Volume 7 — Georgia Reports

Motion to dismiss the writ of error and affirm the judgment below, on the ground that there was no appearance for the plaintiff in error, he having been called in open Court.

Indictment for murder in the second degree, in Lowndes Superior Court. Triedbefore Judge Scarborough, December Term, 1848. Jonathan Studstill was put upon his trial, under the following indictment: Georgia, Lowndes County : The Grand Jurors, &c. in the name and behalf of the citizens of Georgia, charge and accuse Manuel Studstill and Jonathan Studstill, both of the County and State aforesaid, with the offence of murder, as principals in the second degree.

Petition for dower, in Pulaski Superior Court; also, bill in Equity in said Court. Both decided by Judge Scarborough, March Term, 1849. These causes, involving the same questions, and being parcel of the same case, were argued together. Allen Tóoke, of Houston County, died, leaving the following last will, which was only proven and recorded : “Georgia, Houston County: “ In the name of God, amen.

Debt on guardian’s bond. Tried in Irwin Superior Court, March Term, 1849, before Judge Scarborough, This was an action on a guardian’s bond, dated 14th January, 1839, and recorded 14th November, 1839. The-bond did not appear on its face to have been approved or attested by any person.

Application to dissolve an injunction. Decided by Judge Warren, Baker Superior Court, in Chambers, 16th February, 1849.

Rule against the Sheriff, in Randolph Superior Court. Decided by Judge Warren, April Term, 1849. John H. Howard and James M. Chambers, plaintiffs in three distress warrants, issued against one John Mclver Davis, by a rule nisi in Randolph Superior Court, called upon the Sheriff to show cause why he should not pay over to them money in his hands, arising from the sale of property of the defendant under these warrants.

Motion to distribute money, in Decatur Superior Court. Decided by Judge Warren, June Term, 1849.

<p>[1.] The notice required by the Act of 1845, is of the signing, not ihe filing, of the bill of exceptions.</p>

Assumpsit, &e. in Harris Superior Court. Tried before Judge Alexander, March Term, 1849. .Stephen D. Heard, as administrator of John Nix, deceased, brought an action against Reuben J. Crews, as executor of Charles Philips, deceased, alleging, that Charles Philips, as the agent of John Nix, then in life, on the 1st of January, 1837, sold to James Harlow and William R. Parker, a tract of land, the property of Nix, and received, as agent, five hundred dollars, in part payment…

Assumpsit, in Harris Superior Court. Decided by Judge Alexander, March Term, 1849. Obadiah M. Culbreath died intestate, leaving neither wife nor children. Plis nearest of kin were seven surviving brothers and sisters, and tjjp children of a deceased sister. William Culbreath, the administrator, under a misapprehension of the law, divided the estate equally between the seven brothers and sisters, to the exclusion of the children of the deceased sister.

. In Equity, in Harris Superior Court. Tried before Judge Alexander, March Term, 1849. Randal Jones died testate, leaving a large estate, amounting to $250,000.

A motion- was made to dismiss this writ of error, on the ground that from the bill of exceptions it appeared that, after the making of the several decisions by the Court in the trial below, which were' excepted to, the plaintiff below and plaintiff in error voluntarily dismissed his case.

Assumpsit, &c. in Muscogee Superior Court. Tried before Judge Alexander, November Term, 1848. George W. Greene brought suit against Edward Carey, assignee of the Bank of Columbus, to recover the amount of seVenty-six promissory notes, or bank notes, issued by that bank.

<p>Assumpsit, &c. in Muscogee Superior Court. Decided by Judge Alexander, May Term, 1849.</p> <p>Edward Carey, as the assignee of the Bank* of Columbus, brought suit against Daniel McDougald, as indorser upon the following instrument:</p> <p>“ Planters’ & Mechanics’ Bank, Columbus, Ga. Jan. 29,1842. “13,987 74.</p> <p>“ Gen. James C. Watsonhas deposited in this bank three thousand nine hundred and eighty-seven 74-100 dollars, which sum said bank will pay to him, or his order on this certificate, on the first day of January next.</p> <p>[Signed,] M. ROBERTSON, Cashier.</p> <p>“ Indorsed, J. C. Watson, D. McDougald, M. Robertson.”</p> <p>The defendant’s counsel demurred to plaintiff’s declaration, on the ground that the instrument declared on was not negotiable by indorsement, and that the defendant, therefore, was not liable on his alleged indorsement.</p> <p>The Court sustained the demurrer and dismissed the action, and this decision has been brought before this Court to be reviewed.</p>

Attachment in Muscogee Inferior Court, Certiorari to the Superior Court. Decided by Judge Alexander, May Term, 1849, This was an attachment issued against Birdsong & Sledge, at the instance of Joab Brooks, returnable to the Inferior Court of Muscogee County. At the second term, after the attachment sued out, the defendants in attachment moved to dismiss the same on the ground that no declaration was filed at the first term, as required by the Statute.

<p>Assumpsit, &c. in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1849.</p> <p>William Dougherty, the holder of bank notes of the Chattahoochee Rail Road and Banking Company, to the amount of $6,850, brought suit upon the same against John Bethune,- as assignee of the said company, and judgment by default was entered at the first term.</p> <p>The defendant pleaded at the trial term, that he was not the assignee, as alleged in plaintiff’s declaration, and that the only assignment under which defendant had ever consented to act as trustee, was made by the company to Van Leonard, William P. Yonge and this defendant.</p> <p>The defendant farther pleaded, that there never was an assignment made by the said company, and recorded in the Clerk’s office of the Superior Court of Muscogee County, as is alleged in the Act of the Legislature- of the State of Georgia, passed on the 23d December, 1843.</p> <p>The Act referred to provides, in the 1st section, that the assignment made by the Chattahoochee Rail Road and Banking Company to John Bethune, (among other assignments specified therein,) “ which assignments conform to the Act of the last General Assembly, and are of record in the Clerk’s' office of the Superior Court of Muscogee County, shall be taken, held and considered valid for all purposes, both in Law and in Equity.</p> <p>Section 2 provides for the settlement of the debts due to and from the companies, by their respective assignees.</p> <p>Section 3 provides that the assignees shall, upon motion, he made parties to any suit pending, “ and that they shall have full power to sue and be sued in their character as assignees,.for any demand due to and from said banking institutions.”</p> <p>Section 4 provides that the assignees shall be subject to the same duties, responsibilities, pains and penalties as are provided for receivers in the Act of 1842.</p> <p>At the trial the plaintiff moved to strike out the pleas of defendant, and upon hearing argument, the Court sustained the motion as to that portion of the plea, alleging that the only assignment under which the defendant ever consented to act as trustee, was made to him jointly with others, and overruled the motion as to the other pleas, to which last decision plaintiff excepted.</p> <p>The plaintiff read his notes or bills in evidence to the Jury, and closed his case; whereupon defendant’s counsel moved for anon-suit, on the ground that plaintiff was required to prove that John Bethune was assignee; which motion the Court sustained, and ordered a nonsuit. To this decision the plaintiff excepted.</p>

In Equity, in Muscogee Superior Court. Before Judge Alexander, May Term, 1849. James C. Watson died testate in possession of a large estate, and John H. Watson and Benjamin W. Walker qualified as bis executors. Subsequently these executors were removed for misconduct by the proper Court, and Mansfield Torrance appointed administrator de bonis non.

In Equity, in Muscogee Superior Court, before Judge Alexander, May Term, 1849.

<p>Covenant, in Muscogee Superior Court. Demurrer to Plea. Decided by Judge Alexander, May Term, 1849.</p> <p>The 'Water Lot Company of the City of Columbus conveyed to William Brooks, a certain lot of land, lying in the City of Columbus, adjoining their canal or reservoir, with certain water privileges, which conveyance was subject to the following conditions, to wit: that “ Brooks, his heirs and assigns, should be confined and restricted to the privilege of erecting and running a saw-mill or saw-mills, on said lot; and farther, that said lot or poi - tion of ground should be entitled to no part or portion of the water commanded by said canal or reservoir; but that the said Wm. Brooks,his heirs and assigns, should be entitled to use, for driving said saw-mill or saw-mills, such part or portion as he or they might think proper, of the water belonging and appertaining to lot No. 15, which he had purchased.” Lot No. 15 joined the canal or reservoir, also.</p> <p>To the November Term, 1848, of the Superior Court of Muscogee County, the Water Lot Company brought their action for a breach of this covenant on the part of Brooks, alleging that he had erected a large wooden building, three stories high — the two upper stories being utterly useless for a saw-mill — and in which Brooks had placed a great variety of machinery — turning lathes, machinery for manufacturing window blinds and sash ; for manufacturing doors, tables, &c.; for planing plank, with a variety of circular saws, constituting no part of a saw-mill, &c.</p> <p>At the appearance term of this suit, the defendant filed a plea an abatement, alleging, that on the 3d October, 1848, he conveyed one moiety of the said lot to John G. Winter; and that he {Brooks) has not alone, but in connection with Winter, erected the building described, and placed therein the machinery complained of; and, also, that George W. Winter, George F. Drew and Noah Moody, were each partially interested in this machinery; and .of this he prayed judgment.</p> <p>At the same term, plaintiff’s counsel demurred to this plea; to the hearing of which demurrer defendant’s counsel objected, on the ground that the same could not be heard at that term. The 'Court overruled the objection, and defendant excepted.</p> <p>Upon hearing the demurrer, the Court adjudged the pleas insufficient. To which ruling defendant excepted. And on these ■exceptions error has been assigned.</p>

Garnishment, on appeal, in Muscogee Superior Court. Decided by Judge Alexander, May Term, 1849.

Trover, &c. in Muscogee Superior Court. Motion to amend. Decided by Judge Alexander, May Term, 1849. Suit was instituted in the name of William Law against Wood-son, for the recovery of a negro slave.

In Equity, in Muscogee Superior Court, May Term, 1849. A bill in Equity was filed by the plaintiff in error against the defendant in error, the charges of which are not necessary to be stated.

In Equity, in Muscogee Superior Court. Decided by Judge Alexander, May Term, 1849.

<p>Trover, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1849.</p> <p>Richard R. Goetchius commenced an action of trover, with a count in case, against the City Council of Columbus, for the value of a negro man, Crawford. On the trial, at May Term, 1849, the plaintiff objected to certain persons on the Grand Jury list serving as Jurors, on the ground that they were citizens of the City of Columbus. The Court ruled them incompetent, and defendants below excepted.</p> <p>Defendants’ counsel suggested that there were other persons on the Jury who were also citizens of Columbus. The plaintiff waived any objection to them. The Court announced to the defendants, that they might challenge for that cause if they thought proper so to do. Which the defendants declining to do, the Court refused to discharge them. To which ruling defendants excepted.</p> <p>The evidence disclosed upon the trial, that in 1843 the small pox broke out in the white family of Dr. Chipley, the City Physician of Columbus. The City authorities placed a guard around the lot, and would permit no one to enter or come out. Crawford, a negro man, mechanic, the property of Goetchius, had a wife on the lot, and being there was retained by the guard. Some twenty days thereafter, Crawford was attacked with confluent small pox, while on the lot, and there died. During his sickness lie was in a small house, sixteen by twenty feet, with one door and one window, but no chimney. The witness saw no one paying any attention to Crawford. Dr. Boswell testified that he notified the City Physician that the house was too small, and not well ventilated. The negro was lying on blankets, and the pustules breaking, the oozing matter caused the hair or nap of the blanket to adhere to the flesh, and thus the negro became one mass of filth and corruption. Dr. B. testified, that nineteen out of twenty die with confluent small pox where they have not been vaccinated. There are twenty chances to one that the negro, if vaccinated, would have recovered. The general average for the breaking out of this disease is from twelve to fourteen days. It was in evidence that the boy had been at large before he had recovered from the disease. It was also proven that Dr. Chipley himself had an attack of varioloid about the same time; that Crawford was treated in the same way with other negroes belonging to Dr. C. and attacked with the disease.</p> <p>The testimony of Jacob G. Moses, the Mayor of the City for the year 1843, taken by commission, was offered in evidence by the plaintiff. Defendants’ counsel objected to the following: “ And in regard to the plaintiff’s calls upon the witness relative to Crawford, witness recollects distinctly that nothing on the subject would have been listened to except through the action of the defendants.”</p> <p>The Court overruled the objection, and defendants excepted.</p> <p>In chargingthe Jury the Court remarked, “ That the case they were called upon to decide was of five years standing in the Court; that there had been two mistrials in the case, attributable in the opinion of counsel, as the Court supposed, to the fact that citizens of Columbus composed in part the Juries which tried the cause; that upon objections to such Jurymen, the Court had required them to be impannelled from non-residents of the City, having no interest in the issue between the parties. The Court trusted, that under the evidence submitted, and the instructions of the Court as to the law involved, they would be enabled to make a verdict satisfactory to the parties, and so relieve the business of the Court of this old and troublesome matter of litigation.”</p> <p>To this part of the charge defendants excepted.</p> <p>The Jury found a verdict for the plaintiff; whereupon defendants moved a new trial, on the ground of the decisions complained of, and before set out, and the farther ground, that James C. Cook, one of the Jurymen, had formed and expressed an opinion in favor of the plaintiff previous to the trial, which was unknown to defendants’ attorneys.</p> <p>In support of this ground, defendants introduced the affidavit of one Andrew P. Jones, who swore, that on the morning before the trial, in a conversation with Cook, he remarked “that the City Council ought to have removed Crawford away from Dr. Chipley’s when he was first found there; that it was a long time before Crawford took the small pox, and if he had been removed at once, he would, in all probability, not have taken it at all.”</p> <p>Plaintiff, on the hearing, produced the affidavit of Cook, the Juryman, who swore, that the remark he made to Jones was a casual one, founded upon rumor, and to the effect, “ that if the Council thought the negro would spread the small pox, they ought to have put him off in the hospitalthat he had forgotten the conversation until recalled by the affidavit of Jones, and that in making up his verdict he was governed solely and exclusively by the evidence under the charge of the Court.</p> <p>The Court refused the motion for a new trial, and counsel for defendants excepted.</p> <p>And upon these several exceptions error was assigned.,</p>

Assumpsit, &c. in Sumter Superior Court. Tried before Judge Warren, May Term, 1S49. This was an action against Thomas C.'Sullivan, an attorney at law, surviving partner of Sullivan and Fraser, for misconduct, in failing to collect the amount of a note placed in the hands of the firm for collection.

Levy and claim, in Talbot Sujierior Court. Tried before Judge Alexander, March Term, 1849. A judgment was rendered in the Superior Court of Talbot County, in favor of the plaintiff in error, against Marion Bethune, administrator of Z. Booth, deceased, “ quando acciderint,” and execution issued thereon on 31st October, 1845.

In Equity. In Stewart Superior Court. Tried before Judge Alexander, April Term, 1849.

<p>Levy and Claim, in Lee Superior Court. Tried before Judge "Warren, May Term, 1849.</p> <p>On the 12th March, 1822, a ji.fa. issued from Wilkes Superior Court, in favor of plaintiff in error, against Mary Sherburn and Charles Sherburn. On the 30th April, 1849, this fi.fa. was levied on a tract of land in Lee County, which was claimed by the defendants in error. On the trial, plaintiff in fi.fa. read in evidence a grant from the State to Charles Sherburn for the lot in dispute, dated 29th October, 1836.</p> <p>The claimant showed a chain of title from Sherburn to himself, .and peaceable possession under the same, without notice, for more Qian, seven years.</p> <p>The only questions made in the Court below, and argued in this Court are, whether the Act of 19th December, 1822, which protects the title of a Iona fide purchaser, without notice, from a defendant in execution, after a definite period of time, can have a retroactive operation on judgments obtained before that Act. And whether, without that Act, the claimant is protected under the general Act of Limitations of 1767.</p>

Rule vs. Sheriff, and motion to distribute money. In Muscogee Superior Court, May Term, 1849, John Millman, who was an attachment judgment creditor of Charles Huff, took a rule nisi, against the Sheriff of Muscogee County, to show cause why he should not pay over the' amount due on the same.

Ejectment, in Stewart Superior Court. Tried before Judge Alexander, April Term, 1849. This was an action of ejectment, filed in the usual form, wherein John Doe, on the demise of Richard Connelly, was plaintiff, and William Hilliard was defendant. Upon the trial, counsel for defendant demurred on the ground that it did not contain the party’s “ charge, allegation or demand, plainly, fully and distinctly set forth.” The Court overruled the demurrer, and defendant excepted.

<p>Motion to dismiss the writ of error. The grounds of the motion are embodied in the decision of the Court.</p>

<p>[1.] In this State a mortgage is considered as only a security for the debt of the mortgagor; the mortgaged property, after the foreclosure of the mortgage, is directed to he sold, and after the payment of the mortgage debt, the surplus proceeds of the sale, if any, are to be paid to the mortgagor.</p> <p>[2.] The general rule is, that where mortgaged property is levied on by an execution, issuing upon a general judgment against a mortgagor, and sold as the property of the mortgagor, subject to the incumbrance of the mortgage, the purchaser under such general judgment gets only the mortgagor’s equity of redemption in the property so mortgaged, and the proceeds of such salo belong to the mortgagor, or his general judgment creditors.</p> <p>[3.] Where a mortgagee had foreclosed his mortgage, and obtained an execution against the mortgaged property, which had been levied By the Sheriff; and had also obtained a general judgment against the mortgagor for the same debt; and the fi. fa. issuing therefrom had been levied on the samo property, and advertised for sale on the same day, and tHe whole corpus, of the property mortgaged was sold by the Sheriff under the general judgment, subject to the mortgage lien, by the direction of the mortgagee, under a mistake, that the equity of redemption of the mortgagor could not be sold after the foreclosure of the mortgage : Held, that inasmuch as the whole corpus of the property was sold, and sold for its-fidl vahío; and the same not being sufficient to extinguish the mortgage debt, that in the distribution of the proceeds of the sale, according to the peculiar, facts of tile case, the mortgagee, having the oldest lien, was equitably -entitled tb Have the money in the hands of the Sheriff applied thereto.</p>

In Equity, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1849. From the direction given to this case in the Supreme Court, it is unnecessary to state the facts and points made in the Court below, farther than they appear in the decision of the Court.

Fi. fa. and claim, in Randolph Superior Court. Tried before Judge Warren, April Term, 1849. A fi. fa. in favor of James E. Duncan against Lemuel Webb, was levied on a tract of land as the property of defendant, 26th May, 1846, to wliich a claim was interposed by Richard Foster.

Assault and battery. Tried in Baker Superior Court, before Judge Warren, June Term, 1849. James J. Keaton was indicted for an assault and battery upon one Andrew Odum.

Assumpsit, &c. Bibb Superior Court, and motion for new trial. Hoard before Judge Floyd, January Term, 1849. The Bank of Hawkinsville, now the Merchants’ Bank of Macon, the plaintiff in error, in the year 1842, held a fi. fa. against William F. Bond, for the sum of two thousand dollars, principal.

Bibb Superior Court. Heard before Judge Floyd, January Term, 1849. This was an action on the case, brought by the plaintiffs in error against the defendants in error, for the recovery of $1,378 14.

Illegality. Bibb Superior Court. Heard before Judge Floyd, January Term, 1849. At the May Term, 183S, of Bibb Superior Court, the Trustees of Bibb County Academy obtained a judgment against the plaintiffs in error. The Trustees subsequently transferred the judgment to Elam Alexander, and for the want of an entry by the proper officer, the judgment became dormant, under the Act of 1823.

<p>In Equity, in Bibb Superior Court. Tried before Judge Floyd, January Term, 1849.</p> <p>Scott Cray, as Receiver of the Ocmulgee Bank, filed his bill against Abner Powers and James Gates, returnable to November Term, 1844, of Bibb Superior Court.</p> <p>The bill charges, that as attorney for the bank, Powers assumed the control of two fi. fas. in favor of the bank against Charles Collins, as maker, and Jewett & Burch, indorsers; that Powers claimed to be due him from the bank, commissions upon a large amount of money, sued into judgment for the bank, and that he caused the two fi. fas. mentioned, to be levied by James Gates, Sheriff of Bibb County, upon certain real estate in the City of Macon, for the purpose of paying himself th<?'said commissions.</p> <p>The bill farther charges, that the two fi. fas. had been paid off and discharged by Collins, the maker.</p> <p>The bill prays that the defendant may account to the plaintiff for all moneys collected by him as attorney for the bank, and that he may be required to prove the lien which he claims to hold upon the two fi. fas. mentioned against Collins. The bill also-prays for an injunction to restrain the collection of the saidyi.jfas. by Powers, the defendant.</p> <p>Powers and Gates answered the bill, and at Chambers, on the 25th June, 1844, Judge Tracy, then the presiding Judge of the Flint Circuit, dissolved the injunction,- on the ground- that the defendant had sworn off the equity of complainant’s bill, and order*ed the fi. fas. to proceed.</p> <p>The bill was not dismissed, but was continued in Court for several years, when the complainant filed an amendment to his bill.</p> <p>■ The amended bill charges, that the defendant, Powers, as the collecting attorney of the bank, in the year 184 — , received notes for collection from the bank, amounting to $172,552 26, and for which said notes the defendant has rendered no account.</p> <p>The amended bill farther charges, that the defendant, Powers, has long since collected the sum of $4,028, by virtue of an execution in favor of the bank against one Dougherty and others, and of which he has made no account; that the defendant was indebted to the bank in the sum of $178, being the amount overpaid him by the bank for damages and expenses on a protested check; that the defendant had collected from Hardy Dunham $144 37 on his note.</p> <p>The amended bill farther charges, that a house and lot in the City of Macon had been sold under a ji. fa. in favor of the bank against Jewett & Burch, and bid off by the defendant, Powrnrs, for the sum of $4,000, and that the Sheriff had not yet executed titles to the defendant for the said house and lot; that the defendant has refused to account for the rent or value of the said house and lot to complainant, although he claims title to the same.</p> <p>The amended bill prays, that the defendant may be compelled to come to a full account with the complainant in reference to all the matters and things charged, and that he may be decreed to pay over to complainant the money collected by biro as attorney for the bank, and to pay the amount of the purchase money for said house and lot, with interest thereon, or that the Sheriff may be decreed to make titles to complainant, and that the defendant relinquish all claims to the house and lot, and pay to complainant all the rent which 1ms been derived therefrom, and which, by prudent management, could have been derived therefrom.</p> <p>To which bill a general demurrer was filed, alleging that taking the case made by the bill to be true, it is not such a case as doth entitle complainant to the discovery and relief as is thereby prayed.</p> <p>The bill and demurrer were heard before Judge Floyd, and after argument had thereon, the same was overruled, and the defendant ordered to answer; to which counsel for plaintiffs in error excepted.</p>

<p>Assumpsit, in Pike Superior Court, Tried before Judge Floyd, August Term, 1849. ,</p> <p>On the 16th day of August, 1839, Robert Freeman, intestate of the defendants in error, executed to Joseph D. McFarland his promissory note for $3,287 00. McFarland indorsed this note to the Western Insurance and Trust Company of Columbus, Ga. After the death of Freeman,, to wit, on the 36th day of March, 1842, McFarland, as indorser, paid to the said Company the sum of $1400.</p> <p>On the 16th day of July, 1846, McFarland commenced his action against the defendants, as administrators of Freeman, for the recovery of the above sum of $1400, returnable to Pike Superior-Court. To this action the defendants, among other pleas, filed the plea of a former recovery, in an action in Pike Superior Court, between the parties. They also plead in bar to the action, a judgment-had in an Equity cause between the parties, tried in Troup Superior Court.</p> <p>The cause stood for trial at the August Term, 1849.</p> <p>On the trial it appeared, from the testimony of - one of the witnesses of plaintiff, in response to the cross interrogatories, that the note made to McFarland by Freeman, and indorsed by him to the Western Insurance and Trust Company, was given in part payment of purchase money for land, sold by McFarland to Freeman.</p> <p>The defendants on the trial offered in evidence the record of a former action, brought by McFarland against the defendants, in Pike Superior Court, and in which a recovery was had by the plaintiff. The declaration contained several special counts for the recovery of $3,485 00 due from Freeman to -McFarland, in consequence of a failure of McFarland to collect a certain fi. fa. transferred to him by Freeman against one Abraham B. Ragan, in part payment of the purchase money for land sold by McFarland to Freeman. An amendment was filed to the declaration, containing two counts, one for a balance due upon a general accounting between the parties, the other a common count for the whole amount of the purchase money for the land sold by McFarland to Freeman. The counsel for plaintiff in error objected to the record; the objection was overruled, and the record given in evidence, and counsel for plaintiff in error excepted to the decision of the Court.</p> <p>The defendants then offered in evidence, the record of an Equity-cause tried between the parties in Troup Superior Court. The bill, it appeared, was filed by McFarland against the defendants to enforce his vendor’s lien on the land, sold by him to Freeman, for that portion of the purchase money covered by the execution against Ragan. To this bill the defendants pleaded a former recovery in the action in the county of Pike, which plea was allowed, and the bill dismissed by the Court. Counsel for plaintiff in error objected to the giving the record in evidence. The objection was overruled by the Court, and counsel for plaintiff in error excepted, and upon these exceptions assigned error.</p>

Motion to dissolve injunction, in Bibb Superior Court. Decided by Judge Floyd, in Chambers, 8th March, 1849. By the provisions of an Act of the General Assembly, passed 20th December, 1828, a sale was authorized of the bridge across the Ocmulgee River at Macon, the properly of the State, to the Town of Macon, for the sum of $25,000, payable in instalments.

A motion was made to dismiss this writ of error, among other grounds, because the plaintiff in error had voluntarily dismissed his cause after the making of the decisions by the Court below complained of and excepted to.

<p>In Equity, in Pike Superior Court. Tried before Judge Floyd, February Term, 1849.</p> <p>George W. Martin, by bill filed in Pike Superior Court, alleged, that in January, 1841, he purchased of Tollesson T. Atkinson a tract of land lying in Pike county, for which he took a bond for titles, and in payment, made a deed to a tract of land in Dooly county, and gave his notes for $500, due December, 1842. Soon after the trade, Martin being about to place improvements on the land, it was levied on by Ji. fas. against Atkinson ; Martin then demanded a rescission of the contract-, but upon the promise of Atkinson to remove the incumbrance, and in the event the land was sold, to pay for all improvements, Martin proceeded to place improvements on the land to the value of $400 ; subsequently the land was sold under the fi. fas. and purchased by one Mangham, who sold to Neal, who re-sold to complainant for $400.</p> <p>The bill prayed a reconveyance of the Dooly lot, the cancellation of the notes for $500, and a reasonable compensation for the improvements on the land.</p> <p>Atkinson in his answer admitted the contract as alleged, denied the agreement to pay for the improvements, and insisted that Martin has suffered damage only to the amount paid to Neal.</p> <p>By a supplemental'answer, (see 5 Ga. Rep.) he denied that the Dooly lot was any part of the consideration of the land in Pike. On the trial, the complainant offered to prove, by witnesses who had seen a lot in Dooly county, its identity with the lot in dispute, from what was said by the neighbors and the tenant on the lot. The Court rejected the testimony, and complainant excepted..</p> <p>John Neal testified, that out of kindness to'Marlin, he bought the land from Mangham, who purchased it at Sheriff’s sale; he took the land at Mangham’s bid — $245—and sold it to Martin for $400 ; Mangham requested him not to deprive Martin of his home; there was no collusion to buy in the land.</p> <p>Other evidence was before the jury, unnecessary to be repeated. The Court charged the jury, “ that they might give to the complainant redress for all the injury he had sustained by noncompliance with the contract; that complainant had. alleged that he had purchased the land in Pike from defendant, and gave a lot in Dooly and notes for $500, but does not allege that he ever paid the notes. He further alleges that the land in Pike was afterwards levied on and sold by virtue of an execution against the defendant; that he has made large and valuable improvements, and prays a rescission of the contract. It turns out that upon the sale of the land in Pike by the Sheriff, the complainant is permitted to retain the land upon paying Mr. Neal a certain sum of money. We are called on to do equity between these parties ; you will inquire into the question of the consideration, and particularly, whether the complainant has paid for it, and so frame your decree as not to compel the defendant to pay for the loss of title to land for which complainant may not have paid. If you believe he has never paid the purchase money, you may decree the amount of injury he may have suffered to be credited on the notes given for the land, and if the injury was 'sufficient to cover the whole of the notes, you may decree that they be delivered up to be cancelled.”</p> <p>To this charge complainant excepted, and the questions made upon it in this Court were—</p> <p>1st. Whether the Sheriff’s sale amounted to a vacation of the contract as to the land 1</p> <p>2d. Whether the amount paid by Martin to Neal was the proper measure of damages for the injury done him by the sale 1</p> <p>3d. Whether Martin was entitled to recover compensation for the improvements put upon the land 1</p>

<p>In Equity, from Pike. Tried before Judge Floyd, February Term, 1849.</p> <p>Robert C. Mays, a citizen of Butts County, obtained judgment against Pleasant M. Compton and Thomas C. Taylor, in Butts Superior Court, at March Term, 1840, for the sum of §846 91, on a note made by Isaac Low, Pleasant M. Compton and Thomas C. Taylor securities. Low was not sued.. At the time of the trial there was a special plea filed by Taylor, (which was the only one filed,) that Compton was security for Low, and he, Taylor, security for both Low and Compton on said note. A collateral issue was ordered, tried and found in favor of Compton, or rather against them as joint securities. Execution was issued on the judgment in favor of Mays, and he collected one-half of the amount from Compton, and sent the ji. fa. to the County of Pike to collect the other half from Taylor. The Sheriff of Pike, Joseph H. Shivers, levied the fi. fa. upon certain personal property of Taylor, and after the levy, Taylor filed his bill in Pike Superior Court, charging that Compton had received a large amount of assets, sufficient to pay this debt, before the rendition of the judgment, or the commencement of the suit; that when suit was commenced by Mays, (who knew this fact,) Taylor employed counsel to file a plea of usury, which he was ready to sustain by proof; that in consideration of withholding this plea, Mays agreed that he would not attempt to enforce the judgment against Taylor, until Compton proved insolvent. In consequence of which agreement, the plea was not filed; Mays, however, in violation of his agreement, it was alleged, had failed to enforce his judgment against Compton, who was able to pay it. The bill farther charged fraud and collusion between Mays and Compton to swindle and harrass Taylor. The bill prayed an injunction against Mays until he complied with the agreement.</p> <p>The answer of Mays denied the agreement and every other equitable circumstance charged, and thereupon the injunction was dissolved? and the fi. fa. ordered to proceed.</p> <p>By a supplemental bill, Taylor alleged that since the dissolution of the injunction, he had paid off the judgment, and prayed that the cause might be heard and the truth of the answer placed in issue, and if found untrue, that the amount paid by him might be refunded, and other relief granted him according to the circumstances.</p> <p>By a subsequent amendment, the complainant charged that the whole of the judgment was for usurious interest, the principal loan having been paid, and prayed that the judgment be opened and declared satisfied.</p> <p>There was a confession of judgment for costs, and an appeal. Pending the appeal, the defendant, Mays, filed a plea to the jurisdiction, alleging that he was not, and never had been, a citizen of Pike County, and praying judgment thereon.</p> <p>Upon the trial, the defendant moved to dismiss the bill, (the plea being admitted to be true,)—</p> <p>1st. Because the Court had no jurisdiction of the subject matter, or of the person of Mays.</p> <p>2d. Because P. M. Compton should have been made a party.</p> <p>3d. Because the allegations of the bill give the complainant a right of action at Law, and did not constitute any ground for the equitable interposition of a Court of Equity.</p> <p>4th. Because the case made by the complainant’s bill did not entitle him to the relief prayed for.</p> <p>The Court overruled the motion, and defendant excepted.</p> <p>The Court charged the Jury, that if the agreement was as alleged, and defendant had violated it, Taylor was entitled to be placed in a situation equally as beneficial to him, that is, to the right to plead the usury.</p> <p>To which charge defendant excepted. • r</p> <p>On these several exceptions error has been assigned.</p>

In Equity, in Bibb Superior Court. Demurrer. Decided by Judge Floyd, in Chambers, 14th March, 1849.

Motion to dismiss the writ of error. The bill of exceptions in this cause simply stated that the defendants excepted to the several decisions of the Court, as follows: 1st. Because the Court erred in deciding that commissions to take interrogatories might issue in blank in regard to the names of the commissioners. 2d. Because the Court erred in refusing to allow the defendants to prove the improper and corrupt conduct of one of the commissioners who acted in taking…

<p>Ejectment, in Newton Superior Court. Tried before Judge Floyd, March Term, 1849.</p> <p>Upon the trial of this cause, the defendant in error offered in evidence a deed to the premises in dispute, made by one John Smith, as Sheriff of Newton County. This deed recited, that “ Whereas, in obedience to a writ oí fieri facias, issued out of the Justices’ Court of the County of Newton, at the suit of Isaac Benham against Jesse Morrow, Alfred Livingston, former Sheriff of the County aforesaid, did lately seize the lot or parcel, of land,” &c.</p> <p>This deed was objected to—</p> <p>1st. Because there was no order of Court directing Smith, the successor of Livingston, to execute a deed to land sold by Livingston.</p> <p>2d. Because the deed was invalid, because it recited that the former Sheriff seized and sold the land under a Justice’s Court fi. fa.</p> <p>3d. Because there was no fi. fa. accompanying the deed by virtue of which the lánd was sold.</p> <p>The Court overruled the two first objections, and required the defendant in error to produce the fi. fa. or account for its loss.</p> <p>The defendant in error then exhibited to the Court, the docket of the Magistrate of the district in which Morrow lived previous to the date of the deed, which docket contained three cases against Morrow, in favor of Benham, in which judgments had been entered and fi. fas. issued; also, two fi. fas. neither of which had a levy of the land upon it. The defendant in error also proved by Williamson and Clark, that they had made search in the Clerk’s and Sheriff’s offices, and could not find the other fi. fa.; that they had also called on the Magistrates who entered the judgments, and also the Bailiff who lived in the district where the land lay, and the Sheriff in office at the time of the sale, without any success.</p> <p>Upon this showing, the Court admitted the deed in evidence ; and these several decisions are alleged to be erroneous.</p>

Motion, &c. in Newton Superior Court. Decided by Judge Floyd, March Term, 1849.

Case for Deceit, in Butts Superior Court. Tried before Judge Floyd, September Term, 1848 ; and motion for new trial. In January, 1846, Beersheba Stroud, who owned a life estate in a negro slave, Simon, and Henry S. Mays, who owned the remainder, jointly sold the slave to James Stroud, a relative from Chambers County, Ala. for $550, and gave a bill of sale without warranty.

Motion, in Newton Superior Court. Decided by Judge Floyd, March Term, 1849. On the 31st day of December, 1847, Alonzo D. Brown executed a deed of assignment to all of his property, for the benefit of his creditors, for the provisions of which deed at large, see ante, Brown vs. Lee, page 267.

<p>In Equity, in Upson Superior Court. Tried before Judge Floyd, April Term, 1849.</p> <p>In 1840, Wiley Tyler purchased of Charles Cox a tract of land, and being unable to pay for it, it was agreed that the deed should be made to John Stephens, who should pay the purchase money, and retain the deed until Tyler re-paid him the amount advanced; for which amount Tyler gave Stephens his note, after deducting about $100, due from Stephens to Tyler. In March, 1843, Stephens died, having in his possession both the deed and the note — Tyler being in possession of the land. Difficulties having arisen about this matter between Tyler and the administrators of Stephens, in February, 1844, the same were submitted to arbitrators, selected by the parties. In the written submission there was the following clause: “ It is understood and agreed, that each party has the right to reject said arbitration or award, and that nothing said or done is to operate against them, in future, in Law or Equity.”</p> <p>The arbitrators returned an award, requiring the administrators of John Stephens to deliver up to Tyler his note, and that Tyler deliver up the possession of the land. Upon the award was indorsed and signed by both parties, their ratification, and in pursuance of the award, the land and note were mutually delivered up. Both the submission and ratification of the award were attested by O. C. Gibson.</p> <p>Subsequently, Tyler filed a bill, charging the foregoing facts, and alleging that he had paid off the note to John Stephens during his life; that the award was obtained fraudulently, and if he had ever ratified it, it was in ignorance of his rights, he believing that under the terms of the submission he would not be estopped by the award at any time ; that he had discovered evidence since the award, material to him. The bill prayed the conveyance of the land, notwithstanding the award.</p> <p>The answer denied every equitable allegation in the bill.</p> <p>Upon the trial at April Term, 1849, O. C. Gibson, the attesting witness, was offered to prove the submission and the ratification. Counsel for complainant objected, because the best evidence was the arbitrators themselves. The Court overruled the objection, and exceptions were filed.</p> <p>The submission, award and arbitration were offered by defendants, and objected to by complainant, because there was no plea of the award or cross bill setting it up in bar, and because the subtnission was signed by the administrators as individuals, and not in their trust capacity. The Court overruled the objection, and exceptions were filed.</p> <p>Counsel for complainant requested the Court to charge the Jury, “ That if Tyler accepted the note and gave up the possession of the land, in ignorance of his rights, and believing this was no ratification, it was not binding on him under the circumstances.”</p> <p>The Court refused so to charge, but said to the Jury, that if the complainant ratified the award, he was concluded by it, unless the award was collusive and fraudulent.</p> <p>To which charge, and refusal to charge, complainant excepted.</p>

<p>Issue was joined in this cause, with a motion to dismiss the writ, because the plaintiff in error in the writ was “ John Killen,” whereas, the bill of exceptions and transcript of the record showed the cause in the Court below to be against “ John Killen, executor of James H. Killen, deceased.”</p> <p>Counsel for plaintiff in error moved to amend the writ of error by the bill of exceptions.</p>

In Equity, in Houston Superior Court. Motion for a new trial. Decided by Judge Floyd, April Tenn, 1849. Held: that from the answer of defendant, admitting he had charged high interest, ranging from 8 to 30 per cent, and from the evidence, the Jury were justified in striking an average, and charging defendant therewitja, and especially as defendant had failed to show what per cent, he had realized, and upon what amount, and for what time.

Assumpsit, in Merriwether Superior Court. Tried before Judge Hill, February Term, 1849. In 1843, Alfred Welborn erected a mill-dam on his own land, adjoining the property known as the Merriwether Warm Springs, then the property of Seymour R. Bonner. In 1845, Seymour R. Bonner sold and conveyed this property to the plaintiff in error, Robert Bonner.

<p>[1.] When the cross-questions in interrogatories grow out of the direct examination, and are not fully answered, they will be rejected.</p> <p>[2.] A witness cannot be discredited, by proof of statements made out of Court, irreconcilable with his testimony, until he has first been examined as to the time, place, person and circumstances involved in the statements proposed to be proven.</p> <p>[3.] Seven years exclusive and continued possession and enjoyment of a ferry right, is, in this State, presumption of a grant.</p> <p>[4.] E agrees with T, that he will advance to T the purchase money for a lot of land, free of interest for one year; in consideration of which, T agrees to secure the ferry right on said land, for the use of E ; the contract being executed, and the title of the land taken in the name of T: Held, that an implied trust is created, as to the ferry right, and that T holds it as trustee for E.</p>

Defendant in error joined issue, with a protestation in this case, and moved to dismiss the writ of error. One of the errors assigned, was the refusal of the Court below to grant a new trial; another was the admission of a bill of sale in evidence, by proving the hand writing of the party making it.

Levy and Claim, in Merriwether Superior Court. Tried February Term, 1849, before Judge Hill.

Ejectment, in Troup Superior Court. Tried before Judge Hill, May Term, 1849. Susan McLendon brought an action against John Grier for a tract of land in Troup County, and on the trial, introduced a grant from the State to her.

<p>Assumpsit and bail, in Bibb Superior Court. Decided by Judge Floyd, July Term, 1849.</p> <p>A motion was made in the Court below to dismiss the bail process in this case, on the ground that the affidavit of plaintiff did not describe or set forth the cause of action, or character of the debt on which defendant was held to bail.</p> <p>The Court overruled the motion, and defendant excepted.</p>

<p>Assumpsit, in Bibb Superior Court. Tried before Judge Floyd, July Term, 1849.</p> <p>The plaintiff in error brought suit against the defendant, on a promissory note for $150, to which special defence was made that the note was given for services rendered by plaintiff as a practitioner of medicine; that he never was licensed by the Board of Physicians, established by the Statute of the State, and was, therefore, not entitled to sue for and recover compensation for such services.</p> <p>Pending the trial at July Term, 1849, defendant having previously filed interrogatories for the plaintiff, under the Act of Dec. 17, 1847,* “ compelling discoveries at Common Law,” demanded the answers of the plaintiff to be filed in office. Plaintiff objected, on the ground that he had various grounds of demurrer to the interrogatories and the testimony thus sought, and if filed, the contents of the answers would be proven, though the demurrer was sustained. The Court ordered the answers to be filed, and defendant excepted.</p> <p>The following were the interrogatories filed :</p> <p>“Geobgia, Bibb County :</p> <p>“ Interrogatories to be submitted to the plaintiff, under the Statute in such cases made and provided, his testimony being material to the defendant in the case.</p> <p>“ Int. 1, inquired as to the consideration of the note.</p> <p>“Int. 2. Are you a regular licensed physician of any Medical Board in the State of Georgia 1 If not, under what authority do you charge fees as a physician 1 “Int. 3. (Immaterial.)”</p> <p>On these interrogatories the Court granted an order requiring the plaintiff to answer.</p> <p>The answers to these interrogatories being offered by the defendant in evidence, plaintiff objected—</p> <p>1st. Because the interrogatories are not in conformity with the Statute, in not stating that the discovery sought is indispensable to defendant's defence, and because no affidavit is filed by the defendant, as required by the Statute.</p> <p>2d. Because an answer by the plaintiff, acknowledging that he had no license, would, under the Statute, subject him to a prosecution for a misdemeanor, or any acknowledgment which might be used as a link in a chain of evidence on such a prosecution.</p> <p>The Court overruled the first objection, and Sustained the second, so far as related to plaintiff’s license as a physician, and no farther, remarking, that the Court might have sustained the second objection in toto, but that it would do the plaintiff no good, as the answers had been filed, and the defendant’s attorney having seen them, would be allowed to prove their contents.</p> <p>To which decisions defendant excepted—</p> <p>1st. To the overruling the first objection.</p> <p>2d. To the overruling a portion of the second.</p> <p>3d. To the holding that any person who had seen the answers, might prove their contents- after the answers themselves were ruled out on demurrer.</p>

. Indictment for Murder, . in Bibb Superior Court. Before Judge Floyd, July Term, 1849. On the ninth day of July, 1849, Elisha Reese was placed on his trial, for the murder of Ellen Pratt, alleged to have been committed on tlie 16th May, 1849.

Levy and claim, in Houston Superior Court. Motion for a new trial. Decided by Judge Floyd, May Term, 1849. A fi.fa. in favor of John Martin, against Thomas and J. Williams, was levied on a tract of land as the property of Thomas Williams, which was claimed by the defendant in error.

In Equity, in Jackson Superior Court. Decided by Judge Dougherty, February Term, 1849.

Ejectment, in Habersham Superior Court. Tried before Judge Dougherty, April Term, 1849. An action of ejectment was commenced upon the several demises of Thomas Register and James R. Wyly, against Haywood English, who pleaded the general issue and the Statute of Limitations. Upon the trial on the appeal, after the cause was submitted to the Jury, the counsel for plaintiff moved to amend the declaration by extending the demise to twenty years.

Attachment and declaration in debt, in Clark Superior Court. Decided by Judge Dougherty, February Term, 1849. The declaration filed on this attachment, was in debt, and showed the cause of action to be a judgment obtained in the Court of Common Pleas of Augusta, 15th November, 1838, more than seven years before the suing out of the attachment.

In Equity, in Floyd Superior Court, July adjourned Term, 1S49. Tried before Judge Wright. The Ruekersville Bank recovered a judgment against James Hemphill, for a large sum of money.

Rule against the Sheriff, in Forsyth Superior Court. Decided by Judge Wright, August Term, 1849. William G. Field was arrested under a ca. sa. in favor of defendant in error, by the plaintiffin error, who was Sheriff of Forsyth County. Field gave bond for his appearance, to take the benefit of the “ Honest Debtor’s Act,” at the February Term, 1849.

<p>A motion was made to dismiss this writ of error, among other grounds,</p> <p>■ 1, Because notice of the signing of the bill of exceptions, was not served by a Sheriff, Constable, or Attorney of the Superior Court, as the law requires.</p> <p>2. Because the evidence in the Court below is not embodied in the bill of exceptions, as required by the rules of this Court.</p> <p>It appeared from the record that the notice of the signing of the bill of exceptions, was served by the plaintiff in error. The bill of exceptions was tendered on 4th September, 1849, and had no reference, whatever, to the evidence. There was a separate sheet of paper, purporting to contain the evidence, on the back of which the Judge certified, on 10th August, 1849, that the same was a copy, in substance, of the evidence.</p>

This writ of error was sued out to review a decision .of Judge Wright, ordering an indictment quashed against the defendant, who was charged, in Lumpkin Superior Court, with the offence of false imprisonment. A motion was made to dismiss the writ in this Court, on the ground, that under the Act organizing this Court, a writ of error does not lie at the instance of the State to review a decision in favor of the defendant.

Case for deceit, Floyd Superior Court. Tried before Judge Wright, July 4,1849. This was an action of deceit, for falsely representing a note to be solvent, and thereby inducing the plaintiff below, (Kinsey,) to purchase it from John S. Johnson, son of the defendant below.

<p>Ejectment, in Chattooga Superior Court. Tried before Judge Wright, April Term, 1849.</p> <p>On the trial of this cause, the plaintiff in ejectment claimed title through a deed made by the grantor, John Kimball, to George Swain, in the State of Alabama, and County of Jackson, and witnessed by Jackson Kimball, and Joseph Murphy, J. P. which deed, without farther probate, was admitted to record in the Clerk’s office in Walker County, in which the land was then included.</p> <p>The Court charged the Jury, that this was constructive notice to subsequent purchasers, and this decision is alleged to be erroneous.</p> <p>The defendants below claimed title under a deed from John T. Story, who purchased the land at Sheriff’s sale. Evidence was introduced to show that the purchase by Story was fraudulent. The defendants were shown to be bona fide .purchasers, without notice of the fraud.</p> <p>The Court charged the Jury, that if. Story’s purchase was fraudulent, his title was void, and that he conveyed no title to the defendants below, although they purchased without notice of the fraud.</p> <p>And this decision is alleged to be erroneous.</p>

Case for deceit, in Chattooga Superior Court. Held: that the plea of former recovery was sustained by the record produced, and was a bar to the present action, and awarded a nonsuit. To this decision Christian excepted.

<p>[1.] On application for new trial, a brief of the testimony required by the 61st Common Law rule of practice, is not by that rule required to be entered on the minutes of the Court, but must he filed.</p> <p>[2.] The Superior Courts have the power and authority, under the Constitution and the 55th section of the Judiciary Act of 1799, to grant new trials from the first verdict that may be rendered in a cause.</p> <p>[3.] Whenever there is any doubt as to the justice or legality of the verdict of the Jury, this Court will not control the discretion of the Court below, in granting a new trial.</p>

Probate of will, on appeal, in Clark Superior Court. Decided by Judge Dougherty, August Term, 1849.

<p>Illegality, in Lumpkin Superior Court. Decided by Judge Wright, March Term, 1849.</p> <p>James J. Blackwell, of Elbert County, was subpoenaed to attend as a witness for the defendant, on the trial of an indictment for peijury, in Lumpkin County. The defendant, (Howell,) was acquitted. Blackwell’s subpoena, regularly proven, for attendance and mileage, was levied on the property of Howell, who filed this affidavit of illegality; and the sole question was, the liability of a defendant, after acquittal, for the fees of witnesses from another County, subpoenaed in his own behalf.</p> <p>The Court below dismissed the illegality, and Howell appealed to this Court.</p>

<p>Debt on Sheriff’s bond, in Habersham Superior Court. Tried before Judge Dougherty, April Term, 1849.</p> <p>This was a suit on the bond of Charles B. Word, former Sheriff of Habersham County. The breach was, the failure to pay the amount of a fi.fa. in favor of John R. Stanford against Lewis Levy, upon an order absolute of the Inferior Court, commanding him so to do, he having failed to collect the same. Upon the trial, the rule absolute against the Sheriff, was in evidence before the Jury. Defendants then offered in evidence fi.fas. vs. Levy, to a large amount, unsatisfied, to show his insolvency; to which plaintiff objected, on the grounds—</p> <p>1st. That the rule absolute against the Sheriff was conclusive against him and his sureties.</p> <p>2d. That there was no return of “nulla bona” on the fi. fas. at the time plaintiff’s Ji.jfa. was in the Sheriff’s hands, nor for two or three years afterwards.</p> <p>3d. That plaintiff having no notice of their production in evidence, defendants ought to prove that they have not been satisfied; or at least, that they had been continued in the Sheriff’s office.</p> <p>The Court overruled the objections, and plaintiff excepted.</p> <p>The plaintiff offered the deposition of the defendant in ji. fa. Lewis Levy, to prove that he had sufficient property to pay his debts, at the time plaintiff’s execution was in his hands.</p> <p>These interrogatories were taken in another case, between the same parties, in which defendants had sued out an injunction of the present case against the plaintiff.</p> <p>On objections by defendants, the Court ruled out the testimony, and plaintiff excepted.</p> <p>The Court charged the Jury, that the rule absolute against the Sheriff, was only prima facie evidence against the sureties, and might be rebutted. To this charge plaintiff excepted; and on these several exceptions error has been assigned.</p>

In Equity, in Habersham Superior Court. Tried before Judge Dougherty, April Term, 1849.

Debt, in Burke Superior Court. Tried before Judge Holt, May Term, 1849. This suit was brought by “ The Justices of the Inferior Court of Burke County, who sued for the use of James Grubbs,” &c. on the bond of Eli Wooten, as administrator of John Lodge, deceased.

<p>[1.] Where a party seeks to impeach the testimony of a witness, on the ground that he has made contradictory statements, it is incumbent on the party to announce, when so required, the statement he seeks to contradict, that the Court may judge of its materiality.</p> <p>[2.] The rule requiring the party to lay the foundation for impeaching a witness, by first inquiring of the witness whether or not he has made the statements, does not apply where the evidence to impeach th,e witness is hig sworn depositions, previously taken in the same cause.</p> <p>[3.] Testimony offered, avowedly to impeach the credit of a witness, by-showing contradictory statements, cannot, in the argument before the Jury, be used for a wholly different purpose.</p> <p>[4.] Where the issue before the Jury is, whether a party has waived a lien given him by contract; or by operation of law, it is error in the Court to charge, that the testimony should be clear and explicit. It is sufficient that the Jnry should be satisfied of thefapt.</p>

Mandamus. Decided by Judge Merriwether, Jones Superior Court, April Term, 1849.

In Equity, in Warren Superior Court. Tried before Judge Sayre, April Term, 1849.

Claim, in Warren Superior Court. Tried before Judge Sayre, April Term, 1849. A mortgage ji.fa. in favor of Thomas Maddox, against Terry Oliver and Monclaiborne Andrews, was levied on a tract or lot of land to which John Butt, as trustee for his children, interposed his claim.

<p>[1.] In an action upon a negotiable note, barred by the Statute of Limitations, a new promise made by the maker to a prior bolder, is sufficient to take the case without the operation of the Statute. The case of Martin vs. Broach, in 6 Oa. Reps, reviewed and affirmed.</p>

Motion to dismiss the writ- of error. Richard Harrington, Sr. made a deed conveying certain negro property to three of his children, and the heirs of their bodies. Two of the children died, and Jefferson Roberts, who intermarried with the third, brought trover against George Pollock, the executor of Richard Harrington, Sr. deceased, for the whole property, claiming as survivor.

In Equity, in Wilkes Superior Court. Decided by Judge Sayre, September Term, 1849.

Trover, in Baldwin Superior Court. Tried before Judge Merriwether, August Term, 1849. Benjamin G. Thornton, and three others, children of Mary H. Thornton, she being dead, commenced an action of trover, for a negro, against Benjamin S. Jordan.

<p>A motion was made to dismiss this writ of error, on the ground that the Clerk had not sent up a complete transcript of the record, as required by law. The transcript had the certificate of the Clerk, that it was a “ true extract from the minutes and records of the Court below.”</p>

<p>[1.] Probate of a deed by a subscribing witness, before the Clerk of the Superior Court, does not authorize it to go to record; and the copy of a deed so recorded, cannot be given in evidence.</p> <p>[2.] Where, by marriage contract, a slave is conveyed to a trustee, for the use of the wife for life, and to the offspring of the nuptials in remainder i and subsequently to the death of the wife, and during the infancy of the child, who was the fruit of the marriage, the slave was sold by the father to a Iona fide purchaser, without notice: Iicld, that the issue of the marriage, upon coming of age, can recover the property from the remote grantee of the first purchaser, the vendor having no authority to sell, being neither trustee to the wife, nor guardian to the child.</p> <p>[3.] The power of a trastee over the legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust. It is true, nevertheless, that, as the legal owner, he may do many acts to the prejudice of the cestui que trust. He may even dispose of the estate or property to a bona fide purchaser, for a valuable consideration, without notice of the trust, so as to bar the interests of the cestui que trust therein.</p> <p>[4.] Where a bona fide purchaser, for a valuable consideration, without notice, is concerned, Equity will not interfere to grant relief in favor of aparty having the legal title. For where the equities are equal, a Court of Equity will not interfere between the parties; and such a purchaser has as high a claim, to assistance and protection, as any otherperson can have.</p> <p>[5.] But in a Court of Law, the better legal title must of course prevail.</p>

<p>[ 1.] An infant in ventre sa mere, at tlie time of the intestate’s death, but who was born within the ordinary period of gestation thereafter, is entitled to inherit from such intestate, as if born at the time of the intestate’s death.</p>

In Equity. Decision on demurrer, by Judge Merriwether, in Jones Superior Court, October Term, 1849.

<p>[1.] Where an administrator, upon the discharge of his first sureties, gave a new bond, and subsequently becomes insolvent: Held, that Equity will entertain jurisdiction of a bill filed against the administrator and both sets of sureties, praying a discovery of the amount of the devastavit, and the time when it occurred, in order to charge each set of sureties, according to their respective liabilities on their bonds.</p> <p>[2.] That it is. not necessary, in order to sustain such a bill, to obtain first a judgment against the principal; it being competent for a Court of Chancery so to mould its decree, as to mete out ample justice and full protection to all parties, by rendering the assets of the estate first liable, the individual property of the administrator next, and the property of the sureties only ultimately liable.</p> <p>[3.] A bill against the principal and sureties in the first instance, will be more especially sustained, -when it is alleged that a portion of the assets of the estate have been delivered up to the second set of securities, to indemnify them from liability, the nature and value of which are unknown to the complainant, who is suing as administrator, de bonis non, of the deceased.</p>

<p>A motion was made to dismiss this writ of error, on the ground that more than ten days elapsed between the filing of the notice of the signing the bill of exceptions, and the certificate of the Clerk to the transcript of the record.</p>

Claim, in Richmond Superior Court. Motion to re-instate. Decided by Judge Merriwether, June Term, 1849. Upon the death of Charles McDade, his children and heirs at law, by consent, dispensed with an administration of his estate and divided the property among themselves. Upon that division a tract of land was allotted to John McDade, who went into possession and claimed the same for many years, until his death.

Caveat to will, in Scriven Superior Court. Tried before Judge Holt, October Term, 1849. The questions in this case arose upon a caveat to a paper propounded as the last will of Joseph Daughtry, deceased.

<p>[1.] The contracts of infants are not void, but voidable, at the election of the infant, when arriving at full age.</p> <p>[2.] When an infant purchases property of an adult, and gives his note for the purchase money, and receives the property into his possession, and after arriving at full age, disaffirms the contract by a plea, of infancy to a suit upon the note: Iidd, that the title to the property revested in the vendor, or his legal representative, and that the infant should restore the property to the vendor, upon the disaffirmance of the contract.</p> <p>[3.] Whore an infant had purchased a negro of an adult, and paid part of the purchase money under the contract, and gave his note for the balance, and took the negro into his possession, and afterwards, to a suit instituted on the note by the vendor, he disaffirmed the contract by the plea of infancy: Held, that inasmuch as the remedy of the vendor, under the peculiar facts of the case, to recover the possession of the negro at Law was inadequate and difficult, a Court of Equity would entertain jurisdiction, and decree a sale of the negro, and out of the proceeds thereof reimburse the infant the amount paid by him, and decree that the balance should be paid to the vendor or his legal representative.</p>

<p>In Equity, in Warren Superior Court. Decision on demurrer, by Judge Sayre, October Term, 1849.</p> <p>William Akins died intestate in 1823, and Joseph D. McFarland and James Bailey were duly appointed administrators upon his estate, who made returns upon the estate, each year, until the year 1831. The returns were not all made on the first Monday in January in each year. In 1838, there was a return of a sum of money, collected by suit.in 1835, and of its payment to the' heirs of William Akins. In the return made in 1830, the administrators charged commissions on the whole estate received and paid out by them. There was no record of a settlement and receipts in full, but it appeared from the returns that the whole estate received had been paid over.</p> <p>It appeared from the returns that a large sum of money was in the hands of the administrators for several years, and no interest was charged against them in the returns..</p> <p>In 1849, the distributees at law of William Akins, filed a bill against the representatives of J ames Bailey and the representatives of Joseph D. McFarland, both of whom had, since the last return, departed this life. The complainants attached to their bill an exemplification of the returns of the administrators, and alleged that the commissions were illegally charged, annual returns not having been made as required by law. The bill farther charged, that the returns showed a large balance due them. The prayer was for an account and settlement.</p> <p>To this bill, the defendants demurred generally; and also, that the claim, if any, was barred by the Statute of Limitations ; and farther, that the complainants, by their laches and acquiescence, were barred from any relief in a Court of Equity.</p> <p>Upon hearing the demurrer, the Court below sustained it, on the grounds that “ the bill showed that nothing was due the complainants, and that their demand was barred by the lapse of time.”</p> <p>To this decision complainants excepted and allege error therein.</p>

Assumpsit and debt, in Jasper Superior Court. Tried before Judge Merriwether, October Term, 1849. Consolidated in tbe Supreme Court. Tbe executors of Drewry Brewer, deceased, commenced suit against Clark Brewer, on tbe following instrument: $749 00. On or before tbe twenty-fifth of December next, we or either of us do promise to pay Elner Skinner, or bearer, seven hundred and forty-nine dollars, for value received. May 24,1838. [Signed,] Clark Brewer, Ethan Brewer, Security.

In Equity, in Morgan Superior Court. Decision on demurrer, by Judge Merriwetiier, September Term, 1849. William Woods was appointed guardian of Wilson Woods and Augustus Woods, and gave bond, with John Woods and John Vason as his sureties, and as guardian, received a large sum of money and other property belonging to the said minors.

In Equity, in Tatnall Superior Court. Decision on demurrer, by Judge Holt, October Term, 1849. Thomas Studstill died intestate in the year 1820. In 1846, William Holland obtained letters of administration on his estate, and as administrator, commenced an action of ejectment against Jesse Jonekin, for a tract of land lying in Tatnall County.