Volume 47 — Georgia Reports

<p>Where It does not appear in the petition for certiorari that the execution based upon a laborers’ or mechanics’ lien foreclosed before a Justice of the Peace of a district in which the petitioner did not reside, was not to be levied upon property in the district in which she resided, or that she had filed a counter-affidavit, as required by section 1970 of the Code, or if she had done so, that the proceedings would not have been returned, and the case tried in the district of her residence, it was not error in the Judge to refuse his sanction. (R.)</p>

<p>Arbitration and award. Evidence. Fraud. Mistake. Umpire. Specific performance. Verdict. Before Judge Robinson. Morgan Superior Court. March Term, 1872.'</p> <p>Barton H. Overby and Nicholas 'Overby filed their bill against Early W. Thrasher, containing, substantially, the following allegations, to-wit:</p> <p>That, on September 4th, 1868, having certain matters of dispute between them and said defendant touching his liability, growing out of and connected with the guardianship of complainants while they were minors, for the full settlement of the same, entered into the following agreement:</p> <p>"GEORGIA — Morgan county:</p> <p>" Whereas, there are matters of controversy between liarly W. Thrasher, guardian, of- the county of Morgan, and Barton H. Overby and Nicholas Overby, both wards of, the said Early W. Thrasher, and both of the county of Clarke, embracing all matters between them as guardian and wards'; It is, therefore, agreed between the parties ¡hat all matt rs and things growing out of and connected with said gu t ¡ship be submitted to the arbitrament and award of Augusta? Reese, Isham S. Fannin and Nathaniel G. Foster, who shall have power to investigate all matters and determine the same according to law and equity, and to send for persons and papers under section of Code of Georgia authorizing arbitrations, and said arbitration shall be had at as early a time as possible, and the award, wheiji rendered, shall be made the judgment of the Court and be final between the parties touching the matters under consideration.</p> <p>“Signed and delivered this 4th day of September, 1868.</p> <p>(Signed) “ Early W. Thrasher, [l. s.]</p> <p>■“Barton H. Overby, [l. s.]</p> <p>“ Nicholas Overby. [l. s.]”</p> <p>That said arbitrators met and, after a lengthy investigation, made the following award:</p> <p>“Madison, Morgan-county, Ga., October 19, 1868.</p> <p>“We, the undersigned, arbitrators, having carefully investigated all the matters and things connected with and growing out of the guardianship of Early W. Thrasher, for Barton and Nicholas Overby, minors of Bazil IT. Overby, deceased, the same having been referred to us under and by the submission herewith submitted, do make the following award: We find that the said Early W. Thrasher has in his hands, as guardian of his four wards, to-wit: the said Barton, and Nicholas, (Earl and Callie Overby still minors) the sum of $6,301 25, that being the principal and interest now due on that fund. That of that fund the said Barton and Nicholas Overby are entitled each to one-fourth; that is to say, $1,575 25 each. We further find that there is in the hands of said Thrasher, as guardian of Barton Overby, upon his separate and individual account, the sum of $976 40, including the $1,575 31, his portion of the general fund; that his said guardian owes him principal and interest up to to-day the said last mentioned sum of $976 40. We further find that the said Barton Overby is entitled to one-third of the value of the receipt for notes of S. B. Hoyt, attorney at law, of Atlanta, it being a receipt given by said Hoyt to Early W. Thrasher, guardian for Barton, Earl and Callie Overby. It being one note on William M. Butt and George Johnston, for $80 00, dated 7th January, 1861, and due December 25th, 1861; one on W. A. Henderson, and C. A. Whaley, for $200 00, dated 1st of March, 1861, and due 25th December, 1861; one on P. Shortell and John Ennis, for $192 00, dated 1st of January, 1861, and due 25th December, 1861. Said receipt having a credit on the note of Whaley & Henderson, of $137 11, dated 7th January, 1862. We further find that the receipt of Baugh for the note given him for collection, the note being for sale of a negro woman, Douly,.for $525 00, be turned over to said Barton Overby as his property; the two receipts having been excluded'from the charges against said Early W. Thrasher. We further find that accounts and notes 'which were before us, presented by said E. W. Thrasher against said Barton Overby, and which were not embraced in the record from the Court of Ordinary, be surrendered to said Overby, to-wit: pencil memorandum note of J. C. Anderson for $58 00, November 5th, 1867; note of William Gleason for $15 00, dated April 2d, 1868; note of P. R. Thomason for $169 00, dated June 11th, 1868; E. W. Thrasher, for $25 00, August 16th, 1867; N. S. Hough, $4 11, October 28th, 1867; Bearden, $166 31, January 14th, 1868; E. W. Thrasher, signed Overby, and his wife Josephine, for $1,000 00, and dated January 15th, 1867; order to A. Thrasher for $500 00,- dated 14th June, 1867. We further find that the sofa which was in controversy is the property of the said E. W. Thrasher, and shall be retained by him. We further find that there is in the hands of the said Early W. Thrasher; as guardian of Niel)olas Overby, including the general fund, as well as his individual account, principal and interest up to to-day, $1,745 53. We further find that the pencil memorandum of $22 00, one note to E. W. Thrasher for $72 00, dated January 2d, 1867; to same for $146 00, April 9th, 1868; to same for $37 00, October 9th, 1866; to same for $>902 64, October 2d, 1866, be surrendered, to said Nicholas Overby, the same having been allowed in the settlement. We further find that the arbitrators be allowed the sum of $100 00 each for their services, to be paid equally; that is to say, $100 00 by each of the parties to this settlement, and that the said Thrasher pay $100 00 from each of the two funds found against him in this award, and that it be allowed him in the settlement of the same. We therefore award that the said Barton Overby recover of the said E. W. Thrasher the sum of $976 40, subject to the fee of $100 00, to be paid in the currency now prevailing, and also the papers referred to in this award; and that the said Nicholas Overby recover the sum of $1,745 53, subject to the fee of $100 00, to be paid in the currency now in use, and also the papers referred to in this award. And that each of the undersigned arbitrators have $100 00 to be paid as hereinbefore, specified; and that, the parties recovering in this award have eacb a fi. fa. for the amounts respectively found in his favor, any time after four days after the adjournment'of the Court to which this award may be returned and made the judgment. The several amounts found to bear interest from this day.</p> <p>“Augustus Reese, [l. s.]</p> <p>(Signed) “ Nathaniel G. Foster, [l. s.]</p> <p>“I. S. Fannin, [l. s.]</p> <p>“Madison, 19th Oct. 1868.- Arbitrators.”</p> <p>That complainants, at the March Term of Morgan Superior Court next after the rendition of said award, moved to have the same entered upon the minutes and made the judgment of said Court, when to their utter astonishment the said defendant resisted said motion on the ground that the arbitrators were not selected according to the provisions of what is known as the general arbitration statute, which objection was sustained by the Court; that by reason of this conduct on the part of said defendant said award was not made the judgment of the Court; that complainants have always been ready and willing to comply with their portion of said award, but said defendant, though frequently requested, has utterly failed and refused to comply with his. Prayer, that said defendant may be decreed specifically to do and perform all and singular the matters and things required of him by said award; that the writ of subpoena may issue.</p> <p>The defendant, Thrasher, pleaded to said bill substantially as follows, to-wit:</p> <p>That the award of the arbitrators was the result of accident, or mistake, or the fraud of some one or all of .the arbitrators, or is otherwise illegal, as will be shown by facts and figures hereafter set forth:</p> <p>1st. As appears from returns in the Ordinary’s office, and which were in proof before the arbitrators, this defendant had in his hands for Nicholas Overby, on January 2d, 1862: . •</p> <p>January 2d, 1862, in Confederate money....,,.....................: 17 87</p> <p>“ “ “ for Barton Overby, Confederate money.... 48 45</p> <p>“ 1st, “ rec’d of J. Winship, adm’r, for two wards. 350 00</p> <p>February 1st, “ “ “ “ “ “ “ “ 1,640 00</p> <p>April 1st, “ “ “ “ “ “ “ “ 300 00</p> <p>June 6th, “ “ “ “ “ “ “ “ 250 00</p> <p>February 17th, 1863, “ “ “ “ “ “ “ 700 00</p> <p>April 20th, “ “ “ • “ “ “ “ “ 400 00</p> <p>June 7th, “ “ from sale of negroes for B. H. Overby. 2,807 00</p> <p>“ “ “ “ “ << “ a “ N. Overby..... 2,620 00</p> <p>Jan. 7th, 1863, total amount that went into defendant’s hands.! 9,133 32</p> <p>Allowing interest, to May, 1866, when the first return was made after the close of the war............................................. 1,836 84</p> <p>Total amount, including interest, in defendant’s hands.'.........$10,970 16</p> <p>The records of Ordinary’s Court, which were in evidence, showed that defendant had disbursed for the wards from January 1st, 1862, to May 1863, for N. Overby............... 313 06</p> <p>•For B. H. Overby............................................................ 735 77</p> <p>From May, 1863, to end of war, for N. Overby..................... 861 08</p> <p>From May, 1863, to end of war, for B. Overby..................... 2,338 57</p> <p>Amount invested in March, 1862, in sugar and molasses, after-wards impressed by the Confederate States and lost......... 759 90</p> <p>Amount funded in Confederate bonds to save 33J discount on old issue in 1863, kept on hand until March, 1864........... 3,000 00</p> <p>In September, 1864, loaned to Reese & McHenry................. 2,000 00</p> <p>In January, 1865, loaned to Hugh Ogilby............................ 1,000 00</p> <p>In February, 1865, invested in cotton yarns, etc.................... 1,000 00</p> <p>Total amount expended.............................................$11,986 38</p> <p>This left a balance in defendant’s favor of........................... 1,016 22</p> <p>Deducting this amount from $1,100 00 used by defendant for the payment of his own taxes, leaves in favor of complainants.................................................................. 83 78</p> <p>Therefore, defendant pleads that the award is illegal in this, that'instead of the above result the arbitrators find that defendant was indebted largely to the wards, when defendant, also, testified that the investments in- Confederate securities and money were made in perfect good faith; defendant further testified that the money would have been lost on his hands had he not invested it, and that a calculation shows that defendant only had on his hands at the end of the war the proceeds of the Confederate money loaned Plugh Ogilby, in January 1865, which, as proven, has been compromised and settled for $75 00 in greenbacks; that the Reese & McHenry debt has been compromised by the giving of a new note by the parties for $250 00, still unpaid; also, the proceeds of the investment in cotton yarns and thread made in February, 1865, which yielded about $100 00; that these amounts, after deducting $83 78, amounting to less than $300 00, was all defendant was due to the said complainants ; that in addition to the above figures, defendant had disbursed for the wards since the war the sum of $2,622 00 in good money.</p> <p>2d. Defendant further pleads that the award was illegal and without evidence to support it in this, that if he was liable at all for the Confederate money invested and expended from January, 1862, to the close of the war, in no event was he liable' for more than its value at the time of investment in good money, with interest to the date of the award, as follows, to-wit:</p> <p>March, 1862. Sugar and molasses, $739 90, worth $1 50 for one........................-.................................................. $491 93</p> <p>Interest to date of award................................................... 193 15</p> <p>March, 1864. Confederate bonds, $1,900, $1,100 having been used for defendant’s taxes, making $3,000, worth $20 for one.......................................................................... 150 00</p> <p>Interest to date of award................................................... 58 50</p> <p>'Amount brought forward.................... $ 893 58</p> <p>September, 1864. Loaned Reese & McHenry $2000, worth $21</p> <p>for one.................................................................... 94 26</p> <p>Interest on same to date of award...................................... 18 50</p> <p>^ January, 1865. Loaned Hugh Ogilby $1,000, worth $60 for one......................................................................... 16 66</p> <p>Interest on same to date of award....................................... 7 00</p> <p>February, 1865. Investment in yarns, etc., worth $55 for one 18 86</p> <p>Interest on same to date of award....................................... 5 53</p> <p>Total due wards, with interest to date of award.............. $1,007 70</p> <p>But defendant’s disbursements and advances for wards since ■ the war amount to...................................................... $2,622 00</p> <p>Amount due them........................................................... 1,007 70</p> <p>Balance in defendant’s favor...............................'.............. $1,661 43</p> <p>This calculation demonstrates the illegality of the award in this, that the arbitrators did not allow to defendant the benefit of the 4th section of Act of 1868, entitled “An Act for the Relief of Debtors,” etc.</p> <p>3d. Defendant further pleads that said award is the result of mistake, and illegal in this, that the returns to the Court of Ordinary, in proof before the arbitrators, showed that in May, 1863, the last return made during the war, on account of the occupation of Atlanta by the Federal armies, there was a balance in defendant’s hands of $8,737 67; and defendant further proved that from May, 1863, to the close of the war? he expended for the wards of that Confederate money the sum ■of $3,199 65, which, being deducted from the amount due in May, 1863, would only leave a balance of Confederate money of $5,338 02, and if defendant was liable at all for that amount, it could only be for the real value of Confederate money on May 16th, 1863, which was proven to be six dollars for one, or $923, together with interest on the same to the date of award, §345, adding to $923 leaves amount due to wards of $1,268, less the amount advanced to and expended for the wards since the close of the war, which was $2,622, which would leave a balance in favor of defendant of $1,354, and this without allowing defendant any commissions.</p> <p>4th. Defendant further pleads that the said award is illegal and ought not to be enforced in this, that the abitrators awarded that this defendant should pay $100 as part of their fees, when the questions in controversy were matters in connection with the estate. ‘ • 1 .</p> <p>5th. Defendant further pleads that the award is illegal in this, that the arbitrators charged against the defendant the hire of the negro girl Douly, amounting to about $100, which is in palpable violation of law.</p> <p>6th. Defendant further pleads that said award is the result of fraud in this, that N. G. Foster had been consulted and employed in regard to said issue by complainants prior to and before said arbitration was had; that the law firm of Foster & Foster, that is, A. G. & N. G. Foster, had a contingent fee dependent upon the final settlement of said case, all of which was unknown to defendant at the time the arbitration was had.</p> <p>7th. Defendant further pleads that said award is the result of mistake of law in this, that when defendant testified before the arbitrators that prior to the war, before he became guardian for said wards, he possessed and owned property to the amount of $70,000 00, and of that amount $50,000 00 was in negroes, which were lost by the war, and that defendant had sold during the war valuable real estate in the city of Madison for Confederate money, and that too was lost, and that he had made nothing in speculations during the war with his own or his ward’s money, and invoked for his relief the relief laws of the State of Georgia, they found and awarded, contrary to law and equity, that this defendant was due to one of the said wards $976 40, and to the other $1,745 53, aggregating the large sum of $2,721 93, when in truth there was a balance due ,to defendant of $1,661 43.</p> <p>8 th. Defendant further pleads that said award is the result of accident and mistake in this, that the arbitrators found, one-fourth of $6,301 25, to-wit: $1,575 25, as due to Barton H. Overby; said arbitrators further found that defendant held against said Barton H. notes and accounts amounting in the aggregate to $1,442 46 of cash funds loaned to him in good money since the war; and said arbitrators, after allowing the credit of $1,442 46, through mistake, found that defendant is due to Barton H. Overby $.976 40, instead of $132 79.</p> <p>9th. Defendant further pleads that said award is the result of accident and mistake, in this: that the arbitrators found that the defendant was indebted to Nicholas Overby one-fourth of $6,301 25, to-wit: $1,575 25. Said arbitrators further found that defendant held against Nicholas Overby notes and accounts amounting, in the aggregate, to $1,179 64 of cash funds loaned to and advanced for him since the war; and said arbitrators, after allowing the credit of $1,179 64> through mistake, found that defendant is indebted to Nicholas Overby $1,745 53, instead of $395 61.</p> <p>10th. Defendant further pleads that said award goes beyond the terms of the submission, in this: that the only matters submitted were the questions between complainants as wards and defendant as guardian, while the award covers notes and accounts due by Barton H. and Nicholas Overby to defendant, individually, and in no way connected with his said guardianship, one of said notes being for the large sum of $1,000 00 against Barton H. Overby and Josephine Overby, who was an entire stranger to the arbitration.</p> <p>Such portions, only, of the evidence are given as are necessary to an understanding of the decision of the Court.</p> <p>Albert M. Thrasher testified, “ that Nicholas Overby, one of the complainants, told him, while said arbitration was pending, that if he gained nothing he would lose nothing; that Foster’s fee depended upon what he got.”</p> <p>Barton H. Overby and A. G-. Foster testified, that no contract upon the subject of fees, in reference to said arbitration, or in reference to the claim upon which said arbitration was based, prior to the arbitration nor since, was ever made, so far as they knew, with the firm of N. G. & A. G. Foster, or Nathaniel G. Foster or Albert G. Foster, either conditional or certain; that the matter was never mentioned to N. G. Foster prior to the time when he was requested to act as an arbitrator.</p> <p>Augustus Reese testified, “ that he was one of the arbitrators selected by the parties and participated in making up the award; that the arbitrators, so far as he knows or believes, used all diligence and care in their power in obtaining the facts necessary to'enable them to ascertain the legal liability of the defendant to the plaintiffs, touching, connected with, or growing out of his connection with them as their guardian; that the arbitration, with consent of parties, was adjourned from time to time to enable the parties to procure testimony and papers; that his position in the arbitration, as he understood, was that of umpire, and, therefore, he expressed no opinion upon questions of law, except where the others differed ; that hé does not recollect that they differed upon any questions of importance, except the value to be put upon the disbursements of defendant in Confederate money; that, so far as he knows or believes, there was no mistake made by the arbitrators as to the law of the case, or as to the mode of making- calculations, looking to the facts developed before the arbitrators; that he has before him the memoranda of calculations upon which the award was based, and is unable to detect any mistake or error of law connected with the same, not having gone minutely into the calculations since the award was made up; that it is true the evidence proved that all the money received by Thrasher was in Confederate money, and that he was charged by the arbitrators with only its true value at the time of its reception.”</p> <p>The jury returned the following verdict: “We, the jury, set aside the award made by the arbitrators.”</p> <p>Complainants moved for a new trial upon the following grounds, to-wit:</p> <p>1st. Because the verdict of the jury is contrary to evidence and the principles of justice and equity.</p> <p>2d. Because the verdict is contrary to law.</p> <p>3d. Because all the testimony that was before the arbitrators in making the award was not submitted to the jury upon the trial, to-wit: a certificate from Joseph Winship, administrator de bonis non on the estate of B. TI. Overby, deceased, showing payments made by him to E. W. Thrasher, guardian of complainants and their brother and sister, during the years 1862 and 1863, of $7,280 00.</p> <p>The motion for a new trial was overruled by the Court, and complainants excepted and assign said ruling as error.</p>

<p>1. When on the trial of a bill filed by the vendor of property to set aside thé sale as fraudulent and void, on the ground that the defendants had falsely represented to the complainant that his life and property were in danger, by reason of the indignation of the people against him, for having raised over his property a British flag to protect it against a raid of the Federal forces during the late war :</p> <p>Held, That it was error in the Court to rule out the testimony of a witness, who was present at the transaction, as follows :</p> <p>“ The sale in all its features was a compulsory act, and affected through the misrepresentations of his legal adviser, who negotiated the whole transaction and, again, “ the sale was not of his own free will and accord and, again, “ Clark came to McLean several times, and on each occasion tried to succeed in impressing McLean with the belief that his safety could only be secured by relinquishing his interest in the factory and leaving the country and, again, “ the impression in my mind was, and still is, that McLean would certainly not have sold the property if he had not believed that his own life and the lives of his family were in danger, and that this belief was caused by the position represented by Clark and, again, “McLean was fraudulently led by Clark to believe that his life would be endangered by his retention of the property.”</p> <p>The statements of this witness, in connection with his other statements not ruled out, are statements of facts, or opinions of the state of McLean’s mind, based on facts stated, and were competent evidence to be judged of by the jury, from the witness’ means of knowing the facts as stated by him.</p> <p>2. declarations of a vendor of property, as to his motives for the sale, made at the time and during the progress of the sale, and even so soon thereafter as to be free from all suspicion of after-thought, are admissible evidence on d trial as to the validity of the sale.</p> <p>3. Where A is attorney atlaw for B in a controversy with C, and C makes to the attorney certain statements and propositions to be communicated to B, and at the same'time proposing that if B consents to the propositions the attorney should be employed in the matter proposed by B and C, and B declines the proposition:</p> <p>Held, That B may use the attorney as a witness to prove the statements, and that under the circumstances C cannot claim that they are privileged communications between client and attorney.</p> <p>4. Where a bill of exceptions, properly certified by the Judge, states as a fact, that on the trial he failed to give to the jury certain written requests to charge tendered by the complainant’s counsel, and it appears from the record that the Judge overruled a motion for a new trial for such failure, stating as the reason for his judgment that he did’in fact give the requests to charge to the jury as asked:</p> <p>Held, That this Court is bound by the facts, as stated and certified in the bill of exceptions, and not by the reasons given by the Judge in his judgment overruling the motion for a new trial, and as said requests were proper to be given in charge, the party is entitled to a new trial.</p> <p>5. Where A, with an understanding between himself and B and C, that they will be jointly interested with him, purchases property from D in his own name, and in the purchase commits a fraud upon D, and after-wards B and C are let into the purchase by A, as joint purchasers with him :</p> <p>Held, That B and C cannot claim to be innocent purchasers without notice of A’s fraud. As they stand in his shoes, they are charged with his act, whether they had notice or not, and if the fraud in fact exists, the purchase will be set aside against all.</p> <p>6. When on a trial a question arose as to the value of certain machinery of a cotton factory:</p> <p>Held, That it was error in the Court to e'xclude from the jury evidence that certain persons, responsible men, acquainted with the value of cotton machinery, had, in good faith, about the time inquired of, authorized the witness to offer, in cash, a certain sum for the same.</p> <p>7. It is error in the Court to charge the jury as to the law upon a state of facts in relation to which there is no evidence before the jury.</p> <p>8. It is error in the Court in charging the jury, on the trial of a bill filed, to set aside a sale on account of fraud to read to the jury the statements in the bill, even to the minutest particulars -of the plaintiff’s case, and then say to the jury if you find these statements in the bill sustained by the proof, to find for the complainant, if not, to find for the defendant. It is the duty of this Court to separate the material from the immaterial statements in the bill, to present the real substantial issues toihejury, and a general charge that all the plaintiff’s statements must be supported by the proof, is calculated to mislead the jury.</p> <p>9. It is error in the Court to charge the'jury in general terms, that if a witness is shown to have sworn falsely in one particular, ha is not to be believed at all, ■ without explaining to the jury that the point in which the untruth is stated must be material, and that the witness must been willfully and knowingly sworn falsely in such material matter.</p> <p>10. It is error in the Court to charge the jury, that if the plaintiff has sworn to one state of facts, and the defendant contradicts him, the jury-are to leave the parties as it finds them, unless other witnesses corroborate one or the other. The jury are to judge, as in other cases, from the circumstances, and if they believe, one or the other, so ought their verdict to be.</p> <p>11. In giving rules for weighing evidence to the jury, the Court shouldbe careful to state them as general rules, subject to be controlled and modified by the case before them, as made by all the testimony.</p> <p>12. Where the testimony of one party was mostly by deposition, and the other from witnesses examined upon the stand in the presence of the jury:</p> <p>Held, That it was improper for the Court, in his charge on a material point, to say to the jury that they were to consider the evidence as it was given in from the stand.</p> <p>13. Where there was on trial a bill filed to set aside as fraudulent a deed charged to have been procured by false statements, which caused the vendor to sell at a gross under-value, through fear of danger to his life and property from persons who were angry at him for raising a British flag over his property to protect it from the Federal forces during the late war, and one of the defenses was lapse of time from 1861 to 1868 :</p> <p>Held, That under the circumstances of the country, of which the Court will take judicial knowledge, the presumption of acquiescence, from lapse of time, does not exist, and is not an element to be considered by the jury.</p> <p>14. Where a bill to set aside a sale as fraudulent is defended-on the ground of waiver, because the complainant, after the discovery of the fraud, accepted the consideration and did other acts affirming the sale :</p> <p>Held, That to make these acts conclusive of waiver and acquiesence, it must clearly appear that at the time the acts were done the vendor was free from the influence and control of the fraudulent statements, and that the act set up as a waiver, was in fact done by the complainant. The mere receipt of money from his general agent, paid to the agent by the vendee, is not sufficient, it not appearing that the vendor knew he. was, by such receipt, accepting the money of the vendee under the contract, or that he authorized the agent to accept the. money, or did knowingly some act showing that he recognized the contract, and was insisting upon the. same.</p>

Power of attorney by executor. Sale under power by executor. Ratification. Attorney and client. Confidential communications. Annual crops. Sale by sample. Bill to marshal assets. Report of auditor. Tax affidavit. Res gestas. Charge of Court. Before Bichard Sims, Esq., Judge pro hao vice. Mitchell Superior Court. ’May Term, 1872. Eor the facte of this case, see the opinion.

<p>1. Where the common law action of ejectment was brought, it was error in the Court on the motion of defendant to order the plaintiffs to exhibit the title deeds upon which they relied, for the purpose of enabling him to make his defense. (R.)</p> <p>2. If it had been shown to the Court, by competent evidence, that the deed under which the plaintiff claimed title was a forgery, and its production had been required for the purpose of being annexed to interrogatories, to establish the forgery, its production might properly have been ordered. (R.)</p>

Conveyance by insolvent. Accommodation acceptance. Commissions. Usury. Principal and surety. Before Judge Parrott. Gordon Superior Court. February Term, 1872. David B. Barrett, as administrator of Azariah P. Bailey, deceased, filed a bill against Alvin K. Seago, James Lay and others, creditors of bis said intestate, to marshal the assets of the estate.

Relief Act of 1870. Scaling Ordinance. Tax books. Evidence. Before Judge Johnson. Talbot Superior Court. March term, 1872. Benjamin Manes brought complaint against William H. McCrory, as principal, and Isaac Cheney, as security, on a promissory note made on March 1st, 1863, due January 1st, next thereafter, for the sum of $815 16, with interest from date. The defendant pleaded thegeneral issue and the Scaling Ordinance of 1865.

Eule against sheriff. Amendment. Claim. Before Judge Hopkins. Fulton county. At Chambers. February 15th, 1872.

<p>The purchaser of real estate from a defendant, pending an appeal from the first verdict and judgment thereon, is not protected as a bona fide purchaser, under the provisions of the 3525th section of the Revised Code, when such purchaser has been in possession of the property for four years from the date of the judgment on the first verdict, but not for four years from the date of the final judgment on the appeal trial. (R.)</p>

Verdict. Benewalnote. Scaling Ordinance of 1865. Immaterial error. Bill of exceptions. Assignment of error. Evidence. Proof of agency. Evidence of deceased witness. Belief Act of 1870. Practice. Bequest to charge. Fraud. Principal and agent. Motion for new trial. Before Judge Weight. Heard county. At Chambers.

Physician’s account. Interest. Before Judge Johnson. Muscogee Superior Court. November Term, 1871. E. F. Colzey instituted suit by attachment against Solomon Woodfield upon an account for medical services rendered, commencing on February 4th; 1867, running through the year 1867, and to May 18th, of the year 1868, amounting in the aggregate to $142 00, with a credit of $20 00. A charge of $3 00 is made for each visit, and $2 00 for each prescription.

Ejectment. Estoppel. Presence at sale. Notice. Charge of Court. Verdict. Before Judge Parrott. Catoosa Superior Court. February Term, 1872. James Bolling brought complaint against Robert A. Whitman for a certain tract of land in the county of Catoosa, to-wit: town lots numbers fifty and fifty-one in the town of Ringgold.

<p>1. When on the trial of a caveat to a will, one of the grounds of the caveat was the insanity of the testator, at the time of the making of the will and another of the grounds was monomania, and that the will was the result of the monomania :</p> <p>Held, That when the Judge was requested by the caveators to charge the jury that “ the test of insanity was delusion — the belief in the existence of that which does not exist, as for instance, the belief of a man of large means that he has not the means to buy the common necessaries of life, and medicines prescribed by his physician,” and the Judge refused to charge in the language requested, but said, “that such de- 1 lusion was one of the evidences, but was not conclusive.” This was not error ; it was not proper for the Court to select out any particular instance of delusion, and charge the jury that it was a test of insanity.</p> <p>2. When the Judge was asked to charge the jury, “ that in order that a delusion should be such as to invalidiate a will, it is not necessary it should be a delusion as to the persons to be affected by the will; it is sufficient if the delusion be such as to affect the subject matter to be dis- . posed of by the will,” and the Judge refused to charge in the language requested, buff did charge, “ that if the testator was a monomaniac, it must appear that the will is not in any way the result of, or connected with that monomania, and that the will does speak the wishes of the testator at the date thereof, unbiased by the disease with which h^ is afflicted:”</p> <p>Held, That the language requested, to-wit: “ It is sufficient if the delusion be such as effected the subject matter to be disposed of” was such as was calculated to mislead the jury, and that the charge as given by the Judge was aproper direction as to the law upon the point requested.</p> <p>3. It was not improper for the Judge to refuse to charge as requested, that certain specified acts of the testator would, if proven, be strong evidence of insanity. It was for the jury, and not the Judge, to deter- • mine as to the weight of any particular proof.</p> <p>4. It was not error in the Court to charge the jury, “ that a testator may, by his will, make any disposition of his property that he chooses, not contrary to law, and that it is not contrary to law, nor to the pxxblic policy of the State for a testator to give more of his property to one child than to others.”</p> <p>5. It was not error in the Court to charge the jury that the words “ not of sound and disposing mind,” are legal terms and import a total deprivation of reason, such charge having been requested in writing by the executor, and the record showing that one of the grounds of the caveat was insanity generally, and it further appealing that the Court instructed the jury properly as to the law of partial insanity, to-wit: “ that if the testator was partially insane, and the will was in any way the effector result of that insanity it was void.”</p> <p>6. A new trial will not be gi-anted on the ground of newly discovered testimony, if said newly discovered testimony be cumulative only, and when there was a trial on an issue of insanity and of partial insanity, and much evidence and many circumstances of the testator’s acts, and . conversations bearing on the question were introduced as evidence:</p> <p>Held That new facts aad cii-cumstances bearing on the same point are only cumulative testimony, and do not authorize a new trial. ,</p> <p>7. The verdict of the jury in this case, is not contrary to.law, nor to any legal chax-ge of the Court, nor is it so contrary to the evidence, if it be so at all, as to justify this Court in overruling the judgment of the Court below in its order refusing a new trial.</p>

<p>1. Courts of Ordinary are Courts of original, exclusive and general jurisdiction of the sale and disposition of the real property belonging to, and the distribution of, deceased persons’ estates.</p> <p>2. The order of the Court of Ordinary granting leave to an administrator to sell the lands belonging to the estate h‘e represents is his authority for so doing. The authority being shown, the law “ presumes the Court of Ordinary required all the law requires to have been done, before granting the order to sell, and we will not go behind that judgment:” 4 Georgia, 154, Warner, J., delivering the opinion. “The order to sell being a judgment of a Court of competent jurisdiction imports, legally, a necessity for the sale, and such Judgment cannot be attacked and set aside collaterally. It is not only leave to sell, but it is a judgment of the Court, that such sale will be for the benefit of the heirs and creditors of the estate. In favor of this judgment we are to presume the Court did its duty :” 7 Georgia, 562, Nesbm, J.</p> <p>3. An order “,to sell the lands belonging to the estate ” of the deceased is not void because it does not specify more definitely the lands ordered to be sold : 4 Georgia, 152; Code, section 4, paragraph 6. Such an order need contain nothing more than leave to sell, and a description of the land. Section 4044 of the Code does not apply to it, but only to those cases where a copy of the application to the Ordinary, together with notice of the time of hearing is required by law, or in the judgment of the Ordinary, to be served by the sheriff, or some lawful officer, upon the party or parties to be notified.</p> <p>4. A recital in an administrator’s deed of a compliance with all the requisites of the law necessary to be done after the order of sale is gran - ted, is prima fade evidence that those requisites were complied with: 4 Georgia, 155-6.</p> <p>5. A failure of a purchaser at administrator’s sale to record his deed within twelve months from its date, does not postpone his rights to those of a judgment creditor who obtains judgment before, record.</p> <p>6. Purchasers at administrator’s sales are not responsible for any dereliction t)f duty on the part of the administrator, provided there is an apparently substantial compliance with the requirements of the law upon the subject of administrator’s sales, and no bad faith on the part of the purchaser.</p> <p>7. We find no error in the verdict of the jury.</p> <p>Warner, C. J., dissented.</p>

Claim. Bond for titles. Levy and sale. Filing deed. Vendor’s lien. Mortgage lien. Before Judge Hopkins. Fulton Superior Court. April Term, 1871.

Partnership. Dormant partner. Novation. 'Withdrawal. Notice. Before Judge Hopkins. Fulton Superior -Court. October Term, 187-1. M. B. Nash brought complaint against Jefferson L. Richmond, Jane E. Simms and William R. Phillips, partners, under the name and style of J. L. Richmond & Company, for the sum of $310 00, with interest, alleged to be due on an account for the sale of tobacco consigned to said firm. The defendant, Phillips, pleaded no partnership.

<p>Criminal law. Special terms. Juror. Newly discovered evidence. Charge.. Before Judge Hopkins. Clayton Superior Court. December Term, 1871.</p> <p>Thomas Oneal was placed on trial for the murder of Joseph M. Anthony. The defendant pleaded not guilty.</p> <p>The case was called at a special term held for the trial of criminal cases. The defendant objected to the trial on the ground that said cause was regularly called and continued at tbe September term of said Court next preceding said special session, and was therefore not in order for trial. The objection was overruled and defendant excepted.</p> <p>The following evidence was introduced for the State.</p> <p>J. McConnell, sworn: “I knew Joseph M. Anthony who was killed; it was last year, Christmas eve night, on December 24th, 1870; I saw defendant that night; I had been helping in McConnell & Elliott’s; he came into the grocery; he -walked back to the fire to warm, and Rufus Oneal came walking out of the bar-room ; Anthony was standing a little in front of him; I heard some few short words; I do not know what they said; it appeared there was a little difficulty between them; Rufus Oneal run bis band in his pocket; Anthony asked him if he was going to draw his knife; Rufus is the brother of defendant, I believe; I did not see a knife drawn, nor weapon of any kind; Anthony put his band on Rufus Oneal’s shoulder and said, 1 my friend I am not mad with you ;’ they stepped back two or three steps from where I was; I told them they must have no fuss; defendant was behind Rufus and stepped round to the right and shot Anthony in the right temple; at the time Rufus and Anthony were talking, he was about six feet from the fire; they were facing each other; Anthony’s back was to the fire; I think he had on a black cloth coat; Rufus Oneal was just in front of deceased ; I was at the fire place rather td the right of them; I was right at them — not more than six steps off; defendant was a little off to the right — behind his brother — not more than a step or two.» At the time of the shooting, they were to the south — towards the door — about three steps; defendant jumped around to the right and shot deceased in the right temple; I never saw deceased strike a lick; they appeared in sort of a scuffle backing; the ball hit him in the temple; he fell like a beef; he had no weapons on him, or stick, that I saw; deceased said, 'my friend, I am not mad with you, don’t draw your knife on me;’ I never saw a knife drawn; I suppose the room is about sixteen feet by eighteen or twenty feet; the expression made by deceased was loud enough to be heard; others were standing by, and could have heard it; deceased had been in only a little while; the Oneals had been there pretty much all day long; I was keeping bar then; nothing was said to deceased when he came in, that I recollect; I have testified to all I heard between them; I do not know why Rufus Oneal attempted to draw his knife; I heard no quarrelling; they never spoke to each other; defendant was right close to him when he fired at him — rather too far off for powder to burn; the pistol was about a medium size Colt’s pistol; defendant was four feet off; when he fired he stepped to the right. After firing the pistol they (Rufus and defendant) both broke and ran; my brother caught defendant, 1 think; High-tower caught Rufus; defendant was caught right in the centre of the house; my brother jumped over the counter and caught defendant in the middle of the room; my brother turned the weapon over to the officer; he took it away from defendant; all this occurred in McConnell & Elliott’s grocery, Clayton county, j State of Georgia.” j</p> <p>Cross-examined: “I had been in the house all day; I do not know how many were present; there were several, I guess there were a dozen or very near it; I don’t think they were all in that room; they were passing backwards and forwards, I think; Mr. Mann was there, and Wiley Steward; Thomas Tucker was there; he was drinking and playing billiards; Geo. Mansfield was in there; I never saw him until after dark; he may have been a little drinking; they were drinking right smart; I don’t think deceased was drinking much; he had' not been in long. I had seen them (defendant and his brother) often in and out; I was in front of the fire; deceased was a little to the right of me; Rufus was in front of deceased, a little to my right; he came in from the bar-room; I turned round; there looked like there was a little jawing; I told them to have no fuss; the door is south; the counter was rather east; the fire place was in the west; I could not hear what was said at first; it looked like there was going to be a difficulty; I told them not 'to ha$m a difficulty in the house; deceased put his hand on R. Oneal’s shoulder, and said, “my friend, don’t draw your knife on me;” Rufus’ face was towards me; deceased was a little to my right; he was nearer to me than Oneal; deceased was facing Rufus Oneal. I was sworn on the committing trial in this case; I think I swore about same as I do now; I don’t think I said the words, “ slap on his shoulder;” my evidence was taken down; I believe it was read over to me at the time; deceased had his hand on Rufus’ shoulder; the party rather went south; Rufus gave back, and seemed -as though he was going to draw his knife; he stepped back soon as I told them they must have no fuss; then I saw defendant jump round; he came right behind Rufus. I do not recollect whether defendant was in at the start or not; I saw defendant jump round, and saw him shoot deceased; I tried to stop it; I do not know positively the time defendant came in, whether with Rufus or not; defendant was right behind Rufus Oneal; I was next to the fire when it commenced; they sort of backed a few steps; defendant never-spoke to deceased at all; deceased had not his hands on Rufus’ shoulder at the time defendant shot; deceased was sort of following, and Rufus was backing sort of; I saw no other scuffle at all but that; I never noticed those that stood by the fire. It was very still times for Christmas eve; there had been right smart excitement during the evening, but not during the night; there was no quarreling during the evening that I knew of; I do not know that I was excited when I went to the fire; when a pistol is fired it will excite most any man who has any feeling about him; I think Mr .William Tucker and Thomas Tucker were there; the marshal had been in there; I don’t know if he was there at the time of shooting; my brother was behind the bar at the time; I never heard defendant speak a word; don’t think he spoke at all; I don’t think any other person tried to suppress the difficulty; if he did, I did not hear him; I requested them to have no difficulty in the house; I suppose ■deceased would weigh one hundred and forty pounds, may-be more; I guess Rufus Oneal would weigh one hundred and thirty-five or one hundred and forty pounds; deceased was about twenty-eight or thirty years of age — perhaps a little older or younger; I don’t know his age; I do not know the age of these two young men; I think Rufus is a young boy, hardly grown, from his appearance.”</p> <p>J. T. Mann, sworn: “I knew deceased; I was present when he was killed; I know defendant when I see him; that is he (identifying prisoner;) I don’t know how far apart they were at the firing; I was in the room at the time; I was sitting at the fire; deceased was standing on my right; he was talking to Rufus; Rufus had been talking some little time before |the difficulty; I paid no attention to the difficulty; heard deceased say to Rufus, JI am not mad, and don’t get mad;’ right after that he asked, 'what is in your hand ?’ immediately he stepped back in rear of me and said something, I'do not know what it was; I rose and turned around; about the time I turned around deceased fell up against the door; I do not know whence the shot came; I did not see defendant .at the time; I did not know who did it; I did not see Rufus Oneal then; deceased was standing with back to the fire; Rufus was in front of him (deceased), at the time deceased asked ‘what is that in your hand;’ I had seen defendant and Rufus on that night, but I had not noticed them; I don’t-know how long before; I don’t know where defendant was at the time this was passed; deceased was not far from me; not more than three feet; I was sitting in the chair; he was standing ; I heal'd deceased say ‘ I am not mad, and don’t get mad;’ in a very short time he (deceased) asked what is that he had in his hand; I examined deceased after he fell; I "went to him and said: ‘Joe, are you hurt much?’ he did not answer, and I just raised up and turned and said: ‘Boys, catch him; they have killed Joe Anthony;’ some man remarked, ‘I have got the man that done it, and his pistol; you go back to Joe;’ when deceased spoke, he said it in common language; he did not speak angrily; I did not think he did; he spoke in ordinary torie of voice, and said, ‘I am not mad, and don’t get mad, myself;’ if there was any words passed between them, I did not hear them; they broke and scuffled out; I don’t know if they were trying to get away or not; I went right to deceased; my recollection is that it was after the train went; between- nine and ten o’clock; deceased laid till fifteen minutes before or after three o’clock; had not spoke so I could understand him; I asked him if he knew me; I should say the shot killed him; I don’t think the ball came out; it went on the right side of his temple; deceased had no stick or weapon that I saw; I think deceased had on his common, every day clothes; he had on an overcoat; I don’t know if it was buttoned up or not. (Did deceased use any angry expressions during the conversation ?) None at all, that I heard; all this occurred in Mr. McConnell’s billiard room, in Clayton county, State of Georgia, December 24th, 1870, last year; I helped to take his over-coat off; I saw no weapon; I have known deceased since spring df 1858.”</p> <p>Oi'oss-exdmined: I had been in the room, I suppose, about ,one and a half hours — I can’t be positive; the shooting occurred about half-past nine o’clock; I do not remember all that were there; there were defendant and Rufus Oneal, Billy Crane, and John McConnell; I think Mr. Tucker was in there; there were several others; I don’t remember whether-one or two Tuckers; I had taken one drink that night; I don’t recollect how long before; it was Christmas eve night; I noticed the parties being there; I was sitting with my face to the fire; deceased was to my right; I did not see John McConnell right then; I could not tell where he was; deceased was standing up ; I was sitting on the left hand side as you go in; deceased was at my right; he was nearer the right hand side of the fire-place than I was; Rufus was in front of deceased, between him and end of billiard table; Joseph was rather on my right; Rufus was in rear of him; I can’t tell how far he was from deceased; he was not far; my attention was not attracted by any one else; when I first thought anything was wrong, I heard deceased say he was not mad; I was noticing him; it struck me there was something wrong; I heard Rufus make no reply, and I did not see the firing of the pistol ;■ I did not see the parties clinched; I did not see deceased put his hand on Rufus’ shoulder at all. (Did you see defendant ?) I don’t have any recollection of seeing him at the time I discovered something was wrong; there were parties passing around the table when deceased said I am not mad; I don’t know where defendant was; where deceased fell is not more than ten feet from where I was sitting; he fell to the right of door, not mox-e than ten or or twelve feet; he fell on his back with his head right toward railroad; that was where he was lying when I got to him; I did not see John McConnell right at the time of the firing; I saw him before and after that; I did not hear the reply when he asked ‘ What was in his hand ?’ Deceased said something 1 did not understand, and did not speak angrily, as he stepped back, when deceased asked what he had in his hand ? I saw nothing in his hand; they were on my right at the timo they backed out from me; I saw defendant in the room before it occurred; I was not there during all the evening; I suppose it was eight or after when I went there I was sworn in the commitment trial in this case; there was no one playing on the billiard table at that time; some of them had been playing keno; I do not know who all was in it; I saw deceased; I saw both Oneals; I played a game or two with them ; there was no difficulty that I heard or saw.”</p> <p>John A. McConnell, sworn: “I am a regular practicing physician; I was called on to see J. M. Anthony on the 24th of December last; I found him in a prostrate condition from a gunshot wound in the right temple; it was the right temple, ball penetrating base of brain, ranging inward, downward and forward to some extent; I probed the wound and it was about four or five inches deep’; it passed through the superorbital plate and right orbit, severing the right optic nerve. (What was size of the ball ?) I suppose, from the orifice, it was a good sized pistol ball; I could introduce the small finger in it (the orifice;) the ball had passed in the direction of the throat, through into the throat; I can’t tell how far further; I saw no place where it came out at; that wound could have been given by a pistol ball; that wound killed him; I am satisfied it caused his death. I knew Mr. Anthony; I had known him for a number of years; he was a healthy man ; I suppose between twenty-eight and thirty years of age; I knew nothing of the circumstances of the killing; deceased died somewhere about three o’clock in the morning, five or six hours after the shooting; he died in this county from • the effects of that wound; I heard the pistol shot; I suppose I was not over one hundred feet off; I saw no parties attempting to escape; I was-just in the act of stepping out of the door; I had been in to get some Christmas tricks; I had stepped out just as the pistol fired.”</p> <p>Cross-examined: “ The ball entered the temple; it ranged inward, downward, and somewhat forward; entered back part of temple; the position of the man shooting must have been rather to his side; I should think the ball entered the right temple; the ball may have been turned by the bone, and changed its direction, throwing it downward;- the range of the ball was inclined a little downward.”</p> <p>William C. Tucker, sworn: “I know deceased; I am not acquainted with the Oneals; I know when I see them, Rufus and defendant; I was in McConnell & Elliott’s the night of the difficulty about half an hour; I don’t recollect exactly ; I saw the difficulty; the first I saw we were all standing before the fire; it was cold; we were all crowding around the fire; deceased was next to the fire; Oneal was next to him, pushing; crowd was pushing; pushed deceased against Oneal; that was Rufus Oneal; he said ‘mind how you push;’ deceased said he did not mean any harm; they took hold of each other then, and about that time Mr. McConnell (John McConnell) says, boys, don’t have no fuss; deceased said he did not mean any harm by it; Mr; McConnell said don’t have any fuss here; I forget what deceased said; he said he was not mad; I think that was said when McConnell said don’t have no fuss; defendant rose up, and I forget what'deceased said; he was not mad; defendant rose up at the time; deceased said ‘ don’t you draw your knife on me’ (to Rufus;) that was not more than a minute before the firing; I saw defendant when he shot at him.; defendant was sitting on the box; that is the man (identifying prisoner ;)■ I saw Oneal catch deceased by the shoulder before the shooting; Rufus caught deceased by the collar; he pushed him over in the corner; that is the way he happened to get away_ from the place where he was standing; the pistol was fired in a second after that; deceased had no stick in his hand; he had no weapon in his hand to strike with; I saw defendant get up off the box and walk about seven feet; he had his pistol out when he rose up from his seat; he had on a shawl or blanket; I never saw anything until he jumped off his seat and shot quick; he shot as if he was prepared to fire; he jumped right up and fired; he never said a word ; just shot hun; I don’t think he spoke a word before he shot; deceased fell as soon as he shot; defendant ran from the back room to the bar-room; Joseph McConnell caught him; he carried his pistol with him; some one caught Rufus; I did not go out of backroom; he made no effort to draw or use a weapon of any kind; this occurred in McConnell’s grocery, 24th December last, in this county; I was not drunk; I knew what I was doing ; I did not drink.”</p> <p>Gross-examined: “ I had not taken any drink then nor since; I was in the room I suppose one-half an hour; Mr. Oneal was nearest to me, I think he was between me and deceased. Deceased and Rufus were right in front of me and the fire; John McConnell was standing next to the fire, I think leaning against therdantel-piece; I don’t remember where Mr. Mann was; Rufus finally pressed deceased out from the fire; I could not tell what deceased’s position was exactly; it was done so quick I could not tell; I can’t say that deceased put his hand on Oneal ; I can’t say say that I did see him; I saw it all; I saw nothing in Rufus’ hand at the time; I heard all the conversation that passed after I came in; I heard deceased say he was not mad; Rufus said to deceased, ‘don’t run over me;’ I suppose Rufus pushed deceased pei-haps ten feet against the desk; deceased was next the fire; Rufus was behind him, and Mr. Oneal pushed deceased over in the corner; I don’t recollect. that I said (on preliminary examination) that the deceased unbuttoned his coat; I did not see him put his hand behind him; deceased fell on his back with his head toward the door, pretty much across the door; I think defendant was in that room when I went in; he was sitting there before the difficulty occurred ; I was not in at the time of any game; I heard no mention of it; the Oneals never took a drop of drink while I was in; I never noticed if they were drunk or not.”</p> <p>J. O. Hightower, sworn: “I was marshal of this town in December last, at the time of this difficulty; I know the Oneals; there were two Oneals; I know Mr. Crane; I do not know what relation he is; I saw them in town together — they were in company pretty muoh all the evening; I was in the the room when the shooting took place; I walked into the room; I heard talking back in the room; I went to see if there was any difficulty; I was not anticipating a difficulty; I saw the parties were drinking; defendant and his brother and Mr. Crane were all concerned in the little fracas that evening. It was a very cold night; I walked down to the fire and warmed myself; I saw nothing unusual — more than is usual in a grocery, especially when a crowd is there; I started out of the room and I met Mr. Mansfield, right at the end of the billiard table; ■ the billiard table in the room where the shooting was; I was a little over the length of the table when deceased was shot; I ivas talking to Mr. Mansfield, with my back toward the fire, my face toward the door; Mr Joseph Hughie was attending to the bar; I heard him remark, 'boys, stop that/ or, 'none of that/ I just looked round and as I looked defendant rose and shot deceased; Í heard some talking but nothing like a fuss; as Hughie made the remark, I looked round, and as I looked I saw defendant shoot him; deceased just fell back; I paid no more attention to deceased; Rufus Oneal ran by me; I looked after him, and caught him at the front door; he got out of the partition door — there are two partitions — he got through them both; I got him at the front door; grocery in front room; bar in second, and billiard room back; I was little over the length of the billiard table when the shooting took place — ten or twelve feet off; I did not see any weapon in deceased’s hands; I never heard him speak a word; I don’t think defendant spoke, if he did he spoke very low ; there were several talking; but nothing creating excitement; Rufus was running as hard as he could; I caught him by the coat, he never stopped till I was in the act of knocking him down; he jerked on a few feet; I caught him, it was four or five feet before I could stop him; I first told him I would shoot him; I grabbed my stick to hit him, when we met Tom Mann, I believe it was, just at the door; I told him to take charge of him; Joe. McConnell caught the other one; Iran back; Mr. Joe. McConnell had him around the waist and had his pistol grabbed in his hand; Rufus Oneal struggled at first to get away, till he found he could not get away; I know that they got out of jail; I did not see them get out; I was there in a very few minutes after they got out.”</p> <p>Cross-examined: “ There were several in the back room; the two back doors were closed; my face was toward the front door; I was by the fire place; three or four on the other side; defendant was sitting on a box, to the right of the fire place ; I suppose they felt their drinks; there was no likelihood of a difficulty; as I got to the corner of the (counter) billiard table, with Mansfield, Josh Hughie remarked, ‘stop that/ or, ‘none of that/ as he said that, I walked to see what was wrong, to see that there was no difficulty; as I walked to look, they were both close together, whether touching or not, I do not know; as I turned to look, defendant was in a rising position; he just stepped, leaned over and shot— all in a very few seconds. Deceased and defendant were about the same distance from me; neither of them were between me and the fire place; they were in a sort of corner; I did not see them touching each other; they were close together; I did not hear a word spoken by them, that I know; I was ten or fifteen feet off. I do not know that the parties were drinking.”</p> <p>J. A. McConnell, sworn: “ I knew deceased; I knew him thirty years, I reckon; I know defendant when I see him; I never knew him until the night of the difficulty with deceased ; never recollect seeing them in town before; I saw the Oneals together that night; William Crane was with them; I don’t recollect seeing them before that night. I saw the shooting; there was a crowd in my house; there are two partitions ; the house is sixty feet; the first room is fifteen feet; the next room is fifteen feet from first partition; last room is about twenty-eight feet of the fire place; I was standing with my face fronting second partition; I was selling some eggs; the door was open between the last partition and the third room. When the difficulty occurred, my attention was called in the direction of the fire place by the remark Hughie made,' (the clerk in my house;) he said, ‘ boys, stop that;’ I turned in that direction and saw deceased and Rufus Oneal clinched, and at the same time, or in a moment after, I saw defendant rise and fire his pistol; I think he had a shawl on; there were several by the fire then; several between me and him; he rose right up and fired; there was a banister; I had a little stove; when I saw him shoot, I jumped the banister and caught him round and grabbed the pistol; he tried to get away from me; I thought he used every effort to get away from me; I told him I had him, and he should not move; I think we got down in the scuffle; he was trying to get aAvay; he made no effort to use his pistol; I weighed about one hundred and eighty pounds; I was in good health; we were not scuffling more than three or four feet; as soon as I got him, I held him; that is the man, (prisoner.”)</p> <p>Mrs. M. Whaley, sworn: “ I1 knew deceased; I know defendant — both the Oneals; I know William Crane; I remember the night Anthony was killed; I saw all these young men in my house; it was between ten and eleven o’clock in the forenoon; I saw defendant; I don’t think he said anything. I had no bullet moulds Defendant fixed his pistol; he loaded it; he took his pistol to pieces, then rubbed and cleaned it and loaded it; he fixed the bullets with a hammer and knife; that was between ten and eleven o’clock of the day on which the man was killed; nothjng was said between us; it was a large pistol; I should not know it if I saw it.”</p> <p>W. L. Waterson, sworn : “ I knew deceased; I know the Oneals now; I know William Crane; I and deceased were together on Christmas eve; deceased is said to have been killed that night; we had been together all the evening; we might have been together in the fore part of the day; I was with deceased that evening — pretty well all the evening; I saw the two Mr. Oneals and Billy Crane together; it was Christmas eve; I was galanting around considerably; J noticed that most every place we went to, they came afterwards; I can’t say how many times it occurred; Tom Oneal was with William Crane and Rufus Oneal, his brother; all of them together every time; I would say three or four times; I spoke to deceased and to Jesse Anthony about it; deceased had had no words with them that I know of; I remember Billy Crane and Joseph Anthony having something to do one night. (Objected to.) I was in Tom’s grocery and told deceased about these parties following us; I don’t remember how deceased was dressed; I could not say if he had an overcoat.”</p> <p>Cross-examined: “ I was taking a little drink that evening, occasionally; that was Christmas eve, in the evening of that day; deceased was drinking a little, I think; I don’t remember how many drinks; he took his dram, I think; I don’t know if he felt it; I don’t know how many he took; I know we both had taken some; we were sitting by the stove; it was a very cold day; we generally sat by the fire. The Oneal boys, I think, were taking their dram; I don’t rememher their appearance, exactly; I was not personally acquainted with them; I could not say how their appearance was; I can’t say that I remember seeing them take liquor; they were knocking about; can’t say they were drunk or drinking; I considered them strangers in this county; I don’t think I had seen defendant before; I had seen Rufus once; he was a stranger to me; I had no acquaintance with them; I think they were strangers. Deceased was a citizen, and resided here. We had no controversy with the Oneals; I don’t think I did with Billy Crane; I had no feeling against them; I don’t know they tried to run them out of town, as I first stated; I noticed them following us at Anthony’s grocery; I first noticed then, that they had been following us; when we stepped in, they followed us, and when we went to another house, they would step in again; I noticed them in Anthony’s first; I might have spoken something about it; went, then, to Tom’s; then we came back to Anthony’s ; then we went to McConnell’s and Elliott’s; John Smith had some torpedoes; we bursted them, then we came back; we bursted more and threw them in the crowd, bursting generally ; I don’t think we threw them ón any body; we threw them against the wall; I think the boys were in the room at the time they were thrown; I am satisfied that none were thrown at their feet; I never saw deceased throw any torpedoes ; I saw nothing disrespectful on the part of deceased; I do not remember seeing deceased at the time the torpedoes were thrown; they were thrown in'McConnell’s; there was feeling between me and Crane, but' I did not know the Oneals at that time; I had not been acquainted with them before; it was in the day time (in the evening) when we were going around on the 24th.”</p> <p>The State having closed, the defendant’s counsel announced that they would introduce no testimony. The argument of counsel having been concluded, the Court charged the jury as follows:</p> <p>“ Murder is the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either- express or implied. Express malice is that deliberate intention, to take away the life of a fellow creature, -which is manifested by external circumstances capable of proof. Malice shall be implied, where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.</p> <p>“ To constitute the crime of murder, there must be an unlawful killing and it must be done with malice aforethought. A certain state of the mind constitutes malice. It is an intention to kill under such circumstances as would not justify, or in any way excuse the act of the killing should it occur, in pursuance of the intention. 'Whenever a killing by unauthorized violence is shown, the law presumes that it was done with malice aforethought, and denominates it as murder, unless the accompanying proof shows that it was done without malice. If the unauthorized killing be shown, and the accompanying proof does not show that it was done without malice, it then devolves upon the accused to show that it was done without malice. If a deadly weapon is used to accomplish the killing, rvhich, in the manner it was used, is likely to produce death, the law presumes that such a result was intended. This presumption may be removed by proof. Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof, such as lying in wait, threats, previous grudge; preparation for committing the act, etc. If express malice is not shown, the law implies it; when no considerable provocation appears and when all' the circumstances of the killing show an abandoned and malignant heart, the deliberate intention to kill must exist. If it does not exist at the time of the killing, the offense is not murder. It is not necessary that this deliberate intention should exist for any particular length «of time, prior to the killing. If it existed at that time it is sufficient.” The Court then read to the jury sections 4258 and 4259 of Irwin’s Revised Code of Georgia, in reference to manslaughter and voluntary manslaughter, and said to reduce the offense from murder to manslaughter, it must be 'done without malice, either expressed or implied and without any mixture of deliberation whatever.</p> <p>“The killing must be the result of that sudden violent impulse of passion, supposed to be irresistible. There must be some actual assault upon the person killing, or an attempt by the person killed to commit a serious personal injury on the person killed, or other equivalent circumstances to justify the excitement and exclude all idea of deliberation or malice. If it should appear to you from the testimony in this case that Rufus Oneal was the brother of the defendant, and that Anthony, the deceased, made an assault upon the person of Rufus, and the defendant shot Anthony without deliberation or malioe, but under that sudden violent impulse of passion supposed to be irresistible, he would not be guilty of murder — it would .be manslaughter. If it should appear from the testimony that a misunderstanding occurred between Rufus Oneal and Anthony, and Anthony put his hand upon the person of Rufus, not in anger or for the purpose of injuring him, and defendant was present during the entire time and knew all that occurred, such action or conduct on the part of Anthony would not be sufficient in law to justify the excitement of passion and reduce the offense from murder to manslaughter. Rut if under such circumstances defendant, by the employment of means appropriated to that end, killed Anthony, the law would presume that he intended that result. You will not lose sight of the great controlling distinction between these offenses. If the defendant deliberately shot and killed Anthony, with malice aforethought, it is murder. If he shot and killed him without malice and without any mixture of deliberation whatever', it is not murder.”</p> <p>The Court read sections 4264 and 4265 of Irwin’s Revised Code, in reference to justifiable homicide and fear, etc., and said: “ If you find from the testimony that Rufus Oneal and defendant were brothers, and that Anthony manifestly intended or endeavored to commit a felony on the person of Rufus by violence or surprise, and because of that, defendant shot and killed Anthony, he would not be guilty of any crime — the homicide would be justifiable. A bare fear would not be sufficient — it must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge. An assault or assault and battery is not a felony. The defendant begins the trial with a presumption of innocence in his favor, and the presumption remains until it is removed by proof. The proof must show that he is guilty beyond a reasonable doubt. His guilt cannot be shown to an absolute certainty — that cannot be done by testimony in Court. But his guilt must be made plainly and manifestly to appear. You must have that degree of mental assurance before which a prudent man acts without hesitation in reference to matters of the highest concern to himself. This doubt must be a reasonable one growing out of the testimony or the want of testimony. If, after an honest, impartial examination of the testimony, the mind of the impartial juror is wavering, unsettled, unsatisfied, that is the doubt of the law, and he should acquit. If that doubt does not exist, it would be his duty to convict. If you believe him guilty beyond a reasonable doubt, of murder, say so by your verdict. If you do not so believe, pass to voluntary manslaughter and see whether he is guilty of that. If you should so find, you can express it in your verdict. If you find him not guilty of voluntary manslaughter, acquit him.”</p> <p>Upon the conclusion of said charge the jury retired, and after deliberation, returned into Court with a verdict of guilty of murder.</p> <p>Whereupon counsel for defendant moved for a new trial in said- case, upon the following grounds, to-wit:</p> <p>1st. Because at the regular September Term of said Court, in said year, said case was called, and upon legal showing continued. Said case was therefore not in order to be heard at this special session of said Court, but at the next regular term of the same.</p> <p>2d. Because Willis Beavers, one of the jurors that tried said case was disqualified by reason of his relationship to the prosecutor and deceased in this, that he is an uncle by marriage to said parties, which facts were unknown to the defendant or his counsel until after the trial of said case, said juror being put on defendant after his challenges were exhausted.</p> <p>3d. Because of .the newly discovered evidence as set forth in the affidavit of Joseph P. Hughie, said affidavit being a part of this bill of exceptions, to the effect that he saw the deceased falling with his -hands around the waist of Rufus Oneal, and saw. him grab or strike said Oneal upon the top of the head, and saw the parties scuffle around, and when the deceased had Rufus Oneal backed against the desk, some one fired and deceased fell; said facts were not communicated to defendant until after the trial of said case, nor to his counsel until during the argument.</p> <p>4th. Because the Court failed to charge the jury that if they believed from the evidence that Thomas Oneal, acting under the fears of a reasonable man, and not in the spirit of revenge, killed Anthony because he feared and believed at the time the fatal shot was fired, that Anthony was about to commit a serious bodily injury less than a felony upon the person of Rufus Oneal, then the offense is reduced below mlrrder, and if then defendant is guilty of any crime, he is guilty of manslaughter, which point was made and insisted on by counsel for defendant in argument before the Court and jury.</p> <p>5th. Because the verdict of the jury was contrary to the charge of the Court.</p> <p>6th. Because the verdict of the jury was contrary to the evidence, against the weight of evidence and without evidence and law to support it.</p> <p>The ground of newly discovered evidence was supported by the affidavits of the defendant, the witness and defendant’s counsel. The affidavit of E. W. Beck Esq., stated that the facts newly discovered from Joseph P. Hughie, were not communicated to him until the Solicitor General had concluded his argument to the jury.</p> <p>The motion for a new trial was overruled by the Court, and defendant excepted .and assigns said ruling as error.</p> <p>1st. Newly discovered evidence was material and not cumulative : 42 Ga. R., 623; 27 Ibid., 339; 37 Ibid., 464; Code, sec. 3665; 10 Wend. R., 285. Want of diligence not fatal: 24 Ga. R., 31.</p> <p>2d. The Court cannot withhold from the jury any of the grounds put in issue: 29 Ga. R., 594. Jury entitled to all the law of the case: 5 Ga. R., 445. Court should define the several grades of homicide: 12 Ga. R., 142.</p> <p>3d. The charge was calculated to mislead: 30 Ga. R., 24; 19 Ibid., 335; 17 Ibid., 497.</p> <p>1st. The case stood for trial at the special session; otherwise no case could then be tried: Code, secs. 3475, 3178 ; 34 Ga. R., 271.</p> <p>2d. Juror was qualified: 1 Bish. Crim. Pro., 765; 11 Hump. R., 232.</p>

<p>Homestead. Objections. Practice. Year’s support. Before Judge Robinson. Baldwin Superior Court. February Term, 1872.</p> <p>Eliza A. Robson, as the head of a family, petitioned the Ordinary of Baldwin county for the setting apart of a homestead of realty and an exemption of personalty in the estate of her deceased husband, William A. Robson. The 13th day of March, 1871, was appointed for hearing the application and notice given by advertisement accordingly. At the appointed time objections were filed to the plat and valuation of realty by one Joseph Miller, and the case continued to No-' vember 24th, 1871. On the day last aforesáid, Phoebe A. Lindrum, a creditor of William A. Robson, deceased objected to the exemption of personalty on the ground that the applicant did elect and receive a year’s support, amounting to $2000 00, out of the estate of her' deceased husband. The Ordinary allowed the exemption of personalty, and the case Was carried by appeal to the Superior Court of Baldwin county.</p> <p>When the case was called in the Superior Court the applicant demurred to the appellant’s objections, and moved to dismiss the appeal on the ground that the objections were not-filed on or before March 13th, 1871, the day fixed by the Ordinary for passing upon the application. The demurrer and motion were overruled by the Court, and the applicant exeepted.</p> <p>The case having been submitted to the decision of the Court upon the facts aforesaid, the Court held that the applicant was not entitled to an exemption of personalty.</p> <p>The applicant moved for a new trial ■ upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in overruling applicant’s demurrer to the objections of appellant, and in refusing to dismiss the appeal.</p> <p>2d. Because the Court erred in holding under the facts aforesaid, that the applicant was not entitled to an exemption of personalty.</p> <p>The motion for a new trial was overruled, and the applicant excepted, and assigns said ruling as error upon each of the aforesaid grounds.</p>

Partnership. Service. Judgment. Before Judge Hopkins. Fulton Superior Court. April Term, 1871. George W. Collier brought case against M. Fleshman, Benjamin Franklin and William Rich, late partners in leasing ánd house building, using the firm name of M. Fleshman & Company.

Trespass. Municipal corporation. Drainage. Charge of Court. Before Judge Gibson. Richmond Superior Court. January Term, 1872.

Arbitration and award. Lien of arbitrators for fees. Judgment on award. Before Judge Wright. Troup Superior Court. May Term, 1871. The issues in this ease arose upon a rule against the sheriff of Troup county, for the distribution of a certain fund in his hands arising from the sale of a certain tract of land, on the first Tuesday in June, 1869, under a mortgage execution in favor of Francis M. Fisk.

Principal and security. Indulgence. Statute of limitations. Yendor and purchaser. False representations. Diligence. Party as witness. Before Judge Parrott.' Catoosa Superior Court.' February Term, 1872. T. D. Flippen brought complaint against Mark Lowery, C. L. Eeid and James J. Eeid, principals, and William Ballew and C. D. McFarland, securities, on the following promissory note, to-wit : “$925 00.

Relief Act of 1870. Tax affidavit. Exception. Lunatic. Before Judge Greene. Newton Superior Court. September Term, 1871.

Illegality. Second affidavit. Relief Act of 1870. Tax affidavit. Before Judge Greene. Newton Superior Court. September Term, 1871. An execution in favor of Elizabeth Ansley, by her next friend, against John R. Wilson, for the sum of $1,627 50 principal, besides interest and costs, dated October 4th, 1867, based upon a judgment entered up on September 26th, 1867, was, on March 3d, 1868, levied upon certain property of defendant.

Injunction. Public and private ferry. Public bridge. Riparian rights. Franchise. Forfeiture. Before Judge Clark. Macon county. At chambers. August 27th, 1872.

Laborer’s lien. Demand. Before Judge Clarke. Macon Superior Court. December Term, 1871.

Injunction. Maker and indorser. Release. Before Judge Clark. Sumter county. At Chambers. August 29th, 1872.

Parol evidence. Continuance. Tender. Before Judge Alexander. Laurens Superior Court. October Term, 1871. John B. Wolfe brought complaint against James A. Thomas, sr., upon the following promissory note: “$200 00. “One day after date I promise to pay J. B. Wolfe or bearer, two hundred dollars, for value received, to be paid in any solvent notes.

Criminal law. Credibility of witness. Degree of punishment. Before Judge Harrell. Eandolph Superior Court. May Term, 1872. James Whitten was placed upon trial for the offense of assault and battery, and pleaded not guilty.

Statutory title. Statute of limitations. Adverse possession. Before Judge Strozier. Worth Superior Court. November Term, 1871.

Removal of case to tbe United States Court. Before Judge ' Green. Spalding Superior Court.

Employing servants of another. Ratification. Venue. Joint trespassers. Measure of damages. Estoppel. Before Judge Clark. Lee Superior Court. March Term, 1872. Phillip West brought trespass on the case against Sanders ~W. Lee and Thurman M. Clements, for employing and enticing away servants in his employ, by which, he had been damaged $5,000 00.

<p>Service. Return of sheriff. Before Judge Sessions. Lowndes Superior Court. December Adjourned Term, 1871.</p> <p>This case came on to be heard on a rule nisi in favor of J. T. Dasher, calling on Virgil F. Dasher to show cause why a judgment obtained by him against J. T. Dasher at. the June term, 1871, of the Superior Court of Lowndes county, should not 'be set aside for want of service of a copy of the original declaration upon the defendant in said suit. The case, by consent, was submitted to the decision of the presiding Judge, without the intervention of a jury.</p> <p>The original declaration had the following entry thereon:</p> <p>“ I have this day served a copy of the within upon J. T. Dasher, by leaving the same at his place of abode.</p> <p>“ November 15th, 1870.</p> <p>(Signed) “ A. Hewitt, Sheriff"</p> <p>Evidence was introduced by both parties, pro and eon. The Court refused to set aside the judgment, upon the ground that the return of the sheriff showed that service had been pei>* fected in said suit, and plaintiff' in error excepted.</p>

<p>(Warker, O. J., did not preside in this ease.)</p> <p>1. The city of Macon filed a bill against A, B, O, D, and others, as agents and officers of a pretended corporation, alleged to be incorporated under the laws of New York for the purpose of carrying on business in Georgia. The bill was filed in the Superior Court of Bibb county, and, charged that two of the persons sued resided in Georgia, and the others in the State of New York. The bill charged that the city had, through the management of the individuals named, been fraudulently induced to make a deed of certain property to the corporation on certain terms and conditions which had been broken. The bill also charged that the charter of the company was void, as in conflict with the sovereignty oi this State, and prayed that the deed might be canceled and the property redelivered to the city. The bill also alleged that certain claims and liens existed against the property, contracted by the company or its agents, which were in dispute, and prayed that the amount of said claims might be ascertained and settled in the decree. Before any trial the company, by its President, came into Court, filed the usual affidavit, and gave a proper bond, and petitioned that the case be removed to the Circuit Court of the United States for the District of Georgia. This petition the Court granted, and the complainant excepted:</p> <p>Meld, That the company was in effect a party to the bill, and having appeared and made the motion to remove, it was not error in the Court below to grant the same.</p> <p>2. All the issues between the city and the company can be fully disposed of without the presence of any of the citizens of Georgia except the city.</p> <p>3. The question as to the validity of the charter is one of the issues made by the bill in which the company is the party at interest, and having followed the act of Congress in making the affidavit and giving the bond, the State Court is not authorized to proceed further to try the issue — that question with the others made by the bill is returned to the Circuit Court.</p> <p>4. No question having been made in the Court below as to the power of the Superior Court to pass an order in the premises, this Court does not decide it.</p>

<p>1. Where a parol contract ia made for the purchase of land, to be paid' for by installments, and the purchaser enters into possession under the contract, with a stipulation that if he should fail to pay the first installment when it became due, then he was to pay $50 as rent, (for which he gave his note at the time he went into possession,) but if he paid the installments promptly, then no rent was to be charged, but his note was to be considered as for a part of the purchase money; and the vendor died before the first payment fell due; whereupon his administrators, on tender of payment at the time appointed, refuse to accept the money as payment on the contract, and afterwards rent the land at public outcry to the purchaser, and receive $50 from him, subject to future adjustment between them, and subsequently received from him, through their attorney, $50 50, also to be accounted for, and the administrators finally conclude not to carry out the parol agreement of their intestate for the sale of the land, but sell it at administrator’s sale to the same purchaser, and require full payment of him, without allowing any credit on the purchase money of the amounts paid before the administrator’s sale, retaining the whole of it as rent for the occupancy of the land from the time purchaser went into possession under the parol contract of sale until the administrator’s sale ; the purchaser is entitled to recover back the amount of his note given under the parol contract of sale. The purchaser having gone into possession under the parol agreement, and given his note for $50, to be treated as part of the purchase money upon condition, and he having complied with the condition required, the vendor, or his representatives, must comply with the contract, or repudiate it entirely. And if they repudiate, it entirely, it would be a fraud upon the purchaser, who went into the possession under the parol agreement tó buy, to hold him liable for the rent of land, which-he might, perhaps, never have consented to occupy, but for the prospect of purchase held out to him. The administrators, however, are entitled to retain the amount of the rent due under their contract of rent with the plaintiff.</p> <p>2. This not being a suit to enforce a contract, one of the parties to which ■was dead, but an indebitatus assumpsit to recover back money paid to the administrators on the contract, on account of their repudiation of it — that contract not being in issue or on trial, the surviving party to it was a competent witness in his own favor in the present suit.</p> <p>3. The jury having found for the plaintiff the whole amount sued for, to-wit: $100 50, not allowing the administrators anything for rent under their contract of rent for 1869, the judgment of the Court granting a new trial is reversed, upon condition that the plaintiff will write off all ■of said verdict but the amount of his note given to the intestate.</p>

Alimony. Children. Before Judge Parrott. Whitfield County. At Chambers. April 17th, 1872. Fannie Hill, for herself and three minor children, to-wit: Robert B. Hill, twelve years of age, Jennie R. Hill, nine years of age, and ¡Mariah R. Hill, seven years of age, petitioned the Hon. Josiah R. Parrott, Judge of the Superior Courts of the Cherokee Circuit, exercising jurisdiction in such cases, for the sum of $500 00 as alimony for five months.

<p>Distributees are not entitled, as such, to recover anything from the administrators of the estate in which they claim an interest, when it is clearly shown that the estate has become insolvent, without fault of the administrators. An insolvent estate is none the less so because the claims against it are judgments obtained on debts of the intestate, created before June, 1865, to the executions issued upon which it will be necessary for plaintiffs in ji. fa., to attach affidavits of payment of taxes before they can be levied.</p>

Statute of limitations. Renewal of suit. Before Judge Johnson. Marion Superior Court. April Term, 1872. William C. Adams brought complaint against A. W. Davis, maker, and R. M. Anders, indorser, on a note made August 14th, 1863, due December 25th, next thereafter, for $840 0,0, with a credit thereon' of $500 00, date, January 26th, 1864. Defendants relied upon the statute of limitations.

<p>Assessment of damages. Costs. Before Judge Pareott. Whitfield Superior Court. April Term, 1872.</p> <p>Eor the facts of this case, see the decision.</p>

Construction of will. Specific and general legacy. Abatement. Advancement. Before Judge Harrell. Randolph Superior Court. May Term, 1872. Wiley Miller, on the 19th of November, 1863, made his will, appointing Lewis B. Miller and Moses H. Baldwin as his executors. Testator died, and on the 5th of September, 1865, Lewis B. Miller was qualified as executor.

Attachment against administrator. Traverse of affidavit. Party as witness. Before Judge Strozier. Dougherty Superior Court. June Term, 1872.

Scire facias. Dormant judgment. Statute of limitations. Before Judge Clark. Schley Superior Court. April Term, 1872.

Partition. Rule against commissi oners. Before -Judge-Wright. Heard Superior Court. March Term, 1872, On December 5th, 1870, a petition was presented to the Honorable John S. Bigby, then Judge of the Superior Courts of the Tallapoosa Circuit, at Chambers, containing substantially the following allegations: That at the September term, 1870, of the Superior Court of.

New trial. Motion for in vacation. Criminal law. Supersedeas. Before the Supreme Court. July Term, 1872.

<p>In a suit for overflowing the land of the plaintiff, by obstructions placed by the defendant across a stream running from the plaintiff’s ¡and under the railway of the defendant, where the evidence shows that th® only obstruction put in the stream by the defendant was a sill, ten inches square, placed across the stream on the bottom of the channel; that the stream below the railway had been choked up by other persons, and that sand had accumulated in the bed of the stream from the point below the railway, where the channel had been obstructed to such an extent as to bury the sill some four feet under the sand, and tha t this filling up of the channel had caused the overflow, a verdict against the defendant should have been set aside as against the evidence, and a new trial granted, this Court being of opinion that the accumulation oi sand which caused the overflow is attributable to the obstructions below the railway, and not to the sill placed in the stream by the defendant.</p>

<p>3. A promissory note, or other debt, is taxable, under the laws of this State, according to its market value in fact, and not according to- the opinion its holder may have of its market value.</p> <p>2. A note or debt upon a solvent person is, presumptively, of some market value, and if it has not been given in for taxes at all, the verdict, of the jury finding that the legal taxes due thereon have not been paiii will not be disturbed, there being no proof that the debt had no market value.</p> <p>Warner., Chief Justice, dissented.</p>

Injunction. Discretion of Superior Court. Remedy at law. Before Judge Davis. White county. At Chambers. April 29th, 1872.

Scire facias. Taá affidavit. Relief Act of 1870. Before Judge Knight. Cherokee Superior Court. March Term, 1872. . Joseph T. Hamilton proceeded,' by seire facias, to revive a dormant judgment against S. M. McConnell, principal, and S. Lovingood, indorser.

Habeas corpus. Jurisdiction. Sentence. Evidence. Supersedeas. Before Judge Cowabt, of the City Court of Atlanta. At Chambers. April 5th, 1872.

Relief Act of 1870. Tax affidavit. Market value. Before Judge Johnson. Talbot Superior Court. March Term, 1872. John H. Walton brought complaint against Daniel J. Carreker, as administrator upon the estate of Lafayette T. Lock-hart, deceased, on three promissory notes, dated September 12th, 1861, and due on December 25th, 1863, each for the sum of $778 25, with a credit upon one of said notes of $575 81, dated January 12th, 1867.

Relief Act of 1870. Tax affidavit. Before Judge Greene Newton Superior Court. September Term, 1871. F. A. Thomas brought assumpsit against Joshua Knowles on a promissory note, dated March 14th, 1864, payable January 1st, 1866, for the sum of $500 00. The defendant pleaded the general issue, failure of consideration, and tender.

Attorney and client. Suit for fees. Commissions. Before Judge Cole. Bibb Superior Court. October Term, 1871. Samuel D. Irvin brought assumpsit against William B. Parker for $600 00 alleged to be due as attorney’s fees. The defendant pleaded the' general issue.

Exceptions tf> report of auditor or master. Chancery practice. Laborer’s and mechanic’s lien. Partnership assets. Assignment by insolvent debtor. Before Judge Strozier. Dougherty Superior Court. May Adjourned Term, 1872. For the facts of this case, see the opinions.

<p>1. On the trial before a jury of exceptions to an auditor’s report, the re.port is, prima facie, true as to the facts and results reported. The fact that the rule of reference provides that any exceptions filed were to be tried de novo, as in cases of appeal, does not vary the rule.</p> <p>2. It is not sufficient to except generally to an auditor’s report, in matters of account referred to him, as erroneous in the results at which he arrives. Th.e exception should point out wherein the error consists.</p> <p>3. In Georgia, on the trial by a jury of exceptions to an auditor’s report, evidence, other than that laid before the auditor, is admissible.</p> <p>4. It, is not a devastavit on the part of an administrator who has obtained an injunction preventing the distributees of the estate from suing him, to settle in Confederate funds belonging to the estate, with certain of the distributees who are willing to, and do, accept such funds at-par in payment of their distributive shares, and fail to settle with others who make no demand on him till after the war, provided he retain a sufficient amount of similar assets to settle with the others, even though such assets afterwards perish on his hand without fault on his part.</p> <p>5. Where one of the matters in controversy between an administrator and the distributees of his intestate, is whether the delay in the settlement of the estate, and the losses consequent upon said delay, resulted from the failure of the administrator to comply strictly with the provisions of the law, and that, with other matters, is referred to an auditor, who, as to that, reports in favor of the administrator, and the distributees file no exceptions to the report, it is error in the Court, by his charge, to submit that issue to a jury impanneled to try certain exceptions filed by the administrator to other parts of the report.</p> <p>6. If the auditor allowed an investment by the administrator of $24,000 00 in Confederate States securities as correct, to which the administrator filed no exceptions, the jury may still take such investment into consideration, if it will aid them in arriving at a correct result as to any of the exceptions filed.</p> <p>7. It is error in the Court to charge the jury, where the estate is not ready to be dislributed, that “it was the duty of the administrator to put the solvent notes of the estate it; suit within a reasonable time after they ' became due, and if he did not do so within a reasonable time, and the debts were lost, then he is responsible for such loss,” without qualifying such charge by adding, if the notes were lost by reason of such failure to sue.</p> <p>8. If an administrator send Confederate money belonging to the estate to one of the distributees of his intestate by a person not authorized by such distributee to receive it, and the distributee refuse to accept it, but the person receiving it fails to return it to the administrator, the latter is chargeable with the true value of the money at the time it was sent, and not with its nominal value, where it does not appear the administrator received it improperly in payment of a debt due the estate.</p> <p>9. An administrator is bound to use the utmost diligence to secure debts ■ due the estate. Hence, if the makers of notes belonging to the estate, solvent at the making of the notes and for some time afterwards, become suddenly insolvent, it is his duty to put the notes promptly in suit, when there is any reasonable prospect of securing their payment by so doing.</p> <p>10. When an administrator sues anote belonging to the estate, the makers of which are solvent at the time suit is brought, which suit is enjoined by one of the makers, and remains so until all the makers become insolvent, and no laches is properly chargeable upon the administrator, the latter is not liable to make good the loss to the estate.</p>

Illegitimate child. Partition. Consideration. Escrow. Delivery. Exceptions. Before Judge Cole. Bibb Superior-Court. October Adjourned Term, 1871.

lies adjudicata. Tax affidavit. Homestead. Belief Law of 1868. Before Judge Clark. Sumter Superior Court. October Term, 1871.

Construction of will. Ambiguity. Evidence. Before Judge Clank. Macon Superior Court. December Term, 1871. Held: when the construction of this will was before it, th^t John Micajah Felton took a fee simple estate under said codicil: Vide Felton vs. Hill and wife et al., 41 Georgia Reports,.554.

Injunction. Homestead. Jurisdiction. Before Judge Knight. Forsyth Superior Court. August Term, 1872. For the facts of this case, see the decision. 1st. Creditors may attack a judgment for fraud wherever and whenever it interferes with their rights: Code, sec. 3537. 2d. A judgment only binds parties and privies : Code, secs. 3519, 3773, 2846; 25 Ga. R., 193. 3d. Defendants in error have an ample remedy at law, and equity will not interfere: Code, secs. 3614, 3616; 20 Ga.

Arbitration and award. Umpire. Void judgment. Before Judge Davis. Clark Superior Court. February Term, 1872.

<p>Statute of frauds. Part performance. Parol sale of land. Illegal contract. Before Judge Knight. Dawson Superior Court. September Term, 1872.</p> <p>Adolphus Tbeis brought complaint against John B. Graham on an account for $400 00. The bill of particulars annexed to the declaration was as follows:</p> <p> “John JB. Graham, to Adolphus Theis, Dr. </p> <p>June 2d, 1868. To one undivided interest in and to gold mine on, and lot of number (?) and one undivided interest in and to lot of land number seven hundred and nine, in the fifth district and first section of Lumpkin county, under a verbal contract for the purchase of said land with said Theis, which verbal contract has been so far performed by the said Theis as would render it a fraud on the part of the said Graham to refuse to comply if the Court did not compel a performance, $400 00.”</p> <p>Pending the litigation the plaintiff amended his declaration as follows, to-wit:</p> <p>“Your petitioner shows that he was induced not to bid for one-fourth interest of lot of land number seven hundred and nine, fifth section, sold as the property of I. J. Cowl, deceased, at administrator’s sale, upon the faith of defendant’s agreement to pay $400 00 for the fourth interest in said lot owned by your petitioner. And your petitioner further shows that, acting upon the faith of the defendant’s promise and agreement to pay said sum of money to your petitioner for said fourth interest in said lot of land, your petitioner executed a warranty deed to said defendant to said one-fourth interest in said land, and delivered the same to Colonel W. P. Price, as the agent of said defendant, which deed your petitioner now brings into this Court and tenders to the said defendant; and your petitioner further shows that he has upon the faith of defendant’s contract fully executed and performed your petitioner’s part of said contract. And your petitioner prays that the said defendant be required and decreed to specifically perform his said contract and agreement, to accept the deed brought into Court and tendered to said defendant, and that said defendant be decreed to pay to your petitioner the said sum of $400 00, with interest thereon.”</p> <p>The defendant pleaded the general issue.</p> <p>The material portions of the evidence introduced upon the trial showed the following facts i "W. P. Price was administrator upon the estate of Isaac J. Cowl, deceased; said estate owned a one-fourth interest in lot of land number seven hundred and nine, fifth district, first section of Pumpkin county; on May 3d, 1867, Cowl and plaintiff bought of Martha E. Gaddis a one-half interest in said lot, plaintiff taking a separate deed for his one-fourth. After Cowl died, the defendant spoke to his administrator several times about purchasing the interest of said estate in said lot at private sale; the defendant also spoke about purchasing plaintiff’s interest; the administrator informed him that the interest of the estate in said property could only be sold at public outcry, as the statute prescribed; also, that the estate and plaintiff both held under Martha E. Gaddis; defendant informed the administrator that he already owned a one-half interest in said lot, and wished to buy Cowl’s interest; also, that his title came though Ice or Isham Gaddis, and if Martha E. Gaddis’ title was from Ice Gaddis, he would risk a purchase, in order that he might have a controlling interest. In June, 1868, the administrator brought the interest of Cowl in said lot to a public sale; he refused to put up said property, unless assured that it would bring a good price, and had a positive knowledge that it would bring something like its true value; the sale was at Dahlonega, in Lumpkin county; the defendant, in the presence of several persons, proposed that if the plaintiff would take $400 00 for his interest, he would bid as high as that amount for Cowl’s interest, provided no one would give more than that sum; defendant then authorized the administrator to go and see the plaintiff and say to him that defendant would give $400 00 for his interest, provided he could buy Cowl’s interest that day for a like sum-; the administrator made the proposition, as directed, and asked plaintiff if he would give more than $400 00 for Cowl’s interest; plaintiff said that he could not give that much on that day, and if defendant would give him $400 00 for his interest, he might have it; the administrator stated to plaintiff that if defendant was not compelled, at the sale, to give more than $400 00 for Cowl’s interest, he would give plaintiff' the same amount for his interest. The interest of Cowl was put up at public outcry and knocked off to defendant at $400 00; defendant then directed the administrator to prepare deeds to the two interests, and to have them ready by the following Monday; the deeds were duly executed, and on that day were tendered by the administrator to the defendant, who requested that he might have a little time to raise the money. At intervals, he paid sums on the Cowl purchase until it was paid for in full; he, for a long time, assured Price that he would take the interest of Theis, but finally declined, because Theis did not have a deed from Ice Gaddis; Price tendered the deed from Theis to defendant; he declined to receive’it; Price agreed, at any time, to furnish him certified copies from the records of the deeds constituting the chain of title back of MarthaE. Gaddis; defendant, several times, informed Price that the reason he did not pay Theis Avas because all of his money Avas loaned out; Theis did not bid at the sale of the CoavI interest.</p> <p>The jury returned the folloAving verdict, to-wit: “We, the jury, find for the plaintiff $400 00, with interest and costs of suit, Avhen plaintiff produces original deeds, or certified copies thereof, to said defendant.”</p> <p>The defendant moved for a new trial upon the following, among other grounds, to-wit:</p> <p>1st. Because the verdict is contrary to law, equity and the evidence.</p> <p>2d. Because the contract set up by the plaintiff is contrary to public policy and illegal.</p> <p>If] 3d. Because the contract upon which plaintiff seeks to recover is contrary to the provisions of the statute of frauds.</p> <p>The Court overruled the motion, and defendant excepted, and assigns error upon each of the aforesaid grounds.</p> <p>1st. Part performance necessary to take case out of the statute of frauds: Code, sections 1940, 3130; 6 Ga. R., 590; 20 Pick. R., 134; 5 Ga. R., 472.</p> <p>2d. No damage resulted to plaintiff from the refusal to take the title: 12 Ga. R., 52.</p> <p>3d. The agreement not to bid at the administrator’s sale Avas illegal: Code, section 2708; 6 John. R., 194; 13 Ibid, 112; 25 Ga. R., 708; 40 Ga. R., 582.</p> <p>4th. The verdict is uncertain and void; 27 Ga. R., 469; 17 Ibid, 363.</p>

<p>Where “M” held a tract of land under bond for titles from 11W” and sold the same to “ C,” executing a bond to make a fee simple title so soon as he obtained a title from “ W,” “C” paying the purchase money in full, and <:B,” with a full knowledge of these facts, confederating with others, by threats, etc., induced “M” to sell the land and to transfer to him “W’s” bond, under which transfer “B” procured a deed from “ W ” :</p> <p>'Held, That a demurrer to a bill filed by “C” setting up the foregoing facts and praying that “ B ” may be decreed to execute' him a title to said land, was properly overruled. (R.)</p>

Complaint for land. Equitable count. Trust. Succession. Estoppel. Presence at sale. Secondary evidence. Before Judge Andrews. Oglethorpe Superior Court. April Adjourned Term, 1872. TÍiomas H. Brown, as administrator upon the estate of John S. Fleeman, deceased, brought complaint against James D. Tucker for a certain tract of land in the county of Oglethorpe, and for the rents and profits of the same from January 1st, 1869, of the yearly value of $75 00.

<p>Equity. New trial. Undue influence. Want of capacity. Admissions. Declarations. Cumulative testimony. Before Judge Davis. Gwinnett Superior Court. March Adjourned Term, 1871.</p> <p>Mary Howell, formerly Mary Haney, widow of Evan Howell, deceased, Archibald Howell, William M. McAfee and his wife, Mary E. McAfee, formerly Mary E. Howell, Clark Howell, Jackson Graham, and his wife, Julia Ann Graham, formerly Julia Ann Howell, A. T. Abbott, and his wife, Savannah Abbott, formerly Savannah Howell, filed their bill against Singleton G. Howell, containing substantially the following material allegations:</p> <p>That the complainants, Mary Howell, Archibald Howell, Clark Howell, Mary E. McAfee, Julia Ann Graham and Savannah Abbott, together with Hampton W. Howell, and the defendant, constitute the widow and children of Evan Howell, deceased; that Evan Howell departed this life on February the 28th, 1868, leaving a will which was duly admitted to probate, appointing the defendant and one Samuel J. Winn? executors, by which the testator divided all of his personal property equally between his said widow and children; that on March 23d, 1865, the said Evan Howell executed a deed, in consideration of the natural love and affection which he boie to said defendant, conveying to him a valuable tract of land in the county of Milton, of the value of $4,000 00; that on June 1st, 1866, for the same consideration, said Evan Howell conveyed to said defendant a tract of land in the county of Gwinnett, of the value of $15,000 00; that said Evan Howell, at the time of the execution of the deeds aforesaid, was over eighty years of age, of imbeeile mind and in his dotage; that he had the kindest feelings for all of his children, and when away from the influence and control of said defendant, was an affectionate husband and a devoted father; that* it was his earnest desire and wish to divide all of his property equally between his children and wife; that at the time of the execution of the deeds aforesaid he was living' near to said defendant, who had acquired complete control over him; that said defendant by false and fraudulent representations of his own poverty and the poverty of his family, and of the wealth 'of complainants, and by fraudulently operating upon the imbecile mind of said Evan Howell, induced him to execute the deeds aforesaid.</p> <p>Complainants charge that should the said deeds be held valid, the said Evan Howell instead of dividing his property equally among his children and his said wife, as was his earnest desire and wish, will have given to the defendant property to the value of $15,000 00 more than will have been received from him either by his said wife or by any other of his said children; that said deeds were obtained by fraud of the most insidious character, practiced upon a confiding and imbecile old man upon the verge of the grave; that said Evan Howell, when on his death-bed, expressed the earnest desire that his. property should be divided equally among all of his children that at the time of the execution of each of the aforesaid deeds, said defendant would allow no one to be present except the necessary witnesses, and endeavored to keep each transaction an entire secret; that the said Evan Howell, when possessed of the full use of his mental faculties was unable to read writing; that the deeds aforesaid were prepared by the said defendant and signed by the said Evan Howell without comprehending their contents and legal effect; that for some years preceding his death the said Evan Howell, by reason of his imbecility, was unable to manage any of his business, and had turned over all of his papers to said defendant; that defendant dictated the provisions of the will of said Evan Howell, wrote the instrument himself, and had the same in his possession at the time of the death of testator. Prayer that the Chancellor shall order and decree that the deeds executed as aforesaid be delivered up to be canceled and that, said instruments be decreed to be null and void.</p> <p>The oomplainants, pending the litigation, amended their bill substantially as follows, to-wit:</p> <p>That Hampton ~W. Howell, although a legate^ and one of the children and heirs-atl-aw of said Evan Howell, deceased, and as such equally interested with complainants in the administration of said estate, yet, for reasons best known to himself and the said defendant, declines to become a co-complainant in said bill. Prayer that he be made a party defendant.</p> <p>The defendant, Singleton G. Howell, answered the bill, denying every material allegation. The defendant, Hampton ~W. Howell, filed no answer.</p> <p>The evidence as to the capacity of Evan Howell was voluminous and conflicting.</p> <p>The jury returned a verdict for the complainants, annulling and canceling the aforesaid deeds.</p> <p>0 The defendants moved for a new trial, upon the following among other grounds, to-wit:</p> <p>2d. Because the Court erred in rejecting the will of said Evan Howell, deceased, executed on the 9th of April, 1867, in which said testator refers to said deeds, and distinctly recites the fact that he had theretofore conveyed all his lands to his wife and children by deeds.</p> <p>4th. Because the Court erred in rejecting the answers of Dr. James R. Knox to the sixth direct interrogatory, propounded to him in this case, as follows, to-wit: “I have heard the said Evan say, after writing the will, (about which 1 have testified,) that he had made a deed to S. G. Howell, the defendant, to or for the lands mentioned in said will. This was some time during the year 1866. The said Evan said, that his. negroes being free, and for other reasons assigned by him, not, now recollected, he apprehended that an eifort would be made to break his will, and that he had made the deeds so as to make the gift or' bequest to S. G. Howell stick.” And in rejecting another part of Dr. J.- R. Knox’s answers to said interrogatories, as follows: “ His (E. Howell’s) mind was also good, in my opinion, at the time I heard him speak of having made a deed of gift to S. G. Howell.” And in rejecting another part of the answers of said J. R. Knox to said interrogatories, as follows: “ I know that Evan Howell told me repeatedly, before bis death., that S. G. Howell should have the lands about which I have testified.”</p> <p>5th. Because the Court erred in rejecting that part of the answers of John IT. Cook to interrogatories propounded to Mm, in which, reciting a conversation witness had with Evan Howell, in the year 1865, witness stated that said Evan Howell distinctly told him that he had given his. lands to his son.”'</p> <p>6th. Because the Court erred in rejecting that part of the answers of Mary Howell (one of the complainants, and the widow cf Evan Plowell, deceased,) to interrogatories, as follows, to-wit: “I heard deceased say to Mr. Pitman, tax collector, that he had deeded away the most of Ms lands, and that Singleton, (meaning the defendant) must pay the taxes on them. The defendant paid the taxes on the lan^sdeeded to him after the deeds were made.” And in rejecting the answer of the said Mary Howell to the seventh interrog■atory, as follows: “A short time before the death of Evan Howell, my late husband, he expressed a desire to take all the deeds and will to Judge Hutchins and get his- opinion as to whether a flaw could be picked in them. He was very anxious to know that they (the deeds and will) were all right, and wanted them to stand as they were.” He gave as a reason for making the last deeds that the first were not stamped. He understood his business all the time, and what he wanted to do with his property, and expressed himself satisfied with what he had done.</p> <p>7th. Because the Court erred’ in refusing to permit the defendant to prove by Dr. James R. Knox, Mrs. Mary Howell, John H. Cook, T. J. Waters, Thomas Pitman, tax collector, J. J. McDaniel, tax receiver, and others, that at different times and places, after the deeds had been executed, and while he was in possession of the lands in controversy, that the said Evan Howell had declared repeatedly to, and in the hearing of each of them, that he had given said lands to Singleton G. Howell, and had made him deeds of conveyance to the same.</p> <p>8 th. Because the Court erred in refusing to permit the defendants to prove by Hampton W. Howell and others that after the execution of the deeds, and while said Evan Howell was in possession of the lands in controversy, but a short time before his death, and during his last illness, (when referring to said deeds and disposition of his property thereby made,) Evan Howell said, “I know I have done right; some people can believe what they want to.”</p> <p>9th. Because the Court erred in refusing to permit defendants to read in evidence to the jury the books of tax returns for the years 1862, 1863 and 1864, to show that in those years the said Evan Howell had given in the lands described in said deeds, both in Gwinnett and Milton counties; and the books of tax returns for the years 1866 and 1867, to prove that he gave in no lands for those years; the defendants having first proven by the receiver of tax returns for each of said years last mentioned, that the said Evan Howell had- given in his taxes himself in person and in the absence of Singleton G. Howell.</p> <p>10th. Because the Court erred in permitting the complainants to prove declarations made by Evan Howell, deceased, after he had executed the deeds, they seeking as heirs-at-law of said Evan Howell, to set said deeds aside.</p> <p>"Which motion came on to be heard on the 30th day of May, 1872, during an adjourned term (being a continuation of the March term, 1872,) of said Superior Court. The Court, after a careful review of the evidence, sustained said motion and granted a new trial in said cause on the grounds aforesaid, and counsel for complainants excepted. And the counsel for complainants, on this twenty-sixth day of June, in the year last aforesaid, being within thirty days from the final adjournment of said last mentioned term of said Court, tender their bill of exceptions, and say:</p> <p>1st. That the Court erred in granting a new trial in said cause.</p> <p>2d. That the Court erred in sustaining the second ground taken in said motion for a new trial, because a copy of said will was attached as an exhibit to complainant’s bill of complaint as a part of the pleadings in the cause, and the effect of the contents thereof was argued before the jury and considered as an admission of record.</p> <p>3d. That the Court erred in sustaining, said motion for a new trial on the grounds' aforesaid, because said rejected testimony is merely cumulative of similar evidence, which was admitted and considered by the jury, and if the same had been received, it would not or ought not to have changed the verdict of the jury.</p> <p>4th. That the Court erred in rejecting the following testimony of the witnesses, Mrs. Julia A. Graham, Archibald Howell and others, offered in evidence by the complainants, viz : “ That during the last illness of said Evan Howell, he expressed himself dissatisfied with the disposition made of his property, and requested the defendant, Singleton G. Howell, to bring him the will and deeds, that he might make such a disposition of his property as would make all his children equal, and that said defendant replied, evasively, “ you have no property to divide, but some money.”</p>

<p>1. A complainant may amend his bill after a decision of the Supreme Court-sustaining a demurrer to it, and before the remittitur is entered upon the minutes of the Superior Court; but if the amendment offered still fails to make a case which entitles the complainants to relief, it is not error in the Superior Court to refuse it, and dismiss the bill.</p> <p>2. Ignorance of law, where there is no misplaced confidence, and no fraud on the part of the opposite party, will not authorize the intervention of equity: Code, section 3066. Hence, where parties submit the matters in issue between them to arbitration, and an award is rendered and made the judgment of the Court, under the Code, without objection on the part of the losing party, a bill will not lie at his instance to set aside the judgment, upon the ground that he could have prevented the award from becoming the judgment of the Court, by filing exceptions, but was ignorant of his right to do so.</p>

<p>1. Where the sheriff, in answer to a rule requiring him to show cause why he should not pay over to the plaintiff in mortgage ft. fa. the proceeds of the sale of the mortgaged property, set up that he had been notified by the Ordinary that said.property had been set apart to the defendant in ft. fa. as a homestead, and required to pay over said fund to him, the Ordinary, and the sheriff submitted the question to the Court, to whom the money should be paid, it was not error to discharge the rule. (R.)</p> <p>2. Where the application for a homestead in the mortgaged property waa filed on December 14th, 1868, and on the same day the Ordinary passed an order allowing the same, under the 7th section of the Homestead Act of 1868, no notice of the application having been given by published citation or otherwise, it was error in the Court to order the fund to be taken from the mortgage Ji. fa. and paid over to the Ordinary for the benefit of the homestead, without notice to the plaintiff, and without his having an opportunity to contest the right of the applicant to the homestead. (R.)</p> <p>3. The applicant for a homestead exemption, in all cases under the Constitution and the provisions of the Act of 1868, should give the notice, as required by the 3d section of the Act, as well in applications under the 7th section as under any other section. (JEt.)</p>

Money rule. Equity. Decree. Execution. Before Judge Clark. Dougherty Superior Court. June Term, 1872. This case arose upon a motion made by Nelson Tift, that a sum of money collected ont of him, as indorser, on an execution in favor of Lorenzo D. Goode vs. Asa Singinfield, maker, and Nelson Tift, indorser, and impounded in the hands of George W. Collier, late -sheriff of Baker county, be paid over to him.

Injunction. Bond for titles. Jurisdiction. Before Judge Andrews. Warren county. At Chambers. December 19th, 1872.

<p>1. In a suit for a breach of warranty of a deed to land, where the plain tiff bought, pending an action of ejectment against his vendor for the land, the verdict and judgment of recovery against the vendor, in the ejectment suit, is evidence to sustain the alleged breach of warranty, and a non-suit was properly refused.</p> <p>2. Evidence of the amount paid by plaintiff to his counsel to secure titles to the land, admitted to rebut proof that the use of the land was more than a full off-set to the interest on the purchase money, was properly admitted.</p> <p>3. A purchaser of land, under bond for titles,’ who subsequently pays the purchase money and takes a deed, may, in .a suit for breach of warranty in the deed, put in evidence the bond for titles, as a part of the history of the transaction, and to show that the defendants (the executors of the obligor) were bound to make him a good warranty title.</p> <p>4. Where a plantation was bought in 1858. under bond for titles, and in great part paid for in Confederate money, in 1863, and a deed then taken ; in a suit by the purchaser against the executors of the vendor for breach of warranty, on account of the recovery in ejectment, by a third person, of a portion of the plantation, the defendants should have been permitted to prove the value of the whole place at the time of trial, in order that the jury, in ascertaining the damages, might, under the Ordinance of 1865, review the whole transaction and render their verdict on principles of equity.</p> <p>S. The breach of the warranty, in this ease, not having occurred before 1865, in no view can the Belief Act of 1870 be applicable te it, so as to require an affidavit of taxes to be filed by the plaintiff.</p>

<p>Criminal law. Motion in arrest. Before Judge Strozier. Dougherty Superior Court. June Term, 1872.</p> <p>Eor the facts of this case, see the decision.</p>

Criminal law. Indictment. Witness. Confessions. Opinions. Recommendation to imprisonment for life. Reasonable doubt. Before Judge Strozier. Dougherty Superior Court. June Adjourned Term, 1872. Gustavus Peterson was placed upon trial for the murder of John Sims, alleged to have been committed April 2d, 1872. The defendant _ pleaded not guilty.

Injunction. Receiver. Before Judge Strozier. Dougherty county. At Chambers. January 20th, 1873.

<p>(Montgomery, Judge, was providentially prevented from presiding in this ease.)</p> <p>Where a bill was filed to engraft upon an absolute deed a secret trust, and the defendant setup that the original transaction was a scheme to defraud the creditors of the true owner of the land, and the Court, on being requested to charge the jury that if the intent of the parties was to defraud the creditors, as claimed, the Court would not interfere between parties engaged in an illegal act, charged the law as requested but added, that it must appear that some particular creditors were intended to be defrauded, and that some particular creditors were in fact defrauded:</p> <p>Held, That this qualification was error, and the Judge should hare charged as asked, without qualification.</p>

<p>Juror. Evidence. Before Judge Clark. Dougherty Superior Court. June Term, 1872,</p> <p>For the facts of this case, see the decision.</p>

Ejectment. Judgment. Party. Improvements. Set-off. Before Judge Harrell. Baker Superior Court. November Term, 1872. Crawford W. Long, Giles Mitcbell and Henry N. Long, as executors upon the estate of James Long, deceased, brought ejectment against N. A. Dykes for the recovery of lot of land number three hundred and twenty-seven, in the eighth district of the county of Baker. The declaration contained a demise from Aquilla Byford.

<p>1. Upon the trial on appeal from the award of arbitrators, of the damages sustained by reason of the location of the right of way of a railroad company, upon the land of appellant, the fact that the Chancellor had ordered all debts against said railroad company reported to an auditor appointed by him, upon a bill filed to marshal the assets of said company, is no ground of continuance, as the appellant’s right to damages had first to be ascertained according to the provisions of the charter of the company, before she had any liquidated debt to report to the auditor. (R.)</p> <p>2. It was error to allow the appellant to show what another railroad company paid to her as damages for running its railroad through her land. (R.)</p> <p>3. It was error to allow the witnesses for appellant to give their opinions as to the amount of damages she had sustained by the location of the road through her land as a basis for the verdict of the jury. (R.)</p> <p>4. The testimony of a witness who lived upon a plantation through which another railroad ran as to the damages to that place therefrom was properly excluded. (R.)</p>

<p>(Montgomery, Judge, was providentially prevented from presiding in this ease.)</p> <p>1. Whether a certiorari will lie to review the proceedings before a jury, called under section 4572 of the Revised Code, to inquire into the sanity of a prisoner who has been convicted and sentenced to death, and who is claimed to have become insane after conviction. Qusere.</p> <p>2. In an inquisition to inquire into the sanity of a man convicted of murder and sentenced to be hanged, and who is claimed to have become insane after the conviction, evidence of the insanity of the prisoner at different times before the conviction, is only legitimate evidence as explanatory and illustrative of insane acts, etc., since the conviction, and unless such acts, or some apparent insanity be proven, the evidence of acts and conditions of mind before conviction were properly rejected.</p>

<p>Criminal law. Constitutional law. Insanity. Before Judge Clark. Webster Superior Court. May Special Term, 1872.</p> <p>For the facts of this ease, see the decision.</p>

Livery stable keeper’s lien. Money rule. Before Judge Stroziee. Dougherty Superior Court. October Term, 1872. Colquitt & Baggs held a mortgage upon certain personal .property of one Charles O. Little, dated April 16th, 1870, to cover advances to be made by them, as factors and commission merchants during that year, not to exceed in all $1,000.

<p>Rule against sheriff. Relief Act of 1868. Before Judge Clark. Schley Superior Court. November Term, 1872.</p> <p>Eor the facts of this case, see the decision.</p>

<p>Where one is not a resident of this State, but is passing through the same with his goods, an attachment may issue against him, on the ground “that he is actually removing out of the county” in which he may then he found.</p>

<p>(These oases were argued together, at the July Term, 1872, and the decision withheld until the January Term, 1873.)</p> <p>1. The City Council of Augusta has the authority to levy and collect a tax upon all species of property within its corporate limits, subject to taxation by the general laws of the State, and no special power was required(from the State to enable it to levy and collect all legal taxes upon the shares of the stockholders in the banks specified in the record. (R.)</p> <p>2. There can be no discrimination in favor of any one species of property which is taxed over any other species of property taxed, but the tax imposed must he ad valorem, and uniform on all species of property taxed. (B,.)</p>

Injunction. Constitutional law. Before Judge Strozier. Decatur Superior Court. November Adjourned Term, 1872. Daniel Humphrey filed his bill against the Board of County Commissioners for the county of Decatur, and the corpoi’ation of the city of Bainbridge, making substantially the following case: Complainant is the owner of a ferry on the Elint river, near the city of Bainbridge, and of a body of lands extending above and below said ferry a considerable distance.

Criminal law. Autrefois convict. Before Judge Clark. Lee Superior Court. November Term, 1872. Thomas J. Crocker was placed on trial for the offense of an assault with intent to murder, upon tbe person of Shephard E. Green, alleged to have been committed on August 26th, 1868.

<p>New trial. Illegality. Before Judge Clark. Schley Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>(Montgomery, Judge, was providentially prevented from presiding in this ease.)</p> <p>1. The confessions of the defendant having been shown to the Court, to have been prima facie freely and voluntarily made, it was not error to allow them to be submitted to the jury, under its charge as to the law applicable thereto, leaving them to give such weight and credit to the confessions as they might believe them entitled to. (R.)</p> <p>2. It was the duty of the Court, where the defendant was on trial for the burning of the occupied dwelling house of another, to have charged the jury that they could, by their verdict, if they thought proper to do so, recommend that the defendant be punished by imprisonment in the penitentiary for life, irrespective of the fact whether the conviction was founded on circumstantial evidence or not. (R.)</p> <p>3. Where such a recommendation is made, it becomes the duty of the Court to commute the death penalty in accordance therewith. (R.)</p> <p>4. The occupation of the dwelling house is an essential element of the offense with which the defendant is charged, and it is not sufficient to show this fact by inference. (R.)</p>

Appointment of auditor. Before Judge Clark. Sumter Superior Court. November Term, 1872.

Attachment. Claim. Affidavit. Before Judge Strozieb. Dougherty Superior Court. October Term, 1872.

<p>Criminal law. Assault with intent to murder. Continuance. Before Judge Strozier. Sumter Superior Court. April Adjourned Term, 1872.</p> <p>Peter Black, alias Peter Williams, was put upon trial for the offense of an assault with intent to murder, upon the person of one S. Fleishman, alleged to have been committed with a hickory club and a large knife, on December 28th, 1871. The defendant pleaded not guilty.</p> <p>When the case was called, defendant moved for a continuance on account of the absence of Mollie Davenport, a material witness for the defense, by whom he expected to prove that the premises whereon the difficulty occurred between him and prosecutor were rented and controlled by defendant at the time. The formal showing as to her having been served with a subpoena, etc., was duly made.</p> <p>The motion was overruled and the defendant excepted.</p> <p>To this ground of exception the presiding Judge attaches the following note: “After the Court had overruled the motion for a continuance, the Court sent and brought in said Mollie Davenport, and she was in Court during the trial, but was not introduced by the defendant.”</p> <p>The following evidence was introduced for the prosecution:</p> <p>S. Fleishman, sworn: On December 28fch, in the evening, S. Cohen went to Orange Laramore’s house to see about some carpenter work; witness accompanied him ; when witness entered the house th'e room was rather dark; two women were in the room; asked if Orange was at home; they-said not; asked the woman on the right hand of the fire-place which was Orange’s wife; asked her where Orange went to, where he was. While witness was talking, defendant came out of a dark corner and attacked Cohen and struck him on the head wiih a green, heavy stick, saying “you know, you know;” the stick was heavy enough to kill a mule; thinks it was a hickory stick; cannot tell the exact size; hearing the stick striking and the words “you know,” witness turned round when he hit him over the head with the stick; witness’ head commenced to bleed; said he intended to kill every white son of a bitch down there. This occurred in Sumter county, on the property of Dr. Holloway. Cohen told witness that he had been down there before and defendant had run him off; did not go down there to see the women; had never been there before; witness feared a difficulty; any time witness goes out he prepares himself; witness did not draw his pistol till defendant had struck him two or three times; then witness shot him twice; did not rush on defendant when he struck Cohen; did not know' anything about defendant’s keeping Julia; it was about nine o’clock at night, or after; witness hit defendant when he shot; witness was up the next day but was no account for business; the stick was heavier than a broom stick.</p> <p>Julia Worrill, sworn: "Witness lived on a place that belonged to Dr. Holloway; Orange rented from Dr. Holloway and witness rented from him. One night Mr. Cohen came down there when witness and defendant were off talking; defendant asked him what he was doing there; said he wanted to see Orange; defendant said he should not go in there. Mr. Cohen said he should, because witness lived there and had told him that he could come in. Orange went off with defendant. The second time Mr. Cohen came Mr. Fleishman •was with him; they opened the door and asked where Orange wa's; defendant said “that man took him off;” defendant then struck Mr. Fleishman; he had no control over the house; was only a visitor; came to see witness; never saw Fleishman before; he said nothing to witness; only asked where Orange’s wife was; defendant struck Mr. Cohen first. Fleishman did not shoot until after defendant struck him; he had his back towards defendant when he was struck; he was talking to Orange’s wife. The stick with which Fleishman was struck was large enough to kill a mule if the blow was sufficiently hard. •</p> <p>The defendant introduced no testimony. The jury returned a verdict of guilty. Whereupon the defendant moved for a new trial, because the Court erred in overruling the motion for a continuance, and because the verdict was contrary to the law and the evidence. The motion was overruled and i^ie defendant excepted.</p>

<p>(Montgomery, Judge, was providentially prevented from presiding in this case.)</p> <p>When a suit was brought against A on an open account for monies advanced to B, which it was claimed A was liable to pay, and a verdict was had in favor of the defendant, and subsequently the plaintiff in the suit brought another action against A for the same monies, charging that he was liable to pay them, by reason of his fraud and deceit practiced on the plaintiff, and A pleaded the former judgment in bar, and on the trial the same evidence and no other was offered as had been used in the other case:</p> <p>jHeld. That it was not error in the Judge to charge the jury that if they believed the cause of action now sued on was the same transaction as was investigated in the former trial they ought to find for the defendant.</p>

Amendment. Waiver. Tender. Confederate money. Interest. Before Judge Clabk. Lee Superior Court. November Term, 1872. Complaint was brought in the name of James Campbell, against David A. Pettis, on a note made by said Pettis, on March 12th, 1862, due January 1st, 1863, for the sum of $325 00, returnable to September term, 1869, of Lee Superior Court. No affidavit of the payment of taxes was filed. James Campbell died in the summer of 1862, leaving neither wife nor children.

Criminal law. Continuance. Jury. Practice. Confessions. Evidence. Before Judge Clark. Webster Superior Court. May Special Term, 1872. At a special term of Webster Superior Court, held in May, 1872, Enoch E. Spann and Susan Eberhart were indicted for the offense of murder upon the person of Sarah Spann, alleged to have been committed on the 4th day of the then present month.

Secondary evidence. Production of paper. Before Judge Clark. Sumter Superior Court. October Term, 1872. • J. W. Lathrop & Company brought complaint against Beverly C. Mitchell, as indorser upon a promissory note made by James G. M. Ball, on January 7th, 1860, due on December 25th next thereafter, payable to B. C. Mitchell or bearer, for $348 00.

<p>Argument. Dower. New trial. Before Judge Clark, Sumter Superior Court. October Term, 1872.</p> <p>Elizabeth Ravens, widow of James Ravens, deceased, petitioned for dower in the lands of her husband. Commissioners were appointed, a return made, and a traverse entered by A. H. Kendrick, administrator de bonis non, cum testamento annexo, upon the estate of said James Ravens.</p> <p>The following evidence was introduced upon the trial of the issue thus formed.</p> <p>Elam Johnson, for petitioner, sworn: Knew the deceased in his life, and the lands of which he was possessed at the time of his death, consisting of about nine hundred acres; the applicant was his widow; witness married one of the daughters of the deceased.</p> <p>Benton M. Wheeler, for the defense, sworn: Was a witness to the paper exhibited, and saw the applicant sign the same, at the house of A. F. McPherson, in the morning of the day on which it purports to have been signed; does not think there was any money passed; there was a $4,000 00 paper' passed; it was during the war; Johnson, Mrs. Ravens, and the other witness to the paper, were present.</p> <p>The defense then introduced the following instrument, and closed:</p> <p>“STATE OF GEORGIA — County op Sumter.</p> <p>“April the 12th, 1865.</p> <p>“This indenture, made this twelfth day of April, eighteen hundred and sixty-five, between Elizabeth • Ravens, of the county of Schley, of the one part, and Alfred F. McPherson, and D. S. Ravens; executors of the last will of James H. Ravens, deceased, and agents of the heirs-at-law and legatees of the said James; witnesseth, that in consideration of the sum of $6,491 00 to her in hand paid, as well as in consideration of a final settlement and compromise of certain disputes and controversies between the said Elizabeth, and the said executors in relation to their claims against her, and herís against them, and for the adjustment of the family dispute, the said Elizabeth hath granted, sold, quit claimed and released, and by these presents doth grant, sell, quit claim and release all and singular ' her claims and liens upon the estate of the said James Ravens, for twelve months’ support, and widow’s equity, and provision of furniture, etc., and also all claims and rights of dower in the lands of which the said James died seized, and all and singular any other claim or claims she may have against said estate, of every kind, except only the personal and specific legacy bequeathed her by the will of the said James, and which she hereby acknowledges to have received, and she doth hereby convey and release to the said executors for the use and benefit of the heirs-at-law other than herself, all and singular her said claims, liens and rights of dower, and twelve months’ support, and widow’s provision.</p> <p>“In witness of which the said Elizabeth hath hereto set her hand and seal, the day and year above written.</p> <p>[Signed] ' “ELIZABETH RAVENS.</p> <p>“ Signed, sealed and delivered in presence of</p> <p>“ E. L. Whittle.</p> <p>“Benton M. Wheeler, Clerk I. C.”</p> <p>The petitioner then introduced the following evidence in rebuttal:</p> <p>Elam Johnson, reintroduced, sworn • Did not see any money passed; thinks $2,400 00 was paid in a paper which was considered good; does not remember what the paper was; the balance was paid in a due bill because the money was in bank; it was Confederate money; witness went after petitioner; did not tell her it was better for her to come; did not tell her that Colonel Hawkins said it was a poor case, and she could not get anything; does not remember whether the application for dower was pending, at the time; witness was anxious to settle the matter before his return to the army, and hence his agency in the matter; does not remember that the applicant expressed a desire to see Colonel Hawkins; there was no controversy but the dower and year’s allowance; she was Mrs. Saunders before she married Mr. Ravens; does not know whether the $2,400 00 was in papers or a lawyer’s receipt; the applicant is an old lady; Colonel Hawkins, at the sale of the land, announced that there was a suit for dower pending; does not know whether McPherson ever paid the note or not; it was to be paid in currency which we all took; applicant knew that the money was in town.</p> <p>A. H. Kendrick, sworn: Witness is the administrator de bonis non upon the estate of James Ravens, deceased; knows nothing about the contract in evidence; never paid anything for the dower; applicant has never asked witness to pay her any money.</p> <p>W. A. Hawkins, sworn: The $4,000 00 note and receipt on Wallace & Holsey were put in witness’ hands by the applicant, and not one dollar has ever been paid on them; when •witneás filed the application for dower, he advised applicant to go' on with it. The papers were turned over to witness to be surrendered. The note for which the lawyer’s receipt was given for $2,400 00, belonged to her before marriage; nothing was ever collected on them.</p> <p>The jury returned a verdict in favor of the applicant for dower. The defendant moved for a new trial, upon the following, amongst other grounds, to-wit:</p> <p>1st. Because the Court erred in refusing to allow the counsel for defendant to open and conclude said cause, they stating that they relied only upon a release made by the applicant, and would assume the burden of proof.</p> <p>2d. Because the verdict was contrary to the evidence.</p> <p>The motion was overruled and the defendant, ¿xcepted upon each of the aforesaid grounds.</p>

Factor’s lien. Before Judge Clark. Schley Superior Court. October Term, 1872. Saulsbury, Respess & Company foreclosed against S. E. Eason, Jacob M. Gay and Robert Burton, three separate factors’ and merchants’ liens, varying in amount and date, but all in the same terms as the following: “$233 60.

Factor’s lien. Warranty. Before Judge Clark. Macon Superior Court. December Term, 1872. Boit & McKenzie foreclosed their lien against Richard Williams for commercial manures furnished to him, for the purpose of making his crop for the year 1871.

<p>(Montgomery, Judge, was providentially prevented from presiding in this case )</p> <p>It is no good plea to a suit upon a promissory note that the suit is brought by the true owner in a fictitious name, it not appearing by the plea that the defendant lias any defense to the note.</p>

Belief Act of 1870. Tax affidavit. Before Judge Andrews. Elbert Superior Court. September Term, 1872. William T. Yanduzer, as administrator of Ira Christian, deceased, brought complaint against George E. Heard, as principal, and Thomas J. Heard, as security, upon a promissory note, dated March 6th, 1860, and due December 25th, in the same year, for $2,369 08, besides interest.

Homestead. Crops. Bill of exceptions. Practice in the Supreme Court. Before Judge Clark. Webster Superior Court. September Term,1872. William N. Clements gave to Lee & Fulton, factors and commission merchants, liens on his growing crops for advances in provisions, made by them at different times, to enable him to carry on his planting operations for the year 1871.

<p>Judgment. Estoppel. Before Judge Clark. Schley Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Homestead. Reversion. Adults. Before Judge Andrews. Wilkes Superior Court. June Adjourned Term, 1872. This case arose upon the levy of an execution in favor of Benjamin W. Heard, against John Downer, upon a certain tract of land in the county of Wilkes, which was claimed by George Downer and others.

<p>(Montgomery, Judge, was providentially prevented from presiding in this ease.)</p> <p>X. Under the Relief Act of 1870 the plaintiffs are only required to prove that they have paid all legal taxes on the notes sued on, to the date of their affidavit that all legal taxes had been paid. (R.)</p> <p>2. The verdict of the jury should have been either that the plaintiffs had paid, or had not paid, all legal taxes due on the notes sued on, up to the time of filing their affidavit, and not a verdict for the defendants generally. (R.)</p>

Complaint for land. Declarations. Deed. Evidence. Before Judge Clark. Webster Superior Court. September Term, 1872. Held: claimed, occupied.and cultivated the land during his life, and his widow has remained on the land ever since, then you should find for the defendant. The memorandum on the back • of the deed of transfer of title to Kemp is not evidence of the transfer of the title without proof of the execution and delivery.

<p>Illegality. Tax. County matters. Bond. Judicial interference. Before Judge Clark. Sumter Superior Court. October Adjourned Term, 1872.</p>

<p>Factor’s lien. Oral lien. Examination. Rule against sheriff. Before Judge Andrews. Wilkes Superior Court. May Adjourned Term, 1872.</p> <p>Franklin, Reid & Company, factors and commission merchants, obtained a rule against James M. Dyson, deputy sheriff of the county of Wilkes, requiring him to show cause why he should not pay over to the plaintiffs the principal and interest due upon an execution in their favor, against one James C. Newsom of said county, issuing upon the foreclosure of a factor’s lien. Said sheriff set forth in his answer an execution against the same defendant in favor of P. H. Norton, which was claiming the proceeds of the cotton levied on and sold under both executions; that Norton’s execution was of older date than the plaintiffs’; that respondent was prepared to pay out the proceeds of said cotton as directed by the Court. No issue was formed, but the parties seem to have proceeded informally before the Judge.</p> <p>P. H. Norton was sworn. He testified that his lien commenced on January 7th, 1871; that it existed only by parol. Counsel for Franklin, Reid & Company proposed to prove by said witness on the cross-examination, the facts concerning the contract between him and said Newsom, for the purpose of showing that the contract or understanding did not amount to a lien. The Court refused to allow cross-examination upon this point, upon the ground that Franklin, Reid & Company could not contest the existence of the lien of said Norton, they not having filed the affidavit provided for in section 1970 of the Code. No further evidence being introduced, and the seniority of Norton’s lien, if any existed, not being disputed, the Court discharged the rule, and ordered the moñey paid over to the Norton Ji. fa.</p> <p>Franklin, Reid & Company excepted to the ruling of the Court, in refusing to allow the cross-examination to the extent proposed, and assigns the same as error.</p>

<p>(MoCay, Judge, did not preside in this case, on account of relationship to one of the parties.)</p> <p>A defendant in a mortgage Ji. fa., issued on a foreclosure of a mortgage on personal property, who desires to contest the amount due on the grounds that there is usury in the debt, and that he is entitled to have the claim reduced or decreed to be satisfied and paid, from the fact that he had leased to his creditors, (plaintiffs in fi. fa.) a plantation to be cultivated by them for one year in farmer-like style, and they were to apply the net proceeds thereof to the payment of said debt, and that by reason of their gross mismanagement a small crop was made, and he thereby damaged to an amount greater than his debt, has a complete remedy in the provisions of sections 3899 and 3900 of the Revised Code, and he cannot resort to a Court of equity, for an injunction to prevent a levy or for the appointment of a receiver to take charge of the plantation, etc., and for relief on account of said grounds of defense, unless for special reasons shown, such as the insolvency, non-residence, etc., of his creditors. No such facts are alleged in this case.</p>

Equity. Executors and administrators. Distribution. Purchaser. Pleading. Husband and wife. Before Judge Str.ozieb. Dougherty Superior Court. June Term, 1871.

Injunction. Fraud. Before Judge Strozier. Decatur county. At Chambers. February 22d, 1873.

<p>1. Where, upon a bill filed by the next friends of minor children to enjoin the sale of certain lands and personalty under a decree before rendered, in which they claimed an interest under a homestead set apart to them, and as heirs of their .deceased mother, counsel representing said next friends upon the hearing of the application for an injunction, consented to said sale, the guardian of said minors not being a party to said bill, and said lands were sold to a purchaser, who the bill alleged bought with notice of the claims of said children, and who was proceeding to take possession of the land then held by the guardian of said minors as their homestead:</p> <p>Meld, Upon a bill filed by the guardian of said minors attacking the decree under which the sale was made, praying that said purchaser be enjoined from taking possession of said property, equity will restrain such action until the rights of said mipors can be fully determined upon a final decree. (R.)</p> <p>2. As the complainant only asserts the rights of his wards to a specified portion of the lands and personalty, and to a proportion of the rent in the hands of the tenant in possession of said homestead, the injunction should be modified accordingly. (R.)</p> <p>3. Where'a cause has been argued before two Judges who were divided in opinion and the judgment ordered affirmed, on motion of counsel for plaintiff in error, the case will be reargued, duripg the same term, before a full bench. (R. see report.)</p>

<p>(Teipfe, Judge, did not preside in this ease.)</p> <p>1. Where a tenant in common takes possession of the entire property and divides it into town lots, which were sold by him, from time to time, to various persons, the statute of limitations ran in favor of said vendees as against the co-tenants of the vendor, and at the expiration of seven years, peaceable and uninterrupted possession, they would have a valid prescriptive title. (R.)</p> <p>2. Prior to the Act of 1886, the real estate belonging to the wife, on her marriage, vested in and passed to the husband in the same manner as personal property. (R.)</p> <p>3. The husband being still in life, the statute of limitations ran against him from the time his title accrued, and he being barred, his wife can stand in no better position. (R.)</p>

Attachment. Corporations. Judgment. Bill of exceptions. Pleading. Before J udge Gibson. Richmond Superior Court. October Term, 1872.