Volume 6 — Georgia Reports

Certiorari. Decided by Judge Fleming, at Chambers, June, 1848. Held: pledged and mortgaged, for the purpose of dry culture, and of this agreement, and that the same shall be held, and shall remain so bound and pledged in the hand, possession or occupation of any subsequent holder, owner, heir or purchaser of the whole tract or any part thereof.

Decided by Judge Fleming. Mrs. Goldsmith, the wife of the defendant, had a considerable estate settled on her, to her sole and separate use.

<p>£1.] The 17th section of the 1st art. of the State Constitution, inhibiting the passage of any law, by the Legislature, containing any matter different from what is expressed in the title, does not require that the title should set forth a synopsis of the entire Act.</p> <p>£2.] Where the title specifies some of the objects for which the Statute was passed, and contains this general clause — “ And for other purposes therein contained,” portions of the Act not specially indicated in the title, are, nevertheless, good, under this general clause.</p> <p>£3.] Where letters testamentary, have been revoked under the Act of 1834, on account of the birth of a posthumous child, and an intestacy declared, neither by the Common nor Statute Law of England, nor the Acts of our own Legislature, can the newly appointed administrator be made a party defendant to a suit pending against the removed executor.</p> <p>£4.] An acknowledgment, or promise, to take a case out of the Statute of Limitations, must specify, or plainly refer to the particular debt, or demand, or cause of action, which is sought to be revived.</p> <p>£5.] Where there is any dispute, as to the facts which go to prove the making of a new promise, then, whether a sufficient acknowledgment, or promise, has been made, to take the case out of the Statute, is a mixed question of Law and fact, to be passed upon by the Jui-y; but where the facts are undisputed, it is for the Court to determine whether they take the case out of the Statute or not.</p> <p>£6.] A promise to pay a debt, barred by the Statute, constitutes a new cause of action which, a party seeking to avail himself of, must declare upon, in the words in which it was made, or according to its legal effect. The old debt is regarded as the consideration, which supports the promise; and in declaring, must be set out as the inducement to it.</p>

<p>[1.] The 3d section of the Act of 1755, which requires all wills and testaments to be recorded within three months from the death of the testator, is not of force in this State.</p>

In Equity, in Pulaski Superior Court, Tried, October Term, 1848, before Judge Scarborough. The following facts were agreed upon in the Court below: Archibald Odam, of Pulaski County, died in the year 18 — , intestate, leaving his wife, Elizabeth Odam, one of the defendants, him surviving, but leaving no child living.

<p>[1.] If the bill of exceptions bears date previous to the trial of the cause, and there is nothing in the record, by which it may be amended, and the true date arrived at, the writ of error must be dismissed.</p> <p>[2.] Where thirty-five days intervened between the signing of the bill of exceptions, and the suing out and serving the writ of error, citation and notice, the writ of error will be dismissed.</p>

Assumpsit, in Wayne Superior Court, and motion for a new trial. Argued before Judge Fleming, at Chambers. Suit was instituted by the plaintiff, against the defendants, on a note, of which the following is a copy : $1953T\\ Monticello, 10th May, 1838. Ninety days after date, I promise to pay to the order of Mumford & Tyson, at the Bank of St. Marys, one thousand nine hundred and fifty-three dollars and four cents, for value received, in renewal of note, for $1914.

Trover, in Telfair Superior Court. Tried before Judge Scarborough. The plaintiffs, as attorneys at law, entered into an agreement with one W. Rogers, attorney in fact for Samuel Brinson, to sue for certain negroes, in the possession of one James Chaney, of Montgomery County, in consideration that they should receive one half of the recovery.

Ejectment, in Bryan Superior Court. Motion to dismiss defendant’s plea, decided by Judge Fleming, at Chambers, Dec. 22d, 1848. Held: by •one John Bailey, of the County of McIntosh, in the State of Georgia; and further, that the said James M. Butler disclaims all right, title, interest, possession, property, claim or demand of, in or to the said within mentioned premises, or any part thereof; and of these several matters, he puts himself upon the country.

Levy and claim, in Glynn Superior Court. Decided by Judge Fleming.

<p>Trover, in McIntosh Superior Court. Tried before Judge Fleming, November Term, 1848.</p> <p>This was an action of trover, for the recovery of two negro slaves, Joe and Elsy. Upon the trial it appeared, that on the 4th day of May, 1835, John L. Taylor, by bill of sale, conveyed the said negroes, with one other, together with certain stock — cattle, hogs and horses — to said George G. Fleming, for a consideration expressed on its face, of $1400 ; and that on the 7th May, 1835, said Fleming, for the same expressed consideration, conveyed the said negroes to the children of John L. Taylor. Both bills of sale were recorded on the 19th of October, 1835. The negroes remained in the possession of John L. Taylor. His children were minors, and had no other guardian, and lived with him. The witness, who drew the bills of sale, stated that five or ten dollars were paid in cash by Fleming to Taylor, and that he had an indistinct recollection of_a note having been given.</p> <p>On the 1st January, 1842, for the consideration of $800, the said John L. Taylor, by bill of sale, conveyed Joe and Elsy to the defendant, Elijah Townsend, the negroes being then under levy of executions against John L. Taylor, and in his possession.</p> <p>A verdict was rendered for the defendant. Subsequently, a motion was made for a new trial, on the following grounds :</p> <p>1st. Because the .verdict is contrary to law.</p> <p>2nd. Because the verdict is contrary to evidence.</p> <p>3d. Because his Honor charged the Jury that the retention of possession by a vendor or donor of personal property, after an absolute conveyance, directly or indirectly, to his children, is prima facie evidence of fraud.</p> <p>4th. Because his Honor charged the Jury that by the Common Law and the English Statutes, the retention of possession of personal property, by the vendor, even after a sale to his children, is prima facie evidence of fraud, as against subsequent purchasers, as well as creditors, although the deed of conveyance should be duly recorded, according to the laws of the State of Georgia.</p> <p>5th. Because the verdict is contrary to law and evidence.</p> <p>Which motion was overruled by the Court, and this decision is here alleged to be erroneous.</p>

<p>[1.] When the bill of exceptions is signed and certified only dghi days before the session of the Supreme Court for that Judicial District, the writ of error should be made returnable to the next succeeding term for that District— such being the first term, within the meaning of the amended Constitution.</p>

In Equity; Sumpter Superior Court. Tried before Judge Warren, November Term, 1848. Thomas J. Perryman, for the use of John Dennard, brought suit against James P. Guerry, on three promissory notes, not negotiable, and payable to Thomas J. Perryman, as administrator of James R. Lowry, deceased.

<p>In Equity, in Stewart Superior Court. Decided by Judge Alexander, October Term, 1848.</p> <p>This was a bill filed for tbe direction of tbe Court upon tbe following facts:</p> <p>Henry T. Harrell died in 1845 intestate, leaving a widow, to whom, within the period of gestation, was born a posthumous child — "William H. Harrell. For this child, the defendant became guardian, and the estate of Henry T. Harrell was distributed in equal moities to the wife, (who, in the meantime, had intermarried with Uriah B. Holder,) and to the defendant, as guardian of "William H. Harrell.</p> <p>After said distribution had been made, Mary A. E. Holder was born to Uriah Holder and wife, and two days after her birth, William IT. Harrell died intestate.</p> <p>The Court below, upon these facts, decided that said estate of William H. Harrell should be distributed in equal moities to Uriah B. Plolder and wife, and to Mary A. E. Holder, the sister of the half-blood of the intestate, in the maternal line.</p> <p>To which decision, Holder and wife, by their counsel, excepted, and that decision comes before this Court to be reviewed.</p>

In Equity, in Randolph Superior Court. Motion to dismiss the bill and dissolve the injunction, before Judge Warren. James Harrison and Samuel Harrison, as the administrators of William Oliver, deceased, filed their bill in Equity in the Superior Court of Randolph County, returnable to the October Term, 1848, in which they charged : That in the year 1835, James Harrison and Wm.

Ejectment, in Muscogee Superior Court. Tried before Judge Alexander, November Term, 1848. This was an action of ejectment in Muscogee Superior Court. The plaintiff showed a grant to his intestate, dated in 1843. The defendant showed a continuous possession in himself, and those under whom he claimed, for more than seven years, under color of title.

Motion to quash fi. fa. before .Judge Warren, at Chambers, The plaintiffs and defendant were creditors who had sued out and foreclosed their liens upon the steamboat Magnolia, under the Act of 1841, giving to certain persons a lien on steamboats and other water-craft navigating certain specified rivers, for provisions and wood furnished and services rendered. The provisions of this Statute are as follows :— Seo. 1.

<p>[1.] An inquiry can be made into the consideration of a note, -whenever the proper administration of justice requires it.</p> <p>[2.] Where a Statute gives a summary remedy for services rendered, the taking of a promissory note of the debtor does not waive the statutory lien.</p> <p>[3.] A promissory note, given by an agent, will bind the corporation, provided he acted within the sphere of his powers, or the act was subsequently ratified. If A gives his note to B, in liquidation of the book-debt of C, it does not, ofitself, destroy the account; nor is it, without other proof, such a payment that the original debt cannot be resorted to.</p>

<p>f 1-] The Inferior Courts in this State have not the power and authority, under the Constitution and Laws thereof, to grant new trials.</p> <p>£2.] Courts of Equity have jurisdiction to order new trials in a Common Law Court, after judgment,onapropercaseheingmade; butitis ajurisdiction which should be exercised with great caution and circumspection.</p>

Assumpsit — Talbot Superior Court. Tried before Judge Al-exander, September Term, 1848. Wm. J. and John McBride commenced suit against Hope H. Hammock, as the executor, de son tort, of Caleb Adams, deceased, on a note made by said Adams, for the sum of #787 06, dated April, 1841, and due 25th December, 1841, payable to William Towns, or bearer.

In Equity, in Muscogee Superior Court. Tried before Judge Alexander, November Term, 1848.

<p>Ejectment, in Muscogee Superior Court. Tried before Judge Alexander, November Term, 1848.</p> <p>An action of ejectment was brought in Muscogee Superior Court, upon the demise of Jonathan D. Yaughn, as the administrator of Bartholomew Jenkins, deceased, against Lorenzo M. Biggers. The defendant set up title, under a Sheriff’s deed, purporting to have been made after sale under ji. fa. against one, 'Bartholomew Jenkins.</p> <p>Pending the trial, the defendant offered in evidence the interrogatories of Lewis Wynn, who swore that, “while Sheriff of Harris County, Georgia, lot of land No. 276, (the premises in dispute,) was levied on by a Constable, and duly returned to witness, according to law, and he sold the same accordingly, and that, on examination, he finds the annexed a true copy of the deed executed by him, on the day and at the place therein specified. He sold said land to the highest bidder — one Waits becoming the purchaser — by virtue of a fi. fa. issued from a Justice’s Court in Coweta County, in favor of William Daniel vs. Bartholomew Jenkins, and is now under the impression he handed over [said fi. fa. to said Daniel.”</p> <p>To this testimony plaintiff’s counsel objected, but was overruled by the Court.</p> <p>Plaintiff’s counsel objected, also, to the reading of the deed from Lewis Wynn to Waites, without the production of thefi.fa. but was overruled by the Court.</p> <p>The proof showed, that Daniel had removed from the State of Georgia, either to Texas or Louisiana; and Col. H. Holt testified that, as the counsel for Biggers, he had addressed several letters to different persons in Louisiana and Texas, in order to find out the residence of Daniel, without any success.</p> <p>It was in evidence that Biggers had made search for the fi.fa. and the judgment on which it was founded, in the district where it purported to have been issued, and also in the offices of the Clerks of the Inferior and Superior Courts, without success, and that he had applied to the Magistrates of that district without success.</p> <p>To the last interrogatory to Robert S. Foster, he answered: “In relation to what will benefit the defendant, I will say, that from my knowledge of said Jenkins’ business and affairs, I think said Jenkins made a contract with a certain William Daniel, when Jenkins and myself were in Bullsborough, in Coweta County, or at some other time; and further, that said Jenkins admitted of executions to issue against him in Coweta County, in favor of William Daniel, and, as I have been informed, the land which he drew in the land lottery of 1827, in Coweta, Muscogee and Carroll lottery, was sold by the Sheriff under said execution, and that said Jenkins received full remuneration in the overplus, of said executions, in money, and, also, in a note of the sum of ninety-eight dollars, on William Daniel.”</p> <p>Plaintiff’s counsel objected to this answer, and the Court admitted the following: “thatsaid Jenkins admitted of executions to issue against him in Coweta County, in favor of said William Daniel.”</p> <p>The Court charged the Jury, “that in determining the question whether the execution levied on said land had, at the time of the levy, the necessary entries, they might and ought to take into consideration the lapse of time since the levy, the testimony of Mr. Wynn, the admission of Jenkins, as testified to by Foster, and all the other circumstances of the case.”</p> <p>The Jury returned a verdict for the defendant, and the plaintiff moved for a new trial.</p> <p>1st. Because the Court erred in admitting the testimony of Lewis Wynn, as to the fi. fa. under which the land in dispute was sold; the existence, loss or destruction of the same not having been sufficiently established.</p> <p>2nd. Because the Court erred in permitting the copy deed to be read in evidence, without the production of the fi. fa. under and by virtue of which the land was sold, or requiring other proof than that submitted to the Court, of the existence, loss or destruction of said fi. fa. and without further proof, also, that said fi.fa. had on it, at the time the same was levied, an entry made by a proper officer, that there was no personal property o£ the defendant’s to be found, whereon to levy the same.</p> <p>3d. In admitting any part of the answer of Robert S. Foster to the last interrogatory.</p> <p>4th. Because the Court erred in excluding that part of the testimony of the Messrs. Frys, wherein they say, that Jenkins told them that his wife and children were in Gwinnett County, and that he had given in for a citizen’s draw in that County, and for a soldier’s draw in Patterson’s District, of Pike County — this conversation having occurred long before there was any litigation as to this land.</p> <p>5th. Because the verdict was contrary to the evidence.</p> <p>6th. Because the Court erred in charging the Jury that, in determining the question whether the execution levied on said land, had, at the time of the levy, the necessary entries, they might and ought to take into consideration the lapse of time since the levy, the testimony of Wynn and Foster, and all the other circumstances of the case.</p> <p>There were other grounds taken in the motion, but not urged before this Court.</p> <p>The Court below refused the motion for a new trial, and this refusal is now alleged to be erroneous,</p>

Debt on Bond, in Decatur Superior Court. Tried before Judge Warren, December Term, 1848. There were a number of errors assigned in this cause, but the' judgment of the Circuit Court being affirmed upon one point, and the others not being considered by this Court, it is unnecessary to insert a statement of the facts. . For the facts referring to the point decided, the reader is referred to the opinion of the Court.

Assumpsit, in Muscogee Superior Court. Tried before Judge Alexander, November Term, 1848. Suit was commenced in the Superior Court of Muscogee County, on a note made by Lorenzo M. Biggers and Joseph Biggers, for the sum of $908.

<p>[1.] A writ of error will not be dismissed because the same cause has been previously before the Supreme Court, where the error assigned is different, and the objection not raised orpleaded in the Court below.</p> <p>[2.] When a decree is rendered in favor of A against B and C, B in a bill filed to review that decree, is entitled to make C a party complainant, without his authority, and against his wishes. In such case, however, C is entitled to sever.</p> <p>[3.] A party may use the name of another person, as plaintiff in asuit, without his authority or consent, upon indemnifying him for costs, if the use of such person’s name is necessary to the assertion of his legal rights.</p>

<p>[1.] Acountin trover in the usual form is not demurrable; the Statute of 1847, prescribing a special form of declaration for the recovery of personal property being permissive only, and not compulsory.</p> <p>[2.] Offers of compromise, with a view to settle orprevent litigation, are inadmissible; but an independent acknowledgement of a fact may be received, although made pending a treaty for the amicable adjustment of a controversy.</p> <p>[3.] If the finding of the Jury is in conformity with the charge of the Court, and no complaint is made of the charge, the refusal to set aside the verdict and grant a new trial will not be reversed, although the law may not have been properly submitted, the corrective Court being satisfied with the verdict.</p> <p>[4.] There is, on the part of the hirer, an implied obligation, not only to use the thing hired with due care and moderation, but also, not to apply it to any other use, or detain it beyond the time forwhich it was hired.</p> <p>[5.] If the thing hired is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss afterwards occurs, although by inevitable casualty, he will generally be I'esponsible therefor.</p> <p>[6.] The contract of hire being one of mutual benefit, the hirer is bound only for ordinary diligence, and of course is responsible only for ordinary negli gence, or for that degree of care and diligence which the generality of mankind use in keeping their own goods of the same kind.</p>

In Equity, in Muscogee Superior Court; demurrer and motion to dissolve injunction. Decided by Judge Alexander.

<p>Jl.] The bill of exceptions must specify the errors complained of, and the decision excepted to.</p>

<p>Assumpsit, in Marion Superior Court. Tried before Judge Alexander, November Term, 1848.</p> <p>Daniel B. Rhodes brought suit in the Superior Court of Marion County, returnable to February Term, 1843, to recover back usurious interest previously paid. The defendant pleaded the general issue and the Statute'of Limitations.</p> <p>The plaintiff proved the lending of the money, and the usurious contract.</p> <p>The plaintiff introduced testimony to "show that the note was settled in full, on the second Saturday in March, 1839. There was a credit on the note of $1,400, in January, 1849.</p> <p>Defendant introduced testimony to show that a settlement, or agreement for a settlement, was made in the early part of January, 1839.</p> <p>Defendant’s counsel requested the Court to charge the Jury, “ that if it was agreed, in January, 1839, between Rushing and Rhodes, that Rhodes should then deliver to Rushing a note for $1,400 on Phillis, and should agree to deliver other property, at a subsequent day, in full payment of the note, and if Rhodes did then deliver the $1,400 note to Rushing, and did deliver the other property as agreed, and if Rushing then received said $1,400 note, and the agreement to deliver the other property in full payment absolutely of the note he held, then the said note was thereby paid and extinguished, and the right of action, if any, in this case, arose to Rhodes directly thereafter.” Which charge the Court refused to give, but charged the Jury, that the Statute of Limitations began to run only from the date of the actual payment, and not from the date of any previous ■ agreement of the parties in respect to the payment of the usury.</p> <p>To which charge of the Court, and refusal to charge, defendant, Rushing, by his counsel, excepted, and has assigned error thereon.</p>

<p>[1.] The holder of a promissory note, who transfers it by delivery, for a valuable consideration, warrants by implication, unless otherwise agreed between the parties, that he is a lawful holder, and has a just and valid title to the instrument, and a right to transfer it by delivery. He also warrants, in like manner, that the instrument is genuine and not forged or fictitious, and that he has no ImowleAge of any facts which prove the instrument, if originally valid, to be worthless, either by the failure of the maker, or by its being already paid, or otherwise to have become void or defunct; and any concealment of these facts, on the part of the transferer of the note, operates as a fraud on the rights of the transferee, for which a Court of Equity will entertain jurisdiction, to compel a discovery, and grant relief.</p>

Action on Sheriff’s bond, in Crawford Superior Court. Tried before Judge Scarborough, August Term, 1848. Suit was commenced in the Superior Court of Crawford County, in the name of George W. Towns, Governor, &c. for the use of George Moore and Matthew IT.

Debt on official bond, in Crawford Superior Court. Tried before Judge Scarborough, August Term, 1848. This was an action of debt on the official bond of Thomas Andrews, as Sheriff of Crawford County.

<p>[1.] A note originally usurious, maybe purged of tlie usury by the agreement of the parties, as where new notes were given for the principal sum loaned, with the lawful interest added to the principal, at the time of each renewal: Held, that an agreement to pay interest on interest, that was lawfully past due, did not constitute usury, and that each renewal of the note was a new contract.</p>

<p>11. ] In this case, the Court declines expressing any opinion oil the validity of the Bankrupt Law of the United States, passed in 1842, because, whether pronounced valid or invalid, the decision could not benefit the plaintiff in error.</p> <p>12. ] It is not a valid defence for an indorser, that the maker has been discharged under the Bankrupt Law.</p>

Action on forthcoming bond, in Monroe Superior Court. Tried before Judge Floyd, December Term, 1848. This was a suit commenced by John F. Thompson, in the Superior Court of Monroe County, against VV. F. Mapp and Josiah Gr.

Motion to dismiss the writ of error. The defendant in error joined issue, with a protestation, and moved to dismiss the writ of error, because the Clerk of the Superior Court did not certify and send up a complete transcript of the record, within the time prescribed by the Act organizing the Supreme Court.

<p>In Equity, in DeKalb Superior Court. Tried before Judge Hill, September Term, 1848.</p> <p>Adam Q,. Simmons and others, as the distributees and heirs at law of 'William Trimble, deceased, filed their bill against John S. Fall, the administrator of said Trimble, returnable to the Superior Court of DeKalb County. Attached to their hill was an exemplification of the returns of said Fall, as administrator, showing his actings since 1826, as far as he had made returns. To the answer of Fall there was also attached an exemplification of the same and an additional return.</p> <p>On the trial, the complainants offered in evidence to the Jury these two exemplifications, and closed their casa The defendant, having introduced no testimony, claimed the right to conclude the argument to the Jury, which motion the Court overruled.</p> <p>A verdict having been rendered for complainants, defendant’s' counsel moved for a new trial, on the following grounds :</p> <p>1. Because the Court refused the motion of defendant’s counsel, and decided that they were not entitled to conclude the argument of the cause.</p> <p>2. Because the Court erred in charging the Jury, that the general denial of the defendant in his answer to the general, formal charge made in complainants’ hill, that they had again and again applied to the said defendant, and requested him to come to a full and fair settlement, and account to and pay over to them the sums of money due them respectively, was not such a material part of said bill as to make it necessary that the denial in said answer must be contradicted by evidence, to entitle the complainants to recover the full amount of interest and costs which may be due.</p> <p>3. Because the Court erred in chargingthe Jury, that in computing interest in this case, the Court thinks it would be equitable, and they should make rests at the end of every six years from the time the notes for which the property sold were due and disbursements allowed, and compound the interest on the balance in the administrator’s hands.</p> <p>4. Because the Court erred in charging the Jury, that the defendant was not entitled to any commissions, notwithstanding commissions had been allowed by the Court of Ordinary, which decision had not been reversed by appeal or otherwise, the exemplification showing that he had not made regular and annual returns.</p> <p>5. Because the Jury found contrary to the law and evidence.</p> <p>The Court overruled the motion and the defendants excepted,</p>

<p>[1.] Ill an indictment for a libel, placed in a situation where it might have been seen and read, IMA, that it is unnecessary cither to aver or prove that it was seen or read.</p> <p>[2.] If a. libel import defamation on its face, of a particular person, it is unnecessary to insert inuendoes in the indictment.</p> <p>[3.] It is libelous to charge a person with being a drunkard, a cuckold and a tory.</p> <p>[4.] A person who appears to have written a libel, which is afterwards published, will bo considered as the maker of it-, unless he show another to be the author, or prove the a.ct to be innocent in itself.</p> <p>[5.] If a libel appears under a man’s hand-writing, and no other author is known, it turns the proof upon him; and if he cannot produce the composer, he is presumed by law to be the man.</p> <p>[6.] On the trial of criminal cases, moral, and not mathematical or metaphysical certainty, is all that the law requires, or that is attainable. The doubts ofa Jury, to justify an acquittal, should be reasonable, andnotamere vague conjecture or possibility of tlio innocence of the accused.</p> <p>[7.] Direct and irrefragable evidence cannot and need not be always produced ill criminal cases; all that is necessary is, that the Jury, whether the proof be positive or presumptive, be satisfied of the defendant’s guilt.</p> <p>[8.] A verdict will not be set aside and a new trial granted, where the case has been fairly submitted on its merits, and no rule of law violated nor manifest injustice done, although there may appear to have been apreponderance of evidence against the verdict, especially if the Judge who tried the caséis satisfied with the finding.</p> <p>[9.] A new trial will not be granted on the ground of newly discovered evidence, unless itbe competent and material to the issue, and would probably produce a different result if offered, especially where it is merely cumulative, and in corroboration of testimony presented on the former trial.</p> <p>[10.] Where a party comes to the knowledge of newly discovered evidence, through the information of others, the affidavit of the informant should be produced.</p>

Trover, in Heard Superior Court. Tried before Judge Hill* October Term, 1848. Wilson W. Brooks, administrator of George M. Smith, deceased, brought his action of trover in Heard Superior Court, against Charles Foster, to recover eighteen slaves, as the property of his intestate.

In Equity, in Troup Superior Court. Decision on demurrer, by Judge Hill, November Term, 1848.

<p>[1.] A witness whois liable to an action by the party for whom he is called, in case that party should not recover, is incompetent to testify, without a release.</p> <p>[2.] In an action by the present guardian, against the administrator of the former guardian, and his securities on the bond, the plaintiff must show, affirmatively, some act of waste or mal-administration by his predecessor during his life; and the bare reception of money for his wards, without further proof of default, is not, per se, a breach of the bond.</p> <p>[3.] The Act of 1820, authorising securities to be joined with the principal, in suits upon executor’s, administrator’s and guardian’s bonds, considered.</p> <p>[4.] In an action by the present guardian against the administrator of a deceased guardian and his securities, upon their bond, in which the breach alleged, is the receipt of three several sums of money by the former guardian, which he had appropriated to his own use, the measure of damages is the aggregate of principal and accruing interest.</p> <p>[5.] The Act of 1814, requiring the amount of principal and interest to be stated, separately, in judgments, applies to suits on promissory notes, and other special contracts bearing interest,, and not to cases where the recovery is in damages.</p>

<p>[1.] When the Court below fairly submits the facts in the case, to the consideration of the Jury, and there isaio error in law in the charge of the Court, this Court will not disturb the verdict of the Jury.</p> <p>[2.] The Statute of Limitations does not commence to run against the estate of a deceased testator, until probate of the will and qualification of the legal representative of such estate.</p>

<p>Motion to dismiss the writ of error.</p>

Caveat on appeal, in Troup Superior Court. Tried before Judge Hill, November Term, 1848. The issue in this case arose upon a caveat to the will of James Potts, senior, propounded for record.

<p>[1.] Where money was paid to Aby B, who said he paid ilforC, and by his directions: Held, that B was a competent witness to prove to whom the money belonged, and by whose directions he paid it to A, and that his declarations were not admissible in evidence, for that purpose, made at the time of such payment in favor of his alleged principal. If such declarations could be admitted as part of the res gestee, his general or special agency to make the payment must first be shown.</p> <p>[2.] That a witness may refer to a written instrument, memorandum, or to an entry in his books, to refresh or assist his memory, is a well established rule of evidence; and although the witness has no recollection of the fact, independent of the entry in his books, but will testify as to his uniform practice to make his entries truly, and at the time of each transaction, and will far. ther state, that from such practice, he has no doubt the entry in question is correct, his testimony is admissible.</p> <p>[3.] But where a witness states, that certain facts seem, to have transpired her tween the parties from his docket, without adding the legal sanction of the oath of the witness to the truth thereof, from his recollection or otherwise: Held, not to be admissible.</p> <p>[4. ] The Cashier of the Central Bank is not a competent witness to prove the contents of the books of the Bank, under its charter, not within his own knowledge, except in those cases in which the Bank is a party.</p> <p>[5.] Where a witness is examined by commission, the party cross examining may withdraw his cross questions if he chooses — the other party having the liberty to read them at his option.</p> <p>[6.] In claim cases, arising under the peculiar provisions of our Statutes, the defendant in execution is not a competent witness for the claimant, nor can the declarations of the defendant in execution be received in evidence in favor of the claimant.</p> <p>[7.] Where a creditor, who is the mortgagee, forecloses his mortgage, and purchases the mortgaged property at Sheriff’s sale under it, and suffers the property so purchased to remain in the possession of the mortgagor after the sale, such retention of possession, by the mortgagor, is a badge of fraud as against other judgment creditors.</p> <p>[8.] Where property is levied on by ajudgment creditor, and claimed by a purchaser under a sale made in pursuance of the judgment of foreclosure of amortgage under our Statute: Held, that such judgment of foreclosure was prima facie evidence of indebtedness by the mortgagor to the mortgagee, and that the burden of showing a want of consideration to support the mortgage, rests upon the plaintiff in execution, and not the claimant.</p> <p>£9.] Whether the consideration for which a mortgage is alleged to have been executed, is bona fide, or merely colorable to defraud creditors, or so inadequate as to constitute a badge of fraud, is a question of fact which should Ibe left to the Jxu-y, upon the whole evidence in the case, without any restriction on the part of the Court, as to the necessity of proving dlltlie items of indebrtecbiess, alleged to have been the consideration of such mortgage, by the claimant.</p>

<p>[1,] Notice of the filing of a bill of exceptions, heldnotto be sufficient. There must be notice of the signing and certifying.</p> <p>[2.] The Clerk must certify and send up the record and bill within time, and his certificate must show that it was done in time.</p> <p>[3.] The Court will not amend a writ of error, by striking out one party and inserting another.</p>

Ejectment, in Meriwether Superior Court. Tried before Judge Hill, August Term, 1848. This was an action of ejectment, brought-on the several demises of Cannon and Moses Sinquefield, to recover a lot of land situated in the County of Meriwether.

<p>£1.] By the 4th section of the Statute of Frauds, the special promise to answer for the debt of another person, must not only bo in writing, but also the considm-aiion of the agreement; and parol evidence is not admissible to prove a consideration, extrinsic the written agreement.</p>

<p>[1.] The levy of an execution on personal property, is a satisfaction, so far as to throw upon the plaintiff the burden of proving, either that it was insufficient, or that its proceeds were applied to the extinguishment of prior liens, or that it was otherwise unproductive, and made so without fault in the plaintiff, or the levying officer.</p> <p>[2.] A levy upon personal property,- sufficient to pay the debt, which is dismissed by the plaintiff, with the consent of the defendant, extinguishes the judgment, so far as third persons may be affeoted by it.</p> <p>[3.] Payment of a joint debt, by one of two defendants, against whom several judgments have been rendered, extinguishes both judgments.</p> <p>[4.] If A holds a demand against B & C, as partners, and C is dead, and there are effects of the firm in the hands of B, the surviving partner, sufficient to pay the debt, and D holds property conveyed to him by 0, to indemnify him as surety for C, upon Ike equities subsisting between B fy C, Chancery will compel A to proceed against the properly in the hands of B, the surviving partner, so as to leave the property conveyed to D, to be applied to his remuneration, as surety for C.</p>

<p>£1.] Ordinarily, guardians who have given security for the faithful performance of their duty, have the legal control over mortgage debts owing their wards, and a right to receive and collect the money due thereon, and to release the same, in the proper exercise of their discretion as guardians.</p> <p>£2.] But where a mortgage is executed to a mother, as the natural guardian of her children, by the administrator of their deceased father, to secure them in their patrimony which ll'e has wasted, it is not in the power of the mother fraudulently to discharge the mortgage lien, to the prejudice of the infant cestui que trust, especially where she has failed to give bond, as required by law, to protect them against mismanagement.</p> <p>£3..] At Common Law, themother, as guardian by nature or for nurture, has no control over the estate of her-minor children.</p>

In Equity, in Bibb Superior Court. Decided by Judge Floyd, January Term, 1849. The bill states, that the defendant in error, who was complainant in the Court below, was the son of Thomas W. Napier, who departed this life in the year 183 — , having previously made a will, thereby bequeathing the whole of his estate to certain legatees, and entirely cutting the complainant out of any interest in his estatq.

Levy and claim, in Upson Superior C'ourt. Tried before1 Judge Floyd, October Term, 18481 An execution in favor of Matthew H. Myrick, issued from Up-son Superior Court, against John E. Hudson and others, was levied on a slave by the name of Sandford',.on the 26th day of August, 1847, which was claimed by the plaintiffs in error. The-cause stood for trial on the appeal at the February Term of said¡ Court, 1849.

<p>[1.] After final judgment has been rendered against the original party, it is competent for the plaintiff, by scirefacias, to charge the estate of the security on appeal, with the amount thereof.</p> <p>[2.] The Act of 1826, authorizing judgment to be entered up against the principal and security cm appeal, jointly or severally, is only cumulative; and the party may still proceed to enforce the judgment against the security, by writ of scirefacias, or action of debt on the 'appeal bond, as at Common Law.</p>

<p>£ 1. ] Where the defendant, as guardian, pleaded in bar the receipts of his wards, as evidence of-a final settlement with them, on their arrival at full ago, to a bill filed against him by them to account: Held, that the admission of the defendant in his answer, in support of his plea, that he had not made his regular returns, as guardian, to the proper Court of Ordinary, of the receipts and disbursements of his wards’ estate, was such a circumstance as cast suspicion upon the fairness of the settlement, and would avoid the plea.</p>

Motion to dissolve injunction. Decided by Judge Wright,. at Chambers, November, 1849.

Debt on Guardian’s Bond, in Paulding Superior Court. Tried before Judge, Wright, February Term, 1849.

Trover, in Clarke Superior Court. Tried before Judge Doughs': rty, February Term, 1849. This was an action of trover for a negro boy, Edmund, brought by Jamos W. Barrett, as administrator, with the will annexed, of Henry Huff, deceased, against Elizabeth Huff, the widow of John Huff, who, pending the suit, intermarried with Thomas Echols, William Abridge and Virgil W. Abridge. The defendants pleaded the general issue and the Statute of Limitations.

Trover, in Cass Superior Court. Tried before Judge Wright, February Term, 1849. This was an action of trover, brought by Eleanor Hendrix against Coleman Pitts, for one hundred barrels of corn. It appeared from the record of the proceedings; that-Hendrix, the husband of Eleanor Hendrix, died in possession of a certain tract of land — after his death, Eleanor Hendrix remained in possession.

Issue was j oined in this cause with a protestation, on the ground that there was no notice of the signing of the bill of exceptions, served upon the defendant, or filed in office, as required by the Act.

Motion to dismiss the writ of error. The defendant in error in this cause joined issue, with protestation, to the first assignment of error, because, in the assignment of errors, it is alleged that the counsel for Smith requested that the Jury should be polled before the verdict was recorded, when there is nothing in the bill of exceptions, or the record, to show that any such request or motion was made before the verdict was recorded.

<p>[1.] It is not the right of the parties to poll the Jury in civil causes, but it is discretionary with the Court to allow them to be polled or not.</p> <p>[2.] The dispersion of the Jury, after the verdict is handed in to the Clerk, and before it is received by the Court: Held, to be a good reason for a refusal to permit the Jury to be polled.</p> <p>[3.] If the proper parties are not before the Court, and the Court cannot make a complete decree without affecting their interests, the objection may be taken at the trial and the bill will be dismissed.</p> <p>[4.] The mere non-joinder of aparty, who mightbeaproper party, but whose absence works no prejudice to the rights of those who are before the Court, is not a fatal objection to the Court’s proceeding to a decree, and the bill will not be dismissed on that account at the hearing-</p> <p>15.] If one in treaty with another for the sale of property, misrepresents a material fact, stating it to be true, when at the same time he knows it to be false, and the other party trusts to the statement and acts upon it, it is a positive fraud, for which Equity will rescind the contract.</p> <p>[6.] Such a fraud may be perpetrated by acts as well as by words, and by any artifices designed to mislead, as well as by representations.</p> <p>[7.] Whether a party thus misrepresenting a fact, knows it to be false or not, is wholly immaterial; for the affirmation of what one does not know to be true, orbelieve to be true, is equally, in morals and in law, as unjustifiable as the affirmationof what is known to be positively false. Itis a fraud on account of which Equity will rescind the contract and reinstate the parties in their original rights.</p> <p>[8.] If a party thus affirming a fact believes it to be true, when it is false, it is a fraud in Law, and Equity will rescind the contract and restore the parties to their original rights.</p> <p>[0.] And if a party innocently, by mistake, misrepresents a fact, which is material, and to which the other party trusts, it is cause for rescinding the contract, because it operates as a surprise and an imposition upon him.</p>

Motion to dismiss the writ of error. 1st. Because the bill of exceptions was not signed by the presiding Judge below within thirty days, as required by law. 2d. Because the bill of exceptions, writ of error, and citation and notice were not filed with the Clerk in the Court below, as required by law, within ten days after the bill of exceptions was signed. 3d. Because there has been no notice given. 4th.

Certiorari, decided by Judge Wright, Cass Superior Court, February Term, 1849. Alfred, a slave, the property of James W. M. Berrien, was placed upon his trial before the Justices of the Inferior Court of Cass County, for the offence of an assault with intent to commit a rape, upon the person of a white girl of about four years of age.

Assumpsit, in Floyd Superior Court, October Term, 1848, before Judge Wright. This was an action of assumpsit, commenced August 1st, 1846, upon a note for #700, principal, due 25th December, 1839, and signed by Robert Ware, Wm.

<p>[1.] The record must show that the bill of exceptions was certified and signed by the presiding Judge, within the time provided by law.</p> <p>[2.] It must appear that the bill of exceptions was filed in the Clerk’s office of the Court below.</p>

Motion, decided by Judge Wright, in Lumpkin Superior Court, March Term, 1849. At the March Term, 1847, of Lumpkin Superior Court, an indictment was found against the plaintiff in error, Ehood Denny, for cheating and swindling. At the March Term, 1848, a demand was entered on the minutes for a trial on bebalf of the defendant, and an order passed, that “he be tried at the next term, or be discharged.” At September Term, 1848, no entry was made on the minutes or the docket.

Covenant, in Gwinnett Superior Court, before Judge Dougherty, March Term, 1849.

<p>Indictment for uttering counterfeit coin. Tried before Judge "Wright, Cass Superior Court, February Term, 1849.</p> <p>At the February Term, 1849, of Cass Superior Court, John Gentry was placed upon his trial before a Petit Jury, on the following indictment:</p> <p>“Georgia, Cass County:</p> <p>“ The Grand Jurors, &c. in the name and behalf of the citizens of Georgia, charge and accuse John Gentry with the offence of fraudulently and falsely tendering in payment a base coin, knowing the same to be base; for that the said John Gentry, on the 12th February, 1845, in the County aforesaid, did tender to one Arthur Haire, one piece of base coin, made and counterfeited to the likeness and similitude of good, legal and current silver coin, called a Spanish dollar, knowing the same to be base, contrary to the laws of said State, the good order, peace’and dignity thereof; and the Jurors aforesaid, in the name and behalf of the citizens of Georgia, farther charge the said John Gentry with having committed the offence of falsely and fraudulently uttering a counterfeit and forged coin, knowing the same to be counterfeit and forged ; for that the said John Gentry, on the 12th day of February, 1845, in the County and State aforesaid, one piece of base and counterfeit money, made and counterfeited to the likeness and similitude of legal and current silver coin called a dollar, did falsely and fraudulently utter and tender the said counterfeit dollar, knowing the same to be counterfeit, contrary to the laws of said State, the good order, peace and dignity thereof.”</p> <p>The defendant, by his counsel, objected to the State’s counsel proceeding under this indictment, and moved for a verdict—</p> <p>1st. Because^ by the Constitution and laws of the United States, the State Courts are divested of the power to punish for the counterfeiting of the coin of the United States, or for the coun terfeiting of any species of coin brought from any foreign nation, the value of which has been regulated by Congress, or for passing any such counterfeit coin.</p> <p>2d. Because, in the first count in said indictment, said defendant was not charged with falsely and fraudulently tendering said Spanish dollar in payment.</p> <p>3d. Because, in the second count in said indictment, it is not stated to whom said silver coin was tendered; nor is it stated What kind, of silver coin it Was — whether a foreign coin or a coin of the United States — nor is it stated that the silver coin was of the likeness or similitude of any silver coin that was passing or in circulation within this State.</p> <p>The Court sustained the exception to the first count and ordered the same stricken out, and overruled the other objections. To which decision, overruling the objections of the defendant, the defendant, by his counsel, excepted.</p>

Assumpsit, &c. in Oglethorpe Superior Court. Tried, October Term, 1848, before Judge Sayre. This was an action commenced by Crenshaw against Jackson, for the purchase money for a cotton gin sold him.

Fi. fa. levy and claim, in Richmond Superior Court. Tried before .Judge Holt, January Term, 1849. A fi-fa. in favor of Jesse Robinson, as guardian of A. J. Lamar, against John Schly, was levied on several negroes, to which a claim was interposed by William Cooper, and the parties were at issue upon this claim.

Trover, in Washington Superior Court, December Term, 1848. Tried before Judge Holt.

<p>Caveat, in Washington Superior Court, March Term, 1849. Tried before Judge PIolt,</p> <p>A caveat was entered to the probate and recording of tbe will of Elisha King, deceased, on sundry grounds, two only of which have been reviewed before this Court, viz :</p> <p>1st. That the will was not properly attested by the witnesses to the same; and</p> <p>2d. That the following clause is void under the Statutes of Georgia, prohibiting tbe manumission of slaves — “ It is my will and desire, that my old servant, Writ, and her five children, viz : Mat, Sherrod, Chany, Dilla and Fanny, and her husband, Jacob, may be made to live comfortable under tbe superintendance of my friends, Samuel Robinson and Henry Wood, into whose care and under whose protection I do hereby give and place the negroes herein named, in view of their being treated with humanity and justice, subject to the laws made and provided in such cases.” Upon the trial on appeal from the Court of Ordinary, it was in evidence that, at the time of the attestation of the will, the testator was lying in bed and signed the will, which was then taken into the piazza, some ten feet distant from the testator, to a table, and there subscribed by all the witnesses ; but the situation of the table was such, that the testator could not see the witnesses attest the will. They were out of the room not more than three or four minutes. The testator was not able to rise from bed without assistance. '</p> <p>Parol testimony was offered to 'prove, by the admissions of Samuel Robinson and Henry Wood, the executors and legatees, that the object and intention of the testator in bequeathing tbe slaves to them, was to avoid the manumission laws of Georgia, and virtually to set them free.</p> <p>Counsel for propounders objected to the testimony. The objection was overruled, and propounders excepted.</p> <p>It was testified by Joseph Bangs, that “Robinson, after the death of King, asked the advice of witness what to do ; that King, by his will, intended to free his negroes, and said he was afraid the community would think hard of him ; that he had written a will to free the negroes, and had told testator he could free them; that he, Robinson, did not know then that it was against the law.” Dr. J. S. Smith testified, that “ Robinson told him, that old man King wanted to free his negroes, and asked witness’ opinion of a draft of a will he showed him.” One of the subscribing witnesses testified, that at the request of testator, he “ read over to him the law on the subject of emancipating slaves, before the will was signed. ’ After he read the law, testator turned over and said, ‘well, they must go back again.’ When witness got there in the morning, Henry Wood was there, and stated to witness, that Elisha King wanted to write his will and free his negroes.”</p> <p>The Court charged the Jury, that from the face of the instrument itself, it was the opinion of the Court, that the testator intended to give an estate in the negroes different from what the law admitted, and that the Jury were at liberty to ascertain that intention, either from the instrument itself, or from testimony, or from both together.</p> <p>To all which charge counsel for the propounders excepted.</p> <p>Counsel for propounders, among other things, requested the Court to charge, “That an actual presence of the testator when the will is subscribed by the witnesses, is not required bylaw; but that there is a constructive presence, and that the testimony in this case makes such a case of constructive presence as to satisfy the provisions of 29 Charles II.”</p> <p>The Court refused so to charge, and counsel for propounders excepted.</p>

<p>£1."] Bonds, notes and other dioses in action, are not liable to be seized and sold under execution, unless made so specially by Statute.</p> <p>£2.] A defendant in fi. fa. has the right to transfer promissory notes in bis possession, to-other than judgment creditors, in satisfaction of tkoir claims. A judgment at law has no lien on notes in the hands of the defendant.</p>

Debt on bond, in Wilkinson Superior Court. Tried before Judge Merriwetiier, April Term, 1849. This was a suit on the official bond of William Cooper, former Sheriff of Wilkinson County.

Assumpsit, in Warren Superior Court.- Tried before Judge Sayre, April Term, 1849.

<p>[1.] Marriage articles will be executed in favor of all persons coining within the scope of the marriage consideration, and at their instance, but not at the instance of mere volunteers.</p> <p>[2.] Those having natural claims upon the parties, such as the wife and offspring, and those claiming under or through them, alone come within the scope of the marriage consideration.</p> <p>[3.] The fact that collaterals are first mentioned in the limitations of the articles, does not bring them within the reach and influence of the agreement.</p> <p>[4. ] Where a Court of Equity executes articles in favor of persons within the scope of the marriage consideration, it will, at the same time, execute them also as to volunteers — it being the rule of Chancery to do nothing by halves.</p> <p>[5.] Where, upon application to a Court of Equity, the marriage articles are executed partially, viz: in behalf of one of the settlers, without being executed as to the volunteers: Held, that upon a subsequent application to a Court of Equity, at the instance of volunteers, the former decree cannot be invoked in their favor.</p>

<p>Application for mandamus, before Judge Merriwetiier. Decided in Baldwin Superior Court, February Term, 1849.</p> <p>John S. Stephens, former Sheriff of Baldwin County, was attached and imprisoned in the jail of said County, for a contempt of the Superior Court, in failing to pay over money collected on a ji. fa. in favor of John A. Breedlove. After remaining imprisoned one hundred and sixty-five days, he was discharged by order of the Superior Court, he being utterly insolvent.</p> <p>William R. Bivins, the Jailor, applied to His Honor Judge Merriwetiier for a mandamus, to be directed to the Justices of the Inferior Court of Baldwin County, requiring them to show cause why a mandamus absolute should notissue, requiring them to pay to the Jailor the amount of his fees for keeping and dieting said Stephens.</p> <p>Upon hearing the return, the only question submitted for the decision of the Court below was, the liability of the County, under the Statutes of Georgia, for the payment of these fees. The Court below decided in favor of the relator, Bivins, and the Justices excepted.</p>

In this cause a motion was made to dismiss the writ of error, on the ground that it did not appear that the bill of exceptions was signed and certified within thirty days from the adjournment of the Court. The bill of exceptions specified that the cause was tried at February Term, Baldwin Superior Court, which sits on the 4th Monday in said month. The certificate of the Judge bore date 29th March, 1849.

Garnishment, in Baldwin Superior Court, February Term, 1849. Decided by Judge Merriwetiier. Harper Tucker, as assignee of a judgment in favor of the Central Bank against Frederick Butts, issued a summons of garnishment, directed to Messrs. Harris & Day, practising attorneys at law. Seaton G. Day, one of the garnishees, in his return stated, that he had in his hands the sum of $185 09, collected by him as the attorney at law of Frederick Butts.

In Equity, in Richmond Superior Court; motion to amend. Decided by Judge Holt, March Term, 1849. A fi. fa. in favor of William Dearing against Samuel H. Peck, was levied on 310 shares of the principal stock of the Augusta Insurance and Banking Company, as the property of Peck. The stock was sold by the Sheriff and a portion bought by Dearing.

Action on the case for deceit, in Elbert Superior Court. Tried before Judge Sayre, March Term, 1849.

Assumpsit, in Jasper Superior Court. Tried before Judge Merriwetiier, April Term, 1849. Suit was commenced by the executors of Drewry Brewer against Clark Brewer, upon the following acknowledgment: “ I do hereby acknowledge the credit of three hundred and thirty-two 50-100 dollars to be due to the estate of Drewry Brewer, deceased.

<p>In Equity, in Morgan Superior Court. Tried before Judge Merriwether, March Term, 1849.</p> <p>Littleton T. P. Harwell and his wife, Martha Harwell, formerly Martha Robinson, filed their bill in Morgan Superior Court against Peter Walton, administrator of Isaac R. Walton, deceased, charging—</p> <p>That Martha S. Harwell was born in 1804, and at the'age of four days was adopted by Isaac R. Walton, deceased, as his child; that about the year 1818, the said Isaac R. being desirous to settle a plantation, was so well pleased with a lot of land belonging to complainant’s father, Littleberry Robinson, known as the Black Gum Hill lot, that after repeated applications'to buy the said lot, which the said Robinson repeatedly refused to sell or convey to said Walton, that said Littleberry Robinson finally, about the first of December, 1818, at the earnest solicitation- of said Isaac R. and in^consideration of an agreement and promise, then entered into by the said Isaac R. to the said Littleberry, that he would put tysenty negroes, slaves, upon said lot of land, and add thereto such'other land as might become necessary for the said slaves and ¡(¿eir increase to cultivate, during the lifetime of the said Isaac Eii'iand at his, said Isaac R.’s, death, to deliver and convey, or causis to he delivered and conveyed to your oratrix, the adopted child of the said Isaac R. as aforesaid, the said Black Gum Hill lot, with such other land as might be added thereto for the purposes aforesaid, together with the said twenty slaves and their increase, and such stock, plantation tools and furniture, utensils, &c. as might be upon said place, at the death of said Isaac R. he, the said Littleberry Robinson, did convey to the said Isaac R. the said Black Gum Hill lot of land, worth $4000, together with a stock of cattle, sheep, &c. worth $500, upon said lot of land, the said Isaac R. paying nothing for the said land and stock, as they are informed and believe; nor was he, by the agreement with said Liltleberry Robinson, bound to pay for the conveyance of said land, and delivery of said stock, any other consideration than that set forth in said agreement; that in pursuance of said agreement, the said Isaac R. in good faith, did put twenty negroes, slaves, upon said plantation, and went into the possession of the same, and did jsurchase other lands adjoining said lot, and often, during his lifetime, told the complainants and others, that the said plantation and all that was thereon would belong to" them at his death. The bill farther charged, that the said Isaac R. died without conveying or causing to be conveyed the said property as agreed upon. The bill specified the property that was upon the plantation at the death of Walton, and charged that the same was sold by the administrator. The prayer of the bill was, that the administrator might be decreed to deliver to said complainants, said jfiantation, negroes, stock, &c. such as it was at the death of the said Isaac R; and if the administrator shall answer that he has sold the said property, so that the same cannot be conveyed and delivered, that he be decreed to pay out of said estate the full value thereof; or that he be decreed to pay the sum of $4000, with interest thereon from the time Walton received the land, and for general relief.</p> <p>The answer of Peter Walton, the administrator, denied the agreement set up in the bill, and insisted upon the Statute of Frauds.</p> <p>Peter Walton died pending the bill, and John Robson was appointed administrator, de holds non, of Isaac R. Walton, and made regularly a party to the proceedings.</p> <p>On the trial on the appeal, after the bill was read to the Jury, counsel for defendant moved to dismiss the bill, on the ground that the facts stated therein did not make such a case as would authorize the equitable interference of the Court. Which motion the Court overruled as being inadmissible at that time, in the orderly conduct of a suit in Chancery. To which decision counsel for defendant excepted.</p> <p>Complainants offered-in evidence the testimony of Robert Taylor, taken by commission, to prove the admissions of Isaac R. Walton, to which counsel for defendants objected—</p> <p>1st. Because parol evidence is inadmissible to prove the express trust in the land alleged in the bill, in order to enforce its specific performance.</p> <p>2d. If the facts stated in the bill amounted to and made out a case of fraud, the heirs at lato of Littleberry Robinson, and not the complainants, were entitled to recover under the sanie.</p> <p>3d. Because a remainder in property cannot be created by parol.</p> <p>4th. That a specific performance of personalty cannot be decreed under the allegations in this bill.</p> <p>The Court overruled the objection and admitted the evidence, and defendant excepted.</p> <p>Much evidence was introduced on the trial unnecessary to be embodied here.</p> <p>Upon the close of the evidence for the complainants, the defendant’s counsel moved to dismiss the bill, on the ground that the case stated in the bill, and attempted to be sustained by the evidence, was not such a case as would entitle the complainants to a decree.</p> <p>The Court overruled the motion and defendant excepted.</p> <p>The defendant then offered in evidence the will of Littleberry Robinson, to show that Mrs. Harwell received under it an equal share of his estate. The evidence was rejected by the Court, and defendant excepted.</p> <p>The Court charged the Jury, that if from the testimony the contract stated in the bill had been proved, according to the rules of law which it would give them in charge, they were bound to find for complainants the value of the property, with interest from the sale. To which charge defendant excepted.</p> <p>Counsel for defendant requested the Court to charge the Jury—</p> <p>1st. That there having been no written evidence of the creation or manifestation of the trust as to the land, the same cannot be executed by a decree of specific performance.</p> <p>2d. That the remainder in this case being created by parol, is void.</p> <p>3d. That a specific performance of personalty cannot be decreed on the facts charged in this bill.</p> <p>4th. That the evidence in this case is contradictory, and if the Jury should find the testimony setting up this pretended trust to be contradicted by other evidence, and contradictory in itself, they cannot decree in favor of complainant.</p> <p>5th. That the Jury cannot decree in favor of the complainants, unless they are satisfied that at the time of the agreement about the land, Isaac R. Walton induced Littleberry Robinson to convey the land to him with a fraudulent intent at the time not to-comply with his contract.</p> <p>6th. That by the contract set up in the bill, an estate for life was created in Isaac R. Walton, and a remainder in the land and negroes in Mrs. Harwell, which being in parol, is void.</p> <p>7th. That if the Jury believe that the conveyance of the land from Littleberry Robinson to Isaac R. Walton, was fraudulently procured by Walton, that the heirs at law of Robinson, and not the complainants, would be entitled to recover; and in that event they could recover only the land so fraudulently conveyed, and not the negroes and other property.</p> <p>All of which the Court refused to charge, as it had already adjudicated all the grounds except the 4th and 5th. On the 4th ground, the Court declined giving an opinion to the Jury by way of direction, that the evidence was or wasmot contradictory, but charged, that if the evidence was contradictory in itself, the Jury could not find for the complainants. On the 5th ground, the Court charged, that the fraudulent intent need not to be proved to have existed eo instanti, with the making of the contract with Robinson, but if he failed to do what he promised, the law will evidence his intent by his act, and connecting his failure to convey with the original agreement, will presume the- existence of that fraudulent intent on the part of Walton at the time of the conveyance by Robinson.</p> <p>To all of which charge, and refusal to charge, defendant excepted ; and upon these several exceptions error has been assigned.</p>