Volume 9 — Georgia Reports

In Equity, in Carroll Superior Court. Demurrer, decided by Judge Hill, October Term, 1849. This was a bill in Equity, filed by the plaintiff in error against the defendants.

<p>[X.] Where a promissory note is declared on, which on its face is barred by the Statute of Limitations, and the defendant pleads the Statute, the plaintiff may, under our judicial system and practice, amend his declaration, by alleging a new promise by the defendant, so as to prevent the operation of the Statute.</p> <p>[2. ] A new trial will not be granted on the ground of newly discovered evidence, when the party making the application might, by the exercise of due diligence, have procured it before the trial.</p> <p>[3.] Nor will a new trial be granted on the ground of newly discovered evidence, merely to give the party an opportunity to impeach the credit of a witness sworn on the trial.</p>

Claim, in Bibb Superior Court. Tried before Judge Stark, January Term, 1850. Held: that the record and bill of exceptions cpntained sufficient to enable them to decide the points made, and the errors assigned. A fi. fa. issued in 1842, in favor of Moses H. Baldwin against John J. Bennett, from Bibb Inferior Court, was levied upon a negro by the name of Martin, in October, 1845, as the property of Bennett.

Ejectment, in Crawford Superior Court. Tried before Judge Stark. This was an action of ejectment, brought upon the several demises of William Wright and James Pressnol, against John Whittington, who pleaded the general issue and the Statute of Limitations. At the August Term, 1848, a trial was had, and a verdict rendered in favor of the plaintiff, and an appeal was taken by the defendant.

Certiorari, in Crawford Superior Court. Decided by Judge Stark, February Term, 1850. John F. Troutman purchased a judgment against one Arthur F. Walker and Samuel B. Barnett. In order to secure indul•gence thereon, Walker executed to Troutman his note for fifteen dollars; afterwards, the judgment was renewed — Walker and Barnett giving to Troutman their notes for the principal and interest due thereon.

<p>[1.] Ill ail action against the security of a note, to which the defence was usury : Held, that the maker, upon being relieved from all liability, was a competent witness for the defendant.</p>

<p>In Equity, in Bibb Superior Court. Decided by Judge Stark, at Chambers.</p> <p>John Bowman applied to the Inferior Court of Bibb County, in 1848, in accordance with the Statute of 1834,* to appoint commissioners to lay out and establish a private -way for his use and benefit, from his plantation, on the Ocmulgee river, in said County, to the Forsytb road. The order was granted, and the road established accordingly. Afterwards, Thomas A. Brewer, through whose land the said private road passed, obstructed the same by erecting a gate, thereby preventing its use by Bowman.</p> <p>Bowman applied to the Superior Court for an injunction to restrain Brewer from obstructing the road, which was granted by Judge Stark.</p> <p>Upon the coining in of the answer of defendant to complainant’s bill, counsel for the defendant moved the Court to dissolve the injunction and dismiss the bill, which motion was overruled by the Court, and defendant, by his counsel, excepted.</p>

Debt on forthcoming bond, in Monroe Superior Court. Tried before Judge Stark, March Term, 1850.

Sdre fades, in Monroe Superior Court. Tried before Judge Stark, March Term, 1850.

<p>Debt, in Monroe Superior Court. Tried before Judge Stark, March Term, 1850. , ■</p> <p>The defendant in error brought an action of debt against the plaintiff in error, upon the following instrument: “ In consideration of the importance of literary and religious institutions to the wellbeing of society, I hereby promise to pay to the treasurer of the Georgia Baptist Convention, or bearer, for the benefit of the Mercer University, the following sums, to-wit: Fifty dollars on the 1st of January, 1839; fifty dollars on the 1st of January, 1840; fifty dollars on the 1st of January, 1841; fifty dollars on the 1st of January, 1842; fifty dollars on the 1st of January, 1843 ; for the faithful payment of which sums, I hereby bind myself, my heirs and assigns.” Witness my hand and seal, this 3d day of April, 1838.</p> <p>Signed Williams Rutherford, [l. s.]</p> <p>The two first instalments had been paid by the defendant.</p> <p>To this action, the defendant filed the plea of the want of consideration. On the trial of the cause, the counsel for defendant objected to plaintiff’s giving in evidence the instrument sued on, “ on the ground that the paper, on its face, was void as a contract at law, for want of a legal consideration to support it.”</p> <p>The Court overruled the objection, and counsel for defendant excepted.</p>

<p>Ejectment, in Houston Superior Court. Tried before Judge Stark, April Term, 1850.</p> <p>This was an action of ejectment, brought by the plaintiff in error against the defendant, under the Act of 1847, for the recovery of a tract of land lying in Houston County, and mesne profits.</p> <p>On the trial in the Court below, the plaintiff introduced in evidence a grant from the State of Georgia to James Gould, and a deed from Gould to John B. Gaudry. The plaintiff then read in evidence his letters testamentary, as follows :—</p> <p>Georgia :</p> <p>By the Honorable the Court of Ordinary, for the County of Chatham, in the State aforesaid. To all to whom these presents shall come, greeting; Know ye, that on the eleventh day of January, in the year of our Lord, one thousand, eight hundred and forty-seven, the last will and testament of John B. Gaudry, late of said County, in this State, merchant, deceased, was proved, approved and allowed of; the said deceased having, whilst he lived, and at the time of his death, been possessed of divers goods, chattels and credits, within the County and State aforesaid, by means whereof the approbation and allowing of his testament, and the power of granting the administration of all and singular, the goods, chattels and credits of the said deceased, to this Court, is manifestly known to belong; and that the administration of all and singular the goods, chattels and credits of the said deceased, and of his testament, any manner of way concerning, is hereby granted and committed unto Francis Sorrell, named executor in the said last will and testament, being first sworn on the holy Evangelist' of Almighty God, well and faithfully to administer, and make a full and perfect inventoiy of all and singular, the goods, chattels and credits of the said deceased, and to exhibit the same into the Clerk of the Court of Ordinary’s office, of the said County, in order to be recorded on or before the thirteenth day of April next ensuing, and to render a just and true account, calculation and reckoning thereof, when thereunto required.</p> <p>Witness, the Honorable Anthony Porter, one of the said Justices, this the 13th day of January, 1847.</p> <p>Seaborn Goodall, c. c. o. c. c. [l. s.]</p> <p>The plaintiff proved the locus and possession of the defendants, and the value of rent, and closed his case.</p> <p>Counsel for the defendants moved the Court for a non suit.</p> <p>Which motion was sustained by the Court, and a non-suit was awarded, “ for the reason that these letters testamentary only gave the executor power over the “ goods and chattels,” “ rights and credits,” and this action, not being for the recoveiy of a term or other chattel interest, but being an action for the recovery of real estate and mesne profits.</p> <p>To which decision, counsel for plaintiff excepted, and has assigned error.</p>

Indictment for murder. Tried before Judge Hill, at March Term, 1850. At the September Term, 1848, of DeKalb Superior Court, a true bill for murder was found and returned by the Grand Jury against William Terrell, the plaintiff in error. At March Term, 1850, the defendant was put upon his trial, and the Jury returned a verdict of voluntary manslaughter.

In Equity, in Troup Superior Court. Decision on demurrer, by Judge Hill, May Term, 1850. • Sarah L. Rogers and William A. Pullen filed their bill, returnable to the Superior Court of Troup County, alleging, that in the year 1848, Henry A. Rogers, of said County, died intestate, leaving Sarah L. Rogers and his sister, Lucretia Jane, then the wife of Pullen, his only heirs at law surviving; that before the death of the said Henry A. Rogers, to wit: in the year 1845, Collen…

<p>[1.] By the Act of 1820, in all the cases where, by the 53d sec. of the Act of 1799, the Superior Courts are authorized to exercise the powers of a Court of Equity, a party shall not be driven to the forms of Equity, but may institute his suit on the Law side of the Court, if he conceives that he can. establish. his claim without resorting to the conscience of the defendant.</p> <p>[2.] The jurisdiction in all such cases is concurrent.</p>

<p>[1.] The old Common Law maxim, that a personal right of action dies with the person, still applies where a tort is committed to a man’s person, feelings or reputation, as for assault, libel, slander or seduction of his daughter.</p>

Assumpsit, in Troup Superior Court. Tried before Judge Hill, May Term, 1850. In May, 1844, the plaintiff in error, Lovick P. Hodnett, gave his promissory note to the defendant in error, Wm. V. Tatum, for seven hundred and twenty-five dollars. Hodnett resided in Georgia and Tatum in the State of Alabama.

Motion to discharge on writ of habeas corpus. Decided by Judge Hill, at Chambers, June 5th, 1850.

In Equity. Decided by Judge Stark, May Term, 1850, of Houston Superior Court. This was a bill filed to compel specific performance.

Refused at Chambers, June 29th, 1850. The bill alleged that Robert Bonner, the defendant, at the February Term, 1850, of Merriwether Superior Court, recovered a judgment against the complainant, for the sum of twelve hundred dollars damages, whereon an execution had been issued, which was then in the hands of the Sheriff, to be enforced by levy and sale.

In Equity, in Houston Superior Court. Decided by Judge Stark, April Term, 1850. This was a bill filed by the complainants, to enforce a vendor’s lien. The bill alleges, that in the year 1838, one John Martin sold to T. and S. Williams a lot of land in the County of Houston, who executed to the said Martin their two promissory notes for seven hundred dollars each, as a part of the purchase price therefor.

In Equity, in Pike Superior Court. Motion to dissolve injunction. 'Decided by Judge Stark, at Chambers, July 5, 1850.

<p>[1.] An officer, arresting a criminal, is not authorized to charge “ rail road fare” in his bill of costs; he is only authorized to charge mileage, and if the officer conveys the prisoner upon the rail road, it is upon his own responsibility.</p> <p>[2.] Bach County is bound by law to keep a good and sufficient jail for the safe-keeping of criminals, at the charge of the County, and if there is not such jail, and a guard is necessary for their safe-keeping, the expenses of such guard must be paid by the County, and not by the defendants who may be guarded.</p> <p>[3 ] When a defendant shall be convicted of a criminal offence, and cash funds belonging to him are in the bands of the arresting officer, judgment should be entered against the defendant for all costs legally due, and the money applied in satisfaction of that judgment, as provided by the Acts of 1820 and 1830, and the balance, if any, paid to the defendant or his authorized agent.</p>

Motion, in Henry Superior Court. Decided by Judge Stark, April Term, 1850. William Collins, as administrator of Sarah Guthrie, deceased, brought an action of trover, in Henry Superior Court, against Andrew Turner for the recovery of several negroes. ■ The Jury returned a verdict in favor of the plaintiff for $2100, to be discharged by the delivery of the property in a specified time. Turner, by writ of error, carried the case to the Supreme Court.

Covenant on bond for titles to land, in Bibb Superior Court. Tried before Judge Stark, January Term, 1850.

Rule against Sheriff, and motion to set aside ft. fa. in Houston Superior Court. . Decided by Judge Stark, April Term, 1850. At the April Term, 1839, of Houston Superior Court, L. M. Wiley, Parish & Co. obtained judgment against T. & S. Williams, for the sum of $1753 96 cents, principal. Execution issued therefor on the 18th day of May, 1839.

<p>[1.] A witness may be interrogated as to the state of his feelings toward a party, in order to show the bias under which he testifies; it is not admissible, however, to inquire into the cause of his hostility.</p> <p>[2.] When the dispute is as to localities, a diagram, drawn in accordance with the testimony of a witness, may be submitted to the Jury without having been first exhibited to the witness whose evidence it contradicts.</p> <p>[3.] A new trial will not be granted, in consequence of the admission of illegal testimony, where such testimony was suffered to go to the Jury without objection, either on its introduction or in the argument of the case.</p> <p>[4.] The affidavit of a Juror will not be received to impeach his verdict.</p> <p>[5.j When a Juror is put upon triors, it is not proper for counsel to aslt him any other questions than those propounded by the Act of 1843.</p> <p>[6.] Where the offence has been recently committed, and the party accused imprisoned during the whole time which has intervened between his arrest and trial, it is good cause of continuance in a capital case¡ at the first term after the bill is found, that the defendant cannot come safely to trial on account of the. excitement existing in the public mind against him. And the affidavit of the prisoner, when made and filed in terms of the law, cannot be contradicted or traversed, either by a cross examination or aliunde proof.</p> <p>[7.j It is ground for a new trial, if one of the Jurors, before the trial, makes declarations which clearly indicate that he is not above all exception, and that his opinion is not a hypothetical one — dependent upon the whole proof —but formed, exclusively, in reference to the evidence which shall be adduced on the part of the prosecution.</p>

Rule absolute for a new trial. Granted by Judge Stark, at July Term, 1850, of Bibb Superior Court.

Debt on bond for titles to land, in Troup Superior Court. Tried before Judge Hill, May Term, 1850.

Motion, in Troup Superior Court. Decided by Judge Hill, May Term, 1850. Abraham B. Ragan applied to the Clerk of the Court of Ordinary of Troup County, for letters of administration on the estate of John Ornara, deceased. Citation and notice were duly issued and published. At the term for his qualification, the said Abraham B. Ragan was unable to give the security required by law, and did not make application to the Court.

<p>In Equity, in DeKalb Superior Court., Tried before Judge Hill.</p> <p>This was a bill in Equity, filed by the defendant in error against the plaintiff in error, returnable to DeKalb Superior Court, alleging that in the year 1831, complainant was in need of money, and applied to the defendant, who loaned him, at different times, sums amounting in the aggregate to $502 46 cents, all at usurious interest; that complainant paid defendant, at different times, the aggregate sum of $459 63 cents; that he renewed his note yearly up to 1837, when he gave defendant his note for $807 65 cents, and to secure the same*, gave the defendant a mortgage on lot of land No. 71, m the 14th district of originally Henry now DeKalb County.</p> <p>The bill alleges, that in the year 1841, the said lot of land, together with another, known as lot No. 90, adjoining thereto, were levied upon by virtue of two executions against the complainant, when he entered into an agreement with the defendant, by which the defendant was to pay the‘plaintiffs in execution the amounts due them, and take them up and hold them against the complainant; that the defendant was to have the possession of both lots of land — on one of which there was a grist and sawmill — with the exception of the dwelling-house, and fifty acres of land around it; that the use of the plantation and mills was to be a full compensation to the defendant for his interest on his mortgage debt and the executions; and that complainant was to have three years in which to redeem them, and uppn failure of his redeeming them, the defendant was to take lands and mills at the price of $1600.</p> <p>The bill further charges, that a short- time after the contract, the defendant stated, that as the lands had been levied upon, that he preferred their being sold, to prevent other creditors from interfering with him, to which complainant consented. The lands accordingly were sold, and the defendant became the purchaser — representing, at the time, that his object in having the land sold was to perfect titles.</p> <p>The bill further charges, that complainant and defendant worked together in reparing the mills, for some months, when the defendant denied the contract and turned the complainant out of possession. *</p> <p>The bill prayed that the defendant may account to complainant concerning the usurious transactions charged;*also, that the note and mortgage may be delivered up to be cancel-led, provided it shall appear that the principal has been paid; also, that the sale of the lands by the Sheriff be declared void, and the deeds be delivered up to be cancelled, or else that defendant be decreed to perform, specifically, his several agreements with complainant.</p> <p>The defendant, by his answer, denied, either in whole or in part, most of the allegations charged in the bill.</p> <p>On the trial of the cause, counsel, in order to rebut the presumption of fraud, offered to prove by one Thomas J. Perkinson, “that complainant had told him that said lands were sold and purchased by the defendant, in pursuance of an agreement made between complainant and defendant, prior to said sale, by virtue of which, the defendant was to bid off the lands at the sale, and was to have possession of the mills and all the lands, except the dwelling-house and fifty acres around it; that the use of the lands and mills was to pay the defendant for the interest upon the mortgage debt and the executions which defendant had purchased against the complainant, and that the complainant was to have the right to redeem said premises at any time within three years, and upon his failure to do so, the defendant was to keep the property at the price of $1600.” Which testimony was rejected by the Court, and counsel for defendant excepted.</p> <p>Counsel for the defendant offered in evidence an affidavit made by the complainant before Thomas J. Perkinson, as a Justice of the Peace, in the year 1842, in which complainant had made similar statements to those sought to be proved by Perkinson. The Court rejected the affidavit, and counsel for the defendant excepted.</p> <p>After the testimony had closed in the cause, and one counsel on either side had addressed the Jury, and the second counsel for the defendant was addressing them, he was interrupted by the Court, “who stated that he felt it tobe his duty to state, that he did not think the complainant could recover with his bill in its then condition.” Whereupon counsel for complainant moved the Court to amend the bill instanter, by striking out all that part of th'e same which contained anything in reference to the contract between the parties; and also by making material and substantial allegations in the bill in relation to the fraud charged to have been committed, at the sale of the lands by the Sheriff, by the defendant. Counsel for defendant objected to the motion. The Court overruled the objection, and allowed the amendments, and the defendant excepted.</p> <p>Counsel for the defendant requested the Court to charge the Jury— '</p> <p>1st. That if they should believe, from the evidence, that the sale by the Sheriff was made in pursuance of an agreement made between the complainant and defendant, that it was not fraudulent as to complainant.</p> <p>2d. That although they might believe that a fraud was practiced by defendant in said sale, yet, if they should believe that complainant was a participant in said fraud, that he had no right, in a Court of Equity, to be relieved against it.</p> <p>3d. 'That complainants had no right to be relieved against the Sheriff’s sale, by having the deed declared void, because he had made no offer in his bill to repay the defendant the money paid by him for said land, and had not tendered it or brought it into Court.</p> <p>4th. That although they might be of opinion that the sale ought to be set aside, yet the complainant would have no right to recover damages for injuries done to the property, or for houses removed from the same, because he had set up no claim to such damages in his bill. All which the Court refused to charge, but in lieu of the third request did charge the Jury, “ that if defendant had been guilty of a fraud, and had paid out his money for the land in pursuance of said fraudulent arrangement, that complainant was under no obligation to pay him back his money, but that he might get it back tire best way he could.” The Court also charged the Jury, “ that to entitle the complainant to relief against the payment of the • usury, it was not incumbent on him to make a tender of the principal and lawful interest due on the money borrowed, or to bring the money into Court, provided it was a matter of calculation to ascertain whether the principal and interest had or had not been paid.”</p> <p>Counsel for defendant asked the Court to charge the Jury, “That the allegations and admissions in complainant’s bill were evidence against him.” To which the Court replied, “ That this might be true in certain cases, but that in this case, the defendant had denied the allegations in the bill, and, therefore, they were not evidence for either party.” The Court also charged the Jury, “that inasmuch as this bill had been amended by striking out all that part in relation to the contract between the parties, that they would have nothing to do with that part of the bill which had been stricken out, but would treat it as though it had never existed.”</p> <p>To all which charges and refusals to charge by the Court, counsel for defendant excepted, and upon these several exceptions has assigned error.</p> <p>Judge Warner, having been of counsel in the Court below, did not preside in this case.</p>

In Equity, in Murray Superior Court. Tried before Judge Wright, March Term, 1850. In 1845, Abel Jackson sold a negro, named Caroline, to Frances Galt for the sum of $400, and she gave to James McGehee an obligation to the effect, that if McGehee should, within one year, tender to her the same amount of $400 and the bond, that she would convey the negro, if alive, to the said McGehee, for the use and benefit of the family of the said Jackson.

Case, in Murray Superior Court. Tried before Judge Wright, March Term, 1850. William McCamey brought his action against James Morris, alleging that Morris, by the erection of a mill-dam in Connesauga river, by which “ an unhealthy pond of standing water” had been raised, and certain land of plaintiff had been covered and injured.

Ejectment, in Union Superior Court. Tried, September Term, 1850, before Judge Hooper. Enos McHenry had caused a fi. fa. in his own favor, against Kinchen Harrison and others, to be levied on a lot of land, and constituted Henry Harrison his agent to bid for it at the sale. Harrison did not bid, but requested Roach, the Sheriff who sold the land, to bid for it. Roach bid it off, and afterward conveyed it to McHenry, under which deed plaintiff claimed to recover.

<p>Rule nisi, in Gilmer Superior Court. Decided by Judge Wrigi-it.</p> <p>The plaintiffs in error had caused one William T. Banks to be arrested under a ca. sa. by the former Sheriff, and Banks had given bond and was allowed the benefit of prison bounds under the Statute. ‘</p> <p>Before six months from that time had expired, the defendant in error became Sheriff, and at the end of the six months from the time that said Banks had been allowed prison bounds, Cox failed to place him in close custody, but suffered him to remain in prison bounds.</p> <p>Plaintiffs moved a rule, that Cox should pay their debt, which the Court refused, holding that they should have notified the Sheriff to take Banks into close custody if they desired him to do so.</p> <p>To which decision, plaintiffs in error excepted.</p>

<p>[1.] Where a deed conveyed a negro to certain parties and added, “Provided, always, that Ibis deed of gift shnllbe the right and property of .7 T, until MT arrives at the age of twouty-one yearsHeld, that J T took no title to the. property conveyed.</p> <p>[2.] The laws of North Carolina, requiring deeds of gift to bo proven and registered in one year, or else tobe void : Held, that the registration of a deed is not sufficient proof of its probate.</p>

Claim, in Hall Superior Court. Tried before Judge Jackson, September Term, 1850. The facts of this case are as follows: M. A. Keith was security of Redding Pinson on a claim bond in a case tried in Cherokee Superior Court, in which the Jury had found damages, and judgment was entered up, and fi. fa. issued against Pinson and Keith for the damages and costs.

Covenant, in Clarke Superior Court. Decided by Judge Jackson, August Term, 1850. Held: that the action was brought against the defendant, individuálly, and not in his representative character, and so holding, dismissed the appeal.

<p>[1.] It is a condition precedent before a County Treasurer can enter upon the duties of his office, that he should give bond and security, and not having done so, he does not legally hold the office.</p> <p>[2.] Before the Inferior Court can issue execution against a County Treasurer fór abalance in his hands, ten days’ written notice is required by Statute to be given him, and the order of the Court under which the fi. fa. is issued, must show that such notice has been given.</p> <p>[3.] When the Inferior Court have passed an order, requiring the Clerk to issue fi. fa. against the Treasurer, but the Clerk failed to record such order: Held, that it is competentfor the Inferior Court, after the fi. fa. has been issued, to place the order on the minutes, nunc pro tunc.</p>

<p>In Equity, in Hall Superior Court. Decided by Judge Jackson, on demurrer, September Term, 1850.</p> <p>The complainant, in his bill, alleged the following facts: On the 6th day of May, 1847, Richard Winn departed this life intestate, leaving a widow, Lucinda Winn, and sundry children. William and Willis Winn became administrators of his estate. On the 23d of December, 1847, his widow, Lucinda Winn., died, having made a will, of which complainant was executor. She had, previous to her death, made no election between her dower and a child’s part ofher husbands estate.</p> <p>Richard Winn, in his life, had made certain advancements of property or money to his children. The debts of the estate had all been paid.</p> <p>The complainant prayed that the administrators of Richard Winn might pay over to him, as executor of the widow, an equal distributive share of the real estate, and also, that the advancements made to the children might be brought into hotchpot, and that he should have them taken into the account for the benefit of his testatrix’s estate in computing her share of the personalty.</p> <p>To this bill defendants demurred for want of equity, and the Court sustained the demurrer, and dismissed as to both the grounds alleged. To which decision complainant excepted.</p>

Rule, in Cherokee Superior Court. Decided before Judge Hooper, August Term, 1850. The facts of this case are as follows : A claim case between Henry Strickland, plaintiff in fi.fa.

In Richmond Superior Court, June Term, 1850. Tried before Judge Starnes.

<p>Debt. Warren Superior Court. Decision by Judge Baxter, October Term, 1850.</p> <p>This was an action against Job Hunter, “ as executor of the last will and testament of Bryant J. Hunter.” Upon the trial, the plaintiff offered evidence to prove acts on the part of' defendant, (ne unques executor being pleaded,) to show him an executor de son tort. The Court rejected the evidence, on the ground that the facts proposed tobe proven were not plainly and distinctly set forth in the declaration, as required by the Judiciary-Act of 1799, but decided, at the same time, that the party might amend, instanter, “ which the plaintiff declined doing, but preferred a non-suit, which was granted. The plaintiff excepted to the decision, and submitted to a non-suit.”</p> <p>A motion was made to dismiss the writ of error, on the ground that no error lies where the party has voluntarily caused a non-suit to be entered.</p>

<p>1.1.] There is no Statute in Georgia authorizing an agent to execute a forthcoming bond for property levied oil by attachment.</p> <p>[2.] The defendant, by his demurrer, admits the ability of the plaintiff to sustain all the allegations in his declaration by proper proof.</p> <p>[3.] Theplaintiff is not obliged to spread out his proof upon the record.</p> <p>[4.] If the declaration avers that the principal executed the bond, which is the subject of the suit, by his agent, it is sufficient.</p>

<p>[1.] Where it appeared from the minutes of the Court of a particular dayy that one of the Grand Jurors had been excused for the balance of the term,, and, also, that a true bill had been returned, on the same day, by the Grand Jury against a defendant, in which the name of the excused Juror was in-serted: Held, that the minutes of the Court did not afford even presumptive evidence that the bill of indictment was found by the Grand- Jury, after the excused Grand Juror had left the body of his fellow Jurors, and was not sufficient to quash the bill of indictment.</p>

Injunction, in Chatham Superior Court. Decision by Judge H. R. Jackson, February 20, 1850. This was a bill filed by R. H. McLeod and others, as trustees, &c. to restrain the defendants from keeping a ferry on the Great Ogeechee River, at a place called Fort Argyle. Upon the coming in of the answer, a motion was made to dissolve the injunction.

<p>In Equity, in McIntosh Superior Court, April Term, 1850. Tried before Judge H. R. Jackson.</p> <p>The following statement of facts in this cause was agreed upon by counsel for both parties:</p> <p>Thomas Spalding, on the first day of January, 1833, executed a deed to certain persons, conveying two tracts of land and seventy negroes, to be held in trust “ for the sole and separate use and benefit of his daughter, Elizabeth Wylly, during her life, and after her death,” to her children. The deed alleged, that it was made for the purpose of providing for the maintenance o’f Mrs. W. and the education of her children. The trustees were authorized to give the management of the property to whomsoever, in their discretion, they thought best qualified. The deed was recorded in the County of McIntosh, (where all the parties thereto, the grantor, cestui que trusts, trustees and the complainants below then resided, and still reside.) William Cook and Charles Spalding, two of the trustees, accepted the trust, but never made any appointment of a manager, nor authorized any one to contract debts upon its authority. The trustees never intermeddled with the trust property — the same having been delivered by the grantor to the said cestui que trusts. Alexander W. Wylly, the husband and father, planted the land with the trust slaves, sold the crops, and received all the rents, issues and profits of said trust estate and the proceeds of the crops, from the time the deed was made until this suit was brought. Wylly contracted a debt with defendants in error (complainants below) for various articles, furnished in 1840 and 1841, charged in an exhibit to the bill. The account was charged on the books of complainants to Wylly individually — he not professing to act as agent or manager of the trust estate. The articles sold were used by Wylly and his family, (the cestui que trusts,) and partly by the trust slaves, and for the use of the plantation. Wylly promised complainants to pay for these articles out of the crops which he should thereafter make. On 21st January, 1841, Wylly gave to complainants his individual negotiable note in settlement of said account, and complainant gave him a receipt for the account; upon which note, judgment has been recovered against him, individually, at December Term, 1842, and a fi. fa. issued and returned, with an entry of nulla bona. In May, 1844, Wylly sold complainants a carriage for $165, most of which was to be credited on this debt. No notice was given to the trustees of this debt, or of the intention of looking to the’trust estate, until complainants filed a bill in October, 1848, seeking to subject the trust property. It was agreed that there were various other suits pending, of the same character, against the trustees; also, that Wylly was utterly insolvent.</p> <p>The Jury found a special verdict, finding the above facts, and submitting the questions of law arising therefrom to the Court.</p> <p>After argument heard, the Court held, that the complainants were entitled to recover, upon the facts found. To this decision, error has been assigned in this—</p> <p>1st. That His Honor erred in deciding that the trust estate had ever, under the circumstances of the case, been liable to the demands of complainants.</p> <p>2d. That His Honor erred in deciding that the complainants had not discharged the trust estate by debiting Alexander W. Wylly, individually, and by subsequently taking his individual note, giving a receipt in settlement, and suing upon said note.</p> <p>3d. That he erred in deciding that the claim was not barred by the Statute of Limitations.</p> <p>Points made by plaintiffs in error—</p> <p>1. The trust estate sought to be charged, was never, under the circumstances of the case, liable to complainants, the defendants in error.</p> <p>The credit was given to A. W. Wylly exclusively — he alone was to be liable — all the facts of the case shew this. Even if he had been trustee, he could not bind the trust estate. Story on Agency, §280. Story on Notes, §63. 1 Bailey’s Equity, 159 to 162.</p> <p>In Equity, an exception prevails — but three things must combine to create this equitable exception. 1. The necessity of the debt to the trust estate. 2. The indebtedness of the trust estate to the trustee. 3. The insolvency of the trustee. Where these combine, the creditor is subrogated to the rights of the trustee. Bailey’s Eq. 162 to 164. Ibid, 290. Rid, 31,7, 318. 1 Richardson’s Eq. 263, ’4. .2 Skobkart’s Eq. Rep. 235, ’6. See, also, 1 Hill’s Ch. Rep. 228, 231, 232, 233,' 235, ’6, 240, as to right of husband to bind.</p> <p>2. If the trust estate was ever liable to defendants in error, it has been discharged by the acts of said defendants in error. They have made their election, by debiting A. W. Wylly, individually, by taking his note, and by suing him, and by their other acts. They are bound by such election. Story on Agency, §§279, 288, 291. 17 Eng. Com. Law Rep. 337. 15 East. 62. 14 Connecticut Rep. 502, 8. 10 Wendell, 271. 1 Bailey, 289.</p> <p>3. The Statute of Limitations, or the equitable principle analagous thereto, has barred this claim against the trust estate.' Angel on Limitations, pp. 229, 291, 293. 12 Wheaton’s Rep. 565. 10 Peters’ Rep. 223. 2 Story’s Eq. Jm\ §1520. 1 Sch. fy Lef. 413,429. 1 Ball if Beat. 156,166. 6 John. Chan. Rep. 291, ’2. 6 Geo. Rep. 21. 8 Geo. Rep. 108.</p> <p>1st. That trust estates are ordinarily liable for goods, services, and supplies furnished them, or which go to their use. 4 Dess. 19, 591. 1 McCord’s Ch. Rep. 267. 2 McCord’s Ch. Rep. 105. R. M. Charlton’s Rep. 376. 3 Kelly, 383. 2 Story’s Eq. Jur. §1400.</p> <p>2d. That taking the note of Wylly, (with a receipt given, as in this case, calling it a settlement,) did not relieve the trust estate from liability. Story on Promissory Motes, §§104,105,117,404, 438. 5 Johns. 68. 8 Johns. 389. 7 Hill, 128. 2 Richardson, 241. 6 Go. Rep. 171. Webster’s Did. (word settle.) 2 Bouvier’s Law Did. 394. 1 Kelly, 287,288. 3 Kelly, 397. 4 Dess. 19, 591.</p> <p>3d. That Mrs. Wylly, the cestui que trust for life, had the power and the right to incumber the profits of the trust estate, and to do this through her husband. 1 Kelly, 389. 6 Ga. Rep. 20.</p> <p>Story on Agency, 7, 8.</p> <p>4th. That the receipt and use of the goods raised a consideration for an implied promise by Mrs. Wylfy or her trustees, to pay for the goods out of'tjie trust estate, inasmuch as such a promise would have been implied, at law, had she been sui juris, so as to bind her personally. 14 Johns. 188. 10 Johns. 244, and cases cited, with Equity cases referred to above.</p> <p>5th. That if Wylly was not the agent of the trust estate, with power to bind it, then, on his furnishing it with necessaries, the estate became his debtor, and he being insolvent, and being the debtor of the defendants in error, and having promised to pay them out of the income of the trust estate, they should stand in his place and be subrogated to his rights, especially as he was not bound, under the circumstances of the case, to support his wife and children. 2 Kent’s Com. 190, 191. 9 Vesey, 286. 14 Vesey, 499. << 4 Johns. Ch. Rep. 100, 104, 105. 2 Barb. Ch. Rep. 375. 1 Maddock’s Rep. 59. Bailey’s Eq. Rep, 311. 1 Hill’s Ch. Rep. 234.</p> <p>6th. That the record shows that Wylly was a general agent, and that exclusive credit was not given to him individually, as he promised to pay out of the crops to be made with the trust property, and the defendants in error ought to be paid, especially as the trustees did not act. Story on Jigency, 115 to 118,451. 14 Vesey, 501.</p> <p>7th< That defendants in error are entitled to recover, whether Wylly did or did not disclose his agency or make known his principal. Story on Jigency, 453.</p> <p>' 8th. That under the peculiar circumstances of this case, a Court of Equity might well decree- that Wylly was, quoad hoc, a trustee himself. 2 Story’s Eq.Jur. §1059. Willis on Trustees, 32, 33, 70.</p> <p>9th. That upon general principles of equity, even if it be clear that Wylly mismanaged the estate, still defendants’in error axe not responsible for such mismanagement, and if loss is to ensue to either partjs, they should not suifer for having given credit to an estate on the promise of a manager, held’ out to the world as such-manager, by'constructive notice from the registry and actual appointment by the grantor. But that the record discloses no mismanagement — at least no waste of the income bv Wylly.</p> <p>10th. That neither the Statute of Limitations, nor the rules of Courts of Equity in analogy thereto, or for the discouragement of laches and stale demands, have any application to this case:</p> <p>First. Because, taking the whole joint answer of all the defendants together, a debt of some sort is admitted, on the record, to be due, and the Statute is ayoided, as to that debt, by the admission itself. 20 Johns. Reps. 576.</p> <p>Secondly. Courts of Equity act in obedience to the Statute only when they have concurrent jurisdiction with the Courts of Law and the legal remedy has run out. 2 Story’s Eq. Jur. §1520. Kane vs. Bloodgood, 7 Johns. Ch. 114 to 118. 7 Ga. Rep. 159, 160. 6 Johns. Ch. Rep. 289.</p> <p>In all other cases, (except, perhaps, in some cases of direct trusts,) they act either upon their own rule of twenty years, or, according to the circumstances of each case, they discourage laches within or beyond twenty years, that being the longest period within which they usually give relief. 2 Scho. §• Lef. 607, 630, 631, 632. 15 Peters, 272. 1 Howard, 189. 2 Barbour,. 595. 2 Story’s Eq. Jur. §1520, and note 3.</p> <p>Thirdly. The case at bar is one of exclusive Equity jurisdiction.-</p> <p>Fourthly. The case under consideration is not only that of a trust cognizable in Equity, but it is the case of a direct trust. If’ it is the case of a trust at all, the Statute of Limitations has no application to it, unless there is a concurrent jurisdiction at law. 7 Johns. Ch. Rep. 124 to 128. 20 Johns. 583 ’4. 7 Ga. Rep.-160, 161.</p> <p>Fifthly. The defendants in error have not been guilty of laches in the prosecution of their equitable demand.</p>

<p>Assumpsit, &c. in Chatham Superior Court. Tried before Judge H. R. Jackson, May Term, 1850.</p> <p>This was a suit by W. H. Clark against C.- F. Preston upon a promissory note for- $363 -80 To this suit, Preston pleaded a total failure of consideration in this — that the note was given in consideration, of the .transfer of a judgment in Camden Inferior Court, against one James W. Preston, which was alleged to be void.</p> <p>It appeared on the trial, that the judgment transferred was rendered in a suit brought by Clark against John II. Dilworth, as drawer, and James W. Preston, as acceptor of a bill of exchange, to which suit each entered pleas; that a verdict was found against James W. Preston, and a discontinuance entered as to John H. Dilworth, on this verdict. Judgment was entered against Preston.</p> <p>The defendant below proposed to prove, that on a motion to distribute the proceeds of the sale of the property of James W. Preston, in Chatham Superior Court, the said judgment, after argument heard, was, by the presiding Judge, declared void,' and not entitled to any participation in the fund — the present plaintiff, W. H. Clark, not having been a party to that motion.</p> <p>The evidence was excluded by the Court, and this decision was excepted to by defendant.</p> <p>The Court charged the Jury, that if the judgment was void, it would not sustain the plea of total failure of consideration — the original cause of action passing under the assignment — and that the judgment was not void, but valid.</p> <p>To this decision and charge, defendant below excepted. Other exceptions were filed, but were not considered or decided by the Supreme Court.</p>

Tried before Judge Han-sell, June Term of Appling Superior Court, 1850. Jesse Mobley, the administrator of the estate of the father of plaintiffs m error, obtained from the Court of Ordinary of Appling County, the following order: “ March Tr. 1846. It is ordered by the Court, that Jesse Mobley have leave for letters of dismission from administration on the estate of Bird Mobley, late of said County, deceased.

In Equity, in Twiggs Superior Court. Decision by Judge Hansell, October Term, 1850. The Bank of Columbus instituted suits in the County of Twiggs, against H. H. Tarver and others, to collect certain promissory notes transferred to the Bank of Columbus by the Bank of Macon, a short time before its failure.

<p>[1.] According to the provisions of the Act of 1S38, the widows and orphans of testators and intestates, are entitled to a reasonable support and maintenance out of their estates, for the space of twelve months immediately after the death of such testator or intestate, whether their estates be solvent or insolvent.</p>

<p>£1.] In prosecutions of slaves under the Act of 1850: Held, riot to he necessary to aver tho preliminary proceedings before the Magistrates, in the bill of indictment, nor to prove them on the trial. f</p> <p>£2.] The constitutionality of the Act of 1850, authorizing the trial of slaves before the Superior Court, sustained.</p> <p>£3.] In prosecutions under this Act for murder, and verdict of manslaughter: Held, that the Superior Court may pass sentence and inflict the punishment provided bylaw for manslaughter.</p> <p>Indictment for murder — conviction for manslaughter, in McIntosh Superior Court. Tried before Judge Henry R. Jackson, November Term, 1850.</p> <p>Anthony, a slave, was indicted in McIntosh Superior Court, for the murder of Ben Cousins, a free man of color. The indictment was framed in the usual form.</p> <p>The Jury found a verdict of guilty of voluntary manslaughter ; whereupon counsel for plaintiff in error moved, in arre.st of judgment, on the following grounds:</p> <p>1st. Because it being a case of voluntary manslaughter, the Court had no jurisdiction; and could not punish.</p> <p>2d. Because the preliminary proceedings had before the committing Magistrates, were not set forth in the indictment, so as to show that the Court had jurisdiction of the cause, or to, show -with what offence the prisoner was charged by the Magistrates.</p> <p>3d- Because the Act of 1850, under which the trial was had, is unconstitutional and void.</p> <p>Which motion was overruled, and this decision is alleged -to be erroneous.</p>

Illegality, in Pulaski Superior Court. Tried before Judge Hansell, October Term, 1850.

In Equity, in Appling Superior Court. Decision on demurrer by Judge Hansell, June Term, 1850.

Decision by Judge Henry R, Jackson, November, 1850. „• - On the 29th day of August, 1850, Mr. Amos Scudder, the President of the Savannah and Ogeechee Canal Company, was notified by the Clerk of the City Council of Savannah, that the canal embankment constituted an obstruction to the drainage of a portion of the city, and required the company to construct an additional culvert, giving its dimensions, &c. or else show cause why it should not be abated as a nuisance.

Certiorari. Decided by Judge II. R. Jackson, December 20th, 1850.

Trespass, in Macon Superior Court. Tried before Judge Warren, September Term, 1850. This was an action of trespass, brought by Edward Brooks against John C. Ashburn, for the value of a negro man. The plaintiff’s case showed that Ashburn and one Drawhorn went to the house of one Lockett, on the Sabbath day, in search of a runaway negro of Drawhorn’s. Seeing some negroes collected, they approached them, when the negroes ran in different directions.

Assnmpit, &c. in Early Superior Court. Tried before Judge Warren, October Term, 1850. This was an action by Hoadly against Bliss, as the indorser upon the following note: $1660 50. December 25, 1837. On the first day of June next, we promise to pay to the order of Luke Bliss, sixteen hundred and sixty dollars and fifty cents, at either Bank in Macon, for value received. (Signed,) CRAFT & LEWIS. (Indorsed,) Luke Bliss.

Indictment for perjury, in Dooly Superior Court. Decision by Judge Warren, November Term, 1850. At the May Term, 1850, of Dooly Superior Court, Hardy Durham was indicted for peijury. The perjury assigned, was upon an affidavit to a' bill filed for the review of a former decree, rendered in Dooly Superior Court. At that term, the defendant demanded a trial, in terms of the provision made in the Penal Code, and placed his demand upon the minutes.

Motion, in Sumter Superior Court. Decided by Judge Warren, November Term, 1850. This was a motion to set aside and have satisfaction entered on a fi. fa. in favor of defendant in error against plaintiffs in error, for $74, principal, and $4 75, interest, on the ground that the entries on the paper itself, unless explained, showed the same to be paid off.

Debt, in Baker Superior Court. Decision by Judge Warren, December Term, 1850.

Motion to distribute money, in Baker Superior Court. Decision by Judge Warren, December Term, 1850. A Ji. fa. controlled by Charles Cleghom vs. Charles L. Bass, James S. Calhoun and others, was levied on the separate property of James S. Calhoun.

<p>Claim, in Sumter Superior Court. Tried before Judge Warren, November Term, 1850.</p> <p>This was an issue upon a claim to a tract of land levied on by-two Justices’ Court fi. fas. in favor of Cordal Francis vs. Major Ellis and another, issued in August, 1841, with an entry of “no» property,” by Joseph Tarbutton, L. C. dated in April, 1847. On the trial the claimant proved by Joseph Tarbutton, that the en~ try was not in his handwriting, but was made by one of the Justices of the Peace, in the presence of and at the request of witness, he knowing the fact to be true, and not writing a good hand himself.</p> <p>Counsel for claimant requested the Court to charge the Jury, that the ji. fas. were dormant — the Constable not being authorized by law to delegate the authority to perform those duties required by law of him.</p> <p>The Court refused so to charge, but instructed the Jury, that if the entry was made in the presence and under the direction of the Constable, that it was valid. To which charge and refusal to charge, the .claimants excepted, and have assigned error thereon.</p> <p>After the verdict was returned, and before judgment thereon, counsel for claimant moved the Court to set aside the same, on the ground that the plaintiff, Cordal Francis, was dead, and had been for four years, which fact was proven to the Court. The Court refused the motion, unless the claimant would file his affidavit, that he was ignorant of the fact at the time of trial, which the claimant declined to do. The Court then offered to grant claimant a rule nisi against the attorney conducting the cause, to show cause at the next term why the verdict should not be set aside, which the claimant declined to accept. The Court then overruled the motion to set aside, and this decision is assigned as ground of error.</p>

<p>In Equity, in Harris Superior Court. Tried before Judge Alexander, September Term, 1850.</p> <p>On the 28th March, 1826, William Hatchett executed and delivered to John B. Hatchett a deed of trust, conveying certain lands and negro slaves, and a considerable quantity of personal property, first to pay the debts of said William, then in trust for the use of the wife of William Hatchett and his minor children, during the natural life of said William, and at his death to assign one-third part thereof to the wife of said William, to he enjoyed during her life, and at her death, to be equally divided by said John B. Hatchett between the children of said William; the remaining two-thirds to be divided between the children at the death of the said William. About the first of the year 1834, William Hatchett died. At which time John B. Hatchett assigned one-third to the widow, and divided the major part of the remainder between some of the children, omitting John Flynf^ who married one of the children of William Hatchett.</p> <p>In May, 1839, the widow of William Hatchett died, at which time John B. Hatchett took possession of the remaining third of the property, and again made distribution, omitting John Flynt and wife.</p> <p>In November, 1845, John Flynt and wife filed their bill in Equity, alleging the foregoing facts, and others not necessary to be here repeated, and praying an account by Hatchett, the trastee. Flynt and wife were married before the execution of the deed by William Hatchett.</p> <p>JohnB. Hatchett, by his answer, admitted the foregoing.facts, and assigned as a reason why Flynt and wife were not included in the distribution, that at the time of their marriage, and before the execution of the deed of trust, William Hatchett placed in their possession a negro woman, (not included in the deed,) on condition that the said negro was to be accounted for on a final settlement of .the portion of said Henrietta Flynt; that John Flynt was notified of the distribution at the time it was made; that the value of said negro woman exceeded the amount of a distributive share under said deed of trust, and that Flynt and wife were, therefore, fully paid off. He also insisted upon the Statute of Limitations.</p> <p>Upon the trial, the presiding Judge charged the Jury, “ That said suit was not founded upon the deed of trust executed by William'Hatchett to John B. Hatchett, arid that the Statute of Limitations for sealed instruments, viz : twenty years, was not applicable thereto.”</p> <p>To this decision and charge complainants excepted.</p> <p>The Court farther charged, “ That notwithstanding they might believe that Henrietta Flynt was a Jeme covert at the time of the accrual of the rights under the deed of trust, and of the cause of action, and was still a Jeme covert, yet the case did not fall within the exceptions to the Statute of Limitations in favor of Jeme coverts ; and that if more than Jour years had elapsed from the distribution of said estate, with notice to complainants, before the commencement of said suit, the rights of complainant were barred by the Statute of Limitations.”</p> <p>To which charge complainants excepted.</p> <p>On these exceptions error was assigned.</p> <p>made the following points :</p> <p>1st. The Court erred in charging that this suit was not founded on the deed of trust, and that the Statute of Limitations for sealed instruments was not applicable to the case»</p> <p>We contend that the rights of the trustee being solely derived from the deed of trust, the trust being accepted by him, the rights, of the cestui que trust against both the grantor and the trustee, are derived from the deed.</p> <p>We also contend, that it was not necessary for the trustee to accept under seal.</p> <p>Even in covenants, “if A covenants generally to indemnify B, B may have covenant, though he did not seal the articles, and the covenant was not with him.” Com. Dig. vol. 3, Covenants, A. 1, p. 250.</p> <p>So, if one lease to A and B by indenture, and A seals a counterpart, and B agrees to the lease, but does not seal, yet B may be charged for a covenant broken. 3 Com. Dig. lb.</p> <p>And yet covenant cannot be supported except upon a sealed instrument. See also, Ketchum vs. Callen, 6 Wash. Rep. 292. 3d vol. ü. S. Law Mag. 85. 1 Kelly, 231.</p> <p>A trustee having accepted the trust, cannot divest himself of it afterwards, without performance, except by aid of Chancery. 4 Kent’s Com. 311.</p> <p>2d. The Court erred in charging, that although Mrs. Flynt was a feme covert at the time of the accrual of the cause of action, and is yet a feme covert, still the case is not within the exception of the Statute of Limitations. Prince’s Dig. 577.</p> <p>We contend that the rights involved in this case are, to all intents and purposes, those of the wfe.</p> <p>1. The husband cannot sue for it without joining his wife. Blount vs. Buslland, 5 Ves. 515. Cost vs. Taylor, 10 Ves. 578. Loughn vs. Monry, 3 Ves. 467. Schuyler vs. Hoyle, 5 John. Ch. R. 210.</p> <p>And in this there is no distinction between rights accruing before and during coverture, except as to choses in action that can be recovered at Law. 5 Ves. 515. 10 lb. 578. 5 J. Ch. Rep. 210;. And even these maybe enjoined. JTote, 5 Ves. 515. 5 J. Ch. R. 477.</p> <p>2. In such suits the Court will settle the recovery on the wife, unless the wfe expressly waive the settlement. Kenny vs. Udall, 5 J. Ch. R. 473-. Hmiland vs. Myers, & lb. 25. 5 lb. 207. Clancy, 444. 2 Bail. R. 477. Sayre vs. Flowrnoy, 3 Kelly, 547.</p> <p>3d. And this, although the husband has assigned for a valuable consideration to a creditor, and here, also, there is no distinction between rights accruing before and after coverture. Kenny vs. TJdall, 5 J. Ch. R. 473. 6 lb. 25. 5 lb. 207, and cases cited.</p> <p>4th. On the husband’s death, the right (and if a 'suit, then the suit,) survives to her. Schuyler vs. Hoyle, 5 J. Ch. R. 208. Stor. Eq. P. 294. Stephens vs. Beall, 4 Ga. R. 321. McJDowl and wfevs. Charles, 6 J. C. R. 132.</p> <p>If, then, the property sued for is the wife’s property, and we have shown that it is, then it is certainly within the exception of the Statute. See the case of Sayer $• Sayer vs. Flournoy et al. 3 Ga. R. 547.</p> <p>If, then, the Statute in relation to feme coverts does not apply to a case like this, it cannot have any application. Jackson vs. Johnson, 5 Cowen’s Rep. 76, 77. Southerland, J. 89, 93, 94. Savage Ch. J. 101. Wordsworth, J. dis. 104,105,106. 2 Met. £f Per. U. S. Big. 810. 2 Sup. Ib. 361, 362.</p> <p>5th. A legacy to a daughter was payable on her marriage, or when she became of age, and she married before coming of age, in a suit brought by her and her husband for the legacy, after the lapse of six years, held that she came within the exception of the Statute. Ang. on Lim. 208, 209. Wood vs. Aiken, 1 Paige’s Ch. R. 616. Shall the Statute be made to run against the wife, as between her and her trustee ? 2 U. S. Big. 810. Supplement,vol. 2,361, 362.</p> <p>6th. Another construction of the Statute is, that it has never been construed so as to prevent a person laboring under a disability, from suing at any time during the disability. Ang. on Lim. 205, §4.</p> <p>presented the following points and authorities:</p> <p>The action is not founded on an instrument under seal. Angel on Lim. 94. ■ ■</p> <p>The coverture of one of the plaintiffs does not bring them within the exceptions in the Statute of Liniitations; the disability-must extend to all the parties. See Statute of Limitations, Prince, 577. Barbour 8f Harrington's Digest, 207,218, and cases cited. Turner vs. Debell, 2 A. K. Marsh. 384. Floyd vs. Johnson, 2 Litt. 112. Ridonvs. Frión, 3 Murph. 577.</p> <p>But there is no disability in this case — the wife is only a nominal party. The action might have been brought in the name of the husband alone. The title vested in him. The disability applies only to cases where the wife alone has the interest in the subject matter of the suit. 6 Ala. Rep. 589.</p>

Mandamus, in Marion Superior Court. Tried before Judge Alexander, September Term, 1850.

Assumpsit, &c. in Harris Superior Court. Tried before Judge Alexander, September Term, 1850. This was an action upon the following account, annexed as a bill of particulars: “ John A. Scott to “ Benj.

<p>Application for an injunction, in Decatur Superior Court. Decision by Judge Warren, 6th of December, 1850.</p> <p>This was an application for an injunction to restrain the Inferior Court and Commissioners of Roads, from opening a new public road, passing through the enclosed and unenclosed lands of complainant, Ransom Parham. The bill alleged, that a petition was presented to the Court for the opening of this road, signed by many persons who did not live in the neighborhood; that the same was gotten up, not for the public convenience, but by persons interested in having a road to a certain landing on Flint River, where the new road would cross ; that a counter petition was presented to the Court, which they refused to consider ; that the Court evidenced their partiality in the appointment they made of reviewers and commissioners to open the road — the same not being proper and discreet persons — one of them wishing the road to pass his house, where he kept spirits to retail; that another had but lately removed into the County, and the third having acted as main agent in procuring signatures to the said petition, and all of them being among the petitioners for the road; that complainant objected to their appointment, or the appointment of any one, because the road prayed for was not required for the public convenience, nor was it the nearest and most practicable route between the points specified as the termini of the road; because it would cause irreparable injury to the land and growing crop of the complainant, and because complainant offered to the Court, at his own expense, to cut out and open a shorter and better road between the points designated; that the Court, notwithstanding his objections, appointed the reviewers, two of whom afterwards reported that they had viewed and marked out the contemplated road; which return complainant objected to as illegal—</p> <p>1st. Because one of tire commissioners failed to act or join in the report; and</p> <p>2d. Because it did not appear that the commissioners, before entering upon their duty, were sworn (as required by law) before •a Justice of the Peace;</p> <p>That the Court overruled the objections, and granted an or- • der opening the road — the execution of which order was now sought tobe enjoined.</p> <p>By an amendment to the bill, it was alleged, that the Inferior Court had not, nor had any of the defendants paid, or offered to pay, any of the damage, (amounting to at least $2500,) which would be done to the land of complainant, but threatened to proceed to open the said road, without and before paying, or offering to pay the same; whereas, by law, he was advised and believed, that no áuthority or power was vested to open said road, until the damages were paid, or full and'just compensation tendered to complainant.</p> <p>The prayer was for a perpetual injunction to restrain defendants from cutting a road through complainant’s land, whether enclosed or unenclosed; or at least, they should be enjoined, until full and just compensation should be paid or tendered to complainant.</p> <p>Upon hearing argument, the presiding Judge refused to grant the injunction, upon the following grounds:</p> <p>1st. Because the laying out and altering new and old roads, is expressly within the power and control of the Justices of the Inferior Court, subject alone to their discretion as to whom they shall appoint to review, lay out and open said road.</p> <p>2d. Because as to improved or enclosed lands, the Statute of 1799 provided compensation to those injured by the opening said roads, and that if the provisions of that Statute were followed, the Inferior Court may take any improved lands they please for such road; and after such lands are thus appropriated, if the owner feels himself aggrieved, he may have the damages assessed by a Jury, and enforced by mandamus.</p> <p>3d. Because the defendants, by the Act of 1818, have the right, power and authority to take and appropriate the wild and unenclosed lands of complainant, without any compensation— the Court holding the said Act to be constitutional and valid.</p> <p>To these rulings and decision of the Court, exceptions were filed, and error has been assigned thereon.</p>

<p>Appeal from an award, in Randolph Superior Court. Tried before Judge Warren, October Term, 1850.</p> <p>By an Act of the General Assembly, passed in 1837, incorporating the Irwinton Bridge Company, for the purpose of erecting a bridge across the Chattahoochee River,'it was provided, that the hoard of directors might taire such parcel or parcels of land as they might deem necessary for the abutments, &c. of their bridge; “ and in case of disagreement between the owner or owners of said land and the board of directors, in regard to the damages or price of such land, it may and shall be lawful for the board of directors to appoint one disinterested freeholder, and the owner or owners to appoint another disinterested freeholder, as appraisers, and the Justices of tire Inferior Court of Randolph County shall appoint another disinterested freeholder, * * * * all of whom shall be sworn, by an officer authorized to administer an oath, to make and return to said Court, a just and impartial valuation of the damages or value of the land thus required by the said corporation, and their award shall be in writing, and signed by at least a majority of the said appraisers, which shall be held and taken as a judgment for the amount against the said corporation, and shall be enforced by an execution from the said Inferior Court; and the plat of said land, with the award, shall be recorded in the said County of Randolph, in the same manner that deeds are * * * Provided, if either party shall think proper, he, she or they may appeal to the Superior Court of said County, and have the damages ascertained by the verdict of a Special Jury, and their decision shall be final.”</p> <p>Edward B. Young, and John McNab, Intendant, the assignees of the corporation, having disagreed with the plaintiffs in error as to the valuation of the land on which the eastern abutment of the bridge was situated, each party and the Inferior Court appointed an appraiser — two of whom subsequently made an award — the third dissenting. From this award the plaintiffs in error appealed; which appeal came on to be tried at the October Term of the Superior Court of said County, 1850.</p> <p>When both parties had announced themselves ready for trial, Counsel for plaintiffs in error insisted that they, as plaintiffs and appellants, were entitled to open and conclude the case, and moved the Court that they should be allowed to proceed with their evidence. The Court overruled the motion, and this is the first ground of error assigned.</p> <p>Counsel for plaintiffs in error then moved, as a preliminary motion, that the whole proceeding should be quashed, on the ground, that the alleged award was not the award of the three appraisers, but of only two of them — the other expressly dissenting. The Court overruled the motion, and this decision is assigned as a ground of error.</p> <p>The counsel for defendants in error then read in evidence to the Jury, a paper purporting' to be the affidavit taken by the appraisers, their award, the plat of land taken for the abutment of the bridge, and the certificate of the Clerk that an appeal had been entered.</p> <p>Counsel for the Harrisons then proposed to prove, “ That from the 1st of January, 1832, to the 1st of January, 1840, when the bridge was completed, there was in continuous use and occupation, a ferry across the Chattahoochee river, opposite Irwinton, near the site of said bridge; that from the 1st of January, 1832, to the 1st January, 1835, this use and occupation were in one Parker, who held under one McKenzie; that from 1st January, 1835, to 1st January, 1840, the use and occupation were in Love and Iverson, who received said ferry from said Parker, and who also held under a lease from said McKenzie; that on the 14th June, 1835, said McKenzie transferred said lease to the said Harrisons, who from that time received the rents for said ferry;” .from which they insisted the Jury might presume a grant from the State or the Inferior Court to such ferry. The Court rejected the testimony, and this decision is assigned as error.</p> <p>They also proposed to show by proof, that they were the exclusive owners of the land, for one mile and a half above the bridge, and for one mile below; and that the erection of said bridge destroyed the value of said ferry, for which loss they insisted they ought to have compensation in damages.</p> <p>The Court rejected the evidence, and this decision is assigned as ground of error.</p> <p>Counsel for plaintiffs in error then proposed to prove the value of the land set apart as aforesaid, for the use of an abutment for such a bridge'as the Irwinton Bridge; that is, its value asa bridge site. The Court rejected the evidence, and this decision is assigned as a ground of error.</p> <p>Counsel for plaintiffs in error then requested the Court to charge the Jury, “ That they should find no verdict, which could vest in said Young any title to said land, because there was no evidence before them, going to show that he had complied with, the terms imposed on him as a condition precedent to the vesting in him of any title to said land; and further, that the paper read to them by counsel for Young, purporting to be an affidavit, award, &c. was not to be considered by them as evidence in the case — the same not having been proved to be what they purported to be.” -</p> <p>The Court refused so to charge, but on the contrary did charge, “ That it was the duty of the Inferior Court, before the appointment of said appraisers, to have seen that all the preliminary steps necessary to- said appointment had been taken — and the presumption of law was, that they had been so taken, until the contrary appeared; and if the Jury believed, from the paper read to them, and upon which the appellants, had entered their appeal, that said appointment of appraisers had been made by the Inferior Court, it was sufficient for the assessment of damages before them.”</p> <p>To which charge and refusul to charge, plaintiffs in error excepted, and have assigned the same as grounds of error.</p>

Mandamus, in Marion Superior Court. Tried before Judge Alexander, September Term, 1850.

Indictment for larceny from the house, in Bibb Superior Court. Before Judge Stark, July Term, 1850. At the July Term, 1850, of Bibb Superior Court, John Fox was placed on his trial for larceny from the house. The defendant moved for a continuance for the absence of a witness, William Robards, who resided in Decatur County.

<p>In Equity, from Bibb. Decision on demurrer, by Judge Stark, at July Term, 1850.</p> <p>This bill was filed for foreclosure, account and relief, by Win. B. Parker vs. the Macon and Western R. R. Co. (R. Collins, J. D. Gray, D. McDougald and E. Alexander being made also parties defendants.) It seeks to foreclose certain bonds or certificates of indebtedness to amount of $47,500, principal, predicated on and connected, by reference, to a certain mortgage contract dated 2d August, 1842, between the Monroe R. R. & Banking Company, (whose charter, amended, is the same used by the Macon & W. R. R. Co.) of the one part, and John D. Gray and others, to wit: R. Collins, D. McDougald, E. Alexander and A. B. Davis, (the latter deceased and not represented,) of the other part.</p> <p>This 2d August contract mortgages the entire road and appurtenances, connected or to be connected, to said contractors, to secure payment for the work to be done, and materials supplied for said company, but especially for building and completing that part above Griffin. By'said 2d August contract three-fourths of the net receipts of the entire road were also mortgaged and pledged for the like purpose.</p> <p>The work was carried on, and from time to time the company’s engineer certified to different sections of it, and the company accepted and ratified said portions, as per contract, and issued its bonds or certificates therefor, in divided amounts for convenience, of which the following is an exact sample of those held by Parker, to wit:</p> <p> </p> <p>The 2d August contract, while it vested in the said contractors the road and appurtenances, in full title and estate, until all the dues and payments to which they should become entitled, under said contract, shall have been fully met and satisfied, also provided, that they should not “ coerce payment any further than 75 per cent, of the net receipts of the road, until their contract should be fully completed and performed.</p> <p>Parker’s bill and exhibits show the foregoing facts, and then, in the “ charging” part, refer to various pretences of defendant, (below,) and among other things, to a certain pretended decree under which defendant claims; and in avoidance of said supposed defences, the bill alleges, that the old Monroe R. R. & Bank’g Co. being greatly embarrassed and pressed by .certain of its judgment creditors, filed a bill seeking to enjoin them in behalf of the public nature of the work, but chiefly in behalf of tire said contractors, Gray and others; that said bill was amended, and the prayer and the relief sought were, at the trial term in May, 1845, so changed as to ask for or suggest to the Court die plan of selling the road, and praying, in such event, a distribution of the proceeds among all its creditors of all descriptions.</p> <p>At May Term, 1845, a decree was obtained, which directed a sale, by five commissioners, to be made on the first Tuesday in August, 1845, and directing advertisement for all creditors of every description, naming mortgagees, to file their claims with the Clerk of the Court, and that creditors then litigate their claims among themselves. This sale came off on 5th August, 1845, and, after some disconnected property bought by others, the road and all its appurtenances was bid offby one Jerry Cowles, acting as agent for one Daniel Tyler; that Tyler, in January, 1846, paid over about $155,000, and the five commissioners gave him a deed; that Tyler deeded the same to the defendant, the Macon & Western R. R. Company — being, in truth and fact, only the agent for the persons who soon thereafter became said company.</p> <p>The bill charges fraud, irregularity and want of and excess of jurisdiction, in procuring the decree of May, 1845, and notice of the whole by Tyler, through his agent, Jerry Cowles. It also charges, that Tyler, before he paid the purchase money, had notice of said irregularities, and of Parker’s lien, and that defendant, (the company,) by Tyler, its first President, also before it paid its money, had notice of the aforesaid irregularities, and of Parker’s claims and their character; that Parker was not a party to said old bill, though he went before the Court and protested when a motion was made to confirm and ratify the commissioners’ report, and protested against it and all the proceedings so far as they might affect his mortgage liens; that after the money was paid by Tyler, and under the advertisement for all creditors to come in and prove their debts, various creditors did do so, but he declined and refused to go in and claim the same, or any part thereof; that on the day of sale, and at the sale in. August, 1845, he was present and proclaimed aloud, so that J. Cowles and all present heard him, that he held these particular mortgages ; that by reason of this notice, and notices of other liens, the road sold for much less than it otherwise would have brought.</p> <p>The fraud and irregularities as specified, in part, are, that complainant’s solicitor in said old bill, after the Jury were charged with the case, went into the jury room and conversed with them about their pending inquiry; that Tyler was really agent for persons at the North, who afterwards came forward as stockholders in the company, (defendants,) and it was their money and not his, that he paid for the road, and that he took the deed in his name in fraud, to have the apparent shield for the company of purchasing without notice, when they got title from him.</p> <p>The bill admits that the contractors did not fully finish the road, but urges the failures of the old company as dispensing with this as a precedent duty to foreclosing on the road, and also sets up their practical waiver. It states that, as to a part of the road, Parker’s are the highest liens, and that this Court has so decided. It prays, that any other certificate holders, if any, when discovered, may be made parties.</p> <p>The bill then prays a foreclosure for his whole debt, either,</p> <p>1st. On the entire road and its receipts; or,</p> <p>2d. On that part which was built by Gray and others, under the mortgage of 2d August, 1842, and its net receipts; or,</p> <p>3d. Upon the net receipts alone of the part so built: i. e. from. Griffin to Atlanta.</p> <p>To this bill there was a general demurrer filed by the defendant.</p> <p>At the hearing, July Term, 1850, of Bibb Superior Court, Judge Siar/c overruled the demurrer, and counsel for defendant excepted.</p> <p>1st. On the sale of property under the highest lien, the purchaser takes a perfect title. He cannot be disturbed by inferior liens. Georgia Decisions,part 2,p. 50. 2 Kinne, 201.</p> <p>2d. The bill contains no facts and data on which the Court can base a decree.</p> <p>3d. The mortgage is a joint one, and all the parties thereto and all who have the right to claim as mortgagees, are necessary parties to the suit. Story’s Com. on Eq. Plead. §199,169.</p> <p>4th. There was a condition precedent in the contract, and the bill does not show its performance.</p> <p>5th. The supplement to the contract is not signed by both parties, and, therefore, binds neither.</p> <p>6th. By the terms of the decree, the purchaser is protected. He was to take the property discharged of all liens and incumbrances, and the bill shows that the proceeds of sale were applied to liens which overrode his. In such case he was not a necessary party. Sto. Eq. PI. §639. 2 Kinne, 201.</p> <p>7th. The bill impeaches the decree under which the sale was made, and in such case it is necessary that the proceedings of that cause should be set out fully and at large. Sto. Eq. PI. §428. Gifford, vs. I-Iart, 1 Sch. §■ Lefroy, 386. Kennedy vs. Daly, 1 Sch. fy Le. 355, 374, 375.</p> <p>8th. The sale was under a decree of a Court of Chancery, which provided for complainant’s coming in and claiming. He might have come in. He had notice of the decree and all its provisions, and if he refused to come in, the Court will not now lend its aid, to the injury of the purchaser. Paxton vs. Douglas, 383. 1 Brown’s Ch. Rep. 171. 1 Vesey, Jr. 256, note 7. 10 Paige’s Rep. 383. 4 Johns. Ch. Rep. 643. 9 Paige, 260, 600. 1 Sug. on Vend. 103, §16. 12 Eng. Com. L. Rep. 585. 18 Ves. 469.</p> <p>9th. Irregularity in the proceedings will not affect the purchaser. 1 Paige’s Rep. 95, 96. 12 Ves. 106, also note 4.</p> <p>10th. The reversal of a decree will not affect the title of the purchaser. 12 Ves. Jr. 89, note. 1 Rail Beattie’s Rep. 232.</p> <p>11th. A Iona fide purchaser under a decree fraudulently made, to whom no collusion can be brought home, will be protected.' 1 Vesey, 567.</p> <p>12th. Provisional sale may be made, and if found to be unnecessary, the purchaser will be.protected. 9 Ves. 67, note 3.</p> <p>13th. The allegation that complainant was not a party to the bill on which the decree of sale was made, is not an allegation amounting to a fraud. Sto. Eq. PI. §117. 3 Sioanstcm, 284. 16 Ves. 328, 329. 3 Mason, Wood vs. Dimmer.</p> <p>14th. No equity in the bill—</p> <p>1. The company had no power to mortgage the road, and mortgage therefore void. 3 Rob. Lou. Rep. Í</p> <p>2. The contract claimed to be a mortgage, contains no provision for securing any such certificate as that held by complainant and sued on.</p> <p>3. Complainant does not show at what time he became the owner of the certificate. If he purchased, pendente lite, he need not have been made a party. Calvert on Eq. 128. 3 Swans. R. 144. Story’s Eq. PI. 179, §194. 2 Mkyns, 174.</p> <p>The bill does not show the consideration paid by complainant for the certificates and bonds held by him, and as against a real purchaser he cannot claim more than he paid. 1 Vernon, 476. lb. 464. 15 Mass. R. 505. Jlng. <§f Ames on Cor. 475.</p> <p>Practice of opening bidding not recognized in this country. Daniel’s Ch. Pr. 1465.</p> <p>When a suit is commenced against five, and the writ is served only on three, and the plaintiff takes judgment against all five, that judgment is a lien only against those who were served. Purdy vs. Doyle, 1 Paige, 555.</p> <p>In Chancery, whenever land is pledged to secure the payment of money, the conveyance is a mortgage, whatever form the conveyance takes. Kellerand vs. Brown, 4 Mass. 443.</p> <p>When a vendee records and speaks of a conveyance as a mortgage, it is a circumstance to prove it a mortgage or security for money. Oldham vs. Halley, 2 J. J. Marshall, 115.</p> <p>Every contract for the security of a debt, by the conveyance of real estate, is a mortgage. Henry vs. Davis, 7 J. C. R. 40.</p> <p>A mortgage to secure future advances is valid and binding. James vs. Morey, 2 Cow. 247.</p> <p>A mortgage is only a security for a debt, and anything which transfers or extinguishes the debt, transfers or discharges the mortgage, as an incident of the debt. Barnes vs. Lee, 1 Bibb, 526.</p> <p>It is not necessary to the validity of a mortgage, that it states truly the debt intended to be secured; but it shall stand as a security for the real equitable claims of the mortgagee, whether they existed at the date of the mortgage, or arose afterwards upon the faith of the mortgage, before notice of defendant’s equity. Shiras vs. Carey, 7 Cranch, 35. 2 Con. R. TJ. S. 408.</p> <p>When a purchaser has notice of a mortgage before he takes a deed or pays the purchase money, he is bound by the prior lien, •and is not a bona fide purchaser. Beelcman vs. Frost, 18 J. R. 544.</p> <p>If a mortgage is registered, it is notice to all subsequent purchasers and mortgagees, and there must be proof of intentional fraud to postpone or bar the mortgage. Brinkerhoff vs. Lansing, 4 J. C. R. 70.</p> <p>On a bill for foreclosure by the assignee of a mortgage, it is not necessary to make the mortgagee a party — he having parted with all his interest by an absolute assignment. Whitney vs. McKimie, 7 J. C. R. 144.</p> <p>A second mortgagee may file a bill to foreclose without making the first mortgagee a party. Rose vs. Page, 2 Sim. 471.</p> <p>An assignment of the mortgaged debt, without conveyance of the legal title of the mortgaged premises, is sufficient to authorize the assignee to foreclose. Austin vs. Burbank, 2 Bay, 474.</p> <p>A mortgagee, although he has conveyed in fee the whole mortgaged premises, can yet foreclose; for his conveyance of the land does not pass his interest in the mortgage. Wilson vs. Troup, 2 Cowen, 195..</p> <p>One of the mortgagees, to secure a joint debt, having assigned all his interest in the mortgaged premises, and the other having been paid his share, the assignee may file a bill by.himself and in his own name to foreclose. King vs. Harrington, 2 Atk. 33. 2 V. B. H. Dig. 292.</p> <p>Incumbrances not made parties are not affected by a decree, and purchasers take subject to such incumbrances. Finley vs. Bank U. S. 6 Cow. R. U. S. 319.</p> <p>A purchaser under a sale by virtue of a. decree of foreclosure, will only take title as against the parties to the suit, and he cannot set it up against those incumbrances and equities who are not parties to the suit. Hayne vs. Beach, 3 J. C. R. 459. '</p> <p>A second mortgagee may file a bill to foreclose,' notwithstanding a prior sale under a decree, and the purchaser, either at private or public sale, is not protected against such incumbrances, if he had either constructive or actual notice of it, and the subsequent incumbrancer were not a party to the prior suit or decree, and he need not offer to pay or redeem the prior incumbrances, but is entitled to a sale of the premises. Vanderkamp vs. Shelton, 11 Paige’s R. 28.</p> <p>A decree against an executor, in invitum, unless impeached for fraud, binds the residuary legatees; but when it is by consent, it is subject to re-examination, and has no obligation unless proved to be just. Land vs. Gatlin, 2 Dev. fy Bat. Eq. 37.</p> <p>A judgment or decree binds nor protects none but those who are parties or privies to it. Marrigault vs. Harrison, 1 Bmck. 126.</p> <p>The purchaser at public sale of premises incumbered by a mortgage, purchases nothing but the equity of redemption, subject to the mortgage. Hartshorn vs. Hartshorn, 1 Green. Ch. R. 349.</p> <p>A forfeiture cannot betaken advantage of, nor enforced against a corporation, collaterally, nor in any mode or manner, but by a direct proceeding by and in the name of the Government. Angelí §• Ames on Corp. 664.</p> <p>When a decree in Equity directed lands to be sold for the benefit of creditors, and it was sold by the Sheriff under such decree, and the sale ratified by the Court of Chancery, held, that the purchaser took only the interest of such as were parties to the bill on which the decree was founded, and that the rights of others, not parties, although intended to be bound, were in no way affected by the decree and sale. Laurens vs. Jenney, 1 Speer, 356.</p> <p>A person is not to be in any measure affected by a decision between others, merely because he was present at the trial and cross-examined witnesses; he must, like a party, have had a full, fair and previous opportunity to meet the question in controversy. Turpin vs. Thomas, 2 Hening §• Munford, 139, 147. Wood vs. Jackson, 8 Wend. 26, 27.</p> <p>One affected by a decree, but not a party, may aver and prove it was entered by an agreement of the parties, though it contradict the record. Stark’s Adm’rs vs. Thomson’s Exr’s, 3 Monroe’s R. 302.</p> <p>1st. Point. One of fact — that the first ground of error is a mistake of the facts in the bill.</p> <p>2d. Point. We join issue on second ground of error as to bill not containing sufficient data, &c.</p> <p>3d. Point. On third ground of error, for want of proper parties, we say, ours is such a mortgage as Parker alone can proceed in, having a separate interest in joint contract. Broom on Par. 8. 8. Taunt. 248. 2 Story’s Eq. §1018. 1 Kelly, 435.</p> <p>4th. Point. As mortgagee, and prior one, the Court will dispense with the rule of making all in interest parties — especially as they all cannot, in the nature of the case, be known. 3 J. Eh. R. 459. Story’s Eq. PL §135, a. 96, 97, 92. Mit. PL 180. Calv. Part. 128,138. Story’s Eq. PI. §193, (midway,) andn. 1, end of sec. 3 Ves. 317.</p> <p>5th Point. This (third) ground is not good, because it does not point out and show who complainant has left out as parties. Story’s Eq. PI. §543, 238. Mil. Eq. 180, ’81. 1 Smith’s Ch. Pr. 203. 1 Myl. Sr K. 17, 1 Dan. Ch. Pr. 385.</p> <p>6th Point, (4th error.) We take issue as to the fact. Then see Patton’s Eq. Con. 87,126. 2 Pet. 102. 14 Mass: 266.</p> <p>7th Point (under 6th ground.) See Story’s Eq. PI. §676, §450, 33, n. 1, §46. The way we charge fraud will do. Story’s Eq. PI. §28, 251, 252.</p> <p>But this is a demurrer and admits the full fact, and as stated. 2 jDan. Ch. Pr. 20,12. By plea is the way to' notice it. 2 lb. 99, 100.</p> <p>8th Point (under 6th ground.) We do not pray to set aside said decree — not necessary to do that.</p> <p>9ih Point (under 8th ground.) We join issue of fact, and say fraud is charged, and facts given to prove it. Then see 2 Tidd, 867. Cro. Eliz. 189, 411. 1 Root, 134. 3 Day, 219.</p> <p>10th Point. Our bill specifies fraud and usurpation and excess of jurisdiction. To which see 15 J. R. 141. 19 lb. 33. 10 Pet. Rep. 449. Story’s Eq. PI. 7. 8 Crunch, 9, 22.</p> <p>11 th Point (under 9ih, 7th and bth grounds.) First, as a credit- or’s bill, we say Parker was not bound to go in and claim under the decree of May, 1845. The bill says he did not. Then see 2 Ball. §■ Beat. 354, 357. Welf. Eq. PL 54. 3 Myl. fy C. 69, 70. 1 Dan. Ch. Pr. 376. 2 Sim. 471. 8 Price, 518. .2 Ball. $• Beat. 567, n. Story’s Eq. PI. §274, a. p. 227. Cow. on Morí. 379. 2 Dick. 707. Tidd. 853.</p> <p>Not obligatory for even simple contract creditors to go in, and prior incumbrancers are excluded. 1 Story’s Eq. §548. 1 Crai. <Sr Phil. 48, 56. 2 Danl. Ch. Pr. 802, 469. 2 Smith’s Ch. Pr. 102. Effect of not going in. 2 Danl. Ch. Pr. 856, 500.</p> <p>The old bill treated as an assignment by insolvent. Parker not bound to go in. 1 Dick. 376. 1 Coxe’s R. 422. 2 lb. 378. 1 Swanston, 579. Jeremy’s Eq. 250. 2 Story’s Eq. §829, 0.1038. 2 Dick, 608. 19 Ves. 153. 2 Smith’s Ch Pr. 102.</p> <p>The assignee himself takes, subject to all equities of the insolvent. 1 Bro. C. C. 302. Ami. 724.</p> <p>12 th Point. Defendant (in bill) not a bona fide purchaser, and not entitled to protection. 1 Dan. Ch. Pr. 533, 911. 1 Bli. 169.</p> <p>1 Sch. §■ Lef. 386. 2 lb. 566. 3Mer. 310. 14 Ves. 550. 6 Beav. 97, (tw© latter to point that Chancery does not warrant.) To same, 2' Smith Ch. Pr. 285-. 2 Sch. Sr Lef. 603.</p> <p>Purchaser or his vendee gets only title of defendant in the case. 6 Dana, 402. 1 Ch'een’s Ch.-348,349.</p> <p>Covenant to pay annual rents runs with the land. 3 Wils. 25. 2 Story’s Eq. §1231. 4 Ves. 478. 4 Bro. Ch. C. 421. An annuity charge runs with the land. Sug. Ven. 372. 2 Tuck. Com. 452.</p> <p>Defendants bound by Tyler’s engagements before they bought. Barton on Con. 121, 198, 36. 16. 1 Myl. % C. 370. 3 lb. 97. See■ 11 Gill. §• John. 1. 4 Kent, 470, n.f 2 Ball Sf Beatt. 354. 2 Smith’sCh. Pr. 211.</p> <p>Master’s report — what? 2 Smith’s Ch. Pr. 185, 187. Bennett’s Pr. on Mas. Off. 106, 168, ’69, 89, 138. 2 lb. 161,211. As to purchaser not being satisfied. 2 Ball. Sr Beat. 354.</p> <p>13iA Point. If Parker had been a regular party, he could now object to decree for- want of or excess of jurisdiction. 4 Cowen, 292. 9 lb. 227. 1 Ves. 441. 2 Kent, 312, T3. A.</p> <p>Sr A. 665. And if he had gone in for the money after consenting to the sale, he, on objection, would have been rejected. 1 Danl. Ch. Pr. 376. 3 Swanst. 144, n.</p> <p>14th Point. The Macon & Western Railroad and the old Monroe Railroad the same person, and cannot object to foreclosure.</p>

Assumpsit and motion for a new trial, in Henry Superior Court. Heard and decided by Judge Stark, October Term, 1850. An action of assumpsit was instituted by Samuel Hanson against Radford E. Morrow and Vincent P. Morrow, on-promissory notes, the balance of the purchase money for a jackass, purchased by Morrow from Hanson, returnable to October Term, 1846, of Henry Superior Court.

Affidavit of illegality, in Newton Superior Court. Heard and decided by Judge Stark, September Term, 1850. An execution in favor of the plaintiffs in error against the defendants in error, was issued the 13th day of October, 1840, on a judgment rendered on the 1st day of October, 1840.

Award and motion to dismiss appeal, in DeKalb Superior Court. Heard and decided by Judge Hum, September Term, 1850. The Governor and Chief Engineer of the Western & Atlantic Railroad and Henry G. Dean, being unable to agree as to the amount of damages the defendant should receive for the construction of the said road through his land, referred the matter to arbitrators, as provided by the Statute authorizing the construction of the Western & Atlantic Railroad.

Assumpsit in Bibb Superior Court, and motion for anew trial. Heard and decided by Judge Stark, July Term, 1850. This was an action instituted by John D. Gray against Daniel Tyler, for the recovery of $450 14, as compensation for the services of the plaintiff, and the hire of his negroes, upon the Monroe Railroad, for the months of November and December, 1845.

Rule against Sheriff, in Troup Superior Court. Tried before Judge Hill, November Term, 1850. An execution in favor of the Central Bank of Georgia against Benjamin P. Robertson, returnable to October Term of Troup Superior Court, 1843, was placed in the hands of Seaborn J. Thompson, the plaintiff in error, then Sheriff of Troup County.

Assumpsit, in Troup Superior Court. Tried before Judge Hill, November Term, 1850. An action of assumpsit was instituted by John C. Simms, as administrator of Thomas C. Brown, against Otis Smith, the plaintiff in error, on a promissory note made by Smith, and payable to Brown, for $644 72, due the 17th day of January, 1843. On the note there was a credit of $140, entered 1st day of January, 1845.

Made to Judge Stark, at Chambers, and refused, December 23d, 1850.

<p>In Equity, in Troup Superior Court. Tried before Judge Hill, November Term, 1850.</p> <p>This was a bill in Equity, filed by the plaintiff in error against, the defendants. The bill alleged, that the defendants, on the 29th of December, 1837, were united and associated as co-partners, under the name and style of the “ West Point Company,” and as such were the owners of a town, laid off into lots and streets by them, on the Chattahoochee river, in the County of Troup, known and called West Point; that on the 28th of September, 1837, they advertised said lots for sale, stating in the notice, that “It was certain the Montgomery & West Point Railroad would be completed in a short time.” The bill alleged, that the defendants were stockholders, and exerted a controling influence in the affairs of said railroad company, and complainant relied, with the utmost confidence, in the representations and assertions of the defendants; that the complainant, knowing that the value of the lots in the said town, depended/ on the completion of the road, declined to purchase the same, without a distinct understanding as to what should be done m the event said road should not be completed.</p> <p>The bill alleged, that on the day of sale, John C'. Webb, one of the proprietors, and as the agent of the company, in order to* induce the purchasers to buy, stated, that the company would, in the event said railroad • was not completed to West Point, refund the purchasers of said lots the purchase money they were required by the terms of sale to pay, with interest thereon from the time of payment; that on the day of sale, 11th December,, 1837, they sold a great many lots, with the understanding as charged. Afterwards, on the 29th day of December, 1837,, complainant purchased of John C. Webb, as the agent of the company for that purpose, two lots, at private sale, on the same terms and understanding, as those published and made known, on the day of sale, and received the bond of said company forr titles, which was printed and prepared the day before the day of sale, and was in the ordinary form. Complainant paid a part of the purchase money for the said lots.</p> <p>■ The bill charges that the railroad has not been completed to the town of West Point, and that it never will be; that the charter has been forfeited to the State by tbe terms thereof, and the road sold under execution, and become the property of other stockholders, in consequence of which, the said lots had become of no value; that on the 1st day of May, 1844, complainant ■demanded of the agent of the company, the purchase money paid by him for said lots, and offered to deliver up the bond to be cancelled, which he refused to do.</p> <p>The bill prays that the contract for said lots may be rescinded, that the defendants refund the purchase money paid, with interest, and deliver up to be cancelled, the notes of complainant held by said company, and that they have their bond held by complainant; also, that the said bond may be reformed, so as to contain the stipulations of the parties as set forth in the bill.</p> <p>The defendants, by their answer, admit the sale of the lots, on the following terms: one-fourth of the purchase money to be paid on the 1st day of March, 1838, one-fourth 1st March, 1839, and the other half when the first steam car should run from Montgomery, in the State of Alabama, to West Point. They deny that it was stipulated to be completed at any particular time, and allege that the road is now in progress of completion, and will be finished to West Point in a short time.</p> <p>McGehee, one of the defendants, denies that the “West Point Company” owned a majority of the stock, or had a controlling Influence in said railroad company.</p> <p>On the trial of the cause, it was proved by several witnesses, that on the day of sale, the representations as charged in the bill were made; that it was publicly proclaimed that the said ¡railroad would be completed in a short time; that Webb and McGehee, two of the company, represented that it would be finished by the year 1844, &c. &c.</p> <p>The Court charged the Jury, “ That the contract under consideration was sought to be set aside—</p> <p>“ 1st. By reformation and non-performance on the part of defendants with their part; and</p> <p>“ 2d. For fraud in procuring the agreement of complainant, by Misrepresentation, concealment and fraud, and the contract thus induced.</p> <p>“In order to find in favor of complainant on the first ground, the Jury must be convinced, beyond a reasonable controversy, that by reason of said accident, mistake or inadvertence, the contract was reduced to writing, in form and in substance different from the intention of the parties, as to fads or law, and that a mistake of fact or legal right, (clearly proven,) might be corrected ; but on the second ground, if the Jury believed that plaintiff was induced to make the contract by false or fraudulent misrepresentations, or concealment of truth, whether made honestly or dishonestly, with or without knowledge, intentionally or innocently, (inasmuch as fraud vitiates all contracts,) if the complainant was really imposed upon by any artifice or misplaced confidence, the contract ought to be set aside, and the parties placed in statu quo, or as they were, the money refunded, and notes given up according to complainant’s prayer; that the Court would leave special application of rules to be made to the present case by the Jury. Upon these two points the case turns, or one of them. If either found for complainant, his prayer ought to be granted; otherwise, a finding for defendants generally. To reform a contract, there must be no ddubt left of what the real contract was, and then (as to time, place and circumstances) it must be construed and reformed accordihg to the intentions of the parties. If left doubtful in terms, the Jury should not attempt reformation, but bind the parties by the terms of the writing.”</p> <p>The Jury found for the defendants, and counsel for complainant excepted to the charge of the Court, and his refusal to charge.</p> <p>Story’s Eq. Jur. §§162, 192. 1 Kelly, 25. Simpson vs. Vaughn, 2 Aik. 33. 6 Serg. ¿r R. 262. Thomas vs. Frazer, 3 Ves. 399. 2 Kent, 486, ’87, note. Hunt vs. Rousmanier, 8 Wheat. 174. 3 Aik. 386. 11 Mees. §' Weis. 401. 2 Wheat. 178, 195. 6 Clark $ Fin. 232, 233. 11 Ala. Rep. 535, 1058.</p> <p>1 Story’s Eq. §§152, 157. lb. 162. 1 Bro. Ch. R. 338, 341. 1 Ves. 317. 7 lb. 217. 2 John. Ch. R. 585. lb. 630. 2 Cranch. 442. 1 Story’s Eq. §§200, 203. 7 Johns. Ch. Rep. 201. 1 Simo?is’ R. 63.</p>

Ejectment in Fayette Superior Court. Tried before Judge Hill, September Term, 1850. This was an action of ejectment, brought by the defendant in error, for the recovery of lot of land, No. 67, in the ninth district of Fayette County ; the said lot being divided by the County line of Campbell and Fayette Counties. The plaintiff relied upon a statutory title.

In Equity, in Crawford Superior Court. Tried before Judge Stark, August Term, 1850. This was a creditor’s bill, filed by the plaintiffs in error, against the defendant in error, to subject certain assets to the payment of the judgment creditors of the firm of E. W. & J. Dennis.

Ejectment, in Crawford Superior Court. Tried before Judge Stark, August Term, 1850. This was an action of ejectment, instituted by the plaintiff in error, as the administrator, with the will annexed, of Samuel Harper, Sen. against the defendant in error, for the recovery of a lot of land in Crawford County. The defendant pleaded the general issue and the Statute of Limitations.

<p>[I.] Where one of four joint and several promisors, promised to pay the debt before the Statute of Limitations had operated as a bar, it takes the case out of the Statute as to the others.</p>

<p>Certiorari, in Fayette Superior Court. Decided by Judge Hill, September Term, 1850.</p> <p>Philip Fitzgerald obtained nine judgments against the defendants in error, in a Justice’s Court in Fayette County, at the April Term, 1842. On the 13th of the same month, fi. fas. were issued thereon, which were, in March, 1849, levied on the property of Adams, who filed his affidavits of illegality to said fi. fas. on the grounds—</p> <p>1st. Because he never was summoned to appear and defend said suits, nor had any notice that the same were pending.</p> <p>2d. Because no original summons were ever issued, nor copies served on him, nor service acknowledged, nor judgment confessed, neither by himself, nor any other person authorized to do so for him.</p> <p>At the August Term, 1849, of the Justice’s Court, a trial was had upon the said affidavits of illegality, when the defendant proposed to prove by Archibald McEachern, that he (witness) was the only Constable acting in the district the year in which the judgments were obtained, and that he did not serve the defendants with any summons in the eases.</p> <p>To which the plaintiff objected, on the ground that the evidence sought to be submitted was secondary in its character and was inadmissible, until it was shown that the original summons, with the return of the Constable thereon, were lost or were never issued, and, also, because parol evidence was inadmissible to set aside a judgment, and if there was any irregularily, advantage should have been taken of the same at an earlier day. Which objections were overruled by the Court, and the evidence allowed to go to the Jury. The Jury returned a verdict sustaining the affidavits of illegality.</p> <p>From the decision of the Justices and the verdict of the Jury, a certiorari was taken to the Superior Court, upon the hearing of which, Judge Hill sustained the decision of the Justices and the Jury, and dismissed the certiorari, and counsel for plaintiff excepted.</p>

In Equity. Application to Judge Stark for an injunction. The Justices of the Inferior Court of Pike County, for the use of the people thereof, applied to Judge Stark for an injunction against the Griffin & West Poipt Plankroad Company.

Motion to dismiss appeal. Heard and decided by Judge Stark, August Term, 1850, in Pike Superior Court. An appeal was taken to the Superior Court of Pike County, from an award made by commissioners appointed under the provision of the charter of the “ Griffin & West Point Plankroad Company,” in relation to said company taking and using the-public road running from Griffin to the Flat Shoals, through said district, as a site for their plankroad.

<p>Motion to dismiss appeal. Heard and decided by Judge Stark, in Pike Superior Court, August Term, 1850.</p> <p>An appeal was taken to the Superior Court of Pike County, from an award rendered by Commissioners appointed under the provisions of the charter of the Griffin and West Point Plank-road Company, to ascertain the compensation to be paid by said Company for appropriating the public road, leading from Griffin to the Flat Shoals, on Flint river, through said district, as a site for their plankroad.</p> <p>It appeared from the record, that the award was sanctioned and ratified by the Commissioners of Roads for said district, on the 28th day of May, 1850. On the 5th day of June, 1850, they repented, and filed their protest against the award.</p> <p>The appeal was entered by W. W. Arnold, A. W. Pryor and Hartford Green, as attorneys at law.</p> <p>At the hearing, August Term, 1850, of said Court, a motion was made to dismiss the appeal, upon the following, among other grounds—</p> <p>Because the appeal was entered by certain persons, as attofneys at law, and who had not been employed, until after the (/ases had terminated by an agreement between the parties.</p> <p>2d. Because there had been an agreement between the Commissioners, as to the compensation to be paid by the Company for the right of way over said public road, which had been ratified by the Commissioners of Roads for the 505th District.</p> <p>The Court sustained the motion and dismissed the appeal, and counsel for plaintiff excepted.</p>

<p>Indictment, for murder, in Bibb Superior Court. Tried before Judge Stark, July Term, 1850.</p> <p>At the July Term, 1850, of Bibb Superior Court, Allen, a slave belonging to David Flanders, was put on his trial for the alleged murder, in said County, of Sam, a slave, the property of JohnB. Lamar.</p> <p>In the progress of the trial, it appearing from the testimony of one of the witnesses, that the homicide was committed during the then session of the Superior Court, defendant, by his counsel, objected to the farther progress of the cause, and moved the Court for a verdict, on the grounds—</p> <p>1st. Because the-defendant could not by law be indicted and tried at the then present term of said Court, but must be indicted at the next term of said Court after the commission of the alleged offence, as required by Statute.</p> <p>2d. Because the indictment did not allege affirmatively the proceedings had before the committing Magistrates, viz: the affidavit, the warrant, the arrest, and notice in writing by the Magistrate issuing said warrant, to two or more of the nearest Justices of the Peace, to associate with him on a particular day therein specified, not exceeding three days from the date of said notice, for the trial of said slave.</p> <p>The Court overruled the motion, and counsel for defendant excepted.</p> <p>When the opinion in writing of the Magistrates before whom the defendant was tried, was tendered in evidence, defendant, by his counsel, objected thereto—</p> <p>Because the opinion and order in writing tendered, was different from that set out in the bill of indictment, in this, to wit: the indictment alleged an order, signed by Ebenezer C. Granniss, Eliphalet E. Brown and William Shivers, Justices of the Peace, and the opinion in writing tendered, was signed by Eliphalet E. Brown, William Shivers, Junior, and Ebenezer C. Granniss, Justices of the Peace.</p> <p>The Court overruled the objection, and admitted the writing tendered in evidence, and counsel for defendant excepted, and upon these several exceptions has assigned error.</p>

In Equity, in Lumpkin Superior Court. Decision by Judge John H. Lumpkin, March Term, 1851.

Scire facias, in Murray Superior Court. Decided by Judge John H. Lumpkin, April Term, 1851. The facts of this case are as follows: Carter & Ritch had issued bail process against one Charles B. Word, and Jane Davidson and James M. Owen, the plaintiffs in error, had become bis sureties. Word having failed to appear, the plaintiffs, after judgment obtained, issued scire facias to charge his sureties with the ' debt.

<p>[l.]| A new trial will not bo granted for irregularity in the verdict, in this, that tho Jury heard the statement of one of their fellows in relation to tho case in their box, unless a brief of the evidence bo filed in pursuance of the rule of Court.</p> <p>¡[2.] The Court will not in such a case grant a new trial, if it is clear and manifest that there was evidence sufficient to sustain the finding, wholly independent of the statements made in the Jury box.</p>

<p>[1.] Land cannot be levied on and sold under an order of the Magistrates, in attachments returnable to Justice’s Courts. It must ho by virtue el’an execution issuing upon the judgment in attachment.</p>

Trespass, in Cherokee Superior Court. Tried before Judge John H. Lumpkin, February Term, 1851. This was an action brought by William H. Perry against Isaiah Simpson and Stephen Edwards, for assault and battery.

Garnishment, in ■ Habersham Superior Court. Tried before Judge James Jackson, October Term, 1850. This was a summons of garnishment, issued in the name of Lewis A. Dugas, as a creditor of the Habersham Iron Works & Manufacturing Company, on a judgment obtained against them by Lewis F. E. Dugas, and transferred to and controlled by the plaintiff. The summons was served on John R. Mathews and James R. Wyly, who answered, denying any indebtedness to the company.

<p>In Equity, in Floyd Superior Court. Decision by Judge John H. Lumpkin, at Chambers, April 12th, 1851.</p> <p>The plaintiffs in error filed their bill, alleging the following facts : That they were the owners, and in occupation of certain toll bridges over the Etowah and Oostanaula rivers, near their junction at the Town of Rome; that those under whom they hold were, from the time of the first settlement of the country by the whites, owners of the land, and of a ferry privilege over said rivers; and that being the owners, and in undisturbed possession thereof, they did, in 1834, propose to the Justices of the Inferior ■Court then in office, and to the said County of Floyd,.as a consideration for the removal of the County site from Livingston, and its permanent location atRome, the following terms : 1st. That they would give to the Inferior Court, for the use of the County, one- half of the proceeds of the sale of town lots, on lot of land No. 245, in the 23d district 3d section, and that suitable lots should be selected thereon for a Court-house, jail, academy and three churches.</p> <p>2d. They proposed topayto the citizens ofLivingston, the actual value of all their improvements made in said town, the improvements to belong to them; the value to be assessed by three respectable and disinterested citizens, the paymenttobe made out of the first proceeds of the sale ot towm lots realized by them.</p> <p>3d. They proposed to keep a free ferry at the head of the 'Coosa river, for thp benefit of free passage of the citizens of Floyd County upon foot and on horseback, except persons passing and repassing to their farms.</p> <p>4th. The sale of the town lots at the head of Coosa, together with the collection and equal division of the proceeds of said lots, to be under the joint management of the said Court and the company.</p> <p>These propositions were submitted to a vote of the people of the County, and being accepted by a large majority of the voters, they were ratified by the Inferior Court, and entered on their minutes as a judgment and order of the Court.</p> <p>Complainants further stated, that all the arrangements contemplated in said proposition were carried into effect, and that the conditions on both sides were performed ; that they substituted bridges for ferries, to meet the public convenience, and had been for many years, and ever since the settlement of the County, in the peaceable enjoyment of their franchise. • They claim to have acquired by prescription, a right to said franchise, and moreover, that the agreement between them and the County, above stated, was in full force, and sufficient in law, to protect them from any infringement of their exclusive rights.</p> <p>They alleged, however, that the Inferior Court of said County, now in office, had passed an order, authorizing the defendant, William R. Smith, to erect a bridge over the Etowah river, within the corporate limits of the Town of Rome, and within one mile or less of complainant’s bridge over the'same river; which complainants charge, will be an injury to them, and a violation of their franchise; and they pray that defendants may be enjoined from proceeding further therein. The application for injunction being heard before Judge Lumpkin, at Chambers, was refused by him; to which decision complainants excepted.</p> <p>Points made by counsel for defendants in error.</p> <p>Complainants do not show a prescriptive light either for a ferry, or an exclusive right to a ferry.</p> <p>■ To constitute a prescriptive right, the enjoyment must have-existed time out of mind. 1 Black. Com. 75. 2 Lb. 263.</p> <p>Seven years undisturbed possession and enjoyment of an incorporeal hereditament, presumes a grant. 7 Geo. Rep. 352.</p> <p>This prescription may be rebutted and the right destroyed, by showing the commencement of the enjoyment. 10 East. 476. 2 Brof. §' Bing. 403. Cmoper, 215. 2 Wil. 23.</p> <p>he bill itself show's the commencement of the enjoyment but it nowhere shows the commencement of a right to have a bridge, nor the continuance oí the ferry.</p> <p>2d. Seven years enjoyment only presumes a grant. It presumes a naked grant from- the Legislature. 7 Geo. Rep. 351. A grant to complainants does not preclude a grant to defendant, Smith. If complainants be the first grantee and are injured by defendant Smith’s bridge, they have no right of action. It is damum absque injuria. 7 Geo. Rep. 352. 8 Peters, 738. 11 lb. 545, 546.</p> <p>3d. The complainants set up a ferry right only, and no right to erect a bridge, and show that they have a bridge and no ferry. Authority to build a bridge confers no right to have a ferry, and the right to have a ferry gives no right to erect a toll bridge. 2 PEHiard on Real Property,• 47, 68. 11 Peters, 541.</p> <p>4th. The complainants show neither a grant nor a prescriptive right to a bridge, nor exclusive right to a ferry.</p> <p>Prescription is against common right.</p> <p>The complainants have no right, under their contract with the Court, to set up a franchise against the public. The authority of the Inferior Court to establish ferries, is only permissive. The ultimate control is in the Legislature. They cannot by contract bind the Legislature. They cannot bargain away the power of the Legislature. The Legislature have granted the right. Act of 1849.</p>

Debt, in Chattooga Superior Court. Tried before Judge Hooper, October Term, 1850. This was an action brought by Kellett against McKnight, on a bond for the sum of $3360, with interest.

Habeas Corpus, from Forsyth County. Decision- by Judge John H. Lumpkin. This was a writ or habeas corpus sued out by Jacob Yancy,. alleging that he was illegally confined by Ezekiel Harris, the defendant.

Trover, in Wilkes Superior Court. Tried before Judge Baxter, September Term, 1850. The errors assigned in this case arose upon the trial of an action of trover for a slave named Jerry. Carter and wife claimed under an alleged parol gift of Jenny, the mother of Jerry, to Esther Caroline Carter, (formerly Kendrick,) when an infant, by her grandfather, Jacob Bull.

<p>[1.] Verdicts are to have a reasonable intendment, and to receive a reasonable construction, and are not to be avoided unless from necessity.</p> <p>[2.] aWhere a bill was filed by John A. Rarden and Henrietta, his wife, formerly Henrietta G. Ogletree, to recover certain slaves in light of the wife; and the Jury on the trial of the case found the following verdict: “ We the Jury find and decree, that the complainant, Henrietta G. Rarden, (formerly Henrietta G. Ogletree,).in her own right, and for her own use, do recover of the defendant the negro' slaves, Washington, Martha, &c.” Held, that 6n a motion in arrest of judgment, on the ground that the verdict did not find in favor of the marriage of the parties, which was denied by the defendant’s answer, that the legal effect of the verdict was in favor of the marriage.</p>

<p>In error, from Richmond County.</p> <p>This writ of error, was- sued out to a decision on a motion for a new trial, on; the ground, that the verdict was contrary to the evidence. The’bill of exeeptions did not contain a brief of the evidence, or refer to any. In the transcript of the record, the Clerk sent up a brief of evidence, purporting to be of file in his office.</p> <p>A motion was made to dismiss the writ of error, on the ground that no brief of evidence had been embodied in the bill of exceptions.</p>

In Equity. Decision on demurrer, by Judge Starnes, Richmond Superior Court, February Term, 1851.

Motion to dissolve, injunction, in Richmond Superior Court. Decision by Judge Starnes, January Term, 1851.

<p>[1.] In cases of felony, the civil remedy is suspended until the offender is prosecuted to conviction or acquittal.</p> <p>[2.] African slavery held never to have existed in the Island of Great Britain by the Common Law, by Statute, or by the Laws of Nations.</p> <p>[3.] The Law of Villenago obsplete in England. Quere?</p> <p>[4.] If not obsolete, but of force in 1732, when the colony of Georgia was settled: Held, that it had no application to African slavery in England or in Georgia.</p> <p>[5.] The Common Law of England held to be inapplicable to the institution of slavery, except to protect the rights of masters.</p> <p>[6 ] The slave trade held to be recognized as a lawful commerce, under the Law of Nations, and that law Obligatory upon the Statesof the world, unless repudiated by treaty or positive law.</p> <p>[7.] Held, that by the comity of nations, when a slave escapes into, or is found within the jurisdiction of a State where slavery is not recognized, it is the duty of that State, upon the demand of his rightful owner, to deliver him to be taken back to the State where, by law, he is a slave.</p> <p>[S.] The origin and character of property in slaves in this State defined.</p> <p>[9.] It is not felony in Georgia, by the Common Law, to kill a slave, and the only legal restraint upon the power of the master over the person of the slave in Georgia, is such as is imposed by Statute.</p>

<p>Debt, &c. in Baldwin Superior Court. Tried before Judge Hansell, Feb. Term, 1851.</p> <p>This was an action on a Sheriff’s bond, made by JohnS. Stephens, as principal, and Samuel T. Beecher, M. J. Kenan, and John M. Maclin, as sureties, and attested by Charles D. Hammond and John S. Thomas, two of the Justices of the Inferior Court of Baldwin County. •</p> <p>On the trial, the plaintiff proved by John S. Thomas, that he was present on the 11th day of January, 1840, when the bond was executed; Hammond and Samuel T. Beecher, were also present, being Justices also of the Inferior Court. The bond was accepted by the three Justices, as a Sheriff’s bond; Beecher did not attest the bond, because he was one of the sureties; witness objected to taking the bond for some time, but he yielded to the others. The bond was then tendered and read to the Jury, as a voluntary bond; the breach by the Sheriff was admitted, in failing to pay over money on a judgment, obtained in October, 1840.</p> <p>Defendants then proved by John S. Thomas, that on the 3d March, 1840, a second bond was executed by Stephens, the Sheriff, with other sureties, attested and approved by three Justices of the Inferior Court — Beecher, the surety to the first bond, being one of them — and was taken in lieu of, and as a substitute for the first bond; the Justices believing the first bond illegal. No one was present when the second bond was taken, except the Justices and the obligors thereto. An affidavit of illegaltity had been filed by Col. S. Rockwell, to a levy by Stephens, on the ground that the first bond was not good — Beecher being a surety thereto, who was one of the Court. Gov. McDonald, the obligee, was not present. Similar evidence was offered by the depositions of Charles B. Hammond, another Justice of the Inferior Court.</p> <p>The second bond, dated 3d March, 1840, was then offered in evidence.</p> <p>Counsel for plaintiff'objected to the bond, and all of the evidence going to show that the new bond was received as a substitute for the first bond, on the ground that it was not competent for the Justices who took the second bond, to discharge the obligees to the first bond.</p> <p>The Court overruled the objection, and this decision is assigned as error.</p> <p>Plaintiff’s counsel requested thé Court to charge the Jury: “ That the taking of the second bond was no discharge of the obligations ofthe first bond, upon which this action is brought, and that plaintiff was entitled to recover, notwithstanding the execution of the second bond, and notwithstanding any undertaking or agreement, at the time of the execution of the second bond, by the Justices, that the same should operate as a discharge of the first bond.”</p> <p>The^Court refused soto charge, but on the contrary, instructed the Jury, among other things — “that if the Jury believed that Stephens, alter the execution of the bond sued on, gave a second bond, which was accepted by three Justices of the Inferior Court, in lieu of, and as a substitute for the bond sued on, then the sureties on the first bond were discharged from liability for the misconduct ofthe Sheriff, occurring after the acceptance’of such second bond.”</p> <p>The refusal to charge, and the charge as given, are assigned as error.</p> <p>submitted the following points and authorities:</p> <p>1st. The bond sued on, is a valid bond, although attested by only two Justices. Certainly it is a good Common Law bond.</p> <p>Stephens vs. Treasurers, 2 McCord, 107. Goodman vs. Caroll, 2 Humph. 490. State vs. McAlpine, 4 Iredell, 140. 3 Dev. R. 384. 4 lb. 270. 10 Yerger, 465. Carmichael vs. Gov. 3 Haw. Miss. Reps. 236. Bryan vs. Gi'eene, 8 Miss. R. 115. Schellinger vs. Yends, 12 Wend. 306. Young vs.. State, 7 Gill §• Johnson, 253. Stephens vs. Crawford, 1 Kelly, 574. 3 lb. 499. 5 lb.</p> <p>569.</p> <p>2d. The Justices possessed no power to discharge the obligations of this bond, or to release the obligors from their liability upon it. Prince’s Dig. 176, ’7, 430. Taylor vs. Auditors, 2 Pike’s Reps. 174. Hill vs. Calvert, 1 Rich. Eq. Reps. 56. Polk vs. Wisner, 2 Humph. 520. State vs. McLean, 2 Blackford, 192. Bank ofJJewbern vs. Pugh, 1 Hawks, 198.</p> <p>3. Admitting that they possessed such power, there was no legal and valid exercise of it, nor was anything done by them which discharged the obligations of -said bond, or released the obligors from their liability upon it. This -can only be done by cancellation or release. Manhood vs. Crick, Crokis Elis. 716. JVonoood vs. Grype, lb. 727. Steptoe’s Admr. vs. Haney’s Admr. 7 Leigh, 501. Higgins’ case, 3 Coke’s Reps. 346. Bailey vs, Wright, 3 McCord, 484. Roades vs. Barnes, Burrow’s Reps. 1 ml. 9.</p> <p>The bond sued below mustbe considered as a voluntary bond. See case, Governor, for use of Tarpley, vs. Meredith.</p> <p>If a voluntary bond, and it was offered and received below as such only, it could not have been taken, pursuant to Judiciary Act of 1799, (Prince, p. 430, or 1803, Prince’s Dig. 176) and, therefore, the extent of authority conferred on those taking it by these Acts, cannot be the question.</p> <p>The question is, may not those who, of their own accord, without any requirement of law, have taken a voluntary bond, and •with whom it is deposited, control that bond, so as to release or discharge the securities thereto ?</p> <p>The Governor, as the obligee, may release it directly. The agents of the obligee may do the same, by previous authority or subsequent ratification of their act, by silence and acquiescence.</p> <p>The bond sued on was substituted by another — that second bond was sued on by the obligee and present usee — and they are estopped to deny the power of the agents in receiving the last, in lieu of the one sued.</p> <p>The bond sued on should be declared void, for that one of the obligors sat in judgment upon its goodness and sufficiency, and without him, there was not an approval by three Justices.</p> <p>The principle of the decision, in 6 Geo. Rep. 443, supports this ground. The Acts of 1799 and 1803, exhibit a general and unlimited delegation of power to take Sheriff’s bonds, unless the direction to take “ good and sufficient securities, inhabitants and freeholders of the County, §-c.” be understood as restrictive.</p> <p>A power imperfectly exercised, as in this case, by taking insufficient security, cannot be said to have been executed, until the duty is performed enjoined by Statute.</p> <p>A general and unlimited power to take good and sufficient securities, must be held to include all the necessary and usual means of executing it with effect. Convyri’s Dig. Atty. c. 5 John. Reps. 58. Liv. on Agency, 103.</p> <p>Where the law commands or directs a thing to be done, it authorizes the performance of whatever acts may be found necessary for executing its command or direction. Paley on Agency, passim.</p> <p>The Justices here, did not cancel and surrender a security to the public ; they added to that security, by receiving a solvent obligor in lieu of an insolvent one. This was merely taking a cumulative security — a power- admitted to belong to them — a power auxiliary and subordinate to the other, and vital to the proper exercise of the power granted to take bond.</p>

Assumpsit, &c. in Jasper Superior Court. Tried before Judge Johnson, October Term, 1851. Suit was brought by Henry J. Lamar, against Edward Varner, maker, and John Thurmond, indorser, of a promissory note. Judgment was obtained against both, and an appeal entered by Varner alone'.

In Equity, in Greene Superior Court. Tried before Judge Starnes, March Term, 1851. George M. Dawson, as one of the distributees of William S. Branch, deceased, in July, 1849, filed his bill for an account against James C. Branch and John Branch, as the administrators of said deceased. At March Term, 1850, the joint answer of the defendants was filed, and at the same term an appeal was entered, by the consent of parties.

<p>Assumpsit, &c. in Putnam Superior Court. Tried before Judge Johnson, March Term, 1851.</p> <p>Suit was brought by the administrators of Wm. Biscoe, against James A. Meriwether and Daniel Slade, upon a promissory note for $633,75, dated 12th January, 1838, and due, 25th December, 1838. Defendant, James A. Meriwether, pleaded and proved, by way of set-off, an account for services rendered as an attorney, at various 'times during the years 1839, ’40, ’41, amounting to $410.69.</p> <p>Defendant’s counsel requested the Court to charge the Jury, “ that in malting the calculation of what was due between the parties, the defendants had a right to have their set-off allowed as a credit on plaintiff’s demand, as of the time at which the services rendered were due,” which charge the Court refused to give, but on the contrary, charged the Jury, “ that defendants were entitled to have what was proven to be due defendant, allowed as a credit only of the time at which the then trial was had.” “ The Jury should ascertain what amount was due plaintiffs at that time, and if defendant’s set-off exceeded that amount, give a verdict for defendants, for the balance; but if it did not exceed it, then to give a verdict for plaintiffs for the difference between the two amounts.”</p> <p>This charge arid refusal to charge, arc assigned as error.</p>

Attachment, in Oglethorpe Superior Court. Decision by-Judge Baxter, April Term, 1851. The attachment in this case was sued out by Edward ‘ C. Shackelford, as the attorney of William H. Deupree.