Volume 5 — Georgia Reports

<p>In Equity. Muscogee Superior Court. Motion for new trial, decided by Judge Alexander.</p> <p>Tliis was a bill filed in Muscogee Superior Court, by William S. Nell, originally, against John Snowden, one of the defendants, seeking to enjoin Snowden from proceeding on a mortgage made to him by Nell the plaintiff, and praying an adjustment of the accounts between them. The bill charged, that in January, 1843, Snowden had agreed to build for Nell a steamboat, for which he was to receive $9000 ; one third when the building of the boat was commenced, one third when it was finished, and the remainder in three and six months after its delivery; for which last, a lien was to be given on the boat. The bill further charged, that when the first payment became due, it was agreed by parol, that Snowden should build for Nell another boat; and in consideration, that Noll then paid Snowden a much larger amount than was due at the time on the first boat, Snowden agreed that he would give Nell time of payment on. the second boat, six and eighteen months after its delivery. The bill further charged, that before tho first boat was delivered, Nell had paid, in various amounts and ways, to Snowden, $11,259 87, and that he had claims against him, arising out of the transaction, to the amount-of some $1900 more; but as the vouchers were not present, and some of the matters unsettled, plaintiff'Nell, made his mortgage deed to Snowden, to secure the payment of the unascertained balance.</p> <p>The bill further charged, that Snowden had refused to deliver the second boat according to his agreement, and had made his affidavit and foreclosed under the Statute, the mortgage, claiming as due to him under the same, as the balance, the sum of $3604 34. The bill prayed' that the mortgagej*?. fa. might be enjoined, and settlement mad© between the parties. After the filing of the bill, defendants Hughs, and Sibbet, and Jones, brought their several actions in the Superior Court of Muscogee county, on several notes and drafts made by Nell to Snowden, and negotiated, as they claimed, by him to them. The bill was then amended, charging Hughs, and Sibbet, and Jones, with combination with Snowden, praying? injunctions against them, and a discovery of the facts from all the defendants.</p> <p>Snowden answered, denying any agreement to give indulgence on the payment for the second boat, and justifying his refusal to deliver it, unti he was paid for building it. Pie denied further, the claims for services by Nell, and some other items, but admitted that he had received from Nell, in his (Nell’s) notes and drafts, and m cash, $11,239 78 ; but he set up that the mortgage was given to secure the payment of various notes and drafts, taken by him from Nell, iji payment of the above amount — that a part of said notes were still unpaid' in his possession, and that a part of them had been negotiated by him to Hughs, and Sibbet, and Jones, which had been' protested for non-payment, and on which he was now liable ; and that there was really due him on the first boat, in consequence of these protests-and non-payments, the amount claimed in his affidavit for foreclosure. The answer of Hughs denied all notice of any failure in the consideration of Nell’s notes and drafts held by him,'and claimed to be abona fide 3iolder of the samo. Sibbet and Jones, in ihoir answers, denied all notice of the consideration of said drafts and notes, and claimed to be innocent purchasers of the notes and drafts before the same were due, of Nell in their possession, though they admitted that they had got them from Snowden, and that they knew at the time, that Snowden was building a boat for Neil. The notes and drafts held by Sibbet and Jones were, one for $1035, dated 16th September 1843, payable three months after date; one for $1000, dated 16th September, 1843, due ninety days after date, on account of the steam-boat Charleston, (which latter nofe was sued in the name of Snowden for the use of Sibbet and Janes;) and one for $525, dated 18th September 1843, and due ninety days after date. It was sworn on the trial, by one Robinson, that Nell had in October, 1843, told Sibbet and Jones that he would not pay any note made by him for the Viola, (the second boat.)</p> <p>The Jury decreed that Nell should pay to Snowden, $1174 70, as the balance due him, and three hundred and eighty three dollars and 75cts, interest. They decreed to Hughs the amount of his demand, but they perpetually enjoined Sibbet and Jones from proceeding in their actions.</p> <p>Whereupon, Sibbet and Jones moved the Court below-for a new trial, which the Court below granted; to which the plaintiff Nell excepted, and assign, as error—</p> <p>1st. The granting of a new trial in any equity cause.</p> <p>2d. The granting of a new trial in this case.</p>

<p>[1.] A demise in Ejectment cannot be stricken out,because tile name of the lessor is used against his consent, if the plaintiff offers to indemnify him against all liability to loss or damages, and if the use of his name he necessary to-the assertion of the plaintiff’s rights.</p> <p>[2.] A brings ejectment for land and holds B’s deed, as part of his chain of title. B is offered as a witness for the defendant, and is examined upon his voir dire, and says that henevermade tne deed under which the plaintiff claims — that he is the grantee from the State, and has never sold the land to any one but to the defendant — that he contracted to sell it to him, and took his notes for the purchase money, which he still holds, and gave him his bond for titles to be made when the purchase money was paid. Held, that B is an incompetent witness for the defendant. B was notified to appear and defend.</p> <p>[3.] A certified copy of the record of commissions from the Executive Office, is the highest and best evidence of the fact that one who appears, from his acts, to have been a Justice of the Peace in a given county, during a particular time, was not a Justice of the Peace during that time.</p> <p>[4.] A person who enters into possession of land, under a contract of purchase, with bond for titles when the purchase money is paid, is in possession under color of title, and his possession is adverse, although he has not paid the purchase money.</p>

In Equity in Marion Superior Court. Demurrer. Decided by Judge Alexander, May Term, 1848. 'This was a bill brought in the Superior Court of Marion county, by the defendant in error against the plaintiffs in error, for an account of and concerning the village Hall built in the town of Tazewell, under articles of agreement and co-partnership in writing, and seeks— 1st. A general settlement and account. 2d. The perpetual injunction of a certain cause of ejectment, wherein…

Assumpsit, &c. tried before Judge Alexander, in Talbot Superior Court, March Term, 1848.

<p>[1.] That clause of the 2d Section of the Act of 1805, which prescribes alimitation to suits brought upon judgments obtained in Courts, other than the Courts of this State, held to be still ill force.</p>

<p>[1.] Prior possession will prevail in ejectment, over a subsequent possession,, acquired by mere entry, without any-lawful right. But where the subsequent possession is acquired by a recovery in ejectment, the entry of the defendant being lawful, affords a bettor presumption of right than, the prior possession; and the record of the former recovery maybe given in evidence, if between the same parties.</p> <p>[2.] A party who brings a second action of ejectment, after being ousted under a previous recovery against him, must produce paramount title.</p> <p>[3.] Seven years adverse, uninterrupted, and continuous possession, confers a complete title to lands, tenements, and hereditaments in this State.</p> <p>[4.] The Supreme Court of this State is strictly an appellate tribunal, for the re-examination and correction, if erroneous, of the decisions, sentences, judgments and decrees of the Superior Courts, and upon questions actually presented for their determination.</p>

Indictment for an assault with intent to murder, in Early Superior Court. Tried before Judge WajmIen, April Term, 1848. The defendant was indicted at the April term of the Superior Court, held in and for the county of Early, for an assault with intent to murder John Dill.

<p>II.] At Common Law, an administratoi de bonis non, is entitled only to the goods and efibcts which remain unadministered, in specie, and to the debts due to the intestate, unpaid.</p> <p>[2.] A sale of negroes under an order of the Court of Ordinary, is an administration as to them, which will charge the administrator and his sureties, and vests the note taken for such sale in the administrator.</p> <p>[3.] If such note so taken, be made payable to the administrator as such, it is only adescription of the person; he may sue upon it in his own name, and if he sue on it as administrator, that is only a descriptio person.ee, and may be rejected as surplusage.</p> <p>[4.] A judgment recovered by an administrator, is a debt due to him in his personal character, upon which suit may be brought in his own name.</p> <p>15. ] Under the Act of 1845, an administrator de bonis non, may call his removed predecessor, or his representatives, if he be dead, to account touching the entire administration of the estate, and the removed administrator is liable to him, as at Common Law he was liable to creditors and distributees.</p> <p>16. ] Where afundisinthehaudsof theCourt,raisedupona judgment in favor of a removed administrator, upon which he sets up a claim on account of advances, the Court cannot, ón motion, direct it to be paid to the administrator debonis non, but he must file his bill, that proper issues may be formed, and a decree be had, covering the rights of all parties interested in it.</p>

Illegality, from Muscogee Superior Court, decided by Judge Alexander. The facts of this case are as follows : At the November Term, 1847, of the Superior Court of Muscogee county, which term commenced on the 2d Monday in November, and closed on the 9th day of February, 1848, the defendants in error obtained a verdict, and signed a judgment against the plaintiff in error. The verdict was rendered and the judgment signed on the 15th January, 1848.

<p>Assumpsit and plea of the Statute of Limitations, in Sumter Superior Court. Tried before Judge Warren, May Term, 1848.</p> <p>The action in this case, was brought by the plaintiff in error against the defendant in error, returnable to the November term of the Court below, in 1846, upon a note of hand for $464, made by the defendant’s intestate, bearing date the 29th day of May, 1838, and payable twelve months thereafter.</p> <p>To this action the defendant pleaded the Statute of Limitations.</p> <p>It appeared upon the trial, and by way of reply to this plea, that Thomas G. Cowart, the maker of said note, departed this life in the fall of the year eighteen hundred and forty, and that administration upon his estate, was granted to the defendant in May, eighteen hundred and forty-one. No evidence having been submitted on the part of the defendant, the case was submitted to the Court and jury upon the foregoing facts.</p> <p>On the part of the plaintiff it was insisted, that the death of the maker of the note, and the granting of letters of administration on his estate to the defendant, suspended the operation of the Statute of limitations, for, and during the term of twelve months, from and aftei the grant of letters of administration, when the plaintiff was prohibited by law from sueing the defendant; and that as the declaration had been filed in the Clerk’s office of the Superior Court, on the 2d day of October, 1846, if the said term of twelve months be not computed, the said action was commenced in time, and the said plaintiff was not barred.</p> <p>On the part of the defendant it was contended, that the operation of the Statute of limitations, was not suspended or arrested by the death of Cowart, or the grant of letters of administration on his estate to the defendant, the same having occurred after the note fell due, and after the Statute had commenced to run.</p> <p>Whereupon, the Judge below charged and instructed the jury, that the plaintiff’s right of action was barred by the Statute of limitations, and the plaintiff was not entitled, therefore, to recover in this action; that as the Statute had commenced to run against the plaintiff before the death of defendant’s intestate, and the grant of letters of administration to her, its operation was not suspended or affected thereby, although the plaintiff was prohibited from sueing by statute within twelve months from the grant of letters of administration. The jury found for the defendant,</p> <p>To which charge and instruction of the Court below, the plaintiff, by his counsel, excepted.</p>

In Equity. Motion for a new trial, in Muscogee Superior Court. Before Judge Alexander. Both of the above causes, being parts of the same litigation, were, by consent, consolidated and considered together.

<p>1.1-] A parly is not entitled to a new trial upon the ground of surprise in the . absence of a material witness, when no diligence has been used to procure the attendance of the witness; even though his absence was procured by the-improper conduct of the prevailing party.</p> <p>[2.] A new trial will be granted for disingenuous attempts on the part of the prevailing party, to stifle or suppress evidence, or to thwart the proceedings, or to obtain an unconscionable advantage. Upon this ground, a new trial awarded where the defendant, by letters and persuasions without the knowledge of’the plaintiff induced a witness to absent himself from the town in which he lived', and in whieh the Court was sitting, on the day on which the cause was set down: for trial, in order to prevent the plaintifffrom proving a material fact, known to the witness, which he knew was material, and which he had reason to believe could be proven by no one but himself.</p>

<p>Indictment for murder, in Lee Superior Court. Tried before .Judge Warren, May Term, 1848.</p> <p>The whole evidence, as embodied in the bill of exceptions, is incorporated in the opinion of the Court.</p>

<p>[1.] Possession of the property is necessary to create the factor's lien, but that may be either actual or constructive.</p> <p>[2.] In Georgia, judgments bind, all the property owned by the defendant, from their date, as well that subsequently acquired as that owned at the time of signing the judgment; and the lien.of judgments has precedence over, and is paramount to the lien of a factor upon property in his possession.</p> <p>[3.] A judgment lien does not vest the legal title of the property of the defendant in the plaintiff, but it gives him a special interest in it, which may be asserted and realized by levy and sale, to the exclusion of all adverse junior liens and incumbrances, and a perfect title to the property passes to the purchaser at such sale, whether the creditor or another, through the sheriff’s deed, which relates back to the date of the judgment.</p>

<p>Cl.] An action of Assumpsit was brought by the holder against the maker, upon the following instrument — " I agree to take of Burr, Mizell & Co., a fifty-saw cotton gin, cast steel saws, fine teeth and improved brush, nine inch in the circle; the gin to be delivered at my house by the first of September next; the said Burr, Mizell & Co. warrant the gin to perform well in every respect, or they will make it do so at their own expense; for which I promise to pay B urr, Mizell & Co, or bearer, one hundred dollars, by 1st of January, 1847'.” Dated 2d January, 1846. (Signed,) “A. Hall.” Held, that it was not a promisory note, and that failure of consideration might bepleaded to the suit.</p>

Assumpsit. Tried before Judge Warren, in Baker Superi- or Court, June Term, 1848. This was an action of assumpsit, brought by Humphries vs. Chastain, on a promissory note, indorsed by Chastain & Harvey. The declaration alleged that Harvey, since the indorsement, had become a certified bankrupt.

<p>[1.] If A make to E simultaneously, two propositions to buy goods, one in writing, and tbe other in parol, B lias the right to elect which he will accept, and A will be bound by it. If he elect the written proposition, the writing is the only evidence of what the contract was. 1</p> <p>[2.] If a letter offering to buy goods, contain alternative propositions, the vendor 1ms the right to elect which he will accept, and the buyer will be bound by it. Whether, (in an action for the price of the goods,) the vendor elected the one or such other of the propositions, may be put in i sue, by the defendant in his proof, and must be left to the Jury.</p> <p>[3.] Tn a promise by A to B. that he will pay him so much money, “ so soon as he can coliect it out of C bylaw,” the qualification has reference to time, and not to the solvency of C. In an action by B, on such a promise, it is necessary for him to prove, that a reasonable length of time has elapsed, for tho purpose of collecting money by law, from the date of the promise.</p> <p>[4.] On such a promise, B’s right of action does not accrue until after the lapse of n reasonable time, and the statute does not commence to run against him, until after the lapse of such time.</p>

<p>CASE. — Tried before Judge Alexander, Harris Superior ■Court, March Term, 1848.</p> <p>The testimony is embodied in the opinion of the Court.</p>

<p>[1.] One creditor cannot attack the lien of another, until it comes in conflict with his own rights.</p> <p>[2.] In a contest between attachments and ordinary suits, it is the judgment, and not the levy, which fixes the lieu. And if the judgment, by ordinary process, be older than the attachment judgment, it takes precedence in the distribution of money arising from the salo of the defendant’s property.</p>

Rule against the former Sheriff. Baker Superior Court, before Judge Warren, May Term, 1848. A Capias ad satisfaciendum, sued out in the Court below, at the instauce of the defendant in error, against one William Brocket!, for the sum of one hundred and seventy-five dollars, besides interest and costs, was placed in the hands of the plaintiff in error as sheriff, to be by him executed and returned, as -such sheriff.

<p>In Equity, in Baker Superior Court, before Judge Warren, May Term, 1848.</p> <p>The facts are set forth in the opinion delivered by the Court.</p>

<p>[1.] Aii Act to be in derogation of common right, must be confined in its provisions to a particular individual, or set of men, separate and apart from the rest of the community.</p> <p>[2.] The Legislature being the sovereign power in the State, while acting within the pale of its constitutional competency, it is the province of the Courts to interpret its mandates, and. llieir duty to obey them, however absurd and unreasonable they may appear.</p> <p>[3.] Asa general rule, a defendant must have notice, actual or constructive; otherwise no valid judgment can be rendered against him. To this principle there ase several exceptions: 1st. The Legislature may dispense with notice. If the expressions used in the statute will admit of a doubt, it will not then bepresumed th it such a construction was intended, the consequences of which are so unreasonable. But where the signification is plain, there is no power of this dispensation in the Courts. 2dly. Notice before judgment is not essential where the statute itself provides specific means of relief.</p> <p>[1.] If an act of the Legislature is in contravention of (he Constitution, either Stale* or federal, it is, ipso facto, void, audit is the duty of the Courts so to declare it. But they will not pronounce a statute a nullity, except in a plain and. palpable case.</p> <p>[5.] The laws of Georgia may be thus graduated witli regard to their authority: ]. The Constitution of the United States. 2. Treaties. 3. Laws of the United States, made in pursuance of the Constitution. 4. Constitution of the States. 5. The Statutes of the State. 6. Provincial acts that were in force and binding on the 14th day of May, 177G, so far as they are’not contrary to the Constitution, laws, and form of government of the State. 7. The Common Law of England, and such of the Statute Laws as were usually in force before the Revolution, with the foregoing limitation.</p> <p>[6.] General observations oil trial by jury as guarantied to the people of this country, and assigning reasons why it is essential in criminal, and not in civil cases.</p> <p>[7.] The provision in the Constitution of Georgia, that “ trialby jury, as heretofore used, shall remain inviolate,” means, that it shall not be taken away, in cases where it existed when that instrument was adopted in 1798; and not. that there must be a jury in all cases.</p> <p>[8.] Trial by jury is a privilege which may be waived. And when the defendant Iras an opportunity to demand it, and omits to do so, he cannot complain that it is denied.</p> <p>• [9.] An Act of the Legislature, authorising a judgment to be rendered without the intervention of a jury, is not, on that account, unconstitutional.</p> <p>[10.] Trial by jury may be clogged with onerous conditions, yet the act prescribing such terms will not be pronounced unconstitutional, unless it totally prostrates the right, or rentiers it wholly unavailing to the defendant, for his protection.</p> <p>[11.] The words of Magna Charta, that “no freeman shall be taken or impris-' oned, or be disseised of liis freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed, or passed upon, or condemned, but by lawful judgment of his peers, or by the law of tlie land,*’ were intended to secure the individual from the arbitrary exercise of the powers of government, (such as arbitrary impeachments, arbitrary methods of prosecuting pro-tended offences, arbitrary punishments upon arbitrary convictions,) unrestrained by the established principles of private rights and distributive justice.</p> <p>[12.] The Acts of the Legislature of Georgia, of 1841 and 1845, giving a summary remedy to all persons employed on steamboats and other water-craft, on the Chattahoochee, Alt'amuha, Ocmulgee and Flint Rivers, to recover their wages, and for wood and provision furnished, &c. are not repugnant to the Constitution of the United States, or of the State of Georgia.</p>

Trover, Muscogee Superior Court, tried before Judge Alexander, May Term, 1848. Such facts are stated in the opinion of the Court, as are necessary to a proper understanding of it.

Assumpsit, tried before Judge Alexander, in Muscogee Superior Court, May Term, 1848. This action was brought by the defendant in error,»*, assignee of the Bank of Columbus, for the use of Seaborn Jones, against the plaintiff in error, upon their promissory notes, amounting together to over $17,000 principal.

<p>[1.] Notice by a Bank that it will receive on deposite the depreciated bills of another Bank, is no evidence of the insolvency of the Bank making such offer.</p> <p>[2.] íf the holder of a Bank check neglect to present the same for payment within a reasonable time, and the Bank fail between the time of drawing and the presentation thereof, the drawer is discharged from liability, to the extent of the injury he has sustained by reason of said failure.</p> <p>£3.] The general doctrine applicable to Bank checks extends to all holders, whether payees or transferees, and that is, that in order to charge the drawer in case of dishonor, the same must be presented for payment within a reasonable time, and notice given to the drawer within a like reasonable time,, other* erwiee the delay is at the peril of the holder.</p>

<p>In Équity, Muscogee'Superior Court, May Term, 1848. Before Judge Alexander.</p> <p>The facts are embodied in the opinion of the Court.</p>

Ejectment, motion for a new trial, before Judge Alexander, Muscogee.Superior Court, May Term, 1848. The defendants in error brought a-n action of Ejectment in the Court below, against the plaintiff in error, for. the lot of land known as number thirty five, in the seventeenth district of the said county of Muscogee.

<p>[1.] A rule nisi, calling upon the adverse party to show cause why a nou-suit should not be set aside, and a new trial awarded, “ so soon as counsel can be heard,” is not returnable, and to be heard necessarily, during the term at which it is taken, but is to be considered as for a hearing when it may suit the convenience of the Court.</p> <p>[2.] If the minutes show no action on such arule at the first term, it will not be dismissed on the ground that the plaintiff who moved the rule was in default,andfailed to prosecute his suit; butn suchastateof facts, the rule is tobe considered as having been continued by the Court. But if the opposite party, more to speed the cause, and the Court is willing to hear it, and the movant, without sufficient cause shown, fails to prosecute the rule — then, quern 1</p> <p>[3.] Arulejmi is sufficiently certain and distinct when the grounds taken are so plainly set forth as to notify and inform the opposite party as to what he is called upon to answer, and as to enable the Court to render a certain judgment on them. A rule nisi will not be dismissed for uncertainty, becanse it is not made returnable on a day certain in term.</p>

<p>In equity, Muscogee Superior Court, before Judge Alexander., May Term, 1848.</p> <p>The facts are incorporated, into the opinion of the Court.</p>

<p>Assumpsit, in Muscogee Superior Court, tried before Judge Alexander, May Term, 1848.</p> <p>The facts are found in the opinion of the Court.</p>

In Equity, tried before Judge Alexander, in Muscogee Superior Court, May Term, 1848. The bill in this case, was brought by the defendant in error against the plaintiffs in error, as administrator and administratrix of James Beal, deceased, and was tried upon the bill, answer, and proof. An account, discovery and relief, was prayed of and concerning the actings and doings of Robert Beal, the intestate of the plaintiffs in error, as an acting executor of James Beal, deceased.

<p>[1.] In Georgia, upon a plea of the Statute of Limitations, and in all like cases, the plaintiff is entitled to prove new matter in avoidance of the plea, and to the administration of the law in his favor, upon the facts proven</p>

<p>[1.1 The Water-Lot Company of the City of Columbus conveyed by deed to defendants, a piece of ground, upon condition that the bargainees should be restricted to the privilege of erecting and running a saw-mill or saw-mills, on said premises. Held, that a Court of Equity will not restrain, by injunction, the owners from using the building on said lot of land, for other purposes than those mentioned in the- deed, after they have incurred considerable expense in the construction thereof, or compel them to stop the machinery already in operation — no sufficient excuse being rendered by the Company, in their failure or neglect in not applying at an earlier period.</p>

Trover, in Muscogee Superior 'Court, tried before Judge Alexander, May Term, 184*8. The case -was tried upon the general issue, and the plea of the Statute of limitations. The plaintiff on the trial,proved the identity of the slaves, the subject-of the action, and the conversion by the defendant, and also his (the plaintiff’s;) -title, under and by virtue of his letters of administration, -which -were granted on the 2d day of March, 1846.

Attachment, money rule, in Muscogee Superior Court, tried before Judge Alexander, May term, 1848. The money was brought into Court, under and by virtue of divers attachments, against one Nathan Lichton, one of which attachments was in favor of the plaintiff in error, and another in favor of the defendant in error, and both claiming the money. There were other attachments claiming said money, but no controversy or issue was made in respect of them.

<p>Assumpsit, admissibility of Interrogatories. Muscogee Superior Court, May Term, 1848. Before Judge Alexander.</p> <p>The facts are stated in the opinion of the Court.</p>

<p>[1.] Though a trust in land need not he created inwriting, yet, to take the case-out of the Statute of Frauds, it must be proved by writing, and parol testimo-. ny is inadmissible for that purpose.</p> <p>[2.] Whenever a case of fraud is made by the bill, parol evidence will be admitted for the purpose of establishing that case. But the facts upon which re lief is prayed, on the score of fraud, must be plainly, fully and distinctly alleged.</p> <p>[3.] Even in cases of fraud, parol evidence is not regarded with favor; and the Court will not act upon it if it he not strong and irrefragable, particularly where there has been long acquiescence on the part of the complainants.</p> <p>[4.] To justify the specific execution of a parol agreement, its terms and com ditions should be precisely stated. If the contract, which is sought to be performed, is vague and uncertain, or the evidence does not support it, Equity will not enforce it.</p> <p>[5.] If a testator has affected to dispose of property, which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him, must make good the testator’s attempted disposition. For the doctrine of elecfion, is, that he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it.</p> <p>[6.] A Court of Equity will not decree the cancellation of conveyances, where any thing has been received, until re-payment is made.</p>

Assumpsit, tried before Judge Floyd, in Crawford Superior Court, February Term, 1848. The action was brought in the Court below, upon five several promissory notes, made by the defendant to the plaintiff’s intestate in his life-time, three of them payable to said intestate, and the others payable to others.

Motion to distribute money, in Crawford Superior Court. Decided by Judge Floyd, February Term, 1848. The question in this cause arose upon a motion to distribute money in the Sheriff’s hands between different jifas. claiming the same. Certain fi.fas. which had been twice transferred, were ruled out by the Court, the Court holding that the second transfer amounted to a payment. This decision was excepted to, and is now alleged to be erroneous.

<p>[1.] Parol evidence is inadmissible to prove any contract different from the written agreement, unless from fraud, accident,1 or mistake, the instrument fails to speak the real intention ol the parties.</p>

<p>Assumpsit, in Pike Superior Court, tried before Judge Floyd, March Term, 1848.</p> <p>This action was brought in the Court below, by the defendant in error, against the plaintiff in error, upon nine promissory notes, eight of which were for thirty dollars each, and one for six dollars and twenty-three cents, said notes, dated 21st March, 1840, and due the 9th September thereafter. Instead of making .proferí of the notes, the first count specially alleged as follows: “ And your petitioner sheweth, that on the sixth day of March, in “the year eighteen hundred and forty-one, he placed said notes “ in the hands of Jacob Crow, constable of the four hundred and “ ninety-eighth company district of Georgia Militia, in Henry “county, for collection; who brought suits thereon in the Justice’s “ Court of said district, returnable to the April term of said Jus- “ tice’s Court, of said district, in the year eighteen hundred and “forty-one, before Plenry Banks, then and there a Justice of the “ Peace, in and for said district; that the said Thomas D. Jolin- “ son, at the Court to which the said suits were returnable, craft- “ ily, subtly, and intending to deceive and defraud your petitioner, “ then and there induced and prevailed upon the said Henry “ Banks, Justice of the Peace, as aforesaid, to receive of him, the “ said defendant, the sum of, two hundred and forty-six dollars “ and twenty-three cts., with the interest then due upon said prom- “ issory notes, in depreciated, uncurrent, and valueless Bank notes, “ to-wit, of the Monroe Rail Road and Banking Company, which “ the said defendant then and there well knew to be uncurrent “and valueless, and which the said Henry Banks, Justice of the “ Peace, as aforesaid, did then and there receive, and did then “ and there deliver up to the said defendant, his promissory notes' “ aforesaid; which Bank notes your petitioner had previously re- “ fused, and did then and there refuse and still doth refuse to ré- “ ceive in discharge of said promissory notes.” The second ■count declared upon the indebtedness of the defendant, by virtue of nine notes of like character, with those mentioned in the first count, in the sum of $246 23, excusing profert under the circumstances above detailed.</p> <p>The defence consisted of the pleas of non assumpsit, and of the Statute of limitations, first, because “ no right of action hath “ accrued to the plaintiff, to sue for and recover damage by reason “ of the said defendant having induced and prevailed on said “ Henry Banks, Justice of the Peace, as aforesaid, to receive “ said bills as is pleaded in plaintiff’s declaration, within four “ years next preceding the commencement of this suit.” And secondly, “that he, defendant, did not undertake or promise, in “manner or form as the said plaintiff hath above thereof set “ forth and alleged within four years previous to the commence- “ ment of this suit.”</p> <p>When this cause came on to be tried in the Court below, the counsel for the defendant, Johnson, demurred to the'declaration—</p> <p>1st. To the first count, because the gist of the action in this case, was the alleged fraud of the defendant, in inducing the Justice of the Peace, who was a collecting officer and agent for the plaintiff, in receiving the money, to accept the bills of the Monroe Rail Road and Banking Company, in payment of the notes, and such fraud was not plainly, fully, ‘and distinctly set forth in the declaration; nor did the declaration set forth that any false, fraudulent, or deceitful means were employed by the defendant, to induce the acceptance of the bills in payment of the notes, nor did the declaration shew what those means were.</p> <p>2d. Because from the plaintiff’s own statement in the declaration, the debt had been paid to the Justice of the Peace, authorised by law to receive the same.</p> <p>3d. • Because, it did not appear, from the declaration, that either the Justice of the Peace or the plaintiff had ever relied on any representations of the defendant, or that either of them had ever been defrauded or deceived thereby.</p> <p>4th. Because, if the plaintiff dissented from the act of the Justice of the Peace, in receiving the money in satisfaction of the debt, he should have done so within a reasonable time, and that Ms dissent, together with a tender of the bills back, should be averred in the declaration.</p> <p>And to the second count, because it contained, per se, no sufficient cause of action, and no description of the notes. An on argument being had, the Court below overruled all the grounds of the demurrer assumed to both counts of the declaration; and decided that under the circumstances set forth in the declaration, the Justice of the Peace was not a collecting officer according to law, nor did the law make him the agent of the plaintiff in receiving the money, nor in delivering up the notes. The counsel for the defendant l excepted.</p> <p>The trial proceeded, and the plaintiff proved by Kingsberry, Ms agent, the placing of the notes in the hands of the constable for collection, without instructions as to what sort of funds he was to receive in payment. That when informed of the payment in Monroe Rail Road money, he declined receiving it; that the notes had never been paid in any other funds within his knowledge, and that on one occasion previous to the notes being placed in suit, he had a conversation with the defendant, Johnson, who proposed to pay him in that sort of money, and that witness declined receiving funds of that character. The witness then proved the contents of the notes, as alleged in the first count. It was then proven by A. A. Gaulding, that in the spring of 1841 he believed the bills of the Monroe R. R. and Banking Company, were about some ten per cent, below par in Augusta, as were most of the suspended Banks of Middle and Western Georgia; that a very large portion of the currency of Pike and Henry counties consisted of the bills of that Bank, and were"’ by, many received as current at par; and that on a final distribution of the assets of the Bank (M. R. R.) the bill holders received a dividend of between sixty-five and eighty cents in the dollar. Andrew R. Moon testified that in the spring of 1841, the bills of said Bank were, below par.</p> <p>The testimony of Henry Banks, the said Justice of the Peace, taken by commission, was then offered in evidence by the plaintiff, which was objected to by defendant’s counsel, on the ground that said Banks was interested in the event of the suit, and because the record of a recovery in this case could be used as evidence in another action which might be brought agaiiist him by the plaintiff. The Court below overruled the objection, and the counsel for the defendant excepted. The depositions of Banks were then read in evidence to the jury, which proved that said notes were placed in his hands by the constable for suit; that summonses were issued,returnable to the Justice’s Court in 1841, and were paid off by the defendant, Johnson, at the term of the Justice’s Court in April, 1841, in bills of the Monroe Rail Road and Banking Company; that the notes were given up to Johnson, who burned them in the presence of witnesses; that afterwards, Col. Clark, plaintiff’s attorney, sewed witness with a notice that gold and silver would be required, or bills on the Banks of the city of Augusta, &c.; who was informed by witness, on receiving the notice that he had already collected said notes in Monroe Rail Road money, which he refused to accept. This witness further téstified, that when he received said bills, they were current and at par at McDonough, Henry county; that he received bills of that Bank for all debts due himself, individually, and as» a Justice of the Peace,’ and all others, as far as he knew, received such bills in payment of debts. The defendant, when he paid the money to witness, did not say anything to' shew that he was doubtful of the money. Witness received the bills in good faith, and had no doubt at the time, but that it would be satisfactory to the plaintiff. The plaintiff here closed, and the counsel for the defendant offered no testimony, but moved the Court below for a non-suit, because the plaintiff’s remedy, if ever he had one, was barred by the Statute of Limitations. The Court below .overruled the motion, deciding that the Statute as plead, four years be ing the time mentioned in the pleas, did not apply to a case like this, six years being the time limited in the Statute applicable to this case. To which the defendant’s counsel excepted upon the following grounds :</p> <p>1st. Because the plaintiff’s right of action on the notes is barred by the delivery and cancellation of the notes, as proved by the evidence, and this being an action on the case founded on the fraud committed by the defendant, in prevailing on the Justice of the Peace to receive the bills in payment, the plaintiff’s right of action accrued immediately on the perpetration of the fraud, and more than four years having elapsed between that time and the commencement of the suit.</p> <p>2d. Because the Court erred in deciding that this action is founded on the notes; the notes themselves not being set forth or sufficiently described in either count of the declaration, they could not be considered as the foundation of the suit.</p> <p>The Court below charged the jury, fully sustaining and affirming his previous ruling and decisions made in the progress of the cause, and told the jury plainly, that in the opinion of the Court, the defendant was in Court without any sufficient plea or evidence, and that they ought to find for the plaintiff the amount of principal and interest due on the notes, and this they could do either with or without retiring from the box as they might think proper. The Court below also charged the jury, that there was no evidence to show that the Justice of the Peace was the agent of the plaintiff to collect the notes, and that by law he was not a collecting officer before judgment. To which charge of the Court the defendant excepted—</p> <p>1st. Because the Court erred in charging the jury that the Justice of the Peace was not a collecting officer, and that consequent ly the paymetn to him was no payment.</p> <p>2d. Because the Court erred in charging the jury that there was no evidence to show, that the Justice of the Peace was the agent of the plaintiff, authorized to collect the notes.</p> <p>3d. Because the Court erred in charging the jury, that the Statute of limitations was not properly pleaded in this case, and that six years was the time limited by law, as a bar to this action^ and not four years, as insisted on in the pleas.</p> <p>4th. Because the Court erred in instructing the jury, that the defendant was in Court without any sufficient plea aud any evidence, and that the jury ought to find for the plaintiff the amount of the notes with interest, and this they might do without leaving the box, or after leaving the box, as they might think proper.</p> <p>Upon the foregoing exceptions, the errors complained of are assigned.</p>

Application to amend an Answer to a Bill in Equity, in Pike Superior Court, deckled by Judge Floyd, February Term, 1848. The facts necessary for the points adjudicated, are found in the opinion of the Court.

The defendant in error moved in the Court below, to dismiss, the rule nisi granted at a previous term, for the reason, that no brief of the testimony had been filed under the sanction of the Court, nor agreed upon by the parties. A brief of testimony was filed, and on the 21st of August, 1S4-7, defendant in error “ acknowledged notice of the brief of the testimony.” The Court dismissed the rule nisi, and this decision is alleged to be erroneous.

In Equity, Pike Superior Court — application for injunction before Judge Floyd, at Chambers, 1848. This was a Bill in Equity, for relief and injunction, presented to his Honor, Judge Floyd, at Chambers, for his sanction, and which he refused, on the ground that the case made by the bill did not entitle the complainant to the injunction prayed, to which the complainant excepted.

<p>[1.] In Georgia, the person injured is not bound to prosecute the offender to conviction or acquittal, beiore he is entitled to bring an action for the civil injury, except in cases of treason, and of such crimes as are felonies by the Common Law.</p> <p>[2.] Such crimes as, by the Common Law, are followed by judgment of forfeiture of lands or goods, or both, are felonies in England.</p> <p>[3.] Mayhem is not felony at Common Law, except by castration.</p> <p>[4. J When a contract which is illegal, or opposed to public policy, has been executed, in whole or in part, and the parties are in pari delicto, neither a Court of Law nor of Equity will interpose to give relief to either parly, but will leave the parties where they find them.</p>

<p>[1.] Depositions taken by a student at law, of an attorney in the cause, and in the ofiiee and presence of the attorney, are inadmissible.</p> <p>[3.] A party who acquires title to a bill or note, by indorsement, delivery, or otherwise, before due, but with express notice of any defect' or incumbrance, is so far identified with the previous owner, that his declarations or admissions while owner, may be received in evidence against such party,</p> <p>£3.] A, the debtor of B, upon a negotiable note not due, is summoned by 0, ■ the creditor of B, to answer upon process of garnishment. B subsequently transfers the note to D, with express notice of the pendency of the garnish- . ment: Held, that judgment against A, in favor of the attaching creditor, may be pleaded in barcf'jhe suit of D, the assignee of the paper.</p>

Bill and demurrer, tried before Judge Floyd, in Bibb Superior ■Court, July Term, 1848. This was a hill in Equity, at the instance of Bigelow and others, judgment creditors of Blake, for the purpose of subjecting certain trust property, filed in the Court below against said Blake, and Nathan H. Beal, and Samuel R. Blake, as trustees of Blake and wife, under articles of marriage settlement, for which see 3 Kelly’s R. 345.

<p>[1-] *It is the right of the Judge to express his opinion on the facts to the jury, but not to direct their finding.</p> <p>p.] In criminal cases, it is the right and duty of the Judge to instruct and officially direct the jury, as to the law of the case, whilst they have, also, the right to judge of the law. as well as the facts.</p> <p>[3.] In an indictment for murder, the Court instructed the jury that they “must find the defendant guilty ofmurder, of voluntary manslaughter, or notguilty.” Held, that the charge was an improper interference with the right of the jury to find on the facts; because it precluded them from all inquiry as to any other grade of offence, but murder and voluntary manslaughter.</p>

<p>Ll.] When a person obtains a license to retail spirituous liquors, within tho limits of a comity, for twelve mouths, from the Clerk of the Inferior Court, uccoi cling to the provisions of tho Act of 1809,j and pays a valuable consideration therefor: the corporate authorities of a city council, by an ordinance enacted subsequent to the date of such license, cannot vvillnn the limits of the same comity, impose and collect any additional tax, or impair the rights of the party, acquired under the law, as it stood at the lime such license was graulcd.</p>

Rule nisi, against the sheriff, in Floyd Superior Court, decided by Judge Wright, May Term, 1848. The facts are fully set out in the opinion of the Court.

<p>[1.] In actions “ on the case for words,” where the damages assessed are less than forty shillings, the plaintiff can have no more costs than damages.</p>

<p>[X.] The usual mode in which assent to a will is manifested, is by subscribing it, or acknowledging the signature in the presence of the witnesses, and ordinarily, the execution would constitute sufficient evidence of the testator’s knowledge of its contents.</p> <p>[2.] The presumption is strong against a parly preparing a will, who takes abenefit under it, and although it will not be declared void on that account, strong evidence of intention in such case, will be required.</p> <p>[3.] In an issue of devisamt vd non, the Court will not remand a cause for a rehearing, notwithstanding the irregularities committed on the trial — being satisfied from the testimony, that justice has been done, especially if the provisions of the will furnish intrinsic evidence of its reasonableness, and the Court and jury, on the trial below, concurred in opinion, both as to the capacity of the testator, and the fairness of the will.</p> <p>[4.J For the Court to announce at the close of the testimony, that its mind was fixed and unalterably made up, upon the merits of the case, and then to arrest the argument before its conclusion, is an unwarrantable interference with the rights and privileges of both counsel and jury.</p> <p>[5.] The Court has the power to express to the jury its opinion upon the facts, but to its exercise there are assignable limits, and in a doubtful case, this infringement upoh the peculiar province of the jury, would constitute sufficient ground for a new trial.*</p>

<p>[1.] We, or either of us, promise, by the 25th December, 1841, to pay W. W. Austell, lawful attorney lor Frances Bomer, widow of E. Bomer, deceased, one thousand dollars, in full of her and her infant child's interest in the estate of A. Bomer, deceased, for value received. PARKER M. RICE, et al. 7tb July, 1840.</p> <p>The above note held to be payable to W. W. Austell, and that the words, “ iawfol attorney for Frances .Bomer, widow of B. Bomer, deceased,” are descriptive of the person, and that he in life, and his administrator after his death, may maintain an action on it. An infant, by its jirochein ami, may sue upon a note made payable to itself.</p> <p>[2.] Slight consideration is sufficient to sustain a contract, and Courts of Law will'notlook closely into its adequacy.</p> <p>13.] Forbearance to prosecute a legal claim, and the compromise of a doubtful right, are both sufficient considerations to support a contract.</p> <p>[4.] Fraud in the promisee, without injury to the promisor, is not sufficient to invalidate a contract.</p> <p>[5.] The moitve with which a party enters into a contract, is no part of the consideration. The consideration must be of some value in the eye of the law, and must move from the plaintiff to the defendant. Hence a disappointment of the motive, by the fraudulent misrepresentations of the plaintiff, is not a fraud upon the contract, and is not available as a defence.</p>

<p>[1.] Where there is a cause of action set forth in the plaintiff’s declaration, though defectively set forth, it is amendable at Common Law, and more especially so, under our Statute of 1818, which contemplates a very liberal practice, in allowing amendments, both to declarations and answers.</p>

<p>[1.] The Statute of Limitations is a wise and beneficial law, and instead of being viewed in an unfavorable light, as an unjust and discreditable defence, it should receive from the Courts of Justice such support as would make it what it was intended to be — a Statute of repose.</p> <p>[2.] If there be no express promise, but a promise is to be raised by implication of law, from the acknowledgment of the party, such acknowledgment ought to contain an unqualified admission of a present subsisting debt, which the party is liable to pay, and not merely that the debt was once due.</p> <p>[3.] An acknowledgment in the defendant’s plea, that the signature to the note-sued on, is his, accompanied with a protestation that the debt has long since been discharged, is not sufficient to take the case out of the Statute of Limita, tious.</p>

Indictment for bastardy, in Wilkes Superior Court, tried before Judge Sayre, March Term, 1848.

<p>[l.j| .There isnp Statute Law of Georgia which authorizes citizens of a foreign State to be made parties to proceedings in our Courts, without their consent, and to conclude them by a judgment in personam.</p> <p>[2.] The Act of 5 George II., held to apply to citizens of the State who abscond or depart from the State to avoid the service of process, or to citizens of a foreign State, who, having been in the State, depart therefrom, for the purpose of avoiding service of process.</p> <p>The Act of 5 George II. held to be in its spirit of force in Georgia.</p> <p>[3.] .The property of a citizen ofa foreign State'is subject to the jurisdiction of our Courts, if within the limits of the State, and may be applied, both at Law and in Equity, to the payment of his debts.</p> <p>[4.] The jurisdiction of the Superior Courts of this State is co-extensive with its sovereignty, and that is limited only by its territory, and it therefore attaches upon all the property and the persons within the limits of the State; yet it is to be so exercised as to conclude by judgments none but those that are parties.</p> <p>[5'.] The Courts of this State have no extra-territorial jurisdiction, and cannot make the citizens of foreign States amenable to their process, or conclude them by ¿judgment i» personal», without their consent. A judgment inpersonam, rendered against an inhabitant of a foreign State, in a causé wherein he did not appear, although notice was served upon him by publication, under the 2d rule in Equity, held to be a nullity as to him.</p> <p>[6.] In a suit in Chancery, against a citizen of this State, who has been duly served, and also against an inhabitant of a foreign State, a decree rendered therein, held to be conclusive as between the complainant and the citizen of this State, and that it is a complete protection to such citizen, and that the decree in such suit cannot be enjoined in behalf of such foreign citizen, alone on account of the fact that he is a foreign citizen and not bound by it. He is entitled to injunction upon a case made, which, according to the general principles regulating that process, would authorize it.</p> <p>[7.] A construction put upon the 2d rule in Equity, authorizing service to be perfected by publication in certain eases.</p>

<p>In 1847, the Legislature passed an act “ to establish and make permanent the new county site” of Scriven county, “ to provide for building a Court-I-Jonse, &c.” and “ to appoint commissioners to carry the same into effect, and tO‘ provide for the payment of the necessary expenses.” By the 5th section, the Justices of the Inferior Court were required to levy an extra tax, to pay the expenses.</p> <p>[1.] Held, That the commissioners appointed had such an interest as would authorize them to apply for a mandamus, to be directed to the Inferior Court,, on their refusal to levy the tax.</p> <p>[2.] The Superior Court will not control the discretion of the Inferior Court, where it cannot be governed by some fixed principles or rule, unless in case-of an arbitrary abuse of it.</p> <p>[3.] 'But when the law imposes a specific duty, a mandamus will be awarded against the subordinate Court, to compel its performance.</p>

<p>[1.] Where a civil suit was instituted, and judgment obtained-in a county in which the defendant did not reside, by an agreement bet ween the plaintiff and defendant, the defendant consenting to acknowledge the jurisdiction:</p> <p>’ Held, that such a judgment was void as against the rights of subsequent judgment creditors, who had obtained their judgments in the manner and place prescribed by law; the Constitution declaring that nil civil suits shall be tried in the county wherein the defendant resides.</p>

Attachment, in Richmond Superior Court — before Judge Holt. Casbel McDonald, as a creditor of the South Carolina Rail Road Company, sued out air attachment, returnable to the Court of Common Pleas of Augusta, on the ground that the said Company “ resided without the State of Georgia.”' At the return term of the attachment, the Court of Common Pleas, on motion dismissed the attachment, on the ground, that “.the defendant, being a body corporate, under the laws of South…

<p>ft.] A notice ofan application for the benefit of the “ Honest Debtor’s” Act, directed to a firm by their firm name — held to be sufficient.</p>

<p>[1.] Where, by the charter of the city oí Augusta, the City Council were vested with full power to make and establish such by-laws, rules, and ordinances, respecting streets, wagons, &c. that should appear to them requisite and necessary for the security, welfare, and convenience of the said city, not repugnant to the constitution or laws of the land: Held, that an ordinance, regulating the weight which should be carried on loaded wagons, over the streets of the city, was a valid and legal ordinance, and authorised by the charter of the city.</p>

Assumpsit- on implied warranty, in Court of Common Pleas, Augusta. Certiorari to Superior Court, decided by Judge Holt, September Term, 1848. A. Sibley sold and conveyed to C. A. Beard, a certain house standing on the east side of the alley, leading from Broad street to the Eagle and Phoenix Hotel stable, and gave him a receipt for the money. Beard was dispossessed, and brought suit upon the implied warranty of title.

Certiorari, from Richmond Superior Court, decided by Judge Holt, September Term, 1848.' On the 7th May, 1847, John T. Hungerford, of the city of Augusta, being in insolvent circumstances, executed the following instrument : “ State op G-eorgia, Richmond County.

<p>[1.] A corporation is an artificial being, invisible, intangible, and existing only-in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed bes t calculated to effect the objept for which it was created.</p> <p>[2.] Where, by the terms of the charter, a municipal corporation was vested with “full power and,authority to make such assessments on the inhabitants of the city, or those who hold taxable property therein, for the safety, benefit, convenience and advantage of the said city, as shall appear to them expedient : Held, that an assessment of a tax of one half of one per cent, on the value of the real estate within the corporate limits of the city, by the City Counoil, for the purpose of constructing a canal for the better securing an abundant supply of water for the city, was not a violation of the charter, nor contrary to the laws of the land.</p>

Motion in arrest of judgment, in Scriven Superior Court, decided by Judge Holt, October Term, 1848. Suit was commenced, and a verdict rendered in favor of the Justices &e. for the use of James B. Dill, against Azariah Ennis, as surety, in the following bond : “Georgia, Scriven County.

In Equity, in Washington Superior Court, decided by Judge Holt. At the March term, 1848, of the Superior Court of Washington county, Thomas J. Warthen filed his bill iu Equity, against JephthaBrantley and Moses Daniel, charging, that about 1st Jan. 1840, complainant and defendants enteredin to a co-partnership, under the style of “J. Brantley & Co.” for the purpose of merchandizing, in the town of Sandersville.

In Equity, in Taliaferro' Superior Court; decided by Judge Sayre. The plaintiff in error filed liis bill in Taliaferro Superior Court, charging, that in January, 1841, he became the purchaser at Sheriff’s sale of a certain house and lot in Raytown, in said county, sold as the property of one John M. Anthony, and continued in possession of the same until the filing of this bill.

fa. by a surety, in Oglethorpe Superior Court, decided by Judge Sayre, October Term, 1848. In this case, theji. fa. appeared to be dormant upon its face, seven years having elapsed since the last entry by the sheriff. An entry by the plaintiff in fi. fa. showed that the same had been paid off by the surety. The surety applied for a control of the Ji. fa. under the Acts of 1826 and 1831, which application the Court refused, and this decision wap excepted to as erroneous.

<p>[1.] The writ of error and citation need not and should not be filed, until the filing of the original notice, with entry of service thereon.</p> <p>[2. ] The writ of error will be dismissed if no original notice of the sinning and certifying of the bill of exceptions is filed, as required by the Statute, nor will an acknowledgment by the defendant’s counsel, of the service of a copy notice of the filing of the bill of exceptions, be considered a compliance with the Statute.</p> <p>[3.] The writ of error and citation, if without date, maybe amended, if there is anything in the record to amend by.</p>