid the money to the sheriff, and the sheriff executed to him titles to the lot, nothing was ever said about paying money for Mrs. Eliza Weaver.</p> <p>The jury decreed that Chauncey make Mrs. Weaver a title to the land upon her paying him $110 00. She moved for a new trial, upon the grounds that the verdict was contrary to law and the evidence. The new trial was refused, and that is assigned as error.</p>

Ejectment. Evidence. Presumptions. Before Judge Harrell. Clay Superior Court. March Term, 1871. This was ejectment upon the demises of Stephen Dozier and Charles L. Matthews, against William Castleberry, tenant in possession, represented by his administrator, filed on the 22d of March, 1858. The pleas were the general issue and possession under color of title for seven years.

<p>Relief Act of 1870. Amendment. Before Judge Harrell. Randolph Superior Court. May Term, 1871.</p> <p>Demington, survivor for the use of Currier, sued Douglass on a promissory note, made in 1861, payable to Demington & Cole. No affidavit of payment of taxes on said note was filed, as required by the Relief Act of 1870, by Demington or Currier; but John K. Gunn had made and filed the affidavit, with an affidavit that said note was his, and that said suit was proceeding for his benefit. Gunn’s counsel stated in his place, that he received the note from Gunn, sued on it for him, and he was his sole client, and that the suit was brought in its present'shape by Gunn’s order, “from considerations of personal feelings alone,” and moved to amend the petition by striking out Currier’s name and inserting Gunn’s instead. The Court refused to allow the amendment, and dismissed the cause, because there was no affidavit of taxes having been paid, except as aforesaid. ■ This is assigned as error.</p>

<p>Tax under Eelief Act of 1870. Before Judge Harrell. Bandolph Superior Court. May Term, 1871.</p> <p>This was complaint on notes made in 1860. The plaintiff did not file an affidavit that all legal taxes had been paid, as is required by the Eelief Act of 13th October, 1870, and for this defendants’ counsel moved to dismiss the cause. Plaintiff’s counsel objected, because said Act was unconstitutional, and proposed to show that the plaintiff and the payee of the notes never were citizens of Georgia, and therefore never owed any taxes here on said notes. The Court refused to hear this evidence, overruled the objection and dismissed the cause. This is assigned as error on said grounds.</p>

<p>1. When suit was brought upon account, and set-off was pleaded involving a multiplicity of items, originating in three years’ dealing between the parties and the defendant upon such complaint upon account, filed his bill in equity to enforce specific performance of the purchase of a house and lot growing out of the transaction, and upon the hearing the Court granted the injunction:</p> <p>Held, That, while a Court of law has concurrent jurisdiction with equity in matters of account, and when first exercised, will not be interfered with unless for good reason. We think the reason presented by the facts in this case were sufficient to sustain the judgment of the Court below.</p> <p>2. When equity obtains jurisdiction, as in this case, for specific performance, it will take jurisdiction over all the matters correlative to it, and retain the jurisdiction untill full and satisfactory justice is accomplished between the parties ; and under section 3075 of the Code complicated and intricate accounts are proper matters of equity jurisdiction, when, by the aid of a Master or Auditor, the hearing may be facilitated.</p> <p>3. And, again, this Court will not reverse the judgment of the Court below granting or refusing injunction, except in cases of the abuse of the power vested by law in the Chancellor.</p>

<p>An affidavit by the plaintiff in a pending suit on a debt contracted before June, 1865, which affidavit states that all legal taxes chargeable by law in the debt have been paid for each year since the making of the debt, is a substantial compliance with the Act of October 13th, 1870, though the word “ duly” is omitted.</p>

Jurisdiction of Superior Court. Factors’ Lien. Before Judge Harrell. Stewart Superior Court. April Term, 1871.

<p>Equity Practice. Specific Performance. Before Judge Harrell. Early Superior Court. April Term, 1871.</p> <p>For the facts of this case, see the opinion.</p>

<p>This was seirefaeias to revive a dormant judgment sued out in May, 1859. Ho plea was filed. Ho affidavit as to the payment of taxes, under the Relief Act of 1870, was filed, and for that the Court dismissed it. That is assigned as error.</p> <p>H. Fielder, for plaintiff in error, said this cause being in default, judgment should have been rendered by the Court Constitution of 1868, Art. V., sec. 3, p. 3. This Relief Act is void because passed after the General Assembly was in session over forty ■ days, without vote of two-third: Constitution of 1868, Art. III., sec. 1, p. 3, c. 3. It is otherwise unconstitutional: Constitution of 1868, Art. I., sec. 21; Art. I., sec. 9, c. 3, Constitution of United States; 35th Georgia Reports, 285; 4th Wallace, 326, 391, 552; 37th Georgia Reports, 127.</p>

Criminal law. Conduct of Judge. Evidence. Practice. Before Judge Harrell. Randolph Superior Court. May Term, 1871. Pink Green et al., were jointly indicted for assault and battery upon one Conyers, a negro. The Court, upon its own motion, had the testimony taken down in writing by an attorney, in open Court. When Conyers had detailed the facts he was asked, “ Was that in Randolph county ?” This was objected to as a leading question. The objection was overruled.

<p>1. The Act of October 13th, 1870, requiring an affidavit of the payment of taxes in all pending suits on contracts before June, 1865, applies also to pending off-sets, the same being cross-actions; and in such cases the defendant must file the affidavit within the time prescribed or his plea will be dismissed.</p> <p>2. The charge of the Court and the verdict of the jury are sustained by the evidence, and the Court did not err in granting a new trial.</p>

<p>Lien of judgments. Homestead. Before Judge Harrell. Randolph Superior Court. May Term, 1871.</p> <p>On the 12th of May, 1866, Gunn obtained a judgment against Louisa A. Hall, and a fi. fa. issued thereon, on the 19th of February, 1869, was levied upon certain land as her property. Miller claimed said land.</p> <p>On the trial, plaintiff put in evidence his fi. fa., and showed that Mrs. Hall was in possession of said land during 1866, left it in the latter part of that year, leaving her children in possession, and died while away. Miller put in evidence a deed by which, in June, 1868, the sole heirs of Mrs. Hall conveyed said land to him in fee simple. And he testified that when he bought the land from them he did not know there was any judgment against Mrs. Hall. He then put in evidence, over plaintiff’s objection for irrelevancy, a petition and proceedings thereon, under which Miller had this land set aside as his homestead in April, 1869.</p> <p>By consent the matter was submitted to the Judge, and he held that the land was not subject to the judgment. A new trial was moved for upon the grounds that the Court erred in allowing as evidence the petition, etc,, under which Miller claimed said land as his homestead, and in holding that the land was not subject, because the Homestead Act of 1868, as against this judgment, cannot be enforced without impairing the obligation of the contract between Gunn and Mrs. Hall. He refused a new trial, and that is assigned as error.</p>

New trial refused. Before Judge Harrell. Randolph Superior Court. May Term, 1871. Pace sued Sawyer on an open account for $298 70; Sawyer pleaded a set-off for $146 40, and Pace obtained a verdict for $165 00. Sawyer moved for a new trial upon the sole grounds that the verdict was strongly and decidedly against the weight of the evidence and contrary to law. The new trial was refused, and this is complained of here.

<p>Amendment of process. Before Judge Johnson. Muscogee Superior Court. November Term, 1870.</p> <p>Mustian filed a bill against Mott on the 31st of December, 1869, and-prayed therein for subpoena, requiring him to appear at the next Superior Court of said county. On the 21st of April, 1870, the Clerk issued the subpoena, in which Mott was required to appear at the Superior Court, “to be held on the fourth Monday in October next.” The defendant was served on the 22d of April, 1870. When the cause was called, defendant’s counsel moved to dismiss the bill, because the process was returnable to October Term, instead of May Term, 1870. Plaintiff moved to amend the process by inserting May for October. The Court allowed this amendment and overruled the motion to dismiss. This is assigned as error.</p>

<p>Parol evidence. Indorsers. Before Judge Johnson. Muscogee Superior Court;. November Term, 1870.</p> <p>Burns averred that Stapler owed him $1,603 and interest, because on the 11th of May, 1866, A. Gammell gave Stapler his promissory note, whereby he promised to pay said sum to the order of Stapler one day after date, and then and there Stapler indorsed said note and delivered it to Burns.</p> <p>Stapler pleaded that said note was made by Gammell payable to Stapler’s order, and Stapler, for accommodation and without any consideration, transferred the note to one Markham, and indorsed the same for negotiability alone, with the understanding and agreement with Markham that Stapler was not to be liable on said indorsement, and Markham transferred said note to Burns by delivery. At the time of this last transfer Markham and Stapler told Burns that said indorsement of Stapler was made merely to make said note negotiable, and that Stapler was not to be in any way liable as indorser on said indorsement, and Burns took said note with the understanding and agreement that Stapler was not to be bound by said indorsement.</p> <p>This plea was demurred to, and the demurrer was sustained. That is assigned as error.</p>

<p>Where one filed his petition to be declared a voluntary bankrupt, and ten days thereafter a tract of land belonging to him was sold by the sheriff, under s.fi. fa. from a Court of this State against the petitioner, which had been previously levied, and the petitioner was afterwards declared a bankrupt, but died before the proceedings in relation to his bankruptcy were concluded:</p> <p>Held, That the sale by the sheriff was a good sale, and divested the title of the bankrupt; that no title to the property ever vested in the assignee, and the purchaser at the sheriff’s sale got a good title, even as against the wife’s right of dower, under the laws of this State.</p>

Partition of land. Before Judge Johnson. Marion Superior Court. April Term, 1871. Brown averred that he owned an undivided half, and Mrs. McCann and her children the other undivided half of a specified lot of land, and prayed the appointment of commissioners to partition it.

Estoppel. Homestead. Before Judge Johnson. Marion Superior Court. April Term, 1871. This was a bill by Moore, guardian of Willie Baldwin, son of Charles J. Baldwin, deceased, contained the following averments: Charles J. died testate, in April, 1867, leaving real estate worth $2,440 00, and personalty worth $2,372 00. In May, 1867, Gill was appointed and qualified as his administrator, cum testamento annexo.

<p>(Lochraite, Chief Justice, haying been of counsel below would not preside.)</p> <p>Unless it is apparent that the presiding Judge of the Court below has violated some legal or equitable rule in refusing to grant an injunction, this Court will not interfere with the exercise of his discretion.</p>

Claim. Homestead. Before Judge Cole. Houston Superior Court. December Term, 1870. DeGraffenried’s fi. fa. was levied on certain land as the property of Arthur 'Watson. Pierce et al. claimed the land. The fi. fa. was read in evidence, and it was shown that Arthur Watson lived on the premises at the date of the levy, and died there; he was a bachelor with no family except hired servants.

Non-suit. Partnership. Before Judge Cole. Crawford Superior Court. April, 1870. “Beverly A. Thornton, Receiver of the estate of J. A. Ralston,” averred that Taylor F. Gibson was indebted “ to him ” $500 00 for rent of a store for a year, from the first of October, 1866.

<p>Where Kerwin rented the premises of Cummings by the month, commencing on the 7th of May, with the understanding that he would keep them until October, and the agent of Cummings, who made the contract, testified that the renting was only to the 1st of October, but there was also evidence, to-wit: the regular receipt of the rent, monthly, on the 7th of the month, that the renting was until the 7th of October:</p> <p>Held, That whether the renting was to the 1st or the 7th of October: was a question of fact for the jury, and they having found for the plaintiff, and the Court below having refused a new trial, this Court will not, under the facts as they appear in the record, disturb the judgment.</p>

Sheriff’s sales, etc. Before Judge Cole. Bibb Superior Court. October Term, 1870. The trustees of the Methodist Episcopal Church, South, brought ejectment and proceeding to oust tenants holding over against the trustees of the African Methodist Church, for a vacant lot in Macon.

<p>Registration of deeds. Notice. Before Judge Cole. Bibb Superior Court. October Term, 1870.</p> <p>This was ejectment upon the demises of Susan S. Williams et al., against O. F. Adams, tenant in possession. The plaintiffs’ counsel read in evidence a deed from Martha Williams, conveying the premises in dispute to plaintiffs’ lessors. It was dated the 11th of March, 1859. It was in the usual form and was attested as follows: “Signed, sealed and delivered in presence of Richard A. Benson and James L. Williams. Thomas P. Stubbs, Not. Pub.” The certificate of record on it was as follows: “ Georgia, Bibb county. Clerk’s office Superior Court. Recorded in book M, folio 203 and 204. April 7th, 1854. Henry G. Ross, Jr., Clerk.”</p> <p>Plaintiffs’ counsel then read in evidence a deed from said Martha Williams, conveying said premises to said Adams. It was dated the 21st of August, 1866, and recorded on the 28th day of that month. Title was then traced from Martha Williams to plaintiffs’ lessors. It was shown that Martha Williams was in possession of this land when she sold it to Adams; that he took possession then and is in possession yet. She and B. Hill, Esquire, and one Freeman, testified that they told Adams, about the time of his purchase, that Martha Williams had but a life estate in the premises.</p> <p>Defendant’s counsel produced said book M, folios 123 and 124, and showed by it the deed as read in evidence, except the words, “Thomas P. Stubbs, Hot. Pub.” were not on said record. Adams then testified when he bought said land from Martha Williams, he had no notice of plaintiffs’ outstanding title, and that he had already bought and paid for it when Susan Williams, B. Hill, Esquire, and Freeman spoke to him about it, and that he was conversing with them on the subject only because his title had been questioned, and he felt anxious to learn the facts. He bought bona fide, paid all the land was worth, and had no suspicion of said outstanding deed.</p> <p>Counsel for plaintiffs ask the Court to charge the jury that if they believed “Thomas P. Stubbs, Hot. Pub.,” was on said deed when it was handed to the Clerk for record, and was omitted by the Clerk when he recorded the same, it was a misprison of the Clerk; and if the jury believe such was the fact, then. the Clerk had authority to put said deed on the record, and it is a perfect deed, with two witnesses, correctly recorded, and entitled to as full force as if “ Thomas P. Stubbs, Hot. Pub.,” had not been omitted in the record; that by a proper construction of section 2663, of the Revised Code, and notwithstanding said section, where a deed to land was made and recorded several years before the making of another deed to the same premises by the same grantor, although such first deed had not been recorded within twelve months from its execution, and though the second deed was recorded within twelve months from its date, yet the record of the first deed is notice to the grantee in the second deed.</p> <p>The Court charged the jury, that if they believed, from the evidence, that in recording said first deed the Clerk left off “ Thomas P. Stubbs, Not. Pub.,” such imperfect record was not constructive notice to Adams of said first deed at the time of his purchase. He read to them said section of the Code, and charged them that if said first deed was imperfectly recorded as aforesaid, it loses its priority over said second deed, if this second deed was taken without notice of the first. The jury found for the defendant. Plaintiffs’counsel moved for a new trial, upon the grounds that the Court erred in refusing to charge as requested, and in charging as he did, and because the verdict was contrary to law and the evidence, and because of certain newly discovered evidence.</p> <p>This newly discovered evidence was, that “Thomas P. Stubbs, Not. Pub.,” was put there by Thomas P. Stubbs, Notary Public, when the deed was executed and when the other witnesses signed it. There were affidavits by counsel and the party that they did not know of said omission on the record till it was disclosed on the trial. The Court refused a new trial, and error is assigned on said grounds.</p>

Evidence. Bes gestee. Damages. Before Judge Cole. Houston Superior Court. January, 1871.

Amendments. Partnership. Before Judge Cous. Houston Superior Court. May Term, 1871. John O. A. Houser sued Wesley Houser and William Bronsou, partners, under the style of W. Houser & Bronson, upon their promissory note, payable to Houser & Bronson, or bearer. Wesley Houser pleaded that he was not indebted in manner and form, etc. When the cause was called for trial, plaintiff’s counsel moved to strike said plea, because it did not deny the indebtedness by the firm.

<p>Equity pleadings. Homestead. Before Judge Gjreen. Upson Superior Court. November Term, 1870.</p> <p>Zorn’s bill against N. E. Walker, of Upson county, and N. M. Walker, of Crawford county, was filed in Upson. It made this case: In February, 1870, at sheriff’s sale, he bought a quantity of land, described, in Upson county, which was sold under fi. fas. in favor of Smith & Alexander against N. F. Walker, and took the sheriff’s deed thereto. When this sale was made, there was pending before the Ordinary of Upson county an application for the setting apart a homestead to said N. F. Walker out of said land. Smith & Alexander filed objections, the Ordinary refused to allow the homestead set apart, and N. F. Walker appealed to the Superior Court, where it is still pending. At the same time there was and still is another application for homestead out of said land, by N. M. Walker, son of N. F. Walker. N. F. Walker was then and is yet unmarried, had no minor children, and was living with his grandsons. At the time of his application, N. F. had several thousand dollars worth of personalty, $7,000 00 in cash, and various dioses in action which he had fraudulently left out of Shis schedule. N. M. has no title to the said laud, but holds only as tenant of N. F., and is seeking his homestead fraudulently to help N. F. Besides, N. M. had $3,500 00 in cash, and $1,000 00 in personal property, which he fraudulently kept out of his schedule. These proceedings cloud Zorn’s said title. Not being a creditor, he cannot object at the trial of said homestead applications. He prayed perpetual injunction against both of said applications.</p> <p>This bill was demurred to, because there was no jurisdiction over N. M. Walker, because there was an adequate recovery at law, and because the bill is multifarious. After argument, the Court allowed the bill to be amended by striking out the name of Walker, of Crawford, and then overruled the demurrer. This is assigned as error.</p>

Constitutional law. Municipal Corporation. Before Judge Green. Newton Superior Court. March Term, 1871. Whitten had been for years a retailer of liquor in Covington, a city whose Mayor and Council had, hy law, power to grant licenses for that business in its limits. He had paid all taxes and fees required of him. His license expired and he applied for its renewal.

Insurance. Parol to vary writing. Before Judge Green. Henry Superior Court. April Term, 1871. Mrs. Sullivan sued the Cotton States Life Insurance Company on a policy on her husband’s life. The defense was the non-payment of premiums. On the trial, she proved the following facts: On the 16th of October, 1869, her husband and she applied to the agent of said company for a policy for $1,000 00, to be paid to the survivor of them at the death of the other.

Equity. Infants. Specific performance. Before Judge Bigby. Fayette Superior Court. October Term, 1870.

<p>3. When on the trial of a case for “ forcible entry and detainer,” under the provision of the Code, the jury found a verdict for “ forcible detain-er” only, and there being no evidence in the record to sustain the verdict for forcible detainer :</p> <p>Held, That a new trial should have been granted, and the case tried before another jury.</p> <p>2. Inasmuch as the Act of 1869 does not provide for the selection of jurors for the trial of cases of forcible entry and detainer by Justices of the Peace, the jury, under the Constitution of 1861, may be selected under the law as provided by the Code for that purpose, so they are upright'and intelligent jurors.</p>

Commission merchants. Bailment. Before Judge Hopkins. Fulton Superior Court. October Term, 1870. Burnett & Bixey sought to make A. C. Wyly & Company, commission merchants, liable for certain snuff sent to them for sale in 1863 and 1864. The evidence showed that they received the snuff and sold part of it, that they stored the balance, and it was taken by Confederate cavalrymen, in a body too large to be resisted.

<p>Indorsers in second instance. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.</p> <p>On the 30th of August, 1861, R. E. Kennon gave his promissory note to Taylor <5? Miller, payable to them, or bearer, due the 1st of December, 1861. This note afterwards belonged to Chisolm, and he sold it to Pittman, indorsing it as follows: “I indorse this note, liable only in the second instance, this, the 10th of March, 1862. Wm. A. Chisolm.” Wm. A. Chisolm died, and Pittman sued, his executors on said indorsement. They pleaded the general issue, that the consideration of the note was slaves, and that the maker of said note, Kennon, was solvent for many years after said note was due, and no effort was made to compel him to pay it, and therefore the indorser was discharged. This last plea was demurred to, but the demurrer was overruled. Plaintiff’s counsel read in evidence the note, and offered to show that Kennon, who always lived in Georgia, except in 1867, had been insolvent since 1866, by producing witnesses to that point, and fi. fas., on which there were returns of nulla bona, from all which it appears that he owed many thousands of dollars, and had no property. This evidence was objected to, upon the ground that a suit against Kennon on this note, and a return of nulla bona on a fi. fa. issued upon a judgment on that note, was absolutely necessary before Chisolm was liable. The Court rejected the evidence, and non-suited the plaintiff. That is assigned as error.</p>

New trial. Cumulative evidence'. Before Judge Hopkins. DeKalb Superior Court. April Térra, 1871. This was ejectment by Doe upon tlie demise of Durand against Roe, casual ejector, and Craig, tenant. It was admitted that the title was in William Allen, and that he died on the 6th of September, 1862.

<p>(Locheane, Chief Justice, having heen of counsel below, did not preside.)</p> <p>On the trial of an equity cause, the jury found the following special verdict : “We, the jury, find that Marcellas O. Markham was present at the sale ma’de by George W. 'Adair, auctioneer, of the property of Holmes Sells, on the 13th of September, 1866, at which Calvin W. Hunnicutt became the purchaser of the lot described in exhibit C., attached to the written and foregoing bill, and that said M. O. Markham was then and there present and assenting to said sale.”. On this special verdict the presiding Judge entered a decree that the defendant be estopped from enforcing his mortgage lien upon the lot purchased by the complainant, and perpetually enjoining him from doing so:</p> <p>Helcl, That this was error, in view of the facts disclosed in the record.</p>

Relief Act of 1870. Before Judge Harvey. Floyd Superior Court. May Term, 1871. Warren obtained a judgment against Morrison et al., on the 7th of July, 1863. In January, 1870, it was dormant, and he sought to revive it. It was submitted upon the following agreed facts: “ An affidavit of payment of taxes has not been filed according to the statute of October 13th, 1870. The defendants are of doubtful solvency, and have always been so since the plaintiff has owned the claim.

<p>Relief Act of 1870. Before Judge Harvey. Floyd Superior Court. May, 1871.</p> <p>Newton Cochran, as administrator of W. W. Cochran, sued Ayer on his promissory note, payable to him as such administrator, made in 1860. Ayer sought the benefit of the recoupment and set-off sections of the Relief Act of the 13th of October, 1870. Plaintiff introduced the note, and closed. Ayer testified that he lost $73,500 00 by the emancipation of the slaves, and $7,160 00 by loss of mules and other specified stock. This stock was captured partly by the troops of the United States, and partly by those of the Confederate States. The latter took the mules for which this note was given. These losses all resulted from the war. He and plaintiff both resided here during said war, and adhered to the Confederate Government. Plaintiff’s intestate has a widow and one minor child surviving. The Court charged the jury that defendant could take nothing by his plea, unless the plea and evidence connected his loss, in some way or other, with the fault of plaintiff, and that the simple fact that defendant had lost property by the war, or the results thereof, was not of itself enough to allow his claim of set-off; and the fact that the plaintiff was a citizen of the State and adhered to the Confederate Government, is not sufficient to connect plaintiff with defendant’s loss. The jury found for the plaintiff the amount of the note. Said charge is assigned as error.</p>

Actions against Railroad Companies. Presumptions. Before Judge Parrott. Whitfield Superior Court. January, 1871.

Taxes. Relief Act of 1870. Before Judge Parrott. Bartow Superior Court. March Term, 1871. The facts iu this case as agreed on and submitted to the Court below, were as follows: In 1861, Clayton obtained judgments against several parties. Clayton died testate in 1864, and in November, 1865, Akin qualified as his sole executor.

<p>Equity. Comity. Liens’. Before Judge Parrott. Chambers. Bartow County. September, 1871.</p> <p>The State of Alabama, invoking “ that comity which she extends to her sister States,” filed her bill against Noble Brothers, The Alabama and Chattanooga Railroad Company and one hundred and thirty other defendants, in which were the following averments set forth in extenso, with proper exhibits of the conveyances and statutes therein alluded to : Her General Assembly passed “ An Act to establish a system of Internal Improvements in the State of Alabama, which was approved the 19th of February, 1867, and an amendment of said Act, which was approved on the 22d of September, 1868, and embraced the conditions on which Alabama would aid in constructing railroads therein.</p> <p>The Wills Valley Railroad Company, and the Northeast and Southwest Alabama Railroad Company were corporations in said State many years prior to 1868.</p> <p>On the 6th of October, 1868, an Act was approved by which said two corporations were authorized to consolidate under the name of the Alabama and Chattanooga Railroad Company. This Act extended to this consolidated company the benefits of said former Acts, i. e., State indorsement of its bonds. Said companies, under a contract and said last Act consolidated and amalgamated.</p> <p>The General Assembly passed another Act, entitled “ An Act relating to the Wills Valley Railroad Company, and the Northeast and Southwest Alabama Railroad Company, which was approved on the 17th of November, 1868, under which the Wills Valley Railroad Company was authorized to purchase, at a sale of the Northeast and Southwest Alabama Railroad Company, under a mortgage of said railroad to said State, all its property, real and personal, rights, franchises, fixtures, privileges and easements. On said last day the Wills Valley Railroad Company made said purchase, changed its name and organized under the name of the Alabama and Chattanooga Railroad Company.</p> <p>This consolidated company issued four thousand seven hundred and twenty of its coupon bonds for $1,000 00 each, dated the 1st of January, 1869, and due the 1st of January, 1889. Before issuing these bonds this company, on the 19th of December, 1868, made a trust deed and mortgage to secure Alabama upon her indorsement of these bonds. This paper was duly recorded in Mississippi, Tennessee, Alabama and Georgia, in each county through which said railroad runs. The Governor of Alabama indorsed these bonds and delivered them to the company.</p> <p>On the 11th of February, 1870, another Act was approved to loan her credit to said company to expedite the construetion of its road in Alabama, by which her Governor was to issue eight per cent, bonds of the State of Alabama, to said company on certain conditions, the principal of which was that the company should deposit an equal amount of its first mortgage eight per cent, bonds, to be secured by a first mortgage on all its land granted by the United States and all its other property in said four States, and its directors, stockholders, officers and incorporators would be also personally bound for any loss incurred by Alabama should they knowingly violate or permit the violation of the provisions of this last Act. Under this Act, Alabama delivered to said company $2,000,000 of such bonds, took such mortgage and had it also recorded throughout the whole length of said road in said four States as aforesaid. Thus it acquired a prior lien and a lien of higher dignity than any other on all of said property in said four States.</p> <p>The Wills Valley Railroad Company was chartered many years ago by Georgia and its merger into the Alabama and Chattanooga Railroad Company, and this asserted priority of lien of Alabama was recognized by Georgia in an Act of her General Assembly, entitled “ An Act to extend the aid of the State of Georgia to the Alabama and Chattanooga Railroad Company,” approved the 20th of March, 1869.</p> <p>After obtaining said indorsement and said bond, the Alabama and Chattanooga Railroad Company flagrantly violated its said contracts with Alabama; its corporate action has been irregular and usually informal; its directors do not reside in either of said four States; no proper publicity has been given of its elections or meetings; the public only know Daniel L. Stanton and John C. Stanton in its management, the former as President, and the other as general Superintendent. The money raised from the sale of said bonds has been fraudulently misapplied, and used in purchasing' property for the private use of said Stantons and their associates, and said money has been extravagantly, recklessly and illegally diverted from its proper object in a variety of other ways. With part of this money was bought property which the corporation could not legally hold, and the title was taken in the name of individual members. The company has made a floating debt exceeding, by millions, what the building and equipment of the road should have cost. The company improperly and illegally secured the indorsement of Alabama on $500,000 00 of its bonds, in excess of the amount provided for by law, and appropriated these bonds, or their proceeds, in a way unknown to the State of Alabama. It failed to pay the interest on the bonds indorsed and loaned to it by the State, and thus the State was compelled to pay the interest on $200,000 00 of its bonds, besides $168,088 of interest on the State’s bonds due the 1st of January, 1871, $194,189 00 of interest due on the 1st of July, 1871, and the State has become bound for all the accruing interest and the principal of said bonds. The company is insolvent, has had to stop its cars because it cannot pay its employees and creditors, and the Superintendent is gone to parts unknown; and he and the President both are non-residents of Alabama. The property of the company in said four States, is in the hands of subordinates, many of whom are irresponsible. Said property has been wasted, abused, eloigned and seized by attachments, and by every other legal process known to the laws of said States. These causes have produced immense loss and will cause more unless the Court of equity intervenes. The Governor of Alabama, as authorized by law, has taken possession of said road and placed it in the hands of a Receiver, who is operating the road in Mississippi and Alabama. For various reasons he cannot operate it in Tennessee and Georgia. The income from the present operations will not pay the working expenses. The company owes Alabama $700,000 00, and will owe it more. If the State gets all the security property, still she will lose heavily. Part of this road, offices, telegraph wires, etc., are in Georgia. This part has been levied on by attachments and judgments, founded upon foreclosure of liens for labor and material, and is now advertised for sale. It is rapidly deteriorating, and if sold under present complications it will be sacrificed.</p> <p>The prayer was for a Receiver, for subpoena against all these parties and creditors, and for injunction against a sale under their judgments, or further prosecution of their suits, and for relief by paying it first. On the 2d of September, 1871, the defendants were ordered to show cause why the injunction should not be granted.</p> <p>Some of these creditors answered the bill. The main allegations in it were admitted. They set up that the mortgage was not duly recorded in Georgia; said the property in Georgia was not being wasted or destroyed, but was taken care of by persons appointed by the Governor of Georgia; that the road and the property of the company outside of Georgia was sufficient to pay Alabama’s claim, and that their liens for labor and material furnished was of higher dignity than the pretended lien of Alabama, on so much of the road and property as was in Georgia. That there was enough for Alabama out of Georgia, was supported by certain affidavits as to the value of the property in Mississippi, Tennessee and Georgia. And they urged these and various other reasons of like character, set out in extenso, as grounds of objection to the issuing of injunction or appointment of a Receiver.</p> <p>Georgia was no party to the bill; but on the 2d of August, 1871, the Governor of Georgia had issued and published a proclamation in which, after reciting that said company had failed to pay the January and July (1871) interest due on certain of its bonds, indorsed by Georgia, and that Georgia had been compelled to pay said interest, that said company had agreed to the terms upon which said indorsement was made by Georgia, he, by virtue of those terms, as commander of the army and navy of Georgia, proclaimed so much of said road and property as was in Georgia to be in the possession of Georgia, and ordered all the military and naval forces of Georgia to protect the agent of the State in maintaining the said possession. When the day for hearing this motion for injunction and Receiver arrived, counsel for the State appeared, read said proclamation, made known that E. D. Graham and James C. Nisbet, Esqs., had been, by the Governor ofGeorgia, appointed as such agents to hold such possession, and were then in possession thereof. What he proposed to do is not stated.</p> <p>After argument the chancellor ordered the injunction to issue as prayed for, but that it should not restrain or interfere with the sale of said railroad by the Governor of Georgia, according to the laws of Georgia; and he appointed a Receiver to take charge of, preserve and protect said property in Georgia, according to the laws of Georgia applicable to the case. He further ordered the Receiver to negotiate with parties in charge of and controlling other portions of said road for running the same from Meridian, Mississippi, and Chattanooga, Tennessee — its terminus. The defendants to the bill assign said orders as errors. Alabama excepted to and assigned as error so much of the order as to injunction as prevented the sale of the property and road in Georgia, by its Governor.</p>

Distribution of Estates. Lien of Judgments. Tried before Judge Andrews. Oglethorpe Superior Court. April Term, 1871. Dupree obtained a judgment against the administrators of one Chandler, deceased, and subsequently other parties also obtained judgments against said administrators. Fi.fas. were issued upon these judgments and levied upon certain property of Chandler, deceased, which brought at sheriffs sale $1,990 00.

<p>Intruders. Before Judge Robinson. Laurens Superior Court. April Term, 1871.</p> <p>Mrs. Russel made affidavit that Chambers was in the posession of five acres of land, in Irwinton, to which she, bona fide, claimed the right of possession, that Chambers did not bona ficle claim a right to such possession, and procured a warrant to eject him therefrom. Chambers made affidavit that he did, in good faith, claim a legal right to said possession, and the papers were returned to Court for trial of that issue. Plaintiff’s counsel introduced evidence to show title in one Cochran, that Mrs. Russel was in possession of the premises as his tenant, and that Chambers broke down her fence, etc., and took possession.</p> <p>■ In reply Chambers showed that the Inferior Court of said county claimed that said land belonged to the said county, and had it sold at public outcry, and he bought it and took a deed to the same, and that he took the possession because lie believed Cochran’s title was not good, and that his (Chambers’) was. His deed was dated subsequently to Cochran’s.</p> <p>The Court instructed the jury that the question was not the right of possession nor the title, but whether Chambers, in good faith, claimed a legal right to said possession. The jury found for Chambers. Mrs. Russel’s counsel moved for a new trial upon the grounds that the verdict was contrary to law and the charge of the Court, and unsupported by the evidence. The new trial was refused, and that is assigned as error.</p>

<p>The fourth section of the Act of 1868, providing for a specific tax on liquors sold was not, by the terms of it, to go into effect until the 1st of October, 1869. The Act of 1866 in relation to the tax on spirituous liquors was not of force after the adoption of the Constitution of 1868 and the passage of the subsequent Acts of 1868 and 1869, and there is no law of force authorizing the tax collector now to collect the tax on spirituous liquors for the year 1868, subsequent to the adoption of the Constitution of 1868. And the Act of 14th March, 1869, cannot be held to have a retroactive operation so as to subject the complainants to the penalty of $1,000 for not making their returns for that year prior to the date of the Act.</p>

Murder. Evidence. New Trial, etc. Tried before Judge Alexander. Brooks Superior Court. November Term, 1870. Thomas M. Alexander, on the night of the 12th of July, 1870, was found in the road, in said county, dead. His death was caused by several buckshot projected from a gun, eight or ten steps off, into one wound, in the posterior part of the right shoulder. A coroner’s inquest was had, and subsequently Jimpsey A. Hunter was indicted for murdering him.

<p>Where A and B, being partners, executed a mortgage in the partnership name upon all the partnership property to A, one of the partners, and A transferred the mortgage to R, the plaintiff in error, who was proceeding to foreclose the same on the individual property of B, the other partner, and upon the trial the Court ruled out the mortgage as evidence and a verdict was taken for B:</p> <p>Held, That individual property is not embraced by a mortgage executed by partners on their property, except it is specifically set forth and described, and that the Court committed no error in its holding under the facts of this case.</p>

Ejectment. Jurisdiction. Moid judgment. Before Judge Clark. Macon county. Chambers, July, 1871. Tate brought ejectment against Abner Kelly for a lot of land in Sumter county. Pending this action the lot was cut off from Sumter and made part of Macon county, by the General Assembly. No notice was taken of this, as appears; the cause was tried and the jury found for Tate.

Constitutional law. Relief Act of 1870. Before Judge Strozier. Baker Superior Court. May Term, 1871. In December, 1869, Walker sued Crutchfield on his promissory note for $7,219 47, dated on the 28th of March, 1864, and due on the 19th of March, 1865, on which $1,361 23 was paid on the 1st of January, 1867, and $1,200 00 on the 26th of November, 1868.

Constitutional law. Belief Act of 1870. Tried before Judge Harrell. Baudolph Superior Court. May Term, 1871. Hendry averred as follows: On the 1st of January, 1863, he gave Gunn his note, due one day after date, for $2,393 28, in consideration of other notes held by Gunn against him. On the 20th of March, 1863, he paid $600 00 thereon in Confederate currency, which sum was then and there credited on said note.

Res adjudícala. Equity. Dismissal of writ of error. Before Judge Harrell. Terrell Superior Court. May Term, 1871.

<p>1. In order to take a case out of the operation of the statute, on the ground that the contract was not to be performed within one year, there must be such a part performance of it on the part of the plaintiff as would render it a fraud on him, by the refusal of the defendant to comply with the contract on his part.</p> <p>2. Pleading to the merits waives process. (R.)</p> <p>3. Under the sheriff’s signature to the return of the sheriff as to part of the defendants, was a statement “ the other defendants not to be found in the county.” It not appearing who made it, it was held to have been made by the sheriff. (R.)</p> <p>4. It is not a good objection to testimony taken by interrogatories, that the firm name of the witnesses, instead of their given names, is inserted in the commission, where they signed the interrogatories by their given names. Signing at the place where the commissioners should sign, is a good subscription to their answers. (R.)</p> <p>5. The charge of the Court was divided up and numbered; in parts of it the lines were numbered 1, 2, 3, etc. It is a good assignment of errors thereon to say the Court erred in said parts and said lines, by saying he erred in charging as shown in said paragraphs, 1, 2, 3, etc., and in lines 1, 2, 3, etc. (R.)</p>

Eescission of Contract. Before Judge Johnson. Muscogee Superior Court. December Term, 1870. Moses sued McCauley upon a promissory note payable to his order for $837 50.

Relief Act of 1870. Before Judge Johnson. Muscogee Superior Court. November Term, 1870. Aenchbecker et al., brought ejectment against The Columbus Iron Works, and in January, 1870, recovered the land, and a judgment for mesne profits during the time defendant had been in possession, to-wit: from the.....day of...., 1863, to January, 1870. With the writ of possession a fi. fa. issued for these mesne profits.

Jurisdiction of Justices of the Peace. Continuance. Before Judge Johnson. Muscogee Superior Court. November Term, 1870. Gammell, a livery stable keeper, sued Klugman in a Justice’s Court, averring that in March, 1870, he hired Klugman a horse which, by hard driving, Klugman injured to the damage of Gammell $100 00. Klugman pleaded to the jurisdiction of the Justice, because this was an action for damages over which the Superior Court, he said, had exclusive jurisdiction.

<p>Insurance. Equity. Before Judge Johnson. Muscogee Superior Court. November Term, 1870.</p> <p>This bill was by Seabrook, as administrator of Dawson against Eust, the Agent, and The Underwriters’ Agency, a corporation of New York, composed of the Germania, the Hanover, the Niagara and the Eepublic Insurance Company, each of which is a corporation of New York, as averred, the averrments of which are fully stated in the opinion. Answers had been filed and the bill was read on trial when the Court dismissed it for want of equity.</p>

<p>Parties. Pleading. Before Judge Johnson. Muscogee Superior Court. November Term, 1870.</p> <p>Worrell sued D. L. Booher and Milo Booher, of said county, upon a promissory note for rent, whereby they jointly promised to pay a sum of money to one Cheney’s order. Worrell indorsed upon his petition, “Let the sheriff return as to Milo Booher not to be found, etc., E. H. Worrell.” The sheriff served D. L. Booher, and as to Milo returned only as follows: “ Wo copy furnished me to serve upon the other defendant, Milo Booher.”</p> <p>When the cause was called for trial, D. L. Booher’s counsel objected to trying it till Milo Booher should be served. The plaintiff took an order dismissing the cause as to Milo, and thereupon the Court ordered the trial to proceed. D. L. Booher then pleaded as follows : “Milo Booher is, with said defendant, jointly liable to the said plaintiff on said note, and said Milo Booher resides within the jurisdiction of the Court, and did so reside at the commencement of the suit, to-wit: in the county of Muscogee in said State, and, though apparently sued in said action with the . said defendant, yet at the time of the filing of the declaration in the office of the-Clerk of the Superior Court of Muscogee county, the said plaintiff in writing instructed the said Clerk not to have the said Milo Booher served, and this the defendant is ready to verify, wherefore he prays judgment,” etc.</p> <p>This plea was demurred to and the demurrer was sustained. The defendant declining to offer other defense, judgment was entered against him by default. The sustaining said demurrer and signing said judgment are assigned as error.</p>

Exemption. Lien, etc. Before Judge Johnson. Marion Superior Court. April Term, 1871. In August, 1869, Mary Mizell and her minor children brought trespass against Gill for selling certain property which had been set apart as exempt from her husband’s debts, under the Homestead and Exemption Act.

Relief Act of 1870. Before Judge Harrell. Muscogee Superior Court. May Term, 1871. Winter’s action against H. H. Epping & Company was begun in 1869. It contained the following averments : On the 20th of March, 1865, defendants bought for the joint account of himself and themselves, $2,500 00 in gold coin, which Epping kept for their joint benefit.

<p>When a motion was made to set-off losses against a judgment based on affidavit, which does not state the judgment was founded on a debt, contract or cause of action made or implied before the first of June, 1865, and upon demurrer thereto the Court sustained the demurrer and dismissed the motion :</p> <p>Held, That the judgment of the Court below was not error, under the law and facts of the case.</p>

New trial. Cumulative evidence. Before Judge Cole. Bibb Superior Court. December Term, 1870. Joe Gorman, a negro, died intestate, and Ross became his administrator. He had brothers and a sister, who claimed to be his heirs-at-law. This was denied by others, who claimed to his heirs, because they were his grand-children. Ross filed a bill to have them interpleaded and settle their rights.

Principal and surety. Administrators. Before Judge Cole. Bibb Superior Court. October Term, 1870. See the bill by which this cause was begun in Southwestern Railroad Company vs. Thomason, 40 Georgia Reports, 408. By amendment it was averred that Charles A. Nutting, Cubbedge & Hazlehurst et al., bought said stock, and the prayer was to follow it in their hands.

Master and servant. Damages. Before Judge Cole. Houston Superior Court. December, 1868. Howard averred that certain eighteen negroes were employed by him as his servants for carrying on his farming operations, yet Salter, knowing this fact, and with a view to injure him, on the 29th of January, 1866, wrongfully enticed them away into Ms service, whereby Howard lost the profits of their labor.

Corporations. State as party. Before Judge Alexander. Chambers. Bibb county. June, 1871. On the 25th of May, 1871, at Macon, Georgia, there was a meeting of the board of directors of the Macon & Western Railroad Company.