Volume 50 — Georgia Reports

<p>Administrators and executors. Partnership. Settlement. Returns. Investments. Attorney’s fees. Before Judge Jambs Johnson. Muscogee Superior Court. October Term, 1872.</p> <p>This bill is filed by Moultrie Moses, Montefiore Moses, Flora Moses and her husband Otto L. Moses, Sarah Davega and her husband, Isaac Davega, and Felix T. Moses and Jacob Moses, minors, wbo sue by their next friend, Moultrie Moses, against Isaac I. Moses, executor of Jacob I. Moses, deceased.</p> <p>It is charged that Jacob I. Moses died, leaving a large estate of real and personal property, and a will and codicil, by which be disposed of the same. Under this will, legacies were bequeathecl to the said Sarah, who was the widow of said Jacob I., and divers other persons. It also gave to Moultrie and Montefiore, and their brother, Rynear, a legacy of $20,000 00, and provided the same should be placed in the hands of three respectable and responsible gentlemen of New York, in trust, to be invested in the best six per cent, securities until Montefiore arrived at twenty-one, when it should be divided into three equal parts, one to be given to Montefiore, and the balance to be kept until Moultrie arrived at twenty-one, when he should have half, and the balance to be kept until Rynear became twenty-one.</p> <p>The balance of the estate might be continued in business by his executors as long as it might be considered perfectly safe to do so, for terms of three years, and should pay an interest of seven per cent, clear profit, payable monthly. Of this interest he gave his wife, for her own and the support of the said Flora and such other children as might be born, $100 00 per month, and for the support of his three sons, $75 00 per month. The codicil raised the amount to his wife $50 00 per month, and to his sons $25 00 per month, making, in all, a monthly sum of $250 00.</p> <p>The residue of the interest and profits to be invested as fast as received for accumulation, aud so with any part which may be withdrawn from business until January 1, 1870, when the whole of that part was to be divided between all his children equally. To this will his wife, Sarah, was appointed executrix, and his brother Isaac and brother-in-law, A. J. Brady, and friend, Hervey Hall, and his three sons, as they became twenty-one, executors.</p> <p>The testator died in 1854, and his estate consisted of real estate, $200,000 00; one-half interest in mercantile house of Hall & Moses, at Columbus, and Hall, Moses & Roberts, at Montgomery, the assets of which were of the value of $>300,-000 00 over and above liabilities; also, real estate in Georgia, $100,000 00, and personal property and cash, $50,000 00.</p> <p>The will was proven, and said Isaac I. qualified and took the burden of administering the estate. It is charged that he received all the estate, and after paying all the debts, there was $250,000 00 in his hands to be paid the legatees; that the said Isaac continued said mercantile business for ......years and received large profits; that he sold divers parcels of real estate; that the interest of said testator, when withdrawn from business, was worth $100,000 00; that the executor made no return, but managed the estate as his own, and has made large profits by trade and speculation; that the executor has not paid over the $20,000 00 to any persons to hold, as directed by the will, but has kept it in his own hands and used it as his own; that, in settling up the Montgomery interest with Hervey Hall, the surviving partner of Hall & Moses, the said executor himself became the purchaser of said interest, and gave his notes to Hall for $30,000 00 in payment, and afterwards received his said notes from Hall in settlement of the portion of his testator in the concern at-Montgomery; that said executor thereby became indebted to the estate in the amount of said notes; that, afterwards, he sold, or pretended to sell, the interest so obtained by bim to Wyman, Moses & Company, for a large profit, to-wit: $20,000 00, and received in payment the notes of said purchasers.</p> <p>That the executor pretended that an amount of said notes received from Wyman, Moses & Company equal to the amount of his own notes received by him from Hervey Hall, were the property of the estate, but that the balance of the notes of Wyman, Moses & Company were his own property, and having thus disposed of the interest of his testator in the Montgomery concern, he pretended, during the late war, that the estate was in great danger of losing the claim on Wyman, Moses & Company, and in order to save it, it was necessary to receive Confederate money in payment, although the claim existed before the war. But the executor did not receive such money in payment from said Wyman, Moses & Company of the notes belonging to him, and held them after the war. So complainants say the interest of the testator in the Montgomery concern was lost to the estate by the mismanagement and illegal actings and doings of defendant, and that he ought to account for the value of the same.</p> <p>The claimants pray for a discovery and account. Montefiore and Moultrie claim each one-third of the $20,000 00, and each claim one-sixth of the residue of the estate.</p> <p>The defendant answered, giving an account of each item oi the assets which came to his hand, substantially, as follows:</p> <p>The estate consisted of a house and lot, with furniture, in New York, and also several unimproved lots in New York. The balance of the estate consisted of the one-half interest in the firm of Hall & Moses of Columbus. The house and lot was given by the will to the wife and children during life, and the furniture to wife and children. The unimproved lots had not been disposed of but were turned over to the heirs and they have sold and divided them amongst themselves, leaving a small balance of $511 66 of personal property in New York, in the hands of the executor, which he has administered in New York.</p> <p>The assets of Hall & Moses consisted of the stock in trade, and notes and accounts in Columbus of the value of $106,-264 15, which includes the assets of Jacob I. Moses & Company ; one-half interest in the firm of Hall, Moses & Roberts, in Montgomery, of the value of $34,932 05; certain real estate in Girard and Columbus: At the death of Jacob I. Moses, Mr. Hall, as surviving partner of the firm of Hall & Moses, took charge of the assets of Hall & Moses, including the real estate and interest in Montgomery, and retained and managed the same until the division which was made in January, 1860.</p> <p>The share of Jacob I. Moses was not continued in business, not only because the executor did not think proper to do so, but Mr. Hall positively refused to allow it to be done, and the firm was dissolved by the death of said Jacob I. On the 1st of January, 1855, a balance sheet was struck which shows the assets, of every kind, belonging to Hall & Moses, and the nominal value of these assets, giving the cost of property purchased by the firm, and the amount due on the notes and accounts due the firm, and the amount of capital invested in the firm of Hall, Moses & Roberts. A copy of this balance sheet is set out, which is correct. The nominal value of the assets is $208,515 94.</p> <p>After deducting the capital in Hall, Moses & Roberts, and the real and personal property, which is otherwise accounted for, the individual accounts of the partners, the expense account, charges account and some bank bills, which were worthless, there remained of available assets for division, supposing every dollar due the firm was collected without expense, $136,823 21, one-half of which belonged to Jacob I. Moses.</p> <p>The stock of goods was sold by the survivor to a new firm, consisting of the said Hall, William A. Beach, Jacob P. Hendricks and the defendant. The amount it sold for was $66,-762 90, and this was its value. It was understood between Mr. Hall, as survivor, and defendant, that it should be the special business of defendant to settle up the affairs of Hall & Moses, and bring them to such a condition that' a division could be made of the assets.</p> <p>The debts due by Hall & Moses amounted to $93,491 82. The amount due the firm upon open accounts, $87,501 57, and by note, nearly $70>000 00. These notes and accounts were the accumulations of many years’ business, and were due, perhaps, by three thousand different persons, in various amounts, scattered over portions of Georgia and Alabama.</p> <p>It required great labor and vigilance to pay off the debts and collect the notes and accounts, and it was not until 1860 that defendant could get the assets in a condition to be divided. On the 1st of October, 1860, a settlement was had with H. Hall, as survivor, and defendant then took charge of the half interest belonging to Jacob I. Moses, except the real estate, whieh -was held in common.</p> <p>Previous to this division, defendant had none of the assets of Hall & Moses in his hands as executor, and all payments of legacies and debts made by defendant, as executor, in New York, and by A. J. Brady, who first qualified in Georgia, were made through H. Hall, survivor, and charged against the interest of Jacob I. Moses.</p> <p>' The amounts so paid by Brady and defendant, as executors, were included in the settlement with Mr. Hall.</p> <p>This defendant, as executor, in New York, has made returns to the Surrogate, and has fully accounted for all that came into his hands as such.</p> <p>Defendant gives a statement of the amount of the assets received from H. Hall, survivor, which does not include the real estate, but does include the rents up to the settlement, as follows:</p> <p>The account of Jacob I. Moses, on boobs of Hall & Moses..$ 6,993 12</p> <p>Amount paid A. J. Brady, executor................................. 24,271 71</p> <p>Amount paid Isaac I. Moses, executor in New York........... 11,603 72</p> <p>Sundry notes, of which the names of parties and amounts are given.............................. 49,806 40</p> <p>Note of Isaac I. Moses................................................... 30,000 00</p> <p>Deposit in Bank of Columbus, to purchase stock and stock in bank............................................................... 5,086 25</p> <p>Gas light stock.............................................................. 1,200 00</p> <p>Cash, September 1, 1860 ................................................ 856 95</p> <p>Making the whole amount.........................................$128,918 15</p> <p>This amount, however, is $888 90 more than the share of Jacob I. Moses, upon a calculation of the interest due on the notes taken in the settlement, so that the actual amount received on the share of said Jacob I., exclusive of the real estate, is $128,029 25.</p> <p>The real estate is set out and described, except a few small parcels sold by H. Hall, survivor, and included in the settlement. The value of the real estate, as set out in the balance sheet, except some lots in Girard, not valued, is $12,912 28. Certain other real and personal estate and stock, contained in said balance sheet of Hall & Moses, amounting to $6,712 87, a list of which is not set out, was sold by H. Hall, survivor, (except two negroes, one of whom died and the other was set free by the will,) and is included in the settlement.</p> <p>The answer then goes on to explain and follow up each item of property received and to account for the same.</p> <p>The whole amount of notes collected in Confederate money (except from the Montgomery concern, which is specially accounted for,) is $6,402 10. As to the note of Isaac I. Moses for $30,000 00, the defendant says: Hall & Moses formed a partnership with J. W. Roberts, in Montgomery, under the name of Hall, Moses & Roberts. Hall & Moses furnished the capital, which was $30,000 00, and Roberts was to attend to the business, and the profits to be equally divided between Hall and Moses and Roberts. This partnership had not been profitable, nothing having been received by Hall & Moses. On the 1st of January, 1855, a balance sheet was made, showing the nominal amount of the assets $116,245 95, and the liabilities $50,916 19, leaving the capital $65,328 76. Hall & Moses had drawn nothing, whilst Roberts had drawn all his expenses, and had thus nearly received all his share of the profits.</p> <p>After the death of Jacob I. Moses, and after this balance sheet was made out, Mr. Hall, as survivor, made the following agreement with Roberts: It was agreed that the share of profits to which Hall & Moses were entitled was $30,000 00, which, added to the capital furnished by them, would make their interest in the concern $60,000 00, and proper entries were made on the books of Hall, Moses & Roberts.</p> <p>It was the desire of Mr. Hall and defendant to realize as much as possible from this interest, and for that purpose, he bought one-half interest of H. Hall, survivor, in the firm of Hall, Moses & Roberts, at the price of $30,000 00.</p> <p>This sum was fixed because it was the amount of the interest of Jacob I. Moses, and it was the intention of both Mr. Hall and defendant that the half thus purchased was the half belonging to the said Jacob I. The true value of this interest was not $30,000 00, and was not more than $17,000, and it would not have brought more than that sum in the market if sold. This defendant hoped, by good management, that he could realize $30,000 after extricating the firm from its then embarrassed condition, and he desired that the estate of Jacob I. should reap the benefits of his efforts. Accordingly he took this interest from Mr. Hall at said price with the understanding that this amount was to remain at interest until it became convenient to pay it. This defendant was not at the time able to pay it, nor was he even worth the amount. From the date of this transaction the new firm of Hall, Moses & Roberts paid to Hall & Moses the interest upon this sum, which Mr. Hall accounted for in the settlement.</p> <p>In April, 1859, after having succeeded in placing the firm upon a good basis, Mr. Hall and defendant determined to sell out the entire interest in this firm to Wyman, Moses & Company. This last firm consisted of a brother of defendant, one Wyman and Mr. Roberts, defendant having no interest in it directly or indirectly.</p> <p>The terms of sale were, that Wyman, Moses & Company gave their notes to defendant for $40,000 00 in notes of $1,656 25 each, payable in New York every ninety days from July, 1859, which includes interest from July, 1859, to the time the notes became due. These notes were secured by mortgage upon the stock and also upon real estate worth more than the amount of the notes. In the settlement with Mr. Hall, the defendant received the note for $30,000 00 given by him, as before stated, as the share of Jacob I. Moses in the firm of Hall, Moses & Roberts, but Mr. Hall still held this note at the time of sale to Wyman, Moses & Company. As soon as this settlement was made this defendant determined to substitute an equal amount of the notes of Wyman, Moses & Company for this $30,000, and he did, in October, 1860, transfer to himself, as executor, enough of the notes of Wyman, Moses & Company which first came due as would make the amount. Some of these notes had then been paid to Hall & Moses, and he took the note of Hall, Moses & Company for the amount paid, to-wit: $4,711 89, in lieu of the money.</p> <p>In 1862, the city of Montgomery was threatened, and this defendant feared, would be attacked by the army and navy of the United States. Supposing a capture of the city would greatly endanger the debt due by Wyman, Moses & Company,, the defendant thought it prudent to collect it in Confederate money rather than risk the chances of collection after the war in current funds. At that time Confederate bonds of a certain kind were being readily sold in England for eighty cents on the dollar in gold, and it was the purpose of defendant to obtain such bonds and send them to England for sale. He arranged with Wyman, Moses & Company to receive such bonds in payment of their notes. Finding that they could obtain bonds of the Alabama and Florida Railroad Company he proposed to receive $4,000 00 in them, and did receive them. This company was then solvent, but the results of the war left them insolvent. Wyman, Moses & Company paid $25,000 in such Confederate bonds, which, with the $4,000, paid off the notes held by defendant, as executor. After receiving them he made diligent efforts to get the bonds to England, but was not able to do so. He then determined to convert as many of them as possible into other securities, and finding an opportunity to do so he exchanged $10,000 00 for notes on individuals made before the war, and all perfectly good and solvent. In this whole matter he says he acted in the most perfect good faith, and as a prudent man would do in like circumstances. In proof of this, he says that Mr. Hall, who is a man of great prudence and business skill, pursued identically the same course in reference to his own interest in this firm, and lost the whole amount.</p> <p>This defendant has realized from the Montgomery interest, in interest to 1859...............................................$10,408 00</p> <p>Paid the legatees cash............................................... 16,921 00</p> <p>$27,329 00</p> <p>and has on hand $12,000 00 in what were perfectly good assets, and $10,000 00 in Confederate bonds.</p> <p>In 1862, Montefiore J. Moses became twenty-one years of age and had qualified as executor. There was then due him as his one-third of the special legacy, $11,378 19. The defendant turned over to him, as co-executor, assets amounting to $21,378 19, which was $10,000 00 more than his part of the .legacy. The balance is a charge against his interest in the residue. Besides this, defendant paid him $5,000 00 in Confederate bonds, in June, 1863, and took his receipt. The said Montefiore J. has accounted for the same as such co-executor.</p> <p>In 1865, when Moultrie came of age, he was entitled to $11,939 00 as his part of said special legacy, and $1,200 00 on account of monthly legacy. Defendant then turned over to him the bonds of E. J. Moses, which were part of the assets of the estate, amounting to $16,280 00, and took his note for $3,141 00 for balance which he claims as an offset and payment to him.</p> <p>No returns were made by defendant until 1865. The reason why none were made was because, prior to the settlement in 1860, H. Hall held all the assets. In 1861, and before the time when by law he would have made a return, the war commenced, and, as all the legatees except two resided in the State of New York, he feared by making his return to call attention to the estate in his hands belonging to these nonresidents and subject it to sequestration. But he did keep a full account on his books, and as soon as the war ended he caused a full return to be made embracing all the time from 1860.</p> <p>Eegular returns have been made since. Defendant advanced to Montefiore and Moultrie Moses large sums of money, to enable them to procure the necessaries of life, from time to time. For this money he now holds against them as follow's</p> <p>xYGAINST M. J. MOSES.</p> <p>Note dated April, 1861, principal.......................................$ 86 00</p> <p>Note dated June, 1861, principal............................... 100 00</p> <p>Note dated November, 1862, principal................................ 100 00</p> <p>Receipt October, 1861, principal........................................ 8,000 00</p> <p>Receipt October, 1861, principal...................................... 500 00</p> <p>Account in 1864............................................................. 7,860 00</p> <p>$11,646 00</p> <p>AGAINST MOULTRIE.</p> <p>Account for 1861 for.........................................................$4,750 00</p> <p>Note dated November 13, 1860........................................... 100 00</p> <p>Draft, favor R. J. Moses................................................... 1,120 00</p> <p>Receipt October, 1861................... ................................... 8,000 00</p> <p>Due bill February, 1863.................................................... 275 00</p> <p>$9,245 00</p> <p>These sums are all claims which he holds against them, and he claims the same as set-offs against them, and if, upon final trial, they or either of them should be found indebted to this defendant over and above their shares, he prays a decree against them for the balance.</p> <p>The bill and answer were referred to a master to take an account and report what amount, if anything, was due from the executor to the complainants. At the hearing before the master, no testimony was introduced except the bill, the answer of defendant, the returns to the Ordinary, and the various vouchers and documents connected with the same. The master reported as follows :</p> <p>1st. The testator died in December, 1854.</p> <p>2d. The most of his estate consisted of his interest in the partnership effects of Hall <& Moses.</p> <p>3d. The firm was composed of Hervey Hall and Jacob I. Moses.</p> <p>4th. Hall, as surviving partner, closed up the partnership business in the manner and at the time set forth in the answer, and no settlement was made until October 1, 1860.</p> <p>5th. The amount received from Hall, survivor, was $128,-029 25, and this is accepted in the calculations as the proper amount with which to charge defendant.</p> <p>6th. No errors are found as mere matters of calculation in the returns of defendant as executor.</p> <p>7th. All the items of credit claimed by defendant are allowed him, except those specially stated in the account.</p> <p>8th. The amount due the executor on the 24th of January, 1872, is $512 81.</p> <p>The following items charged to the estate by the executor, have been deducted by the master:</p> <p>1st. Commissions allowed the executor by the Ordinary during the years in which he made no returns’: $4,873 64, and interest on the same from March 4, 1867, $1,791 03; total, $6,664 67.</p> <p>2d. Counsel fees charged as paid for filing the bill, $150 00.</p> <p>3d. Charges the defendant with the amount of Confederate bonds on hand, amounting to $10,000 00, but without interest.</p> <p>4th. Charges the defendant with the sum of $100 00 as having been paid to Bivins for making out accounts.</p> <p>The total amounts charged by the master against the defendant is...................................................................$16,914 67</p> <p>Deduct balance due him................................................... 512 81</p> <p>And he finds the executor to be due the estate in the sum of. $16,401 86</p> <p>5th. The complainant contends that the defendant is now chargeable with the entire amount of the $30,000 00, that being the interest in the firm of Hall, Moses & Roberts. The master refuses to charge him with the whole amount, but charges him with the $10,000 00 of Confederate bonds, which investment was made a considerable time before he had any authority to make it.</p> <p>6th. Allows the executor the charge of $500 00 paid Peabody & Brannon for aiding in managing the estate.</p> <p>7th. Allows the defendant the credits for the amounts turn-turned over to M. J. Moses, co-executor.</p> <p>8th. Finds that the executor is entitled to a set-off against Moultrie Moses of $7,796 18.</p> <p>9th. And against Montefiore Moses, $2,886 41.</p> <p>10th. And that the specific legacies due the complainants have been paid.</p> <p>Both complainants and defendants filed objections to the report. Complainants’ objections are as follows:</p> <p>1st. They except to the report as being inaccurate in the statement that most of the estate consisted in the interest in the firm of Hall & Moses.</p> <p>2d. They except to the statement that Hall, as survivor, closed up the business.</p> <p>3d. They except to that part of the report which accepts $128,029 25 as the basis, and claim that Hall was indebted to the estate in a much larger amount.</p> <p>4th. They except because it rejects as a basis of its calculations tbe actual assets existing at the testator’s death, as shown by the answer and exhibits.</p> <p>5th. They except so far as it recognizes the so-called inventory in the returns made to the Ordinary in January, 1865, as being an inventory.</p> <p>6th. They except so far as it recognizes all or any of the notes as set forth in the returns as the assets of the estate.</p> <p>7th. They except so far as it expressly or impliedly exonerates the defendant from any losses resulting from his lawless management and investment.</p> <p>8th. They except so far as it either expressly or impliedly allows credits to defendant for anything but debts, legacies and expenses of administration paid and supported by vouchers.</p> <p>9th They except to the allowance of counsel fees to Peabody & Brannon.</p> <p>10th. They except so far as it exonerates defendant from liability for the amounts turned over to any co-executor; complainants say that he still remains liable with such co-executor.</p> <p>11th. They except so far as it expressly or impliedly frees defendant from interest for any portion of the time from the beginning of the year 1855 down to date.</p> <p>Defendant excepts upon the following grounds:</p> <p>1st. To the refusal of the master to allow the sum of $>4,-873 64 for commissions, aud to the charge of said master against defendant of said sum and §1,791 03 interest on same.</p> <p>2d. To the i’efusal to allow as a credit the sum of §150 paid for counsel fees for defending bill.</p> <p>3d. To the charging of defendant with §10,000 00 for Confederate bonds.</p> <p>4th. To the refusal to allow extra compensation in closing up partnership business.</p> <p>5th. To the refusal to allow as a credit the amount due by Moultrie Moses.</p> <p>6th. To the refusal to allow defendant a reasonable sum for expenses in defending this bill.</p> <p>At the trial term complainants filed an amendment to their bill, which is a replication to and a denial of the facts and conclusions of the answer, and charges that the true amount to be charged against defendant is the one-half of the nominal amount of the assets of Hall & Moses, without respect to the amount actually received by him in the settlement with H. Hall, and giving a calculation based upon this to show how much is due by defendant, which amount is claimed to be $100,053 73, up to 1st July, 1872.</p> <p>At the trial' complainants offered in evidence a balance sheet bearing date April 29th, 1857, made out by defendant, and which was admitted to be a balance sheet of the firm of Hall & Moses at that time.</p> <p>It was proved by John Peabody, who was introduced by complainant, that the service rendered by Peabody & Bran-non to thé defendant, was in preparing his returns as executor and in other matters pertaining to the management of the estate before bringing this suit, and were worth $500 00, and that the services of counsel on the part of defendant in defending this bill were worth $1,500 00, and $300 would be a fair compensation for the master.</p> <p>The master’s report shows that defendant produced and proved before him an order of the Judge of the Superior Court, authorizing investments in Confederate bonds, but that the investments were made prior to the obtainment of the order. The complainants admit these facts and that the proof of them was before the jury. The following is a copy of the balance sheet:</p> <p>Stock as per books.........................................................$211,295 33</p> <p>Error...........................................................$ 87 49</p> <p>Balance interest account................................. 11,036 82</p> <p>BalanceP. & L. account................................. 18,296 48</p> <p>$29,400 79</p> <p>Less balance charges account...........,$5,405 25</p> <p>Less balance merchandise account......' 1,396 59</p> <p>-- 6,80184 22,598 95</p> <p>$233,890 28</p> <p>ASSETS.</p> <p>Open accounts.............................................$ 3,426 16</p> <p>Sundry accounts............... 1,096 20</p> <p>E. Q-. Dawson settled.................................. 160 47</p> <p>Oliver & Clements....................................... 6 50</p> <p>St. Mary’s Bank bills................................... 276 25</p> <p>Expense account......................................... 4,037 09</p> <p>Bills receivable........................................... 17,026 58</p> <p>---$ 26,727 25</p> <p>Stocks...............................................'.........$ 11,976-51</p> <p>Real and personal estate.............................. 19,170 56</p> <p>Investments............................................... 21,896 02</p> <p>Cash on hand............................................. 2,347 30</p> <p>--- 55,390 39</p> <p>H. Hall’s account.......................................$104,928 85</p> <p>Jacob I. Moses’ account...............$ 6,093 12</p> <p>Executor I. I. Moses................... 37,164 54</p> <p>A. J. Brady............................... 4,272 77</p> <p>--- 47,530 43</p> <p>---- 152,459 28</p> <p>$234,476 92</p> <p>Less unpaid debts....................................................... 582 64</p> <p>$233,894 28</p> <p>The remainder of the evidence is contained in the bill, answer, exhibits and master’s report. The return showed a petition by Isaac I. Moses, executor, to the Ordinary, giving reasons for not making returns and asking for an allowance of commissions, and the order of the Ordinary, March 4, 1867, allowing $4,873 64 for such commissions. The exceptions to the master’s report were submitted to the jury. The Court charged:</p> <p>1st. It admitted that the specific legacies were paid, and on that point there was no controversy. It was contended by complainant that the basis taken by the master in making his report was not correct.</p> <p>2d. It was the duty of an executor of a deceased partner to make some kind of inventory of the interest of the deceased partner in the partnership, and the interest of the deceased would be his share-after the payment of all the debts due by the partnership. The executor was not entitled to have pos¿ session of the assets of the partnership, but to have an account from the survivor and payment from him of the amount found to be due upon final settlement of the partnership affairs. Under the will, the executor was invested with large discretion, and he might himself, with others, buy the interest of the deceased in the partnership, and if the interest thus bought by him was purchased in good faith, and at a fair price, then the transaction would be valid and binding on the estate. If the price of the interest of the deceased was fair and bona fide, as charged and as taken by the master as the basis of calculation, the jury might also take it as a basis, but if the sum was not fair, or if the transaction was not in good faith, then the jury might take such a basis as the proof showed was correct. It was contended that the executor was not entitled to charge commissions, because he had failed to make regular returns. He thereby forfeited his commissions, but he might apply to the Ordinary to set aside this forfeiture and allow them, and if he did so, and the Ordinary set aside the forfeiture and allowed them, such 'allowance was prima facie evidence that the commissions were properly allowed, but it was only presumptive, and it was for the jury, from the evidence, to determine whether the commissions should be allowed or rejected. Further, that an' executor in a proper case would be entitled to have allowed him a reasonable amount for counsel fees. He is only allowed such in a proper case, and the amount to be allowed will depend upon the condition and circumstances attending each particular case. The jury will look to the evidence in this case and the circumstances attending the administration of it, and from these they will determine whether the defendant shall be allowed counsel fees, and if so, what amount, allowing only a reasonable sum..</p> <p>3d; If one of the sons of deceased qualified as executor, and if the defendant, as executor, turned over to his co-executor assets or property belonging to the estate to be administered by him as such co-executor, and did so in good faith and without any reason to apprehend that it would be wasted or lost by such co-executor, the executor, so turning over the property,, would be discharged from liability therefor; but if it was not done in good faith, or if it was wasted by his privity, then he would be liable for the loss or waste.</p> <p>4th. Under the will, the executor had the right to withdraw the interest of the deceased in the Montgomery partnership for the purpose of investment, and he might withdraw it by a sale thereof to himself or to himself and others, if he took it at a fair price and in good faith and for the benefit of the estate; if he withdrew in this manner, he might afterwards change the investment into the notes of other parties, and might change them into Confederate bonds and notes on individuals, without a violation of duty, if he, in this transaction, acted in good faith, and if his conduct was such as would characterize a prudent man under similar circumstances. But if he did not act in good faith, or if his conduct in these matters was not characterized by prudence, if loss occurred, he must sustain the loss and not the estate.</p> <p>5th. They should apply these principles of law and determine from the testimony, whether said defendant was indebted to said estate, and if so, how much, or whether the estate was indebted to him, if so, how much; and further, that they might say in the verdict what disposition should be made of the property in the hands of the executor unadministered, and whether any of the legatees, complainants, were indebted to the defendant, and if so, in what sum, and that if any of them were indebted to defendant they might decree that such sum be set off against any part of said estate which might be due or become due such legatee.</p> <p>6th. It was admitted that there were six children of testator, five of whom were complainants. The Court charged the jury further, that if they should find that defendant was indebted to the estate, or had any property belonging to the estate unadministered, that the same should be divided into six equal parts, and one part thereof should be decreed to each of the five complainants, the children of testator, the shares aforesaid to be subject to the right of set-off as above set out in the charge.</p> <p>Under tins charge the jury rendered the following decree :</p> <p>1st. We decree in favor of the defendant and against Mrs. Davega and her husband.</p> <p>2d. We further find and decree that the defendant be allowed the credit of $4,873 64 for his commissions as of March 7th, 1867.</p> <p>3d. We further find and decree that said defendant be allowed, by a credit, the amount of $10,000 00 for the Confederate bonds on hand.</p> <p>4th. We further find and decree that the said defendant be ■allowed a credit for the $150 00 paid Mr. Benning and Mr. Blandford as fees for defending this bill.</p> <p>5th. We further find and decree that the said defendant be ■allowed, as a credit, the amount of $5,000 00 turned over to Montefiore J. Moses, the co-executor.</p> <p>6th. These credits being allowed, we find and decree in favor of defendant in the sum of $512 81 as the amount due him as executor, 24th January, 1872.</p> <p>7th. We further find and decree that the said defendant be allowed the amount of $1,500 00 as counsel fees for defending this bill, which sum includes the credit of $150 00 above allowed.</p> <p>8th. We further find and decree that the property and effects in the hands of the defendant, as set forth in the master’s report in this case, be sold by the defendant, and that he retain, out of the proceeds of said sale, the balance of amount ■of counsel fees allowed, to-wit: $1,850 00, and also the amount of $512 81 due him, and that the balance of the proceeds of said sale be divided into six equal portions.</p> <p>9 th. W'e further find and decree that each of the five complainants, to-wit: Montefiore, William Moultrie, Flora O’Hoinguer, formerly Flora Moses, Felix and Jacob Moses, minors, do receive one portion of said proceeds, and that the defendant do recover of Montefiore J. Moses the amount of $2,186 41 to be set off against his share, and that defendant do recover of William Moultrie Moses $7,796 18, to be set off’ against his share.</p> <p>Complainants moved for a new trial on the following grounds:</p> <p>1st. Because? the jury have not returned a verdict on all and each of the exceptions to the master’s report, seriatim, as required by law.</p> <p>2d. Because the jury have not returned any verdict on the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, eleventh and twelfth exceptions.</p> <p>3d. Because the verdict is wrong and contrary to law in finding against the tenth exception filed by complainants, and allowing defendant a credit of $5,000 00 turned over to Montefiore J. Moses, co-executor.</p> <p>4th. Because the verdict is wrong, and contrary to evidence and law and the principles of justice and equity in finding in favor of the defendant on the first exception filed by him, and allowing him the sum of $4,873 64 for commissions, and also in finding in favor of defendant on the third exception filed by him, and allowing him a credit for the $150 00 paid Mr. Benning and Mr. Blandford as fees for defending this bill, and also in finding in favor of defendant on the third exception filed by him, and allowing him, as a credit, the $10,000 00 for the Confederate bonds, and also in finding in favor of defendant on the fifth exception filed by him, and in finding that he should recover of the complainant, William Moultrie Moses, the amount of $7,796 18; and also in finding in favor of defendant on the sixth exception filed by him, and decreeing that he should be allowed the amount of $1,500 00 for counsel fees; and also that he should retain the same out of the proceeds of the sale of the property in his hands.</p> <p>5th. That the verdict is wrong and against law and evidence in allowing defendant $512 81, to be retained by him.</p> <p>6th. That the verdict is wrong and against evidence in decreeing that the defendant should recover of Montefiore J. Moses $2,186 41.</p> <p>7th. That the verdict and decree is wrong and against law and evidence, in directing the balance of the proceeds of the sale to be divided into six equal parts, one whereof to be paid to each of the five complainants,, because two of the complainants, to-wit: Montefiore and Moultrie, have received considerable payments, and Flora has received $60 $0, and the two minors nothing.</p> <p>8th. Because the verdict, as a whole, is Against evidence and the weight of evidence.</p> <p>9th. Because the verdict, as a whole, is contrary to law and the principles of justice and equity.</p> <p>10th. Because the Court erred in charging the jury against the third and fourth exception of complainants.</p> <p>. 11th. Because the Court erred in the construction of the following clause of the will: “ The residue of this interest and the profits accruing every three years from my business shall be invested as fast as received for accumulation, and so with any part or all of my estate, when withdrawn from my business, until January 1, 1870;” and in holding and charging the jury that said clause did not narrow or restrict the executor’s discretion in making and changing investments, and that he had the same license and latitude of discretion in that regard as if said clause were not in the will.</p> <p>12th. Because the Court erred in charging the jury that the executor was protected from responsibility for losses, if his alleged investments and changes of investments were such as an ordinarily prudent man might have made in his own business, and that there was nothing in the will or law to make the investments an exception to the rule.</p> <p>13th. Because the Court erred in charging the jury that, although the defendant became the purchaser, individually, from the surviving partner, still, he was at liberty to exonerate himself from, that debt by substituting other debts, stocks or property therefor.</p> <p>14th. Because the Court erred in charging that the defendant was exonerated from liability as to that portion turned over to his co-exeeutor.</p> <p>15th. Because the Court erred in that part of the charge beginning with the words, “that, under the will, the executor was entrusted with a large discretion,” and including “ basis, as the proof showed was correct.”</p> <p>16th. Because the Court erred in charging that the order of the Ordinary setting aside the forfeiture of commissions was prima facie evidence that they were properly allowed.</p> <p>17th. Because the Court erred in that portion of the charge beginning with, “that, under the will, the executor had the right to withdraw the interest in the Montgomery partnership,” and including, “and if losses accrue, he must sustain the loss and not the estate.”</p> <p>18th. Also, to the direction to divide the remainder into six equal parts, and that one part thereof should be decreed to each of the five complainants, because it went on the assumption that equal payments had been made to the complainants, whereas, the contrary is true.</p>

Injunction. Riparian rights. Before Judge Knight. Cherokee County. At Chambers. October 4th, 1873.

<p>1. Where one was under a contract to accept and buy a lot of corn from the plaintiff, between the 10th and 20th of April, and on the last day he agreed to extend the time for a tender until the 21st, and on the 21st the plaintiff tendered a lot in the morning, which was not accepted, and again in the evening, which the defendant refused to look at:</p> <p>Held, That it was not error in the Court to admit the evidence of a tender at any time during the day on the 21st, and that it was not error to refuse to permit defendant to show that plaintiff had made several tenders, between the 10th and 20th of April, of bad corn, and thus to justify defendant in refusing to look at the,second tender on the 21st.</p> <p>2. The verdict of the jury in this case, turning, as it did, upon whether the jury believed the version of one or the other party at the time of the tenders, on the 21st, is supported by the evidence, and, although the proof appears somewhat stronger for the defendants than the plaintiff, yet, as the jury has given the most weight to the plaintiff’s evidence, and the'Judge has refused to interfere, this Court will not do so.</p>

<p>The certificate of the former owner of a judgment, given since its assignment, that she had, on due reflection, become satisfied that said judgment was wrong, and that she was mistaken when the case was pending in Court, cannot affect the rights of the assignee.</p>

New trial. Before Judge Greene. Newton Superior Court. September Term, 1872. Lee brought complaint against Steadman on a note for $2,000 00, dated April 9th, 1866, due on or before January 1st next thereafter, with credits thereon as follows: May 25th, 1866, $500 00; January 7th, 1867, $510 29; February 28th, 1867, $100 00; March 19th, 1867, $250 00. The defendant pleaded the general issue and set-off.

Insurance. Principal and agent. Before Judge Strozier. Dougherty Superior Court. April Term, 1873. This was an action brought by Ella W. Scurry, and others, widow and children of James R. Scurry, deceased, on a contract of insurance alleged to have been made by the Cotton States Life Insurance Company for $10,000 00 on the joint lives of James R. Scurry and his wife Ella, and payable on the death of either.

Equity. Discovery. Amendment. Charge of Court. Jury. Receipt. Before Robert P. Trippe, Esq., Judge pro hac vice. Upson Superior Court. May Term, 1872. Joseph Allen, as administrator of Xenophon Bowdre, deceased, filed his bill against Martha F. Woodson, as executrix, and Benjamin Bethel, as executor, of William I).

<p>Banks. Promissory notes. Usury. Before Judge Bartlett. Putnam Superior Court. March Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Promissory notes. Principal and agent. Before Judge Hill. Houston Superior Court. May Term, 1873.

Criminal law. Assault with intent to commit rape. Charge of Court. Before Judge Strozer. Terrell Superior Court. May Term, 1873. Platt Taylor was placed on trial for the offense of an assault with intent to commit rape, alleged to have been perpetrated upon the person of one Catharine Turner, on June 15th, 1872. The defendant pleaded not guilty.

<p>This case comes within the principle of the case of Gunn vs. Barry, decided by the Supreme Court of the United States, and the judgment is therefore reversed.</p>

<p>United States Court. Garnishment. Jurisdiction. Before Judge James Johnson. Muscogee Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

Equity. Illegality. Before Judge Bartlett. Baldwin county. At Chambers, October 19th, 1873. John Scogin, Joseph Scogin and Eliza Scogin gave their note to William Sanford for the purchase money of a slave, dated January 3d, 1865, and due January 1st, 1857. Beall, executor of Sanford, sued and obtained judgment on this note against Joseph Scogin and Eliza Scogin at the August term, 1866, of Baldwin Superior Court.

Master and servant. Damages. New trial. Before Judge Harvey. Floyd Superior Court. July Adjourned Term, 1872. These two cases, involving the same questions, were argued and decided together. Jeremiah F. Duke brought case against Wadsworth, Williams & Company for $3,000 00 damages.

<p>Divorce. Alimony. Attorney’s fees. Before Judge Mc-Cutchen. Whitfield Superior Court. April Term, 1873.</p> <p>Glenn brought suit against Hill, in the Justice Court for the eight hundred and seventy-second district, on an account for $50 00, for professional services as an attorney at law, alleged to have been rendered to Fannie Hill, the wife of the defendant, in the case of said Fannie Hill against the defendant, the same being an action for a divorce, still pending in Whitfield Superior Court. The presiding magistrate dismissed the suit for want of jurisdiction in his Court. The plaintiff carried the case, by writ of certiorari, to the Superior Court, where the judgment of the magistrate was affirmed.</p>

<p>Service. Judgment. Presumption. Evidence. Before Judge Gibson. Richmond Superior Court. April Term, 1873.</p> <p>Hilory B. Frazer recovered a judgment against the Iron Steamboat Company, on June 24th, 1861, after publication of notice under Act of December 10th, 1841, of the commencement of the suit.</p> <p>When the execution was placed in the sheriff’s hands no corporate property could be found. On the 31st of December, 1869, Frazer commenced suit against certain persons as stockholders to enforce the liability imposed on them under the 14th section of the Act of incorporation, approved December 22d, 1835, that “ the property of the stockholders shall be bound for all contracts or liabilities made or incurred by said company in proportion to the amount of their stock.” A copy writ was served May 5th, 1870, by leaving it at the residence of Robert Campbell, and judgment was rendered against him and others on January 12th, 1872, by default. Execution issued February 3d, 1872. On the 27th of the following May, Campbell filed his bill against Frazer, which set forth the above recited facts, and made substantially the following case:</p> <p>Complainant never was a stockholder in said Iron Steamboat Company, but he is informed and believes that his nephew, known as Robert Campbell, Jr., residing in the same county with him, was a stockholder therein. He submits that the Robert Campbell sued iu said action was the stockholder of that name and not complainant. He had no actual notice of the institution and pendency of said action, and if a copy of the declaration was ever left at the residence of complainant, as alleged in the return of the sheriff, the truth of which he can neither admit nor deny, it was not brought to his knowledge. But, that if any such copy declaration was left at his residence, it was so done by the mistake of the sheriff, as the plaintiff in said declaration had not brought suit against him, but against his nephew, the said Robert Campbell, Jr. If said plaintiff did, indeed, intend to sue complainant, it was through a mistake in supposing that he was a stockholder in said company. Complainant submits that the judgment obtained upon either mistake is invalid. The judgment thus obtained is for the principal sum of $1,044 38, and $240 00 interest to judgment, with accruing interest and costs.</p> <p>Prays discovery, that defendant be enjoined from enforcing said judgment, and the writ of subpoena.</p> <p>The answer is unnecessary to an understanding of the decision and is therefore omitted.</p> <p>The complainant offered the testimony of Josiah Sibley, that “ he was a stockholder in the Iron Steamboat Company from about the time of the incorporation of the company, to the best of his knowledge, recollection and belief, and continued to be such during the existence of the company. He recollects that Robert Campbell, Jr., was at one time a stockholder of said company, and does not know that he ever ceased to be such. To the best of his knowledge, recollection and belief, Robert Campbell, Sr., never was a stockholder in said company. He further states that he now has no idea that Robert Campbell, Sr., ever was such stockholder, and that, for a considerable period, he cannot say how long, he (Sibley) was a director.”</p> <p>To the words, “ that he has now no idea that Robert Campbell ever was such stockholder,” the defendant objected as inadmissible. The objection was overruled, and defendant excepted.</p> <p>The complainant closed his case, when defendant, after offering Lis answer, where responsive to the bill, the exhibits annexed to complainant’s bill, and the testimony of the sheriff showing the service at the residence of'Campbell, closed.</p> <p>The jury rendered a verdict for complainant, and a decree was entered enjoining the fi. fa. and taxing costs against the defendant.</p> <p>The defendant moved for a new trial on the following grounds:</p> <p>1st. Because the verdict of the jury was contrary to the evidence and the principles of justice and equity.</p> <p>2d. Because the Court refused to charge the jury in the language requested, such request being submitted in writing by defendant’s solicitor, “that if Eobert Campbell, the complainant, was served with process in the common law suit and failed to plead it, the judgment is conclusive, and he cannot go behind it.”</p> <p>3d. Because the Court refused to charge the jury in the language requested, such request being submitted in writing, “that service of the copy writ at the residence of Eobert Campbell is all that the law required, and personal notice is not required to be brought home to him.”</p> <p>4th. Because the Court, when he refused the requests aforesaid, stated, “that if Eobert Campbell had been served personally, it was conclusive, but the leaving of the copy wait at his residence was not.”</p> <p>5th. Because the Court refused to charge the jury, at request of defendant’s solicitor, such request being presented in writing, “that the public notice of suit, to bind the stockholder, as authorized by the Act of December 10th, 1841, Code, section 3295, was cumulative only, and that stockholders in the Iron Steamboat Company, which was incorporated December 22d, 1835, are not bound thereby.” The Court did charge down to the word cumulative, but. refused the balance.</p> <p>6th. Because the Court, in concluding its charge, said, “It was the duty of the jury to ascertain if Campbell had been personally served, and if not, then they were to ascertain whether he was a stockholder; that all legal presumptions were in favor of the judicial records of the Court, but that it was the peculiar province of a Court of equity to correct mistakes at law, and if a mistake had been made in serving the wrong person, who had not been personally served with process, the judgment against him should be perpetually enjoined.”</p> <p>7th. Because the Court admitted in evidence, defendant objecting, the statement of the witness, Josiah Sibley, “T.hat he now has no idea that Robert Campbell, Sr., ever was such stockholder.”</p> <p>The motion was overruled and the defendant excepted, upon each of the grounds aforesaid.</p> <p>The complainant having died after the case was canned to the Supreme Court, his executors were made parties in this tribunal.</p> <p>1. The complainant had an adequate remedy at law, and there is no equity in the bill: Dasher vs. Dasher, decided July 11th, 1872; Code, sec. 3264; 46 Ga., 396; Griffeth vs. Mitchell, decided August 12th, 1873. For he should have waited for a levy to have been made, and then filed his affidavit of illegality as to the service: Code, sec. 3621; 26 Ga., 110. Or traversed the sheriff’s return, the first term after notice.</p> <p>2. To sustain the absence of service, the proof must be strong: 14 Ga., 36. For the sheriff’s return will be presumed legal: 19 Ga., 279; 39 Ibid., 22. There was no proof offered by complainant, even by himself, that he had not been served as stated, that he had not received the copy writ, nor of the time when he first received notice of the sheriff’s return, and his allegations to that effect in his bill were denied by the defendant and disproved by the sheriff: Brown vs. Gill, decided September 23d, 1873.</p>

Criminal law. Evidence. Before Judge Harvey. Bar-tow Superior Court. March Term, 1873. Conyers was placed on trial, charged with the offense of allowing a minor to play billiards on a table controlled by bim, without the consent of his parent or guardian. He pleaded not guilty, but the jury found to the contrary.

<p>Garnishment. Sheriff. Rule against officer. Execution. Before Judge Greene. Spalding Superior Court. August Adjourned Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>1. A purchaser of property at an assignee’s sale in bankruptcy, under an order of the Register to sell subject to incumbrances generally, is not estopped from denying that a particular incumbrance is a good and valid incumbrance, and he may show that a mortgage on the property purchased was made by the bankrupt in fraud of his creditors,' and is therefore void.</p> <p>2 A bona fide purchaser, without notice of a promissory note and mortgage to secure it, who buys before the debt becomes due, is protected against a defense, that the mortgage was made by the debtor, in anticipation of bankruptcy and to defraud his creditors.</p>

<p>New trial. Charge of Court. Before Judge Harvey. Floyd Superior Court. July Adjourned Term, 1872.</p> <p>Sims brought complaint against Johnson on a due bill, dated October 11th, 1865, signed by L. B. Reed and defendant, payable to James S. Sims, or bearer, for $390 23 in gold. The declaration stated that Reed was a non-resident of the State. No process was prayed as against him. The defendant pleaded the general issue and payment.</p> <p>The defense sought to be established by the evidence was that Sims, Reed and Johnson formed a copartnership for the purchase and sale of cotton. Sims was to advance all the money, to have one-half the profits, or to bear one-half the losses. Reed and Johnson -were to give their notes for one-half the amount advanced. The due bill sued on was given in this way. That losses accrued on the transactions had; that a final settlement had been made between the parties on February 26th, 1868, in which the balance due Sims had been paid him.</p> <p>The evidence was very conflicting. Sims contended that a partnership was not intended, though, by operation of law, one may have been actually formed. He simply made an advance of money in gold, as a loan, to Reed and Johnson, they agreeing to allow him one-half the profits of their operations in the purchase and sale of cotton, and he agreeing to share one-half the losses. No final settlement was ever made, but upon such settlement there would be found to be due the amount of the aforesaid due bill.</p> <p>Reed testified that Sims was to furnish all the money free of interest.</p> <p>The voluminous testimony is omitted, as it embraces nothing that will tend to illustrate any principle of law enunciated in the decision.</p> <p>The Court charged the jury as follows: “The note sued upon, on its face, is a promise unconditional to pay the principal and legal interest appearing to be due thereon, and if parol or verbal testimony is relied on to overturn the prima fade evidence of the original contract furnished by the writing, to show, for instance, that the interest was not intended to be paid at all events, but was to depend on' the profits of an uncertain partnership speculation: I say, for us to substitute parol evidence for the writing in such a case, the parol evidence should be of a satisfactory character, or strong enough to overturn, in the minds of the jury, the prima fade evidence of the original contract as furnished by the writing. But if the ad missions or acts of both parties, or other evidence to your minds sufficient, satisfy you that such was the real contract, intention and understanding of the parties, you may so find.”</p> <p>The jury found a verdict for the plaintiff for $297 00, with interest from February 26th, 1868, the date of the last settlement set up in the plea. The defendant moved for a new trial, because of error in the charge aforesaid, and because the verdict was contrary to the law and the evidence.</p>

County Court. Distress warrant. Construction of statutes. Before Judge Strozer. Dougherty Superior Court. April Term, 1873. Graves sued out a distress warrant against E. R. Roberts and W. S. Davis for $500 10, and had the same levied on five bales of cotton as the property of the defendants. The affidavit was made before Honorable David H. Pope, the Judge of the County Court of Dougherty county, and the warrant was issued by the same officer.

<p>New trial. Before Judge Harvey. Floyd Superior Court. July Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>New trial. Warranty. Before Judge Hopkins. Fulton Superior Court. October Term, 1872.</p> <p>McKoy brought assumpsit against Wily fop $500 00, his declaration making the following case :</p> <p>On August 15th, 1870, the plaintiff exchanged a horse, of the value of $125 00, with the defendant for a mule, which, if sound, would have been of the same value. The defendant warranted said mule as sound. But the mule, at the time of said exchange, was suffering with the disease known as the glanders, of which she subsequently died. She was entirely useless to the plaintiff, and caused him an expense of $50 00. In addition, the plaintiff has been damaged by said disease having been communicated to a horse belonging to him, which has also thereby been rendered valueless.</p> <p>The defendant pleaded not guilty.</p> <p>The evidence was substantially as follows : On Saturday evening, about the time specified in the declaration, the exchange was made. The defendant repeated several times that “the mule was sound as a dollar,” and that the plaintiff “need not doubt it.” On the Monday morning after the trade, the plaintiff hitched the mule to a wagon and drove her about fifty yards, when she gave out. She was never afterwards able to work. On the 10th and 20th of September, 1870, plaintiff exhibited said animal to two of his neighbors, Jacob C. New and Levi Chenning, who were acquainted with the diseases and value of horses. New and Chenning testified that the mule had the glanders, and was worthless. She died five or six weeks after the trade. At the time of the exchange the defendant told the plaintiff that he had lost a mule a few days before, but did not know of what disease he died.</p> <p>Evidence was introduced as to the value of the horse unnecessary here to be set forth.</p> <p>The jury returned a verdict for the defendant. Plaintiff moved for a new trial because the verdict was contrary to the law and the evidence.</p>

<p>Where, upon a trial had upon an indictment for the offense of murder, the jury return a verdict finding “the prisoner guilty of manslaughter,” the legal effect of the verdict was to find the defendant guilty of the highest grade of manslaughter, to-wit: voluntary manslaughter.</p>

Nuisance. Certiorari. Before Judge Knight. Cobb county. At Chambers. February 14th, 1873.

<p>Carriers. Public enemies. Before Judge Hopkins. Fulton Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision.</p>

<p>1. Whilst, as a general rule, the principal alone can sue on a contract made by an agent, for the benefit of the principal, yet, if the agent himself have an interest in the contract, he may sue upon it in his own name,</p> <p>2. In this case the contract clearly includes the Sisson fi. fa., as one of the debts agreed to be paid out of the proceeds of the land.</p> <p>3. Where there have been two judgments of the Court, on illegalities to an execution, both ordering the same to proceed as a valid execution, it is too late for the defendant to set up a new defense to the execution which existed before the judgments and of which he was fully informed at the time of the judgments.</p>

<p>Judgments. Before Judge Hopkins. Fulton Superior Court. October Term, 1872.</p> <p>This is the second time this case has been before the Supreme Court: See 45 Georgia Reports, 155.</p> <p>For the facts, see the decision.</p>

Criminal law. Threats. New trial. Before Judge Strozer. Dougherty Superior Court. June Term, 1873. Gus Peterson was tried and convicted of the offense of murder at the June adjourned term, 1872, of Dougherty Superior Court. He moved for a new trial, the motion was overruled, and the case brought by writ of error to this Court, where the judgment was .affirmed: See 47 Georgia Reports, 524.

<p>1. Where there is no evidence that the defendant was in possession of ' property before or after tlie judgment was rendered against him, and no title was shown in him, the fact that he conveyed the same by deed subsequent to said judgment, and possession was taken thereunder by the vendee, does not render the property liable thereto.</p> <p>2. An immaterial error is no ground for new trial.</p>

<p>Equity. Survivorship. Parties. Before Judge Ejcddoo. Mitchell Superior Court. May Term, 1873.</p> <p>Allen Cochran died in November, 1863, leaving two daughters, to-wit: Med ora Wade, wife of Ethel B. Wade, and Mary J. Polhill, wife of Frederick T. Polhill, both of whom were married prior to the death of their said father. The deceased left a plantation, slaves and personal property. The plantation and slaves were lost to the estate. A part of the personal property, to-wit: ninety bales of cotton, was sold by Frederick Polhill, thirty-seven bales of which were delivered to the purchasers and lost to the creditors, the balance being levied on by divers executions against the deceased.</p> <p>Cochran, during his life, was the guardian of his said daughters, and was indebted to them, as such guardian, in about the sum of $7,000 00. John Neal, a judgment creditor, filed a creditor’s bill against Frederick T. Polhill, M. D. Potts, administrator de bonis non, cum testamento annexo, of Cochran, and others, to condemn the cotton sold by Polhill, and other property sold by Cochran during his life, and generally to marshal the assets of the estate. Mrs. Wade and Mrs. Pol-hill were made parties to said bill, and, as creditors, set up their claim against the estate of their said father’, averring that it was superior in dignity to all others. They praj^ed such decree in their favor as the law and principles of equity would justify, settling the amount recovered in trust for their sole and separate use respectively, and suggested their husbands as suitable trustees.</p> <p>The administrator of Cochran answered these charges and set up, by way of cross-bill, the amount of the estate of the intestate which had been received and used by Polhill, Wade, their wives and children, which was far in excess of the aforesaid claims. He also charged that said indebtedness of the deceased, as guardian, had vested in the husbands of his former wards.</p> <p>Pending the issue thus formed, Mrs. Polhill died, and her children, through Benjamin M. Polhill, guardian ad litem, by supplemental bill, prayed to be made parties in place of their deceased mother.</p>

Criminal law. Bigamy. Evidence. Practice in the Supreme Court. New trial. Before Judge Hopkins. Clayton Superior Court. March Term, 1873. The foregoing cases were argued and decided together. To the bill of exceptions in each are attached various affidavits, which would seem to be the basis of motions for new trials on account of newly discovered evidence. But the records disclose no such ground as taken or passed upon by the Court. The remaining facts appear in the decision.

Criminal law. Compounding a felony. Before Judge Hopkins. Clayton Superior Court. March Term, 1873. Stancel was placed on trial for the offense of compounding a felony, to-wit: an assault, with intent to murder, perpetrated upon him by one Harvey W. Boston. The defendant pleaded not guilty.

<p>Justices of tlie Peace have not jurisdiction, under the provisions of the 4023 section of the Code, to abate as a nuisance a bridge constructed by a railroad company over a navigable stream.</p>

<p>1. The Court erred in charging the jury that if the first and second contracts had been abandoned, the jury must find according to the testitimony of L. Moore.</p> <p>2. The verdict is for too much, even under the evidence of L. Moore, as it is set forth in the record.</p>

<p>Statute of limitations. Judgment. Land. Before Judge .Hopkins. Fulton Superior Court. October Term, 1872.</p> <p>For the facts of this case, see the decision,</p>

Husband and wife. Survivorship. Before Judge Bice. Gwinnett Superior Court. March Term, 1873. Hiram Pittman died in 1838, in Gwinnett county, leaving a widow and four children, one of whom, LouisaS. Pittman, afterwards Green, now Hooper, is the plaintiff in error. Emily Pittman, another one of the heirs-at-law of Hiram Pitman, died in the year 1850, intestate, without issue, having never married.

<p>Principal and agent. Evidence. Before Judge Hill. Houston Superior Court. May Term, 1873.</p> <p>Richard P. Glenn d al., as survivors of Glenn, Duffield & Company, brought complaint against Samuel P. Salter on the following account:</p> <p> Mr. B. P. Balter, in account with Glenn, Duffield & Company. </p> <p>1865. Da.</p> <p>July 12. To cash in currency......................... $10,000 00</p> <p>July 12. To cash in gold..............................$ 1,400 00</p> <p>Aug. 8. To cash in gold............................... 5,000 00</p> <p>Aug. 8. To cash in currency.......................... 5,000 00</p> <p>Aug. 8. To cash in gold................................ 20,000 00</p> <p>$26,400 00 $15,000 00</p> <p>Ob.</p> <p>Aug. By purchase 189 bales cotton, viz.: 90,583 lbs., with gold....................................$14,009 94</p> <p>Aug. By purchase 1,021 lbs. cotton with silver... 234 83</p> <p>Aug. By purchase 20,170 lbs. cotton with currency............................................... $5,761 93</p> <p>Aug. By cash paid Mr. Wright......................... 3,000 00</p> <p>Sept. By purchase 43 bales cotton, 23,784 lbs., at 20 cents............................................ 4,756 80</p> <p>Oct. By cash of K. & EL, gold........................ 1,000 00</p> <p>Nov. By cash from Rust................................. 6,000 00</p> <p>$25,999 57 $8,761 93</p> <p>RECAPITULATION.</p> <p>Dr. To gold..................$26,400 00, Currency...................$15,000 00</p> <p>Cr. By gold.................. 25,999 57, Currency................... 8,761 93</p> <p>Balance .................$ 400 43 .................................$ 6,238 07</p> <p>STATEMENT.</p> <p>Feb. 23. For balance due in currency, as per statement rendered.............................................................$6,238 07</p> <p>For balance due in gold, as per statement rendered... 400 43</p> <p>Premium on $400 43, gold, at $1 49....................... 196 00</p> <p>Balance due Glenn, Duffield & Company........................$6,834 50</p> <p>The defendant pleaded as follows: 1st. The general issue. 2d. That the plaintiffs employed him to buy cotton for them, and agreed to pay the usual commissions then allowed to agents for such services; and that he, in pursuance of such contract, purchased and contracted for, on plaintiffs’ account, divers lots of cotton, for which he claimed commissions at the rate of two and one-half per cent, on the amount of purchases so made. 3d. That in pursuance of said contract with plaintiffs, he received from them, at different times, considerable sums of money, both in specie and in currency, for all of which he has fully accounted to plaintiffs, except the sum of $5,-000 00, which was stolen from him in Albany, Georgia, about the 10th day of August, 1865, without fault or negligence on his part, of which loss plaintiffs were duly notified. To this plea was appended a statement of account between- defendant and plaintiffs, exhibiting (as the plea states) “ as accurately as lie is able to do, the true statement of account existing at the commencement of said suit,” and .which the defendant prayed might be taken as a part of his plea, and according to which he claimed a balance due him by plaintiffs, of $8,088 56, for which he asked judgment in his favor. The account appended to this plea is as follows:</p> <p>BILL OF PARTICULARS.</p> <p> Samuel P. Salter, </p> <p> Agent of Glenn, Duffield & Company, in account with his said trust: </p> <p>1865. Debit.</p> <p>To cash received for purchase of cotton, on account of said principal, as follows, to-wit:</p> <p>July 12. In currency....................................... $10,000 00</p> <p>July 12. In gold............................................$1,400 00</p> <p>Aug. 8. In gold............................................. 5,000 00</p> <p>$6,400 00</p> <p>Worth in currency, at $1 50........................ 9,600 00</p> <p>In currency............................................ 5,000 00</p> <p>In gold, on account of 1.500 bales cotton (Jerry Beall) $20,000 00, worth, in currency.................................................. 30,000 00</p> <p>Total amount received in currency......... $51,600 00</p> <p>1865. Credit.</p> <p>By amount of currency lost by agent in Albany, August 10, 1865.......................................... $ 5,000 00</p> <p>By amount paid for 189 bales cotton, viz.: 71,604 lbs., in gold and silver, $14,242 77, worth, in currency.................................................... 21,364 15</p> <p>20,170 lbs., paid for in currency....................... 5,761 93</p> <p>By cash returned to Mr. Wright, (one of the plaintiffs,) in currency......................................... 3,000 00</p> <p>Sept. By 43 bales cotton, 23,784 lbs., paid for in gold, $4,756 80, worth, in currency,.............. 7,135 20</p> <p>Oct. By cash by Knott & Howes, gold...............$1,000 00</p> <p>Nov. By cash by Y. G. Rust, gold.................... 6,000 00</p> <p>$7,000 00</p> <p>Worth, in currency........................................ 10,500 00</p> <p>Total amount expended and accounted for... $52,761 28</p> <p>Deducted from amount received, leaves balance in hand of agent..........................................................................$1,838 72</p> <p>Balance in hand of agent, on account of trust receipts and disbursements, as per foregoing exhibits, in currency value..... 1,838 72</p> <p>By service rendered in the premises, not hereinbefore accounted for, as follows, viz.: Commission on $34,261 28, paid for 232 bales cotton, shown before, at 2£ per cent.................... 856 53</p> <p>Commission on $134,630 00, paid for 1,000 bales cotton, bought of Lee Jordan, on account of plaintiffs, at 2} per cent....... 3,365 75</p> <p>Commission on $1,500 bales cotton, with Y. G. Bust, factor and commission merchant of Jerry Beall, at Albany, Ga., contracted for by defendant, at instance and request of plaintiffs, worth $225,000 00, at 2} per cent, commission............ 5,625 00</p> <p>Agent’s credits for commissions..........................................$9,847 28</p> <p>Deducting balance in hand of agent on previous account........ 1,838 72</p> <p>Balance due agent.....................................................$8,008 56</p> <p>As a fourth plea, he alleged that in addition to $34,261 28, paid out for plaintiffs, as exhibited in the account appended, and on which he claimed commissions as aforesaid, he claims to have purchased for plaintiffs one thousand bales of cotton, known as the “Lee Jordan cotton,” amounting in the aggregate to about $134,630 00, on which he alleges that he was entitled to commissions at the rate aforesaid. As a fifth plea, he alleged that in July, 1865, he contracted, with the approval of plaintiffs, for fifteen hundred bales of cotton, belonging to Jere Beall, with Y, Gr. Rust, his factor, at thirty cents per pound, making the aggregate value about $225,-000 00; that, as earnest money, he deposited with said Rust $20,000 00 in gold, then worth $30,000 00 in currency, to confirm the bargain; that plaintiffs were duly notified of this transaction, and approved it at the time, but that the contract Avas “afterwards, at their instance, and with consent of the said Jere Beall, cancelled.” Defendant claims that, notwithstanding said cancellation, he is entitled to his commissions on said purchase, at the rate of two and one-half per cent.</p> <p>Under these pleadings the case went to trial at August term, 1869, and resulted in a verdict for the defendant for $3,737 09. Plaintiffs moved for a new trial, which Avas granted by Judge Cole, and the Supreme Court affirmed his judgment, on the grounds stated in their decis ion in 42 Georgia Reports, 64.</p> <p>At the December term, 1872, the case was again tried in Houston Superior Court, Judge Cole presiding. Before that trial, to-wit: on the 23d of October, 1872, defendant filed an amended plea, stating that his original plea of set-off, and the account annexed thereto, were prepared and made up principally from memory, without access to the books of account of the plaintiffs; that defendant at the time relied upon the account exhibited by plaintiffs to their declaration, but which he alleges in said amended plea is erroneous, in this, that it charges defendant on the 8th day of August, 1865, with $25,000 00 in gold, which the plea alleges was advanced to defendant by plaintiffs, for the purchase, and in part payment of the fifteen hundred bales of the “ Jere Beall cotton,” and was paid to said Rust, factor of Beall, on said Beall purchase; that afterwards plaintiffs canceled said cotton trade with Beall, and the said $25,000 00 was paid back to plaintiffs, or one of them, by the said Rust & Beall, but was not credited to defendant by plaintiffs. He claims said sum, therefore, as a just charge in his favor against said plaintiffs, and asks judgment for said sum, and also the sum of $8,-008 56, claimed in his original pleas.</p> <p>The evidence introduced upon the issues thus found was voluminous. It is omitted, for the reason that all that is necessary to an understanding of the principles enunciated by the Court, is embodiéd in the decision. The jury found for the plaintiffs $4,977 97, with interest. The defendant moved for a new trial upon twenty-six different grounds, most of which were certified to be untrue by the presiding Judge. The only two grounds deemed necessary to be set forth were as follows:</p> <p>4th. Because the Court erred in rejecting the testimony of the defendant, that he had on hand, at the time and during his agency for plaintiffs, large sums of money belonging to other persons, and that as much as $500,000 00 passed through his hands during his purchase of cotton for plaintiffs, and that he kept it together, and was responsible to each separate party for the amount charged by each against him; that among these parties who furnished him with money were Knott & Howes, of Macon, with whom he was in partnership ; that when he, defendant, came to settle with Knott & Howes, he expected to find them largely indebted to him, but, to his astonishment, they claimed, and their books showed, that he was indebted to them; that so great was his astonishment that he insisted that there must be some mistake, and the books were examined, and two days and nights spent by witness and the clerk of Knott & Howes in ransacking the books to discover the error, but, on strict scrutiny, they were found to be correct; that he, defendant, knew he was out a large sum ot money, but never could tell where or how, till Rust’s testimony in this case, that $25,000 00 charged to him by plaintiffs, and which he, defendant, had paid to said Rust, was never paid back to defendant, but to Duffield, one of the plaintiffs; that this led him to scrutinize the account rendered by plaintiffs; to notice the charge of $25,000 00, “Beall cotton” first rendered, and then “Beall cotton” obliterated, and to put in his claim for $25,000 00.</p> <p>7th. Because the Court erred in rejecting the evidence of Salter, Coleman, Howes, Rust and others, to the effect that agents for purchase of cotton at the time Salter was so engaged, were getting two and one-half per cent, all over Southern and Southwestern Georgia.</p> <p>The motion was heard before Judge Hill, who succeeded Judge Cole, on the bench of the Macon Circuit. A new trial was ordered and plaintiffs excepted.</p>

<p>Retail license. Municipal corporations. Before Judge Andrews. Elbert Superior Court. March Term, 1873.</p> <p>Sanders & Son petitioned the Superior Court of Elbert county for a mandamus nisi to be directed to the Town Council of Elberton, requiring said body to show cause why it did not issue to petitioners a license to retail spirituous liquors during the year 1873, at their house in said town, without confining them to one room in said building, upon their complying with its laws and ordinances.</p> <p>The respondent answered substantially, as follows: The application of petitioners was for a license to retail spirituous liquors at two different places by two different persons, but all in the firm name of James A. Sanders & Son. They have heretofore been engaged in retailing as follows: James A. Sanders in the rooms fronting east, on the main street on public square, entered through a door in the east end. James O. Sanders, the other member of the firm, in the basement of the same building, fronting north, entered by two doors — one on the north, near the west end, and the other in the -west end. There was no communication between the two rooms, except through the doors, as above stated. The rooms are separate and distinct from each other, each having all the arrangements for retailing, each of the parties attending to his respective department, and each keeping a book of his daily transactions. It was the intention of the petitioners to carry on business in this way under one license.</p> <p>The ease was submitted to the Court upon the following agreed statement of facts : That the answer of respondent is true; that petitioners, after being refused a license to retail spirituous liquors in the two rooms above set forth, took a license which covered the upper room, and are now there transacting their business, but claiming the right to retail in both rooms; that the business, though proposed to be carried on in two rooms, was for the benefit of one firm ; that no ordinance had been passed, or regulation established by the respondent, confining those who obtained licenses to one room; that petitioners had been restricted to one room.</p>

<p>Will. Emancipation. Legacy. Ambiguity. Evidence. Before Judge James Johnson. Muscogee Superior Court. December Term, 1872.</p> <p>For the facts of this case, see the decision.</p> <p>1st. The clear meaning of the will is that the negroes were not to take unless they remained the slaves of the testator until his death: 2 Ch. Rep., 162; 8 Miner Ab., 311; 2 Williams’ Ex’rs, 833.</p> <p>2d. But if there is any ambiguity, parol evidence was admissible to explain it: Irw. Code, secs. 2421, 3748; Doyal et al. vs. Smith, 28 Ga., 262.</p> <p>3d. The sayings of the testator constitute good parol evidence : 1 Roper on Leg., 140; Trimmer vs. Bayne, 7 Mes., 508; Patterson et al. vs. Hickey, 32 Ga., 159.</p> <p>4th. The legacies of all the legatees who died before the testator lapsed.</p> <p>5th. The freed negroes were named, and the remainder of the money was to be “ divided into as many parts as there are freed negroes in number, and part paid to each person over eighteen years of age, and the remaining parts divided among the parents of the children in the precise proportion the several families of children bear to each other.” It is not that the shares of any of the freed negroes who might be dead were to go to the survivors: Irw. Code, sec. 2426.</p> <p>6th. The particular legacies to Marino ($2,500 00,) and to Howard, the executor, ($1,500 00,) certainly lapsed: Code, sec. 2426.</p> <p>The Court below put its decision upon two principles.</p> <p>1st. The Court committed no error in rejecting the testimony offered by the heirs-at-law, because said testimony was irrelevant, in no way tending to demonstrate or make clear the matters of fact in issue. If relevant, it would only tend to show a revocation of the will by testator: See this case in 43 Ga., 142.</p> <p>2d. The 2d and 6th assignments of error embrace the same propositions, and we will consider them together, and may be stated thus: “ That said will is void because the persons therein named as legatees are incapable of taking.” For divers reasons stated in the bill of exceptions, we consider this question settled as res adjudieata: See Redd vs. Hargroves, 40 Ga., 18; 39 Ii., '564; Greene vs. Anderson, 38 Ga., 655; New Code, sections 2432, 2420.</p> <p>The 3d, 4th and 5th grounds of error also embrace the same proposition and may be considered together, and embrace the question: “ Did any of the legacies contained in the will under the facts lapse so as to vest in or pass to the testator’s heirs-at-law?”</p> <p>1st. We say that the persons mentioned in said will as legatees took as a class, and a well settled principle of law is that the death of one of several legatees of a class does not lapse the legacy, but it goes over to the other legatees of such class: 30 Ga. 977; 1 Rop. on Legacies, 333; 1 Jarman on Wills, 304 marg. p. 296.</p> <p>2d. Defendants in error contend that the persons mentioned</p> <p>as legatees in testator’s will are also residuary legatees, and that the 4th clause of the will cleai’ly establishes this proposition, and this being true, if any legacy lapsed it fell into the residuum and passed by said 4th item of said will: 32 Ga., 624; 31 Ga., 489; 30 Ga., 976; 3 Yesey, 450; 15 lb., 416; 1 Vesey, Sr., 321; 8 Vesey, 25; 2 Roper on Legacies, 487, 498.</p> <p>3d. In construing wills, the intention of the testator is to be looked to and if the same is not contrary to law, the same is to be carried out: Greene vs. Anderson, 38 Ga., 655; Cook vs. Weaver, 12 Ga., 47; Code, 2420; Smith vs. Johnson, 21 Ga., 386.</p>

Dower. Election. Statute of limitations. Equity. Multiplicity of suits. Before Judge Rice. Gwinnett county. At Chambers. March 5th, 1873.

Life insurance. Premiums. Before Judge James Johnson. Muscogee Superior Courb. Ocbober Term, 1872. Complainant filed her bill against the defendant, in which she says: On the 20th of June, 1868, the defendant made a policy of insurance on the life of her husband, Raphael J. Moses, for the benefit of her and her children by him. Defendant is a corporation of New York, authorized to make such insurance, and has an agency in Columbus, Georgia.

<p>Witness. Partnership. Charge. Settlement. Before Judge Rice. Gwinnett Superior Court. March Term, 1873.</p> <p>Jackson Graham and Clark Howell filed their bill against Singleton G. Howell and Samuel J. Winn, as executors upon the estate of Evan Howell, deceased, making substantially the following case:</p> <p>Complainants, as owners of the land on which the western landing of “Warsaw Ferry,” on the Chattahoochee river, is situated, were partners with Evan Howell, deceased, who owned the eastern landing, by virtue of a contract between Hampton W. Howell, from whom they purchased, and the said Evan. As such partners they were entitled to share equally in the profits of said ferry'from January 1st, 1864, to December 30th, 1865, during which time said Evan received the entire proceeds, amounting to about $20,000 00, in Confederate currency, and about $2,000 00 in United States currency and gold and silver coin. The expense of maintaining and conducting said ferry, for the aforesaid period, was inconsiderable. Evan Howell, during his life, and the defendants, as his executors, since his death, have refused to account for and pay over to complainants their share of the aforesaid profits. Complainants disclaim discovery, and pray an account.</p> <p>The defendants, by their answer, assert that, during the period aforesaid, the expense of maintaining and conducting said ferry was equal to the profits. They further allege that some time after the year 1865, their testator caused to be made a statement of the earnings of said ferry, showing the amount due to complainants, and deposited the same with the amount due, in the clerk’s office of Gwinnett Superior Court, subject to the order of the complainants; that said amount was accepted and received by complainants, by which course they ratified said terms of settlement and are now estopped.</p> <p>In the course of the trial, the complainants proposed to prove by Jackson Graham (complainant) the following facts: 1st. That he was a joint owner or partner of the ferry, its franchise and its profits. 2d. His possession of the land on the west side of the river to which the ferry franchise was appurtenant. 3d. That a portion of the account sued for was in Confederate money; what contract existed between him and testator; the value of the Confederate currency. 4th. Under what contract he received the money or papers from M. L. Adair, the agent of Evan Howell, who was then in life.</p> <p>The Court excluded said witness as incompetent, and complainants excepted.</p> <p>M. L. Adair, a witness for the complainant, testified as follows : “ Some time since the war, does not recollect when, perhaps a year or two after, old man Howell, or Singleton, left with him on deposit, to be paid to Mr. Graham, some money or some papers. Don’t recollect the amount, if money. It was something about the ferry. Thinks he sent the money to Graham by his order. May have taken a receipt. If so, it was burnt up with the other papers in the Court-house. There were some papers deposited at the time the money was, but has no recollection of their contents.”</p> <p>The jury returned a verdict for the defendants. Whereupon, the complainants moved for a new trial, upon the following grounds, to-wit:</p> <p>1st. Because the Court erred in refusing to allow the complainant, Graham, to testify as to the above stated facts.</p> <p>2d. Because the Court erred in charging the jury as follows: “If a creditor agree to receive from his debtor a less sum in satisfaction of a greater, and the less sum is paid him and he accepts it, the contract is executed, and he cannot treat it as a nullity and recover the balance;” which charge was not authorized by the facts of the case, and was calculated to mislead the jury.</p>

<p>Levy and sale. Notice. Sheriff. Judicial sale. Before Judge Hill. Twiggs Superior Court. April Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Illegality. Amendment. Before Judge Steozer. Terrell Superior Court. May Term, 1873. An execution issued in favor of Wright Kennedy against Leroy Brown, David Sharp, security, and Farnum & Sharp, returnable to the May term, 1873, of Terrell Superior Court, for $800 00, principal, besides interest and cost.

<p>1. Where a deed was executed by the complainant to the defendant, a railroad company, conveying to it the right of way through the complainant’s land, without embracing any conditions or stipulations as to stock-gaps or bridges, a bill to enforce the erection of the same was properly dismissed.</p> <p>2. There being no pretence that the writing signed by the parties, either by accident, fraud or mistake, did not embrace the whole terms of the contract, the sayings or declarations of the parties to vary or enlarge the terms of the written contract, were properly excluded.</p>

<p>Landlord’s lien. Distress warrant. Purchaser. Debtor and creditor. Sales. Before D. H. Pope, Esq., Judge pro hao vice. Dougherty Superior Court. April Term, 1873.</p> <p>Richard Hobbs rented a store-house in Albany, Georgia, to Joseph L. Raine, for the year ending October 1st, 1870. On August 1st, 1870, Hobbs sued out two distress warrants against said tenant, one for $450 00, rent due, and the other for $225 00, rent not yet due. Levies were made upon a stock of goods which was claimed by William L. Davis.</p> <p>It is presumed that the two cases were tried together, though the record is silent upon this point.</p> <p>The claimant relied upon a purchase made of said stock before said distress warrants were issued. Raine was indebted to him between $1,500 00 and $2,500 00. He canceled this debt, and paid him about $250 00 surplus. Raine was insolvent at the time of the sale.</p> <p>The jury returned a verdict for the claimant. Whereupon the plaintiff moved for a new trial upon the following grounds: 1st. Because said verdict is contrary to the following charge: “If said sale was made with intent to delay and defraud, and said intent was known to the purchasing creditor, it was vbid. A bona fide transaction upon a valuable consideration, and without notice, or grounds for reasonable suspicion, is valid.”</p> <p>2d. Because the Court erred in refusing to charge as follows: “The landlord, when he rents a store, had a lien on the goods in the store for his rent as against a purchaser of those goods, from the beginning of the contract.”</p> <p>3d. Because the Court erred in charging as follows: “ The landlord’s lien begins only from the levy of the distress warrant.”</p>

<p>Where a distress warrant was sued out for rent, and a counter-affidavit was filed denying that the defendant held the premises from the plaintiff, either by lease or rent, and also that he owed the plaintiff any rent, a verdict as follows : “ We, the jury, find the issue for the plaintiff,” was sufficiently certain, and covered the issue made by the pleadings.</p>

Injunction. Homestead. Before Judge McCutchen. Catoosa county. At Chambers. August 16th, 1873. Sallie A. Evans filed her bill against Thomas Larence, W. H. Payne and James M. Edwards, sheriff of Catoosa county, making substantially the following case: Complainant is the wife of C. L. Evans, and the mother of five minor children, and as such is entitled to a homestead of realty and personalty.

Criminal law. Larceny after trust. Demand. Before Judge Hopkins. Clayton Superior Court. March Term, 1873. Snell was placed on trial for the offense of larceny after trust.

<p>The evidence as contained in the record, justifies the verdict of guilty, and this Court will not in such cases reverse the judgment of the Judge in refusing a new trial.</p>

<p>Administrators. Sale. Purchaser. Before Judge Hopkins. Fulton Superior Court. October Term, 1872.</p> <p>Sarah A. Lemon and Caroline D. Oglesby brought ejectment, with a count for mesne profits, against Charles Patterson for a lot of land in the city of Atlanta. The defendant pleaded the general issue, and further that the plaintiffs cannot, in equity and good conscience, have and maintain this action, because of the following facts: The land in controversy was the property of William Lemon, deceased, who disposed of it by will, dated November 1st, 1863. This will was admitted to probate before the Ordinary of Cobb county on March 4th, 1867, and on the same day letters of administration with the will annexed were issued to Garnett S. Oglesby. On June 3d, 1867, at a regular term of the Court, said Ordinary passed the following order:</p> <p>“GEORGIA — Cobb County:</p> <p>“ It appearing to the Court that Garnett S. Oglesby, administrator de bonis non with the will annexed, on the estate of William Lemon, deceased, has made application for leave to sell the real estate of William Lemon, deceased, he having given the notice required by law, and it further appearing that it will be to the interest and advantage of the heirs and creditors of said deceased to have the estate of said deceased sold: It is, therefore, ordered by the Court that Garnett S. Oglesby, administrator de bonis non with the will annexed on the estate of said William Lemon, deceased, be, and he is hereby authorized and empowered to sell all the real estate belonging to the estate of said William Lemon, deceased, after advertising the sale thereof as required by law.</p> <p>(Signed) “John G. Campbell, Ordinary.</p> <p>“June 3d, 1867.”</p> <p>In pursuance of said order, said administrator, after due advertisement, did, on the first Tuesday in October, 1867, proceed to sell, at public outcry, to the highest bidder, at the Court-house door, in the city of Atlanta, county of Fulton, the real estate in controversy, and William Jennings and Edward P. Smith became the purchasers. Under said order of the Court of Ordinary, all of the lands of said estate of William Lemon, deceased, in the counties of Cobb and Fulton, were sold, and the returns of the sales made to said Ordinary, amounting in the aggregate to about $3,900 00. The settlements of the administrator, as they appear of record, show that the plaintiff, Caroline D. Oglesby, received of this amount $1,967 70, jind the plaintiff, Sarah A. Lemon, received about $1,900 00. The defendant submits that the plaintiff cannot, in equity and good conscience, take from this defendant, who is a purchaser from said Jennings and Smith in' good faith, and for a fair price, the land, while they are at the same time retaining the proceeds of the sale thereof. Furthermore, defendant insists that, under the order of the Court of Ordinary aforesaid, all the real estate of said Lemon, deceased, was legally sold, and that the title thereto became vested in the purchasers thereunder, and that he is an innocent purchaser without notice of any irregularity or defect in said sale.</p> <p>The evidence made the case presented by the aforesaid plea; The will of William Lemon devised said land to his dau ghter, Sarah A. Lemon, and to his widow, Caroline D. Lemon, who afterwards married Oglesby. Pending the suit said Caroline D. Oglesby died, and the action proceeded in the name of Sarah A. Lemon alone, for the recovery of her interest. It also appeared that the defendant had placed improvements to the amount of $500 00 on the land in controversy; that he paid $300 00 for the same; and that he purchased without notice of any defect or irregularity in the sale by the administrator or in the authority to sell.</p> <p>The Court, amongst other things, charged the jury as follows : “ Under the order of the Ordinary, produced in evidence, the administrator had a right to sell in accordance with the order; and it is presumed that the Ordinary had sufficient evidence before him to make the order. But under that order a legal sale could not be made by the administrator in the county of Eulton, and if a sale was made under that order in the county of Fulton, it was void, and conveyed no title to Jennings, nor could Jennings convey the title of the heirs to Patterson by making a title from himself to the defendant, Patterson.”</p> <p>The jury returned a verdict for the plaintiff for the undivided one-half of the premises in dispute.</p> <p>The defendant moved for a new trial because of error in the aforesaid charge, and because the verdict was contrary to the law and the evidence.</p> <p>Was the Court below right in charging the jury that the sale of the land in Fulton county, under the order passed in Cobb was void and passed no title to the purchaser, and the purchaser could pass none to Patterson'? We think not. Appointment entitled the administrator to the possession of the entire estate, and may recover the same: Code, 2449 and 2450. To enable him to sell this property (real estate) he must have the order of the Ordinary: Code, 2518. This appointment then and this order are all that is necessary to enable him to pass the title. The innocent purchaser is bound only to see that the officer has competent authority to sell and that he is apparently proceeding to sell under the prescribed forms: Code, 2586. What is competent authority to sell? Appointment and order to sell: Tucker vs. Harris, 13 Georgia Reports, 1. As to jurisdiction, see Code, section 366; Peterman vs. Watkins, 19 Georgia, 153; McDaniel vs. McDaniel, decisions, July Term, 1872, page 81. The record shows this to be a pending administration. Plaintiff cannot recover pending the possession of the administrator. The right is solely in him: Code, 2449; see, also, McDade vs. Burch, 7 Ga., 559. The judgment of a Court of competent jurisdiction cannot be collaterally attacked: Code, 3535, 3532, 3776; Doe vs. Roe, 30 Ga., 961. Plaintiff cannot have the land and retain the proceeds thereof: Judge Warner, in Groover vs. King, decisions, July, 1872, page 5; Southwestern Railroad Company vs. W. W. Chapman et al., July decisions, 1872, page 66.</p> <p>cited Code, sections 2518, 2519; 4 Georgia Reports, 148; 8 Ibid., 236.</p>

Slander. Attorney. Damages. Before Judge Hopkins. Fulton Superior Court. April Term, 1873.

Husband and wile. Necessaries. Before Judge Schley. Chatham Superior Court. May Term, 1873. Henry Suiter petitioned for the writ of certiorari, making the following case: Elizabeth B. Mustin brought 'suit against petitioner for $12 50, it being the price of a¡ hat alleged to have been ordered from Mrs. Mustin by petitioner’s wife. Tfie case was heard on January 9th, 1873, before Levi S. Hart, Esq., a Notary Public and ex officio Justice of the Peace, for the third district.

<p>Garnishment. Attorney and client. Rule against officer. Before Judge Schley. Chatham Superior Court. May Term, 1872.</p> <p>The facts of this case are succinctly as follows : On January 18th, 1871, Platen recovered a judgment against one Adam Short for $1,421 29, in Chatham Superior Court. Summons of garnishment had been previously served upon Byck. At the February term, 1870, of the City Court of Savannah, Short recovered a judgment against Byck for $700 00 and costs. Subsequent to this last mentioned judgment, but prior to the first, the following agreement was entered into :</p> <p>“ Adam Short vs. Levy E. Byck.</p> <p>“ In the City Court of Savannah, February Term, 187.0.</p> <p>“The said case having come on for jury trial at the February term, 1870, and judgment having been given for plaintiff in the sum of $700 00 and costs; and it further appearing that there is now pending in the Superior Court of Chat-ham county, a suit wherein the said Charles G. Platen is plaintiff, and Adam Short defendant, and that said Levy E.Byck has been served with process of garnishment, to answer at the Superior Court what he is or may be indebted to said Adam Short, sued out by the said Platen. Now, it is mutually agreed that the said garnishment shall be as if regularly dissolved, and that the said amount of $700 00 may be paid over to the attorneys of Adam Short, to be by them held to answer the determination of the case in the Superior Court, after deducting the amount of their fees, due to them from said Short.</p> <p>“Savannah, 28th February, 1870.</p> <p>(Signed) “¥m. D. Harden,</p> <p>“ Attorney for C. G. Platen.</p> <p>“ Julian Hartridge,</p> <p>“ Hartridge & Chisholm,</p> <p>“ Mills & Tompkins,</p> <p>“ Attorneys for A. Short.”</p> <p>Byck paid over the money to Short’s attorneys on the day the above agreement was signed.</p> <p>On the 13th of May, 1872, judgment was rendered in the Superior Court of Chatham county against Byck, as garnishee, for the full amount of the judgment rendered in favor of Platen against Short, said Byck having failed to answer. On June 3d, 1872, the following order was taken :</p> <p>“ Charles G. Platen vs. Adam Short, defendant, and Levy E. Byck, garnishee.</p> <p>“ Judgment Rendered against garnishee, May 18th, 1872.</p> <p>“ It now appearing that the summons of garnishment on the above judgment mentioned, had, for a valid consideration, been withdrawn by plaintiff’s counsel, and that no answer was required thereto on the part of the said garnishee: It is hereby ordered, that the said judgment against Levy E. Byck, the said garnishee, be set aside and vacated, and that the sheriff dismiss his levy made in that behalf, and return the execution to the clerk of this Court, with the proper indorsement, at plaintiff’s cost.</p> <p>“In open Court, June 3d, 1872.</p> <p>(Signed) “William Schley,</p> <p>“Judge Superior Court, Eastern Circuit.”</p> <p>On July 10th, 1872, Platen petitioned the Court for a rule against Byck, requiring him to show cause why said order of June 3d, 1872, should not be vacated, on the ground that it was granted without notice to petitioner. The rule issued as prayed for.</p>

New trial. Bill of exceptions. Judgment. Before Judge Hopkins. Fulton Superior Court. October Term, 1872. Thomas Crawford was placed upon trial for the offense of burglary in the night time, and convicted. He moved for a new trial because the verdict was contrary to evidence and to law. The motion was overruled, and he filed his bill of exceptions.

Trespass. Landlord and tenant. Pleading. Evidence. Before Judge Hopkins. Fulton Superior Court. October Term, 1872. Trottie brought trespass against Roach for $700 00 damages.

Criminal law. Larceny. Verdict. Before Judge Hopkins. Fulton Superior Court. October Term, 1872. Taylor Jenkins was placed on trial for the offense of larceny from the house.

<p>1. When a suit was brought, May 27th, 1871, on a promissory note, due before the 1st of June, 1865, and the defendants pleaded the limitation Act of March 16, 1869; and the plaintiff replied that he had brought suit before the 1st of January, 1870, but said suit was dismissed by the Court, as appears by the minutes, thus: “ Dismissed for want of jurisdiction,” and that the present suit was within six months after the dismissal in January, 1871 :</p> <p>Held, That even if that section of the Code, allowing suits to be brought within six months after dismissal, applies to the Act of 1869, yet, as the first suit was dismissed for “ want of jurisdiction,” the plaintiff is estopped from saying said first suit was properly brought, or was, in fact, a pending suit, as the Court had no jurisdiction of it.</p> <p>2. The order of dismissal cannot be explained by parol, so as to show that the reason given forthe want of jurisdiction was a wrong reason, and that in truth the Court did have jurisdiction, and that the suit was therefore duly brought.</p>

Administrators and executors. Parties. Equity. Before Judge Bartlett. Muscogee Superior Court. May Term, 1873. Raphael J. Moses, Jr., as temporary administrator of George Anderson, filed his bill against Theodore Ewing and his wife, Elizabeth Ewing, as administrator and administratrix of William Matheson, deceased, administrator, de bonis non, of George Smith, deceased, for an account and settlement.

<p>Constitutional law. Jurisdiction. Slave debt. Judgments. Bill of exceptions. Before Judge Harrell. Clay Superior Court. September Term, 1872.</p> <p>For the facts of this case, see the opinions.</p>

<p>[This case was argued at the last term of the Court, and the decision withheld.]</p> <p>At the September term, 1869, of Lee Superior Court, an order was passed dismissing plaintiff's suit, because the consideration of the note sued on was a slave. At the November term, 1872, a motion was made to reinstate the case. The note sued on was dated January 3d, 1863, and due January 1st, 1864. As this motion was not made until nearly three years after the note sued on was barred by the statute of limitations, nor within three years from the time the order of dismissal complained of was passed ; therefore, whether under the right granted by section 3530 of the Code, the words, “ within the statute of limitations” be construed to mean three years, in analogy to the statute prescribing that period as the time within which a bill for a new trial must be brought, or to mean that period within which the plaintiff’s cause of action would be barred, this motion was not made in time, and was properly overruled. (E.)</p>

<p>1. An order of the Judge of the Superior Court, dismissing a suit pending in said Court, is not void because the reason given in the order is not a good legal reason.</p> <p>2. When a suit was dismissed by an order of the Judge, and it appears that the Judge was mistaken in the fact upon which his judgment of dismissal was based, and the plaintiff made no motion to reinstate, until the second term after the dismissal, and he shows no excuse for his delay in looking after his cause, he is too late to move to reinstate, and especially is this true if he have notice of the dismissal shortly after the order was passed.</p> <p>3. If a pending suit be dismissed by an order of the Court, and it appears that the ground mentioned in the order is untrue in fact, and a motion to reinstate shows upon its face, that though the reason given was not true, yet that there was in fact a good reason subsisting at the time why the case should have been dismissed, there is no error in refusing to reinstate.</p> <p>Warxer, C. J., dissented.</p>

Bankrupt. Attachment. Before Judge James Johnson. Muscogee Superior Court. October Term, 1872. On the 5th April, 1872, John King attached the cotton presses, castings and other property of the Empire Cotton Seed Huller and Oil Company, on the ground “that said defendant was causing its property to be removed beyond the limits of the State,” for $2,307 53.

Railroads. Venue. Charter. Freight. Contraots. Before Judge And rews. Wilkes Superior Court. May Term, 1873. Arnold & DuBose brought complaint against the Georgia Railroad and Banking Company for $2,362-50, overcharge in freight on three million one hundred and fifty thousand pounds of cotton, shipped on the cars of the defendant for a distance of seventy-five miles. The defendant pleaded the general issue and to the jurisdiction of Wilkes Superior Court.

Practice in the Superior Court. Judgment. Before Judge Twiggs. Washington Superior Court. June Adjourned Term, 1872. Sheppard brought complaint against Whitfield as the executor of Robert Whitfield, deceased, for $500 00, alleged to be due for the hire of a slave.

Criminal law. Embezzlement. State. Western and Atlantic Railroad. Indictment. Before Judge Hopkins. Fulton Superior Court. April Term, 1872.

Registry. Clerk of Superior Court. Mortgage. Before Judge Jambs Johnson. Muscogee Superior Court. October Term, 1872. At November term, 1871, of the Superior Court of Muscogee county, judgment was rendered in favor of plaintiff against J. H. Bramhall, for $150 00 principal, besides interest, protest fees and costs, on which execution issured.

Guardian and ward. Appointment. Judgment. Before Judge Buchanan. Carroll Superior Court. April Term, 1873. Susan A. Bryce, by her next friend, petitioned the Ordinary of Carroll county for the removal of Sloman Wynn, her present guardian, and for the appointment of some other suitable person selected by her, subject to the approval of said Ordinary.

Rule against officer. Attachment. Contempt. Before Judge Harvey. Haralson Superior Court. March Term, 1873. At the April term, 1860, of Haralson Superior Court, Thomas W. Dupree obtained judgment against Wilson F. Blackstock, for the principal sum of $635 91, besides interest and costs. Execution was issued May 21st,. 1860. At the October term, 1860, a rule nisi was issued against the sheriff, requiring him to show cause why he had not made the money on said execution.

<p>New trial. Auditor. Judgment. Exception. Partnership. Interest. Recoupment. Damages. Immaterial error. Before Judge Gibson. Richmond Superior Court. October Adjourned Term, 1872.</p> <p>Land filed his bill against Tutt alleging that complainant and defendant formed a copartnership in the drug business, in the city of Augusta, on July 1st, 1868, which continued until October 31st, 1870, the terms of which were reduced to writing. That complainant was to receive one-quarter of the profits and defendant three-quarters; that the defendant, at the dissolution, agreed to account with him for his share of the large profits which had been made, but had failed to do so ; that defendant is indebted to complainant about $10,000 00, and refuses to account. Prays discovery, relief, etc.</p> <p>The defendant answered substantially as follows: That he admitted the partnership as charged; that the articles are in writing and in his possession; that the profits were to be divided as alleged; that he formed said co-partnership on account of his belief in complainant’s integrity and business tact. Admits the duration of the partnership as alleged; charges that complainant left without his consent and without any notice; that by his dishonest acts and attempts to decoy custom from their house to one in the same business, in which he contemplated becoming, and did subsequently become, a partner, and by other dishonorable acts, he defeated the sole consideration of the contract; that by his sudden departure he greatly injured defendant. Alleges that complainant violated his agreement in said articles, not to draw but $2,000 00 per annum, but did draw in the two and a quarter years out of the partnership, $6,381 08. Denies that he is indebted to complainant as alleged, stating that after deducting expenses of closing up business, bad debts, etc., there would remain to complainant’s credit $1,393 95; and that, owing to said bad faith and dishonesty, he has sustained damages, which recouped leaves nothing due, but makes complainant his debtor. Answers prayer for discovery:</p> <p>1st. That the articles were in writing, accessible to'eomplainant and in defendant’s possession.</p> <p>2d. That the profits during the continuance of the business were $45,561 35, of which complainant’s share would be $11,390 35; deduct amount drawn out, leaves due him, $3,028 04; from which is to be deducted his share of the expenses of winding up the business and his proportion of the bad debts.</p> <p>In said answer defendant makes certain allegations in the nature of a cross-bill, alleging that he furnished all the capital; that the consideration moving him to take complainant into partnership was his reliance on his honesty and business tact; that this consideration failed on account of his dishonest acts — his dishonorable conduct in turning business from the house to another drug store in said city, in which he contemplated and soon after did become a partner; his misrepresentations that defendant ordered him to adulterate drugs; his outspoken assertions that he intended to “ burst up” the concern ; his dishonesty in taking goods from the store without charging them to himself, etc.</p> <p>To this answer and cross-bill complainant filed his answer, denying all acts of bad faith or dishonesty, and claiming that by his exertions the business was greatly increased; denies contemplating any other business connection while in said co-partnership, and admitting that subsequent to the dissolution, he did enter into a partnership in the same city, and the same line of business with one Barrett; claims that Tutt injured the business by his neglect, and lays his damage at $10,000 00.</p> <p>At the January term, 1872, the following order was passed: “ It appearing that there are questions of complicated account in the above cause, it is ordered, that Joseph B. Gumming be, and he hereby is, appointed auditor, to investigate the matters upon said accounts, and all matters touching the allegation in cross-bill of defendant, with power to subpoena witnesses, administer oaths and hear testimony on any disputed fact or facts, and with other powers usually and customarily conferred on masters in chancery in like cases.”</p> <p>On June 1st, 1872, the auditor filed his report in the clerk’s office. It was in substance, as follows:</p> <p>1st. That the allegations in the cross-bill, to the effect that the character of the house was injured by the bad faith of complainant, is not sustained. It appeared that some few customers were offended in the course of their business transactions with the house, but such offense was not shown to have been fairly attributable to complainant, or if attributable to his bad conduct, such conduct did not appear to have been conceived either in bad faith to his copartner or to his customers, but in zeal for the common business.</p> <p>2d. The allegation that during the continuance of the partnership the complainant conceived the idea of going into business with another party, and commenced decoying patronage from the house, is unsustained by the evidence.</p> <p>3d. The charge that complainant, in pursuance of a scheme to divert business from the house, made improper charges for articles, false representations of the char-acter of the drugs, and malignant insinuations that defendant had ordered the adulteration of the drugs, is wholly unsustained by any evidence, except so far as it is shown that a higher price than usual was charged for a quantity of quinine, but this does not appear to have been done by complainant in any bad faith to his copartner, and is reasonably explained.</p> <p>4th. As to the allegation that complainant took money and articles from the store without accounting for them, evidence was adduced that there were irregularities in the cash, and that circumstances of suspicion pointed to the complainant as the person producing these irregularities, and that he, as well as other persons, was suspected. The amount of cash abstracted, if any, is nowhere ascertained. There is an entire lack of any such certainty, both as to the amount taken (if any) and the taker, as would enable an offset to be established. There is no evidence going to show that articles other than cash were taken.</p> <p>5th. As to the allegation that by these means the business was injured to the extent of $10,000 00, the auditor reports that the evidence fails to show any damage accruing from the conduct of complainant.</p> <p>This disposes of the charges contained in the cross-bill. As to the issues formed by the bill and answer, the auditor reports, in substance, as follows :</p> <p>1st. The deduction of ten per cent, on account of depreciation of merchandise, to be taken from the profits, as claimed by defendant, is not allowed. This item is $4,098 17.</p> <p>2d. The deduction from value of fixtures, on account of depreciation, to be taken from the profits, as claimed by defendant, is not allowed. This item is $2,170 99.</p> <p>3d. The auditor finds that no interest is chargeable against complainant on account of .capital put into the business by the defendant, and disallows the deduction claimed from the profits on that account. This item is $1,489 48.</p> <p>4th. The auditor disallows the deduction from the profits, claimed by the defendant, on account of the keep of a house which had belonged to the partnership, from November 5th, 1870, to March, 1871, for the reason that the house was turned over in November, with the other assets of the firm, to the defendant, and became, from that time, his property. This item is $85 87.</p> <p>5th. The auditor allows the deduction from the profits of the amount paid the book-keeper, Connor, for extra services in winding up the partnership accounts. This item appears to have been paid to him by the defendant, in good faith, for such services. It amounts to $700 00.</p> <p>6th. With these allowances and disallowances the auditor finds that there is due from defendant to complainant, for his one-fourth share of the profits for the twelve months ending June 30th, 1869, the sum of $5,974 51. For his one-fourth share of the profits for the twelve months ending June 30th, 1870, the sum of $5,522 96. For his one-fourth share of the profits for the four months ending October 31st, 1870, $192 61. From the total of these sums is to be deducted the aggregate amount drawn out by defendant for the support of himself and family, to-wit: $6,567 09. This sum is increased by interest on $231 00 from July 1st, 1869, to date of dissolution, and on $986 08 from July 1st, 1870, to date of dissolution. This interest is charged on the excess over $2,000 00 per annum, which complainant drew out of the business, he being limited to that amount. The amount drawn out of the business by complainant is, therefore, principal, $6,567 09, interest, $38 97, total $6,606 06. This sum taken from $11,690-08, the amount of complainant’s share of the profits, leaves due to him the sum of $5,084 02.</p> <p>This sum, with interest from the date of dissolution, is, in the opinion of the auditor, the indebtedness of defendant to complainant. A portion of the profits is represented by dioses in action, to-wit: about $3,500 00, and the auditor finds that complainant should take in part discharge of his claim, one-fourth of these dioses in action, fairly selected.</p> <p>The auditor further reported that the solicitors for defenant had presented a protest against the powers exercised by him, in going into the hearing of the case upon the allegations made in the pleadings, which protest was overruled and filed with the report.</p> <p>Said report was excepted to, in substance, as follows:</p> <p>1st. Because the Court had no authority to appoint an auditor and to confer on him such powers as the auditor exercised in this case, without the consent of the parties.</p> <p>2d. Because the auditor erred in overruling the protest referred to in the report.</p> <p>3d. Because the auditor reports that all the allegations in the cross-bill are unsustained, when he had no authority to pass on such questions; and further, because the evidence, when before the Court, will sustain every allegation.</p> <p>4th. Because the auditor disallowed the ten per cent, on account of depreciation of stock, which per cent, the defendant claimed had been the amount of depreciation in the stock and should be deducted from the profits.</p> <p>5th. The auditor further erred in stating the amount of that item to be $2,170 99; it should have been about double that amount, to which disallowance and erroneous calculation defendant as aforesaid excepts.</p> <p>6th. Because the auditor disallowed interest on the capital put into the business by defendant, and assumed in his report that the articles of copartnership- justified this disallowance j whereas, it is respectfully submitted that this part of the report is clearly based upon a misapprehension of both the spirit and the letter of the contract of partnership.</p> <p>7th. Because the auditor, after considering the allowance and disallowance mentioned by him, reports a balance due of $5,084 02, from defendant to complainant, which finding and report is hereby excepted to as erroneous, for reasons heretofore stated, and for further reason that it seems to leave out of the calculation the $700 00 paid for extra services to Conner, the book-keeper, which the report elsewhere admits should be allowed to defendant.</p> <p>The Court overruled the exceptions so far as to allow the report to be read to thd* jury. The trial then proceeded upon the issues formed by the report and the exceptions. The evidence introduced was voluminous, but is unnecessary to an understanding of the decision. The articles of copartnership under which the complainant and defendant did business, were, in substance, as follows:</p> <p>1st. Form partnership in the firm name of “ William H. Tutt and Land.”</p> <p>2d. Tutt contributes $29,815 00 in stock.</p> <p>3d. Land devotes time, labor and skill to business.</p> <p>4th. Profits shall be divided as follows: three-fourths to Tutt and one-fourth to Land.</p> <p>5th. Profits shall only be reckoned after deducting all expenses of the business, among which is included the sum of $2,500 00 per year to be paid to Tutt for rent of store.</p> <p>6th. Gives power to Tutt to terminate business connection at any time by giving thirty days notice to Land, and upon settling with him upon the basis above set forth.</p> <p>7th. Provides for keeping books.</p> <p>8th. Provides that if the business requires an increase of capital at any time, and the same should be supplied by Tutt, the firm shall pay hipa therefor the same interest, commissions and charges as the banks of the city of Augusta ask and obtain for like accommodation.</p> <p>9th. Prohibits either member from indorsing or becoming surety during continuance of firm.</p> <p>10th. Prohibits Land from drawing from the assets a larger sum than $2,000 00 per annum, or a proportionate amount thereof for a less term than a year. Any surplus that may be due him as a part of his one-fourth interest in the profits, to remain in the business as capital until the dissolution.</p> <p>The evidence showed that at the expiration of the first year’s operations, defendant left in the business, of his share of the profits, $19,817 98. This was done without any notice to, or agreement with complainant, that the capital was to be thus increased.</p> <p>The jury returned the following verdict: “We, the jury find that no interest is due to respondent upon the capital stock paid in by him, or upon any advances made during the partnership, nor any damages to be deducted from the amount of profits due complainant. We find the amount due complainant to be $5,084 00, less $275 00, his proportionate share of the auditor’s fee and the amount paid to Connor; $822 00 of said remaining balance due, to be paid in notes and accounts due said firm of Tutt & Land, the same to be selected oii the plan designated by the auditor, and by said auditor, and if refused by respondent to be thus distributed in ten days, then to be paid by him in greenbacks; that is to say, we find for complainant $4,809 00, $822 00 to be paid as above specified in notes and accounts to be selected by the auditor within ten days, or greenbacks.”</p> <p>The defendant moved for a new trial upon the following grounds:</p> <p>1st. Because the verdict is contrary to the evidence and the law.</p> <p>2d. Because the verdict is decidedly and strongly against the weight of the evidence.</p> <p>3d. Because the Court erred in refusing to hear counsel for defendant: 1st. Upon his protest against the auditor’s exercising the functions and powers conferred upon him by the order of Court appointing him. 2d. Upon the exceptions filed to the auditor’s report after it was made and returned into Court, the Court not only refusing to hear argument against the admissibility of the auditor’s report, but also ordering it read as a part of the pleadings in the case to the jury, then adjourning the Court over until next morning.</p> <p>4th. Because the Court erred next morning in refusing, upon the opening of the Court, to hear argument either upon said protest or exceptions, and in saying that he would submit the following points arising from that report to the jury, to-wit:</p> <p>The questions to be submitted to the jury — •</p> <p>First. Did the respondent sustain damage by the conduct and management by complainant of the business of Tutt & Land, and how much ?</p> <p>Second. Should ten per cent, be allowed for depreciation of the value of the stock on hand? If so, what sums? Also consider the allowance asked for depreciation of furniture.</p> <p>Third. Should interest be allowed on the cash furnished to said business by respondent ?</p> <p>Fourth. Is $5,084 00 the balance due complainant from respondent, after a full and fair accounting, or is he indebted to respondent ?</p> <p>It is respectfully submitted that this was error for the following reasons : 1st. Because it left the auditor’s report before the jury with all the weight of the high character of the auditor in support of it; and that report passed upon every question of the case, whether of law or evidence — a power which, as auditor, he could not exercise, even under the order of the Court, because the Court had no power to grant such an order. 2d. Because it limited the jury to four stated exceptions or questions, so presented by the Court, and denied to the defendant the right to have all his exceptions passed upon by the Court and jury seriatim.</p> <p>5th. Because the Court erred in refusing to hear counsel for defendant who proposed to show that the order of the Court appointing the auditor, was illegal and invalid for want of rightful authority, as well as the action of the auditor under and by virtue of it — and in sending the auditor’s report before the jury, first as pleadings and then as evidence.</p> <p>6th. Because the Court erred in the following remark: When defendant’s counsel asked of one of his witnesses, to-wit: George D. Connor, if he ever heard Land express any desire in regard to what Dr. Tutt should do with his share of the profits of the business — the witness answered yes, that he had heard Land say he wished the doctor (Tutt) would draw out his profits. Whereupon the opposite counsel moved to strike out the whole testimony, which had been before admitted to show that Land knew and acquiesced in the fact that Tutt’s share of the profils had been and were being added constantly, as new capital in the concern. The Court refused the motion to strike out, but in so doing remarked, “I’ll not rule out the testimony, but the question of defendant’s counsel was an unfortunate one.”</p> <p>7th. Because the verdict was contrary to the charge of the Court in this, that the Court charged the jury as follows : “The jury must find against that part of the report of the auditor which disallows interest on the new capital, if, from the evidence, it appears that the profits, or any part thereof, due Dr. Tutt, were used in the business of the partnership, and on this part they must find interest.”</p> <p>The evidence showed abundantly and beyond dispute, that the profits accruing to Tutt, which were quite large, were put into the business, and the contract of partnership showed that interest was to be paid thereon.</p> <p>8th. Because the Court erred in refusing to give the fifth request to charge of defendant, which was duly submitted in writing: “ If the j ury believe, from the evidence, that the plaintiff has failed to comply with the obligations arising under the same contract, then they must estimate and allow the defendant to recoup the damage he has sustained thereby; and in estimating the damages, they are not bound to find only the amount actually discovered and shown by the defendant, but maj’- exercise their own discretion and find such damages as they may reasonably consider, from the light of the evidence, has resulted from the neglect or fraud of the plaintiff.”</p> <p>9th. Because the verdict is contrary to the charge of the Court, in this, that the Court charged the jury as follows: “If you find there was a depreciation of the stock proven, the Court charges you that this is a proper charge upon the' copartnership assets, before net profits can be declared, and this is also true of the depreciation of the fixtures, if you find such depreciation to exist.”</p> <p>10th. Because, before this, and during the progress of the trial, the Court erred in instructing the jury, “that, although the articles of copartnership provided interest on the new capital, at bank rates, which were shown to be nineteen, per cent, in Augusta, yet they could allow but seven per cent.”</p>

<p>1. Where a railroad train was stopped at a station, but somewhat away from its usual place of stopping at that station, and where there was not good ground for getting oíf, and a passenger, thinking the train would be moved up to the usual place, failed to get off, as he had intended, and after the train had left the station and was fairly on its way to its next stopping place, the passenger himself seized the bell-rope, rang the engine bell, and took his position on the lower step of the platform to get otf, and the engineer having answered the bell, as the cars were coming to a stop, but before they were stopped, the passenger, deeming the motion slow enough for safety, undertook to step off, but just as he was stepping he was, by a sudden jerk of the cars, thrown down, and his arm crushed by one of the wheels of the car passing over it:</p> <p>Held, That the conduct of the passenger in himself ringing the bell, taking his position on the step, and undertaking to step off whilst the cars were still in motion, was a want of ordinary care, and showed gross negligence on the part of such passenger.</p> <p>2. It was error in the Court, under the facts, to charge the jury in effect, that the road would be liable, if, at the time of his attempting to step off, the cars were moving so slowly as that he thought it was safe then to step off.</p>

Counsel for plaintiff in error insisted that the acknowledgment of service cured the defect suggested. The acknowledgment was as follows:

New trial. Equity. Specific performance. Witness. Before Judge Hall. Newton Superior Court. March Term, 1873.

<p>“ Attorney for defendant.’</p>

Equity. Claim. Ejectment. Receiver. Judgment. Levy and sale. Execution. Before Judge Buchanan. Upson county. At Chambers. August 1st, 1873.

<p>1. The discretion vested in commissioners appointed for the purpose of changing the location of the county site, where they are authorized to act as they might deem best for the interest of the county, will not be interfered with unless abused.</p> <p>2. Where an Act was passed by the Legislature in the year 1872, “ for the removal of the county site of Lee county, to compensate the owners of real estate at Starksville, and for other purposes,” the body of which was in accordance with its title, and in 1873 a second Act was passed, the title to which was as follows : “An Act to amend an Act to authorize the Ordinary of Butts county to issue bonds to raise money to build a Court-house, and to authorize the commissioners to remove the county site of Lee county, to issue bonds of said county to build a Court-house and jail at the new county site of said county of Lee, and for other purposes:”</p> <p>Held, That the two Acts in relation to the county of Lee should be construed together as one Act; and thus construed, the removal of the county site of Lee county, and the provision for the payment of the cost of such removal, incident to the erection of the public buildings at the new site, cannot be said to be more than one subject matter as contemplated by the Constitution.</p>

<p>Judgment. Illegality. Bill of exceptions. Record. Lost papers. Before Judge Buchanan. Coweta Superior Court-March Term, 1873.</p> <p>On September 6th, 1860, John M. Thomas obtained a judgment in Coweta Superior Court against Solomon T. Bridges, and Soloman T. Bridges, as administrator of John T. McKoy, principals, and George H. Page, security, for $3,903 21, with $463 72 interest to the date of judgment.</p> <p>On April 15th, 1872, an execution issued from said judgment. The defendants made payments on said execution, as follows : On January 24th, 1867, $1,500 00; on March 12th, 1869, $2,000 00. On said last day, Thomas, in consideration of the amount then paid, and by way of compromise, entered an additional credit thei’eon of $2,710 00, leaving due only $500 00. There was no official entry on said execution from the day on which it was issued until April 5th, 1871, when the sheriff entered a levy upon the land of Solo-man T. Bridges. Bridges interposed an affidavit to the*effect that he desired to avail himself of the benefits of the Eelief Act of 1868.</p> <p>On March 28th, 1872, during the March adjourned term of Coweta Superior Court, the question was submitted to the Court as to whether the judgment upon which said execution was based was dormant. The Court held the judgment dormant, and directed the levy dismissed.</p> <p>On the succeeding day, (March 29th, 1872,) M. L. Thomas, the administrator of said John M. Thomas, he having in the meantime died, instituted proceedings by scire facias to revive said judgment. Subsequent to this, but within thirty days from the adjournment of said term of the Court, said M. L. Thomas, administrator, presented to the presiding Judge his bill of exceptions to the aforesaid ruling. He certified to the same, and the case was carried to the Supreme Court.</p> <p>On August 15th, 1872, the plaintiff in error withdrew the bill of exceptions. At the succeeding March term of Coweta Superior Court the issue upon the scire facias came on to be heard.</p> <p>The defendants pleaded that the judgment could not be revived for the following reasons:</p> <p>1st. Because said proceedings by soiréfacias were not commenced in time.</p> <p>2d. Because two suits were pending at the same time, and the scire facias having been commenced last should be dismissed.</p> <p>A. I). Freeman, the attorney for the plaintiff in execution, testified, that he and the clerk of said Court had made diligent search among the old writs to find the judgment sought to be revived, but had failed ; that neither was it to be found upon the record of writs.</p> <p>John M. Mann, the clerk of the Superior Court who issued the execution, testified, that according to the best of his recollection, he had the judgment before him at the time he made out said fi.fa.; that he never issued an execution except from the judgment; that John M. Thomas brought the declaration to him, and he issued thefi. fa. from the judgment entered thereon.</p> <p>The minutes of September term, 1860, of Coweta Superior Court were then introduced, showing the verdict upon which said judgment was based.</p> <p>The original execution, with the entries thereon, was also introduced, and plaintiff closed.</p> <p>The defendants relied upon the documentary evidence introduced by the plaintiff, and also an admission by the plaintiff as to the truth of the facts hereinbefore recited, as to the writ of error to the Supreme Court, etc.</p> <p>The Court charged the jury, amongst other things, in substance, as follows : That the levying of the execution, and it being arrested by an affidavit of illegality under the Relief Act of 1868, was not such a proceeding as, together with the scire facias to revive the judgment upon which said execution was based, would constitute two suits pending at the same time for the same cause of action ; that scire facias to revive a judgment is noL an original action, but the continuation of the suit in which the judgment was obtained.</p> <p>The jury returned a verdict in favor of the plaintiff, and judgment was rendered accordingly. The defendants moved for a new trial,, because said verdict was contrary to the evidence, and because of error in the aforesaid charge.</p>

Administrators and executors. Statute of limitations. Before Judge Cole. Bibb Superior Court. October Term, 1872. The Moravian Seminary for Young Ladies at Bethlehem, Pennsylvania, brought complaint against William H. Atwood and Albert G. Butts, administrators of James R. Butts, deceased, on the following account: Bethlehem, Pa., December 20, 1869.

Municipal corporations. Bonds. Taxes. Penalty. Before Judge Gibson. Richmond County. At Chambers. June 4th, 1873. The City Council of Augusta, by its tax ordinance for the year 1873, levied an ad valorem tax of one and one-third per cent, on all taxable property in said city, including in the list of said taxable property all railroad, municipal, or other bonds, (city of Augusta bonds excepted,) solvent notes and accounts, money loaned at interest, and all evidences of debt.

Equity. Mistake. Verdict. Witness. Interrogatories. New trial. Before Judge Hopkins. Fulton Superior Court. October Term, 1871. Edwin Payne filed his bill against Benjamin V. Willing-ham and Charles H. Elyea, making substantially the following case: Complainant had previously been the owner of a lot of land in the city of Atlanta, containing four and one-third acres, more or less.

Insurance. Notice. Before Judge Bartlett. Greene Superior Court. March Term, 1873.

Process. Service. Amendment. Before Judge Gibson» Richmond Superior Court. October Term, 1872. On December 29th, 1869, Branch commenced suit against the Mechanics’ Bank for $50,000 00, besides interest, on its bills. On the same day process was attached in the usual form.

Municipal corporations. Tax. Levy. Description. Advertisement. Before Judge Clark. Sumter County. At Chambers. May 10th, 1873. William A. Wilson, as trustee for his wife and seven minor children, filed his bill against Joseph A. Ansley, N..

<p>1. When a promissory note is made in Sonth Carolina, payable on its-face at Charleston, to a citizen of South Carolina, it is a South Carolina contract, notwithstanding the maker lives in Georgia, and not., ■withstanding, at the time of the making of the note, the maker also executes a mortgage to secure it on goods situated in Georgia, the residence of the mortgagor.</p> <p>2. A mortgage is not illegally foreclosed because the affidavit of the mortgagee for foreclosure is made before a Notary Public who is also an employee in the office of the attorney at law, employed by the mortgagee to foreclose the same.</p> <p>3. A mortgage upon a stock of goods then on hand, and upon the additional purchases as they should be made, is a good lien under our law to the amount of the goods on hand at the time, and is good upon future purchases, to that extent, even if those purchases be unpaid for, except as against any legal liens or title that may be against the goods in the hands of a third person.</p> <p>4. There is no error in the judgment in its finding upon the facts.</p>

Non-suit. Evidence. Before Judge Gould. City Court of Augusta. February Term, 1873. The Augusta Amateur Musical Club brought complaint against the Cotton States’ Mechanics’ and Agricultural Fair Association on an account for $450 00, with a credit thereon of $150 00, for services rendered in playing at the fair grounds, and at the tournament ball, during the fair week commencing October 25th, 1870, and ending October 29th, 1870.

<p>Coniederate States. Impressment. Constitutional law. Trover. Damages. Interest. Verdict. Before Judge Schley. Chatham Superior Court. May Term, 1872.</p> <p>For the facts of this case, see the opinion.</p>

<p>1. A Court of equity will not entertain a bill in the name of one or more private citizens to restrain the obstruction of a public street, no private injury or threatened injury being alleged to such citizens or to their property. In such a case, the nuisance being purely a public one, can only be restrained by the public, on information filed by a public officer, to-wit: by the Solicitor General for the Circuit.</p> <p>2. Nor is it sufficient that one of the parties is a lot owner on the street, no specific injury to said property being alleged, but only a general allegation that damage will result to said lot.</p> <p>3. A railroad company was chartered, with the privilege of running its road from such point within the limits of the city of Savannah as the Mayor and Council of the city should designate, and from thence to the sea coast, by certain cemeteries outside of the city, but used by the citizens for the burial of their dead. The Mayor and Council fixed the initial point considerably within the city, and passed an ordinance permitting the company to lay down its track from such initial point through certain streets and squares on the route from such point by said cemeteries in the direction prescribed by the charter, and to run horse cars thereupon:</p> <p>Held, That such permission was within the authority of the Mayor and Council over the streets and squares of the city, and under its charter the company might, with such authority, so use the streets, not obstructing them permanently by excavations or embankments, and leaving them conveniently passable, except by the passage of the cars. Under such limitations no public nuisance will be created, and no grounds for an injunction by the public exist.</p>

<p>Id accordance with the opinion of a majority of this Court, in the cases known as the “tax cases,” at the last term of this Court, the judgment of the Court below is reversed, on the ground that the Act of October 13th, 1870, is in violation of Article I., section 10, paragraph 1, of the Constitution of the United States.</p>

Railroads. Contracts. Negligence. Before E. M. Dodson, Esq., Judge pro hacvice. Catoosa Superior Court. February Terra, 1873. Bishop brought case against the Western and Atlantic Railroad Company for $20,000 00 damages, alleged to have been sustained from injuries inflicted upon him, when in the discharge of his duties as a train hand, resulting from the defective machinery used upon the road of said defendant for the purpose of coupling cars.

Equity. Mistake. Mesne profits. Witness. Admissions. New trial. Before Judge Hopkins. Eulton Superior Court. April Term, 1873.

<p>1. Where it appears from the minutes of the Superior Court of Chatham county, that on the 7th of July said Court was in legal session, Judge Schley presiding; that said Judge adjourned the Court until ten o’clock the next morning; that he had arranged with Judge Harris, of the Brunswick Circuit, then to hold the Court; that Judge Harris telegraphed, on the 8th day of July, from Augusta, that he was providen-' tially detained; that the clerk adjourned the Court from day to day until the 11th of July; that, in the meantime, to-wit: on the 8th of July, Judge Schley ordered that if Judge Harris did not come by the 10th, the clerk should adjourn the Court until the 14th of July, which was accordingly done; that the Court convened on the 14th, Judge Schley presiding, and had been in session ever since:</p> <p>Held, That the session was legal. (B.)</p> <p>2. A prisoner may be sentenced for the offense of murder, under section 4574 of the Revised Code, in vacation. (R.)</p>

<p>(Signed) “L. P. D. Warren,</p> <p>"Attorney for J. W. Lathrop & Company.”</p>

(Signed) “ Cook & Crisp, Defendant’s attorneys.” Counsel for plaintiffs in error proposed to show by his own affidavit, that the date of the acknowledgment of service was a mistake; that such acknowledgment was, in fact, given subsequent to the certificate of the Judge. This the Court refused to permit. He then insisted that if the service was defective, it was cured by the terms of the acknowledgment.

<p>County matters. Inferior Court. Corporations. Railroads. Indorsement. Before Judge McCutchbn. Floyd Superior Court. July Adjourned Term, 1872.</p> <p>Alfred Shorter petitioned the Judge of the Superior Court of the county of Floyd for the writ of mandamus, to be directed to the Commissioners of Roads and Revenue for said county, alleging as follows:</p> <p>He represents to the Court that he is the owner, in his own right, of five bonds of the county of Floyd, issued on the 10th day of September, 1860, numbered from eleven to fifteen, inclusive, each for the sum of $ 1,000 00, due on the 1st of July, 1870, commonly called coupon bonds; and, as executor of Elizabeth Cooley, he holds one other bond of said county for the same amount, numbered twenty-three, issued on December 31, 1860, and due January 1, 1871. Each of the said six bonds is as follows, except as to dates and number.:</p> <p>“$1,000 00. No....... Rome, Georgia,......, 1860.</p> <p>“On the ...... day of.........187..., the county of Floyd promises to pay to Alfred Shorter, President Georgia and Alabama Railroad Company, or order, at the Importers’ and Traders’ Bank, New York City, the sum of one thousand dollars, with seven per cent, interest thereon, from this date, payable at the same place, on the first day of January next, and semi-annually thereafter, on surrender of the annexed corresponding coupons.</p> <p>“And it it is hereby contracted with the holder of this bond that ten shares, of one hundred dollars each, of the stock of the county of Floyd in the Georgia and Alabama Railroad Company shall stand pledged as collateral security for the payment of this bond. And it is hereby stipulated that no transfer will be made of said stock without the consent of the bondholders, or the redemption of an amount of the bonds thus secured equal to the amount of stock thus transferred.</p> <p>“Done by virtue of an Act of the General Assembly of the State of Georgia, passed December 22, 1857.</p> <p>“ John R. Towers, j. i. c.,</p> <p>“ Charles Id. Smith, j. i. c.,</p> <p>“ Samuel Mobley, j. i. c.”</p> <p>The bond of the Cooley estate is payable at the “ Branch Bank of the State of Georgia at Augusta, Georgia.”</p> <p>Each of the bonds has written on the back of it the words^ “Alfred Shorter, President of the Georgia and Alabama Railroad Company.”</p> <p>Attached to them, when issued, were twenty coupons, numbered from one to twenty, consecutively, and falling due successively on each 1st of January and 1st of July during the ten years to the maturity of the bond. Each coupon is as follows, except as to number and time when due:</p> <p>“ $35 00. No..........</p> <p>“Warrant for thirty-five dollars due by the county of Floyd on the 1st day of.............,18..., for six months’ interest on bond No........</p> <p>“ John R. Towers, j. i. c.,</p> <p>“ Charles H. Smith, j. i. c.,</p> <p>“Samuel Mobley, j. i. c.”</p> <p>The petition states that the first five coupons of each of the bonds of Shorter, and the first four of the bond of the Cooley estate, have been paid. The balance are unpaid.</p> <p>Said bonds and coupons have come to the holder in usual course of trade, and for a valuable consideration. They were issued in payment of a subscription by the county of Floyd to the stock of the Georgia and Alabama Railroad Company. The issue of said bonds was authorized by an Act of the General Assembly, which is as follows:</p> <p> “An Act to authorize the county of Floyd to aid in constructing the Georgia and Alabama Railroad,, by the subscription for stock and the issue of bonds therefor, upon a vote of the citizens of said county. </p> <p>“Section I. Beit enacted, That the county of Floyd shall be a corporation, with all the necessary powers, for the purposes of this Net, and shall be represented in its corporate capacity by the Inferior Court of said county.</p> <p>“Sec. II. Be it fw'ther enacted, That on the first Monday in February, 1858, or at any time thereafter which shall be determined, ordered and published by the Inferior Court, giving at least thirty days’ notice thereof, the legal voters of Floyd county shall assemble at the Court-house and the election precincts in said county, and vote “county subscription,” or “no county subscription.” The election shall be held and conducted in the same manner as elections are required to be held for county officers, and the returns shall be made to the Justices of the Inferior Court, who shall consolidate the returns and enter the result upon the minutes of Court, and if a majority of the votes so cast shall have been for “ county subscription,” then the Inferior Court shall subscribe not less than $50,000 00 nor more than $100,000 00 to the capital stock of the Georgia and Nlabama Railroad Company, and shall issue bonds of Floyd county therefor to said railroad company in payment for said stockj at par value, in amounts not exceeding $1,000 00 each, payable not ex-* ceeding tea years from date, bearing interest at seven per cent, per annum, and said interest payable semi-annually, at such place or places as the said Inferior Court shall determine.</p> <p>“Sec. III. Be it further enacted, That the capital stock so subscribed by the county of Floyd, and the resources ai’ising from the county tax shall be pledged for the redemption of the said bonds, and said stock shall not be used for any other purpose, and all dividends arising from said stock shall be appropriated to the payment of said bonds.</p> <p>Skc. IV. Be it further enacted, That the Inferior Court of Floyd county shall assess and collect a county tax of such per cent, upon the State tax as shall be sufficient to pay the interest semi-annually due, and to protect the credit of the county, and should it be necessary, after applying the stock so subscribed to the redemption of the bonds, to raise any amount for a balance due, the said Court may order and assess such tax as may be necessary to fully redeem said bonds and the unpaid interest due thereon.</p> <p>“Assented to December 22d, 1857.”</p> <p>The petition then states that an election was held in pursuance of said Act, and resulted in favor of the subscription, and that the Inferior Court did make the subscription on the ....................., and afterwards issued the bonds aforesaid, and others in part payment thereof.</p> <p>The interest due has been demanded “'of the county of Floyd,” and payment refused, and the Commissioners of Roads and Revenue refuse to levy a tax to pay the said coupons due and to become due. He, therefore, prays'for mandamus, etc.</p> <p>Mandamus nisi granted at Chambers, December 15,1869, by F. A. Kirby, Judge, etc.</p> <p>The Commissioners of Roads and Revenue answered as follows:</p> <p>1st. That all the coupons which had matured more than twelve months before their presentation for payment, were barred by limitation.</p> <p>2d. That the records and minutes of the Inferior Court nowhere show that said Court ever authorized or directed any subscription to the stock of the Georgia and Alabama Railroad Company; nor do they anywhere show that said Court ever authorized or directed the issue of bonds in payment for such stock.</p> <p>3d. Respondents are informed, and believe it to be true, that the bonds'and coupons referred to in the petition were signed by those whose names appear thereto, at different times and places, and when no three of them were together, and at times and places when the Inferior Court was not in session.</p> <p>4th. The minutes and records of the Inferior Court do not show that any person was ever authorized to subscribe for stock, or to sign bonds or coupons for the purposes designated, nor that the Court itself ever did either of these things.</p> <p>5th. Respondents are advised that the issue of said bonds and coupons was illegal, and that the county is not liable to pay the same.</p> <p>Issue having been joined on the answer, evidence was introduced by the relator as follows:</p> <p>First, the six bonds, with the coupons attached, as heretofore copied and set forth in the petition. Next, the following certified abstract from the minutes of the Inferior Court:</p> <p>“October 19, 1859.</p> <p>“Inferior Court of Floyd county, in session for a special county purpose.</p> <p>“ Ordered by the Court that we deem it for the interest of the county of Floyd that a railroad be built from the city of Rome in the direction of Dalton and Gadsden, under the charter organizing the Georgia and Alabama Railroad Company. We, therefore, in compliance with and by authority of the Act of December, 1857, do hereby order and determine that an election shall be held at the Court-house and election precincts in the county, on the 22d day of November next, and the vote to be taken by ballot, 'county subscription’ or ‘ no county subscription,’ and that notice of said election be advertised in the Southerner, in compliance with and according to said Act.</p> <p>“ Charles H. Smith, j. i. c.,</p> <p>“ J. R. Towers, j. i. c.,</p> <p>“ Samuel Mobley, j. i. c.”</p> <p>“ GEORGIA — Floyd County :</p> <p>“ We, the undersigned, do certify that we have consolidated the returns as made to us by the managers of an election held on the 22d day of November, 1859, by virtue of an Act of the Legislature, passed the 22d December, 1857, to determine by vote whether or not the Inferior Court of said county should subscribe for stock in the Georgia and Alabama Railroad, and we have counted, compared and added together the votes polled. Upon a consolidation, we find that there was polled for ‘county subscription/ (735) seven hundred and thirty-five votes; and ‘against county subscription/ (321) three hundred and twenty-one votes. The whole vote polled was one thousand and fifty-six: ‘county subscription/ seven hundred and thirty-five; ‘no county subscription/ three hundred and twenty-one; majority for ‘county subscription/ four hundred and fourteen.</p> <p>“ Given under our hands and seals, this November 23,1859.</p> <p>“ Charles H. Smith, ir. i. c.,</p> <p>“ L. D. Burwell, j. i. c.,</p> <p>“Samuel Mobley, j. i. c.,</p> <p>“ J. R. Towers, j. i. a.”</p> <p>“Floyd County — To Southerner and Advertiser office:</p> <p>“ To advertising call by Inferior Court for an election to determine whether county shall indorse bonds of Georgia and Alabama Railroad Company, $>5 00.</p> <p>“ Ordered that the within account be paid out of any money that may be in the treasury.</p> <p>“ J. R. Towers, j. i. c.,</p> <p>“William McCullough, j. i. c.,</p> <p>“Lewis D. Burwell, j. i. c.”</p> <p>“Rome, Georgia.</p> <p>“At the regular meeting of the Court, it was agreed that Judge T. McGuire has been chosen by the Court to represent the county stock, as a director, in the Rome and • Alabama Railroad Company, and we instruct our director to cast the vote of the Court for such men as directors as shall be agreed to by a majority of the Court.</p> <p>“ William McCullouch, j. i. c.,</p> <p>“ Thomas J. Davis, j. i. c.,</p> <p>“ W. T. Newman, j. i. c.</p> <p>“May 13th, 1861.”</p> <p>“Tuesday, February, 1867.</p> <p>“ Honorable Inferior Court for county purposes met pursuant to adjournment. Present, their Honors C. K. Ayer, J. King, J. E. Veal and D. M. Hood, Justices presiding.</p> <p>“ Ordered by the Court, that D. M. Hood be authorized by the Court to inquire into the indebtedness of the county to the Georgia and Alabama Railroad, whether the Selma, Rome and Dalton Railroad Company assumes the payment of said indebtedness and relieves the county from the payment of the same, and that he associate with him Daniel S. Printup and Charles H. Smith.”</p> <p>“Floyd County, to Wright & Broyles, Dr. 1866.</p> <p>“To investigating and giving opinion at the request of the Justices of the Inferior Court, as to the liabilities of the said county on certain railroad bonds, heretofore issued by said Court on subscriptions made to the Dalton and Alabama Railroad, $50 00.</p> <p>“ Ordered by the Court that the county treasurer pay Wright & Broyles $50 00 out of general funds.</p> <p>“D. M. Hood, j. i. c.,</p> <p>“John M. Gregory, j. i. c.,</p> <p>“Joseph E. Veal, j. i. o.</p> <p>“December 2d, 1867.”</p> <p>C. H. Smith, sworn, said: As one of the Justices of the Inferior Court, I was present at the meeting of J ustices on the day the vote was consolidated, and participated in it. There was an agreement among the Justices then present that we would take stock in the Georgia and Alabama Railroad for $75,000 00, this being an amount intermediate the extremes mentioned in the Act of December, 1857. The Justices were to go in person and each one sign his own name as the representative of the county to the subscription of stock. They did not go at that time, nor did they ever go in a body to subscribe for the stock. The subscription book was at my office, I being the secretary and treasurer of the railroad company. I signed for myself, and I am certain that a majority of the Justices signed also, but I do not remember which of the other Justices signed. Their signatures were all made at different times, and separately. At tiie time of meeting to consolidate the votes, it was also decided that I should have the bonds prepared, which I did, and then the Justices of the Inferior Court, whose names are to the bonds and conpons, signed them separately, and at different times, when no two of them were present. I was at the same time a subscriber in my own name to the stock of the railroad to the amount of $3,000 00. Samuel Mobley was a subscriber also to the amount of $500, and, I think, L. D. Burwell also had subscribed for some stock. The subscription made by the Justices of the Inferior Court was accepted by the board of directors of the Georgia and Alabama Railroad Company in November, 1859. The first call for payment of stock by subscribers was made in November, 1859, for five per cent, of subscriptions. The second call was for ten per cent, in April, 1860. The third call was for ten per cent, in July, 1860, and the fourth. and last call was for ten per cent, in October, 1860. About two-thirds of the grading between Rome and the Alabama line was done, and a bridge built across the Etowah river at Rome, when the war began and work was then suspended on the road. Only twenty-five bonds for $1,000 00 each, with coupons attached were issued; and when issued, which was in September and December, 1860, as their dates will show, I delivered them to Colonel Alfred Shorter, who was the president of the railroad. No stock, nor certificate of stock, was ever issued to the county. My term, as Justice of the Inferior Court, continued till the next election, which was, I think, in January, 1861. We had not provided a fund to pay these coupons. After the war, there was an agreement made between the stockholders and directors of three different Railroad companies, to-wit: The Dalton and Jacksonville, the Georgia and Alabama, and the Alabama and Tennessee Rivers Railroad Companies, to consolidate, which consolidation was effected by authority of enabling Acts of the Legislatures of Georgia and Alabama, constituting what is now known as the Selma, Rome and Dalton Railroad Company. The bonds issued and delivered to Shorter were delivered to him in payment of the county subscription.</p> <p>Respondents objected to that part of C. H. Smith’s testimony in which he speaks of the action of the Justices of the Inferior Court, or their agreement to do anything, or their direction about doing- anything in reference to the subscription of stock or preparing the Bonds.</p> <p>The Court overruled the objection, and respondents excepted.</p> <p>Respondents proposed to prove by him that there were at least two thousand voters in Floyd county at the time of the election upon this question of subscription or no subscription, and how many votes were polled.</p> <p>The Court refused to permit this proof to be made, and respondents excepted.</p> <p>Samuel Mobley, sworn, said : I was one of the Justices of the Inferior Court, and was present at the meeting of the Justices to consolidate the vote, and think we agreed to subscribe for stock in the railroad. I did not sign the subscription of stock for the county, but was a stockholder myself in the road to the amount of five shares. The road had been laid out and graded through my land, and damages for the right of way were assessed in my favor to the amount of $500 00 against the road, and this amount I agreed to take in stock, but none was ever issued to me. I signed the bonds and coupons which have my name to them, at my house, about three miles from Rome, none of the other Justices being present, and returned them to Mr. C. H. Smith, who had previously signed some or all of them. I returned them to him, as he had given them to me for that purpose. I supposed he knew what to do with them, and that they would be put on the market. They were at my house some four or five days, during which time I signed them.</p> <p>The same objection was made to Mr. Mobley’s testimony that was made to Mr. Smith’s, and overruled by the Court, and respondents excepted.</p> <p>Alfred Shorter, sworn, said: A few days after these bonds were issued and delivered to me, as president of the Georgia and Alabama Railroad Company, in payment of the county subscription, I advanced the amount of five of them to the road and took the bonds myself; others were delivered to Mr. Gray, the contractor, in payment for work upon the road, and he sold one of them to Mrs. Cooley, who was then living, but now dead, and upon whose estate I am the executor ; the other nine, which he received, he sold to the Bank of the Empire State, of which I was president; these, among the other assets of the bank, were turned over to H. D. Cothran, as assignee of the bank after the war, and were by him sold at public outcry, at the Court-house in Rome, about the year 186..., and I bought them at $300 00 or $400 00 each, intending to use them in payment of the liabilities of the bank, which had failed — or, at least, I intended to let the bank have the use of them in settling its liabilities. Besides being president of the bank, I was also a stockholder, and so was Colonel Cothran. At the time I received the bonds, I knew of no informality in the action of the Court in reference to their issue; made no inquiry upon the subject. Knew of no money belonging to the county in the Bank of the Republic.</p> <p>(Here a paper was shown to Mr. Shorter, of which he stated he had served a copy upon Jesse Lamberth, the Ordinary of FIojtI county.)</p> <p>It was introduced, and is a paper presented to the Ordinary on May 31, 1869, containing a statement of the bonds and coupons held by the petitioner, and a demand that the Ordinary levy a tax and pay the coupons then due, and to fall due July 1, 1869.</p> <p>A paper was next offered in evidence, and objected to by counsel for respondents, but admitted by the Court, a copy of which is as follows:</p> <p>“ Ordered by the Court, that I). M. Hood, "Wade S. Cothran and Daniel S. Printup are authorized to represent the county of Floyd in the convention of the Selma, Rome and Dalton Railroad Company, to assemble in Selma on the 15th of May, 1867. Either of said persons mentioned can use this authority, or conjointly.</p> <p>“ D. M. Hood, j. i. c.,</p> <p>“ J. King, j. i. c.,</p> <p>“J. E. Veal, j. i. c.</p> <p>“May 10th, 1867.”</p> <p>“ GEORGIA — Floyd County :</p> <p>“ I, James W. Langston, Clerk of the Inferior Court of Floyd county, do hereby certify that the above and foregoing is a true extract from the minutes of said Court.</p> <p>“ Given under my hand and seal of said Court, this the 14th day of May, 1867.</p> <p>[l.s.] “James ~W. Langston, Clerk.”</p> <p>To the admission of this document the respondents excepted.</p> <p>D. M. Hood, sworn, said: The resolution or order just introduced in evidence was adopted by the Inferior Court at the time it bears date, upon the idea that the Inferior Court of the county liad really subscribed for stock in the Georgia and Alabama Railroad Company, in conformity to the law, and that the county was really a stockholder in the road; never knew of these difficulties about the manner of subscription until after that order or resolution was adopted. During my term of office (which was about three years,) as a Justice of the Inferior Court, we had no funds in any bank to pay these coupons.</p> <p>Samuel Mobley, re-introduced, said: While I was in office as Justice of the Inferior Court, we had provided no funds in any bank to pay these coupons.</p> <p>D. S. Printup, sworn, said: I was present at a convention of the railroad stockholders in 1866, at the time it was agreed to consolidate the three railroad companies, and was after-wards elected vice-president of the Selma, Rome and Dalton Railroad Company. , As such vice-president, I offered to turn over to Jesse Lamberth a certificate of stock in the Selma, Rome and Dalton Railroad, issued in favor of the county for the stock subscribed in the Georgia and Alabama Railroad. Mr. Lamberth refused to accept it. This was before this action was begun, and was in 1869 or 1870. Dr. J. M. Gregory was present at that convention and took part in the meeting— and he was then one of the Justices of the Inferior Court of Floyd county, and claimed to be representing the county..</p> <p>Jesse Lamberth, sworn, said: I was Ordinary of Floyd county from 1852 till the election and qualification of my successor, H. J. Johnson, in 1869. I acted as his clerk during that year, and did most of the business of the office. The certificate of stock as testified to by Col. Printup, was offered to me and refused. During my term of office I had provided no funds with which to pay these coupons.</p> <p>Relator closed. Respondent introduced no testimony.</p> <p>The charge of the Court to the jury was substantially as follows:</p> <p>The Court read to the jury the Act of December, 1857, authorizing the issue of bonds, etc., by the county of Floyd, and charged, that if the bonds were issued without authority, then they and the coupons are void, even in the hands of a bona fide holder, and the plaintiff cannot recover.</p> <p>1st. But if you find from the evidence that the Inferior Court did order an election, and give notice as required by the statute, and a majority of the votes polled at that election were for county subscription, and if the result of that election was placed upon the minutes of the Inferior Court as required by the Act, then, in the opinion of the Court, the staiute under which the election was held, and the vote of the legal voters of the county, constituted a legal authority for the subscription of stock, and also for the issuing of bonds by the Inferior Court. If you find from the evidence that these facts existed, which the Court has charged you constituted the authority for the subscription to be made and the bonds to be issued; and if you further find from the evidence that the Justices of the Inferior Court, or a majority of them, actually agreed among themselves when together, to make the subscription and issue the bonds, and that they actually made the subscription for the stock and signed the bonds and delivered them in payment thereof, then the fact that the Justices may have signed the subscription, and may have signed the bonds while they were not in the presence of each other, cannot vitiate the bonds in the hands of a bona fide holder, without notice of those facts.</p> <p>The Court here explained what constitutes a bona fide holder without notice, and proceeded as follows:</p> <p>2d. These bonds are negotiable, commercial securities, issued by a corporation, and like ordinary promissory notes in this respect. And if it appears from the bonds that they were issued under the Act of December, 1857, which is the charter of the corporation; and if it appears from the evidence that the plaintiff purchased them bona fide, and without notice of any irregularity in their issue, and for a valuable consideration, paid by them to the railroad company, then the bonds are valid in his hands and binding on the county, though there may have been irregularities in their issue, and though no resolution was entered on the minutes of the Inferior Court directing the subscription to be made or the bonds to be issued, and though the bonds were not signed when the Court was in session, or at their usual place of meeting; provided, the subscription for stock and the bonds were actually signed by three or more of said Justices, and the bonds delivered, as I have before explained.</p> <p>3d. If the plaintiff was such a bona fide purchaser of the bonds before they fell due, his rights would not be affected by fraud, provided he took the bonds without any notice of the facts constituting the fraud. But it is not necessary that I charge as to fraud, as the question is not made in the pleadings in this ease.</p> <p>4th. The Inferior Court was the sole judge of the question whether a majority of the legal voters of the county had voted in favor of subscription; and if they have determined that question in the affirmative, it cannot be a question on this trial. Whether there were more voters in the county than voted is immaterial, as a majority of those voting decided the question.</p> <p>5th. The jury have the right to take into their consideration the recitals in the bonds, in connection with all the other testimony in making up their finding.</p> <p>6th. If the bonds were executed at the time they bear date, then, in the opinion of the Court, the plaintiff would not be barred by the statute of limitations.</p> <p>The jury returned a verdict in favor of the relator.</p> <p>The respondents assign error upon each of the aforesaid grounds of exception, and upon each portion of the charge of the Court numbered, respectively, 1, 2, 3, 4, 5, 6.-</p> <p>1st. Exercise of power by corporate or quasi corporate bodies must be at a corporate meeting: Dillon on Mun. Cor., secs. 197, 208; 19 N. J. Eq., 412; 25 Md., 18; see 3 Ga., 331. Power conferred on a council can be exercised only by ordinance: IS Md., 284, 300; Ibid., 276; 16 Cal., 225; 20 Cal., 96; Cooley’s Cons. Lim., sec. 204. Contracts made by majority of board of aldermen, void: 7 Gray, 12; 13 Gray, 347 ; 6 Cal., 531; see 20 Ga., 363.</p> <p>2d. Requisites of a valid session of the corporate body: Dillon on Man. Corp., secs. 200, 202, 223, 224; 22 N. Y., 128; 2 Gill., 254; 7 Conn., 214; 2 House of Lords’ Cases, 789.</p> <p>3d. No valid action of the individuals shown: 2 Pick., 345; 1 Bos. & Pul., 229; 2 Ibid., 31; 6 Johns., 39; 6 S. & R., 166; Story on Agency, sec. 42; 7 Cow., 526; 21 Wend., 178; 31 Miss., 525; 26 Conn., 192; 22 Barb., 400; Ibid., 137; 5 Bin., 481.</p> <p>4th. What constitutes ratification by corporate bodies: 10 Wal., 676 ; 5 Cal., 531.</p> <p>5th. There can be no innocent purchasers of void bonds : 7 Wal., 666; 10 Wal., 676.</p> <p>1st. There was no fraud in the issue or the purchase of the bonds. Fraud is not a question in the case. The bonds are negotiable securities. Bonds, payable to bearer, or indorsed in blank when payable to order, pass by delivery. Form of the bond show this: 20 Howard, 343, 364.</p> <p>2d. Mobley says they were delivered to be put on the market. Shorter and Cooley are bona fide holders for value: 2 Ga., 92, (6,) 103, (6.)</p> <p>3d. The bonds were issued to Shorter, president, for negotiation. His indorsement passed the title, (1 Kelly, 418;) but the title is not questioned: Statute of Limitation, 43 Ga., 258; Commissioners Limestone Company vs. Rather et al., at the last term of the Supreme Court of Alabama; 9 Wal., 478; 3 Ibid., 327; Irwin’s Code, 2865. Act of 1869 not barred if sued by January, 1870: 14 Wal., 282, (5.)</p> <p>4th. Case in 46 Georgia, 462, refers only to contracts made since the adoption of the Code. All that was required to be entered on the minutes by the Act was so entered, to-wit: the election. The books of the railroad company were the proper place to make the subscription. The duties of the Court were ministerial, not judicial: 9 Ga., 485; 1 Kelly, 579; 6 Ga., 145, (3,) and 157, (5;) 19 Ibid., 487; 20Ibid., 334; 3 Wah, 96; 1 Sneed, 680; Angelí & Ames on Corporations, 291.</p> <p>5th. The conti act was the act of the county and bound the county; (2 Kelly, 216;) initials “j. i. c.” All judicial acts subject to review by appeal or certiorari; ministerial are not. Courts can only be held at stated times. Mandamus the remedy: 5 Ga., 522; 18 Ibid., 473. (</p> <p>6th. If the Inferior Court had the power, under the statute, to act, then the bonds are valid, especially in the hands of bona fide holders, though there were irregularities in their issue: 21 Howard, 539; 24 Ibid., 288, 375; 1 Wal., 83 to 93, 175,-385; 9 Ibid., 414; 13 Ibid., 305; 14 Ibid., 282; 15 Ibid., 355; 5 Ibid., 784; 11 Ibid., 476; 1 Sneed, 637; Irwin’s Code, 2743; 43 Conn. Keps., 400; 8 Volume American Law Eegister, 274; 33 Mississippi, 440.</p> <p>7th. On power of a majority to act: 9 Pick., 146; 35 New Hampshire, 477; 26 Connecticut, 192; 21 Wend., 187; 9 Ga., 367; 1 Kelly, 271; Code, of 1873, section 4.</p> <p>8th. On ratification: 6 Ga., 171; 10 Ibid., 362; 20 Cal.; Code, section 2142.</p> <p>9 th. On proof of agreement by Justices to subscribe and issue bonds: 1 Greenleaf on Evidence, 513; 3 B. & C., 449, 451; 20 Ga., 334, compare with 364; 13 Ibid., 485.</p>

Common carriers. Negligence. Before Judge Johnson. Muscogee Superior Court. October Term, 1872. Charles M. Lowe brought an action against the Central Line of Boats to recover the value of one bale of cotton.

New trial. Before Judge McCutchen. Bartow Superior Court. September Term, 1873. As these cases turn entirely on the evidence, no principle of law being involved, any further report than that contained in the decision would be useless.

Injunction. Deeds. Ejectment. Production of papers' Before Judge Bartlett. Baldwin county. At Chambers. February 26, 1874. Mary E. Nosworthy and her husband, Daniel Nosworthy, filed their bill against Bryant Blizzard and Eliza F. Moran, making, substantially, the following case: In the year 1853, William A. Moran died intestate, leaving a tract of land, unnecessary to be described, as a part of his estate.

<p>Equity. Debtor and creditor. Amendment. Before Judge Schley. Glynn Superior Court. November Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Administrators and executors. Wills. Legacies. Before Judge Buchanan. Monroe Superior Court. August Term, 1873.

<p>Assignment. Debtor and creditor. Before Judge Underwood. Campbell Superior Court. August Term, 1873.</p> <p>For the facis of this case, see the decision.</p>

License. Tax. Foreign corporations. Constitutional law. Before Judge Gibson. Richmond county. At Chambers. May 9th, 1874.

<p>1. An attachment was, by mistake, levied on the wrong lot of land. Judgment was entered in pursuance with the levy. The plaintiff filed a bill to correct the mistake. This proceeding was dismissed at the trial term on demurrer :</p> <p>Held, That such dismissal was error. A Court of equity having obtained jurisdiction, should have proceeded to have heard the case, and have rendered such decree as the ends of justice might have required.</p> <p>2. Where lot two hundred and eighty-seven is intended to be levied on by an attachment, but the entry of the sheriff describes lot two hundred and sixty-eight by mistake, there has beeu, in fact, no levy made on the right lot.</p>

<p>Specific performance. Wills. Parent and child. Contracts. Before Judge Clark. Early Superior Court. April Term, 1873.</p> <p>Georgia A. Mercier filed her bill against her brother, Augustus J. Mercier, charging, in substance, that in 1868, her father, George W. Mercier, died testate, and by bis will gave his whole estate, with nominal exceptions, to complainant’s brother, who had taken possession of the same; that in 1863, her brother, much against her father’s will, was engaged to be married to his present wife; that the father threatened to disinherit the son if he persisted in his intention, and that he •would give him nothing daring the father’s life, or at his death, but would give all his property to complainant; that complainant favored the marriage, and her brother proposed to her, that if she would agree, in the event that their father did give her his property, to divide it with him, “he would brave his father’s anger and consummate his intention towards the lady to whom be was then engaged, and that should their father afterwards relent towards his son and for any cause give him all his property, then he would do the same by complainant as he asked of her to do by him ;” that her brother urged this proposition on her, as their father was of irate and hasty temper, and there would be a large property for both; that complainant was induced by this, and by the further fact that the betrothed of her brother Avould not consummate the marriage on account of said threat of her father, unless complainant would accede to the proposition of her brother, to agree with him that they would equally divide between them the property of their father, at his death, without regard to which one it might be given; that a short time after the understanding thus made complainant’s brother did marry the young lady to whom he was engaged ; that the father afterwards made his will as above stated, and her brother refuses to carry out said agreement; that this contract was made without the knowledge of the father, and was kept secret from him, unless the brother fraudulently disclosed it.</p> <p>It is not charged in the bill that he did disclose it, or that the father ever heard of it.</p> <p>The bill prays for a specific performance. A demurrer Avas filed on the folloAving grounds:</p> <p>1st. Want of equity.</p> <p>2d. That the interest of the parties in the subject matter of contract set forth was too remote and contingent to support a contract.</p> <p>3d. That the alleged contract is illegal, immoral and contrary to public policy; and,</p> <p>4th. The statute of frauds.</p> <p>It Avas admitted that the contract set up in the bill was by parol.</p>

<p>TTrippe, Judge, haring been of counsel, did not preside in this case.]</p> <p>The testator, by his will, authorized his executors to sell his property upon such terms as to notice or credit, as they might, in their sound discretion, deem best:</p> <p>Held, That the executors had the power to sell the property without an order from the Ordinary, either for cash or credit, and upon such notice as they, in their sound discretion, might deem best; but in all other respects they were bound to comply with the law regulating such sales.</p>

Criminal law. Jury. Evidence. New trial. Before Judge Hall. Pike Superior Court. April Adjourned Term, 1873. Wesley Reid was placed on trial for the offense of murder, alleged to have been committed upon the person of one Amos Martin, on December 25th, 1872. The defendant pleaded not guilty.

<p>Where possession of a horse was obtained by a fraudulent trick, a possessory warrant is the proper remedy to recover the same ; and that the consent of the plaintiff in the warrant was obtained to such possession, under the circumstances of this case, will not justify the retention of the possession by the defendants.</p>

<p>UAder the facts in the record, the decision of the Judge to whom the whole matter was submitted, refusing the compensation asked for, was not contrary to law, and there was no error in overruling the motion for a new trial.</p>

<p>1. Where evidence was admitted in the Court below without objection, exception thereto will not be heard in this Court.</p> <p>2 Where a lot of land was set apart for the twelve months’ support of the family of deceased, was sold under the order of the Ordinary, and the proceeds thereof applied to such support, the heirs-at-law cannot recover the same on account of want of authority in the Ordinary to direct such rule.</p>

Landlord and tenant. Presumption. Promissory notes. New trial. Troup Superior Court. May Term, 1873. Thomas J. Thornton brought complaint against Edward Broughton on the following note: “ $150 00. LaGrange, December 4th, 1870. “ I promise to pay Thomas J. Thornton one hundred and • fifty dollars for the rent of the store-room I now occupy of his, to be paid quarterly.

<p>A bill in equity must show that the defendant, against whom substantial relief is prayed, is a resident of the county in which it is filed, otherwise the Court has no jurisdiction.</p>

Qertiorari. Inn-keeper’s lien. Before Judge Underwood. Eloyd county. At Chambers. September 12, 1873. Watters foreclosed an ^keeper's lien, for $40 50 against Henry Reynolds and had ft levied upon a sewing machine. A claim was interposed by the Domestic Sewing Machine Company.

Garnishment. Practice in the Superior Court. Before Judge Hill. Bibb Superior Court. April Term, 1873. Joseph E. Russell brought case against John R. Johnson for $300 00 damages, and served a summons of garnishment upon the Freedman’s Savings Bank of Macon. At the April term, 1873, the plaintiff obtained judgment against the defendant for the amount sued for. Subsequently, no answer having been filed, judgment was rendered against the garnishee.

<p>Equity. Vendor’s lien. Parties. Amendment. Statute of limitations. Before Judge Underwood. Meriwether Superior Court. November Term, 1873.</p> <p>Alexander Atkinson filed his bill on December 29th, 1869, against Daniel Keith, as administrator upon the estate of George "W. Keith, deceased, David B. Moore, Benjamin Elliot and M. L. Duskin, and his wife, Martha J. Duskin, making, substantially, the following case :</p> <p>On October 17th, 1859, complainant and one John W. Plunter conveyed certain lands, which they jointly owned in Stewart county, to George W. Keith, at and for the sum of $3,700 00. Keith paid a portion of the purchase money in cash, and gave notes for the balance. These notes were divided between Hunter and complainant, the latter receiving two, each for the sum of $550 00, and due December 25th, 1860. George W. Keith died, and the defendant, Daniel Keith, became his administrator. Complainant always relied upon his vendor’s lien as security for the payment of said notes, and so notified said administrator, and demanded payment. Notwithstanding this, said administrator sold said land to the defendant, David B. Moore, who purchased with full notice of complainant’s claim. Moore sold said property to the defendant, Benjamin Elliot, who also purchased with full notice of complainant’s lien. Dower was assigned in said land to Martha J. Keith, the widow of George W. Keith, now the wife of the defendant, M. L. Duskin. She and her husband also had full notice of complainant’s lien. The estate of Geoi’ge W. Keith is insolvent, and complainant’s only remedy is upon his equitable lien.</p> <p>Prays a sale of the aforesaid lands, and that his claim may be satisfied from the proceeds thereof.</p> <p>On March 30th, 1870, complainant amended his bill by charging that the defendant, Keith, as administrator, sold said lands to one Benjamin Perkins, who bought with full notice of complainant’s lien, and that Perkins sold to Moore.</p> <p>On September 13th, 1870, complainant amended by charging that it had recently come to his knowledge that said administrator had in his possession, and was suing upon, the note given by Moore for said lands, which note was dated November 3d, 1863, for the sum of $3,005 00, and payable to said administrator. Still relying upon his equitable lien, yet nevertheless prays that Moore may be decreed to satisfy his claim in part payment of said note, and that said administrator, in the meantime, be enjoined from making any collection thereon.</p> <p>Upon motion of complainant, the bill was dismissed as to all the defendants except Moore and the administrator.</p> <p>The remaining defendants demurred to the bill, upon the ground that the amendments rendered the bill multifarious, and upon the further ground “ that the notes, which were the foundation of the amendments, were barred by the Act of the Legislature of March 16th, 1869, at the time of the filing thereof.”</p>

<p>The coroner has no vested right to hold an inquest over the bodies of persons found dead in his county, and to charge the county therefor, when the public laws of the State do not require such action.</p>

<p>This case comes within the decision in the case of Alfred Prescott vs. M. Q. Bennett et al., ante, 266, and as seven years had not expired since the judgment was obtained, which had been vacated and declared void by an order of Court on the ground that it was founded on a contract for the hire of a slave, and as the judgment was therefore not dormant at the time the moliou .was made to set aside and revoke such order, it was error in the Court to refuse the motion.</p>

<p>Homestead. Before Judge Hill. Crawford Superior Court. September Term, 1873.</p> <p>This case is reported in the decision.</p>

Criminal law. Practice. Indictment. Pleading. Witness. Charge of Court. Before Judge James Johnson. Muscogee Superior Court. November Term, 1873.

<p>Prior to the Act of 1873, the landlord, in the absence of any contract to that effect, had no lien on the crops of the tenant for his rent, before the levy of a distress warrant therefor.</p>

<p>An indictment against A for the offense of assault with intent to murder one J. A. Conway, charged the prisoner as principal in the second degree, in being present, aiding and abetting A “ by pushing, striking, assaulting and threatening the said J. A. Conway:”</p> <p>Seld, That such words thus descriptive of the acts of A, which constitute the offense of which he is accused, cannot, on motion of prosecuting counsel, without the consent of the prisoner, be stricken from the indictment as surplusage.</p>

New trial. Rule of Court. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. Benajah Peacock brought complaint against Peacock, Chapman & Company, on a due bill dated April 6th, 1871, payable to plaintiff or bearer, for $730 07. The defendants pleaded payment and set-off. The jury found for the plaintiff $8 50. The Court, on its own motion, set aside the verdict, because it was without evidence, and contrary to the charge, and ordered a new trial.

<p>Homestead. Dower. Before Judge Herrchel V. Johnson. Johnson Superior Court. September Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

<p>Where upon a rule against the former and present sheriffs, requiring them to show cause why one or the other should not pay over the money due on a certain execution, the former answered that he turned over the fi. fa. to his successor in time to have made the money before Court, and the present sheriff set up that he was enjoined from proceeding thereon, it was not error in the Court, in the absence of a traverse of the answers, to discharge the rule.</p>

<p>Where an attorney recovers different parcels of land for his client, under a written agreement tíiat the attorney should have a particular lot so recovered for his services, and there is no evidence of fraud, or that the services were not worth what was contracted for, the attorney, under section 1979, Revised Code, can claim such lot against the lien of a judgment existing against his client at the time the agreement was made, the more especially if the creditor never sought to enforce his judgments against the land until subsequent to its recovery, after a protracted litigation on the part of defendant and his attorney.</p>

<p>Claims. Appeals. Justice Court Before Judge Underwood. Whitfield Superior Court. October Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Contracts. Ambiguity. Verdict. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873. Mary W. Hodges, as administratrix of Samuel K. Hodges, deceased, filed her bill against Richard R. Goetchius and Reuben H. England, making, in substance, the following case: On July 28th, 1856, complainant’s intestate and Richard R. Goetchius entered into a copartnership, under the name and style of Goetchius & Hodges.

<p>The owner of land taken for the use of the public, is entitled to be paid therefor the value thereof in money; but if, in appropriating his laud for the use of the public, consequential damages result to the owner, the benefits which be may have derived from the appropriation, if any, may be set off against such consequential damages, but not against the value of the land.</p>

Relief Act of 1868. Tender. Evidence. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1873. This is the second time this case has been before the Supreme Court. See 45th Georgia Reports, 533. Isham S. Fannin, as administrator of Mary Johnson, brought complaint against Parmenius R. Thomason on a note for $3,319 81, dated February 13th, 1861, and due twelve months after date. In March, 1867, the defendant confessed judgment for the amount sued for.

<p>Vendor and purchaser. Warranty. Deed. Land. Before Judge Gibson. Columbia Superior Court. September Term, 1873.</p> <p>For the facts of this case, see the decision.</p>

Corporations. Taxes. Laws. Macon. Before Judge Hill. Bibb county. At Chambers. August 21st, 1873. .

<p>A homestead, set apart to the defendant in execution, under the Act of 1808, though conveyed to the claimant with the approval of the Ordinary, is nevertheless subject to a judgment against said defendant, rendered before the passage of said Act.</p>

Evidence. Deed. Prescription. Before Judge Knight. Fannin Superior Court. May Term, 1873.

Illegality. Administrators and executors. Damages. Before Judge Strozer. Dougherty Superior Court. April Adjourned Term, 1873. An execution in favor of Eugenia A. Beall against Peter McLaren, as administrator upon the estate of Davis Pace, deceased, for $22,423 01, principal, with interest from April 1st, Í868, was levied upon certain lands and personalty as the property of said estate.

<p>Practice before the Supreme Court. Mandamus. New-trial. Rill of exceptions. Before the Supreme Court. January Term, 1874.</p> <p>Charles Kelly petitioned the Supreme Court for a mandamus nisi requiring Honorable John I. Hall, Judge of the Superior Courts of the Flint Circuit, to show cause why he should not be compelled by a rule absolute to sign and certify a bill of exceptions to his judgment refusing a new trial in the case of the State against petitioner, who was charged with the offense of murder.</p> <p>It appeared from the petition that Kelly was convicted of the offense of murder at the September adjourned term, 1872, of Newton Superior Court; that a motion for a new trial was made and overruled, and that said judgment was affirmed by the Supreme Court; that, at the September adjourned term, 1873, a second motion was made for a new trial, on the ground that Hulbert Brown, a material witness for the State, since the trial, had made an affidavit to facts differing from his testimony given in from the stand, and tending to sustain the alibi relied upon by petitioner, and because of certain irregularities in the conduct of the jury.</p> <p>The motion was overruled. A bill of exceptions to this judgment was presented to the presiding Judge, who returned it, with the following entry thereon :</p> <p>“ My signature and certificate to the within bill of exceptions is refused, this being the second motion for a new trial in the case, and the evidence herein contained showing plainly that no harm could possibly have resulted to the defendant from the irregularities complained of.”</p>

Corporations. Stockholders. Pleadings. Before Judge Rice. Gwinnett Superior Court. September Term, 1873. Andrews & Company brought complaint against the Gwinnett Manufacturing Company, and certain stockholders in said company, on an account for $378 49. The charter, Act of 1858, pages 69, 70, contains (section 3,) personal liability clause, and also (section 4,) a provision for requiring the president to furnish a list of stockholders when called on.

<p>1. An exception to an award relating to tire testimony will not be con sidered in this Court, where the evidence is not in the record, and does not appear to have been exhibited to the Court below.</p> <p>2. Where pending litigation, by consent, was, by an order of Court, referred to the decision of three arbitrators, two of them being named, they to select a third, and the questions at issue were heard before the two arbitrators named, who made an award, it is incumbent on the party excepting to the award, on the ground that the matters in dispute were not heard before three arbitrators, to negative all presumptions in favor of the award, by alleging either that he was not present when the award was made, and was not heard before the two arbitrators, or that he objected at the time to proceeding before them.</p>

Statute of frauds. Part performance. Factors. Damages. Before J. R. Saussey, Esq., Judge pro hao vice. City Court of Savannah. May Term, 1873.