Volume 45 — Georgia Reports

<p>(By two judges.) 1. Where the sureties on a criminal bond, which has been estreated, and on which the usual sci. fa. was issued, offer, on a motion to enter up judgment on the bond, at the return term of the sci. fa., to prove the principal is too sick to appear, they should be permitted to do so. The proof made, it would entitle them to a continuance.</p> <p>2. Where judgment has been entered on such a bond, at the return term of the sci. fa-, and, during the term and before the juries were discharged, the sureties brought their principal into Court, surrendered him to the sheriff, offered to pay all costs and excuse themselves for not bringing their principal sooner, by showing his serious illness, and then moved to vacate the judgment, the motion should have been allowed. 5th March, 1872.</p>

Criminal Law. Jury. Pleading. Before Judge Harrell. Randolph Superior Court. November Term, 1871. The indictment charged that Cobb permitted a minor, without the consent of his parents, “ to play or roll billiards,” on Cobb’s billiard table. After the jury was stricken Cobb’s counsel demurred to the indictment upon the ground that it contained “two distinct offenses.” The demurrer was overruled.

Misrepresentation. Equity Practice. Before Judge Harrell. Randolph Superior Court. November Term, 1871. The error assigned in this case is the dismissal of plaintiff’s bill upon a demurrer averring, among other grounds, that plaintiff’s remedy was complete at law. The averments of the bill are stated in the opinion.

Ejectment. Evidence. Amendment. Before Judge Harrell. Randolph Superior Court. November Term, 1871. Allison, as administrator of Key, brought ejectment against Elder. Elder pleaded the general issue. On the trial it was admitted that Key had titles to the land, and that Elder had possession of it when the suit began, under a bond for titles from Key. That bond was in evidence.

<p>By two judges. — Where a motion to dismiss a pending suit was made, on the ground that uo affidavit was filed as required by the first section of the Act of October 13th, 1770, and the record showed that the note was payable to Richard Sammis, with no words of negotiability, and the suit was in the name of two females, administratrixes and sole heirs at law of Richard Sammis, and it was in proof that the plaintiffs were widows and sole heirs of Sammis, and the Court refused to dismiss the suit:</p> <p>Held, That the proof that the plaintiffs were the owners of the note in their own right is not entirely satisfactory, yet, as the Court was satisfied with the proof, this Court will not disturb the judgment, leaving it to the parties more fully to test this question of the true, equitable ownership of the note before the jury on the trial. 5th March, 1872.</p>

Taxes. Relief Act of 1870. Minors. Before Judge Johnson. Muscogee Superior Court. May Term, 1871.

Taxes. Relief Act of 1870. Tried before Judge Johnson. Muscogee Superior Court. May Term, 1871. Dawson averred that, in 1864, he delivered to Ivy & Garrard, as warehousemen, for safe keeping and redelivery to him on demand, certain cotton,, that he demanded the same from them on the 1st of January, 1866, and they did not deliver it. He filed no affidavit as to taxes being paid on said debt. For want of such affidavit, defendant’s council moved to dismiss the cause.

<p>Taxes. Relief Act of 1870. Before Judge Johnson. Muscogee Superior Court. May Term, 1871.</p> <p>In February, 1864, Alexander brought suit in which he averred that in March, 1863, at Mobile, Alabama, and Charleston, South Carolina, he entrusted certain goods to said company as a common-carrier, to be delivered to him at Columbus, Georgia, and that the company failed to deliver them, to his damage, etc. He had filed no affidavit as to payment of taxes on this debt as required by the Act of 13th October, 1870, and for that the Court dismissed the cause. That is assigned as error.</p>

<p>Claim. Party as witness. Relief Act of 1870. Before Judge Parrott. Cobb Superior Court. October Term, 1871.</p> <p>In September, 1861, Anderson obtained a judgment against Heggie, principal, and Husk, security, for $1,075 00, with interest from the 1st of January, 1861. The fi. fa. issued upon said judgment was levied in March, 1869, upon certain property as Husk’s property. This was claimed by Wilson. In April, 1871, Anderson made an affidavit as to the payment of taxes as required by the Relief Act of 1870, and filed it in office. In October the cause was tried.</p> <p>It was admitted that Husk had owned the property since the rendition of the judgment. Plaintiff’s counsel read in evidence said fi. fa. and affidavit, and then offered Anderson, as a witness, to prove by him that he had paid all legaL taxes due on the debt. He was objected to upon the ground that Husk was insane. It was shown that Husk was “imbecile and wholly incapable, from a decay of mind, to transact any sort of business or to recollect transactions in the past.” Thereupon the Court held Anderson to be incompetent to testify in his own behalf. And because no other evidence of the payment of taxes was offered, he dismissed the levy. Both these decisions are assigned as error.</p> <p>Relief Act does not apply to claim cases. Anderson was competent, maugre Husk’s insanity: 10 Ga. R., 568; 11th, 423.</p> <p>The Relief Act does apply to claim cases. Anderson was not competent, Husk being insane: Revised Code, section 3798; 37 Ga. R., 118. Payment of taxes cannot be shown by oral evidence, (Revised Code, section 3707,) unless the written evidence is accounted for.</p>

New trial. Absence of counsel. Before Judge Parrott. Cobb Superior Court. October Term, 1871. At October Term, 1869, of said Court a rule nisi was granted in favor of Beall for foreclosure of his mortgage against the Marietta Paper Mill Company, a corporation.

Corporation. Evidence. New Trial. Before Judge Parrott. Lumpkin Superior Court. September Term, 1871. King brought assumpsit against said company, a corporate body of this State, for his services as its treasurer, and for money paid out by him for the company to carry on its mining operations in Georgia. The defenses were non assumpsit and that King had failed to perform his duty.

Criminal law. Before Judge Clark. Macon Superior Court. May, 1871. Holsenbake was indicted for murdering George W. Fish, in said county, on the 28th of February, 1871, by shooting him. He was tried in May, 1871.

<p>Criminal Law and Pleading. Before Judge Clark. Macon Superior Court. May Term, 1871.</p> <p>In the same bill of indictment, John R. Holsenbake was indicted for murdering George W. Fish, and James C. Loyd, was indicted for being accessory before the fact. The first count was against Holsenbake, as principal perpetrator, and began and concluded in the forms required by section 4536 of the Revised Code. But the second count, which charged Loyd, while it concluded with “ contrary to the laws of said State,” etc., as is required by said section, began simply, “and that James C. Loyd, etc., omitting the form prescribed in said section: “And the jurors aforesaid, in-the name and behalf of the citizens of Georgia,” etc. When the cause was called, defendants said they would sever, and the Solicitor General stated that he would put Holsenbake on trial first. He announced ready. The Court asked if Loyd was also ready. His counsel objected to his announcing till Holsenbake was tried. The objection was overruled. Loyd moved for a continuance upon the ground of the absence of Culverhouse, one of his attorneys, making affidavit that Culverhouse was one of his original counsel and an old acquaintance and friend of Loyd, and, therefore, he principally relied on Culverhouse, and that he “ was informed by letter that Culverhouse’s wife was dangerously ill, and too ill for his attendance on Court.” The defendant being represented by other counsel, the motion to continue was overruled. Loyd demurred to the indictment because the count against him did not begin and conclude in the form required by law, and because he and Holsenbake were jointly indicted, one as principal and the other as accessory. This demurrer was overruled. Loyd was then sent back to jail, and Holsenbake was tried and convicted. Loyd was then brought out for trial. His counsel moved again to continue because Holsenbake’s counsel were preparing a brief of evidence and bill of exceptions in Holsenbake’s case, and had filed Holsenbake’s pauper affidavit to supersede the judgment against him. The Court refused to continue the cause.</p> <p>The panel of jurors who tried Holsenbake were discharged. But during his trial many persons were in the Court-room, and heard the evidence in Holsenbake’s case. When the first jurot was put upon Loyd, the Court instructed him and the other persons of the panel, that the formation and expression of an opinion as to Holsenbake’s guilt or innocence did not disqualify them to try Loyd; that they were not disqualified in this case unless, from seeing the crime committed, or having heard part of the evidence delivered on oath, they had formed and expressed an opinion as to the guilt or innocence of Loyd. These instructions were protested against by Loyd’s counsel. The jury was impanneled, Loyd’s peremptory challenges not having been exhausted. The State introduced the record of Holsenbake’s conviction over defendant’s objection. The State showed that Fish was killed when, where and in the manner charged, and that certain paper gun-wads were found near his person. One Rasberry testified that Loyd showed him the room in which Holsenbake slept on the night of the killing, and that he found there gun-wads like those found near Fish’s body. He further testified that, as a detective, he was concealed in the jail, and overheard a conversation between Holsenbake and Loyd; that Holsenbake asked Loyd if he believed Fish had improper intimacy with his, Holsenbakc’s, wife, and Loyd stated various things inducing him to that belief, and said he did so believe; that Loyd said Fish had caused his, Loyd’s, dismissal from the the post-office; that Holsenbake said, “ no one knows of this but us,” and Loyd replied that he did not know whether that was true; Holsenbake said if he had loaded the gun with paper instead of those wads there had been no clue to the slayer; when Loyd said he did not see how the wads could furnish a clue, as he had given such wads to many persons, some to negroes. Holsenbake asked Loyd if he did not, think his first plan would have been better, and if it would not have been best to kill Mrs. Holsenbake’s father first, and Loyd replied “ yes, for I thought her father was at the bottom of the whole difficulty;” Holsenbake asked Loyd if he did not think it would have been better to have done it at the church, Loyd evaded the question, and whispered, saying he thought he heard some one eavesdropping. They talked again ; again referred to the wads, and Loyd also mentioned about Fish’s having fenced up a road, but stated that he did not have anything against him for that. He asked Holsenbake whether he used his big pistol or his shot-gun, and Holsenbake said he used his gun. Witness said he had no interest in convicting Loyd, he had been a policeman in Atlanta, and had received $>100 from the Ordinary of said county as a token of his services, and $215 to pay his expenses from Atlanta. Murphy, another detective, who was also hid with him in jail when said conversation occurred, said he did not hear all the conversation because sometimes they whispered. Because he did not hear all, the defendant’s counsel moved to rule out that part which he did hear, but the Court refused to do so.</p> <p>The gun and wads were introduced. The State then read in evidence a copy of Loyd’s statement made on the committing trial, which copy the phonographer swore he wrote in short-hand when the statement was made, and afterwards copied correctly. This was put in over defendant’s objection. It appeared that it took Loyd three hours to make it. It was a review of Loyd’s conduct as Postmaster, Revenue Collector and Registrar, and many things wholly impertinent to the issue. But in it was stated that Holsenbake was, for sometime before the killing, staying at Loyd’s house, was very much exercised because his wife had been divorced from him, and blamed Fish for supposed intimacy with her, and threatened to kill Fish and her father; and that Loyd, supposing Holsenbake would do no such thing, jocosely said “yes, kill them all;” but that when he talked seriously, he told Holsenbake that such conduct was horribly wicked, etc. He admitted that Holsenbake got the wads from him, but it appeared that Loyd was a great hunter and had several guns and much ammunition in his house.</p> <p>Another witness testified that, after the killing, he applied to Loyd to buy a shot-gun, when Loyd said that witness did not. want to buy any gun, but simply to examine or measure his guns, and would not sell one. Another testified that Loyd said he heard his dogs bark furiously just after the shooting, and heard Holsenbake coughing, but that while Holsenbake might have done it, he did not see bow he could have been the slayer. There was also evidence that Loyd had said that if five or ten men would join him he would tear down said fence which Fish had built.</p> <p>The defendant introduced various witnesses to prove that Holsenbake was insane. They stated how he behaved, hanging about the house of his divorced wife, etc., but all stated that they believed that he knew it was wrong to kill any one. Loyd’s wife was offered as a witness, but the Court held her to be incompetent.</p> <p>In rebuttal, Mrs. Holsenbake testified that she had given* Holsenbake no reason to suppose she would ever remarry him, but had repulsed him, and explained what little wrtten communications had been had between them since the divorce. The record of the divorce was introduced. The State closed.</p> <p>Loyd then made a statement which occupied over four hours. It is substantially the same as the other. Whilst he was making it the Court said, “I cannot indulge you in this line of remark. You have stated, perhaps, a thousand things that can have no connection with the merits of the case. You are free to state any and every fact having the least relevancy to the case, and having a bearing on your guilt or innocence, and are invited to do so; but you must condense your thoughts, and bring your mind to bear upon things material and neccessary to be said, to show that you are not guilty, or that Holsenbake is not guilty, and not ramble off upon immaterial subjects. You have spent four hours in your statement which could have been rendered in a shorter time.” The Court charged the jury as follows, reading to the jury the sections of the Code therein marked, defining the crime, etc.:</p> <p>It is the duty of the State to make out, by proof, to your satisfaction — 1. That George W. Fish was murdered by some one in this county. 2. That John R. Holsenbake was the aetual perpetrator of the crime, or the person who killed Fish, and that Holsenbake has been guilty of the crime. 3. That Loyd, the defendant, though absent at the time of the killing of Fish, did procure, counsel or command Holsenbake to commit the crime. Murder: Code sections 4254, 4255, 4256, read. Accessory: Code sections 4241, 4242, read.</p> <p>If the State has shown to your satisfaction that Fish was murdered, that the crime was committed by Holsenbake, that Holsenbake has been covicted by the verdict of a jury, that Loyd was absent at the time of the killing, but that, though absent, he did counsel or procure Holsenbake to kill Fish, then it will be your duty to find Loyd guilty, unless lie has shown you that he is not guilty.</p> <p>The bill of indictment and the verdict of the jury of guilty as to Holsenbake, in the case of The State vs. Holsenbake, as principal, and Loyd as accessory before the fact, is proof conclusive of the fact that Holsenbake is regularly convicted of the crime of murder. The defendant, Loyd, cannot deny this fact.</p> <p>Such a bill of indictment and verdict of guilty as to Holsenbake, is prima facie evidence or presumptive evidence of Holsenbake’s guilt. This means that, upon such a bill of indictment and verdict of guilty being introduced, in evidence, by the State, it is not necessary for the State to introduce other evidence of Holsenbake’s guilt, but in such a case the burden of showing that Holsenbake was not guilty is upon Loyd.</p> <p>That bill of indictment and the verdict of the jury is only prima facie evidence of Holsenbake’s guilt, it is no evidence of Loyd’s guilt. The State must make out Loyd’s guilt by the usual modes — that is by such other proof as satisfies you that he is guilty.</p> <p>The verdict of guilty is also prima fade or presumptive evidence that Holsenbake, at the time of the commission of the crime, was not a lunatic, but a person of sound memory and discretion, and capable in law of committing the crime; and if defendant seeks to set up the lunacy of Holsenbake, he must prove it.</p> <p>The defendant sets up as a defense to this prosecution : 1. That he is not guilty, that if Holsenbake did kill Fish, he, Loyd, did not procure or counsel Holsenbake to commit the crime. If this defense is sustained, or the State has failed to show that Loyd did procure or counsel Holsenbake, then defendant is not guilty, and you should so find.</p> <p>Defendant, Loyd, further sets up as a defense, that if Holsenbake did kill Fish, Holsenbake was a lunatic at the time, that he was not of sound memory and discretion, and that, if he was a lunatic, he could not be guilty of crime, and if such is the fact, he, Loyd, is not an accessory before the fact, but should have been indicted as the principal perpetrator of the crime, and not as accessory before the fact. He read Code, section 4223. If Holsenbake was a lunatic when he killed Fish, and Loyd caused him to kill him, Loyd should have been indicted as principal and not as accessory. And if such is the fact, you cannot find him guilty as accessory before the fact; and as he is not charged in the bill of indictment as principal, it will be your duty to acquit him by a verdict of not guilty, if you believe that Holsenbake was a lunatic at the time of the killing. But in such a case as this, if Loyd pleads the insanity of Holsenbake as a reason why he should not be convicted as an accessory before the fact, it is his duty to prove the fact to your satisfaction, so that you shall have no reasonable doubt in your mind as to Holsenbake’s insanity. If Holsenbake were now on trial, and you had reasonable doubts as to his sanity or insanity at the time of the commission of the deed, you might possibly give Holsenbake the benefit of the doubt and find him not guilty. But when Loyd pleads it he must remove all reasonable doubt from your minds. He must satisfy you, beyond all reasonable doubt, that Holsenbake was a lunatic. It may be possible for Holsenbake to have raised reasonable doubts in order to have demanded a verdict of not guilty; something more than this is required of Loyd. He must not merely raise doubts of the lunacy of Holsenbake, but he must go further and remove the doubts, and leave your minds without a reasonable doubt. He must clear the mist, and leave you reasonably certain in your minds that Holsenbake was insane. If he so far fails as to leave you in doubt whether Holsenbake was sane or insane, you will be compelled to disregard the plea. There are certain baser passions of our nature which require the constant restraint of a sound and well-balanced judgment to keep them within proper bounds. Unrestrained and uncontrolled they pervert the moral sense, degrade the intellect, and lead to the commission of those offenses and crimes which have, in all ages, demanded the interposition of the law, in order to protect society from their consequences.</p> <p>Man owes no greater duty to himself than, by the constant use of checks and restraints, to so far subdue the passions as to bring them under the control of the reason and judgment. "Whenever he fails to do this, and gives a loose rein to their indulgence, he loses the mastery over himself, at once degenerates to the lowest condition of vice and becomes a dangerous member of society.</p> <p>These passions grow upon what they feed upon; and when constantly supplied with food from the suggestions of an evil and corrupt nature, they as certainly control us, debase our better nature, make us subject to their unruly behests, as effect follows cause, in the operations of nature, and man descends from his high estate of honor, of integrity and of virtue, to a condition more closely resembling, in his baser nature, the brute creation than the intelligent being whom a wise Creator has made in His own image, and placed on the earth for wise purposes — purposes not inconsistent with the happiness of man and the glory of his Maker.</p> <p>Envy is one of these passions. It exists, to a greater or less degree, in the breasts of all people, and when not properly controlled it not unfrequently becomes a consuming flame. It is condemned as a base passion by the good sense and intelligence of the race. Some people are peculiarly under the influence of it, so much as to unfit, them from according merit where it belongs. Some men are supposed to be subject to it more than others, so much so at times as to warp the judgment, and impair the moral sense. While its indulgence is disreputable and even sinful, the law cannot interfere. It only interposes when crime results and the envious man has become so much of a slave to his passions as to become a criminal.</p> <p>Ambition is a strong passion. When directed to good purposes and good ends, it is a prompt stimulant to exertion, and one of the great elements of success, in all the avocations of life. But when released from wholesome control, it soon overleaps all bounds of virtue and propriety. It hesitates at no obstacle in the way of success, but uses the good and bad'alike for purposes of its own advancement. The world has been deluged with the blood of millions to promote the ambitious views of unscrupulous men. While the law frequently cannot reach these, its greatest violators, they are, nevertheless, amenable to the unprejudiced and sober verdict of mankind and the impartial Judge of all the earth for the enormity of their crimes and transgressions.</p> <p>Hatred is another one of the bad passions that spring from the corruptions of the heart. It is condemned by that great moral law which Infinite Wisdom has prescribed for the conduct of man. To hate our neighbor is a crime and a vice against the moral law. But men will hate one another, and, in order to justify this basest of the passions of the heart, will concoct and carry out schemes of mischief that result in death, and that bring sorrow and grief into innocent households.</p> <p>Jealousy is another one of the passions. It cannot be said that a reasonably jealous care over the reputation of ourselves, or those who are connected to us by ties of blood or family relationship, is improper. But it degenerates into a vice when it so far masters the judgment as to become a controlling passion. Love is a fruitful source of jealousy; and the history of mankind affords numberless instances of men and women who have fallen victims to the unholy indulgence of this passion. It poisons the affections, contorts the judgment, creates unusual and unaccountable suspicions, and prepares the mind for the commission of any crime, however heninous in its character, or destructive in its results.</p> <p>One of the great objects and purposes of law is to prevent men and deter them from the unbridled indulgence of these passions; and while it cannot destroy them, it can, by wholesome restraints and adequate punishment, force men to keep their passions within reasonable bounds, and under the control of a reasonable judgment, so that no harm can come to others from their indulgence.</p> <p>We are invested with these passions, and they are permitted by the kind Author of our being for wise purposes; they have their proper place in the making up of our moral and intellectual constitution. The cultivation of the better parts of our nature, and the control of the evil and grosser passions, ennobles man, and prepares him for all the higher and nobler duties of life; while unchecked indulgence in the evil passions debases his nature, and prepares him for the commission of crime of all grades, and renders absolutely necessary the interposition of law, in order to protect society, and save it from the evil purposes of bad men. But the sinful indulgence of these passions, even until the mind has been poisoned, and the better judgment has been brought under complete'control, so that the conscience is blunted, and the moral senses have lost their acuteness, does not make the man a lunatic.</p> <p>The thief who has stolen so often and so much as to lose all sense of degradation, and feels no compunction for the crime, is not a lunatic. The jealous man who permitted an evil passion to master him, and who, in consequence, dips his hand in the blood of his victim, is not a lunatic, merely because nothing else will satisfy him but the blood of his rival. The man who hates his neighbor, and who has suffered this evil passion to warp his nature and fire his brain, until he gets his consent to waylay and assassinate the object of his vengeance, is not a lunatic.</p> <p>To allow for a moment such a plea as this upon the ground that the evil passions had controlled the better parts of man’s nature, and that the free indulgence in them had broken down the restraints that every virtuous man uses to control himself, would at once precipitate upon the country the most deplorable results. The wicked man, who has been a prey all his life to evil passions and evil influences, would at once receive a license to practice upon the community the most henious crimes, and, when charged with them, screen himself behind the plea of lunacy. The consequence would be, that the whole country would be flooded with crime— murder, arson, burglary, adultery, and all the offenses known in the calendar of the worst countries, and among the lowest classes of our race. Every man who has his moral senses so far blunted as to allow him to commit crime is not a lunatic. This condition of want of moral sense and blunted perceptions is really the condition of every man who deliberately perpetrates a crime. He does not see the offense, and cannot see it in the same light and with the same disgust that one of more elevated'and purer moral sentiments would see it. If, from any cause, the mind is so far diseased that it cannot discern between right and wrong, the perpetrator of a deed, while in such a condition, is a lunatic, and, as a lunatic, he is not responsible for the commission of crime. One who is a lunatic cannot commit a crime. He is not in a state of mind to be responsible either to God or man for his conduct, while in such a state of mental alienation. Lunacy is a visitation of God; and when God’s hand has thus been laid heavily upon the man, and He has drawn a veil over his intellect, so as to destroy the distinction between right and wrong, as to the deed about to be committed, the unfortunate man ceases to be a moral agent, and there is no power to punish him. Accountability to the law of God and man ceases when reason ceases. But if reason has its sway so far as to allow him to see and discern the right and wrong of the deed about to be done, and to know that it deserves punishment, he is accountable, both to the law of God and man, for the deed. The law, upon this subject, is fully and concisely stated by the Supreme Court, in these words: “If a man has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act in question, if he has knowledge and consciousness that the act he is doing is wrong, and would deserve punishment, he is of sound mind and memory, and subject to punishment.” Apply this rule to the case now on trial, and determine this issue according to the facts.</p> <p>Doubts. The doubts that are contemplated by the law are such doubts as are reasonable, and such as a reasonable man would entertain. They must spring up in the mind from the weakness or insufficiency of the evidence. Mere fanciful doubts, or conjectures that may capriciously float in the mind, are not reasonable doubts. They' are nothing more than caprices of the intellect, not founded on reason or good sense. Some men believe very few things, and are of a doubting nature as to the character and truthfulness of testimony. Such men are not reasonable men, and their stubborn disbelief in the existence of facts, in spite of testimony, is unreasonable, and such as the law does not allow.</p> <p>A reasonable man hesitates when the mind is in such a state of uncertainty, after carefully examining all the evidence, that it cannot considerately go forward, and find a verdict of guilty. If, after mature consideration of all the facts developed on this trial, you are in this condition of doubt and uncertainty as to the guilt of defendant, you will find him not guilty; but, if you have no such doubts, and entertain a reasonable and satisfactory conviction that he is guilty, you will find him guilty.</p> <p>The jury found Loyd guilty. His counsel told the Court that they would prepare a brief of evidence, and make a motion for new trial, and carry the case up, but that it would be upon the points taken on the trial, and they did not wish to argue the points. Thereupon the Court proceeded to sentence Loyd.</p> <p>The motion for new trial was made upon the grounds that the Court had erred — 1st. In overruling the demurrer to the indictment. 2d. In requiring Loyd to announce ready before Holsenbake was tried. 3d. In overruling his first motion to continue. 4th. In overruling his second motion to continue. 5th. In instructing the jury that the formation and expression of an opinion as to Holsenbake’s guilt or innocence did not disqualify them for trying Loyd. 6th. In admitting said copy of Loyd’s statement before the committing magistrate as evidence. 7th. By interrupting Loyd, as he did, when Loyd was making his statement to the jury. 8th. In charging as he did (without specifying what parts of the charge they claim to be erroneous). 9th. In not ruling out Murphy’s statement of a conversation, of which he heard but part, and because the verdict was contrary to law, etc., founded upon confessions alone, etc. The Court refused a new trial, and error is assigned on said grounds.</p> <p>(Goode, being sick, arrived late. It then appeared that no brief of the evidence had been sent up. The Court, by consent, passed the case from Saturday till Tuesday, to allow the evidence to be obtained. It was gotten, and, by consent, the record was amended by adding the evidence.)</p> <p>Accessory may be made to plead first: 1 Ch. Pl., 421; 2 Hale’s P. C., 223; 4 Hawkins, 219, 245. Absence of counsel not favored: 18 Ga. R., 383. Indictment good: 37 Ga. R., 50; 10th, 46. Principal’s conviction, its weight as evidence: 7 Ga. R., 2; 10 Peck. 477.</p>

<p>(By two judges.) The judgment on a mechanic’s lien, under the Act of December 22, 1834, made general by Act of December 28, 1837, is not a judgment in rem, and hence does not conclude those claiming under a title adverse to the title of him who created the lien. 5th March, 1872.</p>

<p>(By two judges.) — 1. When a case is carried to the Supreme Court by defendant, and a supersedeas bond given, on affirmance of the judgment, plaintiff is entitled to have a fi. fa. issued against both principal and surety without entering up formal judgment upon the bond.</p> <p>2. When cotton was loaned, during the late war between the Confederate and United States, and a contract entered into for the return of the same quality and quantity of cotton to the lender at the end of the war, or at any time agreed upon between the parties, the contract is subject to the Relief Act of 1870, and the tax affidavit must be attached to the fi. fa. issued upon a judgment founded on such contract, before levy.</p> <p>3. Where plaintiff in fi. fa. makes the tax affidavit, and defendant files a counter-affidavit, denying that the taxes have been paid, as defendant is informed and believes, the issue as to the payment of the taxes should be submitted to the jury. 5th March, 1872.</p>

Possessory Warrant. Before Judge Johnson. Muscogee Superior Court. May Term, 1871. The facts are in the opinion. The judgment of a Justice of the Peace in possessory warrant revers-able, though some evidence to sustain it: 37 Ga. R., 580. The contract and possession was only for security, and gave no title: 43 Ga. R., 262. Such possession not good basis for possessory warrant: 40 Ga. R., 329.

Judicial interference with taxes. Before Judge Johnson. Muscogee Superior Court. May Term, 1871.

<p>(By two judges.) — 1. It is too late for an administrator, after he has been, by scire facias, made a party to a suit against his intestate and another on a contract, to plead or object that the suit is such an one on its face, as must go on against the survivor alone.</p> <p>2. A suit against two as joint contractors, is not a suit against them as partners, simply because the bill of particulars attached to the declaration is an account against them by their several sirnames, the Christian name of neither being mentioned, and the sirnames being connected with the character.</p> <p>3. In a joint suit against two, even after a plea in abatement by one of misjoinder, the plaintiff may discontinue as to one, and if his proof sustains his action, as amended, he may recover against one alone.</p> <p>4. When interrogatories are taken out by the defendant and crossed by the plaintiff, and both the direct and cross-interrogatories are answered and the defendant introduces and reads to the jury the answers to the direct interrogatories, failing to read the answers to the cross-interrogatories, and the plaintiff reads the answers to the cross-interrogatories, he does not thereby make the witness his witness, so that he cannot impeach him. The answers, to take the direct and cross-questions, are the evidence of the party who offers to the jury the return of the commissioners.</p> <p>(To read the direct answers to. interrogatories and leave the other side to read the answers to cross-interrogatories, is not a correct practice. R.)</p> <p>5. This Court will not interfere with the province of the jury to pass upon the facts unless the verdict be so grossly contrary to the testimony as to justify the inference of mistake, fraud or prejudice. 5th March, 1872.</p>

Relief Act of 1870. Before Judge Johnson. Muscogee Superior Court. May Term, 1872. Bradford, sheriff, had in hand a fund for distribution among the judgment creditors of Winter. Peters had the oldest judgment against Winter, and asked that it be first paid, because it was founded upon a contract made before June, 1865; and Peters had filed no affidavit as to payment of taxes on the claim, as required by the Relief Act of 1870.

New Trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1871. Thweatt brought trover for a bale of cotton against Boram, averring that he converted it in January, 1870. Boram defended upon the ground that, by an arbitration, he had settled with Thweatt about this cotton. The plaintiff proved that Boram got his bale of cotton, and sold it, and its value.

<p>Practice. Consolidating actions. Before Judge Johnson Muscogee Superior Court. May Term, 1871.</p> <p>The facts are in the opinion.</p> <p>cited 2 D. and E. R., 639; 1 Tidd’s Pr., 614; 3 Ch. Pr., 643.</p> <p>cited Acts 1868, Justices jurisdiction, R. Code, section 3196.</p>

<p>Attacking Judgments. Before Judge Johnson. Muscogee Superior Court. May Term, 1871.</p> <p>There was in the hands of Bradford, sheriff, a fund raised by the sale of the joint or partnership property of “steamer Chipóla and owners.’’ Booher, Fee & Company had the oldest judgment, but Stanford & Golden’s counsel introduced the record upon which the judgment was founded, and showed that, 1st. One of the joint owners was never served; and contended, 2d. That the judgment of Booher, Fee & Company was bad, because the record showed that they sued defendants as joint owners upon a credit given to them as partners. The Court ruled that Booher, Fee & Company’s judgment being older than Stanford & Golden’s, was entitled to the fund. That is assigned as error.</p> <p>As to first point cited: Revised Code, section 2274-5; 12th Georgia Reports, 30; 14th, 589; Booker vs. Worrill, July Term, 1871. On the second point: 24 Georgia Reports, 625; 1 Chancery Pleadings, 29.</p> <p>As to amendable defects: 3 Georgia Reports, 81; 23d, 602; 40th, 129; Revised Code, sections 3529, 3532. Judgment binds joint property though but one joint owner served.</p>

Relief Act of 1870. Before Judge Johnson. Muscogee Superior Court. May Term, 1871. This cause of action was founded upon a contract made prior to June, 1865. Plaintiff filed no affidavit that he had paid taxes on the debt, as required by the Relief Act of 1870, and, for this, defendant’s counsel moved to dismiss the cause.

Res Adjudicata. New trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1871. This cause was here at the instance of Perry et al., at June Term, 1870, and was dismissed without a hearing. See 41 Georgia Reports, 415. It was here again upon a question not affecting the merits, in January, 1871. See 42 Georgia Reports, 41. The necessary facts for understanding the opinion are embodied in it.

<p>(By two judges.) — When the administrator files a bill to marshal assets against creditors, some of whom are proceeding to enforce their claims at law, and seeks to enjoin the common law suits, alleging conflict in the claims, and the Judge grants the injunction, subject to the limitation that “ the said several creditors and said administrator go on and litigate the several claims now in process of litigation for the purpose of ascertaining the amounts due said creditors, and for that purpose only, and that as to the priority and dignity of said claims, and as to the rights of said creditors to claim payment out of said funds in the hands of the administrator, that the same be reserved and held up for future determination of this Court, and that the judgment that said creditors may obtain against said administrator shall not create any personal liability as to him, but against the assets of the estate only:” one of said creditors, who is a non-resident, cannot remove his common law suit to the Circuit Court of the United States. Such suit is collateral to the equity cause. 5th March, 1872.</p>

<p>Amendments. Relief Act of 1870. Minors. Before Judge Johnson. Harris Superior Court. October Term, 1871.</p> <p>The facts are in the opinion.</p>

Administrators and Executors. Devastavit. Charge of Court. Practice of Supreme Court. Before Judge Johnson. Harris Superior Court. October Term, 1871. For the facts, see 40 Georgia Reports, 181, and the opinion. (When the opening argument for plaintiff in error was concluded, defendant’s counsel discovered that the bill of exceptions did not appear to have been filed in the office of the Clerk of the Superior Court, and for this, moved to dismiss the case.

<p>By two judges.) — The Ordinance of 1865, suspending the Statutes of Limitations, was of force, proprio vigore, irrespective of any confirmation of it by the Convention of 1868. 5th March, 1872.</p>

<p>(By two judges). — 1. Where A, by his will, devised a tract of land to be sold and the proceeds to be divided between B and C, and appointed B his executor, and B proved the will and took out letters, and went, into possession of the premises, A having lived thereon at his death, and B afterwards died:</p> <p>Held, that, in an action of ejectment, brought by the administrator de bonis non of A against the widow of B and his administrator, the defendants were estopped from setting up title in B, acquired previously to the death of A. Whether the title is good or bad, the defendants cannot set up a title adverse to that under which B got possession of the premises.</p> <p>2. A trustee or executor cannot, after he has accepted the trust, set up a title averse to the trust.</p> <p>3. Where land is devised to B and C, and the testator, after making his will, conveys the land by deed to B, whom he appoints his executor; and who qualifies as such after the death of testator. Quere, whether B it estopped from denying that the land passed by the will.</p> <p>4. It need not appear when the Court adjourned, if it appear that the bill of exceptions was tendered to the Judge, and certified within thirty days from the beginning of the Court. (R. See end of report.) 5th March, 1872.</p>

Factor’s liens. Before Judge Johnson. Marion Superior Court. October Term, 1871. The facts are in the opinion. As to factor’s liens: acts of 1866, page 141; R. Code, section 1977. Construction of Statutes, etc.: R. Code, sec. 4, cls. 6, 9; 3 Kelly, 31.

<p>New trial. Before Judge Johnson. Marion Superior Court. October Term, 1871.</p> <p>For the facts see the opinion.</p>

Amendment. Practice. Bankruptcy. Tried before Judge Cole. Bibb Superior Court. April Term, 1871.

<p>(By two judges.) — 1. A widow need not make the affidavit of payment of taxes required by the Act of October 13, 1870.</p> <p>2. Where a judgment has been obtained since the adoption of the Constitution of 1868, the Court will presume that if the contract on which it is founded was for the purchase of slaves, or for the hire thereof, it would have been pleaded and proved on the trial at which the judgment was obtained. 12th March, 1872.</p>

New trial. Before Judge Cole. Bibb Superior Court. May Term, 1871. Weems & Cowles, as attorneys, sued Nussbaum & Dannenburg for $1,000, as the value of their services as their attorney, in procuring a settlement of a certain case.. The evidence was conflicting as to every fact, except that the claim was settled at a saving of $4,900 out of $6,000, claimed from defendants. Plaintiffs claimed that they brought about the settlement and were employed by defendants.

Consolidation of cases. Before Judge Cole. Bibb Superior Court. May Term, 1871. A more extended statement of the facts than is contained in the opinion is unnecessary. A motion to dismiss this writ of error because the cases were still pending below, was overruled. Defendants should not have to pay double costs: Code, section 3196 says cases “may” be consolidated. “May” means “shall:” Potters’ Dwarris on Statutes, 221, 223; Saunders’ Eeport, 58.

Partnership. Before Judge Cole. Houston Superior Court. May adjourned Term, 1870. This was assumpsit, by Riley as administrator of Riley, against Houser and Bronson for money had and received.

<p>(By two judges.) — 1. Where A advances $20 to a laborer on a promise of the latter to work it out, and the laborer afterwards refuses to do so, he is not guilty of the offense of being a common cheat and swindler.</p> <p>2. It is not éncumbent upon the District Attorney to follow cases from that Court into the Supreme Court. (R. See end of Report.) 12th March, 1872.</p>

<p>(By two judges.) — 1. Under the Act of 1865 and 1866 (R. Code, sec. 3917), a lost note may be established before the Superior Court. (R.)</p> <p>2. The Act of 1865 and 1866, providing for the summary establishment of promissory notes, requires the party seeking to establish the same, to swear that he is the owner, or the agent or the representative of the owner of the same, and if the affidavit is defective in this respect the proceeding is null. 12th March, 1872.</p>

Slave debts. Illegality. Before Judge Cole. Dooly Superior Court. October Term, 1871. On the 20th of October, 1868, James M. Armstrong obtained a judgment against Lewis upon two promissory notes made in 1860.

<p>Jurisdiction of District Courts. Before Judge Strozier. Dooly Superior Court. September Term, 1871.</p> <p>Forbes sued Owens, upon an open account, for $93, before the Judge of the District Court, and Owens obtained a judgment for costs, upon a trial upon the merits. Forbes sued out certiorari to correct various alleged errors committed by said district Judges. Judge Strozier refused to sanction the writ, because the District Court had no jurisdiction over the cause of action. That is assigned as error.</p> <p>The District Court had not jurisdiction over the cause: Const., Art. V., sec. 4, p. 6; Act 1870, sec. 6, pamph. 33. Nothing is here taken by intendment: 13 Ga. R., 7; 8 How. R., 441, 495. The 17th section of Act of 1870 gives district Judge powers distinct from District Court: Sedgwick on Stat., 422, 423; Dwarris on Stat., 656; 4 Coke, 46 (a); 10 Ga. R., 429.</p>

<p>(By two judqes.) — 1. Redwine and his wife obtained a decree, in 1859, against Shrine, as administrator upon the estate of the wife’s father, for $6,500, and that certain negroes of the estate be sold, and one half the proceeds of such sale be paid over to the complainants, which decree was afterwards satisfied, and so entered on the minutes by payment of $10,200 by Shrine, but for which sum he really gave his two notes, payable to Redwine, one of which he paid, and the other was sued to judgment by Redwine, in 1862. Such note so sued to judgment, was not given for a negro consideration, and an injunction granted against the levying of the execution founded on such judgment, on the ground that it was based on a contract, the consideration of which was slaves, should have been dissolved.</p> <p>2. On a writ of error, to the judgment of the Judge of the Superior Court under the Act of October 29th, 1870, this Court cannot review a decision-overruling a demurrer to a bill. 12th March, 1872.</p>

<p>Statute of Frauds. Promise to pay another’s debt. Before Judge Green. Spalding Superior Court. February Term, 1871.</p> <p>The necessary facts are in the opinion.</p> <p>cited 1 Par. on C., 444; Smith on C., 113, 118, notes; 5 Burr R., 186; 10 Wend. R., 461; 4 Cow. R., 432, 439; Roberts on Frauds; 252; 10 John. R., 412; 18th, 12; 10 Ga. R., 96; 14th, 683; 37th, 30; R. Code, sections 1940, 2906, as to Statute of Frauds.</p>

Slave debts. Misrepresentation. Promissory notes. Before Judge Green. Upson Superior Court. November Term, 1870. Lyons sued Stephens upon his promissory note for 0500 made in 1867. In the defense it appeared that Stephens sold a slave to Lyons in 1858, for 01,000, and Lyons sold the same slave to Freeman for 01,300. In each case there was a warranty of soundness. The slave was unsound, and Freeman recovered 01,300 against Lyons for that reason.

<p>Set-off. Pleading. Before Judge Green. Spalding Superior Court. August Term, 1871.</p> <p>Dobbins sued T. J. Threlkeld and another upon their joint promissory note. Threlkeld pleaded that Dobbins owed him for the proceeds of certain cotton, which Dobbins had sold for him, and had not accounted for (giving dates, etc.) Further, he pleaded that Dobbins, being indebted to him for cotton, sold for him by Dobbins, they had a partial accounting and settlement thereof. As the result thereof, Dobbins admitted that he owed Threlkeld $3,000; and, by mutual consent, said amount was then credited upon the note sued upon. Before said credit was made, it was agreed that all errors, if any, in said settlement, should he corrected, and there were errors in said settlement, showing that Dobbins then owed him $1,081 more than said $3,000. It was agreed, at the close of said settlement, that the amount found due Threlkeld should be credited on said note. If this excess is allowed as a set-off, the note sued on will be paid in full. Upon demurrer, these pleas were stricken, and that is assigned as error.</p> <p>As to set-off and recoupment, cited 25 Ga. R., 714; R. Code, sections 2852, 2853; 12 Ga. R., 77; 7th, 414; 37th, 364; 8th Bacon’s Abr., 651; 12 S. & R., 9-68; 8 How. R., 454; 3d Wait’s Dig., N. Y. R., 1664; 4 Ga. R., 198; 6th, 509; 5th, 357, etc.</p>

<p>Evidence. Witness. Before Judge Green. Henry Superior Court. October Term, 1871.</p> <p>The facts are in the opinion.</p>

<p>Common-carriers. Contracts. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.</p> <p>Plaintiffs averred that the Southern Express Company was a common-carrier of goods from “Savannah, Georgia, to Atlanta, Georgia,” and as such carrier, in New York, in October, 1865, received from them certain goods, (described) to be carried from Savannah, Georgia, and delivered to plaintiffs in Atlanta, for a certain reward, and yet behaved so carelessly and negligently as that the said goods were never delivered to them, but wholly lost. The defendant pleaded the general issue; that it received said goods from the Adams Express Company, at Savannah, to be carried to Atlanta, Georgia, under a special contract that it was not to be liable for loss by river navigation; that there was no way for shipping to Atlanta then except by the Savannah river, and that, without its fault, said goods were lost by the sinking of the boat en route up said river for Atlanta.</p> <p>Plaintiffs proved that they bought said goods in New York, and ordered them marked, “Cohen & Menko, Atlanta, Georgia, per Adams Express Company,” and to be shipped to Atlanta, but made no special contract that the Adams Express Company was to bring them all the way; indeed, at that time the Adams had its inland terminus in Virginia, and its sea terminus at Savannah, and at these points usually delivered goods to the Southern Express Company, and supposed that this would be done in this case; but they made no contract about the shipment except as aforesaid. They proved the value of the goods, that they were in possession of the Southern Express Company, and that the bulk of them were never delivered. They showed that a small part of them came through, damaged by water; that the Southern Express Company’s agents at Atlanta, Georgia, offered to deliver them, at the same time demanding certain heavy charges for wreckage, etc., saying the goods were sunk in the Savannah river, and they declined to accept the damaged goods or to pay the charges. They also showed two circular letters from the agent of the Southern Express Company, at Savannah, asking them to forward their invoices, that he might discover whether any of their goods were saved from said wreck.</p> <p>The merchants from whom the goods were bought, testified to their value, and that they were instructed to mark and ship as aforesaid, and did so, without making any special contract as to shipment. By another witness they showed that it was customary for the Southern Express Company when it received goods from the Adams to pay its freight, and upon delivery to collect that and its own charges. This witness also testified that at the time in question, the Adams had an all-rail route from New York to Atlanta, Georgia. They offered to prove that said Express Companies were the same company, having different names. For want of such averment this evidence was rejected.</p> <p>They then put in evidence the receipts given for the goods by the Adams Express Company. They were all as follows, mutatis mutandis:</p> <p>Adams Express Company.</p> <p>Great Eastern, Western and Southern Express Forwarders.</p> <p>New York, October 26, 1865.</p> <p>No 13,698.</p> <p>Received of H. B. C. & Co., one case......, value ......, marked Cohen & Menko, Atlanta, Georgia, which it is mutually agreed is to be forwarded to our agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation. It is part of the consideration of this contract, and it is agreed that the said Express Company are forwarders only, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the carrier to whom the same may be by said Express Company entrusted, or arising from the dangers of railroad, ocean or river navigation, steam, fire in store, depots, or in transit, leakage, breakage, or from any cause whatever, unless in every case the same be proved to have occurred from the fraud or gross negligence of said Express Company or their servants; nor in any event shall the holder thereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them and so specified in the receipt, which insurance shall constitute the limit of the liability of the Adams Express Company; and if the same is entrusted or delivered to any other Express Company, or agent, (which said Adams Express Company are hereby authorized to do) such company or person so selected shall be regarded exclusively as the agent of the shipper or owner, and, as such, alone liable, and the Adams Express Company shall not be in any event responsible for the negligence or non-performance of any such company or person ; nor in any event shall said Express Company be liable for any loss or damage, unless the claim therefor shall be presented to them in writing, at the office, within thirty days after this date, with a statement, to which this receipt shall be annexed. All articles of glass or contained in glass, or any of a fragile nature, will be taken at shippers’ risk only, and the shipper agrees that the company shall not be held responsible for any injury by breakage or otherwise, nor ¿or damage to goods not properly packed and secured for transportation. It is further agreed that said company shall not, in any event, be liable for any loss, damage or detention caused by the acts of God, civil or military authority, or by rebellion or riot, or the dangers incident to a time of war.</p> <p>For the company.</p> <p>McDonough.</p> <p>Plaintiffs closed. Defendant moved for a non-suit, relying upon Shea’s case: 30 Georgia Reports, 579. The non-suit was granted, and that is assigned as error.</p> <p>asked to review Shea’s case, 38 Ga. R., 519. There was a privity of contract between plaintiffs and defendant: 8 Tenn. R., 330; 3 East. R., 585; 1st Ch. Pl., 6 & 7; R. Code, sections 3192, 3193; 2 Kernan, N. Y. R., 343; 3 Brod. & Bingh., 177; Ang. on Car., sections 93 and 516. Effect of delivery in New York: 5 Seld. R., 180; 4th, 502; 6 Hill’s R., 167. As to ratifying special contract: 9 Ga. R., 70; 12th, 205; 16th, 431; 28th, 544; Story on Agency, sections 250; 8th Gill. & J., 248; Butler vs. Maples, 9 Wallace. Contract of shipment is question for the jury: 8 M, & W. R., 422; 4th Seld., 37. Motion for non-suit admits all facts averred and proved: 15 Ga. R., 491.</p> <p>relied on Shea’s case, 38 Ga. R., 519, and Mosher’s case, 38 Ga. R., 37.</p>

Municipal Corporations. Negligence. Tried before Judge Hopkins. Fulton Superior Court. April Term, 1871.

<p>(By two judges.) — Where A sues B in a Notary’s Court on an open ac count, on which he obtains judgment, and from which defendant appeals, and, pending the appeal, A brings another suit against B in the. Superior Court, on another open account, which was due at the commencement of the first suit, both accounts being admitted correct, to which second suit B files no plea in abatement at the first term, but at the second term pleads the judgment obtained in the Notary’s Court in bar of the second suit, and while both oases are pending in the Superior Court, “ it is agreed that the jury shall find such verdict in said cases as the Court, under the agreed state of facts, may direct, and it is further agreed that the Judge shall consider both "cases together</p> <p>Held, That, under the foregoing facts, there was no such judgment existing as could be pleaded in bar of the suit brought in the Superior Court, and that the Court should have instructed the jury to find a verdict for the plaintiff for the amount of both accounts.</p> <p>2. A defendant who has appealed, had no right to withdraw his appeal, without the consent of the plaintiff. 12th March, 1872.</p>

Lien. Pleadings. Demand. Before Judge Hopkins. Pulton Superior Court. October Term, 1872. Lively & McElroy made affidavit that they were owners of a steam saw-mill, without stating where it was; that they furnished, in May, 1870, certain lumber to one Mobley, with which he built certain fences, etc., on certain land therein described, and that they had demanded payment, but it was refused, without stating upon whom the demand was made.

Vendor and purchaser. Estoppel. Before Judge Hopkins. Fulton Superior Court. April Term, 1871. Mitchell’s bill against Butt and his wife made this case: In 1862, Butt and his wife had purchased of one Rogers certain described land, he agreeing to make them a title to the same when they paid the price .of it to him. They had paid no part of the price, and could not.

<p>When A brought an action against B on a promissory note, and for the value of a bag of cotton belonging to A, but appropriated by B to his own use, and B pleaded the general issue and that the note was given for money won at cards by B’s partner, and it appeared, in proof, that the note was, in part, for money won at cards, and that more money had already been paid on the note than was due upon it after deducting the gaming consideration:</p> <p>Held, There being no plea of set-off filed, that the jury could not apply the money paid on the note to the discharge of the debt due for the bag of cotton.</p>

Lien of Judgments, and for Attorney’s fees. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1872. The facts of this case are fully stated in the opinion. The money, about which the parties were at issue, was in the hands of George W. Adair, as Receiver, appointed by the Court, and the cause was begun by a rule against him by the attorneys. He answered that lie had the money, subject to the order of the Court.

<p>1. This Court will not control the discretion of the Court below in granting a new trial, when that discretion has been properly exercised, as it was in this case.</p> <p>2. Where an attorney was employed by an executor to aid her in winding up and settling an estate, an action for his fee will not lie till twelve months after the qualification of the executor, that being the shortest time allowed for closing up an administration; nor can he recover one-half of the fee in such case, as a retainer under the 441st section of the Code. (R.)</p> <p>3. An attorney can not recover for professional services without proof of their value.</p>

Suit on Bond. Amendments. Before Judge Harvey. Walker Superior Court. June Term, 1872. Martha J. Carson went before a Justice of the Peace and procured him to issue a warrant against Whitman, for bastardy. He was arrested by the bailiff and brought before the Justice for trial.

Specific performance. Before Judge Harvey. Chattooga Superior Court. March Term, 1871. The bill of Mary Brown, as administratrix of Warren Brown, averred as follows against Shropshire and Ward, as executors of William Brown, her father-in-law: In 1857, her husband lived in Arkansas and his father lived in Georgia.

Evidence. Damages. Before Judge Harvey. Floyd Superior Court. January Term, 1871. This cause is sufficiently reported in the opinion, which was delivered from the bench. Under the company’s charter, the fee of right-of-way passes to it upon its paying the damages: Acts of Ala., 1851-2, p. 344; Acts of Ga., 1865-6, pp. 207, 210; Acts of 1866, p. 124. Therefore, Camp must show title in himself: 1 Redfield, 270, and note, 347 (9;) 5 Wendell, 423, 452; 6 Wis. R., 636.

<p>1. The Statute of Frauds requires that any contract for the sale of lands or any interest in or concerning them, must be in writing, signed by the party to be charged therewith, or by some person by him lawfully authorized; but the Statute of Frauds does not extend to eases where the contract has been fully executed, or where there has been performance on one side, accepted by the other, in accordance with the contract.</p> <p>2. Full payment alone accepted by the vendor, if clearly proved with reference to the parol contract, will be sufficient part performance to justify a Court of equity to decree a specific performance of such parol contract for the sale of land.</p> <p>3. To allow the vendor of the land or his legal representatives to retain the land and the purchase-money paid therefor, as against the vendee and those claiming under him, would be a fraud upon the latter which a Court of equity will not permit or sanction.</p>

Criminal Law. Insanity. Before Judge Parrott. Bar-tow Superior Court. March Adjourned Term, 1871. Joseph Humphreys was indicted for murdering William Humphreys, in June, 1871, by shooting him with a gun. The evidence for the State showed the following facts: Joseph Humphreys married the daughter of one Burgess, and by her had said William Humphreys. They were poor and lived all in one room of a house.

<p>A bill in equity may be amended when the remittitur from this Court is about to be made the judgment of the Court below, and before it is entered on the minutes of that Court.</p>

Contracts. Duress. Before Judge Harvey. Whitfield Superior Court. October Term, 1871. The facts of this cause are sufficiently full in the opinion of the Court, delivered from the bench.

<p>(By two judges.) — 1. When, on a trial for murder, it appeared that deceased had threatened prisoner’s life, whereupon prisoner left the field where the quarrel took place, returned in about twenty minutes and said if deceased was going to whip him, he was now ready for him, and deceased advanced upon him, pistol in hand, upon which prisoner shot and killed deceased, and the jury returned a verdict of voluntary manslaughter, this Court will not disturb the verdict.</p> <p>2. Provocation by threats will, in no case, be sufficient to free the person killing from the crime of murder or from manslaughter, if the circumstances reduce the homicide to that grade.</p> <p>3. Where counsel for prisoner consents that the jury may return their verdict to the Clerk, it implies a consent that they may disperse after having done so ; and if the verdict so returned is one for “ manslaughter,” not specifying the grade, it is not error in the Court to order the jury to reassemble and change their verdict to either voluntary or involuntary manslaughter (and the jury do change it to voluntary manslaughter,) unless the prisoner can show that one or more of the jury have been tampered with or that his case has been otherwise prejudiced by reason of the dispersing of the jury.</p> <p>4. The finding in this case is not contrary to the evidence. 20th February, 1872.</p>

<p>(By two judges.) — 1. Equity will not interfere to restrain a trespass, unless it affirmatively appears that the damage will be irreparable, or, from the insolvency of the trespasser, or other cause, the remedy at law is incomplete.</p> <p>2. A sheriff has no authority to put a purchaser of real estate, at a sheriff’s sale, in possession, if to do so it is necessary to turn out a purchaser, from the defendant in execution whose title is anterior to the date of the judgment, even though it be true that, for some reason, the judgment was a lien anterior to its date, so that the purchaser gets a good title. 20th February, 1872.</p>

Assignment. Equity pleading. Before Judge Johnson. Muscogee Superior Court. May Term, 1871. Rowland, by bill, sought to set aside an assignment made by Coleman and wife to Ransom & Company, averring that said assignment was “made reserving a certain surplus to Coleman, and with the intent to delay and defraud ” Rowland — said Ransom & Company knowing such was the object thereof.

Administrators and Executors. Marshaling Assets. Distribution of Estates. Liens. Before Judge Johnson. Talbot Superior Court. September Term, 1871. The bill in this case contained the following averments : Mahone is administrator de bonis non of Thomas Green, deceased, succeeding Marshall, administrator, resigned. But for the emancipation of intestate’s slaves, by the late war, the assets of the estate would be ample to pay its debts, but now the assets are wholly inadequate.

<p>(Br two judges.) — 1. A purchaser of land cannot plead an outstanding title, adverse to that of his vendor, so long as his possession is undisturbed, unless he set up some distinct equity, showing that his remedy on the waranty will be inefficient.</p> <p>2. The answer of the defendant to the complainant’s bill, to enforce his vendor’s lien alledging a breach of warranty, and the insolvency of the complainant, there being no claim of solvency in the bill, is not responsive to the bill; and if there be no other evidence, the jury is not bound to notice the statements in the answer as to the solvency of the complainant. 12th March, 1872.</p>

Landlord and Tenant. Estoppel. Before Judge Hopkins. Fulton Superior Court. April Term, 1871. William Rich & Company sued out a distress-warrant for rent against A. F. Burnett & Company. They made affidavit simply that no part of the sum distrained for was due to William Rich & Company. Thereupon, the case was returned to Court for trial.

<p>Claim. Fraudulent Purchase. Evidence. Mortgage. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.</p> <p>On the 18th of September, 1868, E. H. Muse gave his promissory note to Willis P. Chisolm and Fortune N. Chisolm, for $12,146 50, due one day thereafter. And, to secure it, he mortgaged to them his “ entire stock of dry goods, consisting of silks, satins, calicoes, ribbons, bombazines, poplins, muslins, hats, shoes, boots, bonnets and all other articles of merchandise, belonging to and embraced in the stock of dry goods contained in the store-room ” occupied by himself, on Whitehall Street, Atlanta, Georgia. This mortgage was recorded on the 26th of October, 1868, and foreclosed on the 7th of November, 1868, and, on the 9th of November, 1868, was levied upon the stock of goods then in the store. Chittenden & Company claimed certain of the goods levied upon, and replevied them, and others did the same as to other of said goods.</p> <p>On the trial of Chittenden & Company’s claim, counsel for the Chisolms introduced their note and mortgage, the proceedings of foreclosure, the fi.fa. and levy, proved by the levying officer that he levied upon the entire stock in said store, that they were in Muse’s possession, and worth $18,000 or $19,000; that different claimants subsequently took out $7,675 18 worth of the goods, some of which were returned. Here they rested their cause. Chittenden & Company showed that, early in October, 1868, Muse purchased from them, in New York, the goods claimed by them, two-thirds on credit, for $899 18; that he obtained this credit by having represented to Chittenden & Company, that he then had, in Atlanta, a stock worth $7,000; that he had $2,000 in cash, and some other property, and owed but $700 or $800, which was balanced by debts due to him; and by representing, in person, besides, that his stock was worth $10,000, and ,his life was insured for $5,000, and that he had $25,000 in railroad stocks. And they testified that, but for relying upon said representations as true, they would not have sold Muse the said goods. The Chisolms objected to the statements of Muse as evidence against them. They put in evidence the receipts of the other claimants, given to the levying officer for goods claimed by them. They amounted to $3,683 84 in value. They proved how their goods were selected from the stock, and without damage to it. It was shown that subsequently other persons, who had sold goods to Muse, at the same time, claimed and replevied them, and that the Chisolms settled with some of them, and had the goods taken by them returned to the stock. The Court refused to allow the witness to state how much the Chisolms paid in said settlements.</p> <p>Muse, in rebuttal, denied making the statements aforesaid, but admitted that he did not tell them of the mortgage; he said his stock, when mortgaged, was worth $7,000; when levied on was worth $18,000; and, after the various claimants had pulled and hauled them about, only $5,000. Another witness testified to the damage done to the goods by careless handling, and gave evidence to show that Chittenden & Company could not indentify their goods. Indeed, Muse testified that they took some goods which he did not buy that season. "W. P. Chisolm testified that he and F. N. Chisolm had, at various times, loaned Muse money at one and a half per cent, per month to help him along, and held his note therefor; but, because one of his commercial notes was protested, they took said note and mortgage for his aggregate indebtedness ; that they did not know that he was going to New York. He testified that, from the sale of the goods by the sheriff, they received $6,103 40 on their fi. fa. He proposed to testify to the amount paid out by them, in settlement with the other claimants, and the damage done to the goods not taken away, from careless handling; but the Court ruled this evidence out. A witness was introduced, and testified that Muse told him he had turned over to the Chisolms certain railroad stock, which Muse had denied having said. In rejoinder various persons testified that for years they had known Muse, and that his character had been above reproach.</p> <p>The Court charged the jury, among other things immaterial here, as follows: If Muse bought the goods claimed from Chittenden & Company, in New York, and at the time of the purchase made statements to them, or one of them, in reference to his ability to pay for the goods which were false, and consequently deceived them, and if Chittenden & Company acted upon the faith of those statements, and gave credit to Muse, that would vitiate the sale.</p> <p>If at the time the purchase was made, Muse was called upon by Chittenden & Company to give a statement of his financial condition, and he entered upon the statement and stated his condition in part, but witheld a material fact as to bis pecuniary standing, in consequence of which Chittenden & Company were mislead, and he knew it, that would vitiate the sale.</p> <p>If the goods were purchased in the manner stated and upon the false statements and under the circumstances mentioned, and were shipped to Atlanta and placed in Muse’s store, and at the time no money was advanced by the Cisholms on the faith of these goods, the goods are not liable to the mortgage fi. fa. The jury found for claimants.</p> <p>The Chisolms moved for a new trial upon the grounds; that the Court erred, 1st, in admitting Muse’s statements in New York as evidence, (because the Chisolms were not present) ; 2d, in refusing to allow proof of the value of the goods by showing the amount for which the goods sold. 3d, in charging as above. 4th, in refusing to allow evidence of the amount paid out by the Chisolms in settling said other claims and of the quantum of damage done to the stock from careless handling, and because the verdict was contrary to evidence, etc. The Court refused a new trial, and error is assigned on said grounds.</p> <p>Fraud vitiates sale: 1 Paige’s R., 491; 13 Wend. R., 570; 23d, 372; 1 Hill’s R., 302; 21 Barb. R., 586; Kerr on F. and M., 331. The mortgage did not cover goods in excess of prime value: R. Code, sec. 1944. The fi. fa. was chargeable with value of goods levied on and not claimed by Chittenden & Company: 19 Ga. R., 537; 20th, 210; 6th, 392. If fi. fa. paid verdict right; 22 Ga. R., 348; 6th, 515; 7th, 380; 19th, 537; 20th, 210: 6th, 517.</p>

Barter and Sale. Rescinding contracts. Before Judge Hopkins. Fulton Superior Court. April Term, 1872. Straus averred that Herman was indebted to him $127 66, because lie sold Herman a diamond pin for $155, of which Herman had paid him but $27 34.

Criminal Law. Jurors. Evidence. 'Insanity. Tried before Judge Hopkins. Fulton Superior Court. April Term, 1871. Westmoreland was charged with an assault with intent to murder O. L. Red wine, by shooting him with a gun. He pleaded not guilty.

<p>Continuance. Witness. Evidence. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.</p> <p>In 1869, in an alley between the National Hotel and the Norcoss building, Atlanta, Ellsworth received certain blows upon his head, which, he supposed, were inflicted by John Gavan. Gavan was arrested, charged with an assault with intent to murder Ellsworth. One of the Justices who presided at the commitment trial was Thomas Spencer, Esq. The Justices directed one Holmes to take down the evidence, and he did so. But, for his own convenience, Spencer also took down the evidence in short-hand, and subsequently wrote it off in long-hand. Gavan was bound over, and an indictment therefor was pending against him during the trial herein mentioned. Ellsworth brought trespass vi et armis against Gavan for said injuries. When this cause came on for trial, Gavan moved to continue for the absence of Sarah Bird, John Johnston, M. E. Jones and Miss Hate Wright. He said they resided in this county, were subpoenaed, and were not absent by bis permission, directly or indirectly; that he expected to have their testimony at the next term, and that the showing was not made for delay, but to get the evidence. He said that he expected to prove by Sarah Bird that she was present, and between Ellsworth and himself, at the time Ellsworth was stricken in the alley, and that he (Gavan) did not strike Ellsworth. Sarah Bird was temporarily absent from the city, on a bridal tour. He said Jones was a slater, residing here, till two or three weeks before the cause was called, and he had recently learned from Jones’ friends that he was absent in Tennessee, but he could not learn his exact whereabouts, and could not take his interrogatories. He expected to prove by Jones that he (Gavan) did not strike Ellsworth, and that he (Gavan) was not in the alley when Ellsworth was struck, but in the street; and, further, that Jones would swear that he (Gavan) did not strike him (Jones). The Court then asked Gavan, “ Did you not swear that you expected to prove by Sarah Bird that she was between you and Ellsworth, at the time Ellsworth was struck in the alley?” Gavan answered, “Yes.” “Did you not swear that you expected to prove by Jones that you were not in the alley, but in the street, at the time Ellsworth was struck?” Gavan answered that he did not swear that he expected to prove by Jones that he (Gavan) was not in the alley, but in the street, at the time Ellsworth was struck; if he made such a statement it was through mistake, for he (Gavan) was not in the street. Without more the Court ordered the trial to proceed. Gavan’s counsel complain that herííad not completed his showing as to the other witnesses. The Court certified that he had completed his showing for continuance.</p> <p>Ellsworth testified that he, Edwards and Weaver were in Gavan’s saloon, and some unpleasant words and a difficulty occurred between him and Gavan, about making change when Ellsworth paid for what he and his friends drank; that they left the saloon, and afterwards, coming back into the alley, he was struck by some one, over the head, and that the injury had disabled him from being an engineer. His physician described his appearance when hurt, and said that he believed that the inner table of his skull was broken, and pressing on the brain, though the outer one was not, and though the skin was not cut or bruised ; that this might be done by a round substance, like a policeman’s batou.</p> <p>Weaver testified that he saw Gavan strike Ellsworth over the head with such a stick, and told all about the difficulty, as he understood it. While he was testifying he said that Edwards was, since that, killed on the Western and Atlantic Railroad.</p> <p>Plaintiff’s counsel then proposed to prove by Spencer what Edwards swore to on the commitment trial. Defendant’s counsel objected, upon the ground that it was not shown that Edwards was dead. Being reminded that Weaver swore that Edwards was killed, they said they remembered it, but did not know that the question was asked with a view of laying a foundation for Edwards’ testimony, and therefore did not cross-examine Weaver on that point, and asked that Weaver should take the stand again that they might cross-examine him as to that. The Court refused to let them put him back thus for that purpose. They did not offer him as their own witness. Defendant’s counsel then objected to Spencer, upon the ground that this cause and that before the committing magistrates were not substantially between the same parties, and upon the same issue. The objection was overruled, and Spencer gave Edwards’ version of the affair, which was substantially what Weaver’s was, and that he saw Gavan hit Ellsworth. Spencer testified with his copy of Edwards’ evidence in his hand, but only referred to it when asked to do so by defendant’s counsel, (as the Court certifies.) The bil of exceptions gives a version of this matter not easily understood in connection with the Judge’s notes appended to his certificate.</p> <p>Gavan gave his version of the quarrel about the change, etc., but denied that he struck Ellsworth, or was present when he was struck ; he said being warned by one of the women who kept his bar, he had gone into the bar before the blow was struck — it was struck in the alley. The version of it by Gavan’s barkeeper and one of the female bar-tenders strongly corroborated Gavan’s statements.</p> <p>The jury found for plaintiff for $3,092 50 and costs. Defendant’s counsel moved for a new trial, upon the grounds that the Court erred : 1st. In refusing a continuance. 2d. In admitting Spencer’s evidence, and because the verdict was contrary to law and evidence, and excessive. The Court refused a new trial, and that is assigned as error.</p>

Railroad Companies. Passengers. Damages. Tried before Judge Hopkins. DeKalb Superior Court. September Term, 1871. McCurdy paid his way to News Station, which was a wood aud water station only, and the conductor agreed to put him off there. When they got there, the train was slackened; but McCurdy, being a heavy man, was afraid to get off.

Relief Act of 1870. Tax. Practice. Supreme Court. Before Judge Harvey. Polk Superior Court. August Term, 1871.

<p>That a third person, not the defendant, has taken a homestead on land, against which a mortgage fi. fa. has issued, will not excuse the sheriff for failing to sell, when such fi. fa. is placed in his hands for levy and sale; and where he sets up such fact as his only excuse, in answer to a rule to shew cause why he should not be compelled to pay the amount of the fi. fa. to the plaintiff, a rule absolute will be granted against him for the value of the land, if such value he less than the amount of the fi. fa., otherwise for the amount of the execution.</p>

New trial. Tried before Judge Parrott. Floyd Superior Court. July Term, 1871. Cohen & Hargrove sued the Rome Railroad Company for the non-delivery of certain goods which they averred were shipped to them from New York to Rome, over said railroad. They failed to prove that said goods were ever in possession of defendant, and the jury found for defendant. A motion for new trial upon the ground that the verdict was wrong was overruled.

<p>Insurance. Tried before Judge Parrott. Floyd Superior Court. July Term, 1871.</p> <p>The facts are in the opinion. Judge Parrott charged that the notification by the agent of the insurers to the agent of the assured that he was ready to refund the unearned premium, canceled the policy without an actual payment of the same to him. There was a verdict for the defendant, and a new trial was refused.</p> <p>The policy was not canceled: 2 Cr. Sc. R., 127; Ang. on Ins., sec. 1991; Phil. on Ins., 2577; 47 Ill. R., 516; 55 Barb. N. Y. R., Hawthorn vs. Ger. Ins. Co.</p>

<p>Attachment. Amendments. Tried before Judge Harvey. Floyd Superior Court. July Term, 1871.</p> <p>The facts are in the opinion.</p>

Illegality. Practice. Before Judge Harvey. Floyd Superior Court. June Adjourned Term, 1871. Bailey’s fi. fa. against Beall, ordered the sheriff to make the money, and return the writ to January Term, 1871, of said Court. It was levied in February, 1871. In March, 1871, Beall lodged with the sheriff an oath of illegality to stop the sale. The sheriff returned the papers to the Clerk’s office, and he entered the illegality upon the docket.

<p>Reformation of Contracts. Before E. N. Broyles Esq., Judge pro hac vice. Polk Superior Court. February Term, 1871.</p> <p>The facts are sufficiently stated in the opinion.</p>

Common-carriers. Before Judge Parrott. Whitfield Superior Court. June, 1871.

Homestead. Minors. Before Judge Harvey. Whitfield Superior Court. October Term, 1871. Sloan was executor of A. Sloan and guardian of his children. The will directed him to sell testator’s land, publicly or privately, and divide proceeds between testator’s children. Sloan had the land set apart as a homestead for the minor children, and then, with the approval of the Ordinary, sold the land. The minors, by their next friend and guardian, brought ejectment for the land.

<p>Practice Supreme Court. From Dougherty county.</p>

<p>Practice Supreme Court. Suit on administrator’s bond. From Stewart.</p>

<p>Practice Supreme Court. Equity from Terrell county.</p>

<p>New trial. Before Judge Johnson. Muscogee Superior Court. May Term, 1871.</p> <p>The necessary facts are in the opinion.</p>

<p>Practice Supreme Court. Service of bill of exceptions. From Muscogee county. May Term, 1870.</p>

<p>Practice in Supreme Court. From Muscogee. May Term, 1870.</p>

<p>1. If the evidence is material to an -understanding of the errors complained of, the Judge should not certify a bill of exceptions which contains no version of the evidence. (R.)</p> <p>2. If the Judge refuses to certify a bill of exceptions, he should then be asked to endorse upon it his reasons for refusal, and if he will not, the matter should be then brought to the notice of this Court. The complaint cannot be made after thirty days from said refusal have elapsed. (R.)</p>

Injunction. Restraint of Trade. Statute of Frauds. Tried before Judge Green. Pike County. Chambers. February, 1872. Spier’s bill against Lambdin made this case: In 1867, the trustees of the Barnesville Academy leased the academy and grounds to Lambdin, for ten years, in consideration that he would fence the lot, keep the premises in repair, and teach there a school during said term, with a full corps of teachers.

County Matters. Ordinary’s Powers. Tried before Judge Weight. Coweta county. Chambers. November, 1871.

Former recovery. Relief Act of 1870. Tax. Before Judge Hopkins. Fulton Superior Court. October Term, 1871. This was an attachment upon an open account by McCrosky against Mabry as a non-resident. The character of their suit and of the defense is stated in the opinion.

<p>Equity from Stewart.</p>

Water-courses. License. Prescription. Equity. Practice. Before Judge Harrell. Muscogee Superior Court. June, 1871. In 1869, Cook sued Pridgen, Stapler & Dunn, averring that in said year he owned certain described land and they erected a'mill-dam below it, and thus overflowed and injured said land.

<p>1. The Clerk having certified a record of a case different from the case mentioned in the bill of exceptions, the writ of error was dismissed. (R.)</p> <p>2. Alter the case was dismissed for want of proper certificate by the Clerk, a proper certificate was procured and a motion made to reinstate the case. The motion was overruled. (R.)</p>

<p>The same parties vice versa.</p> <p>When the owner of a tract of land lays it off for a town, publishes a map of the lots, streets and lanes, and sells out the lots on a street to others, and the town is established as designated in the map, the owner of the land will be presumed to have dedicated the streets and lanes to the public, and if one of them be diverted from the purposes designated, as if under a sale from the city authorities, a house be builded on land that is part of the street, this does not authorize the original owner of the tract to sue in ejectment for the land so built upon. The title of the land is in the public, for the uses designated, so long as the town exists, If the street be abandoned by the public, prima facie, the reversion would be in the owners of the abutting lots, unless the injured grantor had in express terms reserved the right to himself in his deed conveying the lots, or in his act of dedication.</p>

Relief Act of 1870. Taxation. Before Judge Parrott. Dade Superior Court. May Term, 1871. In March, 1861, Allison, Anderson & Company obtained ajudgment against Der berry. The judgment became dormant and scire facias was issued against Derberry’s administrator to revive it. No affidavit as to the payment of taxes on the debt was filed in the Clerk’s office.

Relief Act of 1870. Tax. Novation. Before Judge Parrott. Bartow Superior Court. September Term, 1871. Martin Lott died intestate. Vincent administered upon his estate and sold Lott’s land to Dysart, and took his note, with security, for the purchase-money. Dysart was still in possession of the land.

<p>Relief Act of 1870. Tax. Widows. Minors. Tried before Judge Parrott. Whitfield Superior Court. April Term, 1871.</p> <p>Mrs. Red wine, as administratrix of her husband, filed a bill to collect a note due to her husband, and made prior to June, 1865, by Hancock et al., and to enforce a vendor’s lien for its amount. She filed no affidavit as to the payment of taxes, and for want of it defendant’s counsel moved to dismiss the cause. Her counsel proposed to prove that the estate owed nothing, and that the whole of the debt belonged exclusively to her and her children, and that she was a widow and they were minors, and contended that thus they would bring the case within that class to which said Act was, by its terms not to apply. Section fourteen of said Act is: “nothing in this Act shall be so construed as to effect any claim due any widow or minor contracted prior to June 1st, 1865,” etc. The Court dismissed the cause, and that is assigned as error.</p>

<p>1. The State of Georgia cannot be made a party defendant in a suit, in any Court, except by consent of the proper authorities ; nor can this be done so as to affect the rights of the State by making the agent of the State, appointed by its authorities, a party; and any judgment against such agent cannot affect the rights of the State, or affect its position.</p> <p>2. A writ of error brought by one, alleging error made against him as agent for the State, will not be dismissed because, since the suing out of the writ of error, and before the hearing here, he was removed from such agency. (R. See end of Report.)</p>

<p>Practice under Relief Act of 1870. Before Judge Johnson. Marion Superior Court. October Term, 1871.</p> <p>The necessary facts áre in the head-notes.</p>

<p>Garnishment. Before Judge Andrews. Elbert Superior Court. March Adjourned Term, 1871.</p> <p>For the facts of this case, see the decision.</p>

Constitutional Law. Reconstruction complete. Expiration of Provisional Government. Relief Act of 1870. Obligations of contracts. Tax-affidavit. Tried before Judge Andrews. Hancock Superior Court. October Term, 1871.

<p>(McCay, Justice, did not preside upon the hearing of the following motion.)</p> <p>1. Where one of the executors of a will to which a caveat has been filed married the sister of the wife of one of the Judges of the Supreme Court, said Judge is not disqualified from presiding by reason of relationship by affinity to said executor, upon the trial of said cause before the Supreme Court. (R.)</p> <p>2. The executor having renounced in writing as executor of the will to the Ordinary, which renunciation had been entered of record before qualification as executor and during the pendency of a caveat to the probate of said will, such renunciation was binding on the executor, and the Ordinary was the proper officer to determine whether he had any of the assets of the estate in his hands, not accounted for at the time of such renunciation. (R.)</p> <p>3. The legal, presumption is, that the Ordinary performed his duty in regard to the protection of the assets of the estate before accepting the renunciation of one of the executors nominated in the will. (R.)</p>

Caveat to will. Revocation. Subseqent marriage. Attestation. Continuance. Before Hon. William M. Reese, an Attorney at Law, presiding by consent. Oglethorpe Superior Court. April Term, 1871. Held: but tacit condition annexed to the right to make a will. See, also, Israel vs. Rodan, 2 Moore, P. C. C., 51, and 1 Jarman on Wills, top page, 109, and note; Williams on Executors, 1st volume, top pages 164-5, 168, 172-3-4. See “Revocation” Library Edition.

Evidence. Statute of Limitations. Fraudulent representations. Estoppel. Before Judge Andrews. Elbert Superior Court. March Adjourned Term, 1871.

Year’s support. Amendment nunc pro tune. Garnishment. Pleadings before Court of Ordinary. Before Judge Andrews. Elbert Superior Court. March Adjourned Term, 1871. For the facts of this case see the opinion.

<p>On the trial of a bill filed by an administrator of an estate against the legatees and creditors to marshal the assets, one of the creditors is not a competent witness to testify as to the nature and character of his contract with the deceased, even though the witness only proposes to state facts showing the dignity of the contract, and affecting only its priority.</p> <p>Where there was a settlement between one of the executors of an estate and the legatees, in which there was turned over to the legatees a note of the executor, with a third party as security, as a part of the assets of the estate, and at the same time the executor gave to the legatees his individual note for the balance in his hands, and there was a distinct understanding that the last note was only given as evidence of the amount due, and that the executor was to be liable as executor for the amount of the same :</p> <p>Held, That the last note was still a trust debt and entitled to priority in the distribution of assets, but the first was not.</p> <p>When one executor, having money in hand, loans it to another executor, taking his individual note for it, and in a settlement with the legatees, they take from the executor loaning the money the note as assets, giving him a full discharge and acquitance of all liability:</p> <p>Held, That the note thus turned over is not a trust debt as against the maker of the note, and his statement that it shall be so considered does not make it such as to give it priority over other debts in the distribution of the estate of the maker of the note.</p>

<p>False representation. Recoupment. Former adjudication. Rescission. Before Judge Andrews. Hancock Superior Court. October Term, 1871.</p> <p>The record shows that the counter-claim sought to be recouped by defendant existed before June 1st, 1865. For the facts of the case, see the decision.</p>

Criminal Law. Charge of Court. Opinion upon facts. Before Judge Andrews. Hart Superior Court. September Term, 1871. In the progress of the charge the Court used the following language : “ I further state to you, gentlemen of the jury, my opinion is that you can infer from Grant’s admission, that the pistol which he shot had a ball in it, inasmuch as he undertook to point out the place where the ball struck, whether that was the place or not.”

Guardian and Ward. Statute of Limitations. Tried before Judge Andrews. Warren Superior Court. October Term, 1871.

<p>Interpleader. Construction of will. Before Judge Andrews. Warren Superior Court. October Term, 1871.</p> <p>This case arose upon a bill filed by O. L. Cloud as executor of the will of M. M. Shaw, deceased, against Elizabeth Tarver, Margaret Ann Tarver, Jane E. Lowe and Charles C. Lowe, for direction and construction of the second item of said will, and also praying that the legatees might be required to interplead. The second item was as follows: “Item second. I give and bequeath to Elizabeth Tarver, (sister of testatrix) and Margaret Ann Tarver, (daughter of .Elizabeth Tarver,) the portion of plantation lying on the west side of the Warrenton road, adjoining lands to Walter F. Lewis, Hugh Armstrong and others: provided they come .and live on it; if not, to remain with the other lot, and at the death of Elizabeth Tarver and Margaret Ann Tarver, that portion of land, also, to go to Charles C. Lowe.” Elizabeth Tarver and Margaret Ann Tarver insisted that by said item the testatrix intended, and did, devise to them in fee the said land, provided they lived on it; that they elected to live on it, and that therefore the fee became absolute. Jane E. Lowe and Charles C. Lowe contended' that under said item Elizabeth Tarver and Margaret Ann Tarver took only a life-estate in said land, remainder to Charles C. Lowe. The Court held that the Tarvers took a fee simple to said land, and plaintiffs in error excepted.</p>

<p>Homestead. Estoppel. Certiorari. Practice. Separate property. Before Judge Gibson. Richmond Superior Court. January Term, 1871.</p> <p>For the facts of this case, see the decision.</p> <p>The property of the wife is not subject to homestead, unless she had assigned the property to the husband, or they were living apart: Code, section 1743. Husband the head of the family: Homestead Act, 1869, sections 1, 27; Homestead Act, 1870, sections 3,4; Constitution, Article "VTL, section 6. The Loan Association is within the exceptions, being a purchase-money creditor: Chambless vs. Phelps, 39 Georgia, 386. Exceptions not triable by Ordinary. If the exceptions are tried by the Ordinary, the creditor being a party, he is bound: 41 Georgia, 96. Certiorari the proper remedy. Appeal did not lie. If it did, that circumstance did not take away the remedy of certiorari: Constitution, Article V., section 3; 3 Bouv. Inst., section 2528; 3 Hammond, 279; 14 Mass., 420; 7 Pickering, 321; 6 E. C. L., 521; 2 Chitty, Gen. Prac., 215.</p>

Garnishment. Service on Railroad Companies. Venue. Time of answer. Before Judge Gibson. Richmond Superior Court. June Term, 1871. Francis D. Clark brought complaint against George D. Chapman, and served a summons of garnishment addressed to the Central Railroad and Banking Company, upon Joseph B. Preston, agent of said company at Augusta, at the place of transacting the business of the corporation.

Novation. Discharge of guardian. Fiduciary debt. Before Judge Gibson. Richmond Superior Court. June Term, 1871. John S. Coleman, as trustee for Carrie Wyatt Coleman, and next friend of Thomas D. Coleman, a minor, brought complaint against Thomas J. Davies upon a promissory note, dated May 9th, 1864, due thirty days after the date thereof, payable to John S. Coleman, as trustee, for the sum of $10,049.13, with interest from May 1st, 1864, returnable to June Term, 1870.

<p>When on the trial of a case substantial justice has been done under the evidence disclosed in the record, although there may have been some errors in the rulings of the Court, the verdict of the jury ought not to be disturbed.</p> <p>Whether a judgment of foreclosure of a mortgage bars a claimant under purchase from the mortgagor subsequent to the mortgage from setting up defenses which might have been made by the mortgagor, discussed. (R.)</p>

<p>The Act of October 30th, 1870, establishing a system of common schools and reorganizing the county boards of education, taken in connection with the Constitution of 1868, abolishing the Inferior Court, and casting its duties upon the Ordinary, is a repeal by implication of section 378 of the Code, making the Ordinaries the treasurers of the boards of education of their respective counties. The treasurer of the county, and not the Ordinary, is now by law the treasurer of the board of education.</p>

Novation. Relief Act of 1870. Tax Affidavit. Before Judge Gibson. McDuffie Superior Court. October Adjourned Term, 1871. Plaintiff in error brought complaint against defendant in error on a promissory note, dated January 30, 1866, due one day after date, for the sum of $494 32.

Sale for future delivery. Policy of law. Illegal Consideration. Ratification. Principal and agent. Before Judge Gibson. Richmond Superior Court. June Term, 1871. Wilson C. Hewitt brought complaint against Warren, Lane & Company for the recovery of $2,000 on a due bill, and $2,000 on an account for cash, paid to said Warren, Lane & Company to invest in cotton for said Hewitt.

<p>When a set-off had been pleaded to the plaintiffs’ action, it was error to allow the plaintiffs, on their own motion, to dismiss their own action, on the ground of their own default in not having paid all legal taxes on their own debt, as required by the Act of 1870.</p>

Proceeding against tenant holding over. Motion for new trial. Evidence. Before R. L. Warthen, Esq., presiding by consent. Washington Superior Court. October Adjourned Term, 1870.

Relief. Tender. Motion to open judgment. Before Judge Robinson. Wilkinson Superior Court. April Term, 1871. On the 29th day of November, 1869, an execution issued from Wilkinson Superior Court, in favor of plaintiff in error, against defendants in error, for the sum of $2471.00, besides interest and costs. This execution was levied upon a certain tract of land, as the property of Edward J. Coats, on February 27th, 1868.

Distribution. Election by widow. Before Judge Robinson. Morgan Superior Court. March Adjourned Term, 1871. This case was an appeal from the'Court of Ordinary upon the distribution of the estate of Briggs H. Moultrie, deceased. Briggs H. Moultrie departed this life in August, 1862, intestate, leaving a widow and six children. His widow, Mary J. Moultrie, died in April, 1863.

<p>In a murder trial, if the State prove by cross-examination of a witness for the defense, that “not a negro in the neighborhood was friendly to prisoner(who was himself a negro) and the evidence of guilt rests solely on the testimony of one witness, who was also unfriendly to prisoner, and the prisoner offer to prove the cause of his unpopularity with his own race, he should be permitted to do so.</p>

<p>Money rule. Evidence Usury. Before Judge Robinson. Morgan Superior Court. March Adjourned Term, 1872.</p> <p>Early W. Thrasher held an execution against Baldwin Copeland, issued from Green Superior Court, September Term, 1860, for $15,989.52. A. G. Foster held an execution against said Copeland, issued from Greene Superior Court, March Term, 1863, for $4,039.09, principal, and $620.44, interest. Foster’s execution was levied upon a house in Madison, on November 1st, 1867, which was sold by the sheriff on January 7th, 1868, for net sum of $2,159. In August or September, 1863, Copeland paid to Thrasher $17,000 in Confederate money, taking receipt for the same. This amount was not credited upon the execution because it was not at hand. After the sale Thrasher and Copeland agreed that the $17,000 Confederate currency should be counted as only $10,000. Thrasher entered a credit of that amount on the execution on March 19th, 1869, as of September, 1863. Foster contended that Thrasher’s execution was fully paid off and discharged. An issue was formed and submitted to a jury. There was some evidence introduced as to there being usury in the original indebtedness from Copeland to Thrasher. Foster sought to prove the sayings of Copeland in the absence of Thrasher, as to the payment of the execution, upon the alleged ground that there existed a conspiracy between Thrasher and Copeland to keep the execution open, with intent to defraud other creditors. The jury found due to Thrasher upon his execution $2,407.48. A motion was made for a new trial, which was overruled by the Court, whereupon plaintiff excepted upon the following, among other grounds: “1st. Because a new trial was refused upon the ground that the verdict was contrary to evidence and principles of justice and equity. 2d. Because a new trial was refused on the ground that the verdict was contrary to the following charge of the Court: “The effect of usury is to annul and make void the contract for the usury, the lender having the right to recover the principal sum, with legal interest.” 3d. Because a new trial was refused on the ground that the Court erred in refusing to allow the sayings of Copeland to be given in evidence.”</p> <p>1st. A new trial should be granted because the verdict is contrary to the evidence: Code, sections 3662, 3666; 15 Georgia Reports, 565; 17 Georgia Reports, 228; 18 Georgia Reports, 367; 19 Georgia Reports, 145; 20 Georgia Reports, 135, 671, 652; 24 Georgia Reports, 591; 25 Georgia Reports, 576; 26 Georgia Reports, 325, 360; 30 Georgia Reports, 1, 116. 2d. The sayings of Copeland admissible: Code: section 3663.</p>

Guardian and ward. Assignment of error. Ordinance of 1865. Compounding interest. Before Judge Robinson. Morgan Superior Court. March Term, 1871.

Criminal law. Simple larceny. Circumstantial evidence. New trial. Before Judge Robinson. Jones Superior Court. October Term, 1871. The plaintiff in error was indicted for simple larceny. Upon the trial the following evidence was introduced : EVIDENCE FOR THE STATE. William Roberts, sworn : Witness lost a horse, on the night of the 2d of August, 1871, in Jones county, Georgia. Horse was taken out of the lot, the gate of which was at night locked.

Assessment of damages under railroad charter. Right of way. Before Judge Robinson. Jones Superior Court. October Term, 1871. An award was rendered by arbitrators to assess damages in favor of defendant in error against plaintiff in error, for running a railroad through the land of the former. An appeal was entered by plaintiff in error to the Superior Court. The case was submitted to a jury, who found a verdict in favor of defendant in error, for the sum of $1,300.50.

New Trial. Relief Act of 1868. Equitable defense. Before Judge Robinson. Morgan Superior Court. September Adjourned Term, 1871.

Equity. Continuance. Alteration. New Trial. Before Judge Robinson. Morgan Superior Court. September Adjourned Term, 1871. James C. Anderson and others filed their bill against Early ~W. Thrasher, as executor upon the estate of Barton Thrasher, deceased.

New Trial. Lease. Executor de son tort. Before Judge Robinson. Jones Superior Court. October Term, 1871. For the facts of this case, see the opinion. 1st. Verdict void for uncertainty: Code, sec. 3501; 8 Ga. R., 201; 17 Ibid., 361. 2d. New trial granted; only in case of abuse of discretion will the judgment be reversed: 42 Ga.

<p>Under the Judiciary Act of 1799 and the Act of 1839 amendatory thereto, a mortgage on personal property executed by one non-resident of the State at the time, may, if the property be brought into this State, be foreclosed in the county where the property may be found, and section 3895 of the Code providing for the cases therein mentioned does not repeal the Acts of 1799 and 1839 in this respect.</p>

Homestead. Appeal. Amendment of petition for homestead. Writ of possession. Former judgment. Tried before Judge Schley. Screven Superior Court. May Term, 1871. These two cases were argued together. The first was a caveat to a homestead applied for by plaintiff in error.

Criminal law. Indictment for malpractice. Arrest of judgment. New trial. Before Judge Schley. Chatham Superior Court. May Term, 1871.

Habeas corpus. Parent and child. Master and servant. Apprentice. Before Judge Schley. Chatham county. At Chambers, August 1st, 1871. This case arose upon a writ of habeas corpus, on the petition of John D. McElvin, alleging that Simon Bisset, an infant, was his apprentice, and was illegally detained from him by William W. Mitchell and Simon Lee.

<p>The Act of 1869, giving to mechanics a lien upon the property of their employers for labor performed and materials furnished, contemplates such mechanics only as perform the labor and furnish the materials to the employer. The Act does not contemplate a manufacturer of materials sold to the employer in the usual course of trade, although that manufacturer may be a mechanic.</p>

<p>Appropriation of payments. Advances. Before Judge Schley. Screven Superior Court. May Term, 1871.</p> <p>F. W. Sims & Company brought complaint against James L. Hilton upon two promissory notes, one dated March 1st, 1869, due on or before December 1st, 1869, for the sum of $106.12, being for 2115 pounds of Peruvian guano; the other, dated March 27th, 1869, due on the first day of November next thereafter, for the sum of $2000, for value received. Plaintiff introduced these notes and closed. Defendant introduced a mortgage, bearing even date with the last of said notes, and executed for the purpose of securing the same. The condition of said mortgage is as follows : “ Now, should the party of the first part well and truly pay or cause to be paid to the party of the second part all and every the advances that may be made by the party of the second part, for the use and benefit of the party of the first part, at his request, from this date to the said first day of November, 1869, whether the same be by advance of money, goods or other things, or acceptances of drafts or orders, of the party of the first part, or money paid for his use, and all the usual charges, commissions and interest for said advances, acceptanees or payments, and the same shall well and truly pay by November 1st, 1869, then this indenture, as well as said promissory note, shall cease and determine.” The evidence showed that, after allowing all credits, defendant was still indebted to plaintiffs in the sum of $657.57 for advances; that advances were made after November 1st, 1869, in shape of drafts drawn by the defendant' in favor of third persons, and of notes on defendant paid by plaintiffs; that no new contract was made in reference to these additional advances; that the business relations were continued after November 1st, 1869, as they had been carried on between the parties before; that defendant, after the date aforesaid, had shipped plaintiffs cotton and had drawn on them; that he had never notified plaintiffs that their former manner of doing business was at an end ; that defendant did not notify plaintiffs that he was not drawing upon them under the mortgage as collateral security; that on the first day of November, 1869, defendant was indebted to plaintiffs the sum of $1,293.57; that cotton had been shipped by defendants to plaintiffs since the aforesaid date, but the proceeds, with the exception of the credit allowed, had been drawn out. The jury returned a verdict for the plaintiffs for the sum of $657.57. Whereupon defendant moved for a new trial, which motion was overruled by the Court, and defendant excepted upon the following grounds, to-wit:</p> <p>1st. Because the verdict is contrary to law.</p> <p>2d. Because the verdict is contrary to the evidence.</p> <p>3d. Because the verdict is contrary to law and the evidence.</p> <p>4th. Because the verdict is contrary to the charge of the Court.</p> <p>5th. Because the Court erred in charging the jury “that said note sued on for $2,000, and the contract under which it was given, was a continuing contract, and that said note would, without an express agreement, cover as a collateral up to the amount of the note, any advances made by the plaintiffs to defendant after the first day of November, 1869, and that plaintiffs could, in the suit on said note, recover on any balance due to them on such advancements made after said November 1st.”</p> <p>6th. Because the Court erred in charging the jury “that if defendant neglected to give notice to plaintiffs that said note for $2,000 ceased and determined upon the payment to plaintiffs by defendant of the amount covered by said note, as a collateral, the plaintiffs could recover in a suit on said collateral note any amount the jury might find due to plaintiffs at the commencement of the suit for advances, even though defendant had by said November 1st, paid plaintiffs all indebtedness for advances made up to that time, and although defendant had paid plaintiffs, before the commencement of said suit, all indebtedness before the date of said note, and the amount of $2,000, and commissions and interest for advancing the same.”</p> <p>7th. Because the Court erred in charging the jury “ that the Court’s construction of the contract, by which said collateral note was given, and which contract is contained in the mortgage deed given by defendant to plaintiff’s, and in evidence on said trial, was that plaintiffs had agreed to advance to defendant, and that these advances were not to exceed at any one time $2,000; but that the contract, according to the Court’s construction, did not mean that said note was to be collateral only for such advances as might be made from the date of said collateral note to said November 1, to the amount of $2,000.”</p> <p>8th. Because it being in evidence that the balance claimed by plaintiffs was a balance on open account, it was the duty of the jury, under the charge of the Court, so to have moulded their verdict as to protect the defendant against any subsequent suit upon said account, whereas the verdict is general for the plaintiffs.</p>

<p>One who buys or receives goods, chattels, money or other effects that have been stolen, or feloniously taken from another, knowing the same to have been stolen, or feloniously taken, may be indicted as an “ accessory after the fact,” under the provisions of the 4420th section of the Code, that section creates and defines a distinct offense.</p>

Equity. Illegitimates. Rules of inheritance. Tried before Judge Schley. Chatham Superior Court. May Term, 1871. This was a bill in equity, filed by William Davidson and Rose Brice, formerly Davidson, against William J. Campbell, as administrator upon the estate of Susan Jackson, deceased, and the distributees of said estate.

<p>Under the provisions of the Code, the vendor of a chattel (in the absence of any express warranty) warrants that the article sold is merchantable, and reasonably suited to the use intended, and that he knows of no latent defects undisclosed, and a partial failure of consideration may be pleaded to such sale against the vendor of the chattel, when the defect in the chattel was not apparent to the purchaser at the time of the sale and not disclosed by the seller, especially when the evidence shows that the vendor knew of the defect in the chattel sold prior to the sale.</p>

<p>Injunction. Homestead. Before Judge Green. Upson Superior Court. May Term, 1871.</p> <p>Stephen. Hollingsworth filed his bill against Oliver Smith and John A. Cochran, as administrator upon the estate of John W. Pate, deceased, in which he alleged that, on October 20th, 1860, complainant and said Pate purchased from Oliver Smith, jointly, a certain tract of land, for the sum of $1,600, one-half of which sum was to be paid in cash, and the other half at a future day; that complainant paid $800 in cash, and that it was agreed that the said Pate should pay the balance. Complainant set up a homestead in said land, laid off to him under the Act of 1868, and prayed an injunction against the sale of the same, under an execution in favor of said Smith for the balance of the purchase-money, and also a writ of partition, as against the administrator of Pate, deceased. Upon the trial, the evidence as to the agreement above set forth was conflicting.</p> <p>Complainant requested the Court to charge, “that if the jury should find that the homestead, under the Act of 1868, would not be available, and which was one of the questions involved in this case, then the jury might still find and decree an injunction against the execution of Oliver Smith temporarily restraining it, as to fifty acres of said land, under section 2013 of the Code, if they believed complainant was the head óf a family,” which charge the Court refused to give, and, on the contrary, charged the jury as follows: “If you believe that complainant has made application for a homestead, under the Constitution of 1868, and subsequent legislation under said Constitution, and that the same has been allowed him by the Ordinary, you should not decree a temporary injunction against the defendant to give complainant time to apply to the Ordinary, under section 2013 of the Code. The Court does not hold that complainant is not entitled to a homestead, under said section, but, in the event that you find a homestead has been laid off and assigned, under the Constitution of 1868, according to law, you cannot now, in this proceeding, inquire as to his right to a homestead, under section 2013 of the Code.” To which charge, as given, and refusal to charge, complainant excepted, and now assigns the same as error.</p>

Equity. Evidence. Confidential relation. Conduct of counsel. Admissions. Judgment lien. Sale by executor. Rescission. Before Judge Green. Spalding Superior Court. August Term, 1871.

<p>(Montgomery, Justice, did not preside in this case, having come upon the Bench since it was argued. The decision was reserved from July Term, 1871, to await the ruling of the Supreme Court of the United States, in the case of White vs. Hart, 13 Wallace, 616.)</p> <p>The seventeenth section of the fifth Article of the Constitution of 1868, which declares that “No Court or officer shall have, nor shall the General Assembly give jurisdiction to try, or give judgment on, or enforce any debt, the consideration of which was a slave or slaves, or the hire thereof,” is in violation of the tenth section of the first Article of the Constitution of the United States, and is therefore null and void.</p>

<p>Injunction. Eminent domain. Municipal corporation. Before Judge Schley. At Chambers. February 13th, 1872.</p> <p>Defendant in error filed its bill against plaintiff in error, in which it was charged that on December 11th, 1871, an Act was passed by the General Assembly of Georgia, incorporating certain persons therein mentioned, under the name of The Savannah and Thunderbolt Railroad Company, with power to lay a railroad track through the length of Abercorn street, in the city of Savannah, beginning at its junction with Bay street, and to run cars drawn by animal power on said track, within the corporate limits of said city; that under said Act, which was passed without complainant’s knowledge or consent, said company claims that it has the right and legal power to lay a railroad track through the public squares of said city, between the northern and southern termini of said Abercorn street; that said company claims that said squares are parts of Abercorn street; that, at a time beyond the memory of any person now living, and at the original laying out of the town, Reynolds square and Oglethorpe square, with the exception, perhaps, of the areas skirting the northern and southern .sides, and forming parts of public streets running east and west, were dedicated to public uses, and set apart for the comfort, health and convenience of the lot holders and inhabitants of said town, and of persons seeking business or pleasure there, exclusive of the right or claim, or pretense of right in or by any person whatsoever, to traverse said squares, in or with any cars, carriage or other vehicle; that with the possible exception aforesaid, no streets were ever intended to run through said squares; that such dedication and setting apart, good and valid in the origin, have been repeatedly recognized by all the departments of government of the State, with the acquiescence of complainant, and of all previous governments or guardians of Savannah; that for many years past, and as evidence of such dedication and setting apart, all the areas of said squares, not necessary for said skirting streets, have been enclosed and kept enclosed, except for ingress and egress by persons on foot; that all these things are true of Lafayette and Calhoun squares, except in so far as there is a difference or distinction growing out of the more recent dedication and setting apart of said last mentioned squares; that defendant has notified complainant of its claims, which claims complainant charges have no authority in law, and are beyond the power of the Legislature of Georgia, or of the corporation of the city of Savannah; that defendant failing to obtain complainant’s permission to lay said track and run through said squares, has threatened and still threatens so to do without the permission of complainant; that the only remedy is by writ of injunction.</p> <p>On January 13th, 1872, Judge Schley ordered that defendant show cause why an injunction should not issue in accordance with the prayer of the bill, and directed that his order should operate as an injunction until cause shown. On January 26th, 1872, defendant showed for cause why an injunction should notissue, the Act of Incorporation heretofore alluded to, and which it is unnecessary further to set forth. On February 13th, 1872, Judge Schley decided said Act of Incorporation to be unconstitutional and void, and ordered an injunction to issue in accordance with the prayer of the bill, to which decision plaintiff in error excepts, and says that the Judge erred :</p> <p>1st. In deciding said Act of the Legislature to be unconstitutional and' void.</p> <p>2d. In deciding that the Legislature had no power to grant to said Savannah and Thunderbolt Railroad Company the right to construct their railroad through Abercorn street and the squares intersecting it.</p> <p>3d. In granting the injunction as prayed for.</p> <p>Judicial notice taken of the laws of Georgia and Ordinances of the city: 1 Greenleaf Ev., sec. 6; Code, sec. 3762; 16 Ga. R. Title to streets and squares in the city, with restrictions: Act of May 1st, 1760; R. M. Charlton, 349; 33 Ga. R., 614; Code, sec. 4759; 27 N. Y., 188. Tenure of realty limited by right of eminent domain : 6 How., 532; Code, secs. 2195, 2196. Legislature judge of exigencies requiring exercise of right of eminent domain: Code, see. 2197; 21 N. Y., 595; 23 Pick., 396. Eminent domain exercised through corporate bodies, on just compensation : Code, secs. 2198, 2199. Legislature may control streets and squares of a city: 34 Barb., 494; 27 N. Y., 188,192; 17 Ga. R., 60; 16 Pick., 104,105. Legislature may change one kind of public use for another : 27 N. Y.; 16 Pick., 102, 105; 4 Cush., 70-72; 17 Ga., 60, 61. Providing a channel for commerce is a public use: Code, sec. 2196. Act could be passed without the assent of the corporation: 27 N. Y., 199, 213, 214; 10 How., 532, 538. Power of alienation limited by the State to an Act of the Legislature: 33 Ga., 614, 615. Restrictions by a former Legislature would be void : 1 Redf. on R., 260; 17 Ga., 59, 60. Law is the same, whether point is made by the corporation or by the people: 38 Barb., 369. Limitation on right of eminent domain is confined to exclusive rights : Code, sec. 2199. Grant only imposes additional servitude: 23 Pick., 392. Property holder takes, subject to right of eminent domain: 17 Ga., 60; 6 How., 532; 9 Ga., 524; 25 Ga., 458. No prescription lies against the State: Code, sec. 2690. Act is constitutional: 6 How., 532; 10 How., 534.</p> <p>The title to the streets is, prima fade, in owners of adjoining lots: 33 Ga. R., 601. If not in them, then in the Mayor and Aldermen of Savannah, subject to specified terms, and cannot be taken without just compensation : 13 Min. R., 315; 16 N. Y. R., 97-109; 4 Cush. R., 63; 19 N. J. R., 386; 39 N. Y., 404; Cooley's Cons. Lim., 544, 553; S. C. R. R. vs. Steiner, decided at January Term, 1871. The Act makes no provision for paying or ascertaining compensation: 1 Ga. R., 524; 3 Idem., 31; 9 Idem., 37. Quantum of damages not material. County road altered, damages to abutting owners must be paid: Code, secs. 643, 2970.</p>

<p>Illegality. Award. Amendment. Before Judge Clarke. Sumter Superior Court. October Term, 1871.</p> <p>The questions in this case arose upon an affidavit of illegality filed to an execution in favor of Mary E. Bird against T. N. W. Horn and J. R. G. Horn, issued from the Superior Court of Sumter county, on March 3d, 1871, for the sum of $1,626.60 principal, besides interest in costs. The execution was directed to the proper officers of the State, and commanded them to cause to be made the aforesaid sum of money from “ the goods and chattels, lands and tenements of John E. J. Horn, in the lands of Joel R. G. Horn and Thomas N. W. Horn, administrator, and in default thereof, of the goods and chattels, lands and tenements of said Joel and Thomas.” This execution was issued upon an award in a certain equity cause pending in Sumter Superior Court, the only material portion of which is as follows: “We further award that the said Joel R. G. Horn and Thomas N. W. Horn, as administrators of the said John E. J. Horn, pay to the said Mary E. Bird the sum of $1,626.60, the amount due her as her share of the rents and profits, and interest thereon as above stated, after deducting the said amount of $444.00.” The fi. fa. was levied upon the individual property of J. R. G. and T. N. W. Horn. The plaintiffs in error filed an affidavit of illegality, setting up the following grounds :</p> <p>1st. That said execution, if legal, could not have been levied upon deponent’s individual property until the property of the estate of J. E. J. Horn had been exhausted by levy and sale, which has not been done.</p> <p>2d. That said execution has been levied on deponent’s individual property, when the judgment, upon which it purports to have been founded, is simply a judgment generally against the estate of J. E. J. Horn.</p> <p>3. That deponents, to the best of their knowledge and belief, and as they are advised, have paid off and discharged the interest of plaintiff in the judgment on which said execution is founded.</p> <p>Defendant in error demurred to said grounds of illegality. Whilst the Court was delivering its judgment upon the demurrer, plaintiffs in error moved the Court “to allow them to make the following amendment to the affidavit of illegality, the facts of which amendment deponents did not know of at the time the original affidavit of illegality was filed, for the reason that the receipts taken from plaintiff’s attorney, showing the payments which had been made on said fi. fa. were not before defendants, but were at the time inaccessible. That defendants paid on said fi. fa. the sum of $1,200, on or about February 25th, 1870, and the balance due thereon they paid on or about December 6th, 1870.” The Court overruled the motion to amend and sustained the demurrer, whereupon plaintiffs in error excepted.</p>

<p>When the Brunswick and Albany Railroad had, at great expense, graded a street of the city of Albany of sufficient width for laying therein two railroad tracks, on an assurance from the City Surveyor that, should the Southwestern Railroad desire also to use the street, the city would require the Southwestern Railroad to pay to the Brunswick and Albany Railroad half the expense of the said grading, etc., and the City Council afterwards, in view and furtherance of the said assurance, granted to the Southwestern Railroad the right to use said street, provided it paid to the Brunswick and Albany Railroad the half of said expense, and the Brunswick and Albany Railroad laid their track so as to conform to this grant of the city to the Southwestern Railroad:</p> <p>Held, That equity will restrain the city of Albany from revoking the conditions of their grant to the Southwestern Railroad and directing the money to he paid to the city, and will also restrain the Southwestern Railroad from paying the money to the city.</p>

Administrator de bonis non. Devastavit. Before Judge Harrell. Stewart Superior Court. October Term, 1871.

<p>Application for mandamus. Writ of error to dissolution of injunction. Before the Supreme Court of Georgia. January Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Conditional deed or mortgage. Relationship of Ordinary. Separate estate. Homestead. Before Judge Davis. Hall Superior Court. March Term, 1872. James W. Burnside brought complaint for a certain tract of land situate in the county of Hall, known by number forty, in the tenth district of said county, against Bird Terry, Bowling W. Field and his wife, Levada Field.

Injunction. Mortgage. Construction of will. Notice. Before Judge Cole. Twiggs County. At Chambers. July 26th, 1872.

New trial. Evidence. Declaration. Fraud. Trust. Parties. Before Judge Parrott. Floyd Superior Court. January Term, 1872.