Volume 44 — Georgia Reports

Equity jurisdiction. Before Judge Green. Spalding Superior Court. February Term, 1871.

<p>Where upon a bill filed to enjoin the execution of certain fi. fas. obtained against A as principal, and B as surety, upon the ground that the owner of the fi. fas. had made a contract with A, by which he owed him an amount equal to the judgment, and which he paid him to the wrong of his surety, by which the surety claimed to be discharged, and upon the hearing the holder of the fi. fas., by his answer showed that he was the owner thereof, and that during the war he had employed the principal defendant to carry off his negroes out of the reach of the Federal army, and had paid him therefor at the time in old issue of Confederate money, and that his family were destitute, and that there was no collusion, etc., and the Court, upon the bill and answer, refused an injunction:</p> <p>Held, That this Court will not interfere with the discretion of the Judge below in refusing an injunction under the facts in this case, «and that the employment and payment of the principal defendant as stated did not discharge the surety from liability on the judgment.</p>

Rule against Sheriff. Relief. Homestead. Before Judge Green. Newton Superior Court. March Term, 1871. In 1859 Henry Camp, as trustee of Sarah A. Camp, and James D. Johnson, as security, gave a promissory note to A. P. G. Harris, reciting in it that it was “for the land late residence of West Harris, deceased.” A. P. G. Harris sold this note to Baker, Johnson died and Pace administered on his estate.

<p>Certiorari. Practice in Supreme Court. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.</p> <p>At October Term, 1867, of the Justices Court of the 1026 District, Georgia Militia, L. J. Glenn & Son obtained a judgment against Charles Shearer. In February, 1869, they garnisheed Wm. Shearer on said judgment. He answered that he owed Charles Shearer nothing, etc., and his answer was traversed. This issue came on for trial before B. D. Smith, Notary Public and ex officio Justice of the Peace for the same district, who had issued the garnishment. He dismissed it upon the ground that he had no jurisdiction over it, inasmuch as the judgment .was not obtained before him. L. J. Glenn & Son sued out a certiorari, but gave no notice of its sanction to the other party. “ After argument had, the Court dismissed the certiorari and gave judgment for defendant for costs of suit; to which action, decision and judgment of the Court plaintiff excepts and assigns the same as error.”</p> <p>The bill of exceptions specified no error except as aforesaid. 'When it was called here a motion was made to dismiss it because it did not sufficiently specify the error complained of. The motion was overruled.</p>

Bankruptcy. Practice. Charge of the Court. Before Juclge Hopkins. Fulton Superior Court. October Term, 1870. Austin aud Holliday sued Mrs. Woddail for “ one kiln of brick, one hundred and sixty thousand, at $6 00 per thous- and, $960 00.” She pleaded the general issue and payment in full. Powell testified that he sold the brick to defendant at $6 00 per thousand, at kiln-count.

Jurisdiction of Judge of Superior Court. Before Judge Hopkins. DeKalb County, Chambers. Eebruary, 1871. Hardin stood the security of Rutledge for his appearance to answer for an assault. Held: in that Judge Parrott had no right or authority to hear or determine the cause, for the reasons aforesaid. The Judge overruled this objection.

Relief Acts of 1868 and 1870. Taxes. Before Judge Hopkins. Fulton Superior Court. April Term, 1870. In April, 1866, Mandell obtained a judgment against Williams for $196 00, principal, and $68 25 interest. Fi.fa. was issued and levied upon William’s property in March, 1869. Williams filed his affidavit that said judgment was founded upon a contract made prior to June, 1865, and that he desired to take the benefit of the Relief Act of 1868. The cause was continued.

<p>For the necessary facts, see the opinion.</p>

Injunction. Roads. Before Judge Parrott. Whitfield county. Chambers. May, 1871. Clements, on behalf of himself and other citizens of Tunnell Hill and vicinity, sought to enjoin Logan from obstructing a road. The bill made this ease: This road runs over Tunnell Hill ridge from the village to the country, and has existed more than twenty years in peaceable, continuous and uninterrupted use. It is of great nse to said citizens as a short way to their farms and to the country.

Ejectment. Limitation of Actions. Before Judge Parrott. Whitfield Superior Court. May Term, 1871. This was ejectment by John Doe upon a demise for twenty years from S. W., L. L., M. G\, and A. W. Stevenson, jointly, on the 1st of January, 1864, upon the demises of each of them on said day, and on the demise of William W. Baker on the 5th of December, 1869, against Roe, casual ejector, and Robert Roath et al., tenants in possession.' It was filed on the 20th of December, 1869.

Relief Act of 1870. Sureties. Before Judge Parrott. Gordon Superior Court. April Term, 1871. By consent this cause was submitted to the Judge for decision upon the following agreed facts. Abercrombie obtained a judgment against Baxter, Baxter sued out a writ of error to the Supreme Court, and gave bond for super sedeas. The judgment was affirmed by the Supreme Court, and a motion was made to enter judgment against the sureties on said supersedeas bond.

Administrators and Executors. Evidence. Pleading. Before Judges Andrews and Gibson. Richmond Superior Court. January Term, 1871.

Slave Debts. Estoppel. Before Judge Twiggs. Burke Superior Court. May Term, 1871. On the 19th of November, 1868, Jeremiah Inman obtained a judgment against D. J. Jones, principal, and M. D. Jones, security, upon which a fi. fa. was issued upon the 25th of November, 1868. In December, 1868, D. J.'Jones made affidavit that said judgment “ was founded on a debt the consideration of which was for the purchase of slaves,” to stop said fi. fa. from proceeding.

Party as witness. New trial. Before Judge Robinson. Washington Superior Court. December, 1870. This cause was tried below three times, and each time the plaintiff obtained a judgment against the defendant. The first verdict was for $4,716 96, the second for $4,913 50, and the last for $4,225 61. It was trover for twenty-one bales of cotton brought by George W. Robertson, survivor of G. W. & B. F. Robertson, against Leaptrot.

Ejectment. Evidence. Before Judge Robinson. Jasper Superior Court. October Term, 1870. This was ejectment in favor of tbe executors of Matthew Whitfield against S. J. Wilborn, tenant. The declaration was in the “Jack Jones” form, and had attached to it a copy of a deed to the premises in dispute, made on the 1st of January, 1863, by “ James O. and John L. Robinson, trustees of Martha A. Wilborn,” to said Whitfield. The suit was begun in 1869.

<p>Vben the evidence is conflicting and no rule of law violated in submitting the facts to the jury which probably might have produced a different result, a new trial will not be granted on the ground that the verdict is contrary to the evidence, the more especially when the presiding Judge is satisfied with the verdict.</p>

Equity. Injunction. Before Judge Sessions. Appling county. September, 1871. Beasley’s bill against Zeigler et al., made this case: In April, 1870, he bought from them certain lands containing say, twenty-two hundred and sixty acres, with all its appurtenances, without reservation or exception, for $2,500 00.

<p>This cause is reported in the opinion.</p>

<p>Lien. Homestead. Before Judge Knight. Lumpkin Superior Court. April Term, 1871.</p> <p>In September, 1866, YanDyke agreed to deliver to Kilgo goods to be sold by Kilgo for him. Kilgo agreed to receive them into his store and sell them, and after paying Yan Dyke original costs they were to divide the goods on hand and accounts between them. At that time Kilgo owned the store and his dwelling adjoining it, and a farm. YanDyke furnished him $15,000 00 worth of goods. Kilgo sold part of them, and with part of the proceeds had his house repaired by painting, etc., and paid his physician’s bills, etc. In February, 1870, Kilgo died, leaving his widow and several minor children, him surviving. Her books showed a balance due YanDyke of say $800 00, and Mrs. Kilgo agreed that this balance was due on said partnership account. She, as head of the family, refused to pay it, but has had the store, dwelling and farm, all set apart as a homestead for herself and family. No administration has been taken on Kilgo’s estate. Upon this statement of facts in his bill, VanDyke claimed a lien for said $800 00 on said homestead, and prayed that the homestead be subjected to its payment.</p> <p>This bill was demurred to for want of equity. The demurrer was overruled and that is assigned as error.</p>

<p>Drafts. Notice of non-payment. Before H. Morgan, by consent, Judge pro hao vioe. Dougherty Superior Court. February, 1871.</p> <p>Seymour, Johnson & Company brought “complaint” against Gilbert & Vason, on a draft in these words:</p> <p>“ Albany, Ga., March 16, 1867.</p> <p>“At sight pay to the order of ourselves, two hundred and five dollars and fifty-five cents, value received, and charge the same to account of GILBERT & VASON.</p> <p>“To William S. Moughon, Macon, Ga,</p> <p>“(Indorsed) £Pay to the order of Seymour, Johnson & Co.’”</p> <p>The defendants pleaded payment. Plaintiffs read in evidence the draft, and closed. Defendants moved for a non-suit, because there was no proof of demand on Moughon, nor of notice to defendants of such demand, and Moughon’s refusal to pay the draft. The motion for non-suit was overruled. Yason testified that Yason & Davis owed plaintiffs $450 00, and in March, 1867, Johnson oalled for payment; they offered him the whole of the money, but he preferred said draft and the balance in cash, and they settled with him in that way, and gave Moughon credit by the amount of the draft; Moughon then owed defendants say, $500 00, was in possession of land worth $50,000 00, and considered solvent. He had promptly paid his bills, and defendants had no notice that he had not paid this draft till the fall of 1867, or the winter of 1867-8. Then Moughon was insolvent. The jury found for the plaintiffs for the amount of the draft and costs. The defendants moved for a new trial, upon the grounds that the Court erred in not non-suiting plaintiffs, and because the verdict was contrary to law, etc., and because 'plaintiffs’ laches discharged defendants. The new trial was refused, and that is assigned as error.</p>

Equity. Parties, lies adjudicata. Tried before Judge Okeal. Mitchell Superior Court. June, 1871. In December, 1861, Heal obtained two judgments against Allen Cochran. Cochran died in 1863, and Jubal Cochran became his executor, and by his consent Polhill, the son-in-law of Allen Cochran, took possession of part of the estate and managed it.

<p>"When, by mistake of a magistrate in failing to mark the name of counsel to the defense of a suit pending in his Court, judgment was obtained against the defendant, and such defendant, under a mistake and ignorance of the facts, let the time elapse for appeals, and filed his bill, stating the facts of the mistake, and also that he was not liable for the debt sued, it being, as he alleges, a promise to pay the debt of another under conditions, which is denied by the defendant to the bill, and upon hearing the evidence the Court refused the injunction:</p> <p>Held, That the Court erred under the facts alleged in the bill. The judgment having been obtained by mistake, equity had jurisdiction, and the fact of the liability was a question for the jury upon the evidence, and it was the duty of the Court to have restrained the levy under such judgment, until the hearing upon all the facts and evidence in the case.</p>

Relief Act of 1870. Possession of land. Before Judge Harrell. Stewart Superior Court. April Term, 1871. Rawson brought siut in August, 1866, upon a promissory note made in 1861 against Cherry alone, as security. He had filed no affidavit of the payment of taxes under the Relief Act of 13th of October, 1870, averring that it was unnecessary, because the note was for the purchase-money of land of which Cherry was in possession at the commencement of this suit.

<p>1. When the Constitution creates an office to be filled by appointment of the Governor, by the advice and with the consent of the Senate, but legislation is necessary to carry the Constitution into effect, and an Act for that purpose is passed, which, by its express terms, does not take effect until a day subsequent to the adjournment of the Senate, the office is vacant, and may be filled by the Governor, until it is filled permanently, as provided by the Constitution. It is immaterial whether the office has “become vacant;” it is sufficient that a vacancy exists; since in the former case the Governor may fill it, under the express words of the Constitution, and in the latter case, he may fill it under section 66 of the Code, which authorizes him to appoint all officers and fill all vacancies, when no other mode is provided by the Constitution and laws.</p> <p>2. When important and almost revolutionary results must follow from declaring a session of the Legislature illegal, the Courts are bound to require a most palpable and direct violation of the Constitution, before they interfere. It is the duty of Courts, in passing on the constitutionality of laws, not to pronounce against them, except in a clear case, and to make every intendment possible in favor of their constitutionality.</p> <p>3. Whether it is in the power of the Courts to hold a law unconstitutional, on the ground that the Legislature passing it is not in session according to the mode prescribed by the Constitution, and to inspect its journals to determine the fact — Query %</p> <p>4. The Legislature having, by a vote of each house, declared that the session of 1870, was not a session after the second session under the Constitution of 1868, it is very doubtful whether this decision is not binding upon the Courts, as the judgment of a tribunal authorized by the Constitution to decide it.</p> <p>5. Article III., section 1, paragraph 3, of the Constitution of 1868, which provides that “the first meeting of the General Assembly shall be within ninety days after the adjournment of this Convention, after which it shall meet annually, on the second Wednesday in January, or on such other day as the Legislature may direct,” * * *, and that “no session of the General Assembly, after the second, under this Constitution, shall continue longer than forty days, unless prolonged by a vote of two-thirds of each branch thereof,” may, in a very just and proper sense, be construed to mean by the words, “second session under this Constitution,” second session as provided for and specially required by this Constitution, so as to exclude the “two sessions,” called extra and irregular sessions, which, though legal, are not specially mentioned and required by the Constitution.</p> <p>6. The session of the General Assembly, which met on the ... day of July, 1868, more than ninety days after the adjournment of the Convention, under the order of General Meade, and more than seventeen days before the Constitution of 1868, as decided by this Court in Foster vs. Daniels, 39th Georgia Reports, 39, went into operation, though a legal session may be called an extra or irregular session, and not. one of the sessions meant by the Constitution in Article III. of the Constitution.</p> <p>7. The session of the General Assembly of 1870, may, therefore, be fairly said not to have been a session after the second session, within the meaning of the clause which prescribes that no session, after the second under this Constitution, shall continue longer than forty days, unless prolonged, etc., etc.</p> <p>8. The Act of October 28th, 1870, directing the Ordinaries of the several counties to assess a tax to pay the salaries of the District Judges and attorneys, is sufficiently definite, since, from the census of 1870, the amount due from each county may be ascertained by simple calculation, and the tax books in the Comptroller General’s office will fur- ' nish the property to be taxed. Warner, Judge, dissenting.</p>

<p>Where there was an attachment pending in the Superior Court of Muscogee county against A, who was declared a bankrupt, and his assignee was appointed under the laws of the United States:</p> <p>1. Held, That the assignee may be made a party to the attachment, and that it was proper, on his motion, to declare the attachment dissolved by the bankruptcy.</p> <p>2. Held further, That pending such motion, the plaintiff in attachment may amend his attachment as in other cases.</p> <p>3. When an attachment was issued on the 12th of August, 1870, and was, by mistake, made returnable to the May term, 1871, instead of November, 1870:</p> <p>Held, That, on the mistake being made apparent to the Court, the attachment and bond may be returned, if the return was in fact made to the November term, 1870.</p>

<p>[When this cause was called, Lochrane, Chief Justice, stated that he was a policy holder, and consequently a stockholder in said Company, and interested, but upon request of counsel he presided.] ^</p> <p>When a wife insured the life of her husband in 1859 with an agent of a New York Insurance Company, and paid the annual premiums promptly until 1862, but then failed to pay said premiums until March, 1865, when the husband died, after which, and after the close of the war, she tendered the unpaid premiums, and demanded payment of the sum insured, alleging that she was prevented by the war and by Act of Congress from paying them year, by year, on the day fixed in the policy.</p> <p>Held, that the contract of the company for any future risk was dependent upon the payment of the annual premiums as they, severally, by the assessment-, were to be paid, and tbe failure to pay, for whatever reason, could not be remedied by a tender of the premiums after the death of the person, whose life was insured.</p>

Contracts. Wagers. Stipulated Damages. Before Judge Cole. Bibb Superior Court. October Term, 1870.

Slave debts. Novation. Relief. Before Judge Cole. Bibb Superior Court. October Term, 1870. On the 24th of August, 1866, Enoch F. Collins, and Stephen Collins as his surety, delivered their promissory note for $500 00 of that date, and due twelve months thereafter, payable to A. P. & O. C. Collins, executors, with interest from date. A. P. & O. C., as executors of Charles Collins» sued Enoch F. and Stephen on said note.

Homestead. Bankruptcy. Before Judge Cole. Ho. 1. Bibb Superior Court. Hovember Term, 1870. Ho. 2. Dooly Superior Court. April Term, 1871. Waiving minor matters, the following are the material facts in these two eases: Ho. 1. Mrs. Woolfolk applied for an exemption of her husband’s land as a homestead for herself and children, and the cause came before the Superior Court by appeal.

<p>New Trial. Collaterals, etc. Before Judge Green. Newton Superior Court. March Term, 1871.</p> <p>Ellis held a judgment against Hammett, Orr & Company, of which firm Tommey & Stewart were members, and from which they had agreed to relieve Orr. Hammett was insolvent. Tommey & Stewart bought certain dormant judgments against Ellis, revived them, and upon averring the above facts and that Ellis was insolvent, prayed to set-off their purchased judgments against Ellis’said judgment;. Ellis testified that, before they purchased said judgments against him and before they were revived, he had transferred to W. W. Clark his fi. fa. and judgment, bona fide, to the extent of all fees due by him to Clark, as his attorney-at-law for services rendered and to be rendered. Ellis testified that before complainant’s purchase of the judgments against him, he owed Clark certain fees settled by note, and specified in what cases and how much. He said Clark had not given up his notes, because Clark had not gotten his money. His insolvency was admitted. There was evidence going to show that Clark’s fees were too large, but it is useless here. The Court, after rehearsing the pleadings, so as to put the issue fairly to the jury, charged them to inquire if Ellis, at any time, by contract or otherwise, had transferred to "W. W. Clark, in good faith, his claim against Hammett, Orr & Company, and if so, to see whether the transfer was conditional or absolute, and upon what consideration. If the transfer was bona fide, absolute, and for a valuable consideration at the time he handed Clarke the claim for collection, they should find for defendant. But if it was transferred only conditionally, or rather to pay fees of Clark in certain cases, the jury should inquire what cases, and what Clark’s fees were in those cases, and if their amount was equal to the amount due on Ellis’ judgment against Hammett, Orr & Company, they should find for defendant. If Clark’s fees should be less, plaintiffs should have judgment* for set-off as to the balance only. At all events, Clark is entitled to his fee for suing out that judgment, etc. There were no requests to charge. The jury allowed Clark $75 00 for the fee for suing out that judgment, but nothing for the other cases.</p> <p>Ellis moved for a new trial upon the grounds that the Court erred in his charge, and in admitting certain evidence, and because the verdict was contrary to law, etc. The Court overruled all of said grounds, but granted a new trial upon a ground not taken, to-wit: because he omitted to charge the jury, that leaving the notes on Ellis in Clark’s hands was not sufficient to invalidate the transfer of Ellis’ judgment, provided, the transfer was bona fide, in payment for professional services rendered and to be rendered, whether said transfer was absolute or conditional, and that the revival of of dormant judgments, since the transfer to Clark, could not affect the transfer to Clark. This is assigned as error.</p>

<p>Equity. Bill of review Before Judge Green. Upson Superior Court. May Term, 1871.</p> <p>The bill of review, which was filed in office on the 3d September, 1870, alleges that James R. Walker, William H. Walker and James PI. Gray, all of Taylor county, on the 5th day of December, 1865, instituted their suit in equity, in the Superior Court of Upson county, against Nathaniel F. Walker, wherein they prayed a decree for the specific performance of the following contract: “ For value received, I hereby promise and agree to pay and deliver to James R. Walker, James H. Gray and William Walker, by the 25th day of December next, two hundred and fifty bales of cotton, on the following terms, to-wit:</p> <p>“ 1. The whole lot to average good middlings.</p> <p>“ 2. Such as may be already baled to be considered as delivered by the 10th November next, say one hundred and fifty bales, the remainder to be considered delivered by the 25th Debember next.</p> <p>“ 3. The said N. F. Walker is to be allowed twenty-six cents per pound for all cotton delivered under this contract.</p> <p>“ 4. All that may be lacking after the delivery of said cotton, to make up the sum of forty-six thousand and twenty-six dollars and twenty-nine cents, is to be paid by the said N. F. Walker, by the 25th December, 1866, in cash or cotton, at the then market price. N. F. WALKER.</p> <p>“ September 27th, 1865.</p> <p>“Attest: James M. Smith.”</p> <p>They likewise prayed the writs of injunction and quia timet. They were ordered to issue, each in a penalty of $50,000 00, and were issued and served on the defendant, N. F. Walker, who, to relieve himself from arrest, executed a bond, together with D. K. Walker, N. M. Walker, William IP. Walker and B. F. Walker, conditioned not to remove beyond the jurisdiction of the Court any of the property specified in the bill, or in any manner to dispose of the same. Under an order of the Court passed at the May Term, 1866, this condition was held not to be a compliance with the bond ordered by the sanction, and the defendant, N. F. Walker, was required to give a new bond with the condition that he should well and truly perform his contract contained and set forth in the bill, by the delivery of the cotton therein mentioned, and that he should answer any decree that might be had in the premises, which latter bond, conditioned as last aforesaid, was executed by said N. F. Walker and the securities to the first bond. Thereafter N. F. Walker filed his answer to the bill, and an order was passed modifying the injunction. The complainants amended their bill on the 11th day of May, 1867. At an Adjourned Term, held in January, 1867, an order was taken allowing an injunction issued in a suit at the instance of John L. Woodward, guardian, etc., against complainants in the bill against N. F. Walker, to be so far modified as to allow said complainants to proceed to trial in their bill against said Nathaniel F., without prejudice to the rights of the parties to the bill in favor of said Woodward. At the November Term, 1867, of said Court, the cause of James R. Walker and others against Nathaniel F. Walker was submitted to a special jury, who returned a verdict of which the following is a copy:</p> <p>“We, the jury, find and decree in favor of James R. Walker.........and against the defendant.” “We find and decree in favor of William H. Walker the sum of............ We further find that the matter of difference between James H. Gray and defendant was not submitted to us, and that branch of the ease be left open for further adjustment, subject to the provisions of this decree. We further find that there is pending in this Court a bill at the suit of John L. Woodward, deceased, on his own behalf and as guardian of complainants and Allen M. Walker, in which there are sundry matters and equities claimed by the parties unadjusted. This decree is not to be paid or settled to the prejudice of the rights of the parties under said bill. We further find that there are sundry summonses of garnishment at the suit of various parties against the defendant as having funds in his hands of James E. Walker. This is not to be paid or enforced so as to prejudice the rights of said creditors of James E. Walker or to the said Nathaniel F. Walker. We further find and decree that there is pending in this Court a bill in equity at the suit of William E. Coleman, trustee of Francis C. Coleman and others if made parties. This decree is not to be enforced to the prejudice of the rights of Nathaniel F. Walker, who is a defendant to that bill as the legal representative of Allen M. Walker, with cost of suit.</p> <p>“ Jordan Lyons, Foreman.”</p> <p>At the same term of the Court, and after the return of said verdict, the following agreement was entered into, to-wit:</p> <p>Jambs E. Walker, Wm. H. Walker, James H. Cray, vs.</p> <p>Nathaniel F, Walker.</p> <p>Bill for the relief. Specific performance, etc., in Upon Superior Court. November Term, 1867.</p> <p>A decree in the above stated case having been rendered by a special jury at this term of the Court in favor of the complainants, James E. Walker and William H. Walker, against the defendant, Nathaniel F. Walker, leaving the amounts due them respectively blank in said decree. It is agreed between the parties, James E. Walker and William H. Walder, complainants, and Nathaniel F. Walker, defendant, that his Honor, Alexander M. Speer, shall hear the parties and audit and settle the amounts due the said James E. Walker and William H. Walker, respectively, and said amounts, when ascertained, shall be inserted in the blanks left in said decree, by the proper order of his Honor, Alexander M. Speer, and that the agreement and the order of his Honor to be entered on the minutes of the Court.</p> <p>Cabaniss & Peeples, Complainants’ Solicitors.</p> <p>Smith & Alexander,</p> <p>Defendant’s Solicitors.</p> <p>A decree was then rendered by the Court against N. F. Walker and his securities upon the bond, conforming in all other respects to the above verdict, even as to the blanks. Afterwards, on the third of March, 1868, the presiding Judge, in Chambers, passed an order, of which the following is a copy:</p> <p>The auditing of the amount of the decree rendered at November Term, 1867, of Upson Superior Court, in the bill of James E. Walker, William H. Walker, and others, against Nathaniel F. Walker, so far as to ascertain and settle the amounts to be inserted in the decree in favor of James E. Walker and William H. Walker, respectively, having by consent of parties been referred to me; and having heard and considered the same, it appears that there was due from defendant to the complainant in the bill the sum of...................... $46,026 29 (to be discharged by the delivery of cotton at 26 cents per pound.) According to the answer of defendants there were delivered to complainants:</p> <p>99 bales, weighing 450 lbs. each...44,550 lbs.</p> <p>3 bales, weighing 500 lbs. each... 1,500 lbs.</p> <p>46,050 lbs.</p> <p>At 26 cents per pound amounting to................11,973 00</p> <p>Which deducted from original debt leaves.........$34,053 29</p> <p>Of this amount William H. Walker and James</p> <p>IT. Gray are entitled each to one-sixth....... $5,675 54</p> <p>Two-sixths.................................$11,351 08</p> <p>The remaining four-sixths of........................ 34,053 29</p> <p>After deducting.......................................... 11,351 08</p> <p>$22,702 21</p> <p>Received by sale of cotton for J. R. Walker, by</p> <p>P. W. Alexander, Receiver.....................$ 3,000 00</p> <p>Principal due J. R. Walker..........................$19,702 21</p> <p>Interest from December 25th, 1866, to November 7th, 1867, when the decree was rendered. 1,195 23 The amount of principal due James R. Walker,</p> <p>to be inserted in the decree..................... 19,702 21</p> <p>Interest to November 7th, 1867..................... 1,195 23</p> <p>Principal due W. H. Walker, to be inserted in</p> <p>the decree.......................................... 5,675 54</p> <p>After deducting $3,700, received from sale of</p> <p>cotton by P. W. Alexander, Receiver....i.. 3,700 00</p> <p>$1,975 54</p> <p>Interest to November 7th, 1867.................... 119 83</p> <p>It is therefore ordered that the Clerk of the Superior.Court of Upson county fill the blanks in the decree with the amount of $19,702 21, principal, and $1,195 23, interest, to the 7th day of November, 1867, in favor of James R. Walker; and the sum of $1,975 54, principal, and $119 83, interest, to November 1867, in favor of William H. Walker, and that this order be entered on the minutes of the Court.</p> <p>Alexander M. Speer,</p> <p>Judge Superior Court, Flint Circuit.</p> <p>Afterwards the blanks in said verdict and decree were filled with the amounts found to be due to said James R. and William H. Walker, respectively, and execution issued therefor against said N. E. Walker and his said securities. The decree and execution, so far as respects the securities, was set aside by order of said Superior Court upon their motion, and said action has been confirmed by the Supreme Court. The bill of review seeks a reversal of said decree upon the grounds following, viz: because when said decretal verdict was rendered said cause was not ripe for trial; that said verdict does not cover any of the issues submitted by the pleadings in the case except the costs; that it does not purport to be final, and is, at best, but an interlocutory verdict, which is unknown to and unauthorized by law; that by the terms of said incomplete verdict no decree could be entered thereon at the term of the Court when the same was found; that the Chancellor had no power in vacation, even with the consent of the parties, to audit and settle the accounts between them, and upon ascertaining the amounts due complainants, to direct them by his order, passed in Chambers, to be inserted in the blanks left in said decretal verdict and decree, for that he is forbidden by law to render such decrees in vacation ; that said consent did not authorize and empower the Judge, acting as Chancellor, to fill any blanks by his order, passed in vacation, except those in said decretal verdict; that under said consent he was not authorized to fill blanks in the decree entered on said verdict, the defendant, 1ST. E. Walker, never having consented, as appears from the record, to entering up and rendering such decree, and because said decree is erroneous and void for uncertainty and cannot be enforced until the issues reserved therein, as also in said verdict, have been settled and determined. And for as much as no order and decree appears in said proceedings determining said issues, and no order to issue execution thereon, the said execution issued in said cause is illegal and void, and is proceeding without authority of law. The defendants filed to this bill what purported to be a plea, answer and demurrer, in which they admit that the Court proceedings set forth by'bill are correctly copied, but insist that the decree is lawful in all of its parts and stages; they insist that it was found on account of the great age and infirmity of Nathaniel F. Walker, who attended Court with great inconvenience, as well as to settle the rights of a large number of persons, having or claiming rights arising out of the litigation in the bill, and to protect the rights of complainants; they state that it was agreed between the 'parties that a blank decree as to amounts should be taken at that term of the Court, and that because it was impracticable to have the amounts properly audited at that time, should be referred to the Judge to audit the same at Chambers, at a time to be fixed, and upon notice to be given by him, and the blanks should be filled by his order with the amounts ascertained to be due; that he audited the accounts and passed the order, and the blanks were accordingly filled. They go into the origin of the contract of which a specific performance is sought, and the motives for making it, and shew that it was founded upon a decree between the same parties for a larger amount, and that it is novation of the old indebtedness, and they demur to the bill of review, because complainants therein have a plain, adequate and complete remedy at law.</p> <p>The parties being ready, the cause was, by consent, submitted to the Court “ upon all questions of law and facts as they appear on the pleadings.” “ There being no disputed questions of fact arising in the cause,” the Chancellor refused the prayer of complainants in the bill of review, and affirmed said decree. This is assigned as error.</p>

<p>When a bill in equity was filed by Mrs. Worthy, alleging that she had purchased from Tate the premises in dispute, and having great confidence iu him, had given him the deed and tax receipts thereto, at Ms request, which on her request to return, he said he had burned up, and the prayer of the bill was to cause said deed and tax receipts to be returned, and also to enjoin proceedings to eject her as the tenant of Tate, the former owner, under the provisions of the Code against tenants holding over. And she further presented her inability to give bond under the section of the Code requiring security with the counter-affidavit to arrest the proceedings under the warrant, etc., and the bill was demurred to and a motion made to dismiss it upon the ground that there was a complete remedy at law, and for want of equity, which motion to dismiss was sustained by the Court:</p> <p>Held, Under the facts presented by the bill that this was error. There was equity in the bill as against Tate, to cause the delivery of the deed and tax receipts, and the provision for defense by counter-affidavit and bond under the 4007 section of the Code was not ampie and complete, and the facts developed such a condition of alleged fraud and trust, as invoked the jurisdiction of equity.</p>

Action for special damages by words. Before Judge Bigby. Troup Superior Court. May Term, 1871. The necessary facts are in the head-note and opinion.

New Trial. Bankruptcy. Contracts. Before Judge Wright. Fayette Superior Court. April Term, 1871. Markham sued Austin for $.........and interest, averring as follows: He obtained a judgment against Austin. After-wards Austin filed his petition in bankruptcy, and was declared a bankrupt under the Bankrupt Act of 1867. Markham proved this judgment as a debt against Austin’s estate, and when Austin applied for his discharge in bankruptcy, opposed it.

<p>Under an Act of the Legislature a new county was organized, and the voters required by ballot, under the usual superintendents of such elections, to locate the county site, and in casting their ballots various places were designated, which the commissioners, appointed by theLeglslature, together with the Ordinary elect, from their contiguity to each other and a common understanding among the people as to what was meant, held .to be one and the same thing, and consolidated the various votes, which, by addition together, gave a majority over the centre of the county, which was also voted for; and such commissioners proceeded, under the Act, to lay out town lots and offer them for sale ; and other citizens dissatisfied with their judgment, brought a bill of injunction to enjoin such commissioners, and the Court below granted the injunction upon the hearing of the various affidavits, •pro and con, touching the premises. ' Several witnesses testified that these various places were not the same and a much larger number testified that they were:</p> <p>Held, Under the facts in this case, that a Court of equity had jurisdiction at the instance of citizens of the county to enjoin the commissioners from doing what they alleged to be at illegal act, which resulted to their injury as tax-payers and property holders of the county.</p> <p>Held, again, Under the facts in this case, that the question of location upon the part of the commissioners, being a question of disputed fact, we cannot say that the Judge violated the discretion vested in him by law in granting the injunction ; and we, therefore, affirm the judgment, with the following modification and direction, to-wit: that the place selected by the commissioners and located by them, shall remain as now located, as the place for the transaction of county business by the officers of said county, who may make such arrangements in connection with the commissioners, for the holding of Courts at that plaee as may to them seem proper until the final hearing of this case.</p>

<p>Rescinding contracts. Before Judge Wright. Meriwether Superior Court. August, 1871.</p> <p>The necessary facts are in the head-note.</p>

<p>Section 3987 of the Revised Code, requiring the plaintiff in certiorari to .give the opposite party in interest written notice of the sanction of the writ, and time and place of hearing, at least ten days before the sitting of the Court to which it is returnable, etc., etc., applies to ccrtioraris from the Justice Courts, and is still of force under the Constitution of 1868.</p>

<p>Belief Act of 1868. Equity. Estoppel. Before Judge Hopicins. Fulton Superior Court. October Term, 1870.</p> <p>In October, 1866, Boring obtained a judgment against Powell, upon a contract made prior to June, 1865. (See Powell vs. Boring, 35th Georgia Beports.) The debt being still unpaid in May, 1869, Powell’s counsel moved to have said cause resubmitted to the jury, under the Belief Act of 1868, that Powell might give in evidence “the consideration of the debt, the amount and value of the property owned by him” when the debt was contracted, “to show upon the faith of what property the credit was given,” “the destruction or loss of said property, and how lost or destroyed,” “for the purpose of reducing the amount of the judgment rendered, according to equity, and that such a verdict may be rendered as to the jury may appear just and equitable.”</p> <p>Boring’s counsel demurred, because there was no averments of the facts expected to be proved. Powell’s counsel amended by averring as follows: “ The judgment was founded upon certain notes, which Boring claimed Powell had bought from him. Boring was a member of the faculty of the Atlanta Medical College, a corporation. He proposed to sell to Powell his interest in the College. There was a misunderstanding as to what that interest was, but this was not developed till Powell had taken Boring’s place in the College, in 1858. This contract was made in 1858. Powell thought he purchased only Boring’s interest in the building and grounds and his position as professor. But Boring insisted that he sold him also his interest in certain notes in the hands of the dean of the faculty. Powell paid him for his interest in the building and grounds, leaving the matter as to the notes in controversy. In 1861, Boring sued Powell for the price or value of said notes. The notes were for tuition fees of students who had attended the college. In 1866, the said controversy was tried.</p> <p>The jury found that Powell had bought the notes, and found for Boring for their value, $1,543 00, with interest. The notes were never delivered to or in any way transferred to or indorsed to Powell, nor has Boring offered to do either. Powell is entitled to have said notes transferred to him before Boring can collect said judgment. Boring is insolvent, and if Powell pays the judgment, he cannot make Boring respond in damages, even if the notes be transferred to him. A failure of consideration was not pleaded in the original suit; “the question seemed to be as to whether he made the contract.” For these reasons, he moved to submit the matter to a jury as aforesaid.</p> <p>Boring’s counsel again demurred to the motion as amended, and the Court dismissed it. -That is assigned as error.</p>

Bailment. Pawn. Husband and wife. Damages. Before Judge Hopkins. Fulton Superior Court. October Term, 1870. Mrs. Joiner brought trover against Van Arsdale for a watch. She proved by her father that he gave the watch to her, that Van Arsdale had it and would not give it up, and that it was worth $375 00. Mrs. Joiner testified to the same facts, and that she loaned the watch to her husband for a few hours, and he pawned it to some one without her knowledge or consent.

<p>1. An irregularity in a second original is not fatal to the suit if the party has had notice. (R.)</p> <p>2. Where the payee of a note indorses it after maturity, and suit is brought by the indorsee against the makers and indorser, and the plea by the makers sets up usury, and the Judge held such plea by the makers did not affect the liability of the indorser upon his contract of indorsement after maturity of the paper : #</p> <p>Held, That this was not error. The contract of indorsement was a new and distinct contract, not affected by usury between the payee and makers in the hands of the indorsee without notice, and the indorser, in a suit against him by the indorsee, cannot set up his own illegal act in taking usury, to defeat a recovery against himself as indorser.</p> <p>3. On a note made to be negotiated at a chartered bank, but not so negotiated and held by the payee at its maturity, and indorsed with a waiver of demand and notice by the security, and after its maturity indorsed by the payee, under our law, under 2739th section of the Code, such indorser after maturity, upon suit by the indorsee, is not discharged by failure of proof of “ demand and notice,” and it was not error in the Court to refuse a non-suit on this ground.</p> <p>4. In order to render verbal evidence of the contents of the notice required by our law to be in writing and to contain certain facts, even when such notice is out of the jurisdiction of the Court, it is first necessary to give notice to the party or his attorney to produce it.</p> <p>5. When the evidence shows that the maker of a note borrowed $2,400 from the payee, and gave three notes of $1,136 each therefor, and paid two of the notes, and the payee indorsed the last note to a third party, in the hands of the third party, the note is only void to the amount of usury thereon, and it is not within the purview of the defense of the maker to such note, to set up usury paid upon the other notes to the holder and payee thereof.</p> <p>3. The evidence being that only $800 was received upon the note due at twelve months for $1,136, and $721 82 was paid at maturity, the difference between $800 and legal interest for one year, the lawful principal of the note and the payment, is the amount due, with interest, by the maker to the indorser; and we hold that the verdict is in excess of the amount due, under the evidence, and ought to have been for $134 18, principal, with interest from 15th January, 1868, and direct that the verdict conform to this amount, else a new trial be granted to Jane Frank, the principal, and M. Frank, the security.</p> <p>7. Held, again, Under our Code juries may find equitable verdicts, and the verdict against Guild, the indorser upon the note sued, should stand affirmed.</p>

<p>Certiorari. Garnishment in Justice’s Courts-. Waiver. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.</p> <p>On the 13th of December, 1869, W. A. Patrick et al. sued Cunningham and Widers before a Justice of the Peace, and sued out garnishment against Scott, Bondurant & Adams, requiring them, as garnishees, to answer on the 14th of January, 1870. On this last day judgment was rendered against Cunningham and Widers, and on the next day judgment was rendered against the garnishees, they haying filed no answer. Two days later the garnishees proposed to set aside said judgment, and answer that they owed defendants nothing. But the Court refused. The garnishees sued out certiorari to correct this. Several other cases in the same Court were in the same status.</p> <p>No notice of the sanction of the certiorari and of the time and place of hearing was given to Patrick et al., plaintiffs below, ten days prior to the term to which the certioraris were returnable. But counsel for plaintiffs and defendants in certiorari had agreed, in writing, when the certiorari was sued out, that “ the certiorari in this case shall apply in the cases ” of “ * * * *, the same points having been argued in the motion to set aside judgment, and the same points being involved in these cases as in the within, and that the judgment in this certiorari by the Superior Court shall hold good in every particular in the cases stated above.”</p> <p>When the certiorari was called for hearing Patrick et al. moved to dismiss it for want of such notice of the sanction of the writ, etc. The Court held that this notice was waived by said agreement. Patrick et al. assign that as error.</p> <p>The cause was then argued, and the Court sustained the decisión of the Justice. Scott, Bondurant & Adams assign that as error. Here the causes were argued together.</p>

<p>Eelief Act of 1870. Taxes. Before Judge Hopkins, Fulton Superior Court. October Term, 1870.</p> <p>For the facts see the opinion.</p>

Relief Act of 1870. Tax. Before Judge Hopkins. Fulton Superior Court. October Term, 1870. Black sued Hilburn on bis four notes made prior to June, 1865. Hilburn filed no plea. But when Black proposed to take a judgment, Hilburn objected, because Black had not filed any affidavit as to payment of taxes, as required by the second section of the Relief Act of 1870, and moved to dismiss the cause.

<p>When there was a certioraril&om the County-Court which, under the Act of 1866, Code, 297, is to be heard by the Judge of the Superior Courin vacation or in term, as should to him seem proper, and there was tendered to the Judge in vacation a traverse of the answer ofthe^County Court Judge, and the Judge of the Superior Court thereupon, by written order, directed the papers and the traverse to be transmitted to the next term of the Superior Court for trial.</p> <p>Held, That this was a judgment of the Judge that the traverse should be tried by the jury, and that, while that judgment stands unreversed, it is error to dismiss the traverse and withdraw the case from the jury on the ground that the traverse was not verified by the affidavit of the party making it.</p>

<p>Where upon the trial of an action of trespass vi et armis, the plea of the general issue was filed, and, after the case had been submitted to the jury, the Judge charged them that matters of justification could not be considered under the plea of not guilty filed, and the jury found for the plaintiff, and the bill of exceptions assigns error, upon the Judge’s charge in the premises, but fails to set out the whole charge, or allege that the charge given was wrong :</p> <p>Held, That this Court will presume the Court below charged the jury upon the law applied to the facts of the case, and not being excepted to that such charge was correct.</p> <p>Held again, That it was^error in the Court to have charged the jury that they could not consider the fact of justification under the plea of the general issue. By the Code, section 3406, and the rulings of this Court in 9 Georgia Reports, 297, and 12 Georgia Reports, 463, such facts of justification must have been specially pleaded.</p>

Ejectment. Interference with jury New trial. Before Judge Hopkins. DeKalb Superior Court. December, 1870. This was ejectment by Lydia A. Smith against Willingham et al., for the “red-store lot” at Stone Mountain, Georgia. It was admitted that on the 22d of May, 1851, the title to said lot was in George K. Smith. Plaintiff read a deed made that day whereby Smith conveyed this lot and others and certain personalty to George K. Hamilton.

Held, That this was not error in the Court. Held: That this was not error in the Court. The Christian Sabbath is a civil institution older than our government, and respected as a day of rest by our Constitution; and the regulation of its observance as a civil institution, is within the power of the Legislature, as much as any regulations and laws having for their object the…

<p>1. The offense of incestuous fornication is not a joint offense under section 4459 of our Revised Code, and one person may be indicted and found guilty thereof.</p> <p>2. Where, on a trial for incestuous fornication of A with his sister, the sister was introduced as a witness, and on cross-examination she denied that one Powers (her brother-in-law,) had sued the defendant in her name, and the Court permitted proof to be made that a suit was pending in her name by Powers as her next friend, but refused to permit the declaration and accompanying papers to be read to the jury :</p> <p>Held, That this was not error, as the contents of the paper were not material to the issue, which was simply whether or not a suit had been brought by Powers in her name.</p> <p>8. When a written request was made by the defendant’s counsel to the Judge to charge the jury, which request covered the whole case, and the Judge in his charge failed to follow the language of the request, but charged the law properly upon the points made, and upon the whole case, and the defendant was found guilty:</p> <p>Held, The section 8664 of the Code, providing that a new trial may be granted on the refusal of the Judge to charge a pertinent charge in the language requested in writing, is not mandatory, but permissive only ; and when the Judge has, in fact, charged the language correctly on the points covered and upon the whole case, and has refused a new trial, this Court will not, for this reason only, grant a new trial.</p> <p>4. No precise rule can be laid down here, for the evidence of an accomplice in a felony must be corroborated by another witness, or by circumstances ; but a defendant cannot complain of the charge of the Judge on this point who tells the jury that the evidence of the other witness, or the corroborating circumstances must be sufficient to satisfy them beyond a reasonable doubt of the guilt of the prisoner.</p> <p>5. In this case, while we are not entirely satisfied with the verdict, yet, as the case turns mainly upon the credibility of the witnesses — -a matter specially within the province of the jury — and as the Court below has refused a new trial, we do not think it our duty to interfere with bis judgment.</p>

Alimony. Imprisonment for Debt. Contempt. Before Judge Hopkins. Fulton County. Chambers. July, 1871. Said parties married in March, 1869. In July, 1870, she sued him for a divorce, a vinculo matrimonii. The ground was cruel treatment. She appended to her libel a schedule of his real property, valued at $5,600 00, and of personalty, valued at about $250 00.

<p>'Concealed Weapons. Construction of Statutes. Before Judge Harvey. Walker Superior Court. August Term, 1870.</p> <p>The necessary facts are in the opinion.</p>

New Trial. Before Judge Yasoh. Dougherty Superior Court. December Term, 1870. This record is somewhat confused. The litigation was begun by a distress-warrant against Martin & Erdman, for $51 50, sued out in the County-Court, on the 16 th of August 1867, by Pulk Robenson, for the use of C. M. Clark.

<p>Where a bill had been filed to marshal the assets of an estate, and under an interlocutory decree, the assets had been reduced to money, and were in the hands of a Receiver:</p> <p>Held, That it was error in the Court to dismiss from the litigation such judgment creditors, parties to the proceeding, as held judgments founded on debts contracted before June 1, 1865, on the ground that said judgment creditors had not filed the affidavit that all legal taxes had been paid, as provided by the Act of October 18, 1870.</p>

<p>1. Where, on the trial of an issue of partnership or no partnership, one witness swore that the capital stock, to-wit: a steam saw mill, was furnished by one, and the hands to run it by another, who was also to superintend the work, and that the profits were to be divided equally between the two ; and another witness swore that the mill, fixtures and hands were furnished by one, and that the other was employed by the first as superintendent only, that he had no interest jointly with the first in the profits and losses, hut was to receive one-half the net profits for his services, and had only a common interest in the profits:</p> <p>He'd, That under section 1880 of the Revised Code, by the testimony of the first witness there was as to third persons, a partnership, since the hands furnished a part of the capital stock, and the partners had a part interest in the result; but that by the testimony of the second witness, no copartnership, even as to third persons, arises from the simple fact that one is to receive half the profits for his-serviees; such an one has no joint interest in the profits and losses, but only a common interest in the profits, and it is error in the Court to charge this as the law to the jury, if they should believe the second witness.</p> <p>2. Whatever may be the interest of the parties, and whether they be, in fact, partners under the bargain or not, they will be liable, as such, if they so act as to hold themselves out to the world as such.</p> <p>3. Partnership or no partnership is a fact, and a witness may so state, but the fact so stated may be qualified and explained by other facts in evidence, either from the witness or from other testimony.</p> <p>4. Objections to interrogatories on the ground that they are leading must he made when they are presented to the objector, to be crossed, and before they are executed.</p> <p>5. The sayings of one of the partners, not expressly or by implication brought to the knowledge of the other, are no evidence against that other, in an issue of partnership or no partnership.</p> <p>6. In a doubtful case, where the law was not presented fairly, in view of the evidence, a new trial may be granted. (R.)</p>

<p>Misrepresentation. Fraud. Damages. Recoupment. Before Judge Hopkins. Fulton Superior Court. October Term, 1870.</p> <p>Elliott sued James for the unpaid part of the purchase-money of certain land which he had sold to James. James’ defense was that he told Elliott that he was buying said land solely to make brick, and for that purpose wanted a strip of clay land which Elliott said was part of the lot, and so believing, he took a bond for titles to the lot, went upon it, spent over $800 00 in hiring hands, etc., in preparing to make brick, and then found out that said'strip of land was not a part of Elliott’s land, and it was the only part fit for brick making, and immediately abandoned the premises, and offered to rescind the trade, but Elliott would not. All this he proved, and asked to recoup from his notes the amount so expended by him. He also offered evidence of a deficiency of land from the quantity represented. Elliott testified, denying the material parts of the defense toto coelo.</p> <p>The Court ruled out all the evidence of the damages sustained by James in his preperation to make brick as well as evidence ’relating to the deficiency in the quantity of the land, and ruled that James was not entitled to any abatement or deduction from the notes in consequence of said expenditures. The jury found for Elliott for the full amount of the notes. Said rulings are assigned as error.</p>

Jurisdiction of Justice of the Peace. Homestead and Exemption. Before Judge Habyey. Eloyd Superior Court. January, 1871. Hamilton & Turnley were partners as druggists, in Rome, Georgia. In September, 1868, Turnley sold his interest in the business to Hamilton, upon certain terms specified in writing, one of which was that Hamilton would pay Turnley rent from the 1st of March, 1868, to the 1st of January, 1870, at $50 00 per month.

<p>Ejectment. Presumptions. Charge of Court. Before Judge Harvey. Polk Superior Court. February Term, 1871.</p> <p>The Rome road runs through Cedartown, nearly from north to south. On the east side of it is lot number one, containing a half acre, which is bounded partly on the west by a small fractional lot, separating it from the road. On the opposite side of the road is another fractional lot, much larger than the first, extending much longer than number one, and having on its other sides Van Wert road and a street laid off but not opened. Ejectment was brought upon the demises of Featherston, Watts and Willingham, against Noyes, who was in possession, for this large fraction. Plaintiff’s deeds conveyed number one, in said town, “ containing one half acre, more or less, and fraction lying west of said half acre,” without further description.</p> <p>Watts, who bought the land from Willingham, testified that the fraction meant by the deed was the large fraction, and undertook to show possession by statute of limitations. On the contrary, the party who sold the land to Willingham testified that the small fraction immediately west of number one, was that conveyed by the deed. There was evidence to rebut plaintiff’s possession. Each party adduced facts to support his construction of the deed.</p> <p>Among other things, the Court charged the jury, “if there are two fractions lying west of number one, the one adjoining it immediately, and the other separated from it by the first and other lands, the presumption of law is, that the fraction nearest the lot is meant by the language of the deeds, and it requires proof to the contrary to rebut that prima fade presumption. If, in a deed, a fraction is conveyed, such as lying west of a certain lot without more, and there are two fractions, one small one adjoining the main lot on the west, and one large fraction, as large as the whole lot, not adjoining the lot, but lying further off, the presumption of law is that such loose, general description was not intended to convey a large and important piece of land, but applies to the small fraction and not to the large one. It may, however, be overcome by proof in such a case as.this.”</p> <p>The jury found for the defendant. ■ Plaintiff moved for a new trial, upon the grounds that the verdict was contrary to the evidence and certain other charges of the Court, and that said charge was wrong. The Court refused a new trial, and error is assigned on said grounds.</p>

<p>Where A, who was the owner of a storehouse and lot in the city of Rome, left, at the rear of such storehouse, an excavation walled up for the purpose of giving light to the cellar of such storehouse, and B, who, on an alarm of fire, went down to the storehouse adjoining the house in which the fire was, and entering at the front door went through the store, and going through the back door turned off the gangway, across the opening, and fell in and was injured :</p> <p>3eld, That the digging of an epen space in the rear of the storehouse by A upon his own ground was a lawful act by him, and he had the right to keep it there as an appurtenant right for the use of his property, and B falling in by accident, the same not being near to a public street or crossing, gave no right to recover damages from A as a wrongdoer in the premises, and B going there on account of the fire did not change the rule.</p> <p>When the charge of the Court and refusal to charge, misconceived the law of the case, and the Court refused a new trial:</p> <p>3eldt That this was error.</p>

Wills. Conveyancing. Pleading. Before Judge Harvey. Chambers. Floyd county. May, 1871. This bill by Nancy A. Byrd and Thomas M. Byrd against John P. Byrd, contained the following averments: They are all heirs of John G. Byrd and distributees of his estate.

<p>1. Where an indictment charged the prisoner with simple larceny of a chestnut sorrel horse, of the value of $100 00, etc., and the Court overruled a motion for acquittal, etc. upon the ground that the indictment did not describe the property stolen:</p> <p>Held, That this was not error; when the proof showed that the animal stolen was a horse, the allegation to that effect is sufficiently distinct and definite under the Code, as to the nature, character and sex of the animal, and the allegation that he was a chestnut sorrel horse, was such a mark of identity as came within the requirements of the statute.</p> <p>2. An indictment against a negro need not describe him as a colored person. (R.)</p> <p>3. Held, again, That upon a trial for larceny of a horse, a bill of sale to the horse offered by the prisoner, without showing aliunde its bona fide execution was inadmissible as evidence, and the Court committed no error in ruling out the testimony.</p>

<p>New trial. Landlord and tenant. Before Judge Harvey. Eloyd Superior Court. May, 1871.</p> <p>This was a proceeding by Kohn against Miss Donkle as his tenant, begun in May, 1870. She denied that she held under him. Plaintiff read in evidence two rent notes by Miss Donkle to Kohn, one made the 15th of January, 1868, and the other on the 15th of April, 1870, and a writing of this last date-, by which she acknowledged herself Kohn’s tenant of the premises in dispute. On the first note were receipts for rent made by Printup & Fouche, as Kohn’s attorneys. Here plaintiff closed.</p> <p>Defendant introduced a mortgage of the premises from one McKenzie to Horton & Pikeman, made in February, 1853; & fi. fa. based upon it, issued in December, 1867, levied upon the premises, and a deed from the sheriff to Daniel S. Printup, for the premises, under a sheriff’s sale under said fi. fa., made in March, 1868. She also put in evidence a conveyance of the premises by D. S. Printup to John Printup, his son, made in May, 1868. The expressed consideration of the sheriff’s deed to Printup was $30 00, and of his to his son, $10 00 and natural affection.</p> <p>D. S. Printup testified, that McKenzie was in possession of the premises under bond for titles from Shorter, when he mortgaged them, that the mortgage was foreclosed and the premises were about to be sold. One Myers had the sale enjoined, because he had bought the property at a sheriff’s sale, under a fi. fa. in favor of Shorter against McKenzie for the purchase-money. This cause went to the Supreme Court. See 25 Georgia Reports, 89. That Court sustained the injunction, but directed the bill to be amended. Nothing was done with the cause till 1867, when Myers’ counsel not objecting, Printup took an order in open Court dismissing Myers’ bill, and subsequently ordered said sale to proceed. He swore that he gave Kohn notice in January, 1868, that the sheriff was going to sell the premises under said mortgage fi. fa.; that he would have bid $500 00 or $600 00, for the property, as the fi. fa. was that large, and no other property was subject to it. (The property rented for $15 00 per month.) Further, he said that when the sheriff went to put liim in possession of the premises Miss Donkle attorned to him to avoid eviction, upon his agreeing to save her harmless.</p> <p>Miss Donkle testified that she rented the premises from Kohn, and held under him till she attorned to Printup, when and for the reason aforesaid, she afterwards attorned to Kohn again, to avoid litigation with him. She also said that in the Summer of 1868 she saw Kohn in Philadelphia, who said she could pay the rent to Printup, and that he did not blame her under the circumstances.</p> <p>In rebuttal it was shown that in 1863 the property was sold under a fi. fa. against Myers, subject to vendor’s lien, which was subsequently paid, and the purchaser at that sale sold it to Kohn and put him in possession, and Kohn ever since held possession by his tenants, as aforesaid. The record of the case in 25 Georgia Reports, 89, was put in evidence.</p> <p>Kohn’s counsel offered in evidence Kohn’s interrogatories. In them he denied consenting that Miss Donkle should pay Printup rent, and said that Printup only told him there was an old, trifling claim on the land, which he, Printup, who was then his attorney, would see did no damage.</p> <p>The cross-interrogatories asked Kohn if, since the war, he had not sworn that he had ever been loyal to the United States, and collected a claim against the United States, and yet, during the war, did aid the Confederate States in various specified ways, he then living South; and if he believed in the divinity of Jesus Christ. He refused to answer any of these questions, saying they had nothing to do with the case. Because these questions were not answered, the Court would not allow his testimony to be z’ead. The other evidence was joro and eon., attacking Printup’s conduct and supporting it, but it is not matez'ial here.</p> <p>Kohn’s counsel requested the Court to charge the jury substantially, that if Miss Donkle held under Kohn, she could not avoid paying rent to him by attorning to Printup; that if Kohn had held the property adversely to said mortgage for four years before the sale, under it the sale was void ; that a sheriff could remove no one from possession of land sold by him at sheriff’s sqle, except the defendant in fi.fa.} or persons holding under the defendant. He refused so to charge, but charged substantially, that the question was not to whom the land belonged, bu^ whether Miss Donkle owed Kohn rent for it; that if Kohn had consented toiler attornment to Printup, he could not recover; that the Statute of Limitations did not run against the mortgage fi. fa. so long as it was enjoined; if the decision of the Supreme Court was complied with by amending the bill, etc., and then Kohn’s feoffer bought at sheriff’s sale pursuant to that decision, Kohn’s title was perfect, and he could recover, unless he consented for Miss Donlde to pay Printup, but if the first sheriff’s sale was never set aside, Kohn’s feoffer bought subject to said mortgage. The jury found for the defendant. By-consent, an order was taken that plaintiff might have till thirty days from the final adjournment of the Court, to make up the brief of evidence and motion for new trial, and that the motion might be heard in vacation, etc. This was in November, 1870. In December, 1871, Judge Harvey had succeeded Judge Kirby, before whom the case was tried, and he granted plaintiff further time, till December, 1870, and then the Judge, because he was absent in December, ordered Printup to show cause why the new trial should not be granted on the 3d of February, 1871. Kohn’s counsel sought to account for the long delay by affidavits as to the absence of himself and the Judge, and as to Printup’s consent to take no advantage of the delay. To these Printup replied by denying any such consent. Whatever of consents were made seem to have been made before the Judge, when the motion was to have been heard, but for a postponement then had. When the Court 'adjourned does not appear, but it was more than thirty days after the final adjournment of the Court before the motion was filed and a brief of evidence made out. The grounds for a new trial were, that the verdict was contrary to the evidence, etc., and that the Court erred in ruling out Kohn’s testimony, in refusing to charge as requested, and in charging as he did. The cause came on for hearing in May, 1871. Printup moved to dismiss it, because the motion and brief had not been filed in time. The Court refused to dismiss the motion, and upon hearing evidence as to what the testimony had been on the trial, approved the brief of evidence, and ordered it then filed, and after argument he granted a new trial. His refusal to dismiss the motion, and his grant of a new trial are assigned as error.</p>

<p>Where Wise was the tenant of Irick under an unexpired lease, and Irick wrote him about selling his land, and stated in the letter that he would give him five per cent, to aid him to make sale, and Wise did acts equivalent to an acceptance of the proposition, by showing the land and giving notice it was for sale, and a man by the name of Crockett, with whom Wise had talked about selling the land, went to Virginia and bought from the owner, Irick, and, when he returned, Wise made him pay $500 00 for the surrender of the possession, and upon the trial the Court rejected this evidence:</p> <p>Held, That this was error. If Wise claimed the commission upon the sale of five per cent., such sale contemplated the possession of the land to be given to the purchaser; and if he claimed the possession as against the purchaser, he could not fairly claim commission on the sale to him. And upon the trial, we hold, if the jury found, from the evidence, that Wise did aid in the sale, and was entitled to commissions thereon, this evidence was admissible to show the payment of $500 00. which should be deducted from the commissions, as in that event the presumption is, that Irick sold for less. If Wise was to be bought out of possession, he was not entitled to both compensations.</p>

Ejectment. Prescription. Before Judge Parrott. Whitfield Superior Court. January, 1871. This was ejectment by Adrain against Garrett, begun in December, 1869. It was submitted to the Court upon this agreed state of facts: Adrain owned the land, and in 1852, sold it to McDonald, on a credit, till 1854, giving him bond for titles. McDonald took possession, but never paid but half of the purchase-money.

<p>Where a letter was written to B, at Rome, by the agent of the East Tennessee and Georgia Railroad Company, in response to inquiries made by B, in which he states that “ arrangements are perfected for sending cotton through to New York via East Tennessee and Georgia and connecting lines to Alexandria by rail, and from thence by steamer, without detention, etc., etc., our rate from Dalton to New York on cotton is $9 00 per bale. Hoping to secure a liberal share of business from Rome, lam,” etc., and this letter was shown to Montgomery, who shipped his cotton to Kingston, on the Western and Atlantic Railroad, and by the way of Dalton over the East Tennessee and Virginia Railroad through to New York, and damages were incurred by delays upon the route, after it had passed over the road of the defendant:</p> <p>Held, That the.letter written to B, by the Railroad agent, when shown to Montgomery, did not, without some notice to the Railroad by him, that he had shipped his cotton, via Kingston to Dalton, to be shipped by them in terms of such letter, constitute in itself, an express contract, so as to hind the company for loss or delay occurring beyond its terminus.</p> <p>The contract imposed by the law, (see Code, 2058,) was to deliver to the connecting road in good order and due time, and to impose a greater liability required an express contract, and the letter addressed to B, did not, upon being read by Montgomery, constitute such an express contract. And his act of sending the cotton, without notice to the company, coming over another road and transported by them as an intermediate line, could not be regarded as embracing the terms of an express contract, arising out of the letter to B, as between such consignor without notice and such road.</p> <p>Where the Court, upon the trial, gave in charge to the jury principles of law contravening the law stated, it was error, and a new trial should have been granted. Warjtek, Judge, dissenting.</p> <p>A witness used a memorandum in answering interrogatories, which was not attached to his answers. During the trial the Judge refused to rule out his answer, only so far as they were connected with said memorandum. The defect was one of execution, and the ruling of the Judge was right. (R.)</p>

<p>That portion of the Act of October 13th, 18Y0, which allows the claimant of land subject to an execution to set-off against the judgment the losses of the claimant, by the late war, is in violation of Article 1, section 10, paragraph 1, of the Constitution of the United States, and is, therefore, void.</p>

Partnership. Parol to vary writing. Before Judge Parrott. Bartow Superior Court. March, 1871. Mrs. Curry sued Pool upon his promissory note for $250 00 payable to Jones & Maltby, or bearer.

Tax. Relief Act of 1870. Before Judge Parrott. Dade Superior Court. May Term, 1871.

<p>Removal to United States Court. Relief Act of 1870. Tax. Before Judge Parrott. Whitfield Superior Court. April Term, 1871.</p> <p>. This suit, upon a note made in 1860, was dismissed because no affidavit as to the payment of taxes was filed, as required by the Relief Act of 1870, though plaintiff insisted upon removing it to the United States District Court pursuant to the Act of Congress, because plaintiffs were non-residents, etc.</p>

Tax. Relief Act of 1870. Before Judge Parrott. Whitfield Superior Court. April Term, 1871. In October, 1869, West sued Sansom et al. upon their note, made in 1860, payable to Rogers or' bearer. He made affidavit that he liad paid all legal taxes chargeable by law thereon “since the note has been his.” There was no averment when he bought it, the suit being in the Jack Jones’ form.

<p>1. When a defendant relies on his title by prescription, he cannot tack • to his own possession, the possession of prior holders of the property, unless he shows the character of that possession, as to its good faith, etc., and that he holds under the parties so haying, bona fide, acquired possession.</p> <p>2. Title by capture during a war can only be set up by the organized and recognized parties to the war, or by those claiming and acquiring title from said organized and recognized parties.</p>

<p>Criminal Law. Before Judge Harvey. Oglethorpe Superior Court. April Term, 1871.</p> <p>These defendants were indicted in the District Court for hog stealing. The animals were described in the indictment as being “the personal goods of William Agee, to-wit: one black pig, white listed, one white pig, with blue rump ; said pigs having no ear marks, of the value of two dollars.” The defendants pleaded that they had settled the case with Agee before prosecution. This plea was demurred to, and the demurrer was sustained. The defendants were convicted. They moved an arrest of judgment, upon the ground that the description of the stolen property was insufficient. This motion was overruled. Oertiorari, on the grounds that the Court erred in said rulings, was dismissed, and the judgment affirmed. This is assigned as error.</p>

<p>Probate of Will. Oglethorpe county. April, 1871.</p>

Trover. Capture in war. Evidence. Before Judge Gibsox. Burke Superior Court. May Term, 1870. Attaway brought trover against Byrne for a wagon. On trial, it appeared that Attaway’s brother was a detailed soldier of the Confederate States, at Augusta, Georgia, when General Johnson surrendered its forces to General Sherman, of the United States, including the forces at Augusta.

Distribution of Estates. Liens. Practice Supreme Court. Before Judge Clark. Dougherty Superior Court. February Term, 1871. In September, 1868, Francis A. Billingslea died intestate, leaving large personal and real property to be divided between his wife and five minor children, and his creditors, according to law. Jones, as his administrator, took charge of all his property, and under an order of Court, for that purpose, worked his plantations for the year 1869.

Dower. Before J. E. Bower, Judge, pro hae viee. Mitchell Superior Court. May, 1871. Judge Strozier being interested in this cause, an attorney was, by consent, made Judge pro hae viee.

<p>1. An indictment is sufficiently technical, under section 4428, of the Code, that charges, that the defendant, in the year ] 8 70, did unlawfully employ the servant of one Phillip West, during the term for which he was employed, and that he was then in the employment of West, and that his term of service was not expired.</p> <p>2. Where the Court let in testimony of a previous employment by the defendant, though before the end of the year, and not in writing, it was error in the Court to charge the jury that such previous contract was no protection or justification, inasmuch as that question was one for the jury, under the facts.</p> <p>3. Where the evidence showed the person employed by the defendant had been previously employed by the prosecutor, to bring other hands with him to his plantation and superintend them :</p> <p>Held, That such-employment did not constitute such person a servant, within the provisions of the law. See concurring opinions.</p>

<p>Where a judgment was obtained in Schley county, on the 25th of October, 1870, on a debt contracted before the first of June, 1865, upon which an execution issued, and the shériíf failed to raise the money on the same, on receiving from the defendant an affidavit that the taxes due thereon had not been paid, together with a claim of an offset and recoupment, in favor of the defendant, according to the Act of October 13th, 1870, which affidavit set forth that said debt had not been reduced, according to the equities between the parties, under the Relief Act of 1868:</p> <p>Meld, It was error in the Court to hold the sheriff liable, on a rule for the amount of the judgment — the proper construction of the Act of October 13th, 1870, being at the time, unsettled and doubtful, and the sheriff having apparently acted in good failh.</p>

Ejectment. Homestead. Bankruptcy. Before Judge Clark. Schley Superior Court. April Term, 1871. This was ejectment by Mrs. Lumpkin and her children, against Eason. Their title was a record, showing that, on the 12th of December, 1868, the premises in dispute had been, by the Ordinary, duly set apart to them as their homestead.

Criminal pleading. Before Judge Harrell. Randolph Superior Court. May Term, 1871. The indictment charged Nancy Bigby “ with the offense of fornication.

Relief Act of 1870. Before Judge Harrall. Stewart Superior Court. April Term, 1871.

Homestead Act. Retroactive legislation. Before Judge Harrell. Randolph Superior Court. May Term, 1871. In 1866, Gunn obtained a judgmeut against Hart, and fi. fa. issued thereon. Under the Homestead Act of 3d of October, 1868, Hart had certain lands set apart as his homestead. Subsequently, Gunn tried to get the sheriff to levy his fi. fa. on said land, but he would not, only because the same had been so set apart.

<p>1. As there is sufficient evidence in this case to sustain the verdict, and as the newly discovered evidence is only eommulative, and would not, necessarily, change the verdict, there was no error in refusing a new trial.</p> <p>2. Newly discovered testimony is only a ground for a new trial, when, if it were heard by the jury, it must, with considerable certainty, control the verdict.</p>

Habeas Corpus. Pardons. Before Judge Green. Chambers. Spalding county, March, 1871. Dominick was indicted in 1869, for murdering one Pilkinton, in said county, in 1868. A bench-warrant was placed in the sheriff’s hands; he arrested Dominick on the 19th of February, 1871, and had him duly committed to jail. Dominick had habeas corpus issued to release him' from imprisonment. The sheriff relied upon his arrest and detention on said bench warrant.

<p>Garnishment. Set-off. Injunction. Before Judge Green. Newton county. October, 1871.</p> <p>This bill contained the following averments: Carr, late in 1862, or early in 1863, contracted with Isaac P. Henderson for a house and lot in Covington. Carr then lived in Covington, and had a comfortable home. He had married Henderson’s youngest child. Henderson was then nearly seventy years old, and his wife was aged. Henderson’s other children were married and had homes. Henderson and his wife lived alone. Henderson was old, and his eyesight was failing, and proposed that Carr should sell his home and live with him. After being urged thereto, Carr sold his home, now worth $3,000 00, on credit, and has lost nearly its whole value, by reason of the purchaser having resold it and being insolvent.</p> <p>"When Carr went to live with Henderson, he bought Henderson’s house, giving therefor his note for $5,000 00,. to be due at Hendersou’s death, without interest, and allowing Henderson to live with him and use part of the house during his life. In the fall of 1864, Henderson died testate. By his will, Augustus H. Lee was appointed his executor, and has qualified as such. Mrs. Henderson survived Henderson, and continues to live with Carr, he furnishing her board, etc., etc. By the will, Lee was directed to pay Mrs. Henderson $5,000 00 during her life, and a sum sufficient to buy a servant, to serve her during her life. Lee found Carr’s note among Henderson’s assets, and took charge of it. Mrs. Henderson would havejaceepted it, but Lee would not let her have it.</p> <p>Upon Carr’s refusal to pay said note, Lee sued him. The matter was arbitrated, and the award was, that Carr should pay but $3,500 00, because it was a Confederate contract. This award was made the judgment of the Superior Court, in March, 1868; a fi. fa. was issued thereon, and was levied upon said house and lot. The sale was stopped by affidavit, under the Eelief Act of 1868. This affidavit was dismissed. The sheriff is now proceeding to sell said land, under said fi. fa., in November, 1871. Mrs. Henderson sued Lee, as executor, and obtained a judgment against him for, say $7,000 00, on the 4th of October, 1871, and has garnisheed Carr. If he pays Lee, she will take a judgment against him for the $3,500 00, and interest, which he owed Lee, as executor, when he was garnisheed. And she is unable to respond to him in damages. Besides, she owes him, Carr, say $2,500 00, for board, etc., and, in equity, this account should be allowed him as a set-off against her garnishment.</p> <p>He prayed injunction against the sale by Lee’s fi. fa., and that this set-off be allowed, and that he pay the balance to Mrs. Henderson, in full discharge of said fi. fa., and that she be enjoined from pursuing her garnishment at law. The Chancellor, after argument, refused the injunctions. That is assigned as error.</p>

<p>Recognizance. Pardon. Before Samuel Hall, Judge pro hac vice. Upson Superior Court. May, 1871.</p> <p>This cause was tried’ before Samuel Hall, Esq., Judge pro hac vice, by consent. Hancock was indicted for having committed an assault, with intent to murder one Spivey et al., in said county, on the 13th of September, 1867. He was arrested, and gave bond for $400 00 for his appearance to answer said charge, with ten sureties. At November Term, 1869, the bond was estreated. Scire facias was served upon the sureties, requiring them to show cause why the rule for forfeiture of the recognizance should not be made absolute. Hancock was not served, and the securities admitted that he had fled from the State. They said the rule should not be made absolute, because Spivey' had been pardoned by the Governor of this State. And they pleaded a pardon in due form, and duly executed, whereby Governor Bullock pardoned him, and after reciting the pendency of the indictment, recited therein that a petition had been presented by Hancock and said sureties, asking for his pardon, because, since they signed his bond, he had absconded, and they could not arrest him, and to pay his bond would greatly injure them, “who were of limited means, and solely depending upon their daily exertions for a support;” and that one of the prosecutors earnestly joins in the petition, “not for the purpose of shielding him from the hands of justice, but merely for the sake of those who have become sureties on his bond.”</p> <p>Counsel for the State demurred to the plea: 1st. Because pardon could not go before conviction. 2d. Because this was no pardon, but simply an illegal attempt to relieve the sureties. 3d. Because it was not pleaded that said pardon was delivered to, and accepted by Hancock. The demurrer was sustained and judgment was entered against the sureties. This is assigned as error.</p>

Libel. New trial. Before Judge Gibson. Richmond Superior Court. January Term, 1871. This cause was here before. See 40 Georgia Reports, 444. Plaintiff read in evidence the article published in The Daily Press of Augusta, so much of which as is important is copied in 40 Georgia Reports, 445.

Corporations. Taxation. Constitutional law. Before Judge Gibson. Chambers. Richmond county. July, 1871.

Bills of exchange. Agency. Before Judge Schley. Chatham Superior Court. January Term, 1871. Jones brought “complaint” against J. W. Lathrop & Company on their five bills of exchange,-each of which was as follows: “Exchange for ¿£200.

Tax. Homestead. Buie against Sheriff. Before Judge Johnson. Muscogee Superior Court. January, 1871. This was a rule against Bradford, sheriff,. The cause was submitted to the Court upon the following agreed statement of the facts: On the 1st of June, 1869, the Comptroller General of Georgia issued an execution against one Brooks, a tax collector, and his securities for $5,100 00 taxes due said State.

Relief Act. Constitutional law. Renewal. Novation. Before Judge Hopkins. Fulton Superior Court. April Term, 1871. In January, 1871, Akin sued Welborn upon his promissory note, made in 1868. Welborn pleaded that said note was given in renewal of one made prior to June, 1865; that he lost $2,000 00 by the destruction of his property, in consequence of the late war with the United States, and claimed the benefit of the Relief Acts.

Relief Act of October, 1870. Constitutional law. Before Judge Hopkins. Fulton Superior Court. April Term, 1871. Peck & Bowman had a ji. fa. against Connally and Brother levied upon defendants’ land.

Pleading. Attorneys. Constitutional law. Before Judge Hopkins. DeKalb Superior Court. March Term, 1871. Mercer & DeGraffenreid sued Colquit in said county, upon an open account. The cause was returnable to March term, 1870. The sheriff returned that he served Colquit by. leaving a copy at his “dwelling house.” Colquit’s attorney pleaded at March Term, 1870, that Colquit did not reside in said county, but in Baker county, Georgia, and swore to the plea.

<p>1. When a libel for divorce was filed in 1863, in Jackson county, and with it a schedule of the property owned by the husband at the time of the separation, in which was included “ a city lot, in the city of Atlanta,” and the husband, in 1866, before the final verdict sold the lot to a purchaser, who had no actual notice of the pendency of the libel, and the jury, on the final trial, granted to the wife a divorce, a viniculo matrimonii, and decreed to her, as alimony, the real estate mentioned in the schedule, for life, with remainder to the children:</p> <p>jBeld, That, under section 1720 of the Code, the sale by the husband, after the filing of the libel, the said sale not being in payment of preexisting debts, did not vest the title in the purchaser so as to prevent the vesting thereof in the wife, according to the verdict of the jury, on the final trial of the divorce case. The purchaser bought subject to the said verdict, and his want of actual notice does not protect him.</p> <p>2. Negotiations and agreements between husband and wife, pending a libel for divorce, as to the alimony of the wife, and agreements between them in relation thereto, are, by presumption of law, merged in the final verdict of the jury in the divorce suit, and a purchaser from the husband, pending a suit of property, mentioned in the schedule, is bound by the verdict, as is the liusuand, as to the legal rights of the wife to the property, unless he can show fraud in the verdict affecting his rights, and to do this, he must attack the judgment before the Court which rendered it, as he is a privy thereto.</p> <p>3. When, in a schedule, filed with a libel for divorce, there is contained an item of “ a city lot in Atlanta, worth $5,000 00 :”</p> <p>Held, That, as the schedule purports to be all the property of the husband, the description is sufficient to put everybody upon notice, if there be, in fact, but one such lot. Lochraxe, Chief Justice, dissenting.</p>

Criminal .law. Continuance. Before Judge Parrott. Whitfield Superior Court. April Term, 1871. Worthy was indicted for adultery with Jane Lemons. .When the case was called for trial he moved to continue for the absence of Jane Lemons, who would swear he had not had carnal knowledge of her and the absence of another, who was familiar with his premises and conduct, and would detail facts rebutting the idea of his guilt.

<p>Where a note given for the purchase-money of land was traded after due, and suit instituted by the transferee upon such note went into judgment in 1867, and in 1869, the vendor of the land died, and his widow set up her claim to dower in the land, which was allowed her, upon the ground that the land came by inheritance through her, and she had not relinquished her right thereto, in terms of the law, and the vendor, the defendant to the suit upon the note, filed his bill in equity, praying an injunction and setting forth the facts, which was granted by the Court v</p> <p>Held, The transferee of the note, after due, took it with the existing equities between the original parties, and the claim for dower, under the facts, was not such an equity as the defendant was bound to plead to the suit in 1867, as the right did not ripen until after the death of the vendor, in 1869, and that this Court will not interfere with the judgment of the Court below in granting an injunction restraining the collection of the judgment, at law, until the hearing under all the facts in this case.</p>

<p>Notary Public. De fado officers. Attachments. Waiver. Interrogatories. Partnership. New Trial. Before Judge Gibson. Richmond Superior Court. June Term, 1870.</p> <p>On the 28th of October, 1869, Perdue made affidavit before one Reynolds, of Augusta, as a Notary Public and ex offiaio Justice of the Peace, that Pool resided out of this State, and was indebted to him, as trustee of his wife, $2,000 00, to the best of his knowledge and belief. He gave the usual attachment bond with one security. Said Notary approved it, and issued an attachment against Pool. On the 1st of November, 1869, this attachment was levied upon Pool’s property. On that day Pool filed a bill averring said facts, that said attachment was void because the affidavit was not positive as to the indebtedness, that he owed Perdue nothing, that said security was worth nothing over and above the exemptions allowed bylaw, and prayed for an injunction against said proceeding, because the property would suffer by detention by the sheriff. The Chancellor ordered injunction to issue, unless, upon notice, said bond be made to conform to law, and good security be given.</p> <p>On the 12th November, 1869, after notice of said injunction, served on the 3d, said bond was amended by striking out the italicized words, having the first security to justify, and giving two additional securities.</p> <p>On the 31st of December, 1869, Perdue filed his declaration averring that he succeeded a former trustee of his wife, that a partnership in farming existed between Pool and such former trustee as such, that all the firm debts were paid, but that Pool still owed the trust estate on account of said partnership, $2,840 65. The bill of particulars charged Pool with the prices of the produce sold by him, etc., credited him by service, etc., and charged him said $2,840 65, as one-half of the net balance due on the settlement of the business.</p> <p>On the 26th of February, 1870, Perdue’s counsel served Pool with notice that said notary had issued said attachment, returnable to the January Term, 1870, of Richmond Superi- or Court, stated upon what property it had been levied, and that it was still pending.</p> <p>In March, 1870, Pool pleaded the general issue, that he never was a partner with Mrs. Perdue’s trustee, but that he was partner in farming with the former trustee and with Perdue in their individual capacities, and that Perdue owed him in the sum of $880 54 by reason of his failure to perform his duty as a partner in said farming operations. To this plea was attached a bill of particulars from which he deduced that balance.</p> <p>In June, 1870, the cause came on for trial. Pool’s counsel moved to dismiss said attachment upon the following grounds: 1st. A Notary Public and ex officio Justice of the! Peace has no authority to issue an attachment. 2d. Reynolds was not a legal Notary Public, because Augusta contains but four militia districts, and in each there was a Notary Public and ex officio Justice of the Peace, in commission, when Reynolds was commissioned, and by the Constitution there can be but one in a district. 3d. Because, after the injunction was ordered, no new affidavit or new bond and levy were made, but the old papers stood, only altered as aforesaid. 4th. Because the declaration shows that the claim is for an unliquidated balance claimed by plaintiff from defendant as his partner, etc. The Court overruled the motion and the trial proceeded.</p> <p>Plaintiff had sued out interrogatories for Blodgett, the former trustee. When Pool’s counsel went to cross them they wrote upon them that they reserved “ any and all objections to the form of these interrogatories and to the many leading questions therein contained.” These interrogatories had been answered and in office some time before the trial. When plaintiff’s counsel offered them in evidence, Pool’s counsel objected to them because they were leading, • and because some of the cross-interrogatories were not answered. The Court overruled the objection and the evidence was read to the jury.</p> <p>There was evidence pro and con upon the issues made by said pleas, and the jury found for the plaintiff for $2,840 68, with interest and costs. A new trial was moved for upon the ground that the Court erred in refusing to dismiss said attachment; in not rejecting said interrogatories; in holding that one partner might recover against another, at law, because the verdict; for more than the attachment claimed, was contrary to the evidence, etc., etc. The Court refused a new trial, and error is assigned on each of said grounds.</p>

Bankruptcy. Sureties. Before Judge QlBSON. Richmond Superior Court. June Term, 1870. In 1867, Walker became an auctioneer in Augusta, Georgia.

Constitutional law. Officers. Vested Rights. Before Judge Gibson. Richmond Superior Court, June Term, 1870. An ordinance of the city of Augusta required its City Council to elect, biennally, on the second Saturday in January, a hospital physician, who should have charge of the City Hospital. His salary was to be “ sueh as Council may annually annex to the office.” This ordinance provided for his removal from office for malpractice, etc., as other officers might be removed.

<p>Equity. Injunction. Before Judge Twiggs. Burke Superior Court. May Term, 1871.</p> <p>The case is reported in th e opinion.</p>

<p>Conclusiveness of judgment. Trustees. Before Judge Gibson. Richmond county. Chambers. September, 1871.</p> <p>Meyer, as trustee of Mrs. Miller, complained against Baldwin B. Miller, Jr., and Butt & Brother, as follows : She and Baldwin B. married in 1,858, and lived together till the 1st of May, 1870, when, by his cruelty, she was forced to separate from him. During said time, and while he had ample property, he bought from said Butt & Brother various goods, as she believed, upon his personal credit. He gave his individual notes therefor. They made an ante-nuptial contract, whereby all her property was settled upon her for her sole and separate use, in no way to be liable for his debts or contracts. On the 29th of October, 1870, said Butts & Brother sued Miller upon his said notes, made in 1866 and 1867, and upon an open account for goods charged to himself between March 25th and December 9th, 1870. The suit was against him as her trustee, averring that said notes and account were for supplies of necessaries for the use of said trust-estate. Miller made no defense, and, on the 19th of May, 1870, a judgment by default,-, without evidence, was entered against him as such trustee. She had no notice of this suit. At the time said judgment was taken Butt & Brother knew that a proceeding was pending, at her instance, to remove Miller as her trustee. They and Miller fraudulentlyeombined thus to injure the trust-estate. The consideration of said notes and the goods mentioned in said account, were not bought for the trust-estate but for Miller’s own use on his individual plantation, and the credit was given to him individually. He is now insolvent. Indeed, during the greater part of the time when the goods were bought, Miller was not her trustee. In 1868, he was removed from said trusteeship; in 1870 he was reinstated, and again removed in 1871, and complainant was then appointed her trustee. The fi. fa. issued upon said judgment has been levied upon the trust property. She prayed that thefi.fa. be enjoined from proceeding.</p> <p>The defendants were ordered to show cause why the injunction should not issue. Butt & Brother answered that they did not sell the goods to Miller on his personal credit, but looked to the trust-estate, that Mrs. Miller knew that the credit was for goods for the use of herself and children, and that they were crediting Miller as her trustee. She held him out as her trustee even after separation, and they had no notice of her proceeding to remove him till he was removed two days after they obtained their said judgment. On the 20th of March, 1870, she wrote them, “you furnished us on credit,” and offered certain of her trust-estate in payment of said debts, and repeated the offer in another letter of the 15th of April, 1870. They did not accept the offer, but said they would sue her trustee, and she encouraged them to do so. They did sue him as trustee and served him as such and obtained a judgment against him. They denied all fraud and combination.</p> <p>Prior to the hearing, complainant notified Butt & Brother to produce their books and correspondence with Mrs. M-iller, to be used as evidence. At the hearing, Butt & Brother refused to produce the books. Complainant stated to the Chancellor that said books would show that the consideration of the notes was-such goods as were not proper for an estate such as hers, described in the bill, that her letters and their replies would explain the whole case, and asked that they be compelled to produce them. The Court refused to have them produced. Complainant read an affidavit by Miller that said credit was given to him individually, when he was in good credit,'and for goods with which the trust-estate had no concern or connection. He also read said ante-nuptial contract. It was admitted that Miller was removed as her trustee early in 1868, that his father became the trustee and was succeeded by Miller in December, 1869, and he was again removed two days after said judgment was rendered. The Chancellor refused to enjoin the ft. fa. This refusal and the refusal to compel the production of the books and letters are assigned as error.</p>

<p>1. It was not competent for arbitration to render an award in favor of the party, or interest, which had become the property of his son, pending the arbitration. The law which governs arbitrations demands the same freedom from all bias that.applies to Judges or Courts, and the fact stated by the arbitrator, in this case, showing that, by his previous opinions expressed, his judgment had not changed by the subsequent purchase by his son, cannot make valid that which, from the fact of the purchase, when known to the arbitrator, and without notice to the other party, disqualified him to act in the case.</p> <p>2. Under our laws, a Judge has no right to carry a jury into a different county from that in which they are empanneled; and any threat to do so, in case they did not find a verdict, was coercion, and deprived the jury of that free, voluntary consideration of the case invoked by the law.</p> <p>3. The fact of whether a contract was entered into by Whitfield with Spearman, to devise to him certain property, by will, is one for the-jury to find upon the evidence, and if they found a contract existecj,. equity had jurisdiction to decree damages for the breach, although it was impossible to decree specific performance in terms of such contract.</p> <p>4. Under the facts of this case, if the jury found there was a contract,, and a breach in the estimation of damages, it is proper to consider any advances made during the lifetime of Whitfield, distinguishing between voluntary gifts, not referential to the contract, hut independent of it.</p> <p>5. The altered condition of the parties, arising out of the losses to the-estate of Whitfield, at his death, is a proper subject matter to be considered by the jury, in case they found a contract to have been entered' into, and such breach as entitled, and Spearman to damages, under the rules of law.</p>

Revenue stamps. Sealing Ordinance. Confederate debts. Before Judge Robinson. Baldwin Superior Court. February Term, 1871. This suit was begun by Rives against one Waitzfelder, by attachment. The sum sworn to was $1,600 00, and the ground for attachment was the non-resideuee of Waitzfelder. It was levied upon Waitzfelder’s property.

<p>1. One’s liabits, temper, morality, sobriety, sense, or the contrary, should be ascertained when he applies for the guardianship of an idiot. (R.)</p> <p>2. In a contest for guardianship of the person of an idiot, a colored man, one applicant being a white person, and the other an only sistei and nearest of kin to the ward, the proof showed that both were unobjectionable, and the Court charged the jury “that other things being equal, relations were to be preferred:”</p> <p>Held, That under the Code, section 1799, this charge did not, in its full meaning, present the provisions of law for the consideration of the jury. The language of the law is “the nearest of lrin by blood if otherwise unobjectionable shall be preferred.” The philosophy of the law is wise, and its administration ought to be enforced ; for superior advantages of wealth or intelligence in a stranger cannot justly invoke the exercise of a discretion vested by law in the Ordinary, when the nearest of kin is unobjectionable, and override the declaration of the law in favor of such nearest of kin by blood.</p>

<p>Where a landlord rents a store in a building which, in the upper stories, was rented out to other tenants, and a water-closet, in the upper part, to which all the tenants had access, by reasons of obstructions thrown in, overflowed and damaged the goods of the tenant in the store:</p> <p>Held, That the landlord was liable for the damages accruing. The fact of the act being caused by the neglect or wantoness of other tenants, when the proof showed previous notice that the closet was in bad condition, by abuse of such tenants to such landlord, the fact that it was in the premise at the time of the renting, and that the plaintiff had access to it, but did not use it, does not change the liability. It is the duty of the landlord to keep the premises free from the consequences arising ordinarily from the use of a water-closet, which becomes a private nuisance, when not properly used and attended to ; and if the landlord fails, and from such cause damage ensues, he is liable.</p>

<p>1. The Judge may refuse to allow a writ of quo warranto filed unless it makes out & prima facie case in favor of the petitioner. (R.)</p> <p>2. General Terry did not, by his removal of Wetmore, as the Ordinary of Chatham county, and appointment of Stone thereto, convey such a title to the office as, upon the application of Stone to the civil Courts, they could enforce under the Constitution and laws of this State.</p> <p>3. The facts recited in the petition for quo warranto, to-wit: that Stone, after the removal of Wetmore by General Terry, was appointed to the office, and filed his bond and was commissioned by the Governor, did not confer such a right to the office as Courts can recognize. The commission did not convey more than the order of appointment upon which it was based, and that appointment expired with the powers that gave it existence.</p> <p>4. Appointments, under the Reconstruction Acts of Congress, to civil office by the General Commanding, was not by virtue of the Constitution of the State, but by the power of the Acts of Congress, and did not confer upon the incumbents any title to the same longer than the Acts themselves were of force.</p>

Quo Warranto. Officer’s books, etc. Before Judge Schley. Chatham county. March, 1871. Williamson averred that, in December, 1870, he was duly elected treasurer of said county, had been commissioned by the Governor as such treasurer, and qualified by taking the oath, and giving the bond required by law, yet Eoss, his predecessor, refused to deliver him the books, etc., of the office.

Constitutional law. Rebellion. Before Judge Schley. Chatham Superior Court. May, 1871. By an A_ct of 1857, the fees of the Solicitor General of the Eastern Circuit, for the business of Chatham county, were payable out of its treasury. This Act was repealed in 1866.

<p>When there was a written agreement that one party would furnish and the other take all the crude turpentine made on a certain plantation when delivered in lots of forty barrels and pay for the lots on delivery, and if either party failed he should forfeit $1,000 00 :</p> <p>Held, That the $1,000 is to be considered a penalty and not liquidated damages, and on a failure of either party the actual damage is all that can be recovered.</p>

<p>Rules against sheriffs. Before Judge Sessions. McIntosh Superior Court. December Term, 1870.</p> <p>The facts are in the opinion.</p>

Continuances. Bills of exchange. Evidence. Before Judge Sessions. Wayne Superior Court. May, 1871. Marshall & Brother sued Clary upon his promissory note for $370 26, made the 19th of July, 1868, and due one day thereafter.

Ejectment. Continuance. Evidence. Limitation of Actions. Before Judge Hopkins. Fulton Superior Court. October Term, 1870. The material facts in the case are as follows: On the 17th of September, 1861, ejectment was brought for land lot number seventy-five, in the fourteenth district, formerly DeKalb, now of said county, upon the demise of Payne, as administrator of John McCranie, against William McNaught, James Ormond and John Lee, tenants in possession.

<p>Streets in cities. Dedication. Injunctions. . Tried Before Judge Hopkins. Fulton county. Chambers. September, 1871.</p> <p>Richard Parsons and ten others filed a bill against the trustees of the Atlanta University, making the following averments : Complainants are citizens of Atlanta, residing on and owning lots on West Mitchell street. They complain for themselves and other citizens and property owners on said street, and for the citizens of Atlanta generally. The defendant is an elemosenary corporation, located in said county. Its trustees own parts of land lots numbers eighty-fonr and one hundred and nine in said county, purchased from Edward Parsons on the 12th of November, 1869. These parts were but a portion of the body of land owned by Edward Parsons prior to such sale. In 1867, Edward Parsons had all of said land then owned by him surveyed, platted and divided into blocks, and ran streets and alleys through its length and breadth. Among these streets was an extension of Mitchell Street through said land westwardly, it being the principal thoroughfare, and most passable. Edward Parsons and his partner, Jenkins, then sold various lots to different persons fronting on said streets so platted, and a number of those purchasers, in 1867 and 1868, improved said lots by buildings, etc., costing, in the aggregate, say $50,000 00. These purchases were made upon an understanding with Parsons and Jennings that said streets so laid out were to be public streets of the city of Atlanta. Early in 1868, the civil engineer of Atlanta placed said streets, so platted, upon the city map, and complainants and others have, since 1867, regarded said streets so laid out as public streets, and made improvements upon their lots, which would not have been made but for such understanding.</p> <p>On the 30th of August, 1867, Edward Parsons, then owning the whole of said lands, with Jennings, exhibited a map of the same so platted to the Mayor and Council of Atlanta. On this map he had drawn what was called old Mitchell street, diverging from the present street and running through said land. He proposed to the Mayor and Council of Atlanta that if they would allow him to close up old Mitchell street, lie would give to them, for the benefit of the citizens of Atlanta, a right of way for the same street, though his land, as the extension of Mitchell street then appeared on his said map, and now appears on the city map. This proposition was referred to the street committee, that they might examine and report concerning the premises. They did report in favor of accepting the proposition, especially mentioning the extension of Mitchell street, westwardly, to the corporate limits of the city. Their report was adopted, and Edward Parsons closed up old Mitchell street. In said conveyance to the trustees of the said University, the lands bought by them were described as follows: “ Twelve blocks, in the city of Atlanta, included between Hunter and Beck-with streets, on the north and south, Trebursey and Walnut streets on the east, and Chestnut street on the west, said blocks ranging in area, and being separated by Mitchell and Markham streets, running from east to west, and by Maple, Elm and Wine streets, running from north to south,” and various other blocks, fronting on said Elm, Walnut, Beckwith and Markham streets, fully described in said conveyance. Said conveyance expressed that it was made “ subject, nevertheless, to the claims, whatever they may be, of those to whom said Parsons has conditionally sold divers small tracts embraced in that above described, whose names, together with the lot or lots bought by each, the price agreed to be paid and the amount paid are here given, to-wit:” Here followed sixty-seven names, etc. The price of the lots ranged from $180 00 to $540 00, and the payments from $1 00 to $35 00. None of complainants are in the list. The deed conveyed the land in fee-simple, except that as to the streets and alleys aforesaid, there was but a quit claim.</p> <p>More than a year ago the said trustees erected on each side of said extension of Mitchell street a college building, Now they are proceeding to build another, very large and costly, between those two, and immediately on said street, and intend thus to stop up said street completely.</p> <p>They prayed art injunction against such or other obstruction of said street by defendants. A general demurrer to this bill was overruled, and that is assigned as error by the trustees.</p> <p>The defendants then answered the bill. They denied that Mitchell street, as extended, had ever been given to or accepted by the Mayor and Council as a street or thoroughfare, or that it was ever worked out or used by the public. They believe that Mitchell street, west of Trebursey (now Tatnall) street, together with Hunter, Markham and Beckwith streets, one or all, were tendered bylParsons to the Mayor and Council of Atlanta, in lieu of the old Mason & Turner’s ferry road, which ran diagonally through said Parson’s land, and the Mayor and Council accepted only Walnut street, from Mitchell to Beckwith, and Beckwith thence west to the corporate line, in lieu of said road, and in pursuance of said acceptance, worked out Walnut and Beckwith streets, and have since kept them as public streets. They refused to accept Hunter, Mitchell and Markham streets, or either of them. And this was their information when they bought and paid for said land; .they were assured that such streets, except as first stated, were but imaginary streets, on paper. Complainants reside on west Mitchell street, but not on this extension of it. They bought before Parsons had ever so platted his land. (Complainants reside between the college and the city.) Defendants now claim all the land mentioned in their said boundaries, and they bought them for value, without notice of said claim. They first took from Parsons a bond for titles, on the 1st of May, 1868, in which the land is described as aforesaid, which Parsons bound himself to convey to them, upon the payment of $12,500 00, with no reservation therein expressed but the claims of those conditional purchasers.</p> <p>At the hearing complainants read various affidavits. Richard Parsons and one Turner affirmed that while Edward Parsons was in possesssion of said land he said that he gave the extension of West Mitchell street to the Mayor and Council of Atlanta, in consideration of their allowing him to close up said old road, and Bichard Parsons further swore that in 1867 Edward Parsons had said land platted, and sold lots on all of said streets as public streets. Draper Boss, a negro, swore that he and others, in 1867, bought lots from Parsons on said extension as West Mitchell street, and that it was represented to them as a public street. He and those others are among those mentioned in the bond for title and deed as having made conditional purchases from Parsons. And he swore that the trustees had refused to receive the unpaid portion of the price for which Parsons was to have conveyed to them the lots. These all swore that they regarded said extension as an important public street.</p> <p>Bass, the then civil engineer of Atlanta, swore that in 1870 the City Council and the trustees aforesaid were in a dispute as to said extension, they put obstructions in it, and he had them removed, by the order of the Mayor and Council, who had been petitioned to keep it open; and that Edward Parsons told him that he tendered said streets to the Mayor and Council, and understood that they were accepted as public streets.</p> <p>Edward Parsons swore that when he platted said land he intended that the streets as platted should be public streets, sold lots on them with that representation, and quite a number of the purchasers built upon said streets, (to-wit, the persons mentioned in his bond and deed;) and that when he gave said quit claim to the streets he had no idea that the purchasers, the defendants, would or could close them; he regarded them as useful public streets.</p> <p>One Elliott swore that he had hauled wood over said extension of Mitchell street, had seen many persons travel over it, that it was for some distance fenced out from the houses as a street, and was generally considered as a public street of the city. There were several other affidavits of the same purport as to the representations of Edward Parsons and Jennings, his agent, when they sold said lands to said purchasers.</p> <p>Complainant’s counsel read the following from the minutes of the City Council: “ Petition of E. Parsons and William Jennings, in relation to extension of street read and referred to street committee. August 30th, 1867. Street committee report favorably on petition of E. Parsons and William Jennings in relation to extension of Mitchell street to corporation line. 6th September 1867. A petition of citizens on Mason and Turner’s ferry road in relation to opening said road within the corporate limits was referred to street committee, 13th September, 1867.” Upon it, the street committee, through E. E. Eawson, chairman, on the 11th of October, 1867, “recommend that Walnut street be opened from Miichell to Beckwith street, and then Beckwith to intersect the said ferry road,” and ended with a statement of the quantity and kind of work which ought to be done to carry out this recommendation. The Clerk of the Council swore that he was present when the committee reported in favor of the petition of E. Parsons and Jennings, and that the report was adopted, though it does not so appear on the minutes, as it was in a report covering other matters which was adopted.</p> <p>For the defendants, Jennings swore that their answer was true’as to his conduct, and he believed it was as to that of others. Eawson swore that he and Hayden, of the street committee, examined the extensions of Mitchell, Markham, Hunter and Beckwith streets, to connect with the ferry road as proposed by Parsons and Jennings, and concluded to accept only as reported aforesaid, and that except as thus accepted the extensions were not worked or used as streets while he remained in office. Hayden swore to the same, said Jennings was with them, and they refused to accept the others (except as reported upon) because the expense of working them was too great and the location unfavorable, and that they notified Jennings and Parsons that they would not accept the others offered. He said said old road was but an army way, made during the war, as he believed, and that the City Coupcil worked out the streets so accepted, but would not work out the others.</p> <p>Ware, the President of the College, swore that he looked carefully into the matter, and but for the repeated assurances of Edward Parsons and Jennings, that these streets were but imaginary ones, they would not have bought the property; for the object of the purchase was to fence the whole as a college campus. William Jennings swore that in the spring of 1867 he purchased all of said land from E. Parsons, it being then in the new city limits, without streets; that he requested Parsons to have it platted with the said old streets laid off as extended through it, then intending to sell lots on such streets. He desired that the Mayor and Council would open and work Mitchell, Markham, Beckwith and any other of said streets, and was willing to give them to the city if the Mayor and Council would work them out. Parsons still held an interest in the lands, and they, in August, 1870, petitioned the Mayor and Council to accept and open and work either Mitchell, Markham or Beckwith street, in lieu of said old road. It was not intended that any street should become public, except upon condition that it should be then opened and worked out so as to make it passable.</p> <p>He was with Eawson and Hayden when they examined the ground, and they positively refused to accept said streets on such conditions, except Walnut and Beckwith streets. He said he sold the lots bought by the purchasers, whose affidavits are before reported, upon conditions, which they did not fulfill, and that said lots now belong to the trustees of said University. In 1868, he cancelled his trade with E. Parsons, with the agreement that he should sell said lands to the said trustees, to which body he belonged. And said purchase would not have been made but for E. Parsons’ distinct assurance that he had done nothing to give the Mayor and Council a right to said extended streets in controversy, except to make said offer which was rejected. The quit-claim, as to the streets, was made only because E. Parsons would not warrant them as against said purchasers; but their rights have been lost under the terms of their purchases.</p> <p>Mr. Francis, secretary of the board of trustees, swore that he took an active part in the purchase of said land, inquired particularly as to those streets, and learned their history as detailed above, by Jennings, both from him and Parsons; that he examined the city records and minutes, and from them and the original petition, then on file there, found that their statements were true, and but for that the premises would not have been bought; for they were bought for a campus. The petition was as Jennings has stated above. He said E. Parsons gave the quit-claim only for the reason stated by Jennings above. He said sundry citizens, in 1870, petitioned the Mayor and Council to open Mitchell street. It was laid upon the table. The trustees began building, and the Mayor and Council interfered, claiming said extension as a street, when the trustees had them enjoined, and proceeded with their work. He further said that no one of the conditional purchasers of lands on this street had complied with the terms of sale. After argument, the Chancellor refused to enjoin the trustees. This is assigned as error by the complainants. The trustees assigned as error the refusal to dismiss the bill on demurrer.</p>

<p>1. When a contract for labor was entered into on the Sabbath, and the contract was performed afterwards by the laborer:</p> <p>Meld, That the promissor cannot defend by setting forth the illegality of the contract.</p> <p>2. When a wife, by the consent of her husband, makes a contract for her own labor, in which contract it is agreed that she is, herself, to receive the compensation, she may, under our law, sue and recover in her own name.</p>

New trial. Waiver. Continuance. Charge of Court. Before Judge Chisolm. City Court of Savannah. February Term, 1871. Chipman sued Beckford and Holman for the price of certain food for mules. They pleaded the general issue. One Pitchford testified that the account was correct; that he' purchased the articles for defendant’s mules by the request of Mr. Holman, and fed it to the mules.

<p>Railroad. Streets. Equity. Emineut domain. Damages. Before Judge Gibson. Richmond Superior Court. June Term, 1871.</p> <p>This cause was as follows: “ The South Cai’olina Railroad Company,” “ The Georgia Railroad and Banking Company,” “ The Central Railroad and Banking Company of Georgia,” “ The Charlotte, Columbia and Augusta Railroad Company,” which corporation, by reason of consolidation, has succeeded to all the rights and franchises of the Columbia and Augusta Railroad Company, and the Augusta and Summerville Railroad Company, all corporations chartered by this State, or recognized by the laws thereof, complain against Henry H. Steiner et al., and also against all others who may bring like suits to those hereinafter described.</p> <p>They claim, and are now, and have been (the three first, actually, and last named by delegating its authority to others,) since the 9th day of November, 1867, and the Charlotte, Columbia and Augusta Railroad, since June 16th, 1869, exercising a right, severally, but under like authority, to transport railroad trains for freight and passengers, drawn by locomotive steam power over a certain railroad track in the city of Augusta, in said county, laid down in Washington street, in said city, from Reynolds street to Telfair street, and thence to the Georgia Railroad passenger depot, and to the Central Railroad freight depot, save that the said Central Railroad and Banking Company say that they have run no trains north of Greene street.</p> <p>By a contract, under seal, between the City Council of Augusta and the trustees of the Academy of Richmond county, of the one part, and the South Carolina Railroad Company of the other, entered into on the 10th day of August, 1852, on certain terms therein shown, the said company was authorized to lay down a railroad track in the centre of said Washington street, from Reynolds to Watkins street, and use the same for the ti’ansportation of freight by horse power; and said track was laid down in a short time thereafter.</p> <p>On the 31st day of July, 1857, by another contract between the same parties and the Georgia Railroad and Banking Company, the said company was permitted to counect their said track with the track of the said Georgia Railroad, which was accordingly done. And on the 19th day of January, 1867, under the ordinances of said city, of that date, said track was continued on Washington street, southward, to connect with the Central Eailroad track, by the Augusta and Summerville Eailroad Company.</p> <p>On the 7th day of November, 1867, an ordinance was adopted by said City Council authorizing the use of steam power on said Washington street, by the said Augusta and Summerville Eailroad Company. And on the 13th day of March, 1868, by an ordinance, the said City Council authorized the Augusta and Summerville Eailroad Company to contract with the South Carolina Eailroad Company for the use of the track of the latter company from Eeynolds street to the Georgia Eailroad depot, which is the same track first before described ; and, in pursuance thereof, on the 16th day of March, 1868, by a deed of lease and covenants entered into between the two said companies, the said track was leased to the said Augusta and Summerville Eailroad Company during the terms of their charter, in consideration that said last named company would haul by steam the freight and passenger cars of the said South Carolina Eailroad Company, between the depots of said company and the Georgia Eailroad Company. And on the 2d day of March, 1868, an agreement, in writing, was entered into between the said Augusta and Summerville Eailroad Company, and the said Central Eailroad and Banking Company, by which the first named company agreed to transport the trains of the other between the depot of the Central Eailroad and the other depots in said city. And on the 5th day of July, 1869, an agreement was entered into between said Augusta and Summerville Eailroad Company and said Columbia and Augusta Eailroad Company, by which the former company agreed to transport the trains of the latter between the several depots.</p> <p>And on the.........day of........., 1868, by a verbal contract between the said Augusta and Summerville Eailroad Company and the Georgia Eailroad and Banking Company, the said former company agreed, for a valuable consideration, to transport the trains of the latter company between the various depots, iu like manner as with the other above named companies.</p> <p>And, inasmuch as the said Augusta and Summerville Railroad Company was unprovided with locomotives and engine hands of its own, by an understanding between it and the several other companies, on terms satisfactory to them, the transportation agreed to be drawn by said contracts has been actually performed by the locomotives and engine hands of the respective companies.</p> <p>And this transportation of trains by authority of said ordinances, done by the consent and authority of the Augusta and Summerville Railroad Company, is the same complained of by the defendants in this bill in their several actions hereinafter named; and no other running of trains or engines has been done by them, or either of them, than according to said ordinances and contracts, and the permission of said City Council of Augusta.</p> <p>And in addition to the right founded on the foregoing premises, which is common to all the companies, the Charlotte, Columbia and Augusta Railroad Company say that, by ordinance of the City Council of Augusta, adopted April 27th, 1869, the Columbia and Augusta Railroad were express ly authorized to cross the Savannah river and connect with the tracks of the Augusta and Summerville Railroad on Washington street.</p> <p>The South Carolina Railroad Company and the Charlotte, Columbia and Augusta Railroad Company also say that, on the 1st day of June, 1869, a contract was entered into between them and the City Council and the said trustees of Richmond Academy by which, for a valuable consideration, the said City Council conveyed to said railroad companies, in perpetuity, severally and respectively, the right to use said track on Washington street, with steam or other power.</p> <p>And ail the said ordinances and contracts between said ' City Council and said Augusta and Summerville Railroad Company, have been confirmed by the Act of the Legislature, approved October 26th, 1870.</p> <p>Washington street is sixty-five feet in width, and said railroad track is five feet in width, located in the centre of the street, and on the same level as the street, and offers no obstruction to the crossing of the street, at any point, beyond a slight jolting of vehicles ; whereas, before said track was laid, there was an open ditch or drain, from time immemorial, down the centre of said street, which effectually prevented any crossing thereof save at the crossings of other streets, which drain has been covered by the track aforesaid, at the expense of complainants.</p> <p>The fee of the soil of said Washington street is in the State of Georgia, subject only to its use as a public highway by the people of this State; said street was laid out as a street and public highway when Georgia was a British colony, on land belonging to the Proprietory Trustees, and afterwards to the Crown, and the title to the same has never passed out of the sovereign to any private person ; and they pray that any private person who asserts a right as of fee in the land covered by said street may be held to the strict proof thereof.</p> <p>The foregoing premises vest in them the legal right to run their trains by steam power on said track on Washington street without responsibility for damages to any private individual for so doing.</p> <p>Yet they are now, and are likely to be hereafter, greatly harassed and put to costs and expense by suits for damages by individuals claiming to be injured in depreciation of real estate alleged to be caused by the exercise of their said rights.</p> <p>And already actions for damages to real estate on Washington street, caused by the running of trains as aforesaid, have been commenced against each of them severally — except the Augusta and Summerville Railroad Company — by the said defendants in this bill, being, in all, twenty-eight suits, of which all but the action of Mrs. Mary M. Clanton were brought to January Term, 1871, of this Court; and the suit of the said Mrs. Clanton was brought to June Term, 1871. And all said actions are still pending, and are for damages upon the same grounds. Such actions being merely for damages for a limited period, cannot finally settle the controversies between the parties, but they are liable to continual and repeated litigation, which is contrary to the policy of the law. And moreover, in such actions, if damages are held to be recoverable, it would be impossible for a jury to assess what any one company should pay without considering the liability of the other companies, on which each one ought to be heard. And for other reasons, complete justice cannot be had under the mode of proceeding of the common law; and, therefore, complainants bring this their bill, in the nature of a bill of peace, to the end that all these matters may be heard and determined at once, and protection be afforded against a multiplicity of suits. ■</p> <p>They pray that said defendants may, without oath, answer this bill, and that they be restrained, by the writ of injunction, from further prosecuting their said'actions at law, until the further order of the Court, and that a decree may be had upon the hearing of this bill, establishing and confirming to each of complainants the right to use said railroad track for the carrying of freight and passengers by steam power, or other power, and that said defendants be perpetually enjoined from prosecuting said actions, or any future actions, on account of their so using said railroad track.</p> <p>Or, if it should be determined that said defendants are entitled to damages, that they be required, respectively, to establish their claim thereto, and that their damages be assessed up to time of decree; and also, that such other sum be assessed to each as will be full compensation in the future for the perpetual use of said track, in manner aforesaid; and that complainants have the option either to pay the damages already accrued, and abandon for the future the use of steam on said street, or to pay the total sum, and thereby acquire against said defendants, their heirs, representatives and assigns a right in perpetuity to use said track with steam power. And that, in either event, the decree be final between the parties, and that, by the same decree, the damages to each defendant, if any are found due, be divided and apportioned between such of complainants as are sued in said actions according to equity.</p> <p>To the bill was attached copies of said contracts, etc. The Chancellor ordered the defendants to show cause why the injunction should not issue according to said prayer. They demurred to the bill upon the grounds that it was multifarious and contained no equity calling for injunction.</p> <p>The Chancellor ordered the injunction to issue against each of said defendants, who did not, in thirty days, file in the Clerk’s office of said Court, a consent to accept the final verdict and judgment of said Court as full compensation for all damage sustained by him or her; as to each who would file such consent the injunction was refused.</p> <p>The complainants say the Chancellor erred in not granting the injunction unconditionally, and defendants say that he erred in not dismissing the bill and in granting any injunction.</p>

<p>(By two judges.) — 1. To render words actionable perse, it is not necessary that they should, in express words, charge another with a crime punishable by law; it is sufficient if they impute a crime, in such terms as that the hearers understand that this is what is meant.</p> <p>2. When the words themselves are actionable, as imputing a crime, an innuendo, indicating in plainer language what crime was meant, is unnecessary and may be rejected as surplusage. 12th February, 1872.</p>

<p>New trial. Prescription. Before Judge Parrott. Lump-kin Superior Court. September Term, 1871.</p> <p>This was ejectment against Wells, tenant, in possession, begun on the 24th of April, 1861. Plaintiff read in evidence a regular chain of titles from the State to plaintiff’s lessors, proved the loeus and tenancy, and closed. Defendant introduced a quit-claim deed from George Williams to Nicholson, dated the 5th of May, 1851; one from Nicholson to William M. Williams, dated 28th November, 1851; one from Williams to Wade, dated the 19th of November, 1852; and one from Wade to Wells, dated the 1st of October, 1854. He then showed as follows: one Harper took possession of said land in 1840, when it was wild, and built upon it; about the same time George Williams built upon another part of said lot; they remained in possession till 1848 or 1849, when Harper gave up his claim to George Williams and moved away. Possession was held by George Williams and those holding under him, up to the bringing of this suit. On the other hand, it was shown that Wells, and each of said parties under whom he claimed, had notice that none of the others claimed any title to the premises, except what might arise from having possession.</p> <p>The Court charged the jury that seven years’ peaceable, continuous possession of land with claim of right will ripen into a good title by prescription against all persons except the State, or those laboring under disabilities to sue, and if defendant, or those under whom he claimed, held said land either seven years under color of title or by twenty years’ actual adverse possession, the jury were authorized to find for defendant 5 and the possession of defendant and those under whom he held might be tacked together. If a party enter upon land of another with intent to hold, without buying it, it would be a fraud against a true owner, and a possession so originating would never ripen into a prescriptive title. The jury found for the plaintiff. Defendant moved for a new trial upon the grounds that the verdict was contrary to the law and charge of the Court, and because the last sentence of the charge is wrong. The Court granted a new trial. This is assigned as error.</p>

<p>Practice in Supreme Court. From Dawson county.</p>

Prescriptive title. Before Judge Parrott. Lumpkin Superior Court. September Term, 1871. This was ejectment, the defense being the Statute of Limitations. Title was shown from the State down to plaintiff.

Ejectment. Notice. Before Judge Knight. Gilmer Superior Court. October Term, 1871. This was ejectment, brought in January, 1860, upon the several demises of the heirs of Mary Meyers, of Palmour, and of Henry G. Cole, against Levi and J .C. Long, tenants. The tenancy and locus were admitted.

<p>Pleading. Common. Trespass. Before Judge Knight. Union Superior Court. October Term, 1871.</p> <p>Gurley averred that he owned $2,000 00 worth of cattle and a prescriptive, legal right of way, common use, profit, possession and enjoyment for them for pasturage upon the wild productions of a large area of wild, unarable and uncultivated mountain lands, contiguous to his house and bordering on the Blue Ridge Mountains and Tuccoa river, of the .¡annual value of $500 00, which, in common with his neighbors, he had enjoyed for such pasturage for thirty years last past, yet said Davis et aL, by force and arms, willfully, fraudulently and maliciously dispossessed him and prevented suck pasturage of bis cattle, etc., by running a fence between Gurley’s land and said wild lands for a distance of five miles, so as to shut out said cattle, etc., from said range, to bis damage, etc. In another count he averred that said defendants had maliciously killed his certain cattle, to his damage, etc.</p> <p>This declaration was demurred to because of a misjoinder of actions, and the first count was demurred to because it contained no cause of action. The demurrer was overruled.</p> <p>The testimony showed that Davis et al. claimed certain land for which they said they paid $12,000 00, and on it built a fence which prevented plaintiff’s cattle from going to the range, which they had fed upon for many years, except by going a mile and a half further than before; the fence was five miles long, and wras built, as Davis said, to keep Gurley’s cattle apart from his cattle, and prevent trouble by his tenants hunting Gurley’s stock. It was not pretended that Gurley had any right to said pasturage, except that, without interruption, his cattle, etc., had fed there for years. It was shown that some of Gurley’s cattle were killed on Davis’ land, inside said fence, and some few facts cast suspicion on defendants, but each of them swore that he did not kill said cattle or cause it to be done. The inconvenience to Gurley and his damage by killing his cattle was proved.</p> <p>The Court charged the jury, that if defendants owned or had legal possession of said land, whereon the fence was, they had a right to fence off the said range; but that they should show legal title by deeds, or prescription for twenty years, with claim of right in themselves or in the true owners, and that they were the agents of the owners. And if they failed to show such title, plaintiff could recover for fencing out his cattle. In order to bar or end a right of common by enclosing, the land must be enclosed, a fence built through the country but not enclosing the land will not bar or end the right of common. He was requested to charge, “common, because of vicinage, is a mutual right in the inhabitants of a neighborhood of suffering their cattle to stray into other’s fields without molestation, until either of them shall enclose the land and bar out the others; when it is so enclosed, the right of common ceases, ends, becomes extinguished.” He so charged, adding “provided the persons enclosing it have the true, legal title to the land.” The jury found for the plaintiff for $125 00 and costs. Defendant’s counsel moved for a new trial, upon the grounds that the Court erred in overruling said demurrer, in charging as he did, and qualifying said request to charge as he did, and because the verdict was contrary to the law and evidence. The Court refused a new trial, and error is assigned on said grounds.</p>

<p>(By two judges.) — 1. Where a controversy is submitted to arbitration, under the Code, and the arbitrators and parties have several meetings, at the first of which only two of the arbitrators are present, and uo objection is made by either party at the time to the absence of third arbitrator, it is too late, on motion to make the award the judgment of the Court, to object to such motion on the ground of the absence of the third arbitrator from the first meeting, especially where the arbitrators were unanimous.</p> <p>2. Where numerous objections are filed to an award, on the ground that the award was the result of accident, or mistake, or fraud of some one or all of the arbitrators or parties, or is otherwise illegal, all of which objections are, in effect, objections because the award is contrary to evidence, or the weight of evidence, the testimony submitted to the arbitrators should be before this Court to enable it to pass intelligently upon the objections made. Nor will the fact that the objections were demurred to for insufficiency dispense with this. 20th February, 1872.</p>

<p>Practice in Supreme Court. From Habersham.</p>

<p>(By two judges.) When on a bill filed for an account and settlement of the affairs of a partnership, there was an answer, and (he parties at issue, on the bill and answers, and there was a verdict for the plaintiff, and a motion for a new trial, on the ground that the Court erred in refusing to continue the cause, and it appearing, on the hearing of the motion, by the sworn statements of the absent counsel, that one of them was prevented from attending Court by providential cause, and the other, because the Judge had informed him, in open Court, at the regular term at the time he had fixed the day for the Adjourned Term at which the case was tried, that he had given Mr. Walker leave of absence from the Adjourned Term, and that none of his cases would be tried; that Mr. Walker was a leading counsel for the plaintiff in this case, and was counsel in all the cases in which the absent counsel was employed; that he had so publicly notified the Court, and that trusting to this he had not attended the said Adjourned Term:</p> <p>Held, That it was no abuse of the'discretion vested in the Judge, in such eases, to grant a new trial. 20th February, 1872.</p>

<p>Relief Act of 1870. Widows and Minors. Before Judge Davis. Walton Superior Court. August Term, 1871.</p> <p>Kelly, as administrator of Tucker, sued Carter upon his promissory note, payable to Tucker, made in 1862. Kelly filed his affidavit that, “ to the best of his knowledge and information, all legal taxes upon said debt have been duly paid, or the income thereon, for each year since the same came into his hands as administrator, except for the years 1869 and 1870. Deponent was advised that the note was so doubtful of collection that he was not required by law to pay taxes on the same for tire years 1869 and 1870, it being then considered as very doubtful if not uncollectable. That portion of the statute which requires him to swear that his intestate paid all legal taxes, requires an impossibility, and is, therefore, not binding. He is informed and believes that there are widows, or a widow and minor children, who are distributees of said Tucker, and is advised that the provisions of the first and second sections of said Act do not apply to this claim. And deponent expects to prove these facts upon the trial.”</p> <p>Defendant’s counsel moved to dismiss the cause because such affidavit was insufficient under the Relief Act of 1870. Plaintiff’s counsel resisted the motion, and said if he was wrong, this cause was within the exception contained in the fourteenth section of the Act, because Mrs. Freeman, a daughter of Tucker, was an heir at law of Tucker, with a widow having a minor child, who was interested in this suit. The Court dismissed the cause. That is assigned as error.</p>

<p>Practice. Mortgage sales. Principal and Agent. Charge of the Court. Mistake at sheriff’s sale. Before Judge Alexander. Pulaski Superior Court. April Term, 1871.</p> <p>This case is reported in the opinion.</p>

Corporations. Condition precedent. Before Judge Alexander. Pulaski Superior Court. April Term, 1871. On the 13th of March, 1866, Fulgam and others signed the following paper, at Hawkinsville, Georgia: “We, the undersigned, agree to pay to the Macon and Brunswick Eailroad Company the amount set opposite our names, respectively, for the true payment of which we bind ourselves, upon the demand of said railroad company, or their agent.

<p>Complaint from Mitchell County.</p>

Factor’s lien.- Homestead exemption. Before Judge Strozier. Dougherty Superior Court. June Term, 1871. N. & A, F. Tift, factors, made advances to Newsom “ for the purpose of sustaining the plantation, ” ofNewson, “and his family, and in payment of the labor and other current expenses of said plantation,” and he gave them a written factor’s lien upon the growing crop, etc. They foreclosed this lien and had the_/L fa. levied upon part of said crop.

Tax. Costs. Sheriffs. Before J udge Strozier. Worth Superior Court. May Term, 1871. Keen, as sheriff, claimed that Worth county owed him costs for levying certain county tax fi. fas. and advertising sales thereunder. He admitted that the property was not sold because the fi. fas. were illegally issued, and yet he asked that the Ordinary be compelled to direct the treasurer to pay his costs. Court refused to grant the maildamus. This refusal is assigned as error.

<p>Ejectment. Homestead. Before Judge Alexander. Mitchell Superior Court. November Term, 1871.</p> <p>This was ejectment by Mrs. Faircloth against St. Johns. So much of the proceedings below, as is necessary for an understanding of the opinion, is as follows: She showed the bous and tenancy and title in her husband; that he died and she took possession of the land, and had it set apart to Ter for a homestead of herself and minor children, and closed. Defendant showed the following facts: Faircloth sold the land to one Settles, took his two notes for $1,000 00 and $500 00, for the purchase-money, and gave him possession and a bond for titles, upon payment of said notes; that Settles paid the $1,000 00 note, Faircloth transferred the $500 00 note to Crawford and indorsed it; Faircloth died; Settles moved West, and Faircloth’s administrator put Mrs. Faircloth in possession of the land; Crawford indorsed said note to Jackson, and Jackson indorsed it and sold it to ...... This last owner of the note sued Faircloth and Crawford and Jackson, as indorsers on said note, obtained judgment and levied on the land as Faircloth’s property. Before the sherifPs sale, Mrs. Faircloth applied to have said land set apart as a homestead for her and her children. At the sheriff’s sale, notice of the pendency of this petition for homestead was given, but the sheriff proceeded to sell the land, and it was bid off by Crawford and Jackson. They took the sheriff’s deed and St. Johns, who held as Mrs. Faircloth’s tenant, attorned to them. Subsequent to the sheriff’s sale, the homestead was set apart as prayed for. The Court charged the jury that Mrs. Faircloth took said homestead subject to any equity growing out of the facts, and that the homestead was defeated by a sheriff’s sale of the land, under a judgment founded upon a note for its purchase-money. The jury found for defendant. The charge is assigned as error.</p>

<p>(B.v two judges.) When a motion was made to set aside a verdict on the ground that the defendant — the loosing party — was prevented from attending the trial by serious sickness:</p> <p>Held, That in such a case it is not necessary to file a brief of the testimony given at the trial, and it may be error in the Court to refuse the motion for that reason. 20th February, 1872.</p>

<p>Ejectment. Prescription, etc. Before Judge Clark. Sumter Superior Court. April Term, 1871.</p> <p>For the facts see the opinion.</p>

<p>(Bv two judges.) 1. A new trial will not be granted only because a verdict is too small in trespass vi et armis, unless it is shockingly against the evidence. (R.)</p> <p>2. Where, in an action for damages for an assault and battery by the defendant upon the plaintiff, the defendant was a witness and was examined in full upon the cáse, and during the trial a bill of indictment, with a plea of guilty, for the same beating, and a judgment affixing a fine of two hundred dollars was introduced by the defendant in mitigation of damages — and after the evidence was closed and the argument of the counsel on both sides to the jury concluded, the Court permitted the defendant to be re-introduced for the purpose of stating fa'cts calculated to show that he had pleaded guilty under a mistaken impression deprived from the Solicitor General, that it would be cheaper to plead guilty than to attempt to defend and that the fine would be very small :</p> <p>Held, That, if no reason was shown why this evidence was not offered before the case was closed and the argument heard, the admission of it, at the time, was not fair to the plaintiff, and a new trial ought to be granted.</p> <p>3. Whether the evidence was admissible is questionable. (R.) 20th February, 1872.</p>

<p>(By two judges.) If a levy be made of a fi. fa. founded on a debt contracted prior to June, 1865, and there be no affidavit of payment of taxes, as required by tbe fifth section of the Act of 1870, the defendant may stop the progress of they?, fa. by affidavit of illegality. 27th February, 1872.</p>

<p>Relief Act of 1870. Tax. Before Judge Clark. Sumter Superior Court. October Term, 1871.</p> <p>This was complaint by Brewer, as agent of Kapp & Daun, upon two notes made by Broadfield. in 1862, at Americas, ■Georgia, payable to Kapp & Daun, or bearer. The case was dismissed under the circumstances stated in t.he opinion. '.That dismissal is assigned as error.</p>

<p>Illegality. M. fas, Administrators. Tried before Judge Clark. Sumter Superior Court, October Term, 1871.</p> <p>The facts are in the opinion.</p>

Injunction. Nuisance. Before Judge Clark. Sumter Superior Court. October, 1871. Nelms averred as follows: He had for ten years owned a plantation, on which was a good and commodious dwelling, within a quarter of a mile of a good mineral spring, belonging to Glass. Nelms’ family lived in the dwelling, enjoyed excellent health and fine social intercourse with the many visitors to said springs.

<p>(Bt two judges.) 1. Where the bill of exceptions and the record are variant the latter governs.</p> <p>2. Where counsel moved a continuance on the ground of sickness of his client, and stated in his place that he could not safely go to trial because he needed his client to prove his plea of relief, and the opposing counsel offered to admit the facts stated in such plea, the motion to continue was properly overruled.</p> <p>3. Papers which are not properly a part of the record, though embodied in it, will not be considered by this Court.</p> <p>4. Where a verdict and judgment are had against two defendants, on a joint and several contract, and it appears that one was never served, •the verdict and judgment are void, only as to the one not served; the other can take no advantage of the error.</p> <p>5. The verdict in this case was not contrary to equity and justice, nor to the evidence. 5th March, 1872.</p>

<p>(By two judges.) 1. When a defendant permitted judgment to be obtained against him after the passage of the Belief Act of 1868, he has had his day in Court, and cannot afterwards open the judgment to let in the defenses provided for by that Act.</p> <p>2. When a levy was made prior to the Belief Act of 1870, but no sale has taken place, the plaintiff in A fa. is not obliged to attach his affidavit of the payment of taxes to the execution, under the fifth section of that Act, so long as he takes no steps to force a sale. 20th February, 1872.</p>

Relief Act of 1870. Before Judge Clark. Sumter Superior Court. October Term, 1871. Carhart & Curd sued Bivins upon his note, made in 1861. Before trial, affidavit of payment of taxes, as required by the Relief Act of 1870, was filed. On the trial, Curd testified : “I gave in my taxes in bulk, or rather returned in bulk all taxable property I owned, and have regularly done so for each and every year from the time I first owned said note to the present time.

<p>Relief Act of 1870. Before Judge Clark. Sumter Superior Court. December Term, 1871.</p> <p>For the facts see the opinion.</p>

<p>(By two judges.) 1. Where a widow, as administratrix of her husband, sues on a note made prior to June 1st, 1865, and offers to'prove that herself and her minor children are the sole heirs of her intestate, that there are no creditors, and that the entire assets of the estate are less than the amount exempt under the homestead laws, the case should not be dismissed for want of the tax affidavit, under the Relief Act of 1870. Had the proof been made, it would have brought the case within the 14th section of that Act.</p> <p>2. Where a tax-payer returns notes held by him in bulk, at what he considers them worth, and pays the taxes regularly on the gross amount so returned, it is a sufficient compliance with the Act to carry the case to the jury. 20th February, 1872.</p>

<p>(By two judges.) Where an accommodation indorser on a note made prior to June, 1865, has been compelled, by judgment, since that time, to pay the same or any part thereof, and sues the maker, securities and prior indorser, to recover the amount so paid by him, he is not obliged to file the affidavit of the payment of the taxes required by the Relief Act of 1870. The debt to him did not exist until the payment of the judgment by him. 27th February, 1872.</p>

Administrators. Injunctions. Before Judge Clark. Chambers. Sumter county. January, 1872. Eor the facts upon which the injunction complained of was granted, see the opinion. The cross-bill was to enjoin the administrator from selling the personalty, under the order of the Ordinary. (The cause here was at the heel of the circuit, and unexpectedly reached.

<p>A judgment of a Judge of the Superior Court overruling a demurrer to a bill is not a proper subject matter for the consideration of this Court in a bill of exceptions brought here under the provisions of the Act of October 29th, 1870.</p>

Parties to Suits. Transfer of Contract for Specifics. Before Judge Hark ell. .Terrell Superior Court. May Term, 1871. C. H. Strong sued, for the use of A. C. Schaeffer & Company, Cochran as maker and King as indorser of the instrument copied in the opinion. Defendant contended that King was not liable on his said indorsement, and that suit on said paper could only be brought by King for the use of the party having the beneficial interest in the paper.

Ejectment. Evidence. Fraudulent conveyances. Sayings of party in possession. Practice in Superior and Supreme Courts. Presumptions. Before Judge Harrell. Quitman Superior Court. May Term, 1871. This was ejectment by. Doe, upon the demises of John W. Hatcher, as trustee for his named children and of Bird W. Tarver against Roe, casual ejector, and L. L. Harrison, tenant, for land in said county. It was begun on the 12th of October, 1869.

<p>(By two judges.) — 1. Where in ejectment plaintiff shews title from the State to himself, and defendant relies on adverse possession under color of title, it is competent for plaintiff to show, in rebuttal, infancy on the part of one of his grantors, even after the evidence has closed and argument commenced, if the existence of such fact then come to his knowledge for the first time.</p> <p>2. When a party claims adversely it is not necessary for him to shew that he went into possession bona fide. This will be presumed until the contrary appears. 27th February, 1872.</p>

Bailment. Garnishment. Before Judge Harrell. Terrell Superior Court. May Term, 1871. Hodges Brothers had a claim against one Mann, and garnisheed Loyless. He answered that he neither owed Mann anything, nor had any property or effects of his in his hands when he was garnisheed. This answer was traversed.

<p>(By two judges.) 1. It is necessary for an administrator to file the tax affidavit required by Act of 1870, even though there are no debts, and a widow and minor are interested with others in the estate.</p> <p>2. Every presumption will be made in favor of the constitutionality of an Act of a State Legislature. Where this Court has decided an Act of the Legislature constitutional, under which decision many private rights have been settled, and to disturb which might unsettle many others, and perhaps prove a great hardship to the plaintiffs in those oases already adjudicated, the doctrine of stare decisis applies. 27th February, 1872.</p>

<p>Taxes. Relief Act of 1870. Before Judge Harrell. Terrell Superior Court. May Term, 1871.</p> <p>Cary, Bangs & Woodward sued Edmondson upon his promissory notes dated in 1860, and purporting to have been made in Baltimore. He filed several pleas, one of which was that he ought to pay no interest because “said notes were held during the war by the parties who resided in the city of Baltimore and could not be paid.” Because no affidavit of the payment of taxes had been filed under the Relief Act of 1870, the Court dismissed the cause, although their “ attorney stated and offered to prove that they were non-residents.” This is assigned as error.</p>

<p>(By two judges.) — 1. Where the amount due on a life insurance policy is payable in Hartford, Connecticut, to the “heirs or assigns” of the person whose life was insured, who leaves a will bequeathing all his property to his children, to the exclusion of his widow, and the agent of the insurance company pays the money to his administrator with the will annexed, the administrator is justified in filing a bill for direction as to the fund.</p> <p>2. Pending the litigation the administrator is not liable to pay interest on the fund where he has made none. 27th February, 1872.</p>

<p>Lien of Judgments. Waiver. Before Judge Harrell. Clay Superior Court. September Term, 1871.</p> <p>Pace sued out a distress-warrant for rent against Jones & Jones, and under it sold certain cotton. Ketchum & Hart-ridge claimed that the proceeds should be paid to them, and Pace denied their right to it. On the trial the following facts appeared : Before this cotton was levied upon, the distress-warrant had been levied upon ten mules and horses, worth §1,300 00, and said cotton, which were left on defendant’s place by order of Pace. When the sheriff went back the next day or the day after that, these mules and horses were gone. Afterwards, under instructions from Pace’s attorney, he erased that levy as to the mules and horses from the warrant. The mules and horses levied upon had been mortgaged to Ketchum & Hartridge, and Jones ran them off after said levy. Pace’s attorney ordered the sheriff to dismiss the levy as to the mules and horses, because after they were levied upon he learned that they were covered by said mortgage which had been foreclosed. The mortgage fl. fa. put in evidence covered these mules and horses. It was conceded that Pace’s lien was superior to that of the mortgage as to the cotton ; but it was contended that the dismissal of the levy as to the mules and horses was prima facie satisfaction of the distress-warrant to the extent of their value, and that the explanation of the dismissal was insufficient to remove that difficulty, especially as by the levy, etc., Pace had caused these mules and horses to be put out of the way of the mortgage.</p> <p>The Court charged the jury that an unexplained levy on personalty raised a presumption of payment to the extent o f the value of said personalty; but that if the levy was dismissed because it was ascertained after it was made that the property could not be subjected to the payment of the distress-warrant, because it was subject to a prior lien of a mortgage that was a sufficient explanation to remove the presumption of payment. He further charged that a mere levy and dismissal, under the circumstances, would not make Pace chargeable with having caused the property to be run off. The jury found for Pace. A new trial was moved for upon the ground that said charge was wrong. The Court refused a new trial, and of that complaint is made here.</p>

<p>Relief Act of 1870. Practice in Supreme Court. Before Judge Harrell. Randolph Superior Court. May Term, 1871.</p> <p>This was a suit in the name of Carhart, as bearer, against West et al., upon their note made in 1860. He filed no affidavit as to payment of taxes. But one Atkinson, whose name did not appear in the declaration, and who made, so far as the record shows, no explanation of his connection with the suit, filed an affidavit that he “ is the real plaintiff in said cause,” and that he had paid all taxes required by the Act of 1870. Por want of such affidavit by Carhart the Court dismissed the cause. That is assigned as error.</p> <p>The bill of exceptions recited that the cause was tried at May Term and the assignment of errors therein began: “ And now, on this the 20th of June, within thirty days from the adjournment of said Court, the plaintiff excepts,” etc. It was certified by the Judge on the 30th of June, without any explanation by the Judge why he had held it up. When the Court did adjourn did not appear. Counsel for defendant moved to dismiss the cause because it did not appear that the bill of exceptions was certified within thirty days from the adjournment of the Court. No point was raised as to a want of any explanation of the Judge’s delay. The Court held that the certificate of the Judge covered the recital above quoted and refused to dismiss the cause upon the ground that it affirmatively appeared that the bill of exceptions was tendered to the Judge within thirty days from the adjournment of the Court.</p>

<p>(By two judges.) — 1. Where there were two suits pending'between the same parties for the same cause of action, and the defendant makes a good cause for the continuance of the suit last brought, to-wit: that certain interrogatories sued out therein had not been returned :</p> <p>Held, That it was error in the Court to refuse the continuance because the plaintiff had dismissed the suit first brought.</p> <p>2. If pending a suit, another be brought against the same defendant for the same cause of action, the pendency of the first suit may be pleaded in abatement of the second, and the plaintiff cannot defeat the plea by dismissing the suit first brought. 27th February, 1872.</p>

<p>Parol to vary writing. Before Judge Harrell. Stewart Superior Court. October Term, 1871.</p> <p>The opinion reports the facts.</p>

Homestead. Conclusiveness of judgments. Before Judge Harrell. Terrell Superior Court. November Term, 1871.. Colquit & Baggs, as merchants and factors, furnished to-Mr. Harris provisions to enable him to make his crop in-1870, taking a factor’s lien upon the crop to be grown. In the fall of 1870 they foreclosed the lien and had the fi. fa... levied upon corn and cottcn, which were part of said crop.