Volume 8 — Georgia Reports

In Equity, in Chatham Superior Court. Tried before Judge Fleming, February, 1849. Patrick Pendergrast, a citizen of Savannah, being in bad health, left this State in 1830, for Ireland, leaving Daniel Foley as his general agent to manage his property, consisting of several negroes, drays, and some real estate. The immediate management of the drays was under the control of Andrew Dixon.

Ejectment, in Chatham Superior Court. Motion to set aside award. Decided by Judge Fleming, February, 1849. Held: considered and taken by the said arbitrators or umpire as part and parcel of the testimony in said cause, upon which the said arbitrators or umpire shall be authorized to act. And it is further agreed, that all legal questions shall be submitted to said arbitrators, which arose on the late trial, including the Statute of Limitations.

Certiorari, in Chatham Superior Court. Decided by Judge Fleming, June, 1849.

Motion, in Glynn Superior Court. Decided by Judge Fleming, April Term, 1849. This was a motion to sue out a fi.fa. under the 13th Equity Rule of the Superior Courts, nunc pro tunc, on a decree rendered 4th December, 1838. The motion was resisted on the ground, that the decree was for a specific sum of money, and was dormant under the Act of 1823. The Court refused the motion, and error is assigned thereon.

<p>[1.] A testator bequeathed aa follows: “I farther will that one hundred dollars per annum be paid out of the profits of said bakery to B. Moore, of the City of New York, for the use of my mother, Mrs. Elizabeth Wagner; and, also, the Mice sum of one hundred dollars, out of said profits, to my sister, Mrs. Margaret Williams, together with eighty dollars, lent by her to me in New York, with interest from dateHeld, that the bequest to Mrs. Williams gives her a specific sum of one hundred dollars, and not an annuity of one hundred dollars.</p> <p>[2.] The Judge of the Superior Court in Georgia, silting as a Chancellor, has the power, exclusively, to administer the Law. It is the province of the Jury to find the facts, and render a decree upon the trial on the merits, and in that point of view only, may they be considered in the light of Chancellors.</p>

In Equity, in Glynn Superior Court. Decision on demurrer, by Judge Fleming, at Chambers, October, 1849. Raymond Demere, Sr., by his last will, after several specific bequests, bequeathed the residuum of his property, one moiety to his son, Joseph Demere, and one moiety to his grand-sons, Lewis, John and Paul Demere. (For the provisions of this will, more fully, see 6 Ga.

Certiorari, in Ware Superior Court. Decided by Judge Hansell, December Term, 1849. Two fi. fas. from a Justice’s Court, were levied on a stock of cattle, in possession of the defendant in fi. fa. and a claim, by Isaac Carter, was interposed. On the trial in the Justices’ Court, a bill of sale was exhibited by Carter, three years older than the fi. fas. The possession had never been out of the defendant. The Jury found the cattle subject, and ten per cent, damages.

<p>[1.] The cause of action in this case is not -within the Act tif 1847, entitled “ An Act to simplify and curtail pleadings at Law.”</p> <p>[2.] A declaration upon notes for the payment of specific articles of property: Held to be bad, without an averment of the Valuó of those articles, at the maturity of the notes, and that the notes, being offered in evidence, were properly rejected, because of a variance between the allegations and - proof.</p> <p>[3.] Held, farther, that at Common Law, after the cause has gone to the Jury, such a declaration is not amendable so as to admit the notes in evidence.</p>

<p>[1.] The true criterion for determining whether an amendment is admissible, is this: whether the amendment is of another cause of controversy, or whether it is the same contract, or injuiy, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with the proof and the merits of his case.</p> <p>[2.] The plaintiff cannot introduce an entirely new cause of action; but if he adhere to the original cause of action, he may add a count substantially different from the declaration.</p> <p>[3.] In action of trover against one, charging him, as trustee, &c. the plaintiff may amend, by striking out the words, as trustee, &c.</p> <p>[4.] The declarations of a party, while in possession of property, as to the ownership, when it was against his interest to make them, may be given in evidence against one who subsequently acquires a title from the declarant.</p> <p>[5.] The admissions of a party, made under oath as a witness, or in a voluntary affidavit, may be given in evidence against him, in a suit in which he is a party.</p> <p>[6.] Possession of property, with a claim of title adverse to that of the true owner, is sufficient evidence of conversion.</p> <p>[7.] It is error in the Court to charge the Jury, that a remainder in slaves, to take effect and be enjoyed after a life estate, may be created by parol.</p>

In Equity, in Randolph Superior Court. Decided by Judge Warren, October Term, 1849. The questions in this cause arose upon a motion to dismiss a bill, filed by George W. Harrison against Joseph Adcock, James Suggs and Floyd Conyers.

Assumpsit, &c. in Randolph Superior Court. Tried before Judge Warren, October Term, 1849. Lessner brought suit against Baldwin and Mills, upon a special contract, by which, in consideration for the use of certain mills belonging to Lessner, the defendants agreed to make certain repairs, specified in the contract. The declaration averred, that the repairs were not made, and were reasonably worth $250.

<p>[1] To authorize a recovery upon shop hooks, where the entries are made iii the hand-writing of the party, the plaintiff, among other things, must prove by his customers, that he kept correct books. And it is no compliance with the rule, for the witnesses to state, that they considered their accounts- reasonable — admitting, at the same time, that they had never examined tlie items, and eould not say that the services charged were actually rendered</p> <p>[2.] Before the books of the party can be admitted in evidence, they are to be submitted to the inspection of the Court; and if they do not appear to be a.register of the daily business of the party, and'to have been honestly and fairly kept, they are to be excluded. Explanatory evidence may be offered j and if the objections are prima facie accounted for, the books should be submitted to the Jury — letting the objections go, under the charge of the-Court, to their credit, rather than to their competency.</p> <p>[3.] Books, per se, are not sufficient to charge the defendant with the debts and accounts of third persons.</p>

<p>[1.] Where a testator, by his will, made the following bequest, “ I lend the following negroes, (naming them) with all their increase, to Frances Holiday, Elizabeth Russell and Jarva Lane, children of my first wife; this loan to continue during their natural lives, and at their death, the property to be equally divided among the children of Frances Holiday and Jarva Lane ; and in the event of Elizabeth Russel having child or children, they also to have one third pait; but if the above named Elizabeth Russell dis childless, the whole of the property then, shall go to the children of Frances Holiday aud Jarva Lane. It is my desire that John, a negro boy, one of the negroes mentioned in this article, should go into the possession of Jarva Lane, and be considered so much of her part. It is my desire, also, that no part of the above mentioned property, shall come into the hands or possession of James Russell, the husband of Elizabeth Russell, but it shall he held by Frances Holiday and Jarva Lane, and go to their children, if James Russell should survive his wife, Elizabeth Russell:” Held, on a bill filed by one of the children of Jarva Lane, for a distribution of said property, in the lifetime of Frances Holiday, that it was the intention of the testator, that his three daughters should hold the possession of the life estate in the property, during their joint lives, or during the life of the survivor, and that the grand children of the testator were not entitled to a distribution of the property, until the death of the testator’s last surviving daughter.</p>

Before Judge WArren, at Chambers, December; 1849. The decision complained of in this case, is the refusal of the Court to grant an injunction. The bill was filed by Bennett Adams, alleging, that in 1839, complainant and one John T. Lamar entered into an agreement and partnership, to purchase and grant some of the lots of land in Baker, Early and Decatur counties, which had reverted to the State.

In Equity, in Lee Superior Court. Before Judge Warren, November Term, 1849. When this cause was previously before this Court, (5 Ga.

<p>In Equity, in Baker Superior Court. Decision on demurrer, by Judge Warren, December Term, 1849.</p> <p>Elizabeth M. M. Greenwood filed a bill, in Baker Superior Court, against Benjamin O. Keaton, charging that, in 1835, her affections became estranged from her husband, by reason of his cruel treatment, and being far away from her kindred and friends, with no one to guide her in the paths of virtue, she was ensnared by the assiduous kindness and attentions of Benjamin O. Keaton, who at length succeeded in enlisting her affections; that being thus entangled, she soon lost her virtue, honor and chastity; that a separation from her husband followed, and soon a divorce was granted to him ; that her husband then turned over to her, for a permanent support, about $10,000; that having unlimited confidence in Keaton, and being cut off from all connection with the virtuous and respectable, and knowing Keaton to be a shrewd and money-making man, she delivered to him the whole of her property, in especial trust and confidence, directing and requesting him to use the money, as her agent, for her use and benefit, in whatever way he deemed best and most conducive toherinterest; that he received it, promising to account to her, whenever requested, for the principal and whatever profits he might make; that Keaton immediately placed the fund into active and profitable operation, by shaving notes at heavy discounts, purchasing lands and negroes, which he re-sold at large profits, and finally investing in land and negroes, which he worked to great advantage; that by these and like means, the fund rapidly increased until it amounted to the sum of $50,000 ; that the particular numbers of the land, the names and number of the negroes, the obligors of the notes, bonds and specialties, and the respective amounts thereof, the said Benjamin O. has fraudulently and in bad faith, withheld from complainant, and concealed, under his own name, when he should have used the name of complainant, as his cestui que trust.</p> <p>The bill farther alleged, that in May, 1849, complainant demanded an account and settlement, which he refused, under various pretences; among others, that he had paid complainant in •lands — whereas, she alleged, that pending a suit filed by her former husband against Keaton, for crim. con. Keaton, pretending to fear the issue of the suit, made a deed to complainant for a number of lots of land in Baker and other Counties, the value of which she did not know, or care to know, inasmuch as the deed was made merely for her protection, should the said suit end disastrously; that after the termination of the suit, which was favorable, as Keaton found sale for the land, or whenever he wished, he called for the deed, and erased therefrom, with the form of her consent, such lots as he chose — complainant taking no thought about it, as her confidence in him was unbroken, and his influence over her unlimited; that at one time he gave to her a negro woman, worth about $600, as he said, for one of the lots of land; what became of the proceeds of those erased from the deed, she did not know or care, never conceiving that she had any title therein; that he had thus erased all the lots, save three, and they were valueless.</p> <p>The bill farther alleged, that Keaton pretends he has a receipt in full, whereas, the truth was, that sometime in November, 1844, be told complainant) in the presence of witnesses) brought by him, that he wanted to settle with complainant in relation to said lands. Unsupported by a friend, and withal having the same trusting confidence in him that had led her from the paths of virtue — being still his weak, though willing victim — she told him to settle; that Keaton then said, that he owed her only $180, and gave her a note for that amount on one Dennard; that he then presented her a paper to sign, which she did, not knowing its contents, but has since understood that it was an acknowledgment that he had fully accounted to her for the lands erased from the deed; that he made no account of his actings and doings, and that he procured this, paper fraudulently, and in violation of the faith, trust and confidence reposed in him.</p> <p>The bill farther alleged, that the negro woman, the note for $180, a house and lot in Albany worth $300, and the valueless land not erased from the deed, constitute all that complainant ever received from Benjamin O. Keaton, for the funds entrusted to his care; and that she never discovered the gross frauds practised by Keaton, in taking the receipt, or of his intention to refuse to account fairly with her, until shortly before the filing of her bill, and within that year, (1849.)</p> <p>The prayer was for an account.</p> <p>To this bill was filed a general demurrer for want of equity, and also a special demurrer, setting up as a defence the Statute of Limitations.</p> <p>The Court overruled the demurrer, and Keaton, by his counsel, excepted.</p> <p>R. Thomas vs. Brinsfield, 7 Ga. Rep. 157, ’8. Angell on Limitations, 174, ’5. 7 Johns. Ch. R. 110. 1 Fonb. Eq. 246 and note. Bouvier’s Law Dic. 605. 4 Kent’s Com. 295. Sanders on Uses and Trusts, 6. Cooper’s Eq. Plead. Intro. 27. Blac. Com. 431. Fonb. Eq. Pl. 246. Watts & Serg. 95. Bou. Law Dic. 605. 2 Story’s Eq. 1195. 2 Blac. Com. 327 to 338. 3 Blac. 431. Cooper’s Eq. Pl. Intro. 27. 4 Kent’s Com. 295. 2 Fonb. 333. Hill on Trustees, 60. Addington vs. Conn, 3 Atk. 151. Start vs. Mellish, 2 Atk. 612. 2 Story’s Eq. 970. Lewin on Trusts and Trustees, 7, 8, 9 and note. 2 Story’s Eq. 964. Cremys vs. Coleman, 9 Ves. 323. Lewin on Trusts and Trustees, 44. Hill on Trustees, 65, ’6. Ib. 66, ’7. Lewin on Trusts and Trustees, 77, ’8. 2 Story’s Eq. 1195 and note. Ib. 1069, 1070 and note. Ib. 973. Ib. 1195. Lewin on Trusts and Trustees, 16. Philips vs. Bryde, 3 Ves. 120, 127. Story on Agency, pp. 2, 3, 4, 5, and §226. 1 Story’s Equity, 464. 7 Ga. R. 207. Ib. 206. 1 Story’s Eq. 71. Acts of Legislature, 1847, p. 197. Story on Bail, 2, 3, 101, ’2, ’4, §§141, ’5 to 157, and p. 112. 2 Story’s Eq. §1041. Story’s Eq. Plea. 23, 242. Mitford’s Eq. Plea. 37, 41. Cooper’s Eq. Pl. 5. 2d edit, of Wigram on Discovery, 125 to 133. 4 Johns. Ch. R. 437. 1 Story’s Eq. 187. Coster vs. Murry, 5 Johns. Ch. Rep. 522. Troup vs Smitt, 20, Johns. R. 33. Leo nard vs. Pitney, 5 Wend. N. Y. Rep. Allen vs. Mille, 17 Ib. 202. Miles vs. Barry, 1 Hill, S. C. 296 or 96. Mass. Turnpike vs. Field, 3 Mass. R. 201. Horner vs. Fish, 1 Pick. 135. Wells vs. Fish, 3 Ib. 74. Farnam vs. Brook, 9 Pick. 212. South Sea Company vs.Mymondsile, 3 P. Wms. 143. Hanley vs. Cramer, 4 Cowen’s N. Y. R. 718, (in Equity.) Angell on Limitations, 188, 196, '7, ’8, ’9 to 202. Kane vs. Bloodgood, 7 Johns. Ch. 90, 114. Trip, Slade and others vs. Low, administrator et al. 2 Kelly, 304. 3 Blac. 431. 1 Story’s Eq. 191, 199, 202, 207 and note to 238. Prescott & Eason vs. Hublel, Timmons et al. 1 Hill, S. C. 270. Hilton vs. Banon, 1 Ves, Jr. 284. Ryan vs. Mackmath, 3 Brown’s Ch. R. 15, 16, Mr. Belt’s note and Pierce vs. Nibb, there cited p. 16, note. Jarvis vs. White, 7 Ves. 413,’ 14. Gray vs. Mathias, 5 Ves. 293, ’94. Bromly vs. Holland, 5 Ves. 618, ’19. Piersoll vs. Elliott, 6 Peters R. 95, 98. 1 Johns. Ch. R. 517. 1 Story’s Eq. 309, 307, 308. Adams vs. Barrett, 5 Ga. R. 413. Howell, administrator, vs. Fountain et al. 3 Kelly, 176. Whitehead vs. Peck, 1 Kelly, 153. 3 Black. 432, 163. Lever vs. Lever, 1 Hill’s Ch. R. S, C. 62. Kane vs. Bloodgood, 7 Johns. Ch. Rep. 110. 2 Story’s Eq. 1284, 1520, 1521, and notes. Madd. Ch. Pr. 98. Story’s Eq. Plea. 751 to 760. Stackhouse vs. Barnston, 10 Ves. 466, ’67. 15 Ib. ex parte Dewdney, 496. Beekford vs. Wade, 17 Ib. 96. Murry vs. Coster, 20 N. Y. Rep. 576, 582, and 5 Johns. Ch. R. 522. Prevost vs. Arats, 6 Wheat. 489. Elmondorf vs. Taylor, 10 Ib. 168. Nelson vs. Wilkins, 3 Peters, 44, 52. Pactt vs. Vattier, 9 Ib. 405, 416, 417. South Sea Company vs. Mymondsile, 3 P. Wms. 143. Doloraine vs. Browne, 3 Bro. C. R. 633, 646. Mr. Belt’s Note. Delouche vs. Lanties, 3 Johns. Ch. Reps. Angell on., Limitations. 161, 174 Farnam vs. Brooks 9 Pick, 212. Kane vs. Bloodgood, 7 Johns. Ch. R. Sims vs. McDonald, 3 Kelly. Thomas vs. Brinsfield, 7 Ga. Rep. 157, ’58. Lever vs. Lever, 1 Hill’s Ch. R. S. C. 62. Barnwell vs. Barnwell, 2 Ib. 252. Fonb. b. 1, chap. 4, §27, and note p. 287. Purcell vs. McNamara, 14 Ves. 91. 8 Porter’s Ala. Rep. Houseal vs. Gibbs, 1 Bail. Eq. S. C. R. 482. Wardlaw vs. Gray, Dudley’s Ga. Rep, 85. Taylor vs. Bates, 6 Cow. N. Y. 376. Strafford vs. Richardson, 15 Wend. Ferris vs. Parris, 10 Johns. 288.</p> <p>1 Bailey’s Rep. 230. 2 Atk. 612, Cooper’s Eq. Pl. 11. 2 Story’s Eq. Jur. note to §495. Jeremy’s Eq. 184, 390. Lady Ormond vs. Hutchinson, 13 Ves. 47. Purcell vs. McNamara, 14 Ves. 91. Wood vs. Downs, 18 Ves. 120. Hovenden vs. Annesly,2 Sch. & Lef. 634. Freeman’s Ch. Rep. 156, 300. Murray vs. Mason, 8 Porter’s Rep. 222. 1 Hill’s S. C. Rep. 67.</p>

<p>In Equity, in Sumter Superior Court. Decision on demurrer, by Judge Warren, November Term, 1849.</p> <p>The bill', in this cause, filed by John Caldwell, 18th April, 1849* charged, that, on 7th May, 1837, one Thomas S. Tondee, then of Walker County, sold to Caldwell a tract of land lying in Walker County, for $400, and gave a bond for titles — binding himself, his heirs, executors, &c. to make good warranty titles to the land by 1st December, 1837; that about the 5th December, 1S37, Tondee, fraudulently professing to act as attorney for one John L. Grayson, an infant, made a deed to the land, having no written authority so to do ; that in 18— Tondee died, without ever having paid the money stipulated in the bond, or made the titles to the land, as he was bound to do; that his widow, Julia Tondee, his only heir, became administratrix on the estate, and after paying other debts, turned over to herself, as sole distributee, the balance of the estate, and obtained letters 'of dis-mission.</p> <p>The bill further charged, that in 1838, John L. Grayson having arrived at age, disaffirmed the unauthorized agency of Tondee, and executed a deed to his interest in the tract of land, to one John G. Blanc, for $200, and “ said Blanc, on 1st January, 1845, made a deed to complainant.”</p> <p>The bill further charged, that the widow, Julia Tondee, subsequently intermarried with Seaborn Montgomery, and as a reason for the delay in instituting the-suit, that complainant lived in Walker, and Tondee had removed to Sumter, and that complainant had heard that the estate of Tondee was insolvent, and that he was ignorant, until recently, of the residence of his widow.</p> <p>The prayer was for a decree for two hundred dollars, with interest from the date of the contract, and for general relief.</p> <p>To this bill, a demurrer was filed, on the grounds—</p> <p>1st. That the bill did not make a proper case for the interposition of a Court of Equity.</p> <p>2d. That the complainant was barred by the lapse of time and his own laches.</p> <p>The Court sustained the demurrer, and this decision is assigned for error.</p> <p>Miller vs. McIntyre, 6 Pet. R. 61. Graig vs. Summerville, 4 Cond. E. Ch. Rep. 453. Gillespie vs. Alexander, 3 Ib. 326. David vs. Trowd, 7 Ib. 4. Ayres vs. Wilson, 1 Doug. 385. Waters vs. Ogden,, Ib, 452. Alder vs. Chip, 2 Burr. 756. Cholmley vs. Paxton, 3 Bingh. 1.</p> <p>2 Greenl. Ev. §357, 4 Kent, 404, and references. Story’s Eg. Pl. §§484, 814. Trip vs. Talbrid, 1 Hill Ch. Rep. 145. Aikin vs. Hitt, adm’r. 7 Ga. Rep. 573,</p>

Decided by Judge Warren, at November Term, 1849. When this motion came on to be heard, the claimant moved to dismiss the rule, on the ground that no brief of the testimony in this case was agreed on by counsel, and no approval of the Court was entered on the minutes of the Court, as was required by the 61st Rule of Court, and there was not any written evidence that a brief of the evidence had been filed with the Clerk.

Case for deceit, in Sumter Superior Court. Tried before Judge Warren, November Term, 1849. This was an action for deceit, with damages laid at $ 100Ó. The Jury found a verdict for the plaintiff for $1000, with interest from 20th October, 1841. Defendant moved for a new trial, on the ground that the verdict was illegal as to the interest. The plaintiff entered a remittiter for the interest. The Court, notwithstanding, granted a new trial on this ground, and plaintiff excepted.

Assumpsit, &c. in Sumter Superior Court. Tried before Judge Warren, November Term, 1849. Suit was commenced by Betbune against McCrary, as indorser on a note for $2000, made by John W. Cowart, and payable to the order of M. H. Brown, and indorsed by Brown, John Mc-Crary and Isaac McCrary. The defendant on the trial proved, that Cowart and Shotwell & Tift, in 1838, bought a steamboat for $12,000.

In Equity, in Muscogee Superior Court. Decision by Judge-Alexander, at Chambers, October, 1849.

Rule against. Sheriff, Talbot Superior Court. Decided by Judge Alexander, September Adjourned Term, 1849. The only question in this case, arose upon the following agreed statement of facts: At the December Term of the Inferior Court of Talbot County, 1842, John S. Buckner and John J. Snelling, each, obtained a judgment against Charles Evans.

Decided by Judge Alexander, July, 1849. Brandon & Shanhon brought suit against Joseph Buchanan and Joseph Wilson, on a promissory note, to which Wilson pleaded that he was only surety, and was discharged by indulgence granted by plaintiffs to Buchanan, by contract, for a valuable consideration, paid to the plaintiffs. There was a verdict for plaintiffs below.

<p>'Levy and illegality, in Bibb Superior Court. Decision at July Term, 1849, by Judge Floyd.</p> <p>It appears that one W. J. Bollock hád obtained a fi.fa. vs. R. K. Evans, J. P. Evans and Berry Rodgers, in February, 1841, for $308 15; that Rodgers paid it off, and at the November Term, 1842, of Bibb Superior Court, obtained an order of control, under the Act of 1840. The order recites, that Rodgers was the last indorser on the note — the foundation of the said ft. fa.; that he had been compelled to pay it in full; and that, by testimony, it appeared lo the Court, that J. P. Evans, though occupying the place of first indorser, was, in fact, the principal in the debt; and then orders that Rodgers have the use and control thereof, to reimburse himself to the whole amount, as against J. P. Evans, but only as to half, as against the other real indorser, R. K. Evans.</p> <p>In November, 1848, this ji. fa. was levied on certain property in possession of Jno. P. Evans, to which he took illegality, on the following grounds:</p> <p>1st. Because he alleged that said fi. fa. had been paid off by Rodgers, one of the defendants.</p> <p>2d. Because it was being used by one indorser against another indorser; and this could be done in the case of fi. fas. founded on bankable paper alone.</p> <p>At July Term, 1849, the illegality was sustained, on the ground that “ the facts being sustained by the records' and proceedings in the cause, and said Rodgers having paid said fi. fa. he was not entitled to control the same against said J. P. Evans.” The counsel for Rodgers, then and there objecting to said illegality, for the reasons—</p> <p>1st. That it nowhere appeared that said fi. fa. had been paid by J. P. Evans.</p> <p>2d. That by the order of the Superior Court, at November Adjourned Term, 1842, the control had been given to said Rodgers, and that said order was in force, unrevoked, and made by a Court of competent jurisdiction.</p> <p>3d. Because the facts stated in said illegality, if true, are not sufficient to arrest or annul it; and said Rodgers is entitled to collect the money due on said fi. fa. from said J. P. Evans.</p> <p>Which grounds of motion to dismiss the illegality, the Court, as said, overruled ; and counsel for Rodgers excepted; and thus the case comes up.</p> <p>4 Bac. Air. 106, 115, 116, 117. Yelverton, 68. Chitty’s Practice, 275.</p>

Levy and claim, in Bibb Superior Court. Decision at July Term, 1849, by Judge Floyd. The facts in this case were agreed upon as follows : A fi. fa. (Amos Benton vs. Jos.

Rule against a Sheriff, by defendant in ji. fa. for surplus of sale. Decision in Bibb Superior Court, at July Term, 1849, by Judge Floyd. D. J. Davis, Sheriff, levied certain fi. fas. upon certain slaves of Jano Irwin, and in May, 1849, he sold Kitty, Mary, and Polly. The proceeds were enough to pay off the fi. fas. in hand, (and perhaps other claims assented to by defendant,) and then to leave a surplus in his hands.

Action on the case, in Bibb Superior Court. Tried at July Term, 1849, before Judge Floyd. A slave named Jacob, the property of Philip S. Holt, having an ordinary “ pass” to go from Macon to his owner’s place, some eight or ten miles out, was received by the officers of the plaintiff in error, on board its freight train of cars, for the usual passage money for slaves riding on the freight train.

<p>Assumpsit, on appeal from Bibb Superior Court. Decision made by Judge Floyd, at July Term, 1849.</p> <p>James Dean, on 31st May, 1847, sold, with warranty, to Wm. Traylor, the negro Sofa, and her three children, for $1350. On the 23d of April, 1848, Sofa died of consumption; the opinion of physicians was unhesitating, that the disease was consumption, and that she was “ diseased in that way, previous to 31st May, 1847” — though one witness, the agent of Dean, and who brought the slave to Georgia, and who was not a physician, testified that Sofa was sound, and had no cough, or other symptoms of consumption, when Dean sold her.</p> <p>The plaintiff below declared for damages, not only for the unsoundness and loss of Sofa, but for the unsoundness of the children. The proof on this point was, that “ the disease is hereditary, and, of course, the children cannot be as valuable as if born of a healthy mother, and are worth all or more than a third less.” In another set of answers, same witness values the children at half price, on said account. Another witness thinks two of the children have “ consumptive marks about them — though it does not necessarily follow, that children will have consumption because the mother has it.”</p> <p>It was proved that Sofa was sold, by Dean, for $600.</p> <p>On the trial, defendant’s counsel objected to so much of the declaration as sought damages for the alleged liability of the children tq said disease — it not being alleged that they were then unsound — and to any evidence being given on this point; which was overruled. The charge of the Court was also excepted to, which will be known by the exceptions, The Court’s charge is not recited in bill of exceptions ; but it appears that defendant below asked the Court to charge that, under the evidence, the Jury could not find any damages on account of any supposed unsoundness of the children — which the Court refused to do.</p> <p>Under the charge of the Court, as to the rule and measure of damages, it was admitted by both sides, that about $150 of the finding was on account of the children. The finding was for plaintiff — $750, with costs.</p> <p>A new trial was moved for, on the foregoing grounds, taken during the trial, and also., because the verdict was claimed to be contrary to law and evidence. Motion overruled.</p>

<p>[1.] When a Jury have been regularly drawn and summoned for the trial of a slave, charged with a capital offence, according to the Statutes of this State, such slave is entitled to be tried by such Jury, and the Justices of the Inferior Court have not the right, capriciously to discharge such Jury, without some good and legal cause, and summon any other Jury for the trial of such slave.</p> <p>[2.] It is no objection to a Juror drawn and summoned for the trial of a slave, who appeared and answered to his name, that the summons was left at his residence, and not served on him personally.</p> <p>[3.] It is no objection to a Juror, because there was a mistake as to his middle name; who, on the name of Jesse McClay Evans being called, appeared and answered, and.said that his name was Jesse McKinnie Evans — the mistake was properly corrected and the Juror impannelled.</p> <p>[4.] On the trial of a slave,-under the Statutes of this State, for a capital of-fence, the warrant and the preliminary proceedings had before the committing Magistrates, alleged in the indictment, ought to be given in evidence on the trial, so as to show that the Justices of the Inferior Court properly had jurisdiction of the offence with which the slave is charged.</p> <p>[5.] Upon the trial of a slave for a capital offence, when the evidence on the part of the prosecution has closed, and the cause submitted to the Jury on both sides, farther evidence cannot be admitted in behalf of the prosecution against the defendant.</p>

Assumpsit, &c. in Crawford Superior Court. Tried before Judge Floyd, August Term, 1849. This was an action brought by John Evans against Montgora? ery, as the administrator of Reuben B. Davies, to recover one hundred and fifty-seven dollars, deposited by Elijah Evans, as alleged, with the intestate during his life, for the use of John Evans.

Claim on appeal, from Coweta. Decision by Judge Hill, at September Term, 1849. In this case there had been a claim of the land levied on, and a damage bond given. On a Jury trial, September, 1848, they found the property subject, and, also, 50 per cent, damages for claiming for delay.

<p>Case, in Crawford Superior Court. Tried before Judge Floyd, August Term, 1849.</p> <p>This was a special action, on the case brought by John S. Par-ham against Augustine C. Rogers, for the breach of a contract, in writing, by which Parham was bound to act as overseer for Rogers, for the year 1847, in consideration of which he was to receive a certain portion of the corn, cotton, fodder and wheat made on the farm. The breach alleged (in three counts, varied,) was that Rogers, about the 12th August, 1847, peremptorily and without cause, dismissed Parham from his employment, to his damage $500. Several pleas were filed, unnecessary to be referred to particularly.</p> <p>On the trial, before the cause was submitted to the Jury, Rogers, by his counsel, moved a non-suit, on the ground that the action was commenced before the cause of action accrued — the agreement being for the year 1847, and the suit being commenced on 29th November, 1847. The Court overruled the motion, and defendant excepted.</p> <p>The evidence showed, that a difficulty had arisen between the parties ; Parham abused him, when Rogers insisted on Parham’s quitting his business; that Parham at first refused to do so ; that subsequently he left, and they agreed to refer the matter to arbitrators. James Stephens, a witness for plaintiff, swore that both parties told him’ they had agreed to quit and leave it to men; and E. L. Harris swore, that defendant told him that plaintiff proposed to quit and leave it to men. It was also proven, that defendant, Rogers, while he wished it settled, refused to let Parham return to work and gather the crop, when the latter proposed it, saying, “ We agreed to quit and arbitrate, and you can’t go to work.” The arbitration failed, because one arbitrator refused to act, unless Rogers would be sworn to abide the award. The latter pledged his word and honor, but had religious scruples as to swearing. One witness says, Rogers gave as a reason for his said last refusal, that Parham had proposed, that “ as they could not agree, to leave it to men.” Another witness adds, that Rogers farther said, he was willing to go into the arbitration and abide the award, without either party being sworn.</p> <p>PlaintiiF having closed, defendant moved a non-suit, on the ground that plaintiff’s own witnesses showed that he left voluntarily, and that the contract was mutually rescinded; and there was no count in plaintiff’s declaration, except for a breach of the contract, and none under which the contract could be apportioned. The Court overruled, the motion, and defendant excepted.</p> <p>The Court charged the Jury, that if they believed from the testimony, the parties mutually agreed to rescind the contract before the end of the year, the plaintiff’ in this form of action was not entitled to recover; but if defendant dismissed plaintiff, without sufficient cause or provocation, the plaintiff was entitled to recover the damages actually sustained. To this charge defendant excepted. The Jury found a verdict for the plaintiff.</p> <p>A motion was made for a new trial, on the ground that the verdict was contrary to law and evidence; which motion the Court overruled, on the ground that there was some evidence to support the verdict, and there were two concurring verdicts of Special Juries.</p> <p>To this decision defendant excepted, and these several decisions are alleged as error.</p> <p>Chitty’s Pl. 289 and note, 372. Dudley’s R. 91. 12 John. 166. 19 Ib. 337. 4 McCord, 246, ’9. 2 Hill, 477. 2 Smith’s Lead. Cas. 24. 5 Bos. & Pul. 61. 7 Ga. Rep. 283. 4 Ib. 193. Graham on New Trials, 278. 34 E. C. L. R. 154.</p> <p>7 Hill’s (N. Y.) Rep. 75. 14 Vert. R. 311. 1 Hill, (N. Y.) 487. 11 Wheat. 237. Chitty on Bills, 370, 371. Butter’s N. P. 269. 3 East, 481. 3 J. R. 202. 4 Ib. 144. 5 Ib. 375. 3 Mass. 557. 8 Ib. 461. 2 Smith’s Lead. Cas. 22. 2 C. & P. 37. 12 E. C. L. R. 177. Graham on New Trials, 541, et seq. 5 Mees. & Welbs. 279.</p>

<p>Motion, in Crawford Superior Court. Decided by Judge Floyd, August Term, 1849.</p> <p>The question in this case arose upon a motion to distribute money, returned by the Sheriff, as raised on a fi. fa. in favor of John Moore vs. Andrew J. Preston. Jacob Lowe, who held an older fi. fa. claimed the fund. On this fi. fa. was a levy on a lot of land disposed of, and said to be unaccounted for. It was proved to the Court, that the land was claimed by a third person, and a verdict of “ not subject,” found by a Petit Jury, on the first trial at that term of the Court.</p> <p>The Court ruled, that “if plaintiff (Lowe) would not appeal, or would dismiss the levy, he was entitled to the money.”</p> <p>Lowe declining to do either, the Court ordered the money paid to the fi. fa. in favor of Moore; and this decision is brought up for review. There was no evidence as to the sufficiency of the property to satisfy the execution, and no evidence before the Court showing that the older fi. fa. was entitled to the two funds, and the younger to but one. It did not appear that Lowe’s fi. fa. had a lien even on the property levied on. The presumption, from the fiuding of the Jury, was rather the reverse.</p>

In Equity, in Crawford Superior Court, before Judge Floyd, August Term, 1849.

Trover and conversion, in Monroe Superior Court. Decision by Judge Floyd, at September Term, 1849.

Assumpsit, on appeal, in Coweta County. Decision by Judge Hill, at September Term, 1849. Held: that the motion to amend came too late; that plaintiff, at the preceding term, knew of the necessity of this amendment — this being the second term on appeal; to which ruling the plaintiff excepted, and brings this writ of error. There was no appearance for the defendant in error, and the cause proceeded ea; parte.

<p>[1.] Bastards may be made legitimate, and capable of inheriting, by an Act of Parliament. The Legislature of Geoi’gia possess the same power.</p> <p>[2.] In England, the sovereignty of the nation resides in the Gmerrnment — in this country, the supreme power is in the people.</p> <p>[3.] In England, the omnipotent authority of the Parliament is the dernier resort in all matters of difficulty and importance; in this country, the written Constitution.</p> <p>[4.] The General Assembly in this State has power to make all laws and ordinanees which they shall deem necessary and proper “ for the good of the State,” provided they are not repugnant to the Constitution of the United States, the laws of Congress, passed pursuant, thereto, public treaties and the Constitution of the State.</p> <p>[5.] To disregard the laws of the State, is a capital crime against society, and great vigilance is necessary to see to it, that they are equally respected, hy those who govern, as well as those who are destined to obey.</p> <p>[6.] Notwithstanding the Judiciary is the weakest of the three departments of the Government, and is therefore less dangerous to public liberty than either of the other two, still it is both the right and duty of all Courts to declare all Acts void, which plainly and palpably violate the Constitution.</p> <p>Mr. Elias Boudinot, a distinguished Representative in Congress, rejoiced, that if, from inattention, want of precision, or any other defect, he should do wrong as a legislator, there was a power in the Government which could, constitutionally, prevent the operation of a wrong measure from affecting his constituents.</p> <p>[7.] An individual’s right to his property consists, not only in its present enjoyment, but also its future disposition, and he can be deprived of neither, except for public uses, without his consent.</p> <p>[8.] Where an Act of the Legislature is passed, legitimatising W and E to A B, their reputed father, and authorising them to inherit from him, his assent will be presumed ; more especially when the'reputed father lives five years after the law is passed.</p> <p>[9.] The power of the Legislature to pass an Act, changing the law of descents, as it respects a particular individual, without his consent and against his will, is contrary, not only to the definition of law, “ as a rule of civil conduct,” applicable to the whole State, but to the genius and spirit of our institutions.</p> <p>[10.] A private Act of the Legislature, as to its facts and recitals, imports verity, equally with the records of the Courts; still it may he attacked for fraud in its procurement.</p> <p>[11.] No inheritance can vest, nor any person be the actual, complete heir of another, till the ancestor is dead.</p> <p>[12.] A husband may, by deed or will, in his lifetime, deprive his wife of the whole of his estate, except dower; so also, he can procure an Act of the Legislature to be passed, limiting her right of inheritance after his death.</p> <p>[13.] The Legislature in Georgia, and not the Courts, are intrusted with the discretion of determining what laws are promotive of the public morality, or otherwise.</p> <p>[14.] While it is true, that too much countenance oughtnot to be given to the indulgence of criminal desire, nor encouragement to the increase of spurious offspring, still that policy may well be doubted which would reject all provision made for illegitimate children, and suffer them to be cast, naked and destitute, upon the world.</p> <p>Illegitimacy will be viewed with much less favor, in criminal proceedings, than in mere questions of property and succession.</p> <p>[15.] Virginia, and many other States of the Union, have, hy Statute, adopted the rule of the Civil, in opposition to that of the Canon and Common Law, whereby ante-nuptial children are legitimated by the subsequent marriage of the parents and the recognition of the father.</p> <p>[16.] Courts ought so to construe Statutes of Distribution as would most likely effectuate the intention of the parties, had they died testate.</p> <p>[17.] Courts and Judges, eminent for their learning, have regarded bastards as having strong claims to equitable protection.</p> <p>[18.] There is a growing tendency everywhere, and especially in this country, to relax the ancient rigor of the law in respect to bastards, and to look to the Penal Code, and to the guilty parties, for the prohibition and prevention of fornication and adultery, rather than visit the vengeance of the law upon the innocent heads of the unfortunate offspring. The law, in its humanity, will not deny to those who have been the authors of their disgrace, the power to repair the mischief, as far as they can, by gift, will or legislative enactment.</p> <p>[19.] The Constitution declares, that the three powers of the Government— viz: the Legislative, Executive and Judiciary — shall be distinct; still the separation is not, and from the nature of things, cannot be total.</p> <p>[20.] Whether the sanction of the Executive is necessary to an Act, before it can become a law in this State ? Qwere.</p> <p>[21.] The Constitution might have conferred upon any one or more of these branches powers, which, in their nature, would more appropriately have belonged to another.</p> <p>[22.] In the absence of any provision upon the subject, the power to legitimate bastard children, and to change the rules of inheritance, would belong, necessarily, to the Legislature.</p> <p>[23.] The Act of 1843, changing the names of the complainants, and legitimating them, is purely legislative in its character — one not prohibited by the Constitution — and which should not only be supported, but construed favorably by the Courts.</p> <p>[24.] All departments of the Government should be considered equally honorable, useful and patriotic; neither attempting to disparage, or entertaining any undue sensitiveness or jealousy toward the other, nor suspecting encroachments where none were intended.</p> <p>[25.] Measures, exclusively of a political, legislative or executive character, are not examinable by the Courts. In such case, the remedy for any real or supposed abuse, is solely by appeal to the people, at the elections.</p> <p>[26.] The judicial authority is the final and common arbiter, under the distribution of power by the Constitution, of all questions which, from their nature, require and admit of legal investigation and decision. The friends of republican government and public liberty, have uniformly denounced and rebuked, in the strongest terms, the usurpation of judicial powers, by the Legislature or Executive, as constituting the very essence of tyranny and despotic government.</p>

<p>[1.] Where a judgment of ouster had been awarded against P, on a quo warranto, who claimed to hold the office of Clerk of the Court of Ordinary, under an election made in January, 1849, and subsequent to the judgment of ouster, P was again elected to the same office by the Justices of the Inferior Court, and exercised the duties of the office under the new appointment exclusively: I-leld, that P, in exercising the duties of the office exclusively under his new appointment, was not in contempt of the judgment of the Court, on the quo warranto, removing him from the office, under the first appointment — the new appointment not having been declared invalid by any appropriate judicial proceedings, instituted for that purpose.</p>

Ejectment, in Troup Superior Court. Decision at November Adjourned Term, 1849, by Judge Hill. This was ejectment for title, (and mesne profits,) by the heirs a.t law of Thomas Worthy against John Hames, for a lot of land, owned by Worthy at his death.

<p>Bill for discovery and relief, in Troup Superior Court. Demurrer decision, by Judge Hill, at November Adjourned Term, 1849.</p> <p>The heirs of Thomas Worthy filed this bill against certain purchasers of negroes, sold by his executors, at public sale, and against the present holders of certain other slaves that were bought by said executors, at their own sale, and which had been sold by the Sheriff, as the property of said executors.</p> <p>The bill avers that Thomas Worthy died testate, leaving all the negroes here in dispute for equal distribution between his wife and children. He conferred no power on the executors to sell the same. The executors obtained an order of the Ordinary Court, to sell said slaves and the real estate, which order did not recite the existence of the specified pre-requisites of the Statute to the granting of said order, but simply recited that it was applied for, and the executors had published said application in terms of the law — did not recite that the other personal property and the hire of the negroes, were not sufficient to pay the debts, &c.; that under said order, the executors proceeded, and sold the said negroes, without having advertised said sale sixty days, in any public gazette, or at the court-house door; that at said sale, a part of the negroes were purchased by some of these defendants, and another portion were purchased by said executors, which latter portion had thereafter been sold to some others of these defendants.</p> <p>The bill was demurred to—</p> <p>1st. For multifariousness; no privity in defendants; cause of action is separate and distinct against each one ; and no combination shown.</p> <p>2d. It is brought in tho name of the wrong parties; should have been brought by Worthy's legal representative.</p> <p>3d. That complainants have a Common Law remedy.</p> <p>4th. There is no equity in the bill.</p> <p>The Court sustained each of the grounds, and dismissed the bill; and to this decision complainants excepted.</p> <p>Milford's Plead. 241. 2 Vern. 37. 1 Atkyns, 283. 5 Maddox Ch. R. 93, ’4. McCartney et al. vs. Calhoun et al. 11 Ala. (N. S.) Rep. 110. 8 Ves. 347. Lester vs. Lester, 6 Ib. 631. 10 Ib. 393. 17 Ib. 168. 5 Ib. 680. Prince’s Dig. 234, 238.</p> <p>Story’s Eq. Pl. 218, 394, 406, ’7, 412. 2 Ves. Jr. 95, 486. 6 Johns. Ch. R. 115. Fellows vs. Fellows, 4 Cowen, 682. 1 McCord, 132. 3 Ib. 371. 3 Peere Williams, 394. 2 McCord Ch. R. 169. 4 Paige, 47. 6 Ves. 748. Bond et al. vs. Zeigler et al. 1 Kelly, 342.</p>

<p>[1.] Where C and J obtained the legal title to land, as security for asmall sum advanced to W, under peculiar circumstances — the sum advanced not being one-fourth the alleged value of the land — promising to re-convey the same to W, on the re-payment of the sum advanced with interest, but who fraudulently conveyed the land to a lima jide purchaser: Held, on a demurrer to the bill, insisting on the Statute of Frauds, as a bar, that the demurrer should be overruled — that the Statute was intended to. prevent fraud, not to protect it; and that in such cases, a Court of Equity would take hold of the conscience of the defendants, and hold them as trustees, for the benefit of the party defrauded.</p>

Assumpsit, from Troup County. Decision by Judge Hill, at November Adjourned Term, 1849. Charles West brought his action against Broughton, administrator of L. Lackey, on this note : “ One day after date, I promise to pay Charles West, or bearer, five hundred dollars, for value received, with interest from 25th December last.

Preliminary motion to dismiss the cause— 1st. Because the testimony was not embodied in the bill of exceptions. 2d. Because it does not appear, from the certificate of the Clerk of the Court below, that all the interrogatories to which he has certified1, were read on the trial. 3d. Because the bill of exceptions does not embrace the material facts upon which the judgment of the Court was rendered; therefore, not enough before this Court to enable it to review the judgment.…

<p>Caveat of a probate, in Coweta County. Decision by Judge Hill, at September Term, 1849.</p> <p>In this case, E. Mobley and W. Mobley were the propounders of the last will of Jethro Mobley, and James V. Hogg and others were caveators before tbe Court of Ordinary of Coweta County, The decision of the Ordinary was against the caveators, and they appealed to the Superior Court of said County. On the trial of this appeal, among other points taken, (not excepted to) the propounders objected that tire appeal bond was payable to the propounders, instead of to the Clerk, On a motion to dismiss the appeal, the Court sustained this exception, and ruled the bond void.</p> <p>Caveators then moved to amend the bond, by inserting the name of the Clerk in lieu of the propounders, or to he permitted to file a new bond, nunc pro tunc, which the Court overruled. To all of which said rulings and decisions, the caveators excepted, and thus the case comes up.</p>

<p>[1.] A sells lands to B, and gets judgment on the notes given for the purchase money, and levies on the lands in the possession of C, a purchaser from B; 0 puts in his claim: Held, that upon the trial of the claim, it is not competent for A to set up, by proof, his lien as vendor, but that he must go into Equity to establish his lien, and there get a decree that the land be sold to satisfy it.</p> <p>[2.] The Circuit Judge, in opening his charge to the Jury, said, “that ho wished counsel to take notice of his charge, for he supposed the case would be taken up, and if he erred, he could be corrected; and if {he Jury found contrary to evidence, they could be corrected:” Held, that the remark, relative to the Jury, was improper, as tending to relieve them from the exclusive responsibility of trying the facts of the cause.</p> <p>[3.] Fraud cannot bo presumed at Law, but it may be proven, from circumstances.</p> <p>[4.] To hear reports about an incumbrance upon land, which the purchaser is about to buy, does not amount to notice, nor is report or rumor a badge of fraud.</p> <p>[5.] The presiding Judge is requested, by counsel, in the hearing of the Jury, to give in charge a legal proposition, to which request, he replies, “ well, I charge it,” without anything more. This, held to be error.</p> <p>[6.] Upon the trial of a claim, it is not competent for the claimant to prove the bonafides of his purchase, by proving tho conversation that passed between himself and his vendor, in relation to what he gave for the land, at a time subsequent to the purchase.</p> <p>[7.] The pendency of suits against a debtor, at the time that a purchaser buys lands of him, is a badge of fraud and a fact which the Jury are at liberty to consider, in determining whether the purchaser bought with notice or not, under the Statute 13 Elizabeth.</p> <p>[8.] To subject land to a judgment, sold by the defendant, before the judgment, to A, and by A sold to B, it is necessary that the plaintiff prove that the defendant sold fraudulently, and that both A and B had notice of the fraud, under the Statute 13 Elizabeth.</p> <p>[9.] One who buys from a fraudulent grantee, without notice of the fraud, and one who buys from an innocent grantee, with notice of the fraud, will be protected under the proviso in the Statute 13 Elizabeth.</p> <p>[10.] If one buys lands of a debtor, and pays apart of the purchase money before getting a deed, and before paying the balance of the purchase money and before getting a deed, learns that the purchase money is unpaid by the debtor — that he is insolvent, and that suits are pending against him: these facts may be submitted to the Jury as evidence that he purchased with notice of the fraud, under Statute 13 Elizabeth.</p> <p>[11.] The sayings of an agent, after his actings as agent, are not competent to prove his agency.</p>

Bill for discovery, account, &c. in Houston. Decision by Judge Stark, at October Adjourned Term, 1849, to wit: in January, 1850. This bill was filed by James Holmes, as administrator of Henry Taitón, against John Liptrot, as administrator of Camilla Taitón, deceased.

Assumpsit, in Houston. Decision by Judge Stark, at October Adjourned Term, 1849 — January, 1850. Henry M. Buckner brought this suit, on a note for $282, (signed by William H. Lee, alone,) against James A. Everitt and William H. Lee, charging them as partners.

<p>[1.] On application for a writ of ne exeat república, by a wife against her bus-band, pending a suit for a partial divorce and alimony, her affidavit is admissible — the wife, in this respect, being considered independent of her husband.</p> <p>[2.] If the threats of the husband, that he will leave the State, come to the knowledge of the wife, through the information of others, the affidavit of the third person should, if practicable, be filed with hers. If, however, she swears absolutely that he has threatened to remove, that is sufficient.</p> <p>[3.] A writ of ne exeat may be granted in this State, prior to any decree for alimony. The Court, in marking the writ, will exercise a sound discretion, under the special circumstances of the case — having due regard to the rank of the par-ties and the property of the husband, so as to prevent oppression or extortion.</p> <p>[4.] Where any person is arrested by virtue of a writ of ne exeat, he maybe discharged, on giving bond, with good and sufficient security, either that he will not depart this State, or will pay the eventual condemnation money ; or by showing that the writ ought not to have been granted.</p>

<p>Assumpsit, &c. in Chattooga Superior Court. Tried before Judge Wright, October Term, 1849.</p> <p>This cause was submitted, in the Court below, upon the following agreed statement of facts—</p> <p>“A Ji. fa. in favor of James Bryson & Co. vs. Samuel Mc-Whorter, administrator of John M. Thompson, and others, was levied on a negro woman and child, as the property of Thompson, and sold at Sheriff’s sale, under this levy. John F. Beavers became the purchaser, at the sum of $450; which sum of money was applied to the payment of the fi. fa. Samuel McWhorter was present when the negroes were sold. Afterwards, Beavers was sued for the negroes, by Robert Caldwell and his wife, who was the daughter of John M. Thompson. Caldwell and wife recovered the negroes, and McWhorter was a witness on the trial of the cause.”</p> <p>The present action was by Beavers against McWhorter, as administrator, to recover the purchase money, as so much paid to the use of the estate.</p> <p>Counsel for defendant insisted, before the Court below, that the plaintiff could not recover, because there was no warranty, either express or implied, at Sheriff’s sale ; that the doctrine of caveat errvptor applied to all judicial sales; and if the purchaser at Sheriff’s sale sustained any loss, there was no one to whom recourse could be had for indemnity.</p> <p>The Court overruled these positions, and this decision is alleged as error.</p>

In Equity, in Franklin Superior Court. Decision on demurrer, by Judge Dougherty, October Term, 1849.

Assumpsit, &c. in Clarke Superior Court. Tried before Judge James Jackson, February Term, 1850. This was an action by John H. Newton, against Howell C. Flournoy, as indorser on a promissory note made by Charles G. McKinley, dated Jan. 30,1840. To this, the defendant pleaded a discharge in bankruptcy, dated Dec. 1st, 1843.

In Equity, in Clarke Superior Court. Decision on amendment, by Judge James Jackson, February Term, 1850. Held: that the amendment did not seek to engraft a new substantive contract upon the bill, but grew out of, and was part and parcel of the contract charged therein ; that the scaling of the estimates, though not distinctly and clearly charged, was yet complained of in the bill, and that the amendment was such an one as a Court of Equity…

Before Judge Wright, at Chambers, 24th January, 1850. On the 4th June, 1844, a fi. fa. at the instance of Thomas IL Huson vs. Southern J. Higgs, was issued, returnable to the Inferior Court of Cass County. On 1st August, 1849, it was levied on a negro, as the property of defendant.

Scire facias, to charge bail. Decided by Judge Wright, Floyd Superior Court, Qclober Term, 1840. Robert L. Lane being arrested on bail process, gave bond, with William Hardin and Robert Ware as sureties, payable to Wesley Shropshire, the Sheriff of Floyd County, and dated 13th December, 1838.

Tatnall Superior Court, October Term, 1849. Decided by Judge Holt. Held: that the action on the notes being barred, there was no remedy upon the mortgage, and dismissed the petition for foreclosure. The correctness of this decision is the only question involved in this cause. Bank of Metropolis vs. Guttschlich, 14 Pet. 32. Thayer vs. Mann, 19 Pick. 535.

<p>Levy and claim, in Putnam Superior Court. Decision by Judge Johnson, March Term, 1850.</p> <p>This was an issue, upon a claim interposed by Moses Pressley, to property levied on by an execution in favor of plaintiff in error vs. Simeon Fuller, Jr. and Simeon Fuller. Upon the trial, the execution was offered in evidence, upon which appeared a former levy, as follows :</p> <p>“Levied this ji. fa. on the following named negroes : Clayton, a man, and Elias, a man, this 31st day of May.</p> <p>W. T. SALMONS, Sheriff.</p> <p>" Claim interposed by James M, Pressley, agent for Moses Pressley, for Clayton, one of the negroes, and, also, Elias, claimed by Sion Lee, for the other named negro. June 2d, 1847.</p> <p>W. T. SALMONS, Sheriff.”</p> <p>On objection by claimant, the Court decided, “ That the fi. fa. could not be given in evidence, on the ground that the levy was evidence of satisfaction of the execution, and that the plaintiff must prove, either that it was insufficient, or that the proceeds were applied to some prior lien, or that it was otherwise unproductive, without his fault.” To which decision plaintiff excepted.</p> <p>Plaintiff then proved by Junius A. Wingfield, that he caused the levy to be made, and prosecuted the same as attorney, before the Inferior Court, and finding that the evidence was insufficient to subject the property to the fi. fa. the levy was dismissed, and for that reason alone. In reply to question by claimant’s counsel, he stated, that since the dismissal of the levy, he had ascertained the facts connected with the title to the negroes, and now knew facts enough to condemn the property as subject to the fi.fa.</p> <p>The Court held the evidence insufficient to rebut the presumption of payment, and decided that the evidence showed that the levy was made unproductive by the plaintiff in fi. fa. through his counsel, in dismsssing the levy.</p> <p>To this decision plaintiff in fi.fa. by his counsel, excepted, and these two questions are submitted to this Court for review.</p>

<p>Motion to set aside a judgment, in Greene Superior Court. Decided by Judge Johnson, March Term, 1850.</p> <p>This was a motion to set aside a judgment against Chaffin and Dickinson, upon the following agreed statement of facts :</p> <p><! Suit was instituted in Greene Inferior Court, against Chaffin and Dickinson, and one John W. Battle, upon a joint and several promissory note, made by Chaffin as principal, and by the firm of Dickinson & Battle as securities. At the time* Battle resided in Greene County, and Chaffin and Dickinson in Taliaferro. Judgment was rendered, in the Inferior Court, against all the defendants, from which judgment Battle alone appealed. On the appeal, Battle filed three pleas : 1st. The general issue. 2d. Notice to plaintiff to sue Chaffin,' and failure to comply within proper time. 3d. That the firm name was signed by Dickinson, without any authority from Battle, or resulting from their co-partnership. Upon the trial of the appeal, there was a verdict for Battle, and against Chaffin and Dickinson ; and on this verdict the judgment was rendered.”</p> <p>The motion to set aside was on the ground—</p> <p>1st. That if the verdict of the Jury was in favor of Battle, on the second plea, the notice to sue enured to the benefit of the firm of Dickinson & Battle, and Battle being discharged, Dickinson was also discharged, and the judgment is a nullity.</p> <p>2d. That Battle being the only defendant resident in Greene County, and being discharged on the third plea““-that he had never been bound as a co-obligor — the Courts of Greene County were ousted of jurisdiction over the non-resident defendants; or, rather, the Court never had jurisdiction — there being no co-obligor residing in said County ; and the judgment is, therefore, a nullity.</p> <p>3d. That the suit being a joint action upon a joint contract, and it appearing, by the verdict, that Battle had never been a party to the contract, no judgment could be legally entered up on the verdict, against Chaffin and Dickinson.</p> <p>The Court overruled the first ground, but sustained the second and third grounds, and granted tho motion.</p> <p>To which decision, sustaining the second and third grounds, and granting the motion, Allison excepted.</p> <p>1st. If the Court has jurisdiction at the time of the commencement of. the action, such jurisdiction cannot be divested by any thing subsequent. Mollan vs. Torrance, 9 Wheat. 537. Read vs. Renaud, 6 Smedes & Marsh. 79.</p> <p>2d. Courts will not entertain motions to set aside judgments, after any considerable lapse of time. Soldan & Smith vs. Cook, 4. Wend. 217. Saffold vs. Kenan, 2 Kelly Rep. 341. Evans vs. Rogers, Kelly, 466.</p> <p>3d. An appeal of one of several defendants does not vacate the judgment as to the other defendants. Hotchkiss, 601. Stell vs. Glass, 1 Kelly, 483, 485.</p> <p>4th-.. In writs of error,, all parties in the Court below must join,, and be joined. If some choose not to prosecute the writ, there may be judgment of severance- Shirley vs. Luneburg, 11 Mass. 379. Denale vs. Stump, 8 Peters, 526. Jameson vs. Coleburn, 1 Stew. & Port. 253.</p> <p>5th. Where nothing appears upon the face of the proceedings, to show a want of jurisdiction, and the objection is not made in the Court below, it cannot be taken in the Court above. Vamey vs. Vosch, 3 Hill, (S. C.) 237. Beaubain vs. Brinkerhoff, 2 Scam. 269. Wells vs. Mason, 4 Ib. 84. Vance vs. Funk, 2 Ib. 263.</p> <p>1st. The Court rendering said judgment, had no jurisdiction, by law, over the persons of the defendants. Prince, 910, 419, 421. Hotchkiss, 67. Bank of Vicksburg vs. Jennings, 5 How. Miss. R. 425.</p> <p>2d. The Court, having no jurisdiction, by law, could not derive it from any other source. Neither waiver, or want of plea, or consent of parties, or even judgment by default andsubsequent consent-rule to plead to the merits, can confer jurisdiction. Wyatt vs. Judge, 7 Porter, 37. Hart vs. Mallett, 2 Hay. Rep. 136. Dickens vs. Ashe, 2 Hay. Rep. 176. The King vs. Commissioners, &c. 7 East. 80. Bell vs. Tombigbee R. R. Co. 4 S. & M. 549. Burroughs vs. McNeil, 2 Dev. & Bat. 301. Jacob Waggoner vs. Jno. Grove, North Ca. Conf. R. by Battle, 563. Prince, 427. 4 Ga. Rep. 50. 5 Ib. 529. 3 Chit. Prac. 525. Taylor vs. Phillips, 3 East. 155. Roberts vs. Monkhouse, 8 East. 547. 1 Chit. R. 400. Osborne vs. Taylor, 18 Eng. Com. Law Rep. 115. 2 Chit. R. 237, or 18 Eng. Com. Law Rep. 317. 4 Ga. Rep. 50. Mortimer vs. Piggatt, 2 Dowl. 616. Roberts vs. Spurr, 3 Dowl. 554. Welsh vs. Lywood, 1 Bing. New Cases, 258, cited in 3 Chit. Prac. 527.</p> <p>3d. A Court is bound, ex mero motu, to notice its want of jurisdiction, and to stay proceedings, though its power in the premises be not questioned by the parties litigant. Stumps vs. Newton, 3 How. Miss. R. 34. Ketland vs. The Cassius, 2 Dall. R. 368. Burroughs vs. McNeil, 2 Dev. & Bat. Eq. Rep. 301. Pollard vs. Patterson, 3 Hen. & Munf. 67. Hickman vs. Stout, 2 Leigh, 9. Kelso vs. Blackburn, 3 Leigh, 299. See 3 Chit. Prac. 527, and cases there cited.</p> <p>4th. The Court, not having jurisdiction, its proceedings are void, (not voidable,) ab initio; its writ, the instrument of usurpation ; its judgment, a nullity ; and its enforcement, a trespass. 2 Chit. Prac. 307. 3 Chit. Prac, 75. Ham. Ni. Prius, 49, 50. 10 Coke, 76, or Coke Abridg. 300. (Marshalsea.) Kentworthy vs. Peppiot, 4 Bar. & Ald. 288, or 6 E. C. L. Rep. 426. Ketland vs. The Cassius, 2 Dal. 368. Stumps vs. Newton, 3 How. Miss. R. 34. Luthem vs. Edgerton, 9 Cowen, 229, 230. Burroughs vs. McNeil, 2 Dev. & Bat. Eq. 301. Bigelow vs. Stearns, 19 Johns. R. 40. 15 Ib. 141. Elliott vs. Piersoll, 1 Peters, S. C. 340. Fisher vs. Harnden, Paine Cir. C. Rep. 431. Westervelt vs. Lewis, 2 McPean, 50. Bell vs. Tombigbee R. R. Co. 4 S. & Mar. 563. 2 Wils. 385. 4 Ga. Rep, 49. 5 Ib. 530, 531.</p> <p>5th. The judgment, for want of jurisdiction, being a nullity, and its enforcement a trespass, the exception may be taken, and judgment vacated at any time. 3 Chit. Prac. 75, 523 to 525. 1 Peters, 340, (Elliott vs. Piersoll.) Hickman vs. Armstrong, 2 Brevard, 177. Bell vs. Tombigbee R. R. Co. 4 Smedes & Mar. Miss. Rep. 563. Luthem vs. Edgerton, 9 Cowen, 229, 30. Bar-den vs. Fitch, 15 Johns. R. 141. Bigelow vs. Stearns, 19 Johns. R. 40. 5 Ga. Rep. 530.</p> <p>6th. The question as to the effect of the appeal by one only of the several defendants, to the judgment in the Inferior Court, did not. legitimately arise on the hearing of the motion to vacate the judgment upon the appeal; nor will this Court consider it. Smith vs. Kershaw, 1 Kelly, 259. Sampson vs. The Commonwealth, 5 Watts & Serg. 385. Kirby vs. Wood, 4 Shep. 81.</p> <p>7th. An appeal by one defendant enures to the benefit of all. Lewis vs. Thornton, 6 Munf. 87. 3 Murph. 309. 2 Tyler, 396. 2 Leigh, 399.</p> <p>8th. If not, the plaintiff has waived the irregularity in this case. 1 Kelly, 95.</p> <p>9th. If the party appealing alone is bound, this judgment is surely void as to the parties now moving to vacate.</p>

The defendant in error joined issue with a protestation, and moved to dismiss the writ on errors— 1. Because no copy of the writ of error was served on the defendant or his counsel. 2. Because the hill of .exceptions does not specify the error’s complained of.

Motion to revoke probate of will. Jones Superior Court. Before Judge Johnson, April Term, 1850.

<p>In Equity, in Greene Superior Court. Decided by Judge Johnson, March Term, 1850.</p> <p>This was an action against John Coleby, as one of the sureties on a bond given by William G. Grimes, as guardian of Sarah T. Jones, wife of plaintiff in error.</p> <p>Upon the trial, the plaintiffs offered in evidence the record of a judgment and decree against the guardian, and the execution issued thereon, on which there appeared an entry of “ nulla bona” by the Sheriff, for the purpose of showing a devastavit by the guardian. The defendant objected to the testimony, on the ground, that no entry had been made on the execution since the year 1834, and that the same was, under the Act of 1823, dormant.</p> <p>The Court sustained the objection, and rejected the evidence; and this point comes up for revision, on exceptions filed by plaintiffs.</p> <p>Matthews on Pr. Ev. 375. Smith’s Ex’r. vs. Miller, 14 Wend. 188. 2 Reps. Const. Ct. 617. 7 Ga. Rep. 393.</p> <p>1 Bouvier, 577, 725. 7 Ga. Rep. 36, 393. 2 Kelly, 252. 3 Maulé Of Sel. 66. Loffb. 783. 1 Term, 44. 4 lb. 790. Curry vs. Piles, ante 32.</p>

<p>Assumpsit, Ac. in Washington Superior Court, Tried before Judge Holt, September Term, 1849.</p> <p>Daniel Harris, as guardian, obtained judgment against Morris Walden to a large amount, and caused the same to be levied, in 1842, on a number of negro slaves in the possession of Walden. To a portion of these negroes, Sarah Walden, the wife of Morris Walden, by her next friend, L, Mathis, interposed a claim, that the same were her separate property, and gave a forthcoming and claim bonds, with William P. Hardwick as surety. The negroes, at that time, went into the possession of Hardwick, and remained in his possession until the termination of the litigation.</p> <p>Before the claim issue was tried, Mrs. Walden, by her next friend, filed a bill, alleging the foregoing facts; and further, that her husband received this property in trust for her, and held it as trustee ; but fearing she could not sustain her claim at Law, prayed that this property might be settled as a provision for her, and that the creditor, Harris, might be enjoined. Upon this bill, a decree was rendered, in 1846, settling one half of the property in dispute to Jeptha Brantley, in trust for Mrs. Walden, and providing that the other half be sold by Jamos S. Hook, as receiver in Equity, and the proceeds paid to Harris, the creditor; and “ that the said receiver in Equity proceed to collect, and if necessary, to sue for the hire of said slaves, that may have accrued or become due, by whomsoever, since the levy of the ji.fa. and divide the same” equally between Harris and Mrs. Walden, through her trustee.</p> <p>Hook, the receiver, commenced an action of assumpsit, <$fc. against Hardwick, for the hire of the negroes, reciting in his petition the decree above stated. Upon the trial, counsel for Hard-wick took exceptions to the action, on the ground of a want of privity between the parties. The exception was overruled by the Court, and this is the first error complained of.</p> <p>Plaintiff below then offered, in evidence, the record of the bill and decree, which was objected to—</p> <p>1st. Because, by the bill, the right to the hire is not vested in Hook, but he is a mere agent to sue in their names.</p> <p>2d. Because Hardwick was not a party to the bill.</p> <p>3rd. Because the decree showed that at the time Hardwick took possession of the property, Hook had no title thereto.</p> <p>The Court overruled the objections, and this decision is alleged as error.</p> <p>Jeptha Brantley was then offered as a witness, by Hook. Objection — that he was incompetent, being the trustee named in the decree for Mrs. Walden. The Court overruled the objection, and this decision is assigned as error.</p> <p>The defendant below proposed to prove by one E. C. Williamson, a contract or agreement between Mrs. Walden and Hard-wick, about the hire of the negroes, in September, 1842, after the bill in Equity had been filed. Objected to by counsel for Hook, and ruled out by the Court, and this decision is complained of as erroneous.</p> <p>The defendant then proposed to prove by Isham H. Saffold, that Hardwick had paid him $100, as the fee contracted by Mrs. Walden for the defence of the claim case, before the property went into the possession of Hardwick. On objection by plaintiff’s counsel, the Court rejected the evidence, and this decision is assigned as error.</p> <p>Defendant’s counsel then proposed to prove by Charles J. Jenkins, that the decree in the Equity cause was made and drawn by counsel, and submitted to be signed by the Jury, by consent. The Court rejected the evidence, and this decision is assigned as error.</p> <p>Defendant’s counsel requested the Court to charge the Jury—</p> <p>1st. That from the decree under the bill, there is no evidence of title in the plaintiff, to authorize a recovery in this action.</p> <p>2d. That if the Jury believed that Hardwick went into the possession of the negroes, under a contract with Mrs. Walden, if liable at all, he is liable to Mrs. Walden.</p> <p>3d. That after the bill was filed, Hardwick could contract with Mrs. Walden, he being no party to the bill, especially if he had no notice of it.</p> <p>The Court refused so to charge, but on the contrary, among other things, charged the Jury, that “In this case, the decree vests the legal title in Hook to the hire, and he has a right to recover all the hire in this suit, against Hardwick, from the time the Court of Equity took jurisdiction of the cause; that the legal title to the hire was separated by the decree from the legal title to the property, and vested in Hook; that if Mrs. Walden had been a feme sole, when the property went from the Sheriff to Hardwick, she would have had the right to contract about the possession, and would have been bound by it, but being a feme covert, she could make no contract to impair her rights after the Court of Equity took jurisdiction of the cause; that the hire must be governed by the decree.”</p> <p>All of which charge and refusal to charge, is assigned as error.</p> <p>To maintain the action of assumpsit, a promise, express or implied, must be proved, and the contract must be proved to have been made by the defendant with the plaintiff, and him only. 1 Saund. Pl. & Ev. 109, 42. 4 B & A. 437. 1 East, 497. 8 T. R. 332. Brown on Actions at Law, 328. 9 C. & P. 87.</p> <p>The consideration must have proceeded from the plaintiff, and at the defendant’s request, express or implied. 1 Saund. Pl. & Ev. 148. 1 T. R. 20. Str. 933. Brown on Actions, 328.</p> <p>In all actions at Law, the plaintiff must be the one in whom the legal right was vested, at the time the cause of action arose. Brown on Actions, 99, 103. Broom on Parties, 1. 7 T. R. 50, 607. 2 Bing. 20. 8 T. R. 332. 3 Camp, 417.</p> <p>A contract, being a mere chose in action, cannot be assigned, so as to allow the assignee to sue in his own name. He must use the assignor. Brown on Actions, 105, and authorities there cited.</p> <p>Covenants do not run with personalty. Broom on Parties, 10. 13 East, 63. 10 East, 279.</p> <p>A receiver is one appointed by the Court to provide for the safety of property pending the litigation — to take care of the property in dispute, and pay it over, and its profits, to the party eventually entitled. This was not a proper case nor a proper time for the appointment of a receiver. 1 Smith’s Ch. Pr. 628, ’9. 2 Madd. Ch. Pr. Bennett’s Ch. Pr. 89. 16 Wend. R. 405, 21. 3 Daniel’s Ch. Pr.</p> <p>A receiver cannot bring an action in his own name. When he sues, he sues by permission of the Court of Chancery, and sues in the name of the party having the legal right. 1 Smith’s Ch. Pr. 639. 3 Atk. 750. 16 Wend. 410. 3 Bro. C. C. 86. 1 Johns. Ch. R. 60.</p> <p>The rights of third parties, neither parties nor privies to a suit, cannot be affected by that suit.</p> <p>The testimony of a trustee is not admissible in a suit for the benefit of the cestui que trust, because the fund is to be paid to him, and is subject to be retained for any balance due him from the cestui que trust, he being entitled to commissions.</p> <p>The decree in Chancery, appointing Hook, (the plaintiff below,) receiver, vests in him a legal title to the hire of the slaves in contest, s.ccx\xmgpendente lite, and the defendant, Hardwick, is legally liable for it — hence the privity. 1 Story’s Equity, §73. 2 Story’s Equity, §§831, 833, 834. 8 Paige’s Chancery Reports, §§565, 388. 2 Roper on Husband and Wife, 117, 118. 8 Term Reports, 547.</p> <p>The record of the suit and decree in Chancery, was competent evidence, even against a stranger, to show title in the plaintiff below. 1 Starkie’s Evidence, 212. 1 Greenleaf’s Evidence, §538, ’9.</p> <p>A trustee, when not a party to the record, nor liable for costs, is a competent witness, though his cestui que trust may have an interest in the record. Phillips' Evidence, 41. Norris Peake’s Evidence, 229. 1 Greenleaf’s Evidence, §333. 1 Douglass' Reports, 140. 1 P. Williams’ Reports, 289, 290. 1 Modern Reports, 107.</p> <p>A decree in Chancery, having been put in evidence, simply to show plaintiff’s legal right — to establish privity — not to fix defendant’s liability — it was not competent for defendant to attack that decree collaterally, by proving that it was founded on consent between the parties.</p>

Decided by Judge Johnson, 22d March, 1850. This was an application for a mandamus to compel the Govern- or to issue a commission to the relator, John H. Low, as Clerk of the Court of Ordinary of Henry County. The petition for a mandamus nisi set forth the following facts : On the second Monday in January,'1847, John H. Low was elected Clerk of the Court of Ordinary of Henry County, and was duly commissioned and qualified.

In Equity, in Washington Superior Court. Decision on demurrer, by Judge Holt, September Term, 1849. The question, in this case, arose upon a demurrer to a bill filed by defendants in error, against the plaintiffs in error.

<p>[1.] After a bill of exceptions has been signed and certified by the Judge of the Superior Court and filed with the Clerk, his control over it is at an end.</p> <p>[2.] Under the Acts of 23d February, 1850, the original bill of exceptions must remain in the Clerk’s office below, for the inspection of all parties interested, and a copy be transmitted to the Supreme Court, as a part of tho transcript of the record, or accompanying the same; and if this is not done, the cause will be stricken from the docket.</p> <p>[3.] The Act of 23d February, 1850, allowing the copy of the bill of exceptions, with the transcript of the record, to be made out and sent up to the Supreme Court, on or before the first day of the term to which the writ of error is returnable, would seem virtually to repeal that provision of the Act of 1845, which requires the transcript to be sent up within ten days from the filing of the notice.</p> <p>[4.] Where no other time is fixed for the operation of a Statute, it takes effect from its passage; and ignorance of the Act forms no legal excuse for its violation.</p>

<p>In Equity, in Scriven Superior Court. Decision by Judge Holt, October Term, 1849.</p> <p>By the last will of Bates Bailey, he desired that his wife and son, and all his property, should remain on his farm until the 1st of August, 1830 — after which time, he bequeathed to his son all of his lands and negroes, &c. “ except four negroes, which is here mentioned, to my daughter, Celia Rosamond Powell. I give and bequeath to the heirs of her body, the following named .negroes, viz: Hannah, Alex, Screen and Dick. Should she have no heirs from her body, she is to have the use of said negroes her life-time, and, at her death, should she die without any heirs from her body, the four named negroes above, and their increase, to return to my son, John B. Bailey, as his property, or to his lawful heirs.” It was further provided by the will, that at the date specified, all the property was “ to be given up to John B. Bailey, as his property, except the four negroes mentioned above, which are to be given up to Celia R. Powell.”</p> <p>In September, 1848, Daniel, as next friend for the minor children of Celia R. Powell, filed a bill, praying a ne exeat, &c. on the ground, that under this will, Celia R. Powell took only a life estate, and her children in remainder.</p> <p>.On the hearing, a motion was made to dismiss the bill and process, on the ground that Mrs. Powell took a fee-simple under tho will, and if only a life-estate, the remainder was to Bailey, and not to her children.</p> <p>The Court overruled the motion* and this decision is brought up for review,</p> <p>Reese vs. Steele, 2 Simons, 233. 1 Hilliard on Real Estate, 633. Dubler vs. Trollope, Ambler, 453. Elton vs. Eason, 19 Ves, 77. Ham vs. Ham, 1 Dev. & Bat. 598. Carr vs. Porter, 2 McC., Ch. 60. 2 Des. 112. Choice vs. Marshall, 1 Kelly, 97. Robinson vs. McDonald, 2 Kelly, 120. 3. Ib, 563,</p>

Exceptions to an award, in Baldwin Superior Court. Decided by Judge Johnson, February Term, 1850. Tho plaintiffs in error, as legatees under the will of George W. Murray, deceased, filed a bill against Farisli Carter and Michael J. Konan, the executors thereof, for an account and settlement.

Indictment for murder, in Greene Superior Court. Tried before Judge Johnson, March Term, 1850. The issue in this cause was on a plea of “ not guilty,” of the plaintiff in error, to an indictment against plaintiff in error and John D. Malone alias Hall, for the murder of one Simeon Fuller.

<p>[1.] Where a balance is found to be due legatees, in the hands of executors, who have been guilty of gross neglect, in not making annual returns to the Court of Ordinary, of the condition of the estate in their hands: Held, to be liable for such balance, with interest from the time it fell due, for six years, to be compounded at the end of that term, and at the end of every subsequent term of six years: Held, also, that such executors, neglecting to make annual returns, are not entitled to commissions for their trouble in managing the estate.</p>

<p>[1.] Cross interrogatories are sufficiently answered, when the witness answers them according to a reasonable understanding of their object and meaning.</p> <p>[2.] Interrogatories which have been read on a previous trial, without exception to their execution, cannot be excepted to at a subsequent trial. Failing to except at the first trial, Held a waiver of the exception which then might have been taken.</p> <p>[3.] The sayings of an attorney who has sold a note belonging to his client, without authority, relative to his title to the note, not made at the time of the sale, Held to be inadmissible in a suit between the purchaser and the true owner for the note.</p> <p>[4.] When it appeared from the return of the commissioners, that questions were put to the witness and answered, by a person purporting to be the attorney of one of the parties at the time of execution, the other party not being present: Held, that the interrogatories are defectively executed, and must be rejected.</p> <p>[5.] Held, that one who buys a note, bill or other negotiable security, bona fide, and for value, after it is due, from one who has no title to it, acquires no title against the true owner.</p>

This was an application on the part of Andrew Turner, who was plaintiff in error in a writ of error, returnable to and decided at Macon, February Term, 1860, for a certificate that the cause was not brought up for the purpose of delay, in order to be relieved from the ten per cent damages provided in the Act organizing this Court.

In error, from Laurens Superior Court. Tried before Judge Hansell, March Term, 1850. Suggestion of a diminution of the record. Motion to dismiss writ of error.

<p>[1.] A denial in the answer from information and belief, is not sufficient to dissolve an injunction.</p> <p>[2.] Where the equity of an injunction bill is not charged to be within the knowledge of the defendant, and the defendant merely denies all knowledge and belief of the facts alleged therein, the injunction will not be dissolved on the bill and answer alone.</p> <p>[3.] It is a good answer to an application to dissolve an injunction upon bill and answer; that the equity of the bill upon which the injunction rests, is not denied by the defendant, whether from ignorance or any other cause.</p> <p>[4.] The answer of the executor, that he was not privy to the fraud charged against his testator, and that he disbelieved the facts alleged in the bill against him, from his confidence in his integrity, is not sufficient to dissolve the injunction to restrain proceedings at law in favor of the estate.</p> <p>[5.] In some particular cases, the Court will continue the injunction, though the defendant has fully answered the equity set up in the bill.</p>

In Equity, in Telfair Superior Court. Tried before Judge Hansell, April Term, 1850. This bill was filed by the plaintiff in error against the defendant, in Telfair Superior Court.

Gambling with a negro, in Macon Superior Court. Tried before Judge Warren, February Term, 1850.

<p>In Equity, in Macon Superior Court. Decision on demurrer, by Judge Warren, March Term, 1850.</p> <p>Hardy McKenzie, by his bill, alleged, that about the 14th February, 1842, he and one John M. Greer became sureties for one Warren Dykes, on three promissory notes, to one Miles K. Harman; that in 1844, he (McKenzie) made an agreement, verbally, with Harman, that Harman should give up the three notes, and take in lieu thereof the individual note of Dykes ; in consideration of which, McKenzie agreed to give, as collateral security for the new note, a deed to one half of a tract of land in Macon County. In pursuance of this agreement, the deed was made and delivered to Harman, but from various causes, Harman failed to execute his part of the agreement, and died, holding the three notes still in his possession. Since his death, his administrator had recovered judgment on the notes, and the same had been paid up by McKenzie. The bill prayed that the deed might be given up to be cancelled.</p> <p>Demurrer. 1st. For want of equity; 2d. That the parol agreement cannot be proved to vary an absolute deed; and 3d. Complainant should have made defence to the notes sued.</p> <p>The Court overruled the demurrer, and defendant excepted.</p> <p>Miller vs. Cotten, 5 Ga. Rep. 346, 347. Robson vs. Harwell and Wife, 6 Ga. Rep. 595. Irnham vs. Child, 1 Ero. Ch. 93. Acts of 1837, pam. 111. Hotchkiss, 589. 1 Greenl. §§276, 288. 7 Bac. Abr. 244, ’5. Moss vs. Riddle, 5 Cranch, 351. 2 Smith’s Lead. Cas. 327, 30. Maxwell vs. Connor, 1 Hill’s Ch. R. 22. Bostwich vs. Perkins et al. 1 Kelly, 139.</p> <p>Roberts on Frauds, 155, ’6, 130, 78. 1 Bland’s Ch. R. 248, 288. Story’s Eq. Pl. §763. 2 Bland, 261. 8 Ga. Rep. 245. 1 Kent, 464. Chitty on Contracts, 741. Boyce, executor, vs. Grundy, 3 Peters, 10. Bac. Abr. 199. 1 John. Cas. 155. 3 John. 216. 11 John. 96. 6 Ga. Rep. 614, 623. 2 Kelly, 420. 4 Conn. 276. 2 Penn. 492.</p>

Certiorari, Macon Superior Court. Decided by Judge Warren, March Term, 1850. The only point in this case arose upon the trial of an issue in a Justices Court, formed upon an affidavit of illegality, interposed by Thomas S. Johnson, administrator, de bonis non, of Elias Jourdan, deceased, to an execution founded on a judgment against the former executrix, whose letters abated upon marriage with Johnson.

Certiorari, in Randolph Superior Court. Decided by Judge Warren, April Term, 1850. 1/aac Bryan commenced suit in the Inferior Court of Randolph County, against Frederick Barefield and others, as administrators of L: Barefield.

<p>[1.] A files his bill, charging that he is the owner of four shares in an estate represented by the defendant B ; that he became the purchaser at public sale, of property belonging to that estate, for which he gave his notes, with an understanding with the then executrix, that they should be paid by allowing him the aforesaid shares; that suit has been instituted and judgment had on the notes, which is now proceeding against him, and praying that the judgment be enjoined and the agreement enforced, by allowing to compilamant the amount of his fpur shares as a credit on it: Held, that upon the answer distinctly denying that the estate owed the complainant any thing, and stating that the four shares claimed in the bill have been paid to him, the in junction was very properly dissolved.</p>

Debt, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1850. This was an action by Richard A. Lane, as a holder of bank bills .of the Planters & Mechanics’ Bank of Columbus, against Thomas Morris, a stockholder in said Bank, to recover on liis^ro rata liability for the payment of the bills, under the following section of the charter. “Sec. xi.

Ejectment, in Sumter Superior Court. Tried before Judge Warren, May Term, 185Q. This was an action of ejectment by the administrators of Arnold Godwin, to recover a lot of land in Sumter County. Defendant claimed under a deed from the Sheriff of Sumter County, reciting that the land had been levied on and sold on the 1st Tuesday in April, 1841, as the property of one John Deupree.

<p>In Equity, in Muscogee Superior Court. Decision by Judge Alexander, May Term, 1850.</p> <p>Tbe bill in tbis case was filed by Daniel Hightower, alleging that he was a judgment creditor of the Planters & Mechanics’ Bank of Columbus, and that his Ji.fa. had been returned by the Sheriff, with the entry of “ nulla bond” thereon ; that the original stock subscribed was one million of dollars in shares of $100 each; that only $25 on the share had ever been paid in by the stockholders, the directors being stockholders and fraudulently refusing to call in any further payments on the stock, and in fact rescinding orders previously passed, requiring an assessment on the stock to be paid in. The bill alleged, that the bank was totally insolvent, and that under the decree of the Superior Court of Muscogee County, the charter had been forfeited. The prayer was, that the stockholders of the bank should be decreed to pay into Court such sums as should be sufficient to discharge the demand of complainant.</p> <p>When the cause was called for trial at May Term, 1850, both parties having announced themselves ready, the defendants’ counsel moved to dismiss the bill for want of equity.</p> <p>The Court granted the motion, and this decision is the error assigned in this case.</p> <p>1. That the capital stock of a bank is a trust fund for the payment of its debts, and may be pursued into the hands of any one who is not a bona fide purchaser. 2 Story’s Eq. §1252. Angel & Ames, 540 to 546. Wood vs. Dummer, 3 Mason, 308. 1 Kid on Corp. 273. Briggs vs. Penniman, 8 Cowen, 387. Slee vs. Bloom, 19 John. 456. Haslet vs. Witherspoon, 2 Richardson’s Eq Rep. 395. Allen vs. Montgomery and West Point Rail Road, 11 Ala. 437. J. Caldwell vs. Montgomery and Wife, 106 Talbotton Pamphlet — Statute Limitations. Thomas vs. Brinefield, 7 Ga. Rep. 154.</p> <p>2. That the capital stock of a bank, and the value thereof, is regulated by charter, and that subscribed for and agreed to be paid, is the capital stock. Prince’s Digest, 125. Angel & Ames, 562. Briggs vs. Penniman, 8 Cowen, 395. Opinion of Spencer Senator, Allen vs. Montgomery and West Point Rail Road, 11 Ala. 437. 1 Vide, Sanford’s Ch. Rep. 305. Vose vs. Grant, 16 Mass. 476. That in Equity, the contracts of a corporation are not extinguished by dissolution, but survive, and the creditor may pursue the property of the corporation wherever found. 2 Story’s Eg. §1252. Wood vs. Dummer, 3 Mason, 308. Nevitt vs. Bank of Port Gibson, 6 Smede & Marshall, 557. Mumma vs. Potomac Company, 8 Peters, 281. Vose vs. Grant, 15 Mass. 505, 517 and 522. Spear vs. Grant, 16 Mass. 9 and 15. Bleakney vs. Farm. & Mechanics’Bank of Greencastle, 17 Serg. & Rawle, 65. Lindell vs. Benton Kenedy, 6 Miss. 364. That when the rights of a party plaintiff depend upon the facts, that an assignment was made by a bank, he must prove them, notwithstanding they are recited in a public Act of the Legislature. Dougherty vs. Bethune, 7 Ga. Rep. 90.</p> <p>1st. That the complainant shows by his own bill, that at the time he dealt with said hank and became one of its depositors, its charter had been violated, and proceedings had been sued out and were pending for the forfeiture thereof. Of this, he had notice both by lis pendens and public law.</p> <p>The principle is without controversy, that if one deal with an agent, himself having knowledge of his want of authority, or that he is maladministering the affairs of his principal or transcending the limits of his authority, the principal is not thereby bound. Paley on Agency, 200. Story on Agency, page 546, 622, §§442, 482. 1 Esp. Reps. 290. Cowen and others vs. Simpson, 14 Mass. R. 58, Wyman vs. Hallowell and Augusta Bank. 2 Mason’s R. 3. Bellows vs. the same. 4 Smede & Marsh. 312, Lake et al. vs. Mumford. 1 Speer’s R. 433, State vs. Bank of South Carolina. 17 Mass. 28, Salem Bank vs. Gloucester Bank. 1 Kelly, 27. 13 Ohio, 12, 269. 1 Sup. to U. S. D. 436. 7 Ga. S. C. 80. 10 Metcalf, 325, 369. 2 Sup. to U. S. D. 91.</p> <p>2d. Said bill is defective, for the want of proper parties.</p> <p>I. It is a creditor’s bill, and by an individual creditor, showing upon its face that there are other creditors, without showing who they are or the amount of their claims.</p> <p>2. It shows that there are other parties (stockholders,) alike liable with the defendants sued, and alleges no sufficient reasons and excuses why they are not made parties.</p> <p>3. If the complainant can be excused from making other parties complainants and defendants, then we insist that the names of the omitted parties, the amount of their claims and the extent of their liability, &c. should have been set forth. 2 Story’s Eq. §1526. 2 Mason’s Reps. 190, 6, West vs. Randall et al. 4 Ga. Sup. Ct. 586, Rice vs. Tarver et al. 5 Ga. Sup. Ct. 28, Wells et al. vs. Strange. 6 Ga. Sup. Ct. 468, Smith & Shorter vs. Mitchell. 7 Ga. Sup. Ct. 98, Carter et al. vs. McDougald et al.</p> <p>3d. The demand of the complainant had its origin in a certificate of deposition, and now exists in a judgment rendered thereon. The stockholders (as such) are not and never were liable for either of such demands. Prince’s Dig. 127, ’8. 1 Kelly, 435, Collins vs. Central Bank et al. 1 Kelly, 461, Bullard vs. Central Bank. Angel & Ames on Cor. 546. 14 Mass. 58, supra. 4 Sm. & Marsh, 312, supra.</p> <p>4th. Admitting the existence and legal effect of the Act of incorporation at the filing of the complainant’s bill, then we insist—</p> <p>1st. That none but the board of directors had authority to call for instalments upon stock.</p> <p>2d. That they could only make such calls in terms of and in the manner pointed out in the Act of incorporation.</p> <p>3d. If the complainant, or any other than the board of directors, could make such calls, it could only be done in the manner and according to the form provided and fixed in the charter. Prince’s Dig. 125. 8 Cowen, 387, Briggs vs. Pennyman, Spencer, J. 5 Mass. 491, Gilmore vs. Pope. See also, 10 Mass. 334. 14 J. R. 238, Dutchess Cot. Man. vs. Davis. 3 Ala. Rep. 666. 5 Ala. Rep. 403. 1.1 Ala. Rep. 472.</p> <p>5th. A judgment of forfeiture, without condition or saving, is alleged to have been rendered. Then, no demand remains to the complainant, and no liability rests upon the defendants. Angel Ames on Car. 750. 2 Kent’s Com. 305 to 315. 3 Burrows’ R. 1866, Colchular Cor. vs. Seaber. 3 T. R, 199, The King vs. Passmore. 3 Smede & Marsh. 791, Bank of Miss. vs. Wren. 8 Pet. Rep. 281, Mumma vs. The Potomac Co. 10 Paige’s Ch. R. 541, W. & J. James vs. Woodruff et al. Angel & Ames on Cor. 482, §8, 493, §14. 7 Ga. S. C. 80. 13 Ohio. 10 Met. 6 S. & M. sup.</p> <p>6th. The fifth proposition assumes, as the bill alleges, that the judgment of forteiture is absolute and without condition or saving, and it is in fact so rendered. It may, however, enter into the consideration of this Court to enquire how far the consequences of the forfeiture are saved by the Acts of the Legislature, providing for its rendition and fixing tlie rights, liabilities and remedies of debtors, creditors and stockholders. We insist—</p> <p>1st. That by their provisions and savings, no right remains or is saved to the complainant to sue.</p> <p>2d. That no duty or obligation rests on the defendants in this or any proceeding, either in a Court of Law or Chancery, to answer his demand. Prince’s Pig. 125, ’6, ’7. Pamphlet Acts, 1840 —27, 1841 — 29, 1842 — 29, 1843—21. 5 Ga. Sup. Ct. Reps. 239, Hall et al. vs. Cary, assignee. 2 McMullen, 439, State vs. Bank of Charleston. 6 Ala. Reps. 289, Crawford vs. Planters & Mech. Rank. 8 Peters, 281, supra. 1 Kelly, 27. 7 Ga. S. C. 80, supra.</p> <p>7th. We insist upon the Statute of Limitations, as a bar to the complainant’s rights, if any otherwise would remain to him. Is it replied that it is a trust fund iii the hands of the defendants, which the complainant is seeking to pursue? When did the relation of trustee and cestui que trust happen, and when did it cease to exist ? When did their interest become adverse? Angel § Ames on Cor. 556. 19 J. R. 477, Slee vs. Bloom. 8 Cowen, 391, Briggs vs. Perryman. 2 Story’s Eq. §1521 a, page 989. 5 Ga. Sup. Ct. 486, Dickman vs. McCamy. 8 Ga. Sup. Ct. 1, Pendergrast et al. vs. Foley, adm’r. Ibid, 97, Keaton vs. Greenwood. 2 McMullen, 439, supra. 1 Speers, 433, supra. 1 Kelly, 27. 7 Ga. S. C. 80, supra.</p> <p>8th. If the defendants are liable, it is upon a promise or contract to pay, express or implied. To pay whom and when? As between them and the complainant, no promise or consideration has passed. 5 Mass. R. 491, Gilmore vs. Pope: 10 Ibid, 334, supra. 14 J. R. 238, supra.</p> <p>9th. The complainant is seeking the recovery o;f a demand against an insolvent corporation, and taking his own allegations most strongly against himself, it was so when he acquired his demand. He should, therefore, have shown by his bill, to entitle him to any relief, when, how and at what cost he acquired his demand, as he is only entitled to recover so much as, arid no more than it cost him. 1 Kelly, 435, 461. 6 Paige’s Ch. R. 486.</p>

<p>In Equity, in Muscogee Superior Court. Decision on demurrer, by Judge Alexander, May Term, 1850.</p> <p>This bill was filed by Daniel Hightower, and other judgment creditors of the Planters & Mechanics’ Bank of Columbus, alleging, that in 1842, the said bank borrowed of one John L. Mustian, ten thousand dollars in bills of the Central Bank of Georgia, (which were worth at that time 75 cents to the dollar) for which they agreed to pay interest at the rate of 16 per cent, per annum ; that at the time, the bank was largely indebted to complainants and others, far beyond its means and resources, and was then, and still continues to be, totally insolvent; that shortly thereafter, the bank went into liquidation, and assigned all of its assets to Robert B, Alexander, for the benefit of its creditors, and in a few days after the assignment, the charter was declared forfeited by the decree of the Superior Court of Muscogee County; that a few days before the assignment, and with a full knowledge of all the facts, John L. Mustian, combining and confederating with the bank to obtain a fraudulent and unjust preference over the other creditors, received in payment, or as security for his debt and the usury thereon, the sum of $25,000 of the bills of the bank, which he has since converted to his own use; also a large number of solvent promissory notes, the property of the bank, together with the title deeds to a large quantity of land in Alabama, held by the bank as security for the payment of the notes — the exact amount of which notes, complainants were unable to specify. The bill charged distinctly three notes, amounting to more than $22,000, and that Mustian had collected on the assets received by him, upwards of $40,000. The bill charged the whole arrangement to be fraudulent and void.</p> <p>The prayer was, that Mustian might be declared a trustee, and might be held to account for the assets received by him.</p> <p>By an amendment to the bill, it was alleged that the complainants were wholly ignorant of the fraud charged in the bill, until day of November, 1848, and their bill was filed to the first Court thereafter; and that the proceedings to forfeit the charter were pending at the time the arrangement with Mustian was made, and was well known to him; and that at the time of the assignment, John Banks, as agent of the bank, agreed to pay Mustian 25 per cent, on his said loan, to be paid out of the said assets, until the same was paid.</p> <p>To this bill, vyas filed a general demurrer for want of equity.</p> <p>The Court sustained the demurrer, and this decision is brought up for review.</p>

In Equity, in Muscogee Superior Court. Decision on demurrer by Judge Alexander, May Term, 1850; The bill in this case was filed by Thomas Stocks and others, as judgment creditors of the Chattahoochee Rail Road & Banking Company, showing that they had prosecuted their legal remedy till a return of “nulla Iona” had been made by the Sheriff; that the said company, being in failing circumstances, made an assignment of all its assets to Van Leonard and others, as general…

In Equity, in Muscogee Superior Court. Exceptions to answer. Decision by Judge Alexander, May Term, 1850.

<p>[1.] Affidavits, under our attachment laws, should be signed by the Magistrate before whom they are taken, with the addition of their official description.</p> <p>[2.] Where the attachment bond is made payable to the individual members of a firm, when the attachment itself is sued out against the firm, and it does not recite that the obligees compose said firm, the bond and attachment are both void.</p>

<p>In Equity, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1850.</p> <p>On the trial of this cause on the appeal, after the proofs and pleadings were submitted to the Jury, the complainants’ counsel opened his case to the Jury, insisting on various errors in the returns of the intestate of Robert and John F.Boyd to the Court of Ordinary, on the estates for which his administrators were now called to account. Defendant’s counsel replied and insisted before the Jury, that under the pleadings, these errors could not be insisted on. Counsel for complainant then stopped counsel for defendants, and insisted on a verbal agreement dispensing with any such allegations in the bill, which being denied, counsel for complainant moved for a continuance, on the ground of surprise, in order that the bill' might be amended. The Court granted the motion, and this decision is assigned for error.</p> <p>The Court then granted an order, allowing the bill to be amended on the showing by counsel of his understanding of the verbal agreement; and this decision is also assigned for error.</p>

In Equity, in Muscogee Superior Court. Decision by Judge Alexander, May Term, 1850.

In Equity, in Muscogee Superior Court. Decision on demurrer by Judge Alexander, May Term, 1850.

<p>[1.] An attachment, ordinarily, cannot issue for a partnership debt, against ©n,e of the pjytoers, individually, and be levied on the partnership property, on the ground of the non-residence of the defendant in attachment. Secas, if the non-resident partner or partners were the only survivors of the firm.</p>

<p>[1.] An Insurance Office makes insurance of the life of A at the instance of B. In the policy it is stipulated that the premiums shall be paid on the 10th of April, annually; and that if they were not then paid, the company should not be liable for the insurance, or any part thereof, and the policy should cease and determine. Printed proposals, purporting to be the terms and conditions of insuring, were put out by the company to persons dealing with them, one article of which was that a party neglecting to settle his annual premium within thirty days after it is due, forfeits the interest he has in the policy. No reference is made in the policy to the printed proposals. The premium due on 10th April, 1847, was not paid at that time; the insured died four days thereafter, and after his death, and within the thirty days, the premium then due was tendered and refused by the company: Held, that the article in relation to the thirty days does not extend the contract of insurance beyond the time designated in the policy for the payment of the premium, and that the company, according to the facts of this case, are not liable.</p>

Decision on demurrer, in Muscogee Superior Court, by Judge Alexander, May Term, 1850.

Assumpsit, in Muscogee Superior Court. DccisHfcn by Judge Alexander, June Term, 1850. H. Noble, as tlie indorsee of T. A. Brannon, brought suit on a note made by A. F. Brannon, due 1st December, 1846, and payable to the order of T. A. Brannon. To this suit A. F. Brannon pleaded former recovery, on a process of garnishment issued by a creditor of T. A.Brannon, and served on A.F. Brannon, on the 5th January, 1847.

<p>[1.] In order to sue out an attachment in behalf of a firm, one partner has the right to execute a bond in the name'of the firm.</p> <p>[2.] A general judgment creditor cannot form an issue and traverse the truth of the affidavit of the attaching creditor, after judgment rendered on the attachment, and on a motion to distribute money belonging to the defendant.</p>

<p>Assumpsit, &c. and motion for new trial, in Muscogee Superior Court, May Term, 1850. Tried before Judge Alexander.</p> <p>N. McLester brought suit against plaintiffs in error on two notes of $250 each, payable to McLester or bearer. Flea — that the notes were given for an illegal consideration, viz : the sale of the office of Clerk of the Inferior Court of Muscogee County, by McLester to Grant.</p> <p>On the trial, the defendants proved that McLester was Clerk, and that Grant did all of the services, acting as Deputy Clerk, and receiving the costs. McLester told one witness he had nothing to do with the office, and told another that he had let Grant have the office, and Grant owed him $500. To interrogatories exhibited to McLester, the plaintiff, he answered, that he appointed Grant as his Deputy, to take charge of and conduct the office ; that about the time thejnotes were given, he was forced to leave the State for a time; that one W. B. Ector applied to him to appoint Grant Deputy; that he made out a schedule of the costs then due, amounting to $1000 or $1200, besides the accruing costs, and it was agreed that Grant should be appointed Deputy, and receive as his compensation, all of said costs — he, Grant, paying, or securing to be paid to McLester, out of, or as a part of said costs, and those accruing thereafter, the sum of $500, and for this sum the notes were given. He denied that there was any sale of the office, or contract of sale. He admitted that he did require Grant to give him a bond with security for the faithful performance of his duties as Deputy Clerk.</p> <p>Counsel for Grant requested the Court to charge the Jury, that if they believed that the notes were given for costs already accrued and to accrue, that the consideration was illegal, and the notes void ; which charge the Court refused to give, but on the contrary, charged, that if the Jury believed that the notes were given for the costs already accrued, that the consideration was good.</p> <p>The Jury found a verdict for the plaintiff, whereupon defendants moved for a new trial—</p> <p>1st. Because the Court erred, in refusing to charge as requested.</p> <p>2d. Because the Court erred in charging as stated.</p> <p>3d. Because the Jury found contrary to law and evidence.</p> <p>The Court refused the motion, and defendants excepted.</p>

<p>Claim, in Muscogee Superior Court. Tried before Judge Alexander, May Term, 1850.</p> <p>This was an issue, formed upon a claim to a negro, interposed by John R. Dawson, as executor of John Crowell, deceased, to a negro boy levied on as the property of one John J. Wilson.</p> <p>The evidence showed that the negro remained in the possession of Wilson about six months after the sale to Crowell, and then went into Crowell’s possession, where he remained until Crow-ell’s death. The letters testamentary of the claimant were not in evidence.</p> <p>Plaintiff’s counsel requested- the Court to' charge, that it was necessary for the claimant to introduce his letters testamentary, to make out his claim. The Court refused so to charge, but charged, that it was sufficient for the claimant to show title out of the defendant in execution. To which charge and refusal to charge, plaintiff in fi.fa. excepted.</p> <p>Counsel for plaintiff in fi. fa. also requested the Court to charge the Jury, “ that if they believed, from the testimony, that the negro boy remained in the possession of Wilson for six months after the sale, the sale was fraudulent and void against creditors, unless they believed the possession was explained by testimony.” The Court declined so to charge, and plaintiff in fi. fa. excepted.</p> <p>On these exceptions, error was assigned.</p>

<p>Action on note, in Muscogee Superior Court. Decision by Judge Alexander, May Term, 1850.</p> <p>This was a suit against Alexander J. Robison, on a note made by one McNeil, and Robison as surety. Plea — that defendant signed the note by agreement with principal, that John Banks should sign the same as co-surety, before it was delivered to the payee, which he never did.</p> <p>Plaintiff’s attorney demurred to the plea, on the ground that it amounted to a plea of non est factum, and was not verified, as required by the Statute.</p> <p>The Court overruled the demurrer, and this decision is excepted to as erroneous.</p>

Decided by Judge Warren, Randolph Superior Court, April Term, 1850. W. B. Robinson & Co. having contracted to build a courthouse in Randolph County, received from the Clerk of the Inferior Court promissory notes, payable to them or order, and signed by the Clerk, officially.

In Equity, in Randolph Superior Court, motion to dissolve injunction. Decision by Judge Warren, April Term, 1850. On the 11th January, 1846, John H. Jones, then a citizen of Richland District, South Carolina, borrowed$1200 of James S. Guignard, Jr. and gave to him a bond for the payment of the same, with William Geiger, Jr. Charles Neiffer, John H. Threewitt and William H. Cassin, as sureties.

In Equity, in Dooly Superior Court. Decision on demurrer, by Judge Warren, May Term, 1850.